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Professor Bernard Black and coauthors, for example, surveyed procedural rules that affect the adjudication of directorial and managerial liability claims in the United States, Russia, France, Germany, Austria, Korea, and the United Kingdom.But Black and coauthors mostly confine their survey to analyzing who can file a claim, what the available filing mechanisms are, and how attorneys’ fees and litigation costs are allocated among the litigants.
Fox, Similarly, academic and jurisprudential debates in the corporate law literature about exporting U.S.-style aggregate litigation to European and other countries have concentrated on such rules as shareholder standing requirements, fee shifting, contingency fees, and class action rules.But the enforcement debate has ignored how private litigants might obtain information about corporate internal wrongdoing in civil law systems in Europe, Asia, or Latin America.referencing discovery sporadically, but never discussing or comparing civil law judicial fact investigation with party-on-party discovery in the United States nor noting the complete absence of U.Strikingly absent from the entire corporate governance and corporate litigation debate is a unique feature of American civil procedure that deserves special attention: the modern civil discovery regime. 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 shareholder litigation, corporate governance, and the culture of corporate disclosure in the United States.This 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, recordkeeping, 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.
Among other things, this 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 , inspired an international debate on corporate governance and influenced the research agendas of law, economics, and finance scholars for over two decades.Romano’s book offered an explanation for the curious American exceptionalism in financial markets development based on the counterintuitive theory that the competition among states for incorporations generated a “race to the top” in state legal regimes governing corporate internal affairs. The dominant view was, and in many areas of law still is, that regulatory competition among jurisdictions creates a “race to the bottom” in regulatory standards. Means in The genius of American corporate law, according to Professor Romano, relied on the consequences of federalism for the evolution of American corporate and securities laws while much less successful institutional frameworks were implemented in other countries.The “race to the bottom” thesis in corporate law was advanced by Adolph A. Ever since Romano first articulated her theory of the genius of American corporate law, researchers have attempted to analyze, identify, and compare across national legal regimes and economies precisely what legal variables have been responsible for resolving (or failing to resolve, as it were) the agency-cost problems between shareholders and managers inherent in the structure of large public firms.This comparative enterprise has been highly consequential in that the legal variables so identified have, in turn, been deemed “preconditions” to the highly developed capital markets in the United States that other nations across Europe, Asia, and Latin America ought to emulate. amount to an interlocking set of institutions that constitute ‘shareholder capitalism,’ American-style that [U. academics] have been aggressively promoting throughout the world”).1233, 1234 (2002) (arguing that “the core beliefs and practices that have underpinned the academic analysis of corporate law and governance . It has also revisited various aspects of derivative and class action litigation from a more comparative perspective with the express intent of paying closer attention to procedure.