ABSTRACT
A controversial case on Elon Musk’s $56 billion pay has laid bare our poor understanding of ratification in corporate law and possibly in other legal domains. What exactly is ratification and what is its internal logic? In this Article, I reconstruct the concept of ratification within a general theory of shared power and show why the prevailing vocabulary in corporate law is systematically misleading. I argue that what courts call shareholder ratification is not ratification at all, but a different form of shared legal power that I call interposition, a term of art borrowed from Roman law. Ratification is delegation that survives a misstep: a represented party who holds superior authority cures a defective act by a representative. Interposition, by contrast, coordinates parties who have equal authority but asymmetrical roles. Because no party has superior authority, no one can unilaterally cure defects; the decisional structure is fixed by a higher-order arrangement (a constitution, corporate charter, common law, etc) rather than by the represented’s will. Applying this framework, I argue that Delaware’s so-called shareholder ratification doctrine is best understood as a complex interposition among board, independent directors, shareholders, minority shareholders, and the Court of Chancery in making substantive fairness determinations. On this view, the Court of Chancery’s refusal to treat a post-trial shareholder vote on Musk’s pay as a curative ratification is not an affront to ‘shareholder will’ but a faithful application of the interpositional architecture of Delaware corporate law.
Tallarita, Roberto, The Logic of Ratification (from Justinian to Elon Musk) (November 20, 2025), Harvard Public Law Working Paper Forthcoming.
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