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Sales and Elections as Methods for Transferring Corporate Control

43 Pages Posted: 13 Apr 2001  

Ronald J. Gilson

Stanford Law School; Columbia Law School; European Corporate Governance Institute (ECGI)

Alan Schwartz

Yale Law School

Date Written: November 2000

Abstract

Under standard accounts of corporate governance, capital markets play a significant role in monitoring management performance and, where appropriate, replacing management whose performance does not measure up. Recent case law in Delaware, however, appears to have altered dramatically the mechanisms through which the market for corporate control must operate. In particular, the interaction of the poison pill and the Delaware Supreme Court's development of the legal standard governing defensive tactics in response to tender offers have resulted in a decided, but as yet unexplained, preference for control changes mediated by means of an election rather than by a market. In this paper, we begin the evaluation of the preference for elections over markets that the Delaware Supreme Court has not yet attempted. We apply to this effort both doctrinal logic and insights derived from an interesting but complex formal literature that has developed to understand how voting structures work in political contests and jury deliberations. Since these contexts differ substantially from transfers of corporate control, our analysis raises a question of fit: are voting models suitable for analyzing the question asked here? In our view, the models do shed some light on the takeover institution, but if this view is ultimately rejected, then we will have eliminated what at least superficially appears to be a useful set of tools.

Suggested Citation

Gilson, Ronald J. and Schwartz, Alan, Sales and Elections as Methods for Transferring Corporate Control (November 2000). Stanford Law and Economics Olin Working Paper No. 206; Columbia Law and Economics Working Paper No. 180; Yale Law & Economics Research Paper No. 244. Available at SSRN: https://ssrn.com/abstract=249067 or http://dx.doi.org/10.2139/ssrn.249067

Ronald J. Gilson (Contact Author)

Stanford Law School ( email )

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Columbia Law School ( email )

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European Corporate Governance Institute (ECGI)

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Belgium

Alan Schwartz

Yale Law School ( email )

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New Haven, CT 06520-8215
United States
203-432-4030 (Phone)
203-432-8260 (Fax)

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