Three Concepts of the Independent Director

40 Pages Posted: 25 Mar 2007

See all articles by Donald C. Clarke

Donald C. Clarke

George Washington University Law School

Abstract

Despite the surprisingly shaky support in empirical research for the value of independent directors, their desirability seems to be taken for granted in policy-making circles. Yet important elements of the concept of and rationale for independent directors remain curiously obscure and unexamined. As a result, the empirical findings we do have may be misapplied, and judicial gap-filling may be harder than imagined when legislative intent cannot be divined or is contradictory.

This article attempts to unpack the concept broadly understood by the term independent director and to distinguish among its various concrete manifestations. In particular, I discuss the critical differences between independent, outside, and disinterested directors, arguing that these manifestations serve different purposes and should not be confused with each other. This discussion is illustrated with examples from United States state and federal laws as well as stock exchange regulations, and supplemented with comparative reference to the United Kingdom, Germany, and Japan, with a brief mention of Chinese practice as well. I also argue that the whole purpose of having independent directors is surprisingly undertheorized, leading to inconsistent rules, in particular regarding the effect of director shareholding, both across countries and within the United States.

Keywords: Delaware, journal, corporate, law, clark, value, independant directors, empirical

Suggested Citation

Clarke, Donald C., Three Concepts of the Independent Director. Delaware Journal of Corporate Law, Vol. 32, No. 1, pp. 73-111, 2007; GWU Legal Studies Research Paper No. 256; GWU Law School Public Law Research Paper No. 256. Available at SSRN: https://ssrn.com/abstract=975111

Donald C. Clarke (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-2830 (Phone)
202-318-4479 (Fax)

HOME PAGE: http://docs.law.gwu.edu/facweb/dclarke/

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