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Litigation Discovery and Corporate Governance: The Missing Story About the 'Genius of American Corporate Law'

Érica Gorga

Getulio Vargas Foundation Law School at Sao Paulo (DIREITO GV)

Michael Halberstam

SUNY Buffalo Law School

March 28, 2013

Columbia Law and Economics Working Paper No. 447

Strikingly absent from the entire corporate governance and corporate litigation debate is a truly unique feature of American civil procedure that deserves special attention but has been overlooked entirely: the modern civil discovery regime. In this paper, we attempt to fill this gap. We argue that modern discovery – first established by the Federal Rules of Civil Procedure in 1938 – has had a profound impact on the evolution of corporate governance and the culture of corporate disclosure in the U.S.

The article shows that (1) litigation discovery, and its threat, have driven, and structured, the process of corporate shareholder litigation, (2) the information generated by discovery has stimulated the development of case law defining shareholder rights and managerial duties, (3) the episodic legal demands for detailed corporate internal information (and the threat of discovery) have induced incremental improvements in corporate governance practices, including more exacting decision procedures, internal monitoring, record-keeping, and disclosure, (4) highly developed, continuously evolving discovery practices have established templates for independent corporate internal investigations by boards and regulators, and (5) discovery has given regulators steady insight into changing corporate internal practices and patterns of wrongdoing to which regulators have responded with broad legal and regulatory changes.

The article concludes that litigation discovery serves, inter alia, as a form of ex post disclosure, which complements and enforces ex ante disclosure under the federal securities laws. These observations have important normative implications for legal transplants and the enforcement debate. The article cautions against legal transplants of U.S. style securities disclosure, aggregate litigation mechanisms, and other enforcement mechanisms, without considering appropriate tools for investigating corporate internal wrongdoing ex post. It also has implications for the empirical literature on U.S. shareholder litigation outcomes.

Number of Pages in PDF File: 81

Keywords: corporate governance, corporate law, securities law, civil procedure, fiduciary duty, discovery, law and economics, financial markets development, comparative law, Shareholder Derivative, Actions

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Date posted: March 26, 2013 ; Last revised: August 7, 2013

Suggested Citation

Gorga, Érica and Halberstam, Michael, Litigation Discovery and Corporate Governance: The Missing Story About the 'Genius of American Corporate Law' (March 28, 2013). Columbia Law and Economics Working Paper No. 447. Available at SSRN: http://ssrn.com/abstract=2239322 or http://dx.doi.org/10.2139/ssrn.2239322

Contact Information

Érica Gorga
Getulio Vargas Foundation Law School at Sao Paulo (DIREITO GV) ( email )
R. Rocha, 233, Bela Vista
São Paulo, 01330-000

Michael Halberstam (Contact Author)
SUNY Buffalo Law School ( email )
Buffalo, NY
United States
1-716-645-5130 (Phone)
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