A Cooperative Federalism Approach to Shareholder Arbitration

128 Yale L.J.F. 169 (2018). Originally published by The Yale Law Journal Company, Incorporated in the Yale Law Journal Forum

University of Illinois College of Law Legal Studies Research Paper No. 18-29

Cornell Legal Studies Research Paper No. 18-42

17 Pages Posted: 24 Jul 2018 Last revised: 11 Oct 2018

Date Written: July 9, 2018

Abstract

Arbitration dominates private law across an ever-expanding range of fields. Its latest target, however, may not be a new field as much as a new form: mandatory arbitration provisions built into corporate charters and bylaws. Recent developments in corporate law coupled with signals from the Securities and Exchange Commission suggest that regulators may be newly receptive to shareholder arbitration. What they do next may have dramatic consequences for whether and how corporate and securities laws are enforced.

The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. In particular, the overlapping authority of federal and state actors with respect to corporate law calls for approaches that sound in cooperative federalism. Yet cooperative-federalist approaches have been absent from recent debates about shareholder arbitration. This Essay explains why cooperative federalism is a natural fit for addressing these issues. Moreover, we marshal specific examples of cooperative solutions in this area that could help frame federal-state coordination going forward. Such a cooperative response would avoid unnecessary federal-state conflict and allow policymakers to approach shareholder arbitration with expertise, accountability, and mutual respect.

Keywords: arbitration, federalism, corporate law, securities, derivative suit, class action, FAA, SEC, litigation, procedure, delaware

Suggested Citation

Clopton, Zachary D. and Winship, Verity, A Cooperative Federalism Approach to Shareholder Arbitration (July 9, 2018). 128 Yale L.J.F. 169 (2018). Originally published by The Yale Law Journal Company, Incorporated in the Yale Law Journal Forum; University of Illinois College of Law Legal Studies Research Paper No. 18-29; Cornell Legal Studies Research Paper No. 18-42. Available at SSRN: https://ssrn.com/abstract=3210841

Zachary D. Clopton (Contact Author)

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Verity Winship

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-244-8161 (Phone)

HOME PAGE: http://law.illinois.edu/faculty-research/faculty-profiles/verity-winship/

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