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The Corporate Contract in Changing TimesIs the Law Keeping Up?$
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Steven Davidoff Solomon and Randall Stuart Thomas

Print publication date: 2019

Print ISBN-13: 9780226599403

Published to Chicago Scholarship Online: September 2019

DOI: 10.7208/chicago/9780226599540.001.0001

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Boilermakers and the Contractual Approach to Litigation Bylaws

Boilermakers and the Contractual Approach to Litigation Bylaws

Chapter:
(p.244) Chapter Eleven Boilermakers and the Contractual Approach to Litigation Bylaws
Source:
The Corporate Contract in Changing Times
Author(s):

Jill E. Fisch

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226599540.003.0011

Boards and shareholders are increasing using charter and bylaw provisions to customize their corporate governance. Recent examples include forum selection bylaws, majority voting bylaws and advance notice bylaws. Relying on the contractual conception of the corporation, Delaware courts have accorded substantial deference to board-adopted bylaw provisions, even those that limit shareholder rights. This Article challenges the rationale for deference under the contractual approach. With respect to corporate bylaws, the Article demonstrates that shareholder power to adopt and amend the bylaws is, under Delaware law, more limited than the board’s power to do so. As a result, shareholders cannot effectively constrain the board’s adoption of bylaws with which they disagree. The resulting power imbalance offers reasons to question the scope of the contract paradigm. This analysis has two implications. First, it suggests that the Delaware courts and possibly the legislature may want to re-consider existing constraints on shareholder power in order to realize the contractual paradigm fully. In so doing, they will have to consider the normative implications of greater shareholder empowerment. Second, to the extent that Delaware law retains the existing limitations on shareholder power, this analysis suggests that courts should scrutinize board-adopted bylaws more closely.

Keywords:   Amendments to Bylaws, Charters, Shareholder Rights, Board Power, Scrutiny of Board-Adopted Bylaws, Contractual Approach to Corporate Law, Limits of the Contract Analogy, Limits to Shareholder Power, Corporate Governance, Delaware

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