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We document that during market shocks that cause large drops in firm value (e.g., COVID-19), firms with more state-endorsed antitakeover provisions (ATPs) experience smaller declines in value. This higher relative valuation persists for up to three quarters after a shock, holds for firm-level ATPs, and is greater for firms that are more likely to become undervalued during a shock. Consistent with stronger takeover defenses preserving value by giving boards more bargaining power to fight shock-induced opportunistic bids, we also find that conditional on receiving a bid during a market shock, firms with more state-endorsed ATPs receive higher takeover premiums.

This Article is the first to analyze an unexplored but critical change in how modern banks are governed: the rise of lawyers as bank directors. That rise has been precipitous, raising the question of why lawyer-directors now sit on most bank boards. Using novel empirical evidence, we show that lawyer-directors at banks are associated with efficient changes in risk management and significant increases in bank value. In particular, banks with lawyer-directors assume more risk in ordinary (non-crisis) circumstances and less risk when a crisis arises, in each case in a way that makes banks more valuable. Lawyer-directors do this by drawing on advocacy skills to critically analyze opposing points of view, an essential quality in managing the risks banks face today. They are also more likely to make complex information, sourced from multiple experts, more accessible to a bank’s board as part of its decision-making process. Finally, lawyer-directors are skilled at assessing litigation and regulatory risks, which have grown significantly in recent years. Risk management failures were a primary cause of the 2008 financial crisis, prompting two principal regulatory responses: stricter capital requirements and enhanced governance. Their effectiveness remains hotly debated. Our findings have two important implications. First, we challenge the notion that stricter regulation is sufficient for efficient risk management. Rather, to manage a bank, directors must have the skills to think critically about risk. Second, we underscore the value of director expertise, showing that more is needed than simply the director’s independence now mandated by law.

This paper considers two competing hypotheses for the positive abnormal stock returns of firms targeted by activist hedge funds in both the short term and the long term: are they value creators or good stock pickers? Using matching to mitigate selection effects, we find that activists’ targets do not outperform ex ante similar control firms; this suggests that activists are good stock pickers, not value creators. We also observe abnormal returns around filings disclosing material changes in activist ownership. This too supports good stock picking as the more plausible hypothesis. Overall, our evidence indicates that hedge fund activism does not seem to benefit the buy-and-hold shareholders of targeted firms.

In recent times, there has been an unprecedented shift in power from managers to shareholders, a shift that realizes the long-held theoretical aspiration of market control of the corporation. This Article subjects the market control paradigm to comprehensive economic examination and finds it wanting. The market control paradigm relies on a narrow economic model that focuses on one problem only, management agency costs. With the rise of shareholder power, we need a wider lens that also takes in market prices, investor incentives, and information asymmetries. General equilibrium theory (GE) provides that lens. Several lessons follow from reference to this higher-order economic theory. First, the presumption that markets can efficiently coordinate the economy is shown to be unfounded, unless one relies on heroic assumptions. Second, GE shows that shareholders suffer from misaligned incentives, undercutting any normative program grounded in shareholder empowerment. The third lesson is negative, as there are no economically-founded instructions for addressing the trade-offs between agency costs reduction and market inefficiency implied by the new shareholder corporation. Policy implications also follow. Given the lack of a clear normative template, only private ordering can be counted on to address each corporation’s specific tradeoffs between agency costs and market inefficiency. This conclusion leads to an endorsement of Delaware’s equitable adjudication system, the flexibility of which is well-suited to policing the bargaining process between managers and empowered shareholders.

We analyze the relation between enhanced director discretion to consider stakeholder interests (“stakeholder orientation”) and firm value by exploiting the adoption of directors’ duties laws (DDLs) as a quasi-natural experiment. We find that DDLs result in significant increases in shareholder value, especially in more innovative firms and those with stronger stakeholder relationships. DDLs also improve employees’ job security, financial soundness and innovation. These benefits, however, are offset in firms with more severe agency problems. Our results suggest that stakeholder orientation improves the commitment toward stakeholders and reduces contracting costs in many firms, but one size does not fit all.

In a recently released paper, “Board Declassification Activism: The Financial Value of the Shareholder Rights Projects,” we investigated the effects on firm value of board declassifications promoted by the Shareholder Rights Project (SRP), a clinical program held at Harvard Law School for three academic years (2011-2014). Consistent with the results we obtained in our prior published work on staggered boards, we find a negative effect of SRP declassifications on firm value, both in absolute terms and relative to declassifications occurring at firms that were not targeted by the SRP over the same period. Economically, the negative effect of SRP declassifications corresponds to an average decline in financial value in the range of $0.96 - $1.6 billion per declassifying SRP target or, aggregated across the 93 SRP-declassifications included in our sample, an overall loss in the range of $90 - $149 billion. In a response note, Lucian Bebchuk and Alma Cohen “contest” our results, arguing that they do not provide a basis for opposing board declassification, when appropriately interpreted. This reply responds to the Bebchuk-Cohen critique. We show that not only their critique is unwarranted, but also fails to engage with our main finding that the plausibly exogenous shock caused by the SRP’s declassification activism was followed by substantial declines in firm value.

We analyze the impact of the right to adopt a poison pill – a “shadow pill” – on pill policy and firm value by exploiting the quasi-natural experiment provided by U.S. states’ staggered adoption of poison pill laws that validate the pill. We document that a strengthened shadow pill promotes the use of actual poison pills and increases firm value – especially for more innovative firms or firms with stronger stakeholder relationships, and for hostile acquisition targets. Our findings suggest shadow pills create value for some firms by reducing their contracting costs with stakeholders and increasing their bargaining power in takeovers.

For three academic years (2011-2014), the Harvard Law School’s Shareholder Rights Project (SRP) operated a clinical program assisting institutional investors on board declassification proposals. This paper analyzes the SRP as a quasi-natural experiment to examine the value implications of classified boards. Consistent with the SRP causing exogenous declassifications, SRP targets that declassified their boards had greater ex-ante value and profitability than non-targeted companies declassifying in the same period. Declassifying SRP targets, and especially targets more engaged in research and innovation, declined in firm value after declassification, which wealth effect is directly attributable to declassification rather than other activism-related channels.

This online appendix provides additional results as described in our paper "Staggered Boards and Long-Term Value, Revisited", available at http://ssrn.com/abstract=2364165.

This paper investigates the association of hedge fund activism and long-term firm value. We show that the positive long-term association documented in prior studies is likely affected by selection bias, as activist hedge funds tend to target poorly performing firms. Second, once we incorporate such selection bias using a matched sample approach, we find that firms targeted by activist hedge funds improve less in value after activist hedge fund campaigns than ex-ante similarly poorly performing control firms that are not subject to hedge fund activism. This suggests that hedge fund activism decreases, rather than increases, a firm’s long-term value, relative to non-targeted control firms that have similar characteristics as the targeted firms. To explain our results, we explore whether the ability of activist hedge funds to substantially influence a firm’s investment policy may exacerbate a firm’s limited commitment problem toward long-term value creation and stable stakeholder relationships. Consistent with this hypothesis, we find that the reduction in value after hedge fund campaigns is more pronounced for firms where the limited commitment problem is more severe, namely firms that are more engaged in innovation and where stakeholder relationships are more important for long-term value creation.

This paper provides novel evidence concerning the association between firm value and state corporate laws, focusing on (re)incorporations in Delaware. As (re)incorporations are endogenous, we use plausibly exogenous variation in the state of incorporation at the IPO stage from the law firm identity, finding that Delaware incorporation is negatively related to firm value. Consistent with this, firms reincorporating into (out of) Delaware decrease (increase) in firm value in the time-series. These results seem incompatible with a managerial entrenchment explanation of the relationship between state corporate law and firm value, as reincorporations into Delaware are associated with increased takeover activity, suggesting that Delaware is relatively takeover-friendly. Rather, our results appear to be driven by firms where potential conflict of interests between shareholders and other stakeholders are likely to be more severe. This suggests that state corporate laws matters for firm value primarily by addressing the problem of shareholders’ limited commitment to long-term value creation.

This paper revisits the association between firm value (as proxied by Tobin's Q) and whether the firm has a staggered board. Confirming prior studies, we find that in the cross-section firms with a staggered board tend to have a lower value. However, we obtain the opposite result in the time series: firms adopting a staggered board increase in value, while de-staggering is associated with a decrease in value. We further show that the decision to adopt a staggered board seems endogenous, and related to an ex ante lower firm value, which helps reconciling the existing cross-sectional results to our novel time series results. To explain our new results, we explore whether staggered boards may promote long-term value creation by serving as a credible longer-term commitment device by the shareholders. Consistent with this, we find that adopting a staggered board has a stronger positive association with firm value for firms where such longer-term commitment seems more relevant, i.e., firms with more R&D, more intangible assets, more innovative and larger and thus likely more complex firms.

Detroit has failed and its infrastructure is crumbling. But Detroit is not an isolated case. It is a paradigmatic example of increasing urban decay across the Unites States. While commentators have warned that the declining state of the country’s infrastructure threatens US prosperity, there is a bigger issue at stake. Decaying urban environments jeopardize the rule of law, undermining the very foundation of the social contract.This Article shows that the strength of the rule of law in a given country can be predicted by that government’s ability (or inability) to provide public services — particularly, a livable urban environment. When urban decay sets in, individuals are led to believe that the government, and thus citizens as a collective, have abandoned their commitments to following the basic rules governing the social contract. This, in turn, reduces the incentives of individuals to engage in lawful behavior. As a result, the rule of law is, like the city itself, left in shambles. In support of this theoretical account, we provide empirical evidence that urban decay weakens the rule of law.As a normative matter, we claim that austerity policies aimed at incentivizing municipal fiscal accountability have produced the government’s failure to provide adequate urban infrastructure. Hence, there is a normative case for selective centralized support of local goods and services that can better balance the dual goal of preserving the rule of law and encouraging municipal fiscal accountability.

Efforts to control bank risk address the wrong problem in the wrong way. They presume that the financial crisis was caused by CEOs who failed to supervise risk-taking employees. The responses focus on executive pay, believing that executives will bring non-executives into line — using incentives to manage risk-taking — once their own pay is regulated. What they overlook is the effect on non-executive pay of the competition for talent. Even if executive pay is regulated, and executives act in the bank’s best interests, they will still be trapped into providing incentives that encourage risk-taking by non-executives due to the negative externality that arises from that competition. Greater risk-taking can increase short-term profits and, in turn, the amount a non-executive receives, potentially at the expense of long-term bank value. Non-executives, therefore, have an incentive to incur significant risk upfront so long as they can depart for a new employer before any losses materialize. The result is an upward spiral in compensation — reducing an executive’s ability to set non-executive pay and the ability of any one bank to adjust compensation to reflect risk-taking and long-term outcomes. New regulation must address the tension between compensation and competition. Regulators should take account of the effect of competition on market-wide levels of pay, including by non-banks who compete for talent. The ability of non-executives to jump from a bank employer to another financial firm should also be limited. In addition, banks should be required to include a long-term equity component in non-executive pay, with subsequent employers being restricted from compensating a new employee for any losses she incurs related to her prior work.

The accepted wisdom — that a lawyer who becomes a corporate director has a fool for a client — is outdated. The benefits of lawyer-directors in today’s world significantly outweigh the costs. Beyond monitoring, they help manage litigation and regulation, as well as structure compensation to align CEO and shareholder interests. The results have been an average 9.5 percent increase in firm value and an almost doubling in the percentage of public companies with lawyer-directors. This Article is the first to analyze the rise of lawyer-directors. It makes a variety of other empirical contributions, each of which is statistically significant and large in magnitude. First, it explains why the number of lawyer-directors has increased. Among other reasons, businesses subject to greater litigation and regulation, and firms with significant intangible assets (such as patents) value a lawyer-director’s expertise. Second, this Article describes the impact of lawyer-directors on corporate monitoring. Among other results, it shows that lawyer-directors are more likely to favor a board structure and takeover defenses that reduce shareholder value — balanced, however, by the benefits of lawyer-directors, such as the valuable advice they can provide. Finally, this Article analyzes the significant reduction in risk-taking and the increase in firm value that results from having a lawyer on the board. Our findings fly in the face of requirements that focus on director independence. Our results show that board composition — and the training, skills, and experience that directors bring to managing a business — can be as or more valuable to the firm and its shareholders.

The widespread acknowledgement of the implied contractual obligation of good faith is a relatively recent phenomenon in the American legal landscape. In the paper, I claim that the obligation of good faith in a contract should be a default rule that parties should include in their agreement only when it maximizes the ex-ante value of their contractual relationship. I discuss under what conditions the requirement of good faith proves efficient and propose a basic framework of reference for the parties' decision to include or exclude good faith in their contract. In this framework, the obligation of good faith is conceived as the rule of law that prohibits each contracting party from taking advantage of the contract's incompleteness to expropriate her counterparty's expected contractual benefits. However, I challenge the law-and-economics argument supporting the efficiency of good faith, claiming that parties themselves should decide whether to include or exclude good faith in their agreements. From a practical viewpoint, this means that the interpretative regime should be determined by private autonomy, rather than be a judicial decision based on a-priori assumptions. In the good-faith regime I propose, therefore, parties are free to choose whether (i) to exclude good faith from their contracts and, thereby, opt for a literal interpretative regime in which the contract is the only evidentiary base courts should use in enforcing their agreement; or (ii) to include good faith and opt for a good-faith interpretative regime, giving courts indications on the evidentiary base that should be used to interpret the content of the good-faith obligation.