Saturday, October 23, 2010
Securities Intermediaries and the Separation of Ownership from Control, by Jill E. Fisch, University of Pennsylvania Law School - Institute for Law and Economics, was recently posted on SSRN. Here is the abstract:
The Modern Corporation and Private Property highlighted the evolving separation of ownership and control in the public corporation and the effects of that separation on the allocation of power within the corporation. This essay explores the implications of intermediation for those themes. The article observes that intermediation, by decoupling economic ownership and decision-making authority within the shareholder, creates a second layer of agency issues beyond those identified by Berle and Means. These agency issues are an important consideration in the current debate over shareholder empowerment.
The article concludes by considering the hypothetical shareholder construct implicit in the Berle and Means paradigm and in proposals to increase shareholder empowerment. Intermediation challenges the validity of this construct and raises questions about whether corporate law can rely on shareholders to constrain managerial power appropriately.