Vigorous Race or Leisurely Walk: Reconsidering the Competition Over Corporate Charters

69 Pages Posted: 24 Aug 2002 Last revised: 15 Apr 2015

Lucian A. Bebchuk

Harvard Law School; National Bureau of Economic Research (NBER); Centre for Economic Policy Research (CEPR) and European Corporate Governance Institute (ECGI)

Assaf Hamdani

Hebrew University - Faculty of Law

Abstract

The long-standing and central debate on state competition in corporate law has been largely premised on a widely held belief that, whether the race is toward the top or the bottom, states vigorously "race" in seeking to attract incorporations. In this paper, we argue that this belief is in fact incorrect and that the competitive threat to Delaware's dominant position in the incorporation market is quite weak. We discuss evidence that Delaware's position in this market is far more dominant and secure than has been previously recognized. We then analyze the structural features of the incorporation market that can explain this state of affairs. The weak-competition account that we put forward casts substantial doubt on the extent to which state competition can be relied on - even on the most favorable view of it - to produce optimal corporate rules. This account strengthens the case for some form of federal intervention; at the minimum, it would be desirable for federal law to invigorate competition by permitting shareholders to initiate and approve reincorporations and by providing a federal incorporation option.

Keywords: Delaware, Incorporation, Corporate Charters, Corporate Governance, Regulatory Competition, Managers, Shareholders, Takeovers, Barriers to entry, Network Externalities, Federalism

JEL Classification: G30, G38, H70, K22

Suggested Citation

Bebchuk, Lucian A. and Hamdani, Assaf, Vigorous Race or Leisurely Walk: Reconsidering the Competition Over Corporate Charters. Yale Law Journal, Vol. 112, pp. 553-615, 2002; Harvard Law and Economics Discussion Paper No. 376, July 2002. Available at SSRN: https://ssrn.com/abstract=325520 or http://dx.doi.org/10.2139/ssrn.325520

Lucian A. Bebchuk (Contact Author)

Harvard Law School ( email )

Cambridge, MA 02138
United States
617-495-3138 (Phone)
617-812-0554 (Fax)

HOME PAGE: http://www.law.harvard.edu/faculty/bebchuk/

National Bureau of Economic Research (NBER) ( email )

1050 Massachusetts Avenue
Cambridge, MA 02138
United States

Centre for Economic Policy Research (CEPR) and European Corporate Governance Institute (ECGI)

Assaf Hamdani

Hebrew University - Faculty of Law ( email )

Mount Scopus, 91905
Israel

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