Leo Strine: Corporate Accountability Forums 3/14/22

Leo Strine (Leo E. Strine, Jr.) is one of history’s most prolific legal scholars, especially on issues of corporate accountability. I have seen and heard him in many venues. Much like a rock star, he often comes out, blows our minds, and quickly exits the stage. On Monday (3/14/22), he will be our guest on Corporate Accountability Forums for an hour of interactive conversation beginning at 2 pm Eastern time. You can still register, just click on March 14. Most people are at work and some unfortunates in our field do not realize who Leo Strine is or how influential he has been and continues to be. Use that to your advantage. Be one of the very few to attend the Forum live, so you can ask this brilliant man for his learned opinion on your issues of concern. Register

If you miss the Forum, you will still be able to view our discussion on YouTube or listen to it as a podcast. However, that will involve a considerable delay and you certainly will not get to ask your unique questions.

Leo Strine: Court of Chancery of the State of Delaware

A Short History of the Court of Chancery, marking its 200th anniversary, was written five years before Leo Strine was appointed to that body. Just skimming that history, these lines stood out as possibly contributing to Leo Strine’s thinking.

… the Court’s decisions largely turned on application of an ancient trust concept of fiduciary duty. Unlike its extinct English ancestor, the High Court of Chancery of Great Britain, Delaware’s Court of Chancery has never become so bound by procedural technicalities and restrictive legal doctrines that it has failed the fundamental purpose of an equity court–to provide relief suited to the circumstances when no adequate remedy is available at law. The historical roots are deep but the Delaware bloom remains fresh.

In practice, the Court of Chancery largely hears corporate matters, trusts, estates, and other fiduciary matters, disputes involving the purchase and sale of land, questions of title to real estate, and commercial and contractual matters in general. The Court has one Chancellor, the chief judicial officer of the Court, and four Vice Chancellors. Leo Strine was appointed to the Court in 1998, became Chancellor in 2011. In 2014, he was confirmed unanimously as the chief justice of Delaware’s Supreme Court, where he served until 2019. Leo Strine now serves Of Counsel in the Corporate Department at Wachtell, Lipton, Rosen & Katz.

Leo Strine: Breadth of Scholarship and Interest

In advance of our forum, I asked Mr. Strine for any information on the subject matter he wishes to cover and readings for those planning to attend. He responded that he is planning to approach the Forum as an interactive session, not a lecture. That is exactly what I want as well. Let’s have a discussion of the issues those attending bring to the Forum.

Below, I have simply cut and pasted from his page on Wachtell, Lipton. As I think you can readily see, Leo Strine has been thinking deeply about a wide range of corporate accountability issues for years. If you have a chance to do some reading, I would start with his latest and work my way down. If the Forum draws large numbers, I will take questions first from those who register early.

Select Publications

• The Win-Win That Wasn’t: Managing to the Stock Market’s Negative Effects on American Workers and Other Corporate Stakeholders, in Harvard Law School Program on Corporate Governance Discussion Paper No. 2021-3. This paper is also available as University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 940, University of Pennsylvania Institute for Law & Economics Research Paper No. 22-01 and SSRN.
• Duty and Diversity, in 75 Vand. L. Rev. 1 (2022).
• Corporate Political Spending Is Bad Business, in Harvard Business Review, January-February 2022 and Harvard Law School Forum on Corporate Governance, January 11, 2022.
• Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy – A Reply to Professor Rock, in 76 Bus. Law. 397 (2021).
• Lifting Labor’s Voice: A Principled Path Toward Greater Worker Voice and Power Within American Corporate Governance, in Columbia Law School’s Center for Law and Economics Working Paper No. 643, February 24, 2021. This paper is also available as University of Pennsylvania Institute for Law and Economics Research Paper No. 21-09, Harvard Law School Program on Corporate Governance Discussion Paper No. 2021-3, on Notice and Comment: A Blog from the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice, March 2, 2021, SSRN, and Minn. L. Rev. (forthcoming).
• Toward Fair Gainsharing and a Quality Workplace For Employees: How a Reconceived Compensation Committee Might Help Make Corporations More Responsible Employers and Restore Faith in American Capitalism, in 76 Bus. Law. 31 (Winter 2020-2021).
• Toward Racial Equality: The Most Important Things the Business Community Can Do, in Columbia Law School’s Blog on Corporations and the Capital Markets, November 2, 2020.
• Stewardship 2021: The Centrality of Institutional Investor Regulation to Restoring a Fair and Sustainable American Economy, in Columbia Law School’s Center for Law and Economic Studies Working Paper No. 633, October 23, 2020. This paper is also available as University of Pennsylvania, Institute for Law & Economics Research Paper No. 20-55, and Harvard Law School Program on Corporate Governance Discussion Paper 2020-8, on SSRN.
• Caremark And ESG, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And EESG Strategy, in 106 Iowa L. Rev. 1885 (2021).
• Development on a Cracked Foundation: How the Incomplete Nature of New Deal Labor Reform Presaged Its Ultimate Decline: A Response to Cueller, Levi, and Weingast, in 57 Harv. J. on Leg. 67 (2020).
• Fiduciary Blind Spot: The Failure of Institutional Investors to Prevent the Illegitimate Use of Working Americans’ Savings for Corporate Political Spending, in 97 Wash. U. L. Rev. 1007 (2020).
• “Citizens United” as Bad Corporate Law, in 2019 Wis. L. Rev. 451.
• Made for this Moment: The Enduring Relevance of Adolf Berle’s Belief in a Global New Deal, in 42 Seattle U.L. Rev. 267 (2019).
• Fiduciary Principles and Delaware Corporation Law: Searching for the Optimal Balance by Understanding that the World is Not, in Oxford Handbook of Fiduciary Law (2018).
• Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real: A Reflection on the Resegregation of Our Schools, in 17 Del. L. Rev. 97 (2018).
• Perfectly Frank: A Reflection on Quality Lawyering in Honor of R. Franklin Balotti, in 72 Bus. Law. 603 (2017).
• Corporate Power is Corporate Purpose I: Evidence from My Hometown, in 33 Oxford Rev. Econ. Pol’y 176 (2017).
• Corporate Power is Corporate Purpose II: An Encouragement for Future Consideration from Professors Johnson and Millon, in 74 Wash. & Lee L. Rev. 1165 (2017).
• Who Bleeds When the Wolves Bite?: A Flesh and Blood Perspective On Hedge Fund Activism and Our Strange Corporate Governance System, in 126 Yale L.J. 1870 (2017).
• Corporate Power Ratchet: The Court’s Role in Eroding “We The People’s” Ability to Constrain Our Corporate Creations, in 51 Harv. C.R.-C.L. L. Rev. 423 (2016).
• Criminal Justice and (a) Catholic Conscience, in 56 Santa Clara L. R. 631 (2016).
• Lessons for Luxembourg: Are Delaware and the Netherlands Examples You Can Emulate?, Cent Ans De Droit Luxembourgeois Des Societies (A Century of Luxembourg Company Law) 375 (2016).
• Originalist or Original: The Difficulties of Reconciling “Citizens United” with Corporate Law History, in 91 Notre Dame L. Rev. 877 (2016).
• Securing Our Nation’s Economic Future: A Sensible, Nonpartisan Agenda to Increase Long-Term Investment and Job Creation in The United States, 71 Bus. Law. 1081 (2016).
• The Siren Song of Unlimited Contractual Freedom, in Research Handbook on Partnerships, LLCs, and Alternative Forms of Business Organizations (2015).
• The Soviet Constitution Problem in Comparative Corporate Law: Testing the Proposition that European Corporate Law is More Stockholder-Focused Than U.S. Corporate Law, in 89 S. Cal. L. Rev. 1239 (2016).
• A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications, in 41 J. Corp. L. 71 (2015).
• The Dangers of Denial: The Need for a Clear-Eyed Understanding of the Power and Accountability Structure Established by the Delaware General Corporation Law, in 50 Wake Forest L. Rev. 761 (2015).
• Documenting the Deal: How Quality Control and Candor Can Improve Boardroom Decisionmaking And Reduce the Litigation Target Zone., in 70 Bus. Law. 679 (2015).
• Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and “Citizens United”, in 100 Cornell L. Rev. 335 (2015).
• Making It Easier for Directors To “Do the Right Thing”?, in 4 Harv. Bus. L. Rev. 235 (2014).
• Can We Do Better By Ordinary Investors? A Pragmatic Reaction To The Dueling Ideological Mythologists of Corporate Law, in 114 Colum. L. Rev. 449 (2014).
• Putting Stockholders First, Not the First-Filed Complaint, in 69 Bus. Law. 1 (2013).
• Poor Pitiful or Potently Powerful Preferred?, in 161 U. Pa. L. Rev. 2025 (2013).
• “Old School” Law School’s Continuing Relevance for Business Lawyers in the New Global Economy: How a Renewed Commitment to Old School Rigor and the Law as a Professional and Academic Discipline Can Produce Better Lawyers, in 17 Chapman L. Rev. 137 (2013).
• Our Continuing Struggle with the Idea That For-Profit Corporations Seek Profit, in 47 Wake Forest L. Rev. (2012).
• Delaware Corporate Law and the Model Business Corporation Act: A Study in Symbiosis, in 74 Law and Contemp. Probs. 107 (Winter 2011).
• The Role of Delaware In The American Corporate Governance System, And Some Preliminary Musings On The Meltdown’s Implications for Corporate Law, in Corporate Governance: Current Issues and the Financial Crisis 67 (Wilco Oostwouder & Hans Schenk eds., 2011) (written and presented in final form at the Governance of the Modern Firm Conference (Dec. 13, 2008)).
• One Fundamental Corporate Governance Question We Face: Can Corporations Be Managed for the Long Term Unless Their Powerful Electorates Also Act and Think Long Term?, in 66 Bus. Law. 1 (2010).
• Why Excessive Risk-Taking Is Not Unexpected, in N.Y. Times DealBook, October 5, 2009.
• Loyalty’s Core Demand: The Defining Role of Good Faith in Corporation Law, in 98 Geo. L.J 629 (2010).
• The Story of “Blasius Industries v. Atlas Corp.”: Keeping The Electoral Path To Takeovers Clear, in Corporate Law Stories, Chapter 9 (2009).
• Breaking the Corporate Governance Logjam in Washington: Some Constructive Thoughts on a Responsible Path Forward, in 63 Bus. Law. 1079 (2008).
• Human Freedom and Two Friedmen: Musings on the Implications of Globalization for the Effective Regulation of Corporate Behavior, in 58 U. Toronto L.J. 241 (2008).
• Toward Common Sense and Common Ground? Reflections on the Shared Interests of Managers and Labor in a More Rational System of Corporate Governance, in 33 J. Corp. L. 1 (2007).
• Toward a True Corporate Republic: A Traditionalist Response to Bebchuk’s Solution for Improving Corporate America, in 119 Harv. L. Rev. 1759 (2006).
• The Delaware Way: How We Do Corporate Law and Some of the New Challenges We (and Europe) Face, in 30 Del. J. Corp. L. 673 (2005).
• When the Existing Economic Order Deserves a Champion: The Enduring Relevance of Martin Lipton’s Vision of the Corporate Law, in 60 Bus. Law. 383 (2005).
• If Corporate Action Is Lawful, Presumably There Are Circumstances in Which It Is Equitable to Take That Action: The Implicit Corollary to the Rule of Schnell v. Chris-Craft, in 60 Bus. Law 877 (2005).
• Warning – Potential Danger Ahead! A Business Judge’s Starting List of Yellow Flags for the Conscientious Independent Director, in Directors & Boards, Third Quarter 2004.
• The New Federalism Of The American Corporate Governance System: Preliminary Reflections Of Two Residents Of One Small State, in 152 U. Pa. L. Rev. 953 (2003).
• “Mediation Only” Filings in the Delaware Court of Chancery: Can New Value Be Added by One of America’s Business Courts?, in 53 Duke L.J. 585 (2003).
• Judge “The Game by the Rules”: An Appreciation of the Judicial Philosophy and Method of Walter K. Stapleton, in 6 Del. L. Rev. 223 (2003).
• Should I Serve? Useful Considerations for Prospective Directors Deciding Whether to Join a Board and Incumbents Pondering Whether to Continue, in Corporate Governance Advisor, Volume 11 Number 1, January/February 2003.
• The Professorial Bear Hug: The ESB Proposal as a Conscious Effort to Make the Delaware Courts Confront the Basic “Just Say No” Question, in 55 Stan. L. Rev. 863 (2002).
• Derivative Impact? Some Early Reflections on the Corporation Law Implications of the Enron Debacle, in 57 Bus. Law. 1371 (2002).
• The Social Responsibility Of Boards Of Directors And Stockholders In Change Of Control Transactions: Is There Any “There” There?, in 75 S. Cal. L. Rev. 1169 (2002).
• The Great Takeover Debate: A Meditation on Bridging the Conceptual Divide, in 69 U. Chi. L. Rev. 1067 (2002).
• Realigning the Standard of Review of Director Due Care With Delaware Public Policy: A Critique of Van Gorkom and It’s Progeny as a Standard of Review Problem, in 96 NW. U. L. REV. 449 (2002).
• The Inescapably Empirical Foundation of the Common Law of Corporations, in 27 Del. J. Corp. L. 499 (2002).
• Delaware’s Corporate-Law System: Is Corporate America Buying an Exquisite Jewel or a Diamond in the Rough–A Response to Kahan & Kamar’s Price Discrimination in the Market for Corporate Law, in 86 Cornell L. Rev. 1257 (2001).
• Function Over Form: A Reassessment of Standards of Review in Delaware Corporation Law, in 56 Bus. Law. 1287 (2001).
• Categorical Confusion: Deal Protection Measures in Stock-for-Stock Merger Agreements, in 56 Bus. Law. 919 (2001).
• My Random Observations on Advocating Before the Government, in 17 Del. Law. 21 (1999).

Select Op-Eds

• What Milton Friedman Missed About Social Inequality, in The New York Times, September 10, 2020.
• Remembering what comes first is more important than ever, in Financial Times, March 27, 2020.
• Why Excessive Risk-Taking Is Not Unexpected, in N.Y. Times Dealbook (October 5, 2009).

Related Posts

2022 Corporate Accountability Forums

Strine: Big 4 Responsible to “Forced Capitalists”

Strine Rocks Stanford