Federalism
Vigorous Race or Leisurely Walk: Reconsidering the Competition over Corporate Charters
112 Yale L.J. 553 (2002) Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. corporate law--the existence of regulatory competition among states. In the United States, most corporate law issues are left for state law, and corporations are free to choose where to incorporate and thus which state's corporate law system will govern their affairs. The dominant state in attracting the incorporations of publicly traded companies is, and for a long time has been, the small state of Delaware. Although Delaware is home to less than one-third of a percent of the U.S. population, it is the incorporation jurisdiction of half of the publicly traded companies in the United States and of an even greater fraction of the larger publicly traded companies. Delaware thus plays a central role in setting corporate governance rules for the nation's publicly traded companies. Why should this small state play such a critical role in the governance of the nation's corporate sector? At first glance, Delaware's existing dominant role might be viewed as inefficient or even illegitimate. The widely accepted justification for the existing state of affairs, however, is that Delaware's dominant role is a product of its winning a competition among states for providing desirable corporate law rules. Indeed, the dominant view in corporate law scholarship is that allowing Delaware to dominate national corporate law is not a problematic feature, but rather an important virtue, indeed the "genius," of American corporate law. According to the prevailing view among corporate scholars, competition provides powerful incentives for adoption and development of value-enhancing corporate rules. Delaware has won its leading place by offering the best rules, and the competitive pressure it faces can be relied on to ensure that Delaware will continue to provide companies with whatever rules turn out to be best in our dynamic and changing business world. The view that state competition works well rests on two propositions: (i) that states actively and vigorously compete for incorporations, and (ii) that the ensuing competitive threat provides the dominant state of Delaware, as well as other states, with powerful incentives to provide value-enhancing rules. Those skeptical of state competition have mainly focused on questioning the second proposition. Accepting that states actively compete for incorporations, such critics have argued that the competitive threat might push states in undesirable directions with respect to some important corporate issues. In contrast, this Essay challenges the standard case for state competition by questioning the claim of the first proposition that states vigorously compete for incorporations. The alleged vigorous race among states vying for incorporations, we argue, simply does not exist. We present evidence that Delaware's dominant position is far stronger, and thus that the competitive threat that it faces is far weaker, than has been previously recognized. We also explain the underlying reasons for the weakness of competition in the market for incorporations. Furthermore, we show that the weakness of competition has major implications for both assessing the performance of state competition and determining the desirable role of federal law in this area. Part II of this paper discusses the conventional premise that states compete actively for incorporations. We highlight the key role that this premise plays in the views of supporters of state competition. We also discuss how, at least for the purpose of the debate, critics of state competition have often accepted this premise. Part III then discusses evidence indicating the absence of active competition among states for corporate charters. We pay close attention in this Part to the patterns of incorporations among states that have been documented in a recent empirical study by Alma Cohen and one of us. Although half of the publicly traded companies are incorporated outside Delaware, Delaware does not face any significant competitors in the business of attracting and serving out-of-state incorporations. The vast majority of non-Delaware corporations do not incorporate in a state that competes with Delaware over the hearts (or pockets) of firms incorporating out-of-state; rather, these firms simply remain incorporated in the state where they are headquartered. In assessing the competitive threat facing Delaware, it is important to consider Delaware's position in the market for out-of-state incorporations. Among firms that do "shop" for out-of-state incorporations, Delaware captures approximately 85% of all incorporations. Delaware is thus a virtual monopoly in the out-of-state incorporations market, and no other state holds a significant position in this market. For example, whereas Delaware captures 216 out-of-state incorporations of Fortune 500 companies, no other state captures even 10 such incorporations, and the five states that follow Delaware's lead capture a total of 27 such out-of-state incorporations. Similarly, whereas Delaware captures about 3744 out-of-state incorporations of publicly traded companies, each other state attracts fewer than 180 such incorporations. Furthermore, Delaware's longstanding dominance of the out-of-state incorporation market, and the larger incorporation market, has been growing. Indeed, examination of recent trends indicates that Delaware's dominance can be expected to keep growing even further in the near future. Its dominant position enables Delaware to make substantial supracompetitive profits. While Delaware's expenses on providing corporate law rules to the nation's firms are exceedingly small, it captures large franchise tax revenues--which on a per capita basis amount to $3000 for each household of four--that constitute a large fraction of the state's budget. Still, notwithstanding these supracompetitive returns, other states have not been making any visible efforts to mount a serious challenge to Delaware's dominance. No state, as it were, has been giving Delaware a run for its money. What explains Delaware's powerful and unchallenged dominance? Some states, especially large states for which such profits would not be significant, might well be simply indifferent to the prospect of making profits from the incorporation business. There are, however, enough small states in the United States for which profits such as those Delaware has been making would be quite attractive; such states would have had strong motivation to mount a challenge to Delaware's dominance if such a challenge could have been expected to succeed in enabling them to capture a significant fraction of these profits. That this has not been happening, notwithstanding Delaware's persistent supracompetitive returns, indicates in our view that mounting a challenge to Delaware has not been viewed as likely to be profitable. Part IV analyzes the reasons for the absence of active competition. Drawing on the theory of industrial organization, we identify a number of structural features of the incorporation market that can explain why a challenge to Delaware's dominance by some other small state is unlikely to be profitable. The "product" currently offered by Delaware should be viewed as including not only its rules but also its institutional infrastructure, including Delaware's specialized chancery court, and the network benefits currently enjoyed by Delaware corporations. As a result, a state that would offer the same rules, but charge lower incorporation taxes and fees, would not be able to attract many out-of-state incorporations. Although its current incorporation taxes are in the aggregate meaningful for Delaware, such taxes never exceed $150,000 for any given firm, and reductions in such expenditures are unlikely to lead firms incorporating out-of-state to forgo the benefits from the institutional infrastructure and network externalities provided by Delaware. Similarly, a state that merely offers the same rules as Delaware with some marginal improvements cannot hope that such marginal improvements would by themselves attract many out-of-state incorporations. The existing rules governing reincorporations further constrain the ability of a challenger to attract quickly a significant number of out-of-state incorporations. Reincorporations must be initiated by the board before being brought to a shareholder vote. Therefore, even if a rival state could identify a set of rules that could make shareholders substantially better off, this state would be unable to attract quickly many out-of-state incorporations unless the rules are also preferable for managers. This significantly narrows, of course, the scope of improvements in substantive rules on which a potential challenge could be based. Finally, even if a rival were to identify some substantial set of changes that could significantly benefit both shareholders and management, and even if the rival were willing to invest up-front in institutional infrastructure, the profitability of a challenge could be undermined by the inability of the rival to launch a swift hit-and-run challenge. The substantial amount of time that would be required for the challenger to adopt changes and for firms to respond to them would provide Delaware with ample opportunity to react. Delaware could "match" by adopting the challenger's improved rules; Delaware's out-of-state incorporators might then stick with Delaware due to its initial network benefits, and the challenger would merely serve as a stalking horse pulling Delaware to improve its rules. Furthermore, even if the challenger were somehow able to capture a significant fraction of the out-of-state incorporation market, price competition between the challenger and Delaware would likely bring down prices; in this case, the challenger would bring down Delaware's current profits without being able to capture a substantial fraction of them. Part V turns to exploring the implications of the weak-competition account we develop for assessing the performance of state competition in corporate law. Our analysis indicates that the incentives of Delaware and of other states are likely to be quite different. Delaware is in the business of attracting and profiting from out-of-state incorporation. Its interests would be best served by policies that maintain its monopoly and undermine possible threats to it, and that increase the profits it makes from its position. In contrast, other states cannot, and do not expect to, obtain such a position in the out-of-state incorporation market, and maximizing revenues from such incorporations is thus irrelevant for such states. Accordingly, we examine separately the implications of our analysis for both Delaware law and the corporate law of other states. Among other things, we show that our account of state competition undermines the view that rules produced by state competition should be regarded as presumptively efficient. Neither Delaware nor other states face the type of competitive situation in which a limited slack could gravely hurt a player's interests. We also explain how our account leads to the conclusion that states would tend to provide rules that, with respect to some issues, such as takeover protections, are more favorable to managers than would be optimal for shareholders. Our weak-competition account suggests that the greatest threat confronting Delaware is not competition from other states but the possibility that the federal government will intervene in a way that would undermine Delaware's position. We discuss in Part V how, in light of this threat, Delaware's interests might be best served by providing a body of law that is largely judge-made and relies on open-ended and flexible standards. Furthermore, to the extent that Delaware is moved to act in shareholders' interests by the fear of triggering a federal intervention, this fear can provide a check only against rather large deviations from shareholder interests, and whatever benefits come from it should be attributed to the disciplinary role not of state competition but of federal fiat. Finally, Part VI discusses the implications of the weak-competition account we put forward for the desirable role of federal law in this realm. The absence of strong competition undermines the basis for the view that Delaware's dominance is the product of its winning a vigorous competition. Thus, the analysis implies that the case for preferring state competition to mandatory federal rules is much weaker than supporters of state competition have assumed. Furthermore, we argue that, given the weakness of existing competition, state competition, as currently structured, could in all likelihood be improved by using "choice-enhancing" federal intervention. This type of intervention, which has been put forward by Allen Ferrell and one of us in earlier work, could invigorate state competition. In particular, it would be desirable for federal law to provide a federal incorporation option, as Canada's federal law does, as well as to enable shareholders to initiate and approve via a vote reincorporation to another state. Such federal intervention could introduce substantial and healthy competition in this market to the benefit of investors. Although much of the work on state competition has taken as given the presence of active competition, there has been some prior work, upon which we build, discussing why Delaware has a dominant position. Among other things, earlier work has highlighted the significance of network externalities and legal infrastructure, which are important elements of our analysis. In a contemporaneous work, Marcel Kahan and Ehud Kamar also challenge the vigorous competition account of state competition, offering an analysis that complements ours. Kahan and Kamar persuasively document that states other than Delaware have not made a determined effort to attract and profit from out-of-state incorporations; this evidence complements the evidence on which we focus concerning the patterns of incorporation among states. In explaining the absence of vigorous competition, Kahan and Kamar take a different approach from ours, arguing that states other than Delaware do not compete because state decisionmakers pursue political goals rather than profits. In contrast, we suggest that such a "political" story cannot adequately explain why other small states would not eagerly seek to capture Delaware's profits if they could do so; instead, we focus on "economic" explanations as to why they cannot do so, i.e., why attempts to capture these profits can be expected to fail. Our work differs from earlier and contemporaneous work by others in several important respects. First, we show that the patterns of incorporations indicate that Delaware's dominant position in the incorporations market is far stronger and more secure than has been previously recognized. Second, we provide a comprehensive analysis of the structural features of the market for corporate law--the "industrial organization" of this market--that make it unprofitable for other small states to challenge Delaware's position. Third, other works that have discussed imperfect competition in the incorporation market, including the contemporaneous work by Kahan and Kamar, have largely remained agnostic or even doubtful about the merits of federal intervention. In contrast, we show that the lack of meaningful competition in the incorporation market undermines the case for the existing system and provides an important basis for supporting a federal role. Some of the points discussed in this Essay are more fully or rigorously developed in two companion pieces. An empirical study by Alma Cohen and one of us provides a comprehensive study of the patterns of incorporations, and we draw on it in Part III. A theoretical work by Oren Bar-Gill, Michal Barzuza, and one of us develops the first formal model of state competition over incorporations; this model pays close attention to the industrial organization features of the incorporation market, and we build on its insights in Part IV.
Section 1983, Statutes, and Sovereign Immunity
112 Yale L.J. 353 (2002) This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaintiff should be able to use 42 U.S.C. § 1983 to seek damages from state officials for ADA violations. Using the leading case on the topic, Alsbrook v. City of Maumelle, the Comment will show that when the current Supreme Court closed one door through its federalism cases, it opened another through § 1983. It might appear that the Supreme Court's recent sovereign immunity jurisprudence has all but eliminated Congress's power to subject states to private damage actions for violations of federal statutes. In the line of cases beginning with Seminole Tribe v. Florida, and including Alden v. Maine, the Court has consistently (if controversially) found that Congress has no power under Article I of the Constitution to subject states to private damage actions, in either federal or state courts, for violating federal statutes. Although Congress retains power to subject states to damage suits by individuals through its power to enforce the Fourteenth Amendment, that power has been reined in substantially in recent years by the line of cases beginning with City of Boerne v. Flores and including Board of Trustees of the University of Alabama v. Garrett. The result is a number of important federal statutes, including the ADA (the subject of Garrett), in which congressional schemes for private damage suits have been held invalid on Eleventh Amendment grounds. These statutes are theoretically still legitimate legislation under the Commerce Clause, and states are still obliged to obey them--and yet an injured party is unable to seek monetary relief if they are violated. Countless commentators have noticed, and lamented, this breach of the rule-of-law principle. Nonetheless, damage suits for violations of federal law that are in essence suits against states happen all the time. They are suits under 42 U.S.C. § 1983. Section 1983 has been recognized since 1961 as providing a way to sue state officials for damages stemming from violations of federal law. The § 1983 damages suit proceeds under the legal fiction that one is suing a state official in his individual capacity for a violation of § 1983. Section 1983, in turn, creates no substantive rights; rather, it provides a remedy against officials who act under color of state law to violate a right guaranteed by federal law. The paradigm case for a § 1983 violation has been a violation of the federal Constitution, and many commentators refer to § 1983 cases as "constitutional torts." Ever since Maine v. Thiboutot, however, § 1983 has been read also to permit suits against state officials acting in their individual capacities for violations of federal statutes. One can sue a state official for violating a federal statute, just as one can sue the official for violating a duty under the Constitution. The key point, for Eleventh Amendment purposes, is the legal fiction that § 1983 suits against individual officers are not suits against a state. They thus do not, in theory, raise Eleventh Amendment issues at all. The state, although it serves as the "deep pocket," is liable only indirectly, usually through an indemnification contract or policy in which the state implicitly or explicitly agrees to reimburse monetary judgments against its officers. In this way, the courts have permitted what amounts to a modified regime of tort liability for state governments that violate federal law. If all of this is true--if the ADA still applies to the states, and if one can plead statutory violations against state officials in their individual capacities for violations of federal statutes--then why don't plaintiffs' lawyers simply sue individual state officials under § 1983 for violating their obligations under federal law? Instead of bringing a suit under the ADA directly against a state, why not sue a state official under § 1983 for his violation of the ADA? Such a method would limit the power of Seminole Tribe and render cases like Garrett almost irrelevant in practice.
The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism
112 Yale L.J. 109 (2002) One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whatever it believed necessary to promote the nation's health, safety, welfare, or morals, Congress was crafted as a legislature of strictly enumerated powers. Every law passed by Congress must fall within one of these discrete powers, or be "necessary and proper" to the execution of such a power. In the decades after the New Deal, however, it seemed as if almost nothing was beyond the purview of the federal government. Nearly any federal law could be upheld as an exercise of the commerce power; whatever civil rights measures fell outside its scope were justified by Section 5 of the Fourteenth Amendment. Indeed, in over fifty years, the Supreme Court struck down only one federal law as exceeding Congress's ostensibly limited constitutional authority. This changed, of course, with three cases starting in the mid-1990s: United States v. Lopez, City of Boerne v. Flores, and United States v. Morrison. For the first time in twenty-five years, the Supreme Court actually struck down laws as exceeding Congress's commerce and Reconstruction powers. The Court even set forth guidelines for determining whether statutes are authorized by the Commerce Clause. As a result of this constitutional upheaval, many academics began to scour the Constitution, looking for alternate fonts of congressional authority to replace the now truncated commerce and Reconstruction powers. Perhaps the most ingenious suggestion is that proposed by Professor Beth Stephens. Building upon an amicus brief filed in Morrison by certain "International Law Scholars and Human Rights Experts," she argues that a little-known constitutional provision, the Offenses Clause, could serve to authorize not only the laws struck down in Lopez, Boerne, and Morrison, but also legislation affecting almost all spheres of domestic activity. The Clause empowers Congress to "define and punish . . . Offences against the Law of Nations." Professor Stephens claims that this provision empowers Congress to enact civil and criminal legislation in any area upon which international law touches. Given the broad sweep of contemporary international law, this approach would turn the Offenses Clause into a Commerce Clause for the twenty-first century. It would bring virtually every aspect of society, including those traditionally left to state regulation, under congressional authority. This Note takes the opposite point of view, arguing that the Offenses Clause is a modest grant of authority, insufficient to support laws such as the Gun-Free School Zones Act and the Violence Against Women Act (VAWA), or to undermine American federalism. The Clause affirms, rather than undermines, the balance of state-federal relations that the Framers intended. I argue that it allows for the enactment of legislation touching upon only that fixed, discrete set of areas involving intercourse with foreign nations and their citizens--including navigation, trade, war, and diplomacy--that comprise what the Framers believed to be the immutable law of nations. Part I of this Note explores the claims made by Professor Stephens and the International Law Scholars, setting forth their case for viewing the Offenses Clause as an important source of substantive authority for Congress. It also examines the consequences of this approach, outlining the wide range of areas traditionally reserved to the states that it would enable Congress to regulate. Part II refutes the primary assumption upon which this interpretation is based. First, I argue that the phrase "law of nations" as used in the Offenses Clause is a term of art that is not synonymous with international law. I demonstrate that it refers to principles in certain well-defined areas that govern interactions among foreign countries and foreign nationals. The term excludes wholly domestic conduct that does not have a direct effect on foreign nations or nationals. Because the law of nations is rooted in natural law, its substantive content was understood by the Framers as being immutable. While modern-day treaties and evolving international norms are important parts of international law, they cannot expand the scope of the law of nations. Part III argues that even if courts abandon the true meaning of the phrase "law of nations" and insist on interpreting it in a modern light, the most faithful modern analogue of this concept is neither international law as a whole, nor customary international law, but jus cogens norms. Allowing for the enforcement of jus cogens norms under the Offenses Clause is less faithful to the provision's true meaning than the approach advocated in Part II. The concept of jus cogens, however, has many important similarities to the law of nations, and the range of recognized jus cogens norms is fairly narrow. Consequently, this interpretation of the Offenses Clause would be a legitimate compromise, retaining much of the Clause's original meaning while preventing it from being used to eliminate the boundary between state and federal authority. Part IV concludes. The Offenses Clause has been virtually ignored throughout most of this nation's history and has yet to be thoroughly explored by the legal literature. In light of suggestions that Congress use the Clause as a replacement for its once-omnipotent commerce and Reconstruction powers, a thorough examination of the history and meaning of its central phrase--"the law of nations"--is necessary.