The Corporate Contract in Changing Times: Is the Law Keeping Up?

The Corporate Contract in Changing Times

The Corporate Contract in Changing Times

Is the Law Keeping Up?

EDITED BY STEVEN DAVIDOFF SOLOMON AND RANDALL STUART THOMAS

The University of Chicago Press

CHICAGO & LONDON

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2019 by The University of Chicago

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637.

Published 2019

Printed in the United States of America

28 27 26 25 24 23 22 21 20 19    1 2 3 4 5

ISBN-13: 978-0-226-59940-3 (cloth)

ISBN-13: 978-0-226-59954-0 (e-book)

DOI: https://doi.org/10.7208/chicago/9780226599540.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Davidoff Solomon, Steven, 1970– editor. | Thomas, Randall S., 1955– editor.

Title: The corporate contract in changing times : is the law keeping up? / edited by Steven Davidoff Solomon and Randall Stuart Thomas.

Description: Chicago ; London : The University of Chicago Press, 2019. | Includes bibliographical references and index.

Identifiers: LCCN 2018035074 | ISBN 9780226599403 (cloth : alk. paper) | ISBN 9780226599540 (ebook)

Subjects: LCSH: Contracts—United States. | Contracts—Delaware. | Corporations—Investor relations—United States. | Corporations—Finance—Law and legislation—United States.

Classification: LCC KF801.C677 2019 | DDC 346/.066—dc23

LC record available at https://lccn.loc.gov/2018035074

This paper meets the requirements of ANSI/NISO Z39.48–1992 (Permanence of Paper).

Contents

Foreword

Leo E. Strine Jr.

Introduction

CHAPTER 1.   Why New Corporate Law Arises: Implications for the Twenty-First Century

Robert B. Thompson

CHAPTER 2.   The Rise and Fall of Delaware’s Takeover Standards

Steven Davidoff Solomon and Randall S. Thomas

CHAPTER 3.   In Search of Lost Time: What If Delaware Had Not Adopted Shareholder Primacy?

David J. Berger

CHAPTER 4.   The Odd Couple: Delaware and Public Benefit Corporations

Michael B. Dorff

CHAPTER 5.   Delaware’s Diminishment?

Hillary A. Sale

CHAPTER 6.   Delaware and Financial Risk

Frank Partnoy

CHAPTER 7.   Hedge Fund Activism, Poison Pills, and the Jurisprudence of Threat

William W. Bratton

CHAPTER 8.   Corporate Governance beyond Economics

Elizabeth Pollman

CHAPTER 9.   The Many Modern Sources of Business Law

Colleen Honigsberg and Robert J. Jackson Jr.

CHAPTER 10.   Appraisal after Dell

Guhan Subramanian

CHAPTER 11.   Boilermakers and the Contractual Approach to Litigation Bylaws

Jill E. Fisch

CHAPTER 12.   Litigation Rights and the Corporate Contract

Verity Winship

CHAPTER 13.   Private Ordering Post-Trulia: Why No-Pay Provisions Can Fix the Deal Tax and Forum Selection Provisions Can’t

Sean J. Griffith

CHAPTER 14.   International Compliance Regimes

Stavros Gadinis

List of Contributors

Index

Foreword

Leo E. Strine Jr.

As you read this provocative collection of incisive reflections on whether the corporate contract is keeping up with changing times, you might usefully reflect on this question: Is corporate law scholarship keeping up with a rapidly changing world?

This excellent gathering of thoughts from many of America’s leading corporate law scholars brought this question to my mind as I considered how some of our best minds have approached new dynamics from what largely seem to be the same perspectives that have long shaped academic corporate law thinking. Writing a foreword that does justice to such a diverse collection of provocative essays is a task, as an evidence treatise would say, beyond my ken. What you take from the essays will inevitably depend on your perspective, the mood you are in when you dig into them, and your openness to new ideas.

Perhaps the only real service I can be to you, the reader, is to share a few reactions I had to the collection, with the idea that they may inspire you to consider how the various pieces, taken as a whole, might reveal some promising paths forward for new thinking and policy ideas.

As in most cases when various minds come together, the most interesting way to read this collection is to consider the dissonance of the various perspectives, and what that suggests about the state of thinking and of actual corporate governance dynamics. For example, several eminent scholars¹ suggest that Delaware has adopted a form of corporate law, of both the statutory and common law variety, that limits stockholder influence markedly.² They also seem to lament the relative scarcity of judicial injunctions, yearning nostalgically for another period such as 1985–1988, when they were all the rage.³ By contrast, another learned commentator bemoans the extent to which Delaware corporate law has required directors, within the limits of their legal and ethical discretion, to make stockholder welfare the end of for-profit corporate governance, with other constituencies entitled to consideration only to the extent that doing so is consistent with advancing stockholder welfare.⁴ Because of Delaware’s prominence, he speculates that judicial rhetoric elevating other constituencies to the same level as the only constituency given rights in the Delaware General Corporate Law would have stimulated much different, other-regarding behavior by corporations. Still others suggest that recent Delaware efforts to adopt a form of for-profit corporation that explicitly requires that all corporate constituencies be treated as an end of governance and be treated with due regard are arguably unnecessary because all Delaware corporations can already do that.⁵

What I found curious in this clash, honestly, was the lack of a consistent focus on the power structure established by Delaware law (and utilized in concert with federally mandated disclosures and Rule 14a-8) that has affected the real world within which for-profit public entities that make products and deliver services must operate. Bemoaning the absence of injunctions under Unocal and Revlon in an era when structural defenses have been largely torn down and it has never been easier to take over a company without a fight seems to miss the most important reality. Suggesting that somehow Delaware judicial protection of the ballot box has been eroded in an era when proxy fights are more common than ever, dissident directors are regularly seated on boards, and companies back down constantly at the threat of a fight also seems to be misdirected. But then again, so, too, does suggesting that the world would be a different place if the Delaware judiciary had simply stated that directors of for-profit entities could regard constituencies such as workers and the community as equal ends of for-profit governance with the only citizens recognized by American corporate law—stockholders. After all, in jurisdictions in the United States where antitakeover and constituency statutes were adopted, there is no discernible trend toward protecting other constituencies. Outsourcing, offshoring, and regulatory shortcuts are just as, if not more, common, in corporations chartered in such states. Perhaps all that is different is that management has had more potential to use those statutes as leverage for itself. No trend of their use for workers exists.

Likewise, I yearned to see in the chapters a connection between the incentive systems within which key actors work and the policy points. For example, the excellent chapter on the importance of director oversight in the context of financially important firms cries out for a recognition that market pressures on corporate governance may have led bank boards to be less equipped to manage externality risk and less willing to do so.⁶ Firms that engaged in the activities that led to the financial crisis got a premium for that behavior before the bubble burst.⁷ And of course, these very financial institutions had lobbied to relax the regulatory framework within which they conducted huge-scale financial activity, posing risks for our entire economy. Not only that, but the push for heightened independence standards and boards with large supermajorities of independent directors may have led to the seating of supposedly independent directors with no industry or professional experts to oversee risk effectively and who were more responsive to immediate market pressures than to the interests of long-term stockholders and the stability of the financial system more generally. Is it really that Caremark⁸ with more teeth would do the trick? Or do we need to address the power dynamics that affect corporate boards, including the behavior of institutional investors and their priorities?

Put simply, I sense that clear-eyed and big-hearted thinkers such as Adolf Berle, as a corporate law specialist, or George Orwell, as a keen observer of human affairs, would be struck by the extent to which these learned thinkers let their priors and focus on past policy debates distract them from the more important overall trends in the real world over the past decades. The comparative strength of stock market forces over corporations has grown, just as all for-profit corporations have been forced to deal with intense international competition in product and services markets. In an environment where only one corporate constituency has power, when the legal moves have shifted power to the directors most sensitive to stock market pressures and the reputational threat of tangling with stockholder activists—professional independent directors with no strong ties to any company and with an ardent desire to stay in the independent director network—it is not surprising that corporations have increasingly adopted the business and governance policies that the most vocal in the market demand. The most vocal does not mean the most rational, and none of the chapters focus on this fact. Rather, the most vocal are the most active traders, the ones who deviate from stable buy-and-hold policies the most and, of course, those for whom corporate governance sport has become a hobby. As a result, corporate governance policies have moved in the direction of a corporate California approach, where plebiscites may be held routinely and where business strategies are highly responsive to market demands for higher payouts, more leverage, and a receptivity to acquisitions and spin-offs.

That none of the chapters commissioned on the cutting-edge topic of this collection addresses in a focused way the behavior and incentives of the class of fiduciaries who control the most capital of the most Americans—institutional investors such as mutual funds and pension funds—is a bit remarkable. So, too, is the comparative bloodlessness of the essays. Lost in these essays’ expert and close focus on the mechanics of corporate law is a larger perspective on what our corporate governance system is supposed to do and why we charter for-profit entities with special rights such as limited liability and perpetual life spans.

The reality that almost every investor owes more to her ability to get a quality job than to her stock portfolio’s performances is not a theme. The reality that externality risks—such as environmental degradation from climate change and pollution, dangerous working conditions, unsafe products, and the dislocating effect of events such as the financial meltdown—loom large for human investors is not a theme. The reality that most human investors do not have a say in the system and must effectively give money managers their wealth until retirement does not really get a mention. The reality that those to whom human investors must turn over their capital have fundamentally different interests than their human investors is barely touched upon.

In an era when corporate wealth and the wealth of other moneyed interests swamps the political system that is supposed to regulate the corporations society has created, pressures on the corporate law model are apparent, but they are not explored in these chapters. Traditionally, the argument has been that corporate law itself should not focus on the protection of other constituencies and the problem of externality risk, because that was a job for other bodies of positive law. But when corporations increasingly have no geographic identity and not even any basic national loyalty—consider the wave of inversions, which, put bluntly, involves forsaking American citizenship—there is little reason to think that boards will become more socially responsible absent strong external boundaries, which include not just norms but actual laws. And in a world where money management firms that do not breathe air, work in factories or stores, or have any of the other attributes of actual human investors are the direct stockholders, corporations are increasingly free to act on the political system itself, through large lobbying and political expenditures. These corporate efforts to determine who represents us and what they do in office can be expected to focus not on the larger public interest but on diminishing governmental regulation of specific industries and on seeking rents from taxpayers.

The cumulative effect of a corporate governance system that puts tremendous pressure on each company to deliver the highest profits at all times, that frees companies to act on the political process to increase returns without constraint from human investors, and that makes corporations increasingly subject to influence by immediate plebiscite is of questionable utility to the human beings for whom corporations were supposedly created. Most human beings invest for the genuinely long term. Bubbles do not help them; they wound them deeply, in the form of lost jobs, lower pay, and less wealth. Market forces that pressure corporations to externalize risks hurt them. Market pressures that encourage corporations to outsource, offshore, and otherwise reduce levels of employment and underinvest in human capital simultaneously make more scarce that which human investors need more than anything: access to quality jobs.

But that is not to say that these realities are entirely absent from this volume. Even when not explicitly addressed, many of these thoughtful essays acknowledge and begin to grapple with the clash of agents that can ill serve the humans for whom our system of corporate governance is supposed to work, even if they do so within the context of today’s doctrine. For example, in their piece on changes in how the standards articulated in Revlon and Unocal are applied, Professors Davidoff Solomon and Thomas identify short-termism as a growing, potentially troubling phenomenon and observe that traditional common law constructs may not be sufficient to regulate short-term-focused behavior.⁹ Similarly, Professor Bratton makes a workmanlike contribution to literature on how defensive measures could adapt to the reality that, today, one sort of agent—activist hedge funds—is more likely to threaten a corporation than the sort of agent—corporate raiders and takeover artists—for whom poison pills were originally engineered.¹⁰ In addition to being likely to intrigue readers interested in fine-tuning or confounding corporate defenses, Professor Bratton’s chapter implicitly highlights the limits of corporate law doctrine in addressing the gap between the long-term needs of human investors and the short-term forces unleashed by their agents. Although these pieces, and others in the volume, tend to highlight the limits of current doctrine, David Berger’s consideration of what would be different if Delaware’s corporate law recognized corporate duties to constituencies other than shareholders also should remind readers of the broad potential for defining the roles of the different actors in our corporate governance republic.¹¹ Berger usefully highlights the role that agents other than shareholders have historically played in our corporate governance republic,¹² which should serve as useful food for thought for readers inclined to contemplate the current state of our corporate governance republic. Likewise, Professor Pollman’s forward-looking essay¹³ warns of developments that herald a serious shift in power relationships within society, with judicial rulings and other developments tilting the balance of power in noneconomic spheres away from the society that gives life to business entities and toward these artificial creations, with worrisome implications for people trying to constrain corporate behavior that is socially harmful.

Like some of the best works of literature, the pieces by Professors Honigsberg and Jackson, and Professor Subramanian, invite the reader to help fill in the details of their ambitious, but admittedly sketch-form, examination of cutting-edge developments on the diverse topics of appraisal rights, financial technology, and the optimal balance of proscriptivity in corporate law. Although some might criticize their works as allowing readers with totally divergent views of the specific direction in which policies in these areas should point to claim these works for their own cause, these expansive, yet terse, expressions of the authors’ viewpoints puts up a big tent at a time when many yearn for a more inclusive society.

In sum, I found these essays thought-provoking, and many of them bear consideration for useful progress on small-bore measures. In that vein, Professors Fisch and Winship dive into the realities of shareholder litigation and offer insightful analysis of the current balance of power between shareholders and boards in the litigation context.¹⁴ So, too, does Professor Griffith advance a proactive proposal¹⁵ to check rent seeking by stockholder plaintiffs. These important chapters give a sense of the increasing recognition that the hope that institutional investors would act to diminish litigation when it poses no benefits for investors and pursue claims only when there are bona fide reasons to do so has been dashed and that serious conflicts of interest between end-user investors and the most constant plaintiffs remain, and remain unaddressed.

Overall, this diverse and lively group of essays made me yearn to see these excellent thinkers dig deeper and reflect on this related question: What precisely is the contract between the human beings for which society exists and the corporations that society creates? Is it one supposed to benefit human beings? Or is it to benefit the layers of agents who now feast on the wealth and power that the contract now bestows upon them, to the virtual exclusion of the human beings from which that wealth and power flows?

Notes

1. Robert B. Thompson, Why New Corporate Law Arises: Implications for the Twenty-First Century, infra chapter 1; Steven Davidoff Solomon and Randall S. Thomas, The Rise and Fall of Delaware’s Takeover Standards, infra chapter 2.

2. See Thompson, supra note 1, at 7–9; Davidoff Solomon and Thomas, supra note 1, at 7–8.

3. See Davidoff Solomon and Thomas, supra note 1, at 4–8, 10–11.

4. David J. Berger, In Search of Lost Time: What If Delaware Had Not Adopted Shareholder Primacy?, infra chapter 3.

5. Michael B. Dorff, The Odd Couple: Delaware and Public Benefit Corporations, infra chapter 4.

6. Frank Partnoy, Delaware and Financial Risk, infra chapter 6.

7. See William W. Bratton and Michael L. Wachter, The Case against Shareholder Empowerment, 158 U. PA. L. REV. 653, 718–21 (2010).

8. In re Caremark Intern. Inc. Derivative Litig., 698 A.2d 959 (Del. Ch. 1996).

9. Davidoff Solomon and Thomas, supra note 1, at 12, 15.

10. William W. Bratton, Hedge Fund Activism, Poison Pills, and the Jurisprudence of Threat, infra chapter 7.

11. Berger, supra note 4.

12. E.g., id. at 36, 46.

13. Elizabeth Pollman, Corporate Governance beyond Economics, infra chapter 8.

14. Jill E. Fisch, "Boilermakers and the Contractual Approach to Litigation Bylaws, chapter 11; Verity Winship, Litigation Rights and the Corporate Contract," infra chapter 12.

15. Sean J. Griffith, "Private Ordering Post-Trulia: Why No-Pay Provisions Can Fix the Deal Tax and Forum Selection Provisions Can’t," infra chapter 13.

Introduction

Enormous changes are occurring in our capital markets as shareholder activists become increasingly prominent, institutional investors gain power, and capital markets intermediaries such as proxy advisory firms play increasingly important roles. Corporations, and their boards of directors, are also increasingly uncertain how to respond to these new dynamics and adhere to predefined fiduciary duties to stockholders. The uncertainty has led to schizophrenic responses, including the increasing use of dual-class stock and wholesale corporate governance changes of uncertain validity designed to fight off or placate certain shareholder groups.

We believe that these enormous changes merit a review of corporate law to examine needed adjustments for these revolutionary times. For example, much of the case law governing corporate conduct was created in another time—the 1980s—and designed to meet another disruptive force—hostile takeovers. Is it time to reexamine this case law and create new laws for possibly different threats? Alternatively, statutory laws such as the rules governing appraisal rights seem ripe for a complete review in the wake of appraisal arbitrage.

To examine these and related questions, the University of California, Berkeley, School of Law and Vanderbilt University Law School organized a conference on April 14 and 15, 2016, entitled The Corporate Contract in Changing Times: Is the Law Keeping Up? The conference was cosponsored by the law firm of Wachtell, Lipton, Rosen and Katz and spearheaded by us as well as Bill Savitt at Wachtell, Lipton.

The conference was a great success, with more than 250 attendees. It brought together leading judges, academics, practitioners, and other industry participants to discuss these and other related questions. Chief Justice Strine and Chancellor Andre Bouchard of the Delaware Supreme Court and Delaware Chancery Court, respectively, participated.

This book is a collection of the papers presented at that conference, and a modest attempt to bring more understanding and cohesion to future corporate law.

Steven Davidoff Solomon

Randall S. Thomas

CHAPTER ONE

Why New Corporate Law Arises

Implications for the Twenty-First Century

Robert B. Thompson

Corporate law is facing calls for change that are more intense than those heard in decades. Shareholders are more aggressively pushing back against management. In turn, other corporate stakeholders are expressing increasing concern about shareholders’ use of their power for selfish reasons and the perceived pernicious impact of shareholder wealth maximization as a guide for corporate law. Why does corporate law change, and how it might change now?

Corporate law changed regularly in the first half of our country’s history. A series of innovations followed one after another during the nineteenth century, including limited liability, general incorporation statutes, a strong shift to director-centric corporate governance, authorization of corporations holding stock in other corporations, and the disappearance of ultra vires and other limits on corporate behavior. By the arrival of the twentieth century, all the key economic elements of the modern corporation were in view, and corporate law settled into a stable pattern we still see today. State law abandoned its prior regulatory approach and its continual change in favor of a director-centric structure with expansive room for private ordering that has remained remarkably stable. Federal law stepped in to restrain economic concentration (antitrust law), to protect employees and consumers against corporate power (done by industry regulation and employment and consumer laws, not corporate governance), to limit corporate political contributions, and to make recurring, if sporadic and noncomprehensive, efforts to enhance the role of shareholders against managers.

This chapter examines this history of change in corporate law in America, the dramatic and abrupt shift in the focus of state corporate law visible in the last decade of the nineteenth century, the interactive pattern of state and federal law that has grown up over the second half of the country’s history, and prominent theories explaining what leads to corporate law change. Together these various strands suggest there will be no fundamental change in corporate law even in this time of visible stress to the now classic structure.

Prior Changes in Corporate Law

Over the first decades of the nineteenth century, for-profit corporations came to supplant religious, charitable, and quasi-public (bridge or turnpike) entities as principal users of the corporate form (Blumberg 1990). Corporate law changes reflected and facilitated this trend. By the end of the century, the modern corporation was in view with the economic characteristics that are familiar to twenty-first-century lawyers and business people. The 1890s presented a key inflection point for corporate law. States abandoned their regulatory approach to corporations in favor of permissive laws that were director-centric in their allocation of power and left ample room for market decision making, contracting, and private ordering. The government’s regulatory impulse did not disappear, however, but came to be expressed in various regulatory regimes in federal law—for example, antitrust, worker protection, and the parts of federal securities laws that addressed corporate governance.

Changes over the Nineteenth Century

Corporations evolved dramatically over the nineteenth century in America, accompanied by recurring changes in corporate law. The legal changes occurred incrementally among the various states over multiple decades, often with each change occurring in partial steps in an individual state, making the national change seem even more incremental. The statutory changes in turn reflected fundamental economic and financial changes that were taking place on the ground that continued to evolve. By the end of the century, these various trends had jelled into a legal form we would recognize as the modern corporation and a regulatory structure that would be familiar to modern corporate lawyers. The components of this dramatic transformation of the corporation and its regulatory structure included: (1) growth in the number of corporations and the increasing dominance of for-profit entities; (2) limited liability for shareholders becoming the usual rule; (3) the move from special legislative chartering of each corporation to general incorporation laws; (4) evolution in the corporate form to facilitate centralized management and the rise of middle management in business to take greater advantage of this corporate characteristic; (5) public trading of stocks; and (6) permitting corporations to own stock in other corporations.

Growth in the Number of Incorporations and the Increasing Dominance of For-Profit Entities. Joseph Ellis (2015) has described the move to the Constitution from the Declaration of Independence (and the weak Articles of Confederation that connected the newly independent states) as a second American revolution that turned on a change in the size of the world that Americans defined for themselves. In the colonial period, the geographic space citizens considered relevant for their political and business life was small, perhaps thirty miles; giving powers to a national government seemed too likely to reprise the oppression of the British crown against which the revolution had been fought. But the dysfunction of the confederation government, and perhaps some sense of the economic possibilities in a larger republic, led to a change in the form of government, which facilitated a broadened geographic frame of reference for politics that would soon be followed in American business. Over time there was opportunity, and a greater need, for enterprises that assembled the capital from more than one person (Livermore 1939), and over time improvements in transportation and machinery increased the size of the market in which entrepreneurs could compete effectively. The result was a dramatic increase in the number of corporations, particularly for-profit corporations, in the early nineteenth century.

Some of the most visible early nineteenth-century corporations were created for bridge or turnpike companies; these infrastructure projects were needed by the community but were financed with private funds under a governmental charter, leading to a close association in the minds of the public between specially chartered corporations and worries about privilege and monopoly. Banking corporations were common and the subject of much of the Supreme Court litigation of the period (Blair and Pollman 2015), raising questions of how to regulate entities affecting the money supply and similar issues that invoked core public issues. By the 1830s, manufacturing corporations exceeded those in banking, insurance, and public service and the number was growing (Blumberg 1990); more companies were incorporated in Illinois in the 1850s than in the entire first half of the century (Dodd 1936).

Limited Liability. As the size of markets and the need for capital in a particular business grew, limited liability was seen as a way to encourage entrepreneurial risk taking. Several states adopted such rules in the first two decades of the nineteenth century. Massachusetts moved to limited liability for shareholders in 1830, and this rule became common in other states for corporations. Even so, it did not provide complete insulation from limited liability. Double liability, subjecting shareholders to personal liability for corporate obligations beyond their original investment up to an additional sum equal to that amount, remained the norm for the remainder of the century (and continued for California corporations and for national banks into the middle of the twentieth century) (Horwitz 1986).

General Incorporation Statutes. Concerns about privileges provided to incorporated businesses at the expense of the larger population, mixed in with Jacksonian opposition to rechartering the Bank of the United States (banks generally being one of the most visible groups of incorporated entities), led to passage of general incorporation statutes in some states in the 1830s and 1840s and in almost all states by 1875 (Hamil 1999). This may be the largest single statutory change for corporate law over the nineteenth century, but consistent with the other changes, it happened incrementally—four states in the 1830s, three in the 1850s, and continuing to build (Hilt 2008). Even as the states moved to provide general incorporation, many of them did not prohibit state legislatures from continuing to provide special charters to individual companies on whatever terms the legislature desired. Delaware, for example, had a general incorporation statute as early as 1875 (and relaxed the conditions for the use of the general statute in 1883); even so, in 1897, just before Delaware’s modern statute of 1899, the number of special charters (115) was more than eleven times greater than the ten entities that used the general incorporation law for that same year (Arsht 1976).

Eric Hilt traced the impact of Massachusetts’s general corporation act of 1851, under which the state continued to retain special chartering from the legislature after enacting a general incorporation statute. Hilt found that the firms created under the general act looked quite different from firms chartered prior to 1851 (when special chartering was the only option) or firms that used the special charter route after 1851 (Hilt 2008, at 25). They were more diffuse in their industries and geography than the specially chartered firms, were significantly smaller with fewer shareholders, and had much higher degrees of managerial ownership (Hilt 2008).

Centralized Management. Centralized management has long been an advantage of the corporate form, but its use in business corporations changed dramatically in the nineteenth century, for both legal and economic reasons. Educational and other charitable and nonprofit corporations had previously received charters that put control in a board of trustees or directors. Livermore’s treatment of land companies on the western frontier before and after the Revolutionary War shows some degree of centralized governance in these business firms even without charters in a setting where citizens were making side investments to their everyday commercial pursuits (Livermore 1939).

General use of centralized management was later in coming than the two characteristics of limited liability and general incorporation just described. New Deal Supreme Court Justice Wiley Rutledge, in his earlier role as a corporations law professor, observed that the general incorporation laws of the nineteenth century were designed primarily to extend the privilege of limited liability to what may be termed ‘incorporated partnerships’ and relatively local joint stock companies rather than the creation of institutions national in the spread of their securities and activities (Rutledge 1937 at 307). Noted business historian Alfred Chandler similarly described the increasing use of the incorporated stock company in the early nineteenth century, but through the 1840s he saw no change in the relatively decentralized governance characteristics that still proved satisfactory for most businesses (Chandler 1977).

Over the latter half of the nineteenth century, there was a gradual decline in the importance of the general meeting of shareholders as reflected in the broadening power exercised by directors. Dodd (1936) noted, for example, the very broad powers given directors in general incorporation acts such as that of Illinois in 1872. Horwitz (1986 at 182) identified this late nineteenth-century shifting of power away from shareholders to directors so that after 1900 directors were treated as equivalent to the corporation itself.

The legal changes reflected the evolution in market and financial conditions after the Civil War, when innovations propelled by the Industrial Revolution and changes in transportation, manufacturing, and distribution increased the scope of markets in which firms could compete. Middle management that had not earlier existed became a common feature of corporations, and managers who did not own a majority of shares acquired effective control of many firms. Depending on how businesses became large in this new environment, some firms whose internal growth was sufficient to meet their capital needs became managerial under the control of the founders or family. By contrast, firms that needed outside capital to become large and take advantage of the new economies of scale were run by managers with only a minority of stock ownership (Chandler 1977). Once statutes provided for control by directors, as set out in the early Delaware general incorporation statutes described below, and provided for director appointment of other officers and agents, the statutory structure was sufficiently malleable to permit the growth of top executives and middle managers as economic conditions evolved.

Public Trading of Stocks. Like the centralized control just described, public trading of stock reflected the changing possibilities provided by evolving markets and finance. Early general corporation statutes proclaimed stock to be personal property and provided for its sale by means set forth in the bylaws (Hilt 2015 at 9). After the Civil War, stock exchanges expanded to include a larger number of manufacturing firms that effectively provided free transferability across a broad range of America’s largest firms without the need for any bylaw provision or private contracting (Navin and Sears 1955 at 107–8). By the end of the nineteenth century, free transferability had developed to the point where it became a usual characteristic of the modern conception of a corporation.

Recognition of Holding Companies. The last characteristic of the modern corporation to appear in the nineteenth century was the statutory grant to corporations to own stock in other corporations. Changes in economic and financial conditions showed the benefit of controlling entities operating in multiple states. Yet doing business outside the state of incorporation presented some difficulty for corporations given a Supreme Court decision in 1839 that declined to find such a constitutional right for corporations.¹ Entrepreneurs such as John D. Rockefeller looked to trusts as a way to structure the burgeoning oil refinery business that he was assembling.² He organized the South Improvement Company in the 1870s and then made Standard Oil into a trust in the 1880s, providing the same centralized control available within the corporate form but without the limits in operating across state lines or owning stock in other corporations (Chandler 1977 at 323). When state courts in Louisiana, New York, and Ohio found trusts in cotton, sugar, and oil violated state corporations laws, New Jersey came to their rescue. In 1888 and 1889, amendments to the New Jersey corporations statute authorized corporations to own stock in other corporations (Horwitz 1986 at 195).

The Modern Corporation in View: The Inflection Point in the Late Nineteenth Century That Shaped Corporate Law

By the late 1880s, all the elements of the modern corporation were in view (if not yet spread to all corners of the country). It was a coming together of the expansion in the geographic and industrial scale that could be supported in the growing American economy and the administrative ascendancy of middle managers (Chandler 1977). Corporate law reflected and facilitated these changes; the liberalizations of New Jersey’s general incorporation act of 1896 provided no limit on a corporation’s duration, permitted incorporation for any lawful purpose and to carry on business in other jurisdictions, authorized mergers and consolidations, and enabled director amendments of bylaws (Strine and Walter 2015). New Jersey became the home not just of Standard Oil but of a substantial percentage of larger New York businesses. The race among the states was on, with New Jersey being the early favorite and Delaware stepping into New Jersey’s shoes after that state’s governor, Woodrow Wilson, pushed reform on his way to Washington to assume the presidency (Yablon 2007). This period also saw a decline in other traditional restrictions on corporations—the disappearance of ultra vires and quo warranto actions that had been used to limit corporations’ acts—and a similar shriveling of state efforts to assert control over foreign corporations (Horwitz 1986).

Here we see a wholesale state law abandonment of the prior regulatory approach to corporations in favor of the permissive director-centric approach with more room for private ordering that still characterizes American corporate law. Joel Seligman (1976) termed it a revolution wrought in the law of corporations (264) that led to general incorporation statutes that turned corporate law inside out (273). Similarly, Justice (then Professor) Rutledge described the New Jersey law of 1887–1891 as destined eventually to reverse the historic policy of the states [and] to place state policy fundamentally in opposition to that of the Federal government (Rutledge 1937 at 311–12).

This point of inflection was recurringly described as following from the underlying changes in an economy where size seemed inevitable. Rutledge (1937 at 311–12) characterizes prior corporations statutes (horse and buggy statutes he called them) as antiquated and inadequate to the needs of modern high-powered business organized, on a mass-production scale. . . . It may be that a society organized as broadly as ours is upon the basis of machines and under the capitalistic system, changing as rapidly as it has done during the last fifty years, can operate only with highly mobile industrial and financial organizations. If this is true, and the tendency certainly seems to have been in this direction . . . , the power phases of the recent corporate development have been necessary phases of that growth.

Morton Horwitz (1986), even less of a champion of big business than Rutledge, noted a stunning reversal in American economic thought in this period to defend and justify as inevitable the emergence of large-scale corporate concentration, pointing to the writings of economist Henry Adams and to the influence of the natural entity theory of the corporate entity whose main effect was to legitimate large scale enterprise and to destroy any special basis for state regulation (221). When Columbia University president Nicholas Murray Butler (1912) declared the limited liability corporation as the greatest single discovery of modern times . . . [e]ven steam and electricity are far less important . . . and they would be of comparative impotence without it, he based his claim on this fundamental economic shift in society: The era of unrestricted individual competition has gone forever . . . taken up into a new and larger principle of cooperation . . . It cannot be stopped. It ought not to be stopped. It is not in the public interest that it be stopped. . . . This new movement of cooperation has manifested itself in the last sixty or seventy years chiefly in the limited liability corporation (82).

For some, this belief led to a conclusion that legal forms cannot interfere with the natural evolution of the economy, expressed in support of general incorporation acts that did not restrict corporations (Bostwick 1899). The permissive approach to state corporate law that has prevailed since the late nineteenth century is consistent with this version. For others, including Butler and progressives of the day, this economic fact led to more support for intense federal regulation that found expression in antitrust and railroad regulation from the late nineteenth century (Butler 1912) or federal securities laws that increasingly provided mandatory federal rules of corporate governance. The reality is that the corporate law of the nineteenth century has continued in two streams: state corporations law that corporate lawyers of the late nineteenth century would still recognize as familiar and federal law of various flavors that has experienced a much greater degree of change. Justice Louis Brandeis’s lament in his dissent in the Liggett case in 1933³ that corporate law had been denuded of all its traditional constraints cannot be fully appreciated today with considering the mantle of regulation assumed by federal law in the time since.

Changes in Corporate Law in the Second Half of the Country’s History

Since the point of inflection discussed in the previous section, the pattern of change in corporate law illustrates two divergent paths. State corporate law today is still the governance system whose core points would be recognized by the cutting-edge late nineteenth-century corporate lawyers who drafted the statutes of that period. Federal law reflects a completely different pattern of regular and diffuse changes. The two strands existing simultaneously are a necessary foundation to the theory of changes discussed below.

State Corporate Law. Modern corporate law reflects three core principles that can be directly traced to nineteenth-century corporate law and to an important and sometimes overlooked fourth principle acknowledging how the business and economic foundation on which the law is placed fundamentally reshapes the reality of the initial three rules.

Rule 1: Directors rule (most of the time). This principle derives from a bedrock point of corporate law found in all American corporate statutes, including Delaware’s § 141 and § 8.01(b) of the Model Business Corporation Act, that all corporate powers shall be exercised by the board. Empowering a centralized group to speak for the entity provides efficiency benefits in an economy where shareholding is widely dispersed. As a centralized decision maker, the board can negotiate on behalf of shareholders and other constituencies. The