You’ll notice that a recurring theme is trying to figure out why negotiators kick the can down the road by failing to define or otherwise specify what strike me as really important terms. It seems like an open invitation to subsequent disputes and litigation.

Purchase price adjustment provisions have become increasingly common in private deals. In 2006, for example, they were used in 68% of private company acquisitions. By 2019, they were being used in 95% of such transactions, although their use fell off to 90% in 2024-25. Was the drop between 2019 and 2025 random variance or driven by some market force?

In 2024-25, 12% of private company acquisition agreement post-closing purchase price adjustment provisions called for the use of GAAP in preparing the closing balance sheet, 10% for GAAP consistent with past practices, 32% for GAAP with specific modifications, 6% were silent, and 40% specified some other accounting method. ABA 2025 Private Deal Survey at 15. The relatively large number of deals that are silent on the point is somewhat puzzling, as it would seem to invite disputes.

The percentage of deals providing for a separate escrow for the purchase price adjustment has fluctuated over time, ranging from 23% in 2006 to 35% in 2010 to 25% in 2014 to 51% in 2018–19 50 58% in 20924-25. ABA 2025 Private Deal Survey at 16. Where a separate escrow was used, the percentage of deals providing for the escrow to be the sole source for making the purchase price adjustment, which effectively acts as a cap on the size of the adjustment, rose from 11% in 2016-17 to 42% in 2024-25. Id. What drove that increase?

Prior to 2008, less than 89% of private deals included a provision making indemnification the buyer’s exclusive remedy. Between 2008 and 2021, the percentage of such deals with an exclusivity provision rose into the >90% range, topping out at 87% in 2020-21. In 2022-25, the percentage fell back to 89%. Oddly, in the 2004 to 2025 period, the percentage of deals that were silent on the issue ranged from a low of 1% (2020-21) to a high of 14% (2004), with 6% being silent in 2024-25. ABA 2025 Private Deal Study at 112. It seems odd that such an important issue would be left unresolved, as it seems to invite litigation.

Why do some people write it as “earn-out” and some as “earnout”? I prefer the latter, but have been seeing the former in a bunch of recent cases and agreements. The ABA study uses earnout.

Material adverse change qualifiers are almost universal. Between 2006 and 2025 , the lowest percentage of deals including a MAC was 92% in 2008. In 2024-25, 99% of deals did so. ABA 2025 Private Deal Survey at 26. Curiously, a small percentage of deals contain MAC qualifiers but fail to define the term. See id. (2% of deals in 2022-23). Why would you leave such a critical term undefined?

In 2024-25, 21% of indemnification clauses in private company acquisition agreements included eligible claim thresholds. ABA 2025 Private Deal Study at 99. The percentage of deals with such thresholds has fluctuated widely over the years. The low during the ABA study period was 18% in 2006, while the high points were 39% in 2018-19 and 38% in 2014 and 2020-21. Id. Why so much variation from year to year?

In the ABA study, 28% of agreements that referenced RWI provided for the insurance to be the sole remedy but only for non-fundamental representations and warranties. Forty-six percent provided for it to be the sole source of recovery for all representations and warranties. Eight percent expressly said it was not the sole source of recovery, 11% permitted separate recovery for specified representations and warranties, and 7% were silent. ABA 2025 Private Deal Study at 125. The significant percentage of deals that are silent on such an important question is puzzling as it simply kicks the can down the road for future dispute resolution.

In 2024-25, 11% of private deals provided that the aggrieved party was entitled only to the termination fee and was expressly not allowed to seek specific performance. In 66& of deals, the agreement allowed the aggrieved party to seek either the termination fee or specific performance but not both. A surprising 23% of deals were silent, despite the seeming importance of this issue. ABA Private Deal Study at 24. Once again, why are they kicking the can down the road?

Share Bainbridge on Corporations

It elicited a response from Francine McKenna of the estimable Substack The Dig.

The Dig

Francine McKenna digs into accounting, audit, and corporate governance issues at public and pre-IPO companies.

By Francine McKenna

Ms. McKenna commented:

I’d love for you to go back and analyze the Sokol case with this framework

For those who weren’t in the biz in 2011 and/or have forgotten, back in 2011 the WSJ reported that:

David Sokol, widely seen as the leading contender to succeed billionaire Warren Buffett at the helm of Berkshire Hathaway Inc., defended himself Thursday morning after resigning unexpectedly amid surprising revelations about his personal stock trading.

In an unusual and personal announcement Wednesday evening, Mr. Buffett said the resignation followed revelations that Mr. Sokol had purchased roughly $10 million in shares of a chemicals company that Berkshire recently agreed to buy at the suggestion of Mr. Sokol, Lubrizol Corp.

“I don’t believe I did anything wrong,” Mr. Sokol said in an interview on CNBC. “I don’t think you can ask executives not to invest their own families’ capital.” ...

Mr. Buffett said Mr. Sokol, 54 years old, had bought 96,060 shares in January, before Berkshire reached a $9 billion deal to acquire the company. Berkshire’s purchase price of $135 per share meant that Mr. Sokol’s stake rose $3 million in value. ...

Securities lawyers debated whether Mr. Sokol’s dealings could fallinto a gray legal area. In broad terms, insider trading laws prohibit individuals from trading on shares based on material nonpublic information in violation of some duty of trust.

Basically, Sokol planned to pitch Buffett on having a Berkshire energy subsidiary (of which Sokol was then CEO) buy Lubrizol, a chemical company in the petrochemical space.

On December 13, 2010, Sokol met with Citigroup bankers to discuss possible takeover targets. Sokol reportedly expressed interest solely in Lubrizol. A Citigroup banker subsequently informed Lubrizol management of Sokol’s interest.

Between January 5 and 7, 2011, Sokol bought 96K shares of Lubrizol stock at prices in the $104 range. He pitched the acquisition to Buffett on or about January 14th and again in late January after a meeting with Lubrizol’s CEO.

On March 13, Berkshire’s board approved an offer for Lubrizol at $135 per share. Somewhere around that time, Sokol cashed out, earning a profit of around $3 million. When that came to light, Sokol resigned from Berkshire.

Buffett initially said he did not believe Sokol had broken the law, but later said he found Sokol’s conduct "inexplicable" and "inexcusable."

But was it illegal?

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[LeBron James] announced Tuesday that he will be playing a record 24th NBA season, but it won’t be with the Los Angeles Lakers. …

A panel of The Athletic’s reporters then debated where LeBron should sign. Jason Jones opined:

Sentiment says Cleveland, but if money isn’t a concern, go to the Knicks.

If this is about a chance to win another championship, why not go with the defending NBA champions? Mike Brown was the first coach to reach the Finals with James, so finishing his career with a season with Brown would be some Lifetime movie-type stuff that’s perfect for television. I also believe getting out of the Western Conference and away from OKC and San Antonio gives James the best chance to return to the Finals.

Given LeBron’s reported net worth of $1.3 billion, money should not be a concern.

I hope LeBron does chose the Knicks, because the mere possibility calls to mind one of my favorite set of insider trading hypotheticals.

The NY Knicks are owned by Madison Square Garden Sports Corporation, a NYSE listed company (MSGS). It is a reporting company and, as such, a public corporation.1

So let us consider several hypotheticals:

1. LeBron firmly intends to sign with the Knicks if they make him an offer, but the Knicks have not yet done so. LeBron buys MSGS stock.

2. The Knicks have made LeBron an offer, which he firmly intended to accept. LeBron buys MSGS stock.

3. The Knicks have made LeBron an offer, which he has accepted. LeBron buys MSGS stock.

In each case, LeBron’s purchases of MSGS stock occurred before any public announcement of his intentions and/or actions. In each case, LeBron subsequently signed with the Knicks and MSGS’ stock price jumped in response to the news. LeBron then cashed in.

Has LeBron violated the federal insider trading rules under SEC Rule 10b-5?

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On his old blog, Keith Paul Bishop noted that:

California’s statutory provisions pertaining to unincorporated associations can be found in Title 3 of the Corporations Code. Part 3 of Title 3 is devoted to criminalizing various activities on the part of directors, officers and agents of joint stock associations. Nowhere, however, Part 3 define what constitutes a joint stock association. Nor does it appear that there are any decisions citing these statutes. The mystery of what exactly constitutes a joint stock association is deepened by the existence of other provisions within the Corporations Code that refer to joint stock companies (e.g., §§ 5065, 25013, and 29514). Is a “joint stock association” a “joint stock company” by another name or an entirely different entity?

According to a 1916 law review article, a joint stock association at common law was “a group of individuals organized for certain purposes into an association similar to a partnership, but, unlike a partnership, having a capital stock divided into shares transferable by the owner”. I. Maurice Wormser, The Legal Status of Joint Stock Associations, 3 Fordham L. Rev. 1 (1916).

BTW, If you’re a fellow corporate law maven with an interest in California and, importantly given DExit, Nevada corporate law, I strongly encourage you to subscribe to Keith’s Substack:

Calcorporatelaw.com

I am a former California Commissioner of Corporations, retired corporate and securities lawyer, legal writer and commentator, and law school instructor.

By Keith Paul Bishop

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More recently, we covered the successful effort to get a bill through the Hawaii legislature:

I freely concede that I’m not a constitutional law expert, although I did get A’s in both Con Law I and Con Law II, albeit 40+ years ago. But the good folks at the Institute for Free Speech know more than a little something about the constitution and they have filed a lawsuit seeming to have the Hawaii statute declared unconstitutional.

• Main IFS webpage on the law suit

• Detailed explanation of their arguments

• Copy of the Complaint

In brief, IFS argues that:

• It punishes people for joining together: Americans have a constitutional right to join together through nonprofits and other associations to advocate for causes that matter to them.

• It is unconstitutionally vague: key provisions leave organizations guessing where lawful advocacy ends and prohibited activity begins.

• It picks favored speakers: by exempting the institutional press while gagging everyone else, the government selectively decides who enjoys First Amendment rights.

I don’t deny hoping they’re right. As I observed in an older post about Citizens United:

I come down squarely on the side that worries about government regulation of core political speech and thinks that the First Amendment should be applied with strict scrutiny to such laws.

Even when somebody makes an all too clever argument for doing indirectly what they can’t do directly.

But, as we used to say back when the internet was young, YMMV.

Under Delaware law, except for the City of Wilmington, municipal voter eligibility “shall be as specified within the town charter; provided however, that in no event shall a municipality impose a durational residency requirement in excess of 30 days.” In 2008, the General Assembly amended Fenwick’s Charter to provide, in pertinent part:

(2) Non-residents: Every property owner as of March 1 prior to the annual municipal election, whether a natural person or artificial entity, including but not limited to corporations, partnerships, trusts, and limited liability companies, and who is registered to vote, if provided by ordinance, shall have one vote. A natural person shall be a citizen of the United States and age 18 on or before the date of the election. An artificial entity shall be a domestic entity in the State of Delaware.

(3) These provisions shall be construed in accordance with the principle of “one person/entity, one vote.” Where a voter is entitled to vote by virtue of being both a resident and as an owner of real property, that voter shall be entitled to only one vote; where a voter is entitled to vote by ownership of two or more parcels of real property, that voter shall be entitled to only one vote.

(4) Any legal entity other than a natural person entitled to vote, must cast its vote by a duly executed and notarized power of attorney from the legal entity granting the authority to cast its vote to its designated attorney-in-fact. ...

The ACLU sued, claiming that the charter thus violated the Elections Clause of the Delaware Constitution, which simply states: “All elections shall be free and equal.”

Judge Karsnitz of the Delaware Superior Court granted Fenwick Island’s motion to dismiss for failure to state a claim, finding that:

Visions of faceless large corporations or even HAL, controlling a small town are frightening and the stuff of science fiction. However, Plaintiff has not demonstrated that this policy violates the principle of one person/entity/one vote.

Predictably, this produced great consternation among the usual suspects on X.2

I pointed out that these concerns were overblown:

Proving once again that the Delaware legislature is not immune to X-spawned hysteria, however, some Delaware legislators have rushed to propose a constitutional amendment that would permit only natural persons to vote in any Delaware election.

So let’s think about this a bit.

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In that post, we also took a deep dive into a paper by my friend and UCLAW colleague Fernan Restrepo, which explored whether the lower court decision finding that an implied private right of action exists had generated an increase in shareholder activism.

The Supreme Court today announced its decision, finding by a 6-3 vote that § 47(b) of the ICA does not impliedly empower private parties to sue for rescission of contracts that allegedly violate the Act. (Link to Opinion)

The result is a bit surprising, because the oral argument seemed to favor the plaintiffs’ argument that an implied private right of action exists.

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So as long as we’re talking about semi-annual vs quarterly reporting – It has long been observed that the disclosure obligations of the federal securities laws function as sub rosa substantive governance regulation. The obligation to report necessarily carries with it an obligation of oversight; you can’t report what you don’t know.

Thus, a switch to semi-annual reporting may not simply mean less information to investors; it loosens the obligations of boards, and managers, to oversee the company.

A new paper by Anne Tucker and Timothy Lytton demonstrates this point in the context of mutual fund disclosures. After interviewing a variety of market players, including investment advisers, fund managers, compliance officers, and fund counsel, they conclude that it’s less important whether anyone reads the disclosures than the fact that the process of drafting them triggers legal and professional norms which end up substantively shaping mutual fund products.

Here we encounter a longstanding pet peeve of mine; namely, the use of “disclosure” requirements to accomplish indirectly what the SEC cannot do directly—i.e., to regulate the substance of corporate governance.

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Over at my other shop, StephenBainbridge.com, I’ve posted about the recent, significant, and unwelcome changes made by SSRN (the online “open access” scholarship) repository. Problem # 4 especially annoys me.

StephenBainbridge.com

The Social Science Research Network Has Jumped the Shark

The Social Science Research Network (SSRN) was founded in 1994 by economists Michael C. Jensen and Wayne Marr, to serve as an open access repository of scholarship in law, economics, and other social sciences…

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a month ago · Stephen Bainbridge

Bainbridge v. Shapira with Gatti as Referee

I was pleased to be invited by the eminent Matteo Gatti to participate in a cagematch fun and enlightening conversation with the perspicacious Roy Shapira. Matteo has kindly posted a summary of the podcast and links to it on LinkedIn. A brief taste:

The conversation opens with the foundational tension in corporate law — shareholder primacy as the standard of conduct versus the business judgment rule as the standard of review. Steve's point: boards are expected to maximize shareholder value, but courts almost never second-guess them if there's a rational business justification. The BJR does most of the heavy lifting in practice. Steve also walks through constituency statutes — the ones that let boards consider employees, communities, and other stakeholders. Fewer than 40 cases ever decided under them, none clearly changing the shareholder primacy norm. Bottom line: courts won't review the decision regardless of jurisdiction.

…

Roy brings in Caremark: when does a failed ESG bet become a real oversight liability problem? His answer: it depends on whether the issue is mission critical to that particular business. And his one-word advice to boards navigating all of this: document.

Much Hubbub About Little

Bloomberg recently (somewhat breathlessly) reported that:

A first-of-its-kind court decision affirming that some Delaware businesses can participate in municipal elections is stoking alarm and confusion about the explosion of corporate political clout at a precarious moment for voting rights nationwide, Mike Leonard reports.

Dozens of municipalities allow some version of entity voting, but the court opinion — tying the practice expressly to notions of corporate personhood and Delaware’s role in the corporate ecosystem — is shining an awkward spotlight on policies that have flown under the radar for decades.

Delaware Superior Court Judge Craig A. Karsnitz appears to be the first public official to “clearly articulate the ideological connection between Delaware’s ‘corporate franchise’ and its enfranchised corporations,” said University of Delaware historian Dael Norwood. “That connection has been indirect — at least until Judge Karsnitz wrote an opinion that said the quiet part out loud.”

The ruling upheld a provision authorizing voting by in-state corporations, LLCs, trusts, and partnerships owning property within the tiny town of Fenwick Island, population 401. Karsnitz acknowledged that entity voting may conjure dystopian science fiction “visions of faceless large corporations or even HAL controlling a small town.” But it’s permissible under the principle of “one person/entity, one vote,” he said.

Predictably, this also generated some Citizens United-linked consternation on X:

Should I do a whole post about this one?

Leave a comment

We started with the backstory of the leading case of AP Smith Mfg. v. Barlow and then dived into the law and economics of corporate philanthropy generally. The third post tackled the policy aspects of corporate giving when the company is in financial distress.

In this post, I take up the law governing corporate charitable giving by financially distressed firms.

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In this post, I’m using a 2020 COVID-era tweet by Jon Miller as a jumping off point:

I didn’t follow Miller back then (and still don’t) but some friends who did sent me a link to the tweet, figuring it would interest me.

Miller’s X.com profile now describes him as: “Gamer Jon’s Dept. • Veteran journalist • Catholic • Moderate • Fair & balanced political commentator • provider of parody.” But back then it described him as:

At the time, his tweet struck me as being deliberately written in a way that would appeal to a certain political tribe (i.e., those that wear MAGA hats), but maybe it was parody. IDK.

In any event, setting aside the politics of the tweet,1 it actually raises an interesting question; namely, when a firm is in sufficient distress that it is laying off employees, should it be engaged in corporate philanthropy? More generally, suppose a corporation’s board of directors is considering making a substantial donation to a charitable organization. At that time, the corporation is in considerable financial distress. It may well fail to survive. If so, should the directors go forward with the donation? If they do, what recourse do the shareholders have?

Of course, that question is a subset of the broader issue of how we reconcile competing stakeholder claims. I suggest that there are two possible answers to this claim.

As it turned out this post proved to be very long, so I broke it into two halves. Look for the second half tomorrow.

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As a percentage matter, the share of corporate giving has remained roughly constant over the last 4 decades at 6-7%:

The forms corporate philanthropy takes varies from company to company, but the three most common are:

1. Corporate Grants & Sponsorships: Direct philanthropic contributions given to 501(c)(3) organizations or community foundations to support specific initiatives.

2. Employee Matching Gifts: The most common form of workplace giving, where companies match charitable donations made by their employees, often at a 1:1 ratio.

3. Volunteer Grants & Paid Time Off: Corporate programs that provide hourly grants to nonprofits where employees regularly volunteer.

Educational institutions tend to be the most common recipient of corporate gifts, with community funds (e.g., United Way), disaster relief, and health also being major recipient categories.

All of which raises two corporate law and governance questions:

• Why do we care about corporate philanthropy?

• What are the legal constraints on corporate philanthropy?

• Should we strengthen the regulations on corporate giving?

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Reaffirms that artificial persons created under state law possess only those powers that are necessary or convenient to carry out lawful purposes, and that those powers do not include the power to spend money or contribute anything of value to influence elections or ballot measures. Authorizes the Attorney General and the Director of Commerce and Consumer Affairs to impose certain penalties for violations.

Regular readers will recall that I wrote two articles about a similar initiative pending in Montana. In the first post, I discussed the state power to define the rights and powers of corporations and expressed some skepticism about the constitutionality of such laws, specifically focusing on whether the state can condition the grant of powers on giving up constitutional rights:

In the second post, I discussed the extent to which Montana (and now Hawaii) can its limits on corporate powers extraterritorially to what out of state corporations do outside of Montana. I concluded that it cannot do so. Hawaii cannot tell a Delaware corporation—even one based in Hawaii—what powers it can wield in states other than Hawaii.

I also discussed the extent to which a state like Hawaii or Montana can regulate the activities of out-of-state corporations in the adopting state, concluding that they may do so.

If this topic is of interest, I would encourage you to check out my posts on Citizens United:

It may be that living in Hollywood for the last three decades has influenced my thinking, but I love learning about the backstory to cases. I had the good fortune of contributing chapters to two collections of corporate law backstories:

• Corporate Law Stories (Foundation Press 2009) (AMAZON LINK), to which I contributed a chapter on Smith v. Van Gorkom.

• The Iconic Cases in Corporate Law (West Publishing 2008) (AMAZON LINK), to which I contributed a chapter on the US Supreme Court’s leading insider trading cases.

In my book, The Profit Motive: Defending Shareholder Value Maximization (AMAZON LINK), I had occasion to discuss the backstories to two leading cases on corporate social responsibility: Barlow and Dodge v. Ford Motor Co., cases that most Business Associations students have encountered at some point in corporate law studies.

I’ve written about Dodge here before:

But Barlow in many ways is an even more fascinating case with a much more interesting backstory.

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But not everybody does. One opposition comment that attracted a lot of attention purportedly came from /r/wallstreetbets, of which it has been said:

The subreddit, describing itself through the tagline "Like 4chan found a Bloomberg terminal",is known for its aggressive trading strategies, which primarily revolve around highly speculative, leveraged options trading. Members of the subreddit are often young retail traders and investors who ignore fundamental investment practices and risk management techniques, so their activities are often considered gambling.

Their argument about semi-annual reporting is that it will supposedly make their gambling more chancy:

There’s a lot of misinformation in that comment:

1. “Quarterly reports are the single most important leveling mechanism between retail and institutional investors in U.S. equity markets. Institutional investors have expert networks, channel checks, alternative data, satellite imagery of retailer parking lots, credit card panel data, and direct management access through conferences and one-on-one meetings that cost more than most of our portfolios. We have the 10-Q. We have the 10-Q, and we have a Discord server, and we have each other. Take away the 10-Q and you have not eliminated the information.”

   1. B.S. US stock markets are highly efficient. By the time a retail investor gets their hands on a Form 10-Q the information in that report will already have been impounded into the company’s market price. Indeed, according to one study, the information in quarterly earnings announcements is fully impounded in the market price in about five second. The information in the 10-Q therefore has zero value to the retail investor. They cannot profit off it. So there is no levelling.

2. “The architecture of federal securities regulation is built on the premise that mandatory periodic disclosure narrows that gap.”

   1. If the redditors had bothered to learn any history, they would have learned that the SEC did not begin mandating semi-annual reporting until 1955. Twenty one years after passage of the Securities Exchange Act of 1934. They also would have learned that the SEC did not require quarterly reporting until 1970. Yet, the market muddled along quite fine.

   2. They also might have learned that the UK did not switch from semi-annual to quarterly reporting until 2007. They also might have learned that the UK switched back to semi-annual reporting just seven years later.

Beyond these basic factual errors, however, their comment raises a more fundamental question:

The Commission has spent 90 years making it easier for people like us to participate in public markets on something approaching fair terms. We are asking the Commission not to spend this rulemaking making it harder.

Should the SEC be in the business of facilitating retail investors? Or should SEC policy be designed to push retail investors towards passively managed index funds?

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Share Bainbridge on Corporations

Student: “I want to be a human rights lawyer. I want to make the world a better place.”

Advisor: “Who will you work for?”

Student: “Dunno. Some sort of NGO I guess.”

Advisor: “So you don’t mind working unpaid?”

Student: “I guess corporate restructuring also kinda makes the world a better place, doesn’t it?”

I suspect Marc has his tongue firmly in cheek.

But reading his post reminded me of my essay Reflections on Twenty Years of Law Teaching: Remarks at the Rutter Award Ceremony (April 2008), which is available at SSRN: https://ssrn.com/abstract=1122577.

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But if we must have some shareholder democracy, why does it have to be through precatory proposals under Rule 14a-8?

We have frequently recounted the many problems with Rule 14a-8 in these pages, but just to refresh your recollection they include:

• Gadflies with little skin in the game spam dozens of company proxy statements every year.

• The 14a-8(i)(5) and (i)(7) exclusions allow proposals that have supposed social or ethical significance onto the proxy statement even when they have virtually no economic materiality to the company.

• Few proposals receive majority support, indicating that the vast majority of proposals are pet projects of a small minority and do not reflect the desires of the bulk of investors.

• There is no empirical data suggesting that the shareholder proposal rule results in better firm performance.

• Shareholders generally lack the information necessary to make complex business decisions.

In order of preference, my reform proposals have been: Repeal > Private ordering,

But today I offer a third option: Relocation.

If we must have a shareholder democracy project, let’s move that project from Rule 14a-8 to 14a-4. I speak, of course, of the so-called zero slate proxy contest.

Faculty and Student Discount

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Larry scared the crap out of me the first few times I met him. I often thought he was a dead ringer for Mephistopheles. But it was his mind that was really scary. He was wicked smart with a rapier wit. Giving a talk or presentation when he was in the audience meant you were in for a rough time.

Yet, as I got to know him, I discovered a kind, generous, giving person. He became one of my intellectual heroes, a mentor, and a friend. When he passed away, I mourned. I still do.

What, you may be asking, does all that have to do with Citizens United?1 You will recall that, prompted by a rash of recent tweets about that perennially controversial decision, I decided to revisit it.

Bainbridge on Corporations

Looking Back at Citizens United Part 1: The Case

I was browsing over at X.com, as is my wont (I tweet using the handle @PrawfBainbridge), and was surprised to see a rash of recent posts about the Supreme Court’s decision in Citizens United v. FEC…

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2 months ago · 1 like · Stephen Bainbridge

Larry Ribstein was uniquely qualified to opine on Citizens United. In addition to being a top flight corporate law scholar, he had thought deeply about how the constitution treated—and should treat—corporations. Along with his coauthor Henry Butler, he produced what is still IMHO the best book on the corporation and the constitution, titled—logically enough—The Corporation and the Constitution (AMAZON LINK).

So today’s post looks back to Larry’s iconoclastic article, The First Amendment and Corporate Governance.2 In the next post, I will put a personal twist on the discussion by comparing Larry’s approach to my director primacy model of corporate governance.3

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