Faculty Bibliography

Chrysler entered and exited bankruptcy in 42 days, making it one of the fastest major industrial bankruptcies in memory. It entered as a company widely thought to be ripe for liquidation if left on its own, obtained massive funding from the United States Treasury, and exited via a pseudo sale of its main assets to a new government-funded entity. The unevenness of the compensation to prior creditors raised concerns in capital markets, which we evaluate here. We conclude that the Chrysler bankruptcy cannot be understood as complying with good bankruptcy practice, that it resurrected discredited practices long thought interred in the 19th and early 20th century equity receiverships, and that its potential, if followed, for disrupting financial markets surrounding troubled companies in difficult economic times is more than small.

A revisionist consensus among corporate law academics has begun to coalesce that, after a century of academic thinking to the contrary, states do not compete head-to-head on an ongoing basis for chartering revenues, leaving Delaware alone in the ongoing interstate charter market. The revisionist view pushes us to consider how free Delaware is to act. Where and when would it come up against boundaries, punishments, and adverse consequences? When do other states (and Washington) constrain Delaware? Recent state corporate lawmaking helps us to define those boundaries in terms of potential state competition and to see that the critical actors are not other states’ lawmakers directly, but Delaware’s own corporate constituents who, if disgruntled, can induce other states to enact new laws. Moreover, analysis of previously unassembled chartering revenue data from Delaware’s Secretary of State’s office displays a vital dimension of state competition, once thought to be relatively unimportant, but that’s becoming increasingly powerful: Delaware’s tax base is eroding, and it’s eroding faster in the past decade or so than ever. Delaware must move ever faster to replenish that erosion. The dynamism of American business interacts with even a lackluster state-based corporate chartering market to put powerful pressure on Delaware, whose business base is persistently eroding as firms merge, close, and restructure.

Strong financial markets are widely thought to propel economic development, with many in finance seeing legal tradition as fundamental to protecting investors sufficiently for finance to flourish. Kenneth Dam, in the Law-Growth Nexus, finds that the legal tradition view inaccurately portrays how legal systems work, how laws developed historically, and how government power is allocated in the various legal traditions. Yet, after probing the legal origins’ literature for inaccuracies, Dam does not deeply develop an alternative hypothesis to explain the world’s differences in financial development. Nor does he challenge the origins core data, which could be origins’ trump card. Hence, his analysis will not convince many economists, despite that his legal learning suggests conceptual and factual difficulties for the legal origins explanations. Yet, a dense political economy explanation is already out there and the origins-based data has unexplored weaknesses consistent with Dam’s contentions. Knowing if the origins view is truly fundamental, flawed, or secondary is vital for financial development policymaking, because policymakers who believe it will pick policies that imitate what they think to be the core institutions of the preferred legal tradition. But if they have mistaken views, as Dam indicates they might, as to what the legal traditions’ institutions really are and which types of laws really are effective, or what is really most important to financial development, they will make policy mistakes ─ potentially serious ones.

Ascertaining which enforcement mechanisms work to protect investors has been both a focus of recent work in academic finance and an issue for policy-making at international development agencies. According to recent academic work, private enforcement of investor protection via both disclosure and private liability rules goes hand in hand with financial market development, but public enforcement fails to correlate with financial development and, hence, is unlikely to facilitate it. Our results confirm the disclosure result but reverse the results on both liability standards and public enforcement. We use securities regulators’ resources to proxy for regulatory intensity of the securities regulator. When we do, financial depth regularly, significantly, and robustly correlates with stronger public enforcement. In horse races between these resource-based measures of public enforcement intensity and the most common measures of private enforcement, public enforcement is overall as important as disclosure in explaining financial market outcomes around the world and more important than private liability rules. Hence, policymakers who reject public enforcement as useful for financial market development are ignoring the best currently available evidence.

American corporate law scholars have long focused on state-to-state jurisdictional competition as a powerful engine in the making of American corporate law. Yet much corporate law is made in Washington, D.C. Federal authorities regularly make law governing the American corporation, typically via the securities law - from shareholder voting rules, to boardroom composition, to dual class stock, to Sarbanes-Oxley - and they could do even more. Properly conceived, the United States has two primary corporate lawmaking centers - the states (primarily Delaware) and Washington. We are beginning to better understand how they interact, as complements and substitutes, but the foundational fact of American corporate lawmaking during the past century is that whenever there has been a big issue - the kind of thing that could strongly affect capital costs - Washington acted or considered acting. Here I review the concepts of the vertical interaction, indicate what still needs to be examined, and examine one Washington-Delaware interaction in detail over time. Overall, we cannot understand the governmental structure of American corporate lawmaking well just by examining the nature, strength, and weaknesses of state-to-state jurisdictional competition.

An enduring inquiry for American corporate law scholars is why the small state of Delaware dominates corporate chartering in the United States. Several theories explain the result. I add another partial explanation: size alone makes Delaware attractive to reincorporating firms by making the state’s corporate law more important to the American economy - and corporate interest groups - than that of other states. Any single state with a small number of incorporations could disrupt their firms’ corporate structures without inducing any repercussions in Washington. But Delaware - or really its corporate law - is “too big to fail.” Damaged players in other states would be unable to enlist Washington to reverse the result. Nor would the low volume players be wary of Washington’s attention and the possibility of it over-reacting if a major corporate issue reached its agenda. Delaware, though, as home to about half of the American corporate economy, could not seriously disrupt American business without repercussion.

Legal origin has been brought forward as a key influence on modern finance, because common law institutions protect investors better than do civil law institutions, it is claimed. These institutional differences are said, in the legal origin explanation, to have been hard-wired into nations centuries ago. Daniel Klerman and Paul Mahoney challenge the legal origin description of the jury as emerging and achieving prominence in 12th- and 13th-century England while remaining unimportant in France. That contrast has been offered as a key difference between common and civil law, one dependent on the differences in relative power between the English monarch and the French one in the 13th century. But the investigation of the jury here should give pause to those promoting the overall legal origin thesis. The first reason to hesitate is that the jury is not central to protecting outside investors in common law nations. Indeed America's premier corporate court—the Delaware Chancery court—sits without a jury, and the usual view in legal circles is that the jury's absence (and the resulting decision-making by expert judges, not juries) is a strength of the court, not a weakness. The second reason is that Britain did not generally transfer the jury system to its colonies, because to have done so would have conflicted with its colonial goals. That is not a secondary point: political economy issues regularly trump issues like legal origin—colonial policy was just one example of how political goals displace secondary institutions. The third reason is that analysis for the jury differences between civil and common law nations depends on political economy differences centuries ago. But if political economy differences determined institutional differences in the earlier centuries, it is plausible that political economy differences in the intervening centuries would also have affected financial outcomes. Indeed modern political economy differences that lead some nations to support capital markets and others to denigrate them could explain modern financial differences as much as, or more than, 13th century political differences.

Legal origin — civil vs. common law — is said in much modern economic work to determine the strength of financial markets and the structure of corporate ownership, even in the world’s richer nations. The main means are thought to lie in how investor protection and property protection connect to civil and common law legal origin. But, I show here, although stockholder protection, property rights, and their supporting legal institutions are quite important, legal origin is not their foundation. Modern politics is an alternative explanation for divergent ownership structures and the differing depths of securities markets in the world’s richer nations. Some legislatures respect property and stock markets, instructing their regulators to promote financial markets; some do not. Brute facts of the twentieth century — the total devastation of many key nations, wrecking many of their prior institutions — predict modern postwar financial markets’ strength well and tie closely to postwar divergences in politics and policies in the world’s richest nations. Nearly every core civil law nation suffered military invasion and occupation in the twentieth century — the kinds of systemic shocks that destroy even strong institutions — while no core common law nation collapsed under that kind of catastrophe. The interests and ideologies that thereafter dominated in the world’s richest nations and those nations’ basic economic tasks (such as postwar reconstruction for many) varied over the last half century, and these differences in politics and tasks made one collection of the world’s richer nations amenable to stock markets and another indifferent or antagonistic. These political economy ideas are better positioned than legal origin concepts to explain the differing importance of financial markets in the wealthy West.

Delaware makes the corporate law governing most large American corporations. Since Washington can take away any, or all, of that lawmaking, a deep conception of American corporate law should show how, when, and where Washington leaves lawmaking authority in state hands, and how it affects what the states do. The interest groups and ideas in play in Delaware are narrow, the array in Congress wide. Three key public choice results emanate from this difference. First, interest groups powerful enough to dominate Delaware lawmaking forgo a winner-take-all strategy because federal players may act if they see state results as lopsided. Second, the major state-level players usually want to minimize federal authority in making corporate law, because a local deal cuts in fewer players; a federal deal splits the pie with outsiders. Third, we can delineate the space where the states have room to maneuver from where they risk federal action. Delaware law typically represents the status quo. It's when its law is the first on the ground - as it often is because the federal agenda is large and Delaware is small - that it gains most of its discretion vis-a-vis the federal authorities. When it moves first, especially when its two main players - managers and investors - agree on what to do, it sets the initial content of American corporate law. Federal authorities might then change the state-made result, and players and ideologies absent in Delaware but big in Washington affect the federal result. Those new players and ideas give the original Delaware players reason to resist federal action. Doctrines that limit federal effort are public-regarding justifications for deferring to interests that prevail on the state level. But when Delaware cannot act first - either because media saliency puts the matter on the federal agenda or because its primary players disagree - Delaware loses its dominance. I analogize the relationship between Delaware and Congress to that between federal agencies and Congress. Federal agencies have discretion and first-mover advantages, but their independence even when wide is not without limits, ending when they provoke Congress. So it is with Delaware.

American corporate-law scholars have focused on jurisdictional competition as an engine-usually as the engine-making American corporate law. Recent decisions in the European Court of Justice open up the possibility of similar competition in the EU. That has led analysts to wonder whether a European race would mimic the American, which depending on one`s view is a race to the top-promoting capital markets efficiency-or one to the bottom-demeaning it by giving managers too much authority in the American corporation. But the academic race literature underestimates Washington`s role in making American corporate law. Federal authorities are regularly involved, regularly make law governing the American corporation-from shareholder voting rules, to boardroom composition, to dual class stock-and they could do even more. In structure, the United States has two corporate lawmaking powers-the states (primarily Delaware) and Washington. We are only beginning to understand how they interact, as complements and substitutes, but the foundational fact of American corporate lawmaking during the twentieth century is that whenever there is a big issue-the kind of corporate policy decision that could strongly affect capital costs-Washington acted or considered acting. We cannot understand the structure of American corporate lawmaking by examining state-to-state jurisdictional competition alone

In Environmental Protection and the Social Responsibility of Firms, some of the nations leading scholars in law, economics, and business examine commonly accepted assumptions at the heart of current debates on corporate social ...

Corporate governance is on the reform agenda all over the world. How will global economic integration affect the different systems of corporate ownership and governance? Is the Anglo-American model of shareholder capitalism destined to become the template for a converging global corporate governance standard or will the differences persist? This reader contains classic work from leading scholars addressing this question as well as several new essays. In a sophisticated political economy analysis that is also attuned to the legal framework, the authors bring to bear efficiency arguments, politics, institutional economics, international relations, industrial organization, and property rights. These questions have become even more important in light of the post-Enron corporate governance crisis in the United States and the European Union's repeated efforts at corporate integration.

This chapter questions the power of law in solving CG problems and maintains that there are societal and political forces that are likely to shape governance structures irrespective of any regulation. In particular, the most common configuration of those forces around the world tends to reinforce concentrated ownership no matter what laws are adopted to protect minority shareholders. The chapter presents a new regression analysis of a wide database on political indicators and ownership concentration in sixteen major countries, which supports the conjecture that political variables, in particular the degree of employment protection and trade union strength, are strong inverse correlates of ownership separation and the diffusion of public companies.

One of corporate law's enduring issues has been the extent to which state-to-state competitive pressures on Delaware make for a race to the top or the bottom. States, or at least some of them, are said to compete with their corporate law to get corporate tax revenue and ancillary benefits. Delaware has "won" that race, with the overwhelming number of American large corporations chartering there. Here I argue that this long-standing debate is misconceived. Delaware's chief competitive pressure comes not from other states but from the federal government. When the issue is big, the federal government takes the issue or threatens to do so, or Delaware players are conscious that if they mis-step, Federal authorities could step in. These possibilities of ouster, threat, and consciousness have conditioned Delaware's behavior. Moreover, even if Delaware were oblivious to the Federal authorities, those authorities can, and do, overturn Delaware law. That which persists is tolerable to the Federal authorities. This reconception a) explains corporate law developments and data that neither theory of state competition can explain well, b) fits several developments in takeover law, going private transactions, and the rhetoric of corporate governance in Delaware, and c) can be detected in corporate law-making in Washington and Wilmington from the very beginning in the early 20th century "origins" of Delaware's dominance right up through last summer's Sarbanes-Oxley corporate governance law and the corporate governance failure in Enron and WorldCom. This analysis upsets the long-standing analysis of state corporate law competition as a strong race (whether to the top or to the bottom) because when a corporate issue is important, the federal government takes it over, or threatens to do so, or Delaware fears federal action. As such, we cannot tell whether Delaware, if it indeed raced to the top, did so because of the looming federal "threat". Nor can we tell whether Delaware, if it raced to the bottom, a) did so because national politics meant that, had they taken the locally efficient path, Congress, subject to wider pressures than is Delaware, would have taken the issue away, or b) would have instead raced to the top on other, more important issues that directly affected the mechanisms of a race to the top, had the states fully controlled them. Nor can we tell if that which persists is that which the Federal players approved of, or at least found tolerable. Too many of the truly important decisions, the ones that could affect capital costs - the mechanism driving the race-the-top theory - are taken away from Delaware or are at risk of removal or the Delaware actors know could be taken away if they seriously damaged the national economy or riled powerful interests. That is not to say that what happens at the state level in corporate law is trivial, but that the results are ambiguous in terms of the race debate. If efficiency is the usual result, then the Federal vertical element could correspond to the strengths of other organizational structures (like separating proposals from ratification in decision-making, of the checks and balances in the M-form corporation). If inefficiency is the usual result, we do not know whether the states, if free to compete without a federal "veto" possibility, would have raced toward efficiency. When we add this "vertical," Federal-state competition atop the horizontal state competition in corporate law, the state race debate - one that has stretched across the 20th century from Brandeis to Cary and beyond - is rendered empirically and theoretically indeterminate.

Before a nation can produce, it must achieve social peace. That social peace has been reached in different nations by differing means, some of which have then been embedded in business firms, in corporate ownership patterns, and in corporate governance structures. The large publicly held, diffusely owned firm dominates business in the United States despite its infirmities, namely the frequently fragile relations between stockholders and managers. But in other economically advanced nations, ownership is not diffuse but concentrated. It is concentrated in no small measure because the delicate threads that tie managers to shareholders in the public firm fray easily in common political environments, such as those in the continental European social democracies. Social democracies press managers to stabilize employment, to forego some profit-maximizing risks with the firm, and to use up capital in place rather than to downsize when markets no longer are aligned with the firm's production capabilities. Since managers must have discretion in the public firm, how they use that discretion is crucial to stockholders, and social democratic pressures induce managers to stray farther than otherwise from their shareholders' profit-maximizing goals. Moreover, the means that align managers with diffuse stockholders in the United States-incentive compensation, hostile takeovers, and strong shareholder-wealth maximization norms-are weaker and sometimes denigrated in continental social democracies. Hence, public firms there have higher managerial agency costs, and large-block shareholding has persisted as shareholders' best remaining way to control those costs. Social democracies may enhance total social welfare, but if they do, they do so with fewer public firms than less socially responsive nations. The author therefore uncovers not only a political explanation for ownership concentration in Europe, but also a crucial political prerequisite to the rise of the public firm in the United States, namely the weakness of social democratic pressures on the American business firm.

The economic model of corporate law could, with a few simple moves, be seen as potentially having cultural limits. Or, better put, the economic model works well in the United States because not much impedes Coasean-style re-bargaining among the corporate players. Begin with the economic model without limit: Takeovers persisted in the face of anti-takeover law, one can argue, due to executive compensation that paid senior managers to stop strongly opposing takeovers. But executive compensation cannot be varied everywhere as easily as it can be raised in the Untied States. Where it cannot be easily varied, this kind of a Coasean re-bargain is harder than it is here. More generally, culture a) could affect the quality of institutional substitutes, b) could degrade some organizational-types but not others, and c) could reconfigure even a persisting economic model by choosing among equally effective arrangements. Other basic structures of corporate law - indeed, one could imagine even the public firm with diffuse ownership itself - could be subject to the degree to which local norms (and culture) allow parties to vary their deals smoothly. When norms make key variations costly, boundaries to the economic model of a type rarely present in the American corporation appear. I sketch out, with the help of the Symposium's papers, where those boundaries can be glimpsed.

A strong theory has emerged that the quality of corporate law primarily determines whether ownership and control separate, particularly to the extent law stymies controllers' self-dealing transactions that damage minority stockholders. But in several rich nations, shareholders seem satisfactorily protected, but separation is narrow. Something else has impeded separation. Separation should be narrow if shareholders face very high managerial agency costs if ownership diffused. But these agency costs are not corporate law's focus. Judicial doctrine attacks self-dealing, not business decisions that are bad for stockholders. Indeed, the business judgment rule puts beyond direct legal inquiry most key agency costs - such as over-expansion, over-investment, and reluctance to take on profitable but uncomfortable risks. Thus, even if a nation's core corporate law is 'perfect,' it directly eliminates self-dealing, not most managerial mistake or most misalignment with shareholders. If the risk of managerial misalignment varies widely from nation-to-nation, or from firm-to-firm, ownership structure should also vary widely, even if conventional corporate law tightly protected shareholders everywhere from insider machinations. I show why this variation in managerial alignment is likely to have been deep.

Product markets are weaker in some nations than they are in others. Weaker product markets have more monopolies and more monopoly profits, both of which affect politics and corporate governance structures. They affect corporate governance structures directly by increasing managerial agency costs to shareholders, which shareholders then seek to reduce. One would expect corporate governance structures, laws, and practices to differ in nations with monopoly-induced high agency costs from those prevailing in nations with more competition, fewer monopolies, and lower agency costs. The monopoly profits also affect corporate governance structures indirectly by setting up a fertile field for conflict inside the firm as the corporate players - shareholders, managers, and employees - seek to grab those monopoly profits for themselves. And we might speculate that these rents when large enough affect democratic politics and law-making: directly by making monopolists political targets (and political forces); and indirectly as the players inside the firm seek to capture those monopoly profits through political action, with political parties and ideologies (and, in time, laws and standards) that parallel the players' places inside the firm. Data from the industrial organization, finance economics, and political science literature is consistent.

Industrial organization affects the relative effectiveness of the shareholder wealth maximization norm in maximizing total social wealth. In nations where product markets are not strongly competitive, a strong shareholder primacy norm fits less comfortably with social wealth maximization than elsewhere because, where competition is weak, shareholder primacy induces managers to cut production and raise price more than they otherwise would. Where competition is fierce, managers do not have that option. There is a rough congruence between this inequality of fit and the varying strengths of shareholder primacy norms around the world. In Continental Europe, for example, shareholder primacy norms have been weaker than in the United States. Historically, Europe's fragmented national product markets were less competitive than those in the United States, thereby yielding a fit between their greater skepticism of the norm's value and the structure of their product markets. As Europe's markets integrate, making its product markets more competitive, pressure has arisen to strengthen shareholder norms and institutions.

The large public firm dominates business in the United States despite its critical infirmities, namely the frequently fragile relations between stockholders and managers. Managers' agendas can differ from shareholders'; tying managers tightly to shareholders has been central to American corporate governance. But in other economically-advanced nations ownership is not diffuse but concentrated. It is concentrated in no small measure because the delicate threads that tie managers to shareholders in the public firm fray easily in common political environments, such as those in the continental European social democracies. Social democracies press managers to stabilize employment, press them to forego even some profit-maximizing risks with the firm, and press them to use up capital in place rather than to down-size when markets no longer are aligned with firm's production capabilities. Since managers must have discretion in the public firm, how they use that discretion is crucial to stockholders, and social democratic pressures on managers induce them to stray from their shareholders' preference to maximize profits. Moreover, the means that align managers with diffuse stockholders in the United States--incentive compensation, transparent accounting, hostile takeovers, and strong shareholder-wealth maximization norms--are harder to implement in continental social democracies. Hence, public firms in social democracies will, all else equal, have higher managerial agency costs, and large-block shareholding will persist as shareholders' next best remaining way to control those costs. Indeed, when we line up the world's richest nations on a left-right continuum and then line them up on a close to diffuse ownership continuum, the two correlate powerfully. True, the effects on total social welfare are ambiguous; social democracies may enhance total social welfare, but if they do, they do so with fewer public firms than less socially-responsive nations. We thus uncover not only a political explanation for ownership concentration in Europe, but also a crucial political prerequisite to the rise of the public firm in the United States, namely the absence of a strong social democracy and the concomitant political pressures it would have put on the American business firm.

Students will learn the major elements of corporate reorganization in Chapter 11 of the Bankruptcy Code, along with the major facets of bankruptcy that influence financing transactions.

This volume turns the spotlight on the neglected role of employees by analyzing many of the formal and informal ways that employees are actually involved in the governance of corporations, in U.S. firms and in large corporations in Germany ...

Germany lacks good securities markets. Initial public offers are infrequent, securities trading is shallow, and even large public firms typically have big blockholders that make the big firms resemble 'semi-private' companies. These 'private' firm characteristics of German ownership are often attributed to poor legal protection of minority stockholders, to the lack of an equity-owning and entrepreneurial culture, and to permissive rules that allow big banks and bank blockholding in ways barred in the U.S. Here, I sketch out another explanation. German codetermination (by which employees control half of the seats on the German supervisory board) undermines diffuse ownership. First, stockholders may want the firm's governing institutions to have a blockholding 'balance of power,' a balance that, because half the supervisory board represents employees, diffusely owned firms may be unable to create. Second, managers and stockholders sapped the supervisory board of power (or, more accurately, stopped it from developing power). Board meetings are infrequent, information flow to the board is poor, and the board is often too big and unwieldy to be effective. Instead of boardroom governance, out-of-the-boardroom shareholder caucuses and meetings between managers and large shareholders substitute for effective boardroom action. But, because diffuse stockholders will at key points in a firm's future need a plausible board (due to a succession crisis, a production downfall, or a technological challenge), diffuse ownership for the German firm would deny the firm both boardroom and blockholder governance. Blockholder governance would be gone (if the block dissipated into a diffuse securities market) and board-level governance would be unavailable because the shareholders and managers had weakened the board beforehand. Stockholders would face a choice of charging up the board (and hence further empowering its employee-half) or of living with sub-standard (by current world criteria) boardroom governance. In the face of such choices, German firms (i.e., their managers and blockholders) retain their 'semi-private,' blockholding structure, and German securities markets do not develop.

In Japan, large firms' relationships with their employees differ from those prevailing in large American firms. Large Japanese firms guarantee many employees lifetime employment, and the firms' boards consist of insider employees. Neither relationship is common in the United States. Japanese lifetime employment is said to encourage firms and employees to invest in human capital. We examine the reported benefits of the firm's promise of lifetime employment, but conclude that it is no more than peripheral to human capital investments. Rather, the 'dark' side of Japanese labor practice--constricting the external labor market--likely yielded the human capital benefits, not the 'bright' side of secure employment. What then explains the firm's promises of lifetime employment in Japan, a practice that developed following World War II, when labor was in surplus, and hence economically weak? We hypothesize two political explanations, one 'macro' and one 'micro.' The 'macro' hypothesis is that a coalition of conservative and managerial interests sought lifetime employment to reduce the chances of socialist electoral victories. The 'micro' hypothesis is that managers tried to defeat hostile unions and win back factories from worker occupation, firm-by-firm, by offering lifetime employment to a core of workers. Neither the 'macro' nor the 'micro' goals were intended to improve human capital training, but rather to reduce worker influence, either in elections or in the factory. We assess the evidence for these hypotheses. We look at Japanese labor practices and related corporate governance institutions as 'path dependent': A political decision 'fixes' one institution and then the system evolves in light of that fixed institution by developing efficient complementary institutions.

Economic systems produce wealth; law and economics analysts try to determine which laws are more likely to produce greater wealth and, sometimes, which will distribute that wealth acceptably. But for some economic systems, productive arrangements may generate political backlash, and this backlash could complicate the economic analysis. When the potential for wealth-decreasing political instability is high, basic efficiency analysis becomes harder than it would otherwise be. I explain several reasons why, for analyses of American institutions, this awareness of backlash has not been high, why this unawareness is sometimes justified, and when it might not be justified. Some of these reasons are rooted in American history and help to explain the American-centered nature of law economics. I first analyze the complications arising from backlash abstractly, showing how even a wealthy and Rawlsian fair society could deteriorate due to backlash, with markets sometimes unable to remedy the problem. Then I examine plausible foreign instances that fit the abstract model of wealth, fairness, and political backlash that lead to instability, turmoil, and, if not otherwise remedied, lower wealth. Finally I argue that even for the United States, some institutions that are hard to justify on normal efficiency grounds become understandable either as institutions that mitigated backlash or that resulted from backlash. Several American business laws, such as Glass-Steagall, Robinson-Patman, some anti takeover laws, and chapter 11 of the Bankruptcy Code could be seen as examples of backlash or means of avoiding more serious backlash. One could view banking law's fragmentation of finance (via the National Bank Act, the Glass-Steagall Act and related laws), and, say, America's old-style antitrust policy as politically 'efficient': each absorbed political backlash against large-scale enterprise with economically inefficient (but degradeable) structures that, although economically inefficient, did not destroy too much economic value directly and still preserved a core of competition and incentives. As later generations adjusted to large-scale enterprise, Glass-Steagall faded through regulatory reinterpretation, and the old-style antitrust came to be understood as inefficient (and ineffective), leading to its interpretive and enforcement demise. Economically inefficient rules first dampened political backlash, and then faded or reversed as the potential for backlash subsided. Several corporate structures, including anti-takeover laws and corporate reorganization, also fit the description.

This entry for the Palgrave dictionary looks at the recent literature on comparative corporate governance. I examine reasons for the upswing in interest in comparative corporate governance, what the principal national differences seem to be, how different nations pursue different purposes through their corporate governance systems, and what we might learn (and already have learned) about structure, political differences, and convergence in corporate governance systems. I conclude by mentioning some potential pitfalls in comparative scholarship, such as selection bias, inattention to complementarities, and ad hoc comparisons, and I briefly suggest a research agenda.

Germany lacks good securities markets. Initial public offers are infrequent, securities trading is shallow, and even large public firms typically have big blockholders that make the big firms resemble 'semi-private' companies. These 'private' firm characteristics of German ownership are often attributed to poor legal protection of minority stockholders, to the lack of an equity-owning and entrepreneurial culture, and to permissive rules that allow big banks and bank blockholding in ways barred in the U.S. Here, I sketch out another explanation. German codetermination (by which employees control half of the seats on the German supervisory board) undermines diffuse ownership. First, stockholders may want the firm's governing institutions to have a blockholding 'balance of power,' a balance that, because half the supervisory board represents employees, diffusely owned firms may be unable to create. Second, managers and stockholders sapped the supervisory board of power (or, more accurately, stopped it from developing power). Board meetings are infrequent, information flow to the board is poor, and the board is often too big and unwieldy to be effective. Instead of boardroom governance, out-of-the-boardroom shareholder caucuses and meetings between managers and large shareholders substitute for effective boardroom action. But, because diffuse stockholders will at key points in a firm's future need a plausible board (due to a succession crisis, a production downfall, or a technological challenge), diffuse ownership for the German firm would deny the firm both boardroom and blockholder governance. Blockholder governance would be gone (if the block dissipated into a diffuse securities market) and board-level governance would be unavailable because the shareholders and managers had weakened the board beforehand. Stockholders would face a choice of charging up the board (and hence further empowering its employee-half) or of living with sub-standard (by current world criteria) boardroom governance. In the face of such choices, German firms (i.e., their managers and blockholders) retain their 'semi-private,' blockholding structure, and German securities markets do not develop.

This text has grown out of a conference entitled Comparative Corporate Governance, An International Conference, United States - Japan - Western Europe which considered the subject.

The distinctive ownership and governance structure of the large American corporation-with its distant shareholders, a board of directors that defers to the CEO, and a powerful, centralized management-is usually seen as a natural economic outcome of technological requirements for large-scale enterprises and substantial amounts of outside capital, most of which had to come from well-diversified shareholders. Roe argues that current U.S. corporate structures are the result not only of such economic factors, but of political forces that restricted the size and activities of U.S. commercial banks and other financial intermediaries. Populist fears of concentrated economic power, interest group maneuvering, and a federalist American political structure all had a role in pressuring Congress to fragment U.S. financial institutions and limit their ability to own stock and participate in corporate governance. Had U.S. politics been different, the present ownership structure of some American public companies might have been different. Truly national U.S. financial institutions might have been able to participate as substantial owners in the wave of end-of-the-century mergers and then use their large blocks of stock to sit on the boards of the merged enterprises (much as Warren Buffett, venture capitalists, and LBO firms like KKR do today). Such a concentrated ownership and governance structure might have helped to address monitoring, information, and coordination problems that continue to reduce the value of some U.S. companies. The recent increase in the activism of U.S. institutional investors also casts doubt on the standard explanation of American corporate ownership structure. The new activism of U.S. financial institutions-primarily pension funds and mutual funds-can be interpreted as the delayed outbreak of an impulse to participate in corporate ownership and governance that was historically suppressed by American politics.

I refine here the classical evolutionary model from law and economics by modifying it to accommodate three related concepts, one from chaos theory, another of path dependence, and a final one of politically-induced punctuated equilibrium from modern evolutionary theory itself. Although economic evolution selects out for extinction very inefficient results, and efficient results tend to survive, the evolutionary metaphor is by itself not rich enough to explain enough of what we see surviving, nor is it rich enough to explain fully how what survives survived. Within the looseness of acceptable efficiency, what survives depends not just on efficiency but on the initial, often accidental conditions (chaos theory) that establish an institutional structure inside which the economic players evolve. What survives also depends on the history of what problems had to be solved in the past -- problems that may be irrelevant today (path dependence); solutions to what later become irrelevant problems can be embedded in slowly-changing institutional structures. Although institutions cannot be too inefficient if they have survived, evolution toward efficiency constrains but does not fully determine the institutions we observe.

In this essay, I analyzed changes in the law's impact on the corporation during the past thirty-five years, what the underlying bases for these changes might have been, and how these changes affected corporate law. When the first Corporation and Modern Society symposium was held in 1959, today's issues, such as competitiveness, were hardly apparent, and the issue of colossal corporate power was paramount. Antitrust law in particular was seen to be a means to restrain the large corporation. Underlying the 1959 urge to tame the large corporation was the widespread existence (or at least perception) of industrial oligopoly. It was oligopoly (or perhaps really the superior efficiency of a few American manufacturing leaders) that gave the large firm slack and induced the widespread perception of its power. What erased that image of power in the ensuing decades is clear: the reconstruction of Europe and Japan forced the American manufacturing oligopolists to compete in the international arena; an accelerating pace of technological change made old structures obsolete and brought forth new domestic competitors. While many of the old industrial firms were, or became, fit to compete in the new international arena and to ride the waves of new technological change, some weren't. Even the fit ones have to sweat to survive and cannot relax as they did four decades ago, making competitiveness considerations overshadow those of corporate power. Globalization changed the 1959 attitudes and shifted the legal focus on the corporation. Antitrust attacks to break up the giants seemed politically sensible when the three oligopolists split the U.S., and sometimes the world, market. They made no sense when the three came to be embedded in a world-wide market of ten firms. Antitrust rules relaxed. The notion of using law to control corporate power faded, and the legal questions began to focus on whether law plays some role in hindering, or enhancing corporate competitiveness.