The State of State Competition for Incorporations

64 Pages Posted: 2 Aug 2014 Last revised: 6 Sep 2014

See all articles by Marcel Kahan

Marcel Kahan

New York University School of Law; European Corporate Governance Institute

Date Written: August 2014

Abstract

The competition by states for incorporations has long been the subject of extensive scholarship. This article tries to deconstruct the state competition debates by showing that scholars are engaged in three separate debates that are only loosely connected to each other. The first, “directional” debate concerns whether firms, if given a choice, will chose corporate law rules that maximize shareholder value or managerial benefits. Resolution of this question is relevant regardless of whether states “compete.” All it takes to make this question important is for firms to have a meaningful choice among legal rules. The second, “competition” debate concerns whether, how, and which states compete for incorporations. Depending on what is meant by “competition”, competition can exist even in a regime where firms have no choice over where they incorporate and may not exist in a regime where firms have free choice. The third, “federalism” debate concerns the shape a mandatory corporate law would take if such a law were enacted. Separating these three conceptually distinct questions, and the evidence relevant to each, yields a better understanding of the arguments made by the partisans in the state competition debate and of the issues that remain unresolved.

Keywords: State competition, regulatory competition, race to the top, race to the bottom, Delaware

JEL Classification: K22, G34, G38

Suggested Citation

Kahan, Marcel, The State of State Competition for Incorporations (August 2014). European Corporate Governance Institute (ECGI) - Law Working Paper No. 263/2014; NYU Law and Economics Research Paper No. 14-19. Available at SSRN: https://ssrn.com/abstract=2474658 or http://dx.doi.org/10.2139/ssrn.2474658

Marcel Kahan (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6268 (Phone)
212-995-4341 (Fax)

European Corporate Governance Institute ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

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