Imagining the Intangible

49 Pages Posted: 19 Dec 2009

See all articles by Andrea M. Matwyshyn

Andrea M. Matwyshyn

Penn State Law; Penn State Engineering; Stanford University - Stanford Law School Center for Internet and Society

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Date Written: September 14, 2009


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:

Andrea M. Matwyshyn (Contact Author)

Penn State Law ( email )

150 S College St
Carlisle, PA 17013
United States

Penn State Engineering ( email )

101 Hammond Building
University Park, PA 16802
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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