This Article critically analyzes News Corp.’s reincorporation in Delaware against the backdrop of two major contemporary corporate governance debates relating to shareholder empowerment and convergence theory. Legal scholars opposing greater shareholder power often argue that the lack of shareholder participatory rights under U.S. law provides evidence that such rights are neither desired nor valued by investors. Also, an underlying assumption of convergence theory is that a unified “Anglo-American” model of shareholder protection exists, suggesting that shareholder rights are similarly restricted throughout the common law world.

This Article challenges both these assumptions by means of a detailed case study of News Corp.’s migration from Australia to Delaware. News Corp.’s original reincorporation proposal prompted a revolt by a number of institutional investors, who argued that a move to Delaware would strengthen managerial power and reduce shareholder rights. The institutional investors were particularly concerned about the effect of the move on the ability of the board of directors to adopt anti-takeover mechanisms, such as poison pills, which are not generally permissible under Australian law.

This Article places News Corp.’s reincorporation in Delaware within the framework of contemporary corporate governance theory and debate. It also uses the reincorporation to highlight a number of significant, but underappreciated, differences between U.S. corporate law and the law of other common law jurisdictions. Specifically, this Article shows how News Corp.’s migration from Australia to Delaware effectively subverted shareholder rights. The News Corp. reincorporation, in sum, has significant implications for Delaware law generally, and for current shareholder empowerment developments in the United States.

There are several kinds of norms, and this variety can lead to spirited debate about the best norm to employ for the regulation of a particular activity. Should the norm be mandatory or aspirational? A rule or a standard? One important area in which norm-choice has come to the fore is the American Bar Association’s oversight of pro bono work. Currently, the organization utilizes an aspirational norm recommending that lawyers perform at least fifty pro bono hours annually, but there is pressure to adopt some sort of mandatory rubric. Inspired by this debate, we have designed and implemented an experiment that provides some insight into the effective design of norms for charitable giving. Our results challenge the conventional wisdom that the implementation of a mandatory framework will result in an overall increase in giving. These findings may be applicable not only to the pro bono debate but also to general legislative strategy with respect to inducement of charitable behavior.

Prior empirical studies that have analyzed the effect of norm characteristics on behavior have typically pitted rules against standards. We placed these two norm-content classes in combination with two kinds of operators: aspirational and mandatory. Thus, we tested four norm combinations, each one representative of norms in important rubrics such as legal systems and codes of ethics. Through this more complex model, our results contribute to the literature on two psychological phenomena, motivation crowding and anchoring, that affect the way people respond to norms.

We found that, in the context of inducing charitable behavior, it is more effective to use an aspirational rather than a mandatory operator when the operator is conjoined with moral norm-content. Additionally, we found that the effectiveness of norms that utilize mandatory operators is contingent upon the kind of norm-content that they employ, whether moral or bright-line, and that this is not true with norms utilizing aspirational operators. Lastly, the deficit in effectiveness that arises from using mandatory operators in conjunction with moral norm-content can be overcome by switching to bright-line norm-content, but only if the minimums are set very high. Our results support the view that norms can induce crowding out, leading to less charitable conduct than would have occurred under an aspirational system. They also illustrate a context in which aspirational norms are resistant to anchoring effects.

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys’ compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys’ fees, and (4) judicial reduction of non-lead lawyers’ fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges’ independence by involving them heavily on the plaintiffs’ side and making them responsible for plaintiffs’ success. They allocate moneys in ways that likely overcompensate some attorneys and undercompensate others, with predictable impacts on service levels. The procedures used in Guidant, Vioxx, and Zyprexa also lack needed grounding in substantive law because the common fund doctrine, which supports fee awards in class actions, does not apply in MDLs. Academics have not previously noted these shortcomings; this is the first scholarly assessment of the quasi-class action approach.

This Article proposes an alternative method of MDL management. It recommends implementation of a default rule that would vest control of an MDL in a plaintiffs’ management committee ("PMC") composed of the attorney or attorney-group with the most valuable client inventory, as determined objectively by the trial judge. The PMC, which would have a large interest in the success of an MDL, would then select and retain other lawyers to perform common benefit work ("CBW") for all claimants. The PMC would also monitor the other lawyers’ performance. The new approach would thus use micro-incentives, rather than judicial control and oversight, as the means for organizing the production of CBW in MDLs.

This proposal would be a default rule that would govern in the absence of an alternative agreement by or among the PMC and other lawyers with cases in an MDL. In other words, lawyers would be free to create a governance structure for an MDL knowing that the default rule would apply if they were unable to come to terms. This would permit lawyers to design governance structures superior to that created by the default rule. The court would stand back from the process, exercising only a limited backup authority to prevent abuses. The proposal would restore judicial independence; preserve lawyers’ loyalties; provide the requisite legal foundation for fee awards; and encourage fairer, more efficient, and more appropriate representation of claimants in MDLs.

When an unresolved state-law question arises in federal court, the court may certify it to the relevant state court. The practice of certification from one court to another has been widely adopted and has been touted as “help[ing] build a cooperative judicial federalism.” This Article proposes that states promote cooperative interbranch federalism by allowing federal agencies to certify unresolved state-law questions to state courts. It draws on Delaware’s recent expansion of potential certifying entities to the Securities and Exchange Commission to argue that this innovation should be extended to other states and other federal agencies.

Certification from federal agencies to state courts promotes cooperative interbranch federalism by preserving state control over certain primary conduct and allocating decisionmaking according to institutional expertise. Certification allows an agency that is expert in a specialized federal statutory and regulatory scheme to certify questions to a court that is expert in state law. Because the proposed certification procedure is from an agency, its effect depends on the availability of judicial review and the type of agency activity—in particular, whether the agency is engaged in formal adjudication or informal action. Federal agency certification has the potential to speed resolution of state-law questions when a federal agency acts through reviewable adjudication. The need for certification is particularly acute, however, when judicial review is unavailable and little recourse may otherwise be had for interpretations of state law that the state may ultimately reject.