637. Mark Roe, Washington and Delaware As Corporate Lawmakers, 4/09; subsequently published as “Delaware and Washington as Corporate Lawmakers” in Delaware Journal of Corporate Law, Vol. 34, 2009, 1-33.
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.