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John is my son. I am committed to caring for him and providing for all his needs. I have been his parent in every way. For example, every day, I wake him up in the morning and help him get dressed and ready to go to school; I help him with his homework when he comes home from school; we have a family dinner together every night, cooked by Roger; and we spend our evenings engaged in a variety of family activities. . . . Roger and I teach John household responsibilities such as yard work, car maintenance and cooking. I discipline him appropriately when he misbehaves. I hug and comfort him when he is upset. I teach him manners, respect and other values that I consider
important. I make sure he is safe. He calls me “Dad.” . . . John is eager to be adopted. For the last couple of years, he has been asking me when his adoption will be complete. . . . I love John deeply and want to protect him. But I cannot protect him unless I can adopt him.

I am sure that there are a number of articles on taxpayer standing, and I probably would not have written this Article if I had not come across a certain comment of the Louisiana Supreme Court while researching another topic. Chief Justice Edward Bermudez for the Louisiana Supreme Court made the following comment in 1887, and it seemed to make so much sense that it became the springboard for a highly critical look at what the Florida Supreme Court has done in recent years with the issue of taxpayer standing:

The first question to be determined is whether the plaintiffs have a standing in court. It is unnecessary to indulge in any discussion of the long-mooted, but now apparently settled, question, whether tax-payers, or even one of them, have a right to contest judicially, as plaintiffs, the validity of municipal ordinances at which they level the charge of illegality for any cause. The settled doctrine, after much contrariety of opinions and considerable vacillation among the courts, seems to be that the right of property holders or taxable inhabitants is recognized
to resort to judicial authority to restrain municipal corporations and their officers from transcending their lawful powers, or violating their legal duties, in any unauthorized mode which will increase the burden of taxation, or otherwise injuriously affect tax-payers and their property; such as an unwarranted appropriation and squandering of corporate funds, an unjustifiable disposition of corporate property, an illegal levy and collection of taxes not due or exigible, etc. We accept this conservative doctrine. The recognition of that privilege is predicated on the principle that it is proper that those who may be immediately affected by the abuse should be armed with the power to interfere directly and at once in their own name, in a mode which affords an easy, prompt, and adequate preventive relief against an evil which might otherwise entail irremediable wrong. The exercise of that right or privilege is the more justified when the law does not vest the state or an officer with the power to seek redress. In such instances the action is regarded as having a public character, and as being a public proceeding, in which the public complains.

On June 27, 2002, the United States Supreme Court handed down the most widely anticipated decision of its 2002 term when it resolved a constitutional question that had been dominating the school-voucher debate for years. In Zelman v. Simmons-Harris, a five-to-four majority held that Cleveland’s voucher program did not violate the Establishment Clause of the United States Constitution. Chief Justice William H. Rehnquist, writing for the majority, reasoned that voucher programs that allow state money to reach religious institutions by way of parental choice are “entirely neutral with respect to religion,” and therefore do not amount to government endorsement of religion.

In 2000, the Florida Department of Motor Vehicles began issuing a “Choose Life” specialty license plate. The plate displays the faces of two cartoon-drawn children with the words “Choose Life” inscribed at the bottom. Shortly thereafter, Louisiana began sending the “Choose Life” message through its own, similar specialty license plate. The Louisiana plate replaced the children’s faces with an image of a brown pelican—the state bird—carrying a baby in a blanket. The same “Choose Life” message is displayed at the bottom. Other states, including Alabama, Mississippi, Oklahoma, and South Carolina, have enacted laws allowing the “Choose Life” plate, and similar laws are in the early stages of development in nearly thirty other states.

In State v. City of Clearwater, the Florida Supreme Court held that an e-mail message sent and received over a public agency’s network server “does not automatically become [a] public record[ ] by virtue of” its automatic storage on the server, and that such a record is not encompassed within the statutory definition of “public records,” if an agency employee claims that the content of the e-mail message is “personal.” The Court also agreed with the Second District Court of Appeal by holding that private or personal e-mail messages fall outside the current definition of “public records” in Florida Statutes Section 119.011(1).

Although the federal securities laws generally have been considered full-disclosure statutes, the United States Securities and Exchange Commission (SEC or the Commission) has been interested in regulating the corporate governance of public corporations to the extent it has any authority to do so. The Securities Exchange Act of 1934 (Exchange Act) established the SEC to administer both the Exchange Act and the earlier Securities Act of 1933 (Securities Act). At that time, responsibility for regulating internal corporate affairs was left generally to state corporation law, state blue sky statutes, and stock-exchange-listing requirements. Further, the SEC did not attempt to regulate the
corporate governance of foreign4 corporations, even if issuers entered the SEC reporting-and-disclosure system. The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) markedly changed the boundary between federal securities law and state corporation law with regard to corporate governance, not only for United States (U.S.) corporations, but also for foreign corporations.

I am delighted to bring my experiences in the Democratic Republic of the Congo to a discussion of comparative corporate governance. My first job after I graduated from law school was at the Securities and Exchange Commission (SEC). Although I soon left that job, I never lost interest in the relationship between corporations and the larger culture. After living in the Congo for two years, I have developed a richer appreciation of the relationships between corporate governance and development based on observations of the policies and practices of businesses in sub-Saharan central Africa.

In this Article, I seek to cross disciplines, to bring the richness of political-science critiques of multinational corporations to legal analyses of corporate responsibility, focusing on sub-Saharan Africa. Teemu Ruskola, another participant at this conference, pointed out in an earlier article that recent work in comparative law has begun to break its isolation from other disciplines. This Article uses scholarship from both inside and outside the law to provide additional perspectives on comparative corporate governance.

Much of the study of comparative corporate governance focuses on differences between the approaches of different nations—e.g., two-tier versus single-tier boards, codetermination versus election of directors solely by the shareholders, shareholder primacy norm versus stakeholder models, and especially in the last few years, wide dispersal of stock holdings versus dominance by large block holders. This Article, however, focuses on a similarity: Around the world, the legal norm is that corporations are managed by, or under the direction of, a board of directors.

The connection between Dr. Seuss’ rhyming stories and the new initiatives by Canadian regulators and lawmakers to implement changes to Canada’s securities law (S-Ox North) reproducing the Sarbanes-Oxley Act’s changes in the United States’ legal regime is not immediately obvious. However there may be one. It often seemed that Dr. Seuss put one word after the other because of its rhyming qualities rather than its contribution to the creation of a coherent story. In the case of S-Ox North, Canadian regulators seem to be more concerned with harmonizing Canada’s securities markets rather than with addressing actual dangers facing market participants. One unanswered question is whether the S-Ox North changes address Canada’s capital structure where, in contrast to the United States, the issuers are predominantly
corporations in which a single shareholder or shareholder group has legal or factual control of the voting shares. Would it have made more sense to look at the recent corporate governance initiatives in the European Union, where the corporations’ capital structure more closely resembles that of Canada? Thus, it remains to be seen whether putting the Canadian corporate fox in S-Ox North is an exercise in rhyming or a coherent change for the better.

The role of financial regulation in influencing the development of corporate governance principles in the United Kingdom (UK) and throughout Europe has become an important policy issue that has received little attention in the literature. To date, most research on corporate governance has addressed issues affecting companies and firms in the nonfinancial sector. Corporate governance regulation in the financial sector traditionally has been regarded as a specialty area with standards and rules fashioned to achieve the overriding objectives of financial regulation—safety and soundness of the financial system, and consumer and investor protection. In the case of banking regulation, the traditional principal–agent model used to analyze the relationship between shareholders, directors, and managers has given way to
broader policy concerns to maintain financial stability and to ensure that banks operate in a way that promotes broader economic growth and enhances shareholder value.