Imagining the Intangible

49 Pages Posted: 19 Dec 2009  

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

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Date Written: September 14, 2009

Abstract

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.

Keywords: fiduciary duties, corporate law, governance, intangible assets, technology, intellectual property, trade secrets

JEL Classification: K22

Suggested Citation

Matwyshyn, Andrea M., Imagining the Intangible (September 14, 2009). Delaware Journal of Corporate Law (DJCL), Forthcoming. Available at SSRN: https://ssrn.com/abstract=1473590

Andrea M. Matwyshyn (Contact Author)

Northeastern University - School of Law ( email )

400 Huntington Ave.
Boston, MA 02115
United States

Princeton University - Center for Information Technology Policy ( email )

C231A E-Quad
Olden St.
Princeton, NJ 08540
United States

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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