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Ronald J. Gilson & Reinier Kraakman, Takeovers in the Boardroom: Burke Versus Schumpeter, 60 Bus. Law. 1419 (2005).

Abstract: This article, written on the occasion of the 25th anniversary of Martin Upton's 1979 article, Takeover Bids in the Target's Boardroom expresses the view that Takeover Bids is a Burkean take on a messy Schumpeterian world that, during 1980s, reached its apex in Drexel Burnham's democratization of finance through the junk bond market. The authors of this article reflect on the irony that today, long after the Delaware Supreme Court has adopted many of Upton's views, there is a new market for corporate control that no longer poses the threats—or supports the opportunities— that the market of the 1980s created. Today's strategic bidders and their targets share the same boardroom views. And for precisely this reason, "just say no" is no longer the battle cry that it once was. It stirred the crowds in the past precisely because hostile takeovers could be credibly depicted as a sweeping threat to the status quo—a claim that no one would make about today's strategic bidders. The market for corporate control now is a process of peer review, rather than an instrument of systemic change. What is lost as a result is just what, in the conservative view, has been gained: the capacity of the market for corporate control to ignite the dynamism that in our view has served the U. S. economy so well. Although Lipton may still lose today's battle to allow targets to just say no to intra-establishment takeovers, he will still have won the larger war. The authors of this article conclude that for now, at least, boardrooms are insulated from much of the force of a truly Schumpeterian market in corporate control of the sort we briefly glimpsed during the 1980s.