UCLA School of Law

Why do investors in public corporations cede control over corporate assets and outputs to a board of directors, rather than retaining control for themselves? This Article reviews two possible explanations for why shareholders tolerate board control: the monitoring hypothesis, which posits that shareholders rely on boards primarily to control the "agency costs" associated with turning day-to-day control over the firm to self-interested corporate executives; and the mediating hypothesis, which posits that shareholders also seek to "tie their own hands" by ceding control to directors as a means of attracting the extracontractual, firm-specific investments of stakeholder groups such as creditors, executives, and employees. Part I of the Article reviews each hypothesis and concludes that each is theoretically plausible and internally consistent. As a result, the validity of each only can be established, or rejected, on the basis of empirical evidence.

Part II of the Article reviews the available empirical evidence. Many aspects of contemporary corporate law and governance seem, on first inspection, consistent with either the monitoring or the mediating model. In the context of corporate control transactions, however, it is possible to distinguish between legal rules and governance structures consistent with a purely monitoring board, and rules and structures consistent with a mediating board. Part II concludes that, as a positive matter, corporate takeover law is consistent with the view that directors are not just monitors, but also perform a mediating function. Recognizing this, commentators who subscribe only to the monitoring model often argue that the legal rules that govern changes of control are flawed and should be reformed. Part II demonstrates, however, that this normative claim is undermined by other empirical evidence, especially new evidence on the charter provisions of firms involved in initial public offerings.

Part III of the Article discusses some future directions for empirical research and identifies some pitfalls to be avoided. It concludes that, while the issue has not been resolved with certainty, at this point the empirical evidence favors the claim that directors do more than simply restrain executive opportunism; they also restrain shareholder opportunism, and so mediate between the firm's shareholders and other important constituencies that make extracontractual specific investments in the firm. What's more, shareholders favor this arrangement. Accordingly, the burden of proof should shift to those who would defend a purely monitoring model of the board.