The Great Takeover Debate: A Meditation on Bridging the Conceptual Divide

32 Pages Posted: 22 Nov 2014

See all articles by William T. Allen

William T. Allen

New York University School of Law; New York University (NYU) - Department of Finance

Jack B. Jacobs

Government of the State of Delaware - Court of Chancery

Leo E. Strine

Government of the State of Delaware - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School

Date Written: 2002

Abstract

The past two decades have witnessed a vigorous continuation of the long-standing debate about the proper role of the corporation in our society. Recently, that debate has centered on the question of who -- the directors or the stockholders -- should have the ultimate power to decide whether the corporation should be sold to a bidder that offers to buy all the corporation's shares at a substantial premium above the current stock market price. The contestants in this debate have been unable to reach any middle ground. That impasse is due in part to ideological differences between the two schools, but it is also due in part to a general satisfaction with the results achieved by the current state of Delaware corporate fiduciary law, which incorporates elements of, and balances, both positions. To relocate the debate to a different and perhaps more fruitful path, the authors suggest an approach that might provide a middle ground between the these two schools: corporate election reform. This Article raises, for discussion purposes only, the issue of whether it is possible to reform the director election process to increase director accountability to the stockholders while at the same time creating a cadre of directors having considerable flexibility to respond to takeover offers in a manner appropriately sensitive to shareholder interests. To stimulate more productive discussion about the nature of the corporation and the role of corporate law, the authors propose -- without embracing -- a reform that they suggest might have this effect.

Suggested Citation

Allen, William T. and Jacobs, Jack B. and Strine, Leo E., The Great Takeover Debate: A Meditation on Bridging the Conceptual Divide (2002). University of Chicago Law Review, Vol. 69, P. 1067, 2002. Available at SSRN: https://ssrn.com/abstract=2528679

William T. Allen

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6327 (Phone)
212-995-4763 (Fax)

New York University (NYU) - Department of Finance

Stern School of Business
44 West 4th Street
New York, NY 10012-1126
United States

Jack B. Jacobs

Government of the State of Delaware - Court of Chancery ( email )

New Castle County Courthouse
500 N. King Street , Suite 11400
Wilmington, DE 19801-3734
United States
302-577-2441 (Phone)

Leo E. Strine (Contact Author)

Government of the State of Delaware - Supreme Court of Delaware ( email )

820 N. French Street
P.O. Box 1997
Wilmington, DE 19801
United States

Harvard Law School ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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