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Christopher M. Bruner - One of the best experts on this subject based on the ideXlab platform.
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Managing Corporate Federalism: The Least-Bad Approach to the Shareholder Bylaw Debate
2011Co-Authors: Christopher M. BrunerAbstract:Over recent decades, shareholders in public corporations have increasingly sought to augment their own power – and, correlatively, to limit the power of boards – through creative use of corporate Bylaws. The Bylaws lend themselves to such efforts because enacting, amending, and repealing Bylaws are essentially the only corporate governance actions that shareholders can undertake unilaterally. In this Article I examine the contested nature of Bylaws, the fundamental issues of corporate power and purpose that they implicate, and the differing ways in which state and federal lawmakers and regulators may impact the debate regarding the scope of the shareholders' bylaw authority. The Article first discusses various dimensions of corporate governance historically addressed in the Bylaws, and the controversial uses to which Bylaws have been put by shareholders seeking greater corporate governance power, focusing on Delaware – the jurisdiction of incorporation for most public companies. I then turn to the ways in which rules of corporate governance are generated in our federal legal system, including the complex and evolving mechanisms through which state and federal lawmakers and regulators interact. In particular, I evaluate the SEC's process for assessing whether shareholder proposals to amend Bylaws must be included in a public company's proxy statement, as well as the recently created process through which Delaware permits SEC certification of contested issues of state law directly to the Delaware Supreme Court – a process the SEC has already used in evaluating the excludability of a proposed shareholder bylaw amendment. I conclude that this process threatens to substantially distort the evaluation and evolution of the shareholders' bylaw authority by presenting the Delaware Supreme Court with proposed Bylaws to be assessed in the abstract – an awkward posture resulting in the sacrifice of important values reflected in the ripeness Associate Professor and Ethan Allen Faculty Fellow, Washington and Lee University School of Law. A.B., University of Michigan; M.Phil., University of Oxford; J.D., Harvard Law School. For generous financial support I am grateful to the Frances Lewis Law Center, Washington and Lee University School of Law. For helpful comments and suggestions, many thanks to Lyman Johnson and Brett McDonnell. Thanks also to James Moore for excellent research assistance. 2 DELAWARE JOURNAL OF CORPORATE LAW [Vol. 36 doctrine, and abandonment of the presumption of validity that ordinarily favors enacted Bylaws. I then consider who ought to determine the scope of permissible shareholder Bylaws, concluding that there is no perfect approach because none of the relevant state and federal actors dominates with respect to both political legitimacy and expertise – the SEC possessing neither, while Congress possesses the former and Delaware the latter. I argue, however, that the least-bad approach would be to remove the SEC from the process entirely, leaving these matters to Delaware in the first instance, subject to potential intervention by Congress. The pragmatic means of achieving this outcome would be a strict SEC policy of refusal to permit exclusion from the proxy of proposed shareholder Bylaws prompting competing opinions of Delaware counsel. This approach would eliminate the distortion introduced by SEC certification, permitting resolution of the fundamental issues at stake in a more organic and better informed manner through traditional Delaware litigation.
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Managing Corporate Federalism: The Least-Bad Approach to the Shareholder Bylaw Debate
Social Science Research Network, 2010Co-Authors: Christopher M. BrunerAbstract:Over recent decades, shareholders in public corporations have increasingly sought to augment their own power - and, correlatively, to limit the power of boards - through creative use of corporate Bylaws. The Bylaws lend themselves to such efforts because enacting, amending, and repealing Bylaws are essentially the only corporate governance actions that shareholders can undertake unilaterally. In this Article I examine the contested nature of Bylaws, the fundamental issues of corporate power and purpose that they implicate, and the differing ways in which state and federal lawmakers and regulators may impact the debate regarding the scope of the shareholders' bylaw authority. The Article first discusses various dimensions of corporate governance historically addressed in the Bylaws, and the controversial uses to which Bylaws have been put by shareholders seeking greater corporate governance power, focusing on Delaware - the jurisdiction of incorporation for most public companies. I then turn to the ways in which rules of corporate governance are generated in our federal legal system, including the complex and evolving mechanisms through which state and federal lawmakers and regulators interact. In particular, I evaluate the SEC's process for assessing whether shareholder proposals to amend Bylaws must be included in a public company's proxy statement, as well as the recently created process through which Delaware permits SEC certification of contested issues of state law directly to the Delaware Supreme Court - a process the SEC has already used in evaluating the excludability of a proposed shareholder bylaw amendment. I conclude that this process threatens to substantially distort the evaluation and evolution of the shareholders' bylaw authority by presenting the Delaware Supreme Court with proposed Bylaws to be assessed in the abstract - an awkward posture resulting in the sacrifice of important values reflected in the ripeness doctrine, and abandonment of the presumption of validity that ordinarily favors enacted Bylaws. I then consider who ought to determine the scope of permissible shareholder Bylaws, concluding that there is no perfect approach because none of the relevant state and federal actors dominates with respect to both political legitimacy and expertise - the SEC possessing neither, while Congress possesses the former and Delaware the latter. I argue, however, that the least-bad approach would be to remove the SEC from the process entirely, leaving these matters to Delaware in the first instance, subject to potential intervention by Congress. The pragmatic means of achieving this outcome would be a strict SEC policy of refusal to permit exclusion from the proxy of proposed shareholder Bylaws prompting competing opinions of Delaware counsel. This approach would eliminate the distortion introduced by SEC certification, permitting resolution of the fundamental issues at stake in a more organic and better informed manner through traditional Delaware litigation.
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Shareholder Bylaws and the Delaware Corporation
Social Science Research Network, 2010Co-Authors: Christopher M. BrunerAbstract:Much like hostile tender offers in the 1980s and 1990s, shareholder Bylaws purporting to limit board authority in key areas of corporate governance are, once again, forcing Delaware's courts to grapple with the fundamental nature of the corporate form. In this (short) essay written for a roundtable discussion at the 2009 Annual Meeting of the Southeastern Association of Law Schools, I discuss CA, Inc. v. AFSCME Employees Pension Plan - the 2008 opinion in which the Delaware Supreme Court began to define the nature and scope of the shareholders' bylaw authority. In CA, Inc. the court held that a proposed bylaw requiring reimbursement of shareholders' proxy expenses under specified circumstances was a proper subject for shareholder action under the Delaware General Corporation Law, but that such a mandatory bylaw would nevertheless violate Delaware common law by forcing the board to breach its fiduciary duties if the board concluded that reimbursement would not promote the company's interests. Commentators have criticized the court's fiduciary duty-based analysis as excessively vague and indeterminate. I argue here that the court's reliance on fiduciary duties in this context reflects not a failed attempt at clarity so much as a decided effort to maintain ambiguity. Just like in hostile takeover cases, which forced the court to address the scope of the shareholders' unilateral power to sell the company, one cannot meaningfully analyze the scope of the shareholders' unilateral power to write the rules of corporate governance without defining the nature and purpose of the corporation itself. However, given the lack of statutory guidance on the core questions of corporate power and purpose, Delaware judges have consistently - and understandably - remained reluctant to grapple with these issues in a clear and decisive way. Absent legislative intervention, we can expect a bylaw jurisprudence exhibiting a theoretical obscurity and hands-off posture reminiscent of Delaware's takeover jurisprudence - a trend already evidenced by the holding in CA, Inc.
Stanton A Glantz - One of the best experts on this subject based on the ideXlab platform.
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british columbia capital regional district 100 smokefree bylaw a successful public health campaign despite industry opposition
Tobacco Control, 2003Co-Authors: J Drope, Stanton A GlantzAbstract:Objective: To describe how the British Columbia Capital Regional District successfully passed, implemented, and enforced a 100% smokefree bylaw in all public places, including restaurants and bars, despite an aggressive campaign by the tobacco industry (acting through the hospitality industry) to stop it. Methods: Information was obtained from news reports, internal tobacco industry documents, reports, public documents, and interviews with key players. Tobacco industry documents were accessed between February and April 2002. This project was approved by the University of California San Francisco committee on human research. Results: As in the USA and elsewhere in the world, the tobacco industry in British Columbia, Canada, recruited and created hospitality associations to fight against the district smokefree bylaw. They used the classic industry rhetoric of individual rights and freedoms, economic devastation, and ventilation as a solution. Public health authorities were able to counter industry strategies with a strong education campaign, well written Bylaws, and persistent enforcement. Conclusion: It is possible to overcome serious opposition orchestrated by the tobacco industry and develop and implement a 100% smokefree bylaw in Canada. Doing so requires attention to detail in drafting the bylaw, as well as a public education campaign on the health dangers of secondhand smoke and active enforcement to overcome organised resistance to the bylaw. Jurisdictions considering smokefree Bylaws should anticipate this opposition when developing and implementing their Bylaws.
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British Columbia capital regional district 100% smokefree bylaw: a successful public health campaign despite industry opposition
Tobacco control, 2003Co-Authors: J Drope, Stanton A GlantzAbstract:Objective: To describe how the British Columbia Capital Regional District successfully passed, implemented, and enforced a 100% smokefree bylaw in all public places, including restaurants and bars, despite an aggressive campaign by the tobacco industry (acting through the hospitality industry) to stop it. Methods: Information was obtained from news reports, internal tobacco industry documents, reports, public documents, and interviews with key players. Tobacco industry documents were accessed between February and April 2002. This project was approved by the University of California San Francisco committee on human research. Results: As in the USA and elsewhere in the world, the tobacco industry in British Columbia, Canada, recruited and created hospitality associations to fight against the district smokefree bylaw. They used the classic industry rhetoric of individual rights and freedoms, economic devastation, and ventilation as a solution. Public health authorities were able to counter industry strategies with a strong education campaign, well written Bylaws, and persistent enforcement. Conclusion: It is possible to overcome serious opposition orchestrated by the tobacco industry and develop and implement a 100% smokefree bylaw in Canada. Doing so requires attention to detail in drafting the bylaw, as well as a public education campaign on the health dangers of secondhand smoke and active enforcement to overcome organised resistance to the bylaw. Jurisdictions considering smokefree Bylaws should anticipate this opposition when developing and implementing their Bylaws.
J Drope - One of the best experts on this subject based on the ideXlab platform.
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british columbia capital regional district 100 smokefree bylaw a successful public health campaign despite industry opposition
Tobacco Control, 2003Co-Authors: J Drope, Stanton A GlantzAbstract:Objective: To describe how the British Columbia Capital Regional District successfully passed, implemented, and enforced a 100% smokefree bylaw in all public places, including restaurants and bars, despite an aggressive campaign by the tobacco industry (acting through the hospitality industry) to stop it. Methods: Information was obtained from news reports, internal tobacco industry documents, reports, public documents, and interviews with key players. Tobacco industry documents were accessed between February and April 2002. This project was approved by the University of California San Francisco committee on human research. Results: As in the USA and elsewhere in the world, the tobacco industry in British Columbia, Canada, recruited and created hospitality associations to fight against the district smokefree bylaw. They used the classic industry rhetoric of individual rights and freedoms, economic devastation, and ventilation as a solution. Public health authorities were able to counter industry strategies with a strong education campaign, well written Bylaws, and persistent enforcement. Conclusion: It is possible to overcome serious opposition orchestrated by the tobacco industry and develop and implement a 100% smokefree bylaw in Canada. Doing so requires attention to detail in drafting the bylaw, as well as a public education campaign on the health dangers of secondhand smoke and active enforcement to overcome organised resistance to the bylaw. Jurisdictions considering smokefree Bylaws should anticipate this opposition when developing and implementing their Bylaws.
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British Columbia capital regional district 100% smokefree bylaw: a successful public health campaign despite industry opposition
Tobacco control, 2003Co-Authors: J Drope, Stanton A GlantzAbstract:Objective: To describe how the British Columbia Capital Regional District successfully passed, implemented, and enforced a 100% smokefree bylaw in all public places, including restaurants and bars, despite an aggressive campaign by the tobacco industry (acting through the hospitality industry) to stop it. Methods: Information was obtained from news reports, internal tobacco industry documents, reports, public documents, and interviews with key players. Tobacco industry documents were accessed between February and April 2002. This project was approved by the University of California San Francisco committee on human research. Results: As in the USA and elsewhere in the world, the tobacco industry in British Columbia, Canada, recruited and created hospitality associations to fight against the district smokefree bylaw. They used the classic industry rhetoric of individual rights and freedoms, economic devastation, and ventilation as a solution. Public health authorities were able to counter industry strategies with a strong education campaign, well written Bylaws, and persistent enforcement. Conclusion: It is possible to overcome serious opposition orchestrated by the tobacco industry and develop and implement a 100% smokefree bylaw in Canada. Doing so requires attention to detail in drafting the bylaw, as well as a public education campaign on the health dangers of secondhand smoke and active enforcement to overcome organised resistance to the bylaw. Jurisdictions considering smokefree Bylaws should anticipate this opposition when developing and implementing their Bylaws.
Jay B. Kesten - One of the best experts on this subject based on the ideXlab platform.
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Towards a Moral Agency Theory of the Shareholder Bylaw Power
Temple Law Review, 2013Co-Authors: Jay B. KestenAbstract:Corporate Bylaws are the new leading edge of a decades-long struggle between shareholders and managers over the allocation of decision-making authority in public companies. Bylaws are the only method by which shareholders can unilaterally restrict the powers and discretion of the board. Yet the scope of this statutory authority remains notoriously uncertain. Corporate law scholars generally agree that there is a limited domain in which shareholders can restrict managerial authority, but disagree on the appropriate boundary. The Delaware Supreme Court recently confronted this issue for the first time in CA, Inc. v. AFSCME Employees Pension Plan, but that decision is doctrinally problematic (indeed, internally inconsistent) and, in any event, leaves open many questions concerning the full reach of the shareholder bylaw power. This Article develops a novel theory of the shareholder bylaw power by examining that power’s relationship to the deeper structure of corporate law. Viewed in this context, shareholder voice (of which the bylaw power is one part) should provide an avenue for action in circumstances where shareholders’ other rights, i.e., the ability to exit the firm or sue its fiduciaries, are unavailing. This occurs most prominently where corporate activity implicates significant questions of social policy in addition to * Assistant Professor of Law, Florida State University. I thank Kelli Alces, Shawn Bayern, Christopher Bruner, David Landau, Dan Markel, Brett McDonnell, Robert Miller, Alan Palmiter, Mark Seidenfeld, and Manuel Utset for helpful comments, suggestions, critiques and conversations. For excellent research assistance, I thank Liubov Ebralidze and Chad Lipsky. I would also like to express my gratitude to the members of the FSU Law Junior Faculty Workshop series. And, as always, my deepest thanks to Dori and Riley for their support. 486 TEMPLE LAW REVIEW [Vol. 85 intracorporate economic matters. In other words, shareholders should be empowered to act as moral agents of the corporations in which they invest. This Article also addresses two threshold questions related to this theory: Do corporations need moral agents? And if so, why not rely on managers to play that role?
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Towards a Moral Agency Theory of the Shareholder Bylaw Power
Social Science Research Network, 2012Co-Authors: Jay B. KestenAbstract:Corporate Bylaws are the new leading edge of a decades-long struggle between shareholders and managers over the allocation of decision-making authority in public companies. Bylaws are the only method by which shareholders can unilaterally restrict the powers and discretion of the board. Yet the scope of this authority remains notoriously uncertain. The Delaware Supreme Court recently confronted this issue for the first time in CA Inc. v. AFSCME, but that decision is doctrinally problematic (indeed, internally inconsistent) and, in any event, leaves open many questions concerning the boundary of the bylaw power.This article develops a theory of the shareholder bylaw power by locating it within the deeper structure of corporate law. Viewed in this context, shareholder voice (of which the bylaw power is one part) should provide an avenue for action in circumstances where shareholders’ other core rights, i.e., the ability to exit the firm or sue its fiduciaries, are unavailing. This occurs most prominently in the context of corporate activity that implicates significant questions of social policy in addition to intra-corporate economic matters. In other words, shareholders should be empowered to act as moral agents of the corporations in which they invest.This article also addresses two threshold questions related to the theory set forth herein: do corporations need moral agents? And if so, why not rely on managers to play that role?
Mark Asbridge - One of the best experts on this subject based on the ideXlab platform.
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Public place restrictions on smoking in Canada: assessing the role of the state, media, science and public health advocacy.
Social science & medicine (1982), 2004Co-Authors: Mark AsbridgeAbstract:Abstract While much is known about the impact of law and public policy, we know considerably less about their antecedents. Theories of policy adoption suggest that a variety of policy inputs help to shape legislative change. This research considers the enactment of municipal smoking Bylaws in Canada between 1970 and 1995. The emergence of second-hand smoke (SHS) has been offered as a viable explanation for the increased enactment of local smoking restrictions. A number of indicators confirm the rising public health concern around SHS. Using Health Canada data on municipal smoking bylaw enactment in Canada, this paper employs an event history analysis to trace the role of four indicators of the increased recognition of SHS as a public health concern—scientific research, parliamentary debate, print media, and health advocacy. Findings indicate that the print media and health advocacy play the strongest role in explaining the increase in the adoption of municipal smoking Bylaws in Canada. Results lend support to the quantitative study of the policy adoption process and to theories of policy making that consider multiple influences on policy adoption.
