Roberto Tallarita, The Logic of Ratification (from Justinian to Elon Musk), SSRN (Dec. 1, 2025).
Abstract: A controversial case on Elon Musk's $56 billion pay has laid bare our poor under-standing 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 recon-struct the concept of ratification within a general theory of shared power and show why the prevailing vocabulary in corporate law is 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: someone cures a defective act by their representative. Interposition, by contrast, coordinates parties with equal authority but asymmetrical roles. Because no party has superior authority, no one can unilaterally cure defects: decision-making power is structurally shared among multiple parties. Three features distinguish the two models — whether representation is structurally necessary or merely contingent, whether the repre-sented may give binding instructions, and whether the represented may cure the representative's defective acts — and these features are not independent design choices but interlocking corollaries of the basic distinction between equal and une-qual authority. Neither model is inherently superior, but within a chosen model internal coherence has independent value: the features are plausibly economic complements, and mixing them degrades predictability, administrability, and le-gitimacy. Applied to Delaware corporate law, the framework reveals that the shareholder vote in conflicted transactions is not a curative ratification but a step in a multi-party interposition among board, independent directors, shareholders, and the Court of Chancery. 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," as many observers lamented, but a faithful applica-tion of the interpositional architecture of Delaware corporate law.