Federalism and Takeover Law: The Race to Protect Managers from Takeovers
Lucian A. Bebchuk
Harvard Law School; National Bureau of Economic Research (NBER); Centre for Economic Policy Research (CEPR) and European Corporate Governance Institute (ECGI)
Harvard Law School; European Corporate Governance Institute (ECGI)
Columbia Law Review, Vol. 99, No. 5, pp. 1168-1200, June 1999
Reprinted in Regulatory Competition and Economic Integration (D. Esty and D. Geradin, ed., Oxford University Press) pp. 68-94, 2001
Harvard Law and Economics Discussion Paper No. 257, June 1999
This paper analyzes certain important shortcomings of state competition in corporate law. In particular, we show that, with respect to takeovers, states have incentives to produce rules that excessively protect incumbent managers. The development of state takeover law, we argue, is consistent with our theory. States have adopted antitakeover statutes that have little policy basis, and, more importantly, they have provided managers with a wider and more open-ended latitude to engage in defensive tactics than endorsed even by the commentators most favorable to such tactics. Furthermore, states have elected, even though they could have done otherwise, to impose antitakeover protections on shareholders, who did not appear to favor them, in a way that left shareholders with little choice or say. Finally, we conclude by pointing out that proponents of state competition cannot reconcile their views with the evolution of state takeover law--and should therefore reconsider their unqualified support of state competition.
JEL Classification: G30, G34, G38, H70
Date posted: August 11, 1999 ; Last revised: May 5, 2009
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