Henry Hansmann's research while affiliated with New York Law School and other places

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt out” rights or practical ability to avoid subsidizing corporate political expression with which they disagree. Nor do individuals have the practical option to refrain from putting their savings into equity investments, as doing so would impose damaging economic penalties and ignore conventional financial guidance for individual investors.

This is the long-awaited second edition of this highly regarded comparative overview of corporate law. This edition has been comprehensively updated to reflect profound changes in corporate law. It now includes consideration of additional matters such as the highly topical issue of enforcement in corporate law, and explores the continued convergence of corporate law across jurisdictions. The authors start from the premise that corporate (or company) law across jurisdictions addresses the same three basic agency problems: (1) the opportunism of managers vis-a-vis shareholders; (2) the opportunism of controlling shareholders vis-a-vis minority shareholders; and (3) the opportunism of shareholders as a class vis-a-vis other corporate constituencies, such as corporate creditors and employees. Every jurisdiction must address these problems in a variety of contexts, framed by the corporation's internal dynamics and its interactions with the product, labor, capital, and takeover markets. The authors' central claim, however, is that corporate (or company) forms are fundamentally similar and that, to a surprising degree, jurisdictions pick from among the same handful of legal strategies to address the three basic agency issues. This book explains in detail how (and why) the principal European jurisdictions, Japan, and the United States sometimes select identical legal strategies to address a given corporate law problem, and sometimes make divergent choices. After an introductory discussion of agency issues and legal strategies, the book addresses the basic governance structure of the corporation, including the powers of the board of directors and the shareholders meeting. It proceeds to creditor protection measures, related-party transactions, and fundamental corporate actions such as mergers and charter amendments. Finally, it concludes with an examination of friendly acquisitions, hostile takeovers, and the regulation of the capital markets. Contributors to this volume - Hansmann and Kraakman Hansmann and Kraakman Hansmann and Kraakman Hertig and Kanda Hertig and Kanda Rock, Kanda, and Kraakman Davies and Hopt Hertig, Kraakman and Rock Hertig, Hansmann, Kraakman, Rock, Hopt and Kanda Hertig, Hansmann, Kraakman, Rock, Hopt and Kanda Davies, Hertig and Hopt

The many legal forms for business organisations that first appeared in the United States during the last thirty years – the limited liability company (LLC), the limited liability partnership (LLP), the limited liability limited partnership (LLLP) and the statutory business trust – all combine the pattern of creditors' rights, or asset partitioning, that is traditional to the business organisation with the freedom of contract among investors and managers that is traditional to the partnership. To view these new entities as partnership-like is to treat the degree of freedom of contract as the essential difference between the traditional corporation and partnership forms; to view them as corporation-like is to treat the pattern of creditors' rights as the essential difference. While recent scholarship often takes the former view, the latter seems more accurate. History shows that much of the contractual inflexibility in the traditional corporation served merely to buttress its pattern of creditors' rights and that this inflexibility fell away upon the development of substitute sources of investor protection. The new forms are thus better understood as part of the continuing development of the corporate form rather than as entities more akin to the traditional partnership, which has in fact been evolving in a different direction. This article first develops this argument in terms of the trade-off between contractual freedom and the form of asset partitioning that to date has received the most scholarly attention, that is, limited liability. It then explores the evolution of the new forms from a less familiar perspective, focusing on the entity shielding component of asset partitioning.

We compare the law governing business organizational forms in France and the United States during the nineteenth century and find that, contrary to the conventional wisdom, the contracting environment in the U.S. was neither freer nor more flexible than in France. U.S. businesses had a more limited menu of organizational choices and also much less ability to adapt the basic forms to meet their needs. Moreover, American law did not evolve any more readily in response to economic change than French law. In both nations, major changes in the rules governing organizational forms required the passage of new statutes. Copyright 2005, Oxford University Press.

Despite the apparent divergence in institutions of governance, share ownership, capital markets, and business culture across developed economies, the basic law of the corporate form has already achieved a high degree of uniformity, and continued convergence is likely. A principal reason for convergence is a widespread normative consensus that corporate managers should act exclusively in the economic interests of shareholders, including noncontrolling shareholders. This consensus on a shareholder-oriented model of the corporation results in part from the failure of alternative models of the corporation, including the manager-oriented model that evolved in the U.S. in the 1950's and 60's, the labor-oriented model that reached its apogee in German co-determination, and the state-oriented model that until recently was dominant in France and much of Asia. Other reasons for the new consensus include the competitive success of contemporary British and American firms, the growing influence worldwide of the academic disciplines of economics and finance, the diffusion of share ownership in developed countries, and the emergence of active shareholder representatives and interest groups in major jurisdictions. Since the dominant corporate ideology of shareholder primacy is unlikely to be undone, its success represents the "end of history" for corporate law. The ideology of shareholder primacy is likely to press all major jurisdictions toward similar rules of corporate law and practice. Although some differences may persist as a result of institutional or historical contingencies, the bulk of legal development worldwide will be toward a standard legal model of the corporation. For the most part, this development will enhance the efficiency of corporate laws and practices. In some cases, however, jurisdictions may converge on inefficient rules, as when the universal rule of limited shareholder liability permits shareholders to externalize the costs of corporate torts.

.Education, and particularly higher education, has an important characteristic that distinguishes it from most other goods and services: it is an "associative" good. The essential characteristic of an associative good is that, when choosing which producer to patronize, a consumer is interested not just in the quality and price of the firm's products, but also in the personal characteristics of the firm's other customers. When choosing among undergraduate colleges, for example, a student is interested not just -- or even primarily -- in the colleges' faculty, curriculum, and facilities, but also in the intellectual aptitude, previous accomplishments, sociability, athletic prowess, wealth, and family connections of the colleges' other students. The reason is obvious: these and other attributes of a student's classmates have a strong influence on the quality of the student's educational and social experience, the relationships (including marriage) that the student will have later in life, and the student's personal and professional reputation. Markets for associative goods do not function like markets for other goods and services. This is especially true when the producing firms are all nonprofit or governmental, as is the case in the upper reaches of higher education. Most importantly, when nonprofit firms produce associative goods, there is a particularly strong tendency for customers to become stratified across firms according to their personal characteristics. Those customers who are most desirable as fellow customers will tend to cluster at one firm, the next most desirable at another, and so on down. This essay surveys the implications of the associative character of higher education for the ownership and control structure of universities, both past and future, for the efficiency and equity of markets for higher education, for the market power of elite universities, and for collusive behavior and antitrust policy.