A Cooperative Federalism Approach to Shareholder Arbitration

Zachary D. Clopton, Assistant Professor of Law at Cornell Law School, and Verity Winship, Professor of Law at the University of Illinois College of Law, have published “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.  In their article, the authors examine the potential benefits of utilizing a cooperative federalism approach for mandatory shareholder arbitration.

The abstract states:

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.

This and other publications written by Professors Clopton and Winship may be downloaded from the Social Science Research Network.

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