CORPORATE LAW & GOVERNANCE • SECURITIES & FINANCIAL REGULATION
THE DUAL CLASS DILEMMA AND THE SUNSET-CLAUSE SOLUTION
Adrian Brown1J.D., Harvard Law School, 2025 (expected). B.S. in Economics (Finance & Strategic Management), The Wharton School of Business at the University of Pennsylvania, 2022. B.A. (History), The College of Arts and Sciences at the University of Pennsylvania, 2022. I thank Raj Ashar, Sneha Durairaj, Nick Wu, and the HBLR editorial team more broadly, for their invaluable input in reading and providing detailed feedback on numerous drafts of this piece.
The desirability of dual-class stock has been a source of substantial controversy. Some scholars, commentators, and industry participants are wholly in favor of such arrangements. Others are wholly opposed. While neither of these diametrically opposed views leads to a satisfactory solution, a more balanced and productive proposition can be found in the employment of dual-class stock with sunset provisions. Sunset provisions allow for the issuance of dual-class stock while simultaneously providing for conversion to a single class of stock upon the fulfillment of specified criteria. Nonetheless, despite the promise associated with these proposals, further debate surrounds which of the numerous variations of sunset provisions are most attractive. This Column explores the extremes of the dual-class debate in addition to several variations of sunset provisions.
LEGAL & REGULATORY COMPLIANCE • INDUSTRY
BOEING: THE MULTITUDE OF ITS TROUBLES
Erica (Xinhui) Chen2Erica (Xinhui) Chen is a third-year JD student at Harvard Law School, specializing in corporate law and international law. She is a Columnist and Submissions Editor at HBLR.
Boeing, the aviation giant corporation, has been facing a multitude of troubles in recent years. Two accidents of Boeing 737 Max resulted in the deaths of 346 people and revealed the flawed engineering safety control of Boeing. Four years after the deadly accidents, Boeing is still deeply entangled in their aftermath. This Column walks through the multi-faceted troubles Boeing is facing, and briefly explores the organizational causes embedded in Boeing’s culture.
SECURITIES & FINANCIAL REGULATION • CONSUMER PROTECTION
IS YOUR DEBIT CARD THE REASON EVERYTHING IS SO EXPENSIVE?
Robert Pedersen3Robert Pedersen, J.D. Candidate, Harvard Law School. I would like to express my gratitude to the Editorial team for their help in reviewing and editing this Column.
Cost of living was the top financial concern for in the 2024 presidential election. The Department of Justice (DOJ) points to an apolitical culprit for some of the elevated cost of living: your debit card. In its September 2024 civil antitrust lawsuit, the DOJ alleges that Visa has amassed monopolistic power in the debit network industry, thereby stifling competition. Therefore, the suit states, Visa is able to charge higher fees than it would be able to in a competitive market, which result in higher prices for consumers. In its defense, Visa claims that there are myriad sources for consumers to pay for goods, and the suit ignores these competitors. The outcome of this antitrust suit will impact the roughly 100 billion debit transactions completed in the U.S. annually.
CORPORATE LAW & GOVERNANCE • ENVIRONMENTAL, SOCIAL, & GOVERNANCE
ACTIVISM ON HOLD: THE LEGAL BARRIERS TO SHAREHOLDER IMPACT LITIGATION
Dennis Ronel4Dennis Ronel is a second-year student at Harvard Law School and serves as a Senior Editor and Columnist for the Harvard Business Law Review. He would like to thank Christopher Kies, Louis Noirault, and Professor Mariana Pargendler for their guidance and support in shap- ing the ideas for this paper.
In recent years, shareholder activism in the United States has surged, driven by the rise of Environmental, Social, and Governance (ESG) policies and heightened corporate stewardship. This Column examines the challenges shareholder activists face when seeking to hold managers accountable through litigation, highlighting three key obstacles: the entrenched shareholder primacy doctrine, the protective nature of the business judgment rule, and the stringent evidentiary requirements under Delaware law. Despite the push for a broader stakeholder governance perspective, Delaware courts have historically favored management’s authority, limiting the effectiveness of legal actions aimed at promoting progressive corporate change. I argue that, given these barriers, shareholder activists should reconsider their reliance on litigation and instead focus on reshaping corporate governance norms from within. There are indeed effective avenues for promoting corporate change, but this Column posits that litigation is not one of them.
TECHNOLOGY & INNOVATION • POLITICS & ECONOMICS
THICKER THAN ARTIFICIAL INTELLIGENCE
Olivia Schwartz5Olivia Schwartz is currently a 2L at Harvard Law School. This summer, Olivia will be working at Simpson Thacher & Bartlett. The author would like to thank the Harvard Business Law Review editors and staff for their assistance with this Column.
Saudi Arabia and the United States have a strong history together. As Saudi Arabia implements Vision 2030, it may do so in a way that jeopardizes this longstanding relationship. Saudi Arabia is in the midst of creating an artificial intelligence hub in Saudi Arabia. However, with continuing U.S.-People’s Republic of China (PRC) tensions, Saudi Arabia will likely have to choose between the United States and the People’s Republic of China, as intimated by Executive Order 14105 and the Foreign Investment Risk Review Modernization Act of 2018. While Saudi Arabia has announced that it would divest from Chinese AI if the United States required it to, it also has a history of hedging with the country that will help it accomplish its security and economic goals. This Column predicts that Saudi Arabia will abandon the People’s Republic of China’s AI to appease the United States.
LEGAL & REGULATORY COMPLIANCE
LITIGATION FINANCE UNDER SCRUTINY: NAVIGATING MANDATORY DISCLOSURE AND RISKS OF FUNDER INFLUENCE
Cosimo L. Fabrizio & Harshit Patel6Cosimo L. Fabrizio is currently a 3L at Harvard Law School. Following graduation, Cosimo will clerk for Judge Barrington D. Parker Jr. on the Second Circuit and join Wachtell Lipton, Rosen & Katz as a Corporate Associate. Harshit Patel is also a 3L at Harvard Law School. Following graduation, Harshit will join Davis Polk & Wardwell as a Mergers & Acquisitions associate. The authors would like to thank former Chief Justice Leo Strine and the editors of the Harvard Business Law Review for their assistance with this Column.
Though litigation finance is a growing industry, it remains unfamiliar to many within the legal community and largely unregulated in the United States. However, policymakers are increasingly raising concerns about the industry. Part I provides an overview of litigation finance by outlining its current practice and historical development. Part II surveys the current regulatory landscape for litigation financing in the U.S. and examines the key concerns motivating various policymakers, namely the concern for undue funder influence. Through a case study of the Sysco-Burford dispute, Part III illustrates a more nuanced story of the role of litigation financing in legal disputes. Part IV examines the potential drawbacks of broad disclosure requirements for litigation finance, arguing that such mandates may offer limited benefits while imposing costs that could deter legitimate funding and increase litigation complexity. This piece concludes by highlighting the importance of tailoring regulations to address well-defined risks without unnecessarily stifling innovation or limiting access to capital.
BANKING
RULE IN GIBBS: THE CONTINUATION OF TERRITORIALISM BY OTHER MEANS?
Louis Noirault7LL.M. 2025, Harvard Law School, Master’s in Law and Finance 2024, Sciences Po Law School, Bachelor’s of Art 2020, Sciences Po. I am grateful to Yun Kei Chow, Christopher Kies, Felipe Gomes De Almeida Albuquerque, and the Harvard Business Law Review editors for their help and insightful comments. All errors are mine.
The 19th-century Rule in Gibbs has recently been given a new life by the England and Wales High Court: the Court held that a debt can only be discharged under the law chosen by the parties to govern the contract. This principle strikes at the core of the debate over which jurisdiction should be in charge of the insolvency proceedings of international companies. Universalists argue in favor of centralizing proceedings in one single jurisdiction, while territorialists believe that each jurisdiction should govern the assets located in its territory. This Column argues that the Rule in Gibbs has been mistakenly lumped together with territorialism. It questions both the efficiency and the moral rationales for favoring universalism over the Rule in Gibbs. In doing so, it opens the way for the Rule in Gibbs to be given more serious consideration by scholars and policymakers in this normative debate.
CONSUMER PROTECTION
IS FEDNOW THE SOLUTION, A SOLUTION, OR NO SOLUTION
Muhui Shi8Visiting Researcher, Harvard Law School; SJD candidate, University of Michigan Law School. I would like to express my heartfelt gratitude to Professors Howell Jackson, John Pottow, and Jeffery Zhang for their invaluable guidance and insightful advice. I am also deeply appreciative of Professors Eric Christiansen and Julian Arato for their unwavering support and warm encouragement.
The new FedNow system promised to restore the U.S. payment system to its rightful place with once-in-a-generation innovation. Against popular belief, this paper, based on recent data on FedNow’s operation, argues that this proclaimed game-changer is an empty promise. The failure of FedNow—going beyond structural designs, consumer protection, or governance level—was rooted in the Fed’s involvement. The Fed’s involvement in the real-time retail payment market was both unnecessary and poorly timed. FedNow, offering almost identical service to its private counterpart, RTP, is now stuck in an awkward place; it should have been implemented before RTP entered the market or waited for RTP to fully develop the market.
BANKING
BASEL III ENDGAME: SHOULD WE STRENGTHEN CAPITAL REQUIREMENTS FOR BANKS?
Nick Wu9J.D. Candidate (2026), Harvard Law School. I am deeply thankful for the patience of my friends and their valuable feedback during the drafting process.
Policymakers, agencies such as the Federal Reserve and other regulators, and financial institutions all have a vested interest in the health of the American financial system. And the health of the banking system largely depends on the level of bank capital. Therefore, since the Global Financial Crisis of 2008, regulators have been working on a supervisory framework—aptly named “Basel III endgame”—that would strengthen capital requirements for banks. An initial proposal was released in July 2023, followed by a re-proposal in September 2024. Both have generated a lot of discourse and vehement support and opposition. Supporters argue that strengthening capital requirements would mitigate risk and help prevent financial panics, but critics are quick to point out that doing so would hurt banks’ profitability while raising borrowing costs. After analyzing policy arguments on both sides, this piece will make a normative argument that Basel III endgame should be further rolled back and will also briefly explore the future (or lack thereof) of Basel III endgame under President Trump’s second administration.
CORPORATE LAW & GOVERNANCE
SOAP OPERA SUMMER: FIVE PREDICTIONS ABOUT DELAWARE LAW’S RESPONSE TO NEW DGCL 122(18)
Mark Lebovitch10Adjunct Professor of Law, University of Pennsylvania Carey Law School and Lecturer in Law, Columbia Law School. Thanks to Professors Anat Alon-Beck, Jill Fisch, Elizabeth Pollman, Jesse Fried, Edward Rock Marcel Kahan, Emilio Catan, Robert Bishop and George Georgiev, and practitioner Joel Fleming, for their comments and guidance. Before retiring from the practice of law in September 2023, I led the prosecution of several of the cases cited herein. Comments are welcome and appreciated, and can be sent to me at marklebo@law.upenn.edu.
Predictability and stability are often cited as leading reasons for why Delaware’s corporate law system dominates the competition for domiciling business entities. However, the first half of 2024 was anything but predictable and stable for Delaware’s legal community. Rarely has an amendment to the Delaware General Corporation Law (“DGCL”) triggered as much public debate as SB 313, which became effective as of August 1, 2024. Normally staid legal policy discussions triggered high passions to declare which was the greater risk to Delaware’s standing as the global leader in corporate law: a few recent judicial opinions that would have altered certain market practices or the legislative amendment seeking to nullify those opinions.