Entering the ongoing debate in this venue between Professors Macey and Grundfest—two individuals of profound intellect I greatly admire and respect—is doubtlessly foolish on my part. Nonetheless, I have been known to abandon caution frequently, and see no reason to change at this stage of my professional existence. The focal point of the debate is an important and thoughtful Paper co-authored by SEC Commissioner Dan Gallagher and Stanford Law Professor (and former SEC Commissioner) Joe Grundfest (a summary of the Paper is available here). The Paper discusses the obligation of proponents of shareholder proposals to avoid misleading shareholders when explaining the reasons those shareholders should support their proposals.
In commenting upon the Gallagher/Grundfest Paper, Professor Macey seemingly assumes the mantle of “Harvard Protector” (his original post criticizing the Paper is available here) an unusual role—to say the least—for a Yale Law Professor (and former Administrator) of distinction. Perhaps, he also disputes Professor Grundfest’s response to his initial criticism of the Paper, which exposits legal principles (the response is available here) that contest some of Professor Macey’s initial commentary. In his latest reply (available here), Professor Macey, on occasion, appears to be looking a gift horse in the mouth.
If, as Professor Macey contends, Professor Grundfest’s response to Professor Macey’s original posting contains concessions—a characterization I’m not certain Professor Grundfest would accept—or if Professor Macey is correct that Professor Grundfest has retreated from certain positions previously espoused in the Gallagher/Grundfest Paper—something I am certain Professor Grundfest would not concede—Professor Macey’s comments pointing out these concessions and retreats are superfluous. Surely those of us interested (and, dare I say, sophisticated) enough to read the Harvard Law School Forum’s postings on Corporate Governance and Financial Regulation don’t require Professor Macey (or anyone else) to tell us what concessions or retreats Professor Grundfest has embraced! Professor Macey also seems reluctant to acknowledge that there are considerable points of commonality between the two professors on many substantive issues raised and discussed in the Gallagher/Grundfest Paper.
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