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A New Approach to Takeover Law and Regulatory Competition

Author

Listed:
  • Lucian Arye Bebchuk
  • Allen Ferrell
Abstract
The development of U.S. state takeover law in the past three decades has produced considerable and quite possibly excessive protection for incumbent managers from hostile takeovers. Although the shortcomings of state takeover law have been widely recognized, there has been little support for federal intervention because of the concern that such intervention might produce even worse takeover arrangements. This paper puts forward a novel form of federal intervention in the regulation of takeovers that would address these shortcomings without raising such a concern. Rather than mandating particular substantive takeover arrangements, this form of federal intervention would focus on increasing shareholder choice. Choice-enhancing' federal intervention would consist of two elements: (i) an optional body of substantive federal takeover law which shareholders would be able to opt into (or out of) and (ii) a mandatory process rule that would provide shareholders the right to initiate and adopt, regardless of managers' wishes, proposals for opting into (or out of) the federal takeover law. We argue that such a federal role in takeover law cannot harm and would likely improve the regulation of takeovers. Moreover, by showing how federal law can be used to improve regulatory competition in the provision of takeover law rather than preempt it, our analysis lays the groundwork for a more general reconsideration of regulatory competition in the corporate law area.

Suggested Citation

  • Lucian Arye Bebchuk & Allen Ferrell, 2001. "A New Approach to Takeover Law and Regulatory Competition," NBER Working Papers 8148, National Bureau of Economic Research, Inc.
    • Handle: RePEc:nbr:nberwo:8148
    Note: LE
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    Citations

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    Cited by:

    1. Sattar A. Mansi & William F. Maxwell & John K. Wald, 2009. "Creditor Protection Laws and the Cost of Debt," Journal of Law and Economics, University of Chicago Press, vol. 52(4), pages 701-717, November.
    2. Marc Goergen, 2005. "Corporate Governance Convergence: Evidence From Takeover Regulation Reforms in Europe," Oxford Review of Economic Policy, Oxford University Press and Oxford Review of Economic Policy Limited, vol. 21(2), pages 243-268, Summer.
    3. Qian Xie, 2013. "Does Delaware Incorporation Encourage Effective Monitoring? An Examination on Director Compensation," International Journal of Financial Research, International Journal of Financial Research, Sciedu Press, vol. 4(4), pages 26-37, October.
    4. Bebchuk, Lucian Arye & Cohen, Alma, 2003. "Firms' Decisions Where to Incorporate," Journal of Law and Economics, University of Chicago Press, vol. 46(2), pages 383-425, October.
    5. Becht, Marco & Bolton, Patrick & Roell, Ailsa, 2003. "Corporate governance and control," Handbook of the Economics of Finance, in: G.M. Constantinides & M. Harris & R. M. Stulz (ed.), Handbook of the Economics of Finance, edition 1, volume 1, chapter 1, pages 1-109, Elsevier.
    6. Oren Bar-Gill & Michal Barzuza & Lucian Bebchuk, 2006. "The Market for Corporate Law," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 162(1), pages 134-160, March.
    7. Anne Anderson & Jill Brown & Parveen P. Gupta, 2017. "Jurisdictional competition for corporate charters and firm value: a reexamination of the Delaware effect," International Journal of Disclosure and Governance, Palgrave Macmillan, vol. 14(4), pages 341-356, November.
    8. Zsuzsanna Fluck & Colin Mayer, 2005. "Race to the top or bottom? Corporate governance, freedom of reincorporation and competition in law," Annals of Finance, Springer, vol. 1(4), pages 349-378, October.
    9. Lucian Bebchuk & Oliver Hart, 2001. "Takeover bids vs. Proxy Fights in Contests for Corporate Control," NBER Working Papers 8633, National Bureau of Economic Research, Inc.
    10. Sarath Sanga, 2014. "Choice of Law: An Empirical Analysis," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 11(4), pages 894-928, December.
    11. Ksenija Dencic-Mihajlov, 2009. "Reforms of Corporate Governance and Takeover Regulation: Evidence from Serbia," South-Eastern Europe Journal of Economics, Association of Economic Universities of South and Eastern Europe and the Black Sea Region, vol. 7(2), pages 205-227.
    12. Radenković-Jocić Dragana & Barun Ivan, 2015. "Company Changing Status and Its Linking to Competitiveness," Economic Themes, Sciendo, vol. 53(1), pages 1-17, March.
    13. Martynova, M., 2006. "The market for corporate control and corporate governance regulation in Europe," Other publications TiSEM 8651e281-4914-41f2-ac14-1, Tilburg University, School of Economics and Management.
    14. Hart, Oliver & Bebchuk, Lucian Arye, 2001. "Takeover Bids versus Proxy Fights in Contests for Corporate Control," CEPR Discussion Papers 3073, C.E.P.R. Discussion Papers.
    15. Nenova, Tatiana, 2006. "Takeover laws and financial development," Policy Research Working Paper Series 4029, The World Bank.
    16. Wolfgang Schön, 2006. "The Market for Corporate Law. Comment," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 162(1), pages 168-171, March.
    17. Edward Stringham & Todd Zywicki, 2011. "Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England," Public Choice, Springer, vol. 147(3), pages 497-524, June.
    18. Jiraporn, Pornsit & Kittiakarasakun, Jullavut & Chintrakarn, Pandej, 2012. "Does Delaware Incorporation Affect Executive Compensation? An Empirical Analysis," Review of Applied Economics, Lincoln University, Department of Financial and Business Systems, vol. 8(1), pages 1-17, February.

    More about this item

    JEL classification:

    • G30 - Financial Economics - - Corporate Finance and Governance - - - General
    • H70 - Public Economics - - State and Local Government; Intergovernmental Relations - - - General

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