Lucian Bebchuk and Assaf Hamdani, "Vigorous Race or Leisurely Walk: Reconsidering the Competition Over Corporate Charters," 112 Yale Law Journal (2002)
The long-standing debate on state competition in corporate law has been largely premised on a widely held belief that, whether the race is to the top or the bottom, states vigorously race to attract incorporations. We argue that that this belief is in fact incorrect. We discuss evidence indicating that firms incorporate either in Delaware or in their home state, that no firm other than Delaware has any meaningful share in the out-of-state incorporation market, and that Delawares share of incorporations is growing. This pattern, coupled with other evidence, indicates that Delawares position in the incorporation market is far more dominant and secure, and the threat to its dominance is far weaker, than has been previously recognized. We also seek to provide in this paper an industrial organization analysis of the incorporation market that explains why the competitive threat facing Delaware form other states is so weak. Among other things, we identify features of this market that make a challenge to Delawares dominance by another state unlikely to be optimal. Finally, we examine the implications of the weak-competition account of the incorporation market that we develop. This account casts substantial doubt on the extent to which state competition can be relied on -- even on the most favorable view of it to produce optimal corporate rules. This account also strengthens the case for some form of federal intervention; at the minimum, it would be desirable for federal law to invigorate competition by permitting shareholders to initiate and approve reincorporations and by providing a federal incorporation option.
Last updated: Dec. 2002
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