Jeremy Bentham – Present But Not Voting

by Allen Matkins

In Monday’s post, I quoted Justice Antonin Scalia and Bryan Garner quoting Jeremy Bentham.  Although Bentham studied, wrote about and criticized the law, he did not practice it.  He is most famously known for his association with the doctrine of utilitarianism.  As it turns out, his mortal remains illustrate an important corporate governance principle – abstention.

Jeremy Bentham died on June 6, 1832.  After his death, an “auto-icon” was created using his skeleton, hair, clothes and a wax head.  The auto-icon was placed in a wooden box that is on display at the end of the South Cloisters of the University College London.  On the centenial and sesquicentennial of the UCL, the auto-icon was taken to the meetings of the College Council.  The minutes of these meetings are said to reflect Mr. Bentham’s attendance as “present, but not voting”.  In other words, Bentham abstained.

As I’ve written before, an abstention is not the same as its more fashionable cousin, the “withhold vote”.  I find the term “withhold vote” to be profoundly misleading because a “withhold vote” is not a vote but the withholding of authority from a proxy to vote.  A shareholder may withhold authority to vote entirely by not executing a proxy or she may confer authority on a proxy to vote on some, but not all matters brought before a meeting.  Whether a proxy holding limited authority counts toward a quorum depends on state law.  In contrast, an abstention does not necessarily involve a proxy.  A shareholder present at a meeting may simply choose not to vote on one or more matters.  The shareholder is counted for quorum purposes and her abstention may or may not affect the outcome depending upon the particular voting rule applied. 

For example, an abstention will have the effect of a “no” vote if “approval by the outstanding shares” (Cal. Corp. Code § 152) is required.  If, on the other hand, “approval by shareholders” (Cal. Corp. Code § 153) is required, then an abstention may have an impact.   Approval by (or of) the shareholders requires the affirmative vote of a majority of shares represented and voting at a duly held meeting at which a quorum is present.  The statute adds an extra requirement, however, that the number of affirmative votes cast must constitute at least a majority of the required quorum.

If, for example, a California corporation has 100 shares issued and outstanding, the required quorum (unless otherwise provided in the articles) is 51 shares.  If 51 shares were present at a meeting and 25 shares were voted for, 24 shares were voted against, and 2 shares abstained, the approval of the shareholders has not been obtained even though a quorum was present and more votes were cast for than against the proposal.  The reason is that the for votes do not constitute at lease a majority of the required quorum.

For more on Jeremy Bentham and photograph of the auto-icon, see The Bentham Project.

What’s In a Name?  The New Department of Business Oversight

Juliet Capulet didn’t put a lot of stake in names and was by all accounts eager to jettison Capulet for Montague.  Soon, the Department of Corporation and the Department of Financial Institutions will have a new name – the Department of Business Oversight.  If you’re interested in what all this means, please read the article that I recently co-wrote with Jill Kovar at Aldrich, Bonnefin & Moore, PLC.  You can find it in Issue No. 3 of the Business Law News, which is available free to members of the Business Law Section of the California State Bar. 

Remembering Isaiah

Today, is the anniversary of the death of U.S. Supreme Court Justice Louis D. Brandeis.  Although Justice Brandeis hasn’t been on the bench in more than seven decades, his legacy is enormous and continuing.  In the presidential debates earlier this week, I noted that Governor Romney echoed Justice Brandeis by referring to the states as laboratories:

It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

New State Ice Co. V. Liebman, 285 U.S. 262, 311 (1932).


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Allen Matkins | Attorney Advertising

Written by:

Allen Matkins

Allen Matkins on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.