Imagining the Intangible
Andrea M. Matwyshyn
Northeastern University - School of Law; Princeton University - Center for Information Technology Policy; Stanford University - Stanford Law School Center for Internet and Society
September 14, 2009
Delaware Journal of Corporate Law (DJCL), Forthcoming
Existing paradigms in corporate law do not adequately conceptualize today's corporations. Corporate assets have become increasingly intangible, and operational structures have been materially altered in the last two decades by information technology. This article argues in favor of "asset sensitive" governance. Asset sensitivity embodies three important additions to prior corporate law scholarship. First, using developmental psychology theory as its starting point, asset sensitive governance focuses on corporate development using a corporation in a social context as the smallest unit of analysis. Second, because corporations rely on intangible assets that are fragile and relational, asset sensitivity mandates shifting fiduciary duties of good faith and care toward developing and preserving corporate assets: ongoing officer and director oversight is needed, not simply oversight of extraordinary transactions. Third, asset sensitive governance considers change across time—in stakeholders, in the economic environment, and in corporate learning.
Number of Pages in PDF File: 49
Keywords: fiduciary duties, corporate law, governance, intangible assets, technology, intellectual property, trade secrets
JEL Classification: K22
Date posted: December 19, 2009
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