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Trust Law, Corporate Law, and Capital Market Efficiency


Robert H. Sitkoff


Harvard Law School


Journal of Corporation Law, Vol. 28, 2003

Abstract:     
In both the publicly-traded corporation and the private donative trust a crucial task is to minimize the agency costs that arise from the separation of risk-bearing and management. But where the law of corporate governance evolved in the shadow of capital-market checks on agency costs, trust governance did not. Thus, even more than that of close corporations, the law and study of private trusts offers an illuminating counterfactual - a control, as it were - for a playful thought experiment about the importance of capital market efficiency to the law and study of public corporations. The animating idea for this essay is that many of the differences on the agency costs frontier between the public corporation and the private donative trust can be roughly attributed to their relative positions in modern capital markets and the related disparity in their residual claimants' ease of exit. Among other things, this approach reveals a correlation between the trust law model and the views of corporate law scholars who doubt the ECMH and its implications for corporate governance. The essay also discusses the use of market data for assessing breach and damages in corporate and trust litigation and for empirical evaluation of theoretical scholarly analysis in both fields. More generally, comparison of the governance of the public corporation and the private donative trust brings into view the importance of relative price efficiency for the modern approach to corporate governance.

Number of Pages in PDF File: 25

Keywords: public corporations, donative trusts, private trusts, agency costs, risk-bearing, management, corporate governance, capital markets, market efficiency, efficient market hypothesis, close corporations, fiduciary duty, portfolio theory, prudent investor, surcharge, total return

JEL Classification: G14, G30, K11, K22, L20

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Date posted: December 11, 2003  

Suggested Citation

Sitkoff, Robert H., Trust Law, Corporate Law, and Capital Market Efficiency. Journal of Corporation Law, Vol. 28, 2003. Available at SSRN: http://ssrn.com/abstract=470061 or http://dx.doi.org/10.2139/ssrn.470061

Contact Information

Robert H. Sitkoff (Contact Author)
Harvard Law School ( email )
1575 Massachusetts Avenue
Cambridge, MA 02138
United States
(617) 384-8386 (Phone)
(617) 812-6195 (Fax)
HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=649
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