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Brennan Lecture

In this speech, delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, the Honorable Jack B. Jacobs demonstrates that state corporate law sometimes acquires an extraterritorial reach. The federalist model of corporation law assumes that each state’s law only reaches to that state’s border, but reality has diverged from that model through state anti-takeover statutes, the internal affairs doctrine, and state “corporate outreach” statutes that impose internal governance requirements on companies incorporated in other states. Anti-takeover statutes are essentially grounded upon the internal affairs doctrine, which holds that such affairs are governed by a company’s state of incorporation. But the corporate outreach statutes attempt to supersede the law of the state of incorporation, exposing companies to conflicting internal governance requirements. The Supreme Court could resolve this conflict by deeming the internal affairs doctrine either a choice-of-law rule or a rule of constitutional law. The former choice could lead to economic disruption, while the latter would increase interstate competition for incorporation business and sustain the current diversity of legal choices available to corporations.