The Market for Corporate Law

This paper develops a model of the competition among states in providing corporate law rules. The analysis provides a full characterization of the equilibrium in this market. Competition among states is shown to produce optimal rules with respect to issues that do not have a substantial effect on managers' private benefits but not with respect to issues (such as takeover regulation) that substantially affect these private benefits. We analyze why a Dominant state such as Delaware can emerge, the prices that the dominant state will set and the profits it will make. We also analyze the roles played by legal infrastructure, network externalities, and the rules governing incorporations. The results of the model are consistent with, and can explain, existing empirical evidence; they also indicate that the performance of state competition cannot be evaluated on the basis of how incorporation in Delaware in the prevailing market equilibrium affects shareholder wealth.

Long-Term Bias

An emerging consensus in certain legal, business, and scholarly communities maintains that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects. The forces inducing managerial myopia are easy to spot, typically embodied by activist hedge funds and Wall Street gadflies with outsized appetites for next quarter’s earnings. Warnings about the dangers of “short termism” have become so well established, in fact, that they are now driving changes to mainstream practice, as courts, regulators and practitioners fashion legal and transactional constraints designed to insulate firms and managers from the influence of investor short-termism. This Article draws on academic research and a series of case studies to advance the thesis that the emergent folk wisdom about short-termism is incomplete. A growing literature in behavioral finance and psychology now provides sound reasons to conclude that corporate managers often fall prey to long-term bias – excessive optimism about their own long-term projects. We illustrate several plausible instantiations of such biases using case studies from three prominent companies where managers have arguably succumbed to a form of “long-termism” in their own corporate stewardship. Unchecked, long-termism can impose substantial costs on investors that are every bit as damaging as short-termism. Moreover, we argue that long-term managerial bias sheds considerable light on the paradox of why short-termism evidently persists among supposedly sophisticated financial market participants: Shareholder activism – even if unambiguously myopic – can provide a symbiotic counter-ballast against managerial long-termism. Without a more definitive understanding of the interaction between short- and long-term biases, then, policymakers should be cautious about embracing reforms that focus solely on half of the problem

Short-Termism and Long-Termism

A significant debate in corporate law and finance concerns the role of activist investors (especially hedge funds) in corporate governance. Activists, it is often alleged, imprudently privilege short term earnings over superior (but less liquid) long term investments. Activists counter that they target managers who unjustifiably cling to questionable strategies. While this debate is hardly new, it has grown increasingly fractious of late. We analyze the activism debate within a theoretical securities-market setting. In our framework – which draws from an emerging literature in empirical and experimental finance – managers are differentially overconfident (causing them to favor long-term projects), while investors are differentially present-biased (causing them to favor short-term liquidity). We allow these biases to be either fundamental or induced by institutional factors, and they can occur either in isolation or in conjunction. Equilibrium behavior bears an uncanny resemblance to the ongoing activism debate, providing a new perspective on well-worn battle lines. Prescriptively, we demonstrate that short-termism and long-termism can have symbiotic attributes. Consequently, an optimal corporate law and governance regime should account for both effects, as well their possible interaction

Long-Term Bias

An emerging consensus in certain legal, business, and scholarly communities maintains that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects. The forces inducing manage- rial myopia are easy to spot, typically embodied by activist hedge funds and Wall Street gadflies with outsized appetites for current quarterly earnings. Warnings about the dangers of “short termism” have become so well established, in fact, that they are now driving changes to mainstream practice as courts, regulators and practitioners fashion legal and transactional constraints designed to insulate firms and managers from the influence of investor short-termism. This Article draws on ac- ademic research and a series of case studies to advance the the- sis that the emergent folk wisdom about short-termism is in- complete. A growing literature in behavioral finance and psychology now provides sound reasons to conclude that corpo- rate managers often fall prey to long-term bias—excessive op- timism about their own long-term projects. We illustrate sev- eral plausible instantiations of such biases using case studies from three prominent companies where managers have argua- bly succumbed to a form of “long-termism” in their own corpo- rate stewardship. Unchecked, long-termism can impose sub- stantial costs on investors that are every bit as damaging as short-termism. Moreover, we argue that long-term managerial bias sheds considerable light on the paradox of why short- termism evidently persists among supposedly sophisticated fi- nancial market participants: shareholder activism—even if unambiguously myopic—can provide a symbiotic counter-bal- last against managerial long-termism. Without a more defini- tive understanding of the interaction between short- and long- term biases, then, policymakers should be cautious about em- bracing reforms that focus solely on half of the problem

Shareholder Value(s): Index Fund ESG Activism and the New Millennial Corporate Governance

Major index fund operators have been criticized as ineffective stewards of the firms in which they are now the largest shareholders. While scholars debate whether this passivity is a serious problem, index funds’ generally docile approach to ownership is broadly acknowledged.However, this Article argues that the notion that index funds are passive owners overlooks an important dimension in which index funds have demonstrated outspoken, confrontational, and effective stewardship. Specifically, we document that index funds have taken a leading role in challenging management and votingagainst directors in order to advance board diversity and corporate sustainability. We show that index funds have engaged in a pattern of competitive escalation in their policies on ESG issues. Index funds’ confrontational and competitive activism on ESG is hard to square with their passive approach to more conventional corporate governance questions.To explain this dichotomy in approaches, we argue that index funds are locked in a fierce contest to win the soon-to-accumulate assets of the millennial generation, who place a significant premium on social issues in their economic lives. With fee competition exhausted and returns irrelevant for index investors, signaling a commitment to social issues is one of the few dimensions on which index funds can differentiate themselves and avoid commoditization. For index funds, the threat of millennial migration to another fund is more significant than the threat of management retaliation. Furthermore, managers themselves, we argue, face intense pressure from their millennial employees and customers to respond to their social preferences. This three dimensional millennial effect—as investors, customers and employees—we argue, is an important development with the potential to provide a counterweight to the wealth-maximization paradigm of corporate governance.We marshal evidence for this new dynamic, situate it within the existing literature, and consider the implications for the debate over index funds as shareholders and corporate law generally

The Millennial Corporation

In a prior paper, Shareholder Value(s): Index Fund ESG Activism and The New Millennial Corporate Governance, we argued that the index funds’ sudden shift towards socially-responsible investment, after decades of ignoring or opposing it, was driven by the competition to manage growing Millennial wealth. In our view, the main contribution of that paper was identifying sharp differences between Millennials and prior generations over investment, consumption, and employment. It has now become clear that this contribution has implications far beyond index-fund environmental, social and governance (“ESG”) activism and is in fact completely transforming the corporate world, marking a fundamental shift in how corporations function and requiring a new framework for analysis. This paper delineates a radical new framework for what we call The Millennial Corporation.We argue that the Millennial-driven rise of stakeholderism and socially-responsible investing are features of a comprehensive cultural shift in how corporations are expected to behave, rendering earlier accounts of corporate behavior incomplete or obsolete. While there have been moments in the recent past when corporations promoted stakeholderism, these moments were transient and primarily rhetorical, with corporations quickly returning to the business-as-usual of shareholder primacy. This time, Millennials have made it impossible to return to business-as-usual. We show that, unlike Baby Boomers and Generation X, this generation is far more likely to take its politics to work, to the store or website, and to the investment portfolio. This consolidation of economic identity creates feedback effects that collapse the distinction between so-called political considerations, maximizing returns, and stakeholder interests in ways that are eroding traditional corporate law norms.Far from liberating managers from meaningful constraints--as critics of stakeholder corporate governance often allege--this new dynamic has imposed even further constraints on managers. We show that Millennial stakeholderism is fundamentally different from the stakeholderism of the past. As a result of Millennials’ influence, managers have strong incentives to promote stakeholder interests. In fact, they have no choice but to do so. Furthermore, rather than helping managers to insulate themselves, the new stakeholderism exposes managers to higher scrutiny. We present both a theoretical analysis and evidence supporting our account of the rise of the Millennial Corporation

Board Interlocks and Outside Directors’ Protection

We examine the role of outside directors’ interlocks in restoring directors’ indemnification protection in response to Delaware’s Schoon v. Troy Corp. The case, which permitted a board to retroactively alter indemnification and advancement-of-expenses arrangements for a former director, left directors vulnerable unless their firm acted to restore protection. Using a hand-collected data set, we find that a firm became more than twice as likely to adopt enhanced indemnification protection once a firm with which it shared an outside director adopted protection. Our results suggest that interlocks contribute to outside directors’ knowledge and bargaining power in the boardroom. Consistent with the bargaining-power hypothesis, we find that several measures of outside directors’ power are associated with a higher probability of responding: a large proportion of outside directors, a designated independent lead director, and, with marginal significance, more board meetings in executive session. These results have legal and practical implications for corporate governance

Short-Termism and Long-Termism

A significant debate in corporate law and finance concerns the role of activist investors (especially hedge funds) in corporate governance. Activists, it is often alleged, imprudently privilege short term earnings over superior (but less liquid) long term investments. Activists counter that they target managers who unjustifiably cling to questionable strategies. While this debate is hardly new, it has grown increasingly fractious of late. We analyze the activism debate within a theoretical securities-market setting. In our framework – which draws from an emerging literature in empirical and experimental finance – managers are differentially overconfident (causing them to favor long-term projects), while investors are differentially present-biased (causing them to favor short-term liquidity). We allow these biases to be either fundamental or induced by institutional factors, and they can occur either in isolation or in conjunction. Equilibrium behavior bears an uncanny resemblance to the ongoing activism debate, providing a new perspective on well-worn battle lines. Prescriptively, we demonstrate that short-termism and long-termism can have symbiotic attributes. Consequently, an optimal corporate law and governance regime should account for both effects, as well their possible interaction

Long-Term Bias

An emerging consensus in certain legal, business, and scholarly communities maintains that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects. The forces inducing managerial myopia are easy to spot, typically embodied by activist hedge funds and Wall Street gadflies with outsized appetites for next quarter’s earnings. Warnings about the dangers of “short termism” have become so well established, in fact, that they are now driving changes to mainstream practice, as courts, regulators and practitioners fashion legal and transactional constraints designed to insulate firms and managers from the influence of investor short-termism. This Article draws on academic research and a series of case studies to advance the thesis that the emergent folk wisdom about short-termism is incomplete. A growing literature in behavioral finance and psychology now provides sound reasons to conclude that corporate managers often fall prey to long-term bias – excessive optimism about their own long-term projects. We illustrate several plausible instantiations of such biases using case studies from three prominent companies where managers have arguably succumbed to a form of “long-termism” in their own corporate stewardship. Unchecked, long-termism can impose substantial costs on investors that are every bit as damaging as short-termism. Moreover, we argue that long-term managerial bias sheds considerable light on the paradox of why short-termism evidently persists among supposedly sophisticated financial market participants: Shareholder activism – even if unambiguously myopic – can provide a symbiotic counter-ballast against managerial long-termism. Without a more definitive understanding of the interaction between short- and long-term biases, then, policymakers should be cautious about embracing reforms that focus solely on half of the problem