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The Economic Structure of Corporate Law, by Frank Easterbrook, Daniel R. Fischel
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The authors argue that the rules and practices of corporate law mimic contractual provisions that parties would reach if they bargained about every contingency at zero cost and flawlessly enforced their agreements. But bargaining and enforcement are costly, and corporate law provides the rules and an enforcement mechanism that govern relations among those who commit their capital to such ventures. The authors work out the reasons for supposing that this is the exclusive function of corporate law and the implications of this perspective.
- Sales Rank: #184107 in Books
- Brand: Brand: Harvard University Press
- Published on: 1996-02-01
- Released on: 1996-02-26
- Original language: English
- Number of items: 1
- Dimensions: 9.11" h x .88" w x 6.06" l, 1.16 pounds
- Binding: Paperback
- 384 pages
- Used Book in Good Condition
Review
Truly first-rate...Arguably the most important--and most readable--corporate law book ever. A classic...Certain to change the way corporate law is taught, understood, and possibly even made. (Robert M. Daines and Jon Hanson Yale Law Journal)
An important and provocative contribution to the law and economics literature...Scholars in the field should hold a place for it on their shelves. (Christopher Grandy Journal of Economic Literature)
This may be the best book ever written about corporate law. (University of Chicago Law Review)
About the Author
Frank H. Easterbrook is a judge of the U. S. Court of Appeals for the Seventh Circuit.
Daniel R. Fischel is Lee and Brena Freeman Professor of Law at the University of Chicago.
Most helpful customer reviews
23 of 23 people found the following review helpful.
A classic of the field
By Stephen M. Bainbridge
Easterbrook and Fischel collected a series of law review articles into the classic text on the contractarian theory of corporate law. During the 1980s, E&F were two of the corporate law academy's enfants terribles. Their articles were provocative, yet insightful. They raised a lot of hackles, yet did ground-breaking work. Both E&F have gone on to bigger and better things. Easterbrook is now a judge on the US 7th Circuit. Fischel is dean of the UChicago law school. "The Economic Structure ..." stands as their legacy for corporate law.
Like other contractarians, E&F model the firm not as an entity, but as an aggregate of various inputs acting together to produce goods or services. Employees provide labor. Creditors provide debt capital. Shareholders initially provide equity capital and subsequently bear the risk of losses and monitor the performance of management. Management monitors the performance of employees and coordinates the activities of all the firm's inputs. The firm is simply a legal fiction representing the complex set of contractual relationships between these inputs. In other words, the firm is not a thing, but rather a nexus or web of explicit and implicit contracts establishing rights and obligations among the various inputs making up the firm.
The nexus of contracts model has important implications for a range of corporate law topics, the most obvious of which is the debate over the proper role of mandatory legal rules. As a positive matter, contractarians contend that corporate law in fact is generally comprised of default rules, from which the parties to the set of contracts making up the corporation are free to depart, rather than mandatory rules. As a normative matter, contractarians argue that this is just as it should be. E&F devote the bulk of this text to tweaking out these implications across an array of important topics, such as limited liability and insider trading.
Their analysis is not flawless. As but a single example, E&F consistently opt for the so-called majoritarian default. Their basic thesis is that by providing the rule to which the parties would agree if they could bargain, society facilitates private ordering. Majoritarian defaults are not always desirable, however, even if a potentially dominant one can be identified. Sometimes penalty defaults are preferable. Penalty defaults are designed to impose a penalty on at least one of the parties if they fail to bargain out of the default rule, thereby giving at least the party subject to the penalty an incentive to negotiate a contractual alternative to the penalty default. They force the parties to choose affirmatively the contract provision they prefer. Penalty defaults are appropriate where it is costly for courts to determine what the parties would have wanted. In such cases, it may be more efficient for the parties to negotiate a term ex ante than for courts to determine ex post what the parties would have wanted.
Having said that, however, this remains one of the most significant monographs on corporate law. I highly recommend it for an corporate lawyer's bookshelf.
14 of 16 people found the following review helpful.
Coase Applies; Coase is Right ...
By Amazon Customer
The classic exposition of law and economics in the corporate field. This book consolidates and expands upon several law review articles written in the early 1980s that have reshaped how corporate and securities law and policy have developed. If you want heavier economic analysis, this book is lacking, but if you want *structure* and *framework* then this book is ideal.
0 of 0 people found the following review helpful.
"Trundled to the squadrol", the corporate version
By HH
This book attempts to show that corporate law exists in the form that it does because its underlying purpose is to maximize wealth. The role of corporate law, in Easterbrook and Fischel's view, is to supply the rules that investors, managers, and others involved in a corporate enterprise would select if the writing and enforcement of contracts were costless. The book covers a wide range of topics with major emphases in corporate control and the information aspects of the securities laws. Each chapter of the book contains a description of the law governing a particular subject and then an analysis of how that law is or is not consistent with wealth maximization. A member of the economics profession who is well-versed in the economics of the topics covered in the book is likely to find its most useful parts to be its descriptions of the law on the topics it covers. Those descriptions are very clear. Furthermore, the book provides references to both cases and statutes for the reader who wishes to look more deeply into any particular subject.
In the first chapter the foundation for much of the rest of the book is laid as Easterbrook and Fischel set forth their view of the corporation as a set of contracts between the various concerned parties. The role that is played by state corporate law as the supplier of the contractual terms the parties would have bargained for, if such bargaining were costless, is elucidated. In ch. 2, legal and economic aspects of limited liability are discussed. A particular focus is the moral hazard created by the limited liability of corporations. Shareholder voting is the subject of ch. 3, which provides a quite thorough and useful description of the federal and state law on that subject (as of the early 1990s). In ch. 4, the focus is on the meaning and purpose of the manager's fiduciary duties. Shareholder derivative suits and their consequences are discussed, as is the "business judgment rule" that the courts often apply in suits brought against managers. Chapters 5-8 all deal with various corporate control issues. The analysis in those chapters stems from the premise that since takeovers create wealth, they should proceed without hindrance. Among the major topics covered in those chapters are tender offers, the appraisal rights of minority shareholders who are the subject of a freeze-out, and state and federal attempts to regulate takeovers. The focus of ch. 9 is the closely held corporation and the legal background in which such companies operate. Topics covered in some detail in that chapter include the problems and legal rights of minority shareholders in such corporations. In the final three chapters, Easterbrook and Fischel deal with information issues. The relationship between insiders' trading and their fiduciary duties is the focus of ch. 10. The authors attempt to identify property rights in information and determine whether shareholders are made better off by insider trading restrictions. The chapter includes a useful description of the state and federal law governing trading by insiders. In ch. 11, the disclosure requirements of the securities laws are discussed. An issue that is explored through much of the chapter is why the disclosure laws exist. In the final chapter, the legal remedies applied in securities cases are analyzed in an effort to show their economic rationality.
Who should read "The Economic Structure of Corporate Law"? Well, in the first place, I recommend it to any member of the finance profession who has an interest in the effects of corporate law on issues in finance. Those who know neither the law nor the economics will probably find it over their heads. Those who know both the law and the economics will probably find it uninteresting but perhaps worthwhile for reference. Those who have a working knowledge of corporate law and an interest in learning more about economics and those who know the economics and have an interest in learning more about corporate law are probably the most likely to find the book a good read.
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