Intruders in the Boardroom: The Case of Constituency Directors

Under current fiduciary rules, directors who fail to maintain an undivided loyalty to common shareholders are essentially “intruders,” exposed to shareholder retribution and liability for breach of fiduciary duty. This Article argues that the increasing appointment of “constituency directors” has made the fiduciary principle of undivided loyalty to the common shareholders both outdated and normatively undesirable. A “constituency director” is a director designated to the board by a particular constituency (or “sponsor”). These constituency directors are generally appointed to advocate for investors who are not common shareholders, such as preferred shareholders, creditors, unions, and even the federal government. Contrary to conventional scholarly accounts, these kinds of investors (non-common equity, or “NCE,” investors) cannot always fully protect their interests through contracting alone. Thus, constituency directors are appointed to gain access to the added safeguards that only direct board advocacy can provide. By remedying this condition of “contractual failure,” constituency directors make NCE investments worth undertaking where they otherwise might not be. This analysis suggests that the liability constituency directors face under current fiduciary rules may reduce a corporation’s access to important sources of capital. Hence, there is a normative case to be made for turning a director’s obligation of undivided loyalty to the common shareholders into a default rule. This reform would allow constituency directors to properly advocate for their sponsors, bridging the gap between corporate practice and corporate law, to the benefit of all involved parties and society as a whole

Rethinking Chutes: Incentives, Investments, and Innovation

Eighty-two percent of public firms have golden parachutes (or “chutes”) under which CEOs and senior officers may be paid tens of millions of dollars upon their employer’s change in control. What justifies such extraordinary payouts? Much of the conventional analysis views chutes as excessive compensation granted by captured boards, focusing on the payouts that occur following a takeover. Those explanations, if they ever were complete, miss the mark today. This Article demonstrates, theoretically and empirically, that chutes are less relevant to a firm during a takeover than they are before a takeover, particularly in relation to firms that invest in innovation. Chutes assure\ud managers of realizing the long-term value of their work, even if the firm is later acquired. As a result, managers are more likely to make specific investments in innovation whose value may not be realized for some time—but which are essential to sustaining long-term performance. Moreover, when granted, a chute’s expected cost is a small fraction of what may be paid, reflecting the real likelihood a payment will never be made. That cost is more than offset by the value of the specific investments in innovation that managers are now more likely to make. Consequently, granting chutes tends to increase the value of innovative firms—promoting, rather than jeopardizing, shareholder interests\ud in such firms.\ud Nevertheless, an analysis of chutes as a valuable tool in promoting innovation is largely missing from the corporate law scholarship, with important consequences. Two, in particular, are the negative view of proxy advisors on chutes, and recent federal Say-on-Golden-Parachute legislation that mandates certain types of disclosure regarding chutes. We recommend changes that properly reflect the low expected cost of chutes and their positive effect on innovation

Economic Challenges for the Law of Contract

This Essay introduces general equilibrium theory (GET) and mechanism design theory (MD) in a general sense (rather than in piece meal applications) to the study of contract law. As a positive matter, this introduction reveals three understudied areas: (i) when the equilibrium contract is individually rational but collectively irrational; (ii) the role of courts in market completion projects; and (iii) the implementation of renegotiation- proof mechanisms. As a normative matter, incorporating GET and MD insights into the study of contract law supports broad freedom of contract and formalist interpretative practices. Lastly, this Essay points to several areas for future research, highlighting the central role of law and economics analysis in identifying feasible mechanism design programs for contract law

The Shareholder Value of Empowered Boards

In the last decade, the balance of power between shareholders and boards has shifted dramatically. Changes in both the marketplace and the legal landscape governing it have turned the call for empowered shareholders into a new reality. Correspondingly, the authority that boards of directors have historically held in U.S. corporate law has been eroded. Empirical studies associating staggered boards with lower firm value have been interpreted to favor this shift of authority, supporting the view that protecting boards from shareholder pressure is detrimental to shareholder interests. This Article presents new empirical evidence on staggered boards that not only exposes the limitations of prior empirical studies, but also, and more importantly, suggests the opposite conclusion. Employing a unique and comprehensive dataset covering thirty-four years of board staggering and destaggering decisions—from 1978 to 2011—we show that staggered boards are associated with a statistically and economically significant increase in firm value. In light of these novel empirical results, we then show theoretically that a corporate model with staggered boards emerges as a rational institutional response to market imperfections that are more complex and more significant than shareholder advocates have realized. Boards that retain their historical authority—empowered boards—benefit, rather than hurt, shareholders. This Article concludes with a normative proposal to revitalize the authority of U.S. boards.

Shareholder Collaboration

Two models of the firm dominate corporate law. Under the management-power model, decision-making power rests primarily with corporate insiders (officers and directors). The competing shareholder-power model defends increased shareholder power to limit managerial authority. Both models view insiders and shareholders as engaged in a competitive struggle for corporate power in which corporate law functions to promote operational efficiency while limiting managerial agency costs. As scholars and judges continue to debate the appropriate balance of power between shareholders and insiders, corporate practice has moved on. Increasingly, the insider–shareholder dynamic is collaborative, not competitive. This Article traces the development of insider–shareholder collaboration, explaining how collaboration, which originated in the venture capital context, has expanded into public companies. This expansion, the Article argues, is due to the increasing importance of partial information problems that, for many firms, have grown costlier than agency costs. Using insights from the economics of information, the Article shows how collaboration promotes the production and aggregation of information from insiders and shareholders, adding value that is lost under unilateral decision-making. Modern corporate law and corporate governance are poorly prepared to handle insider–shareholder collaboration, however. The collaborative process places novel demands on traditional obligations of confidentiality and fiduciary duty as well as complicating the meaning of conflicts of interest. These concepts must be rethought to enable productive collaboration while limiting the potential that the collaborative process can be manipulated to permit collusive behavior or self-dealing

Corporate Law and the Myth of Efficient Market Control

In recent times, there has been an unprecedented shift in power from managers to shareholders, a shift that realizes the long-held theoretical aspiration of market control of the corporation. This Article subjects the market control paradigm to comprehensive economic examination and finds it wanting. The market control paradigm relies on a narrow economic model that focuses on one problem only: management agency costs. With the rise of shareholder power, we need a wider lens that also takes in market prices, investor incentives, and information asymmetries. General equilibrium (GE) theory provides that lens. Several lessons follow from reference to this higher-order economic theory. First, the presumption that markets can efficiently coordinate the economy is unfounded, unless one relies on heroic assumptions. Second, GE shows that shareholders suffer from misaligned incentives, undercutting any normative program grounded in shareholder empowerment. The third lesson is negative, as there are no economically founded instructions for addressing the trade-offs between agency costs reduction and market inefficiency implied by the new shareholder corporation. Policy implications also follow. Given the lack of a clear normative template, only private ordering can be counted on to address each corporation\u27s specifc tradeoffs between agency costs and market inefficiency. This conclusion leads to an endorsement of Delaware\u27s equitable adjudication system, the flexibility of which is well suited to policing the bargaining process between managers and empowered shareholde

Rethinking Chutes: Incentives, Investment, and Innovation

Eighty-two percent of public firms have golden parachutes (or “chutes”) under which CEOs and senior officers may be paid tens of millions of dollars upon their employer’s change in control. What justifies such extraordinary payouts? Much of the conventional analysis views chutes as excessive compensation granted by captured boards, focusing on the payouts that occur following a takeover. Those explanations, if they ever were complete, miss the mark today. This Article demonstrates, theoretically and empirically, that chutes are less relevant to a firm during a takeover than they are before a takeover, particularly in relation to firms that invest in innovation. Chutes assure managers of realizing the long-term value of their work, even if the firm is later acquired. As a result, managers are more likely to make specific investments in innovation whose value may not be realized for some time — but that which are essential to sustaining long-term performance. Moreover, when granted, a chute’s expected cost is a small fraction of what may be paid, reflecting the real likelihood a payment will never be made. That cost is more than offset by the value of the specific investments in innovation that managers are now more likely to make. Consequently, granting chutes tends to increase the value of innovative firms — promoting, rather than jeopardizing, shareholder interests in such firms. Nevertheless, an analysis of chutes as a valuable tool in promoting innovation is largely missing from the corporate law scholarship, with important consequences. Two, in particular, are the negative view of proxy advisors on chutes, and recent federal Say-on-Golden-Parachute legislation that mandates certain types of disclosure regarding chutes. We recommend changes that properly reflect the low expected cost of chutes and their positive effect on innovation