The recent Fleming case from Oklahoma has focused attention on the power of stockholders to exercise direct influence over corporate policy -- including, notably, takeover defenses -- by means of adopting by-laws, without need for approval by the board of directors. Apart from Fleming, state law (particularly Delaware law) is remarkably undeveloped on this subject, and particularly in regard to two questions: first, when do stockholder-adopted by-laws impermissibly interfere with the general statutory allocation of managerial authority to the board of directors? and second, to what extent can the board of directors repeal or amend a stockholder-adopted by-law directly governing corporate policy?
This article examines these two questions from several perspectives. First, the article engages in various approaches to construing the governing statutes, and concludes that under Delaware law the general authority conferred upon stockholders to amend by-laws does not confer general authority to control matters as to which authority is otherwise vested in the board of directors. The author criticizes efforts to delineate areas of "fundamental" or "general" importance in which stockholders may in effect legislate directly.
Next, the article reviews arguments of policy, and draws an analogy between stockholder-adopted by-laws and ballot initiative legislation in the political arena. Drawing on literature on the latter subject, the author concludes that while direct corporate democracy is less likely to present the kind of pathologies that have been observed in direct political democracy, the concerns are sufficiently present that encouraging direct stockholder democracy should be viewed with caution.
Finally, the article concludes that under Delaware law (although probably not elsewhere), directors may amend or repeal stockholder-adopted by-laws, subject to fiduciary limitations. Again, this conclusion draws on the analogy to ballot initiative legislation, where legislatures have been found empowered, in the absence of constitutional provision to the contrary, to revise or repeal direct legislation.
Lawrence A. Hamermesh. "Corporate Democracy and Stockholder-Adopted By-Laws: Taking Back the Street?" Tulane Law Review
Vol. 73 (1998)
Available at: http://works.bepress.com/lawrence_hamermesh/16/