George S. Georgiev

Most legal responses to generative artificial intelligence ask familiar questions. Who may copy? Who may sue? Who should regulate? Who should pay? Jeremy Bearer-Friend and Sarah Polcz ask a more basic, and more corporate, question: who should own AI? Their answer: the public should own a piece.

Sharing the Algorithm sits comfortably in tax law, but corporate law scholars should read it because its ultimate subject is a corporate law mainstay: the ownership and control of enterprise. The article proposes a one-time tax on generative AI firms, paid not in cash but in equity. Instead of leaving the public to be only a consumer of AI products, a claimant in copyright litigation, a beneficiary of future tax revenues, or a regulator trying to catch up after the fact, Bearer-Friend and Polcz would make each of us a fractional owner of the firms that control generative AI.

The proposal is elegant because it connects the remedy to the source of the problem. Generative AI has been built through a vast extraction of human work, data, expression, likeness, and labor. Some of that extraction is already being litigated as copyright infringement. Some is showing up as labor displacement, some as discrimination embedded in algorithmic systems, and some as concentrated wealth and political power. Existing legal responses address these problems one at a time: licensing regimes might compensate some rights holders, excise taxes might raise revenue, and regulation might constrain some uses. None, however, matches the scale or character of the underlying social contribution that made generative AI possible in the first place. As just one example, the authors show that a solution focused on collective licensing faces a “missing authors” problem at grand scale: AI’s training corpus consists largely of everyday web content, not registered works. And, as they point out, a recent settlement gestures toward their alternative: Clearview AI compensated a plaintiff class not with cash but with a 23% equity stake in the company.

The authors’ key scholarly move is to shift the tax remittance from cash to equity. This matters because a cash tax can redistribute money, but it does not redistribute control. Equity can do both. If the public receives an ownership interest in AI firms, it can share in future gains while also obtaining governance tools: votes, information rights, board influence, and other elements of ownership. The point is not simply to make AI firms pay more, but to make the public less external to the technology that is reorganizing public life.

This is where Sharing the Algorithm becomes especially interesting for corporate law, and the authors are admirably concrete. Rather than invoking “public ownership” in the abstract, they work through four design questions: how to define the taxable category, what form of equity must be remitted, what rate should apply, and who should steward the resulting stake. On the form of equity, they consider several possibilities: requiring firms to remit the same kinds of securities already held by private investors; placing AI assets into a dedicated entity and remitting interests in that entity; or creating a specially designed instrument with specified rights to votes, board representation, profits, or information. On stewardship, they contrast direct distribution to citizens with a publicly managed fund modeled on public pension funds and sovereign wealth funds, with the Alaska Permanent Fund as one template. They are also careful about what the proposal is not: not receivership, not nationalization, and not a substitute for regulation, copyright remedies, antitrust, or ordinary taxation.

One of the harms the article targets deserves particular attention: labor displacement. Corporate law’s response to workforce concerns has often run through disclosure and board oversight, as reflected in the human capital management and human capital disclosure debates I have examined elsewhere.¹ Those tools matter, but their reach is bounded by design. Bearer-Friend and Polcz propose something different: not better disclosure about the workers AI may displace, but a stake through which displaced workers, or the public on their behalf, may capture part of the returns of the displacing technology. By opening a channel for voice in corporate governance, the proposal moves the discussion closer to codetermination-style participation, an analogy the authors themselves invite, than to disclosure-based workforce governance alone.

Corporate law has long been comfortable with the idea that shareholders govern because they own and because they are the firm’s only residual claimants. That premise has always been asserted more forcefully than is warranted. As Summer Kim has shown, for example, residual claimant status need not turn only on the right to residual profits: it can also rest on firm-specific investment, exposure to risk, the wealth effects of corporate decisions, and monitoring capacity.² Sharing the Algorithm pushes further, asking what follows when the inputs to value creation are far more widely dispersed than the cap table suggests. If generative AI is built from our writings, images, voices, conversations, workplaces, and social relations, then conventional ownership systematically understates who has contributed to the enterprise. The article’s power lies in making that mismatch visible and then offering an ownership-based response. Fractional public ownership accepts that AI may generate tremendous value, but insists that the value was made possible by public inputs and should therefore produce public claims.

Since the article’s publication, its core idea has migrated to the policy arena. OpenAI has proposed contributing a 5% equity stake to seed a public wealth fund that would pay dividends directly to citizens, modeled on the Alaska Permanent Fund. Anthropic’s leadership has discussed taxes on AI firms and long-term income support as responses to a world in which AI reduces demand for labor. And Senator Bernie Sanders’s American AI Sovereign Wealth Fund Act, introduced in June 2026, would impose a one-time 50% equity tax on AI companies with annual sales above $200 million and place the resulting shares in a publicly managed fund. Both sets of proposals concede the core intuition developed by Bearer-Friend and Polcz: the economic upside of AI should not flow only to existing shareholders.

If any of these proposals advance, hard questions follow, and many belong to corporate law. Because the most consequential AI developers are privately-held unicorns, often with idiosyncratic structures such as nonprofit status, capped-profit interests, and benefit corporation charters, the remitted equity may carry no market price, no exit, and thin information rights. The authors also concede that most shareholders are passive; whether a politically accountable public fund would be an effective monitor or a conflicted one remains unresolved. Bearer-Friend and Polcz leave these issues for another day, and this is less a flaw than an invitation.

Whether one ultimately favors an AI equity tax or doubts its constitutional and political prospects, Sharing the Algorithm reorients law’s encounter with AI. It invites corporate law scholars to see tax not only as a revenue device, and corporate equity not only as a financing instrument, but as a way of allocating voice over the future.

The post Owning the AI Revolution appeared first on Corporate Law.

Sergio Alberto Gramitto Ricci

As a scholar who has dedicated the past decade to studying how large public companies interact with society, I welcome Matteo Gatti’s new book with pure enthusiasm. The book is scholarly, rigorous, and reads well. Timely, subtle, and insightful, Corporate Power and the Politics of Change provides a lucid framework for analyzing ongoing scholarly debates about the corporate sector’s role as a form of shadow government.

What makes Gatti’s analysis particularly valuable is his clear-eyed examination of the pressures driving corporate governance from both inside and outside the firm. He neither celebrates nor condemns the phenomenon, but instead anatomizes it with precision. Drawing on legal doctrine and insights from the social sciences, Gatti demonstrates how this shift reflects both internal firm dynamics and external institutional dysfunction. This balanced approach allows him to illuminate the legitimacy challenges that corporate governance faces, including the political and cultural backlash that has emerged in response to corporate social activism.

Large corporations shape employment practices, environmental outcomes, technological infrastructure, and social norms in ways that rival or exceed governmental influence in many domains. Gatti’s analysis also highlights the role of values in corporate governance. When corporations take stances on racial equity, climate policy, or gender rights, they are not simply maximizing shareholder value in any traditional sense. They are making political choices. Gatti shows how corporate governing takes two distinct forms: socioeconomic advocacy, where companies take public stances on contested issues, and government substitution, where they deliver services or protections the state does not provide. This distinction matters because each form raises different questions about legitimacy, accountability, and the appropriate boundaries of corporate power.

Gatti recognizes that when corporations govern, they face scrutiny not just from shareholders and regulators, but from the broader public affected by their quasi-governmental actions.¹ This critical observation points toward a fundamental tension: corporations exercise power that affects multiple constituencies, yet their governance structures remain oriented primarily toward capital providers. However, the backlash against corporate social activism (from both left and right) reflects growing recognition that corporations wield governmental power without democratic mandates.

If corporations govern (if they make decisions affecting racial equity, gender rights, climate policy, and democratic participation), then governance structures that give voice only to capital providers are inadequate to the task. The legitimacy crisis Gatti identifies stems precisely from this mismatch: corporations exercise governmental power while lacking governmental accountability mechanisms. Scholars examining corporate political governance have similarly recognized how corporate engagement with contentious social issues requires new frameworks for understanding sociopolitical decision-making.²

When corporations take on governmental roles, as Gatti shows they increasingly do, the need for governance structures that can accommodate plural interests becomes even more pressing in consideration of both possible harm and great opportunities to supplement governmental intervention in key sectors. In Corporate Governance as Privately-Ordered Public Policy: A Proposal, the late Lynn Stout and I pointed out how “our society can use corporate governance shifts to address, if not entirely resolve, a number of currently pressing social and economic problems. These problems include: rising income inequality; demographic disparities in wealth and equity ownership; increasing poverty and income insecurity; a need for greater innovation and investment in solving problems like disease and climate change; the ‘externalization’ of many costs of corporate activity onto third parties such as customers, employees, creditors, and the broader society; the corrosive influence of corporate money in politics; and discontent and loss of trust in the capitalist system among a large and growing segment of the population.” For the multifaceted objectives that business corporations can pursue at the same time, the matter of societal participation in corporate governance is inherently complex. Gatti’s framework sheds light on what happens when corporations step into governmental roles and organically nurtures the academic debate on solutions, opportunities, risks, guardrails, and models.

Moreover, as Gatti notes, countervailing forces are emerging. When stakeholders from multiple constituencies articulate shared values and coordinate action, they can shift the social context within which corporate decisions are made, potentially influencing outcomes even without formal governance authority. The rise of digital communication technologies and coordinated retail investor action suggests that individual shareholders are finding new ways to exert influence.³ Similarly, other stakeholders coordinate their collective action online and outside traditional governance channels. The inherent tension between emerging governance forces and traditional governance models connects to broader questions about how corporate governance might better reflect the diverse values and preferences of those subject to corporate power. This is where the book’s descriptive analysis opens onto prescriptive possibilities.

If corporations are making choices about social policy and collective values, then the relevant question is not merely “what do shareholders want?” but “what values should guide corporate decision-making?” The theoretical implications are profound. In illuminating the phenomenon of corporate governing with such clarity and nuance, Gatti has identified the central challenge facing corporate law and democratic theory in the twenty-first century. The question now is whether we can build governance institutions adequate to that challenge, institutions that can make corporate power legitimate by connecting it meaningfully to the diverse individuals and communities it shapes.

Traditional corporate governance theory assumes stakeholders have monolithic interests determined by their formal relationship to the firm (shareholders want profit maximization, employees want wage maximization, and so forth). But this taxonomy collapses when we recognize that individuals inhabit multiple roles simultaneously and hold values that cut across those roles. A shareholder concerned about climate change does not shed that concern when voting shares; an employee who owns stock through a 401(k) does not view the company solely through either an employee or shareholder lens.

If values and individuals’ preferences become the driver of a new corporate governance paradigm, stakeholders of different categories (e.g., retail investors, consumers, employees, and members of the community proximate to a firm’s production plants) may coordinate globally to uphold superordinate goals such as environmental and social justice or product safety. Superordinate goals and values are set to become paramount in the governance of large public companies, especially consumer-facing firms: boycotts, proxy votes, viral campaigns, and employee walkouts are not merely expressive; they are exercises of governance.⁴

This is where institutional design becomes crucial for business corporations’ legitimacy. We need structures that can make corporate commitments credible and stakeholder influence systematic rather than episodic. Private ordering initiatives that allow stakeholders to coordinate and communicate with corporations; disclosure requirements that enable informed decision-making; governance mechanisms that give stakeholders formal voice. The book’s analysis of government substitution raises additional considerations. When corporations provide health insurance, retirement security, parental leave, or climate leadership because the government does not, they are performing functions traditionally understood as public. This substitution may be pragmatically necessary given governmental dysfunction, but it raises questions about equity and access. Corporate provision of social goods creates winners and losers (those with access to corporate benefits and those without) in ways that governmental provision would not.

These concerns underscore why corporate governance reform matters. If corporations are providing quasi-governmental services, then questions of fairness, inclusiveness, and democratic input become central rather than peripheral. Governance structures that give voice to affected parties could help ensure that corporate substitution for government serves broad social purposes rather than narrow private interests.

Corporate Power and the Politics of Change is essential reading precisely because it forces us to confront corporate power as it actually exists rather than as traditional theory imagines it. Gatti provides the diagnostic clarity we need to grapple with corporations as civic institutions, governmental actors, and political forces. His framework helps us understand both why corporations have taken on these roles and why doing so generates legitimacy crises.

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Robert Rosen

In Altering Rules: The New Frontier for Corporate Governance, the non-parties whose interests are to be protected are shareholders. With respect to agreements by some shareholders that alter current corporate governance law’s default arrangements, the authors make the case for rejecting either granting unlimited contractual freedom or imposing mandatory terms, in favor of designing “flexible” bargaining frameworks and environments that “can manage the interests of [insider parties] both signatories and non-signatories alike” (P. 316).

One of the pleasures of this article is its elaboration of the “richness” (P. 329) in how corporate law designs institutions. Another is its elaboration of the mechanisms by which corporate law gives “voice” (P. 300) to unrepresented interests when necessary. Students of corporate law can draw on wisdom about design that applies to organizations generally, not only statutory corporations (Pp. 324-25). The authors call for a realignment of corporate law (for which Delaware is well-positioned) towards (re)designing institutions. They anticipate that such a realignment will “unleash” “private actors and contractual innovation” (P. 306). Corporate lawyers take heed.

A problem in a contractarian understanding of corporations is that contracts affect third parties who have not consented. In corporate governance, “Who decides for whom?” is a fundamental question (P. 307). Rather than a nexus of contracts, organizations can be understood as bundles of bargains. Bargaining rules are created “by specifying who must consent, what decision thresholds must be met, and who is bound by those decisions” (P. 310). So understood, on multiple issues and in many ways, corporate law “takes into account the interest of nonparties” (P. 326).

The article has at least three reasons for justifying the review of, and potentially the imposition of bargaining structures on, shareholder agreements. First, these agreements alter the grand bargain in the corporation’s charter, without the “firm-wide” (P. 326) procedures of charter amendments. Second, they may override current legal frameworks by exploiting their unfortunate weaknesses without re-establishing their strengths. Third, and the one that the article emphasizes, the agreements may create inefficiencies. Shareholders may be “coerced and pressured” (P. 319) into altering extant divisions of power and responsibility. Shareholder agreements also can enable inefficient opportunism and impose “intra-corporate externalities that harm non-signatories”(P. 299).

Although the article’s argument is limited to insiders, its theoretical structure and economic argument do not depend on the insider/outsider distinction (which, after all, is a conclusion of law, not of fact). The authors suggest applying “reverse game theory” to create a bargaining structure which “maximizes value and minimizes opportunism” (P. 310). They describe multiple “distinct bargaining environments that can foster … efficient, fair, and stable governance outcomes” (P. 310). Corporate law allocates power and responsibility not only by fiduciary duties but also by institutional design, such as the conflict cleansing processes that allow corporations to gain the benefits of conflicted decisions while minimizing significant opportunism possibilities.

The authors understand that the comparative advantage of Delaware law is its commitment to “promoting processes through which high-quality [business] decisions are reached” (P. 328) (emphasis in original). For example, better decision-making should be enabled by the corporate processes that can be traced to the Caremark line of cases. Admittedly, specific processes may not fit the organization and may fail. Even so, Delaware law has enabled lawyers and other consultants to act as design engineers, enabling both legal compliance and value-maximizing business decisions.

This article responds to a number of recent Delaware decisions regarding shareholder agreements, in particular Fugue.¹ In reviewing a shareholder agreement to waive some of an insider’s fiduciary obligations, Vice Chancellor Laster mandated ex ante processes and emphasized that they were “narrowly tailored” (designed to fit) to the specifics of the agreement.² The authors usefully characterize his approach as mandating a bargaining process and urge that this decision be “interpreted broadly” (P. 306). On the frontier of corporate governance, they see value in judges’ and lawyers’ understandings of organizational behavior.

Corporate insiders are not alone in being affected by corporate agreements to which they are not parties. This article’s understanding of Delaware law should interest those seeking to protect other corporate stakeholders.

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Andrew F. Tuch

In their recent paper, Private Equity, Public Capital, and Litigation Risk, Professors Ludovic Phalippou and William Magnuson challenge the wisdom of a current trend in finance: retail investors’ increasing access to private equity (PE). The authors make compelling arguments—both about the imminent reality and risks of “retailization” and about the effects of the broader, long-term erosion of the public-private divide embedded in federal securities law.

Retailization, to be clear, is not new. Legislators, regulators, and courts have loosened constraints, allowing retail investors to access private equity through investment funds. Major law firms have engineered fund structures designed to channel retail capital into PE. The result is that PE firms, also known as alternative asset managers, began accepting retail capital through intermediaries more than a decade ago.

But retailization is set to accelerate markedly, thanks to President Trump’s August 2025 executive order permitting 401(k) plans to invest in alternative assets, including private equity. The order declares it “the policy of the United States that every American preparing for retirement should have access to funds that include investments in alternative assets” and directs the SEC and other agencies to reconsider regulations limiting access to private markets. With its push for “access,” the administration suggests that the order serves a democratizing purpose.

Phalippou and Magnuson offer a meticulous and persuasive riposte to retailization boosters.¹ They don’t fully assess the merits of allowing PE firms to tap retail funding, but instead detail some of the underappreciated risks. Specifically, the authors argue that retailization is especially risky—not only for retail investors, but also, as it turns out, for private equity firms. These risks, “underappreciated by policymakers and scholars alike,” were in the past minimized by regulation keeping public, retail investors away from private investment vehicles like PE. But the guardrails keep falling away.

The authors identify multiple PE practices that especially disadvantage retail investors and illustrate the extent of these risks with clear, accessible examples.

One of these practices is the use by PE firms of internal rate of return (“IRR”) as a performance metric. Retail investors are particularly unlikely to grasp the quirks of IRRs and may therefore be misled by the metric, which can substantially overstate fund performance. In particular, IRR is often misunderstood as an investor’s annual rate of return. In fact, IRR measures something else entirely. And it is highly sensitive to the timing of cash flows, with the result that large early distributions can lock in a high IRR even when later performance is poor. Indeed, high IRRs are “easy to engineer,” making them look impressive to investors who don’t fully appreciate their meaning.

The article also shows that net asset value (“NAV”) calculations present similar dangers to retail investors. NAV depends heavily on manager-provided estimates, creating opportunities for manipulation. Empirical evidence suggests that firms inflate NAVs during fundraising periods to attract new capital and smooth valuations to obscure market volatility.

Another source of trouble for retail investors is non-transparent management fees. PE firms employ opaque fee provisions, giving managers broad discretion to load reimbursable expenses with a range of charges. Relatedly, the interaction between hurdle rates and catch-up provisions can effectively neutralize the investor protections that hurdle rates are intended to provide—another subtlety retail investors are unlikely to appreciate. Compounding these concerns, PE investors routinely waive fiduciary duties in limited partnership agreements, the practical significance of which retail investors may not appreciate.

The article’s most provocative contribution, however, lies in its argument that retailization isn’t risky only for investors but also for PE firms themselves. In particular, retailization exposes these firms to underappreciated litigation risk. The authors foresee a new generation of “private attorneys general” using litigation on behalf of retail investors to discipline PE firms.

Importantly, many potential claims already exist on behalf of the “sophisticated” institutional investors in PE funds. (The authors note that the “‘sophistication’ of these institutional investors has always been debatable” and add that sophistication “has served as a powerful tool for minimizing regulatory concern.”) No, “[i]nvestor litigation has . . . always been possible in the private equity industry, but it has rarely been pursued due to misalignments [of incentives] within institutional investors.” Retail investors have different incentives, though, and are far more likely to litigate when they perceive exploitation.

The article gives two reasons for retail investors’ expected willingness to litigate. First, as direct investors in PE funds rather than indirect investors through intermediaries, retail investors’ losses will be “personal and direct, giving them both the motivation and freedom to sue.” The second reason concerns the speed and effectiveness with which private litigation, driven by powerful incentives, can expose misconduct.

The paper offers valuable detail about what might come next—what legal perils PE firms may face from retail investors. These investors may collectively turn to actions in contract, tort, fraud, and consumer protection law—assuming that PE firms cannot impose arbitration clauses or class-action waivers. Fiduciary-duty claims might also be possible, if courts conclude that retail investors lack the sophistication necessary to consent to fiduciary waivers. At the moment, the exact nature of liability is speculative, so significant uncertainty remains: Will arbitration clauses be adopted and enforced? Will courts respect fiduciary waivers? Even so, the prospect of litigation, including class actions targeting the manipulative practices detailed in the article, is real.

While the authors persuasively argue that policymakers and scholars have underestimated these risks, it remains an open question whether PE firms themselves have done the same. Perhaps PE firms have good reason to invest their faith in the effect of arbitration clauses and class-action waivers. Perhaps they have already calculated that the benefits of accessing retail capital outweigh the costs associated with any litigation. It is also possible that firms that accept retail capital will be less exposed to these risks than their peers would be, presumably because firms accustomed to accepting retail investments will be more careful to avoid troubling practices that could expose them to liability.

Zooming out, Phalippou and Magnuson conclude that “there is nothing inherently democratic about extending risky, opaque, and ill-understood products to retail investors.” Instead of promoting rightful access, retailization further erodes a public-private divide that was democratically designed to protect public investors from exploitation. That regulatory framework, in theory, classifies investors and investments (companies, funds, etc) as either public or private, ensuring that PE funds draw capital exclusively from private investors, such as pension funds, university endowments, and family offices that are “accredited” or “qualified” under exemptions in federal securities law.

Yet reforms have whittled away at the force of the public-private distinction, even if it persists in theory. The result, as this valuable article argues, has been to create risks on multiple fronts. Time will tell whether those risks come to pass, but Professors Phalippou and Magnuson give good reason for concern.

The post Private Equity, Retail Investors, and Litigation Risk appeared first on Corporate Law.

Brett McDonnell

Diversity, equity, and inclusion (DEI) efforts at the board level and beyond have been a major topic in corporate governance for the last decade or two. Those efforts have mainly focused on gender and racial diversity, but initiatives (now struck down) in California and at Nasdaq have also included LGBTQ or queer people. Turning our focus to them reveals a unique challenge: the closet. Boards and C-suites probably already contain a fair number of queer people, but most of them are not out about their status. How does the closet affect efforts to diversify boards? Are numerical goals an adequate response, or does addressing queer exclusion require deeper changes in corporate culture? Might non-queer people also benefit from such cultural changes?

Darren Rosenblum explores these questions, among others, in Queers, Closets, and Corporate Governance. They start with a quick primer on “queer.” Activists started using the word in the late 80s and early 90s to help question efforts at assimilation by more mainstream people and organizations. At the same time, theorists like Eve Sedgwick and Judith Butler called into question the stability of all sorts of categories and binaries that were at the heart of older versions of feminist theory. The theorists drew upon disciplines like structuralism and psychoanalysis to analyze subconscious, antisocial, and irrational desires. Activists and theorists both questioned prevailing sexual and gender norms and practices.

That word queer made a rather unexpected appearance in the Nasdaq DEI rule. The rule required companies to include (or, if not, explain why they didn’t) a certain number of “diverse” directors. “Diverse” included “LGBTQ+” persons, and that was defined as “an individual who self-identifies as any of the following: lesbian, gay, bisexual, transgender, or a member of the queer community.” Rosenblum takes this as an occasion to apply queer theory to corporate governance. Queer theorists have analyzed states and families at length. They have not so frequently studied corporations, but Rosenblum argues that queer theory can provide valuable insights there as well.

Rosenblum applies that theory to the corporate ladder. They consider the norms and practices that structure how prospective managers are selected, socialized, and promoted up and up until a privileged few make it to the C-suite or boardroom. They extensively deploy the concept of heteronormativity, a word which may grate for many corporate law scholars but which Rosenblum shows can shed new light on the corporate world. The unspoken heteronormative presumption is that most managers are straight men, with an interrelated set of norms and personality traits. They are confident, competitive, self-assertive, and risk-taking. They play golf, talk about sports, and flirt with their administrative assistants (who they still think of as secretaries and who are women, of course). The many LGBTQ persons who fall far outside these norms will not even attempt to climb the corporate ladder.

But some more straight-acting LGBTQ persons will attempt the climb. And some will succeed. The higher they climb, the straighter they need to act, and many will accordingly remain in the closet. By the very nature of the closet, these people are hard to study, but Rosenblum focuses attention on them. They emphasize the performativity of identity, drawing on the movie Paris is Burning, which depicts drag ball culture. Balls had competitions where participants strove to appear to pass in various roles, such as a supermodel or a member of the military. One category was “executive realness,” where candidates wore well-fitted suits and strode down the runway in a powerful fashion.

In real life, candidates for promotion perform executive realness. For most, that still entails remaining in the closet, though Rosenblum rightly notes that being in the closet versus coming out is not a simple binary. For LGBTQ persons who want to rise to the top, being in the closet is usually just too valuable, and coming out is too risky. Maintaining close personal ties to executives higher up the ladder is extremely important. Rosenblum notes that women and persons of color face similar choices, and even straight white men face pressure to conform to the demands of executive realness, though they are often less burdened and self-conscious in their performances.

Rosenblum concludes with some thoughts on the possibility of change. They are skeptical that a focus on the presence of one or two people on the board labeled as LGBTQ will have a huge impact. After all, under current circumstances, those who get that far are likely to be those who most conform to prevailing masculinity norms. Rosenblum calls for deeper structural and cultural change. Companies should actively support junior LGBTQ candidates for promotion. They should value leaders who display a wider range of traits with a more varied set of skills than the narrow model that prevails today.

Those suggestions are, I must admit, rather vague and not fully worked out. But they point in a direction worth exploring further. And Rosenblum concludes with some valuable reflections. Simply-defined identity may matter less than experience and personality considered more holistically—a point which differentiates Rosenblum from the standard progressive position and locates him in a more interesting ideological space. A broader, holistic focus would not benefit only LGBTQ board candidates. Everyone, including straight men and corporations as organizations, suffers from the pressure to perform executive realness. The Q in LGBTQ can also stand for Questioning, and Rosenblum argues that more questioning of identity and norms may lead to more effective companies that help their employees and leaders live healthier lives.

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• Matthew S. Erie, Compliance in China, 20 Reg. & Gov. 149 (2026).
• Matthew S. Erie, Molly Bodurtha & Sokphea Young, Legal Brokers of Chinese Investment in Cambodia: Compliance Between Contract and Culture, 20 Reg. & Gov. 162 (2026).

Anna Gelpern

What does a garbled snippet of English commercial boilerplate mean when pasted into a Chinese-law contract between a Chinese policy bank and a parastatal in a low-income country? What work does a seemingly nonsensical promise to keep secured and unsecured debt equal (“pari passu”!) do in the relationship between that bank and, say, the government of Benin? How would an arbitration court in Beijing, apparently vested with authority to enforce these contracts, decide whether the parties complied? As a non-sinologist communing with such contracts, I find these questions endlessly puzzling yet mostly ignored in the legal and policy debates over Chinese overseas investment.

China in Compliance, the special issue of Regulation & Governance edited by Matthew Erie, is a welcome reprieve from the China Good/China Bad back-and-forth that sucks the oxygen out of debates about Chinese overseas investment. Better yet, the issue offers unexpected insights into legal ethics and corporate compliance. The editor’s introduction, Compliance in China, and the first article, Legal Brokers of Chinese Investment in Cambodia: Compliance Between Contract and Culture, co-authored by Erie, Molly Bodurtha, and Sokphea Young, are good places to start for a sense of Erie’s Chinese Law and Development project. Together, the papers contribute to what he calls an ‘ethnographic record of global China.”

The geographic and disciplinary range is impressive. The authors report on Chinese overseas investment in wildly different places. They cover poor (Cambodia, Kyrgyzstan), rich (Singapore, Taiwan), African (Ethiopia), European (Hungary), and Pacific Island (Fiji, Vanuatu) states, and sectors ranging from extraction to education. The research question for the issue as a whole is how Chinese “corporate and investor behavior … conforms to the rules, norms, and law in host states.” The answers engage with sinology, politics, organizational theory, and comparative corporate and international investment law.

Considering compliance without looking to (or from) the North Atlantic pays off, firstly by making the very idea sound dissonant, unmoored. For instance, Cambodian “legal brokers” accompany a Chinese investor every step of the way through building and operating a factory or casino in a special economic zone to ensure compliance with applicable land use, environmental, construction … what, exactly? … laws, norms, and bribe schedules? The answer in most cases is all of the above. It takes judgment and know-how to achieve and maintain “manageable” levels of compliance, which in some cases has meant a 90% building code violation rate. In the Cambodia study and elsewhere, living in the grey zone requires a dynamic mix of formality and informality: procuring just the right forms, paying just the right bribes, cultivating just the right relationships, and abiding by the norms of multiple overlapping communities. Put differently, compliance with unstated rules for violating or circumventing the law under regulatory uncertainty is highly skilled professional work.

Even successful senior Cambodian lawyers who do this work skip accreditation to avoid paying “informal fees” to the national bar association. Bribing one’s way through a public court proceeding seems to be both costly and of limited social use: if you win in court, it would be read as you paid a bigger bribe. Real dispute resolution can only happen in arbitration behind closed doors. When getting a bar license or going to court sends the wrong compliance signal, who are the gatekeepers, and where are the gates?

The foreign investment setting makes such questions more interesting because it implicates at a minimum two sets of legal institutions and cultures, and the relationship between them. China has rapidly developed a large and politically salient compliance industry, in part under Western pressure on China as the investment host, with at-best uneven implementation. The interaction between this compliance industry and “nascent” compliance institutions in the host states, with China in the capital-exporting role, is worth studying as an academic and policy project.

It is tempting to say that the work in the special issue is a fancy way of describing ordinary lawyer-abetted corruption, or excusing it as cultural difference. Regulatory capture and going through the motions are not Chinese or Cambodian inventions. Lawyers in New York and London have been littering their contracts with meaningless boilerplate, artifacts of compliance with unwritten norms and imaginary standards, long before the Chinese banks in my introduction.   Erie’s introduction concludes as much, observing that the difference between compliance in China’s overseas investment practice and that of legacy Western powers is one of degree. Even that distance has been shrinking. Now more than before, the corporate compliance catechism feels like a sham, a meta-fraud on ethics. The embarrassment of an elder statesman exposed as a knave and the fear of delegating decency to the machines feel quaint these days, when lawyer-as-fixer is everywhere and seems to be the norm. With the Foreign Corrupt Practices Act officially mothballed, are we ready to dismiss the vestigial tsk-tsk of compliance as whiny protectionism? Does “adaptive governance” call on us to train a generation of fixers, running faster to stay ahead of the machines?

A stock comparative move is to show that concept A (here, compliance) transposed to place B is not what we thought A was. Fair reminder. Compliance in China and Cambodia is not the same as compliance in the West. We know the ending. But starting points matter, and starting in Beijing and Phnom Penh rather than Houston and Caracas makes the tour of compliance theory and practice more interesting and generative. Here, qualitative methods, and especially ethnography, save the day. Thick description anchors the authors’ questioning of established analytical categories, and at the same time, anchors the reader’s take on international investment and compliance in the particular human experience of despair, creativity, and perseverance.

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Caroline Bradley

States compete with each other to attract business, and this competition often focuses on specific sectors of financial activity. States compete to be centers for asset management, for insurance, for listings, for derivatives markets, or for financial innovation. Private actors also engage in competition: stock exchanges, as for-profit businesses, seek to attract listings and trading activity, competing with other exchanges. Other market operators similarly seek to attract business. Private-sector actors develop standards and documentation to support financial market transactions.

Conventionally, academics and journalists focus on competition between stock exchanges to attract listings, but as Curtis Milhaupt and Wolf-Georg Ringe show in The Political Economy of Global Stock Exchange Competition, this only reflects a part of a much more interesting and important story, which, they argue, calls for “sustained scholarly engagement across law, economics, and international relations.” The paper convincingly shows why this is the case.

The paper makes two main arguments: first, that competition for IPOs is less significant than the conventional accounts assume. Second, that states regard stock exchanges as strategic assets in their competition with each other.

As to the first point, after discussing prominent examples of the conventional story (Shein, Alibaba, and Aramco), the authors note that changes in the markets—in particular, the growth of private capital— mean that IPOs are less significant for exchanges than they used to be. Faced with the increase in the prevalence of private capital, exchanges have collective action problems (e.g. P. 15), although some, such as the LSE, are developing their own private securities markets as a response. The authors argue that the largest exchanges—in particular the NYSE—are benefitting from the decline in public markets, “winning a global competition for the largest slice of a shrinking pie” (P. 16). The attractiveness of the NYSE as a listing venue, they argue, is explained by this phenomenon, rather than the result of regulatory arbitrage. In addition, they note that regulatory competition is not a significant factor for all companies (in particular for smaller companies). But, importantly, for exchanges, revenues from trading, clearing, data, and analytics are much more significant than revenues from listings (P. 11).

As to the idea that states (and the EU, in the context of the Capital Markets Union project) see themselves as having strategic interests in the competitive strength of their exchanges (P. 4), the authors identify the state’s interests as direct economic benefits in tax revenues and employment, but also indirect benefits, some of which derive from companies’ and investors’ home bias (some of which derives from regulatory constraints on certain institutional investors or on official encouragement): “given home bias on the part of listing companies and investors, domestic exchanges provide an important mechanism for funding local enterprises and generating returns to domestic savings” (P. 19). Other benefits may also accrue, for example, as firms embedded in domestic markets may be less likely to engage in aggressive tax planning (P. 20).

The EU worries, for example, in the Draghi Report, that firms that move their listings outside the EU will also relocate their economic activity outside the EU, reducing the EU’s economic competitiveness. And the authors argue that more generally states see capital markets “as strategic infrastructure, entwined with national industrial policy, data sovereignty, and global supply chain security” (P. 22). In addition to the example of the EU, the authors also describe China, the US, Singapore, India, and Israel as focusing on exchanges as strategic assets. And jurisdictions use the fact of listing as the basis for imposing regulatory requirements on firms, for example, relating to human rights and sustainability. But states may also focus on exchange activities from a geopolitical perspective in ways that may even harm their economic interests.

The complexity of the story the authors tell in this paper is important and useful, as is their invitation to researchers to engage in work to understand the links between “stock exchanges, financial sovereignty, and the quest for geopolitical advantage” (P. 32).

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Bill Bratton

It’s been ten years since MFW and Corwin opened a process pathway to business judgment review of cashout mergers, subject to Weinberger, and arm’s length mergers, subject to Revlon. At the time the cases came down, I anticipated smooth sailing for the cases’ two-track cleansing regime, under which the defendant needs independent director approval followed by ratification by a fully informed and uncoerced majority of disinterested shareholders. I figured that we had enough law in place on each of the tracks to make their application a straightforward matter. The components of the board approval leg, director independence and a special committee process, were focal point matters in late twentieth-century corporate governance, and there were plenty of Delaware cases providing guidance. The shareholder approval leg had a sketchier background. We had a well-developed law, mostly federal, on the full information requirement, and we knew coercion when we saw it. We had much less on the table to help us with precise questions respecting majority disinterested shareholder approval, because shareholder ratification had not theretofore been the usual practice recourse respecting conflicted transactions. But how hard could it be to fill in the details?

It turned out to be a lot harder than I thought. MFW and Corwin came down before everybody’s attention turned to the Big Three institutional investors and their growing block of voting shares and the closely related question of portfolio investor incentives, in particular the incentives of “common owners.” Common owner conflicts first popped up on the screen in 2004 with the empty voting allegations triggered by the Mylan-King merger agreement. The problem has been looming larger ever since, implicating not just corporate governance but antitrust.

Corporate law models shareholders as single firm owners whose fortunes rise and fall in lockstep with the fortunes of the corporate stock issuer. The incentives of portfolio investors can differ sharply, as a simple example will show. Target (T) has 1,000,000 shares outstanding and is merging into Acquirer (A), which has 5,000,000 shares outstanding. The merger price is $50 per T share. Unfortunately, the merger process has been impaired by self-dealing at T. It plausibly can be shown that T could have been sold for $60 per share. In fact, Bidder (B) is ready to make such an offer. A sole owner of T shares, knowing all of this, will vote against the merger, looking to improve its yield by $10 per share in a B merger. Compare institutional investor Delta (D), which owns one percent of T (10,000 shares) and five percent of A (250,000 shares). D has every incentive to vote its T shares in favor of the merger, because the $10 per share bargain is worth $10,000,000 to A and hence $500,000 to D, while the $10 per share opportunity cost at T implicates a loss of only $100,000 to D in its position as a one percent owner. D’s economic interest is clearly opposed to that of a sole owner of T stock. But does this incentive skew make D an “interested” voter for Corwin purposes?

Marcel Kahan and Edward B. Rock offer an exhaustive analysis of this problem. Everything is beautifully set up. The base issue is whether we should go into these incentive questions at all, because “interested” can be defined narrowly or broadly. Under the narrow definition (majority of unaffiliated or MOU), only those directly involved in the transaction and their affiliates are disqualified. Under the broad definition (majority of economically disinterested or MOD), a shareholder’s economic incentives are subject to question when set against the sole owner yardstick, making common owner votes vulnerable to challenge. Kahan and Rock, having thus stated the issue, provide us with a neat set of real-world transactional examples to serve as focal points for law-to-fact analysis. Then they summarize Delaware law, which turns out to be even sketchier than I thought, as it vacillates between MOU and MOD.

The big question concerns the specifications of an MOD regime: Which common ownership positions implicate a cognizable incentive skew and which do not? Kahn and Rock really go to town here. They show that the conflict’s severity is a function of (1) the joint gains yielded by the transaction; (2) the amount of the joint gains as a percentage of the value of T; and (3) a variable they call the ownership stake multiplier, which is a function of the common owner’s stakes in T and A.

It’s all algebra at this point, so it’s a good thing Kahan and Rock have four sample transactions ready to be run through their analysis. We get a disturbing result at the end of the line: Except where joint gains are negative and the common owner has a higher stake in T than in A, it is entirely possible that a common owner will vote in favor of a transaction yielding less than the pre-transaction value of T. Here is a shocking example from the paper. A’s pre-merger value is $2 billion, T’s pre-merger value is $1 billion, and a merger of the two will yield a combined company worth $3.1 billion. D owns six percent of T and five percent of A. The merger price is $510 million, which, of course, is $490 million less than the value of T. Yet D will vote in favor of the deal! Here’s why: “The value of the common owner’s combined stake would be $160.1 million if the merger is approved (5% of the $2.59 billion value of Acquirer ($129.5 million) plus 6% of the $510 price paid for Target ($30.6 million)) compared to $160 million if the merger is not approved (5% stake in Acquirer worth $2 billion plus 6% stake in Target worth $1 billion).” (P. 17.)

Kahan and Rock go on to give us a hard-nosed and well-informed discussion of the institutional implications of their findings. They want nothing to do with MOU. They also reject an approach suggested by Lawrence Hamermesh and Henry Hu (in a paper available here) under which unaffiliated voters would be presumed to be disinterested, with the plaintiff bearing the burden of proof to show otherwise. Kahan and Rock make an old school objection to this, insisting that the burden to qualify the transaction stay firmly on the conflicted fiduciary. That said, Kahan and Rock admit that an MOD regime would create much uncertainty in the market for mergers and acquisitions. Nor, as it turns out, is Kahan and Rock’s incentive test easy of real-world application: institutional holdings are not transparent, and there’s no verifiable joint gains number with which to anchor the test. Kahan and Rock close with a rule proposal that looks for tractability even as it would cut back on MFW and Corwin—they recommend that there be no cleansing effect accorded to a vote in the event of a “material” level of negative votes and “widespread” common ownership.

A companion piece, Explicit and Implicit Bundling in Shareholder Voting on Cleansing Acts, available here, is also recommended.

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Sergio Alberto Gramitto Ricci

What if you could embark on a journey through time and space, witnessing the birth and evolution of business organizations across civilizations? Barry Hawk’s remarkable new book, Family, Partnerships and Companies: From Assur to Amsterdam, offers precisely such an adventure—a sweeping historical panorama that traces the development of business associations from ancient Mesopotamian merchants to the Dutch trading houses that would eventually reshape global commerce.

Hawk’s achievement is nothing short of extraordinary. Rather than confining himself to the familiar terrain of English common law or European commercial development, he excavates the deep historical roots of business organization across nine distinct societies and cultures. From the Old Assyrian naruqqum of the early second millennium BCE to the joint stock companies of Renaissance Europe, Hawk demonstrates that the human impulse to pool capital, share risk, and organize commerce transcends geographical and temporal boundaries. His methodological approach represents a significant departure from traditional corporate law scholarship, which too often treats business organizations as products of modern legal evolution rather than as institutions with deep historical roots.

The book’s scope is breathtaking. Hawk guides readers through the merchant oligarchy of ancient Assur, where traders developed the naruqqum—what he aptly describes as a “joint stock fund”—to finance their lucrative caravan trade with Anatolia (Pp. 37-41). We witness the pragmatic innovations of Roman law, with its sophisticated societas publicanorum that enabled public contracting on a massive scale (Pp. 76-93). The journey continues through the Islamic world’s partnership traditions, the merchant associations of medieval India, the Tang lineage trusts of China, and ultimately arrives at the bustling commercial centers of medieval and early modern Europe.

What makes this work particularly valuable is Hawk’s careful attention to the economic, political, and social contexts that shaped each society’s approach to business organization. He avoids the teleological trap of viewing ancient forms merely as primitive precursors to modern corporations. Instead, each organizational innovation emerges as a thoughtful response to specific commercial needs and constraints. The Old Assyrian naruqqum, for instance, was not a failed attempt at creating a modern corporation, but rather a naruqqum (P.93). This methodological sophistication distinguishes Hawk’s work from earlier scholarship that often imposed modern analytical frameworks on historical institutions without adequate attention to their specific contexts.

While I have argued elsewhere that Ancient Rome deserves credit for creating the corporate form and establishing the foundations of business corporations (Sergio Alberto Gramitto Ricci, Archeology, Language, and Nature of Business Corporations, 89 Miss. L. J. 43, 74-79 (2019)), Hawk’s work offers an invaluable complement to this perspective. His archaeological approach to business organizations reveals the rich tapestry of experimentation that preceded Roman innovations.

Hawk illustrates how similar economic pressures tend to produce similar organizational solutions across time and space. His insights provide crucial theoretical grounding for modern comparative corporate law scholarship and resonate with my own work on the fundamental importance of asset partitioning and separation of ownership and control in corporate entities (Gramitto Ricci, Archeology, Language, and Nature, Pp. 72-74).

The book masterfully documents diverse historical threads, identifying common patterns while respecting the uniqueness of each society’s contributions. Hawk’s analysis of how legal personality, asset partitioning, and contractual flexibility drive entity choice provides a conceptual framework that illuminates both historical and contemporary business organization. This work represents one of the most sophisticated attempts to date to identify the fundamental drivers of organizational innovation across legal systems and historical periods.

One minor criticism: the book’s focus on successful innovations might benefit from more attention to organizational forms that failed or were abandoned, which could provide important insights into the limits of institutional adaptation. This quibble aside, Family, Partnerships and Companies is a tour de force that will be indispensable for anyone seeking to understand the deep historical foundations of modern business law. Hawk has given us a work of remarkable scholarship that treats business organizations not as dry legal technicalities but as human institutions that reflect the ingenuity, creativity, and adaptability of commercial societies across the ages. The book’s interdisciplinary approach, combining legal analysis with insights from economic history, anthropology, and comparative law, establishes a new standard for historical scholarship in corporate law.

For corporate law scholars, the book offers a fresh perspective on foundational questions about the nature and purpose of business organizations, challenging received wisdom about the origins of key concepts. For historians, it provides a masterful synthesis of commercial development across civilizations that will undoubtedly influence future scholarship on the relationship between law and economic organization. For practitioners, it offers valuable context for understanding why certain organizational forms persist while others fade into historical curiosity, insights that may prove useful in designing new business structures for contemporary challenges.

In an era when corporate purpose and governance face renewed scrutiny, Hawk’s historical lens reminds us that business organizations have always been tools shaped by human needs and social values. As Martin Gelter notes in his epilogue, “Barry Hawk’s successors in centuries to come will look back at a complex landscape of legal forms that may be as strange to them as the Assyrian naruqqum is to us” (P. 245). This book ensures that our understanding of that landscape will be far richer for Hawk’s extraordinary scholarly journey.

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Matteo Gatti

In Getting to Yes: The Role of Coercion in Debt Renegotiations, Professors Vincent Buccola and Marcel Kahan offer a deep and clarifying intervention in a murky but critical corner of modern corporate finance. Despite the surge in controversial out-of-court restructurings—where debtors use increasingly aggressive tactics to sidestep unanimity and rewrite deal terms—the legal framework for evaluating such moves remains surprisingly underdeveloped. Judges tend to treat these fights as disputes among sophisticated players and very rarely imply covenants or override textual language. Buccola and Kahan step into this vacuum with an elegant conceptual framework for understanding coercion in debt alteration and, crucially, when courts should push back.

This is an important piece, both for its ambition and its pragmatism. Its core insight is that many renegotiation techniques may induce “consent” from creditors while leaving them collectively worse off. Buccola and Kahan offer a systematic account for understanding how this happens, identifying four key structural features—ranking, conditionality, exclusivity, and voting variability—that shape the coerciveness of any consent solicitation. They then show how these features combine in real-world practices such as exchange offers, exit consents, dual conditionalities, ballot stuffing, and exclusive uptiers, many of which have gained prominence in recent years. Some of these strategies resemble classic coordination problems or even prisoner’s dilemmas, in which individual creditors are pressured to accept a deal that, in aggregate, harms the group. By rigorously mapping the mechanics and incentives at play, the authors create a typology of coercive tactics that can push transactions over the finish line even when they diminish overall creditor value. This roadmap will be essential not only for academics but for practitioners and judges navigating these increasingly frequent and complex contests.

What makes their paper timely is the growing dissonance between market practice and the absence of a theoretical or doctrinal compass. As the authors note, litigation over debt restructuring mechanics has proliferated—but often without a common vocabulary or framework for assessing what’s at stake. The problem isn’t just doctrinal uncertainty—it’s that we lack a broader legal theory for how to think about coercive debt renegotiation. Courts often resolve these disputes ad hoc, without clearly articulating what makes a transaction problematic beyond vague intuitions about fairness or overreach. Buccola and Kahan premiere a shared grammar.

They also strike the right tone. Their paper resists taking sides. Instead, it adopts a measured middle ground: everyone at the table—private equity sponsors, institutional investors, their lawyers—understands the trade-offs between stronger contractual protection and pricing. The contracts may be incomplete, but the parties are not naïve. Thus, the question isn’t how to rescue unsophisticated investors but how to design rules that deter destructive rent-seeking on either side, while still allowing for value-enhancing adjustments when circumstances change.

This last point is among the paper’s most poignant contributions: the authors wrestle directly with the tension between market failure and surplus maximization. Coercion isn’t always bad; sometimes it’s the price of overcoming holdout problems and unlocking value. But some tactics—particularly those involving exclusivity, like uptier exchanges or selective inducements—seem more like grabs than governance. The trick, as always, lies in distinguishing between the two.

The authors’ proposed interpretive presumption—essentially a version of contra proferentem for coercive solicitation methods—offers a workable doctrinal nudge. Where contracts are silent or ambiguous, courts should lean against coercion. But Buccola and Kahan stop short of endorsing sweeping bans or mandatory terms. They recognize the complexity of the terrain, the variability of contracting practices across markets, and the risk of choking off innovation with overly rigid rules.

Still, the institutional realities loom large. As the authors acknowledge, these decisions are made by judges who are likely to be more sympathetic to debtors—especially when the alternative is a value-destructive bankruptcy that risks layoffs and other spillover costs. Institutional investors, by contrast, may be perceived as sophisticated repeat players who had every opportunity to protect themselves. That background bias, however defensible, means courts may hesitate to police coercion even when the legal or economic case for intervention is strong.

This raises a broader policy question, only implicit in the paper but hard to ignore: Are we witnessing a quiet blurring of the boundary between bankruptcy and contract law? Buccola and Kahan describe a landscape where private restructuring techniques—uptiers, ballot stuffing, exclusive exchange offers—achieve results that resemble bankruptcy outcomes but without judicial oversight, creditor committees, or statutory protections. In effect, these are reorganizations through contract rather than court. That drift invites debate about whether debt workouts should remain primarily a matter of private contracting, or whether some of these practices warrant a policy response. While the authors refrain from normative pronouncements, their description lays the foundation for precisely that debate.

So where should the conversation go next? First, as the authors themselves hint, we need more empirical work tracking the actual impact of different solicitation structures on bond pricing, default outcomes, and cost of capital. What market signals exist to distinguish coercion that is merely aggressive bargaining from coercion that is genuinely value-destroying? Second, more normative clarity is needed about the role of courts. Should judges aim to maximize aggregate creditor value? Police consent quality? Preserve contracting incentives? Buccola and Kahan point us in these directions without prescribing a single theory.

Finally, the bigger institutional question deserves sustained attention: If out-of-court restructurings now do much of what Chapter 11 once did, should we rethink the legal boundaries between bankruptcy and debt contracting? Buccola and Kahan don’t push that far, but they’ve shown us how to start thinking seriously about it.

And for that, this piece will be indispensable reading for anyone who thinks seriously about debt, contracts, and the institutions that hold them together—or let them be unwound.

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