Hardball recapitalizations have emerged in recent years as an important feature in the landscape of corporate financial distress. Since 2016, borrowers have sought to incur super-senior debt, priming existing first-lien lenders, on the strength of aggressive though plausible interpretations of...

While the rise of dual-class companies — companies with high-vote and low-vote shares — has been widely observed over the past decade, prior commentators have largely overlooked the important “equal treatment” agreements that are embedded in the majority of these dual-class structures....

In this Article, we propose legal reforms to empower shareholders in public corporations. Most shareholders participate in corporate governance in three ways: they vote, they sell, and they sue. We would expand the menu for shareholders in public corporations by enabling them to contract using...

Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions and tailored limitations on the duty of loyalty. Courts...

In this comment on Professors Gilson's and Schwartz' paper “Constraints on private benefits of control: Ex ante control mechanisms versus ex post transaction review,” I consider their proposal to permit contractual arrangements over private benefits of control (PBC) obtained by controlling...

This essay revisits the economic theory of fiduciary law. Nearly two decades have passed since the publication of the seminal economic analyses of fiduciary law by Cooter and Freedman (1991), and by Easterbrook and Fischel (1993), which together have come to underpin the prevailing economic,...

How is basketball like law? In its dependence on rules, interpretation, the symbolic ritualization of violence, the coordination of competition, requirement of the appearance of fairness, both real-time and appellate adjudication, its public visibility and central role in the organization of...

Some positions within an organization wield unusual impact over the entity's success. The decision makers who hire these critical performers face a daunting task: to distinguish among closely comparable finalists in a context where small differences in talent can produce enormous outcome...