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SSRN

Volume 105

Article

Corporate Law and the Myth of Efficient Market Control

 William W. Bratton, Nicholas F. Gallicchio Professor of Law, University of Pennsylvania Law School

Simone M. Sepe, Professor of Law and Finance, James E. Rogers College of Law, University of Arizona; Université Toulouse 1 Capitole; and Toulouse School of Economics

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3 Mar 2020

In recent times, there has been an unprecedented shift in power from managers to shareholders, a shift that realizes the long-held theoretical aspiration of market control of the corporation. This Article subjects the market control paradigm to comprehensive economic examination and finds it wanting. 

The market control paradigm relies on a narrow economic model that focuses on one problem only: management agency costs. With the rise of shareholder power, we need a wider lens that also takes in market prices, investor incentives, and information asymmetries. General equilibrium (GE) theory provides that lens. Several lessons follow from reference to this higher-order economic theory. First, the presumption that markets can efficiently coordinate the economy is unfounded, unless one relies on heroic assumptions. Second, GE shows that shareholders suffer from misaligned incentives, undercutting any normative program grounded in shareholder empowerment. The third lesson is negative, as there are no economically founded instructions for addressing the trade-offs between agency costs reduction and market inefficiency implied by the new shareholder corporation. Policy implications also follow. Given the lack of a clear normative template, only private ordering can be counted on to address each corporation’s specific tradeoffs between agency costs and market inefficiency. This conclusion leads to an endorsement of Delaware’s equitable adjudication system, the flexibility of which is well suited to policing the bargaining process between managers and empowered shareholders. 

To read more, click here: Corporate Law and the Myth of Efficient Market Control.

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