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摘要
En 中文
One of corporate law's enduring issues has been whether state-to-state competitive pressures on Delaware make for a race to the top or to the bottom. States, or at least some of them, are said to use their corporate law to compete for corporate tax revenue and ancillary benefits; Delaware has won that race, as most large American firms incorporate there. Here I argue that this long-running debate is misconceived. Delaware's chief competitive Pressure comes not from other states but from the federal government. When the issue is big, the federal government takes control of it or threatens to do so, or Delaware players are conscious that the federal government, even if silent, could step in if roused. And even if Delaware, when making its corporate law, were oblivious to the federal authorities, those authorities can and do act. Delaware may not even get to act upon some important issues, as federal authorities can decide without waiting for the states to gear up. Thus, that which persists in Delaware is that which the federal authorities tolerate. This reconception (a) explains corporate law developments and data that neither the race-to-the-top nor the race-to-the-bottom theory has explained well; (b) fits several developments in takeover law, going-private transactions, and the rhetoric of corporate governance in Delaware; and (c) can be detected in corporate lawmaking in Washington and Wilmington from the origins of Delaware's dominance in the early twentieth century right through the passage of the Sarbanes-Oxley Act in reaction to the corporate governance failures at Enron and WorldCom.
Keyword:
CLASS COMMON-STOCK
CORPORATION LAW
STATE COMPETITION
ISSUER CHOICE
REFLECTIONS
PROTECTION
MARKETS
IMPACT
FIRM
RACE
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