Ahdieh, Robert B. --- "Varieties of Corporate Law-Making: Competition, Preemption, and Federalism" [2012] ELECD 475; in Hill, A. Claire; McDonnell, H. Brett (eds), "Research Handbook on the Economics of Corporate Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Corporate Law

Editor(s): Hill, A. Claire; McDonnell, H. Brett

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449589

Section: Chapter 20

Section Title: Varieties of Corporate Law-Making: Competition, Preemption, and Federalism

Author(s): Ahdieh, Robert B.

Number of pages: 24

Extract:

20. Varieties of corporate law-making: Competition,
preemption, and federalism
Robert B. Ahdieh



1. INTRODUCTION

In few areas have legal scholars focused more closely on the sources of law than in the study
of corporate governance.1 Questions of institutional design thus pervade the literature of
corporate law. Is the scope of directors' and managers' fiduciary obligations best determined
ex ante, by means of positive law, or ex post, in the context of individual disputes (Coffee
1989; Fisch 2000)? If the former, should relevant legislative committees or specialized
administrative agencies akin to the Securities and Exchange Commission lead the way
(Letsou 2009)? If the latter, are such case-by-case assessments best made by courts of general
jurisdiction or judges expert in corporate law (Holland 2009; Sullivan & Conlon 1997)? What
is the appropriate role of self-regulatory entities in corporate law, including exchanges, asso-
ciations of broker-dealers, and various standard-setting organizations (Karmel 2008; Roe
2003)? And what are we to make of hybrid public-private entities such as the Public
Company Accounting Oversight Board (Nagy 2010; Pildes 2009; Romano 2009)?
Most prominent among the questions of institutional design in corporate law, however,
have been those surrounding the allocation of law-making authority as between federal and
state authorities: what is the dynamic by which corporate law will be generated at the state
level, absent federal intervention? What is the normative quality of the resulting rules? When
might a federal role be advisable, if not essential, in the regulation ...