Freedom of Contract in Corporate Governance: Let Bylaws Be Bylaws

To the extent America has made progress in recent years in rolling back the extreme litigiousness of earlier years, one main reason has been the courts’ increased willingness to respect the libertarian and classical liberal principle of freedom of contract. Most legal disputes arise between parties with prior dealings, and if they have been left free in those dealings to specify who bears the risks when things go wrong, the result will often be to cut off the need for expensive and open-ended litigation afterward. Thus the courts’ willingness to enforce agreements to arbitrate disputes, rather than run to court, has played a major role in curbing what once looked like an ever-rising tide of workplace and consumer class action litigation. “Shrinkwrap” or “clickwrap” disclaimers of liability, despite their occasional absurdities, serve the very practical function of ensuring that when information technology or online services go wrong the result is not to sink providers in limitless liability over the consequences of data loss to buyers. And recognizing libertarian principles of free contract would be among the most promising ways to reduce the glaring costs and injustices of medical liability litigation, as Richard Epstein argued in his very early (1976!) paper, Medical Malpractice: The Case for Contract.  

In May, in a case named ATP Tour v. Deutscher Tennis Bund, the Delaware Supreme Court decided to enforce as written a corporate bylaw adopted by an enterprise incorporated in Delaware providing for a loser-pays rule in cases of claims against it by shareholders. Almost at once, the community of practicing Delaware corporate litigators, as well as plaintiff’s class action lawyers across the country, protested loudly: such a rule, by putting claimants at risk of their own money, would discourage all but the strongest claims (and, not incidentally, cut into counsels’ own livelihood of prosecuting and defending such claims). They demanded that the Delaware legislature step in to ban such bylaws and restore the legal status quo ante, along with its accompanying flow of litigation. Within weeks, the legislature was on the verge of passing such a ban, only to pull back when the national business community raised an uproar of its own to defend letting the bylaw experiment go forward

Prof. Steve Bainbridge, a leading corporate law expert at UCLA, has now published a two-part post on why lawmakers and regulators should leave freedom of contract alone when it comes to such bylaws. In Part One, he recounts the evidence for believing that the business of private class-action shareholder litigation generally serves the interests of the lawyers who run it and not that of investors, transferring money from corporate treasuries (ultimately, from investors themselves) to an essentially identical class of investors following a large haircut of legal fees and costs. Deterrence of fraud, self-dealing, and managerial shirking, while an important objective, is poorly served by the class-action mechanism both because guilty individuals seldom pay and because transactions such as mergers and businesses in volatile markets are routinely sued, and made to pay legal toll, whether their managers have misbehaved or not. The result is a less competitive capital market from which internationally mobile companies and investors are increasingly retreating to more predictable legal regimes in other countries.

In Part Two, Bainbridge brings public choice analysis to bear, noting that Delaware’s sought-after corporate law regime is heavily shaped by the interests of repeat-player lawyers, who want to keep Delaware law efficient enough to keep attracting national businesses to incorporate there, yet not so efficient that it does away with the litigation and advisory opportunities that make for their own livelihood. What constrains them from yielding entirely to self-interest is that there is competition between states. Legislators in Oklahoma have moved to authorize loser-pays bylaws for companies incorporated there, and although it would take a lot to get companies to consider departing Delaware as a preferred state of incorporation, a few episodes like this might do it. Inevitably, hints are now in the air of federal action to put Oklahoma in its place: Sen. Richard Blumenthal (D-CT), a frequent ally of plaintiff’s lawyers, has asked the federal Securities and Exchange Commission to step in to squash the option.

I agree with Bainbridge’s bottom line: approving fee shifting bylaws “is the right answer from a policy perspective.” It’s also the answer that is most respectful of contractual liberty.

Global Warming Not Influencing Annual Streamflow Trends in the Southeast and Mid-Atlantic United States

Climate model simulations generally predict a future with more frequent and more severe floods in response to carbon dioxide–induced global warming. Confirming such predictions with real world observations, however, has remained an elusive task.

The latest study to illustrate this point comes from the four-member research team of Anna P. Barros, Yajuan Duan, Julien Brun, and Miguel A. Medina Jr. (2014). Writing in the Journal of Hydrologic Engineering, they analyzed streamflow records at various locations throughout the southeast and mid-Atlantic United States over the past century.

In prefacing their work, the researchers note several challenges that must be overcome in order to properly assess and attribute streamflow trends to anthropogenic climate change. One key challenge pertains to “the lack of long enough observational records [that are necessary] to capture the full range of time scales of variability in hydroclimatic regimes as well as extreme events.” This is particularly true in the present case in which only about 3,000 of the 10,012 U.S. Geological Survey streamflow gauges that exist within the authors’ study region have data stretching beyond 25 years of record. In addition, there is often the added challenge of “intermittency in the spatial and temporal configuration of the observing system of stream gauges,” as different stations both enter into, and exit out of, existence over the course of the study period and within the study region.  

Another factor that must be considered are changes in land-use and land cover (LULC) that can significantly influence streamflow. This is especially apparent in regions that have undergone significant urban development, which creates impermeable surfaces and highly interconnected discharge networks that have been shown to contribute to what the authors refer to as “large flood peaks.” Nevertheless, despite the aforementioned challenges, Barros et al. proceeded to conduct various statistical analyses on streamflow data from within their region of study at various time intervals over the past century.

Among their list of findings, the authors report “an overwhelming majority of stations shows no trend” in annual peak streamflow. Quantitatively, for the period 1950–2010, 81.7% of all stations examined in this 61-year period showed no trend at the 98% confidence level, 11.4% experienced a negative trend toward decreasing streamflow, and 6.8% showed a positive trend. (See Table 1, after the jump.)

Similar trends were noticed over the shorter 31-year period of 1980–2010, albeit there is one important change that occurred: there were lower percentages of stations experiencing negative or positive trends. Thus, rather than trending toward more extreme conditions, annual peak streamflow throughout the southeastern and mid-Atlantic United States over the past 30 years has become less extreme and more representative of average conditions. Moreover, those stations exhibiting positive trends tended to be found in urban areas (affected by LULC change), while those exhibiting negative trends tended to reside downstream of reservoirs (also a LULC factor). 

Can Taxis Survive the Rise of Ridesharing?

If taxi drivers want to endear themselves to consumers, they had better find another way of protesting ridesharing companies than deliberately congesting traffic. On Monday night, taxi drivers with the San Francisco Taxi Workers Alliance caused traffic jams at San Francisco International Airport in the wake of last month’s news that the airport would allow rideshare vehicles to pick up passengers as part of a pilot program. Unsurprisingly, airport visitors were not pleased. This kind of protest has a track record of failure, and in the coming years these protests may be remembered as being among the most frantic and ultimately unsuccessful attempts taxi drivers made to combat the rise of ridesharing companies such as Uber, Lyft, and Sidecar. 

Taxis have deliberately congested traffic in rideshare protests not only in American cities such as San Francisco and Washington, D.C., but also in London, where the protest earlier this year reportedly resulted in an explosion in British Uber sign-ups. In Washington, D.C., the city council passed a rideshare bill in a 12-1 vote despite the protest.

Taxi drivers are right to be worried about ridesharing. In San Francisco, there has been a dramatic drop in the number of taxi trips since the beginning of 2012, the year Uber’s ridesharing service and Lyft both launched. In September 2014, the general manager of a Washington, D.C., cab company said “what we are seeing is, year over year, an approximately 30 percent decrease in business.” A draft study from the Virginia Department of Motor Vehicles reportedly predicts that once rideshare regulations are permanently in place in the state, rideshare drivers will outnumber taxis.

Many consumers have demonstrated over the last few years that they prefer rideshare services to taxis. Market incumbents such as taxis have a number of options when competitors arrive on the scene, but it is hard to see if any will halt the growth of ridesharing. 

Taxi companies could try to innovate to keep up with the technology used by Uber, Lyft, and Sidecar. What many people like about ridesharing is the ease of use. All users have to do is press a button on their smartphone in order to get a ride that is paid for automatically without cash. Hailo, a company with an app similar to the apps offered by ridesharing companies, provides a way for passengers to hail a taxi via smartphones. However, Hailo recently announced that it would be leaving North America because of the competition from Uber and Lyft. Given that anyone who can download a taxi app also has the ability to download a ridesharing app, it is hard to see what a taxicab app would be able to offer that ridesharing companies don’t already provide. Of course, it is not inconceivable that the taxi industry will develop a competitive app, but it will be difficult for that app to succeed considering that rideshare companies already enjoy name recognition as well as a loyal customer base.

The Coming Globalization of the Marijuana Industry

A couple years ago, I speculated about eventual free trade in marijuana. That was before legalization in Colorado and Washington state. The case for trade and globalization of this industry looks stronger now. 

The Economist had a good article recently, taking into account this legalization, and thinking about what the future of the industry looks like. Right now, it’s just a bunch of small companies searching for the right market strategy, but they see consolidation eventually:

As happened with alcohol after the end of Prohibition, and has also happened with tobacco, the pot industry would probably come to be dominated by a few giant corporations.

They note that the tobacco industry has looked into the marijuana sector in the past, and might be well-positioned to run things, although it really could be anyone.

Assuming the current trend of increased acceptance continues, it seems inevitable that the marijuana industry will begin to look like other industries. There will be a few major global players, possibly based in the countries where legalization first happened. There will also be trade and investment disputes, just as there are in industries such as steel, cotton, and aircraft. No doubt the industry will be highly regulated, and regulations often given rise to these complaints.

For example, as the article notes, “Both Colorado and Washington have imposed residency requirements on the owners of marijuana businesses—including anyone with an equity stake.” Why restrict investments from foreigners and others who are not residents of the jurisdiction? No doubt the regulators have some rationale for this, but whether it’s a good one or complies with the various international investment obligations that are now in effect is up for debate.

Union Reforms to Improve Seaports

International trade boosts our economy, but U.S. seaports need major improvements to maximize the benefits of trade. Bloomberg reported a couple months ago that congestion at West Coast ports is so severe that shippers are diverting a growing share of traffic to Canada. The Wall Street Journal reports today that the problems are continuing.

One issue is the aggressive labor union that controls the West Coast ports:

For more than a month, a rotating cast of about a dozen container vessels, bulk ships and tankers has sat anchored just outside the ports of Los Angeles and Long Beach, some waiting as long as eight days to berth.

… Uncertainty over contract negotiations between terminal operators and the West Coast Longshoremen’s union has further aggravated the congestion, local officials and economists say.

Businesses up and down the West Coast that rely on the ports for importing and exporting goods have expressed concern over the protracted negotiations between the International Longshore and Warehouse Union, representing workers at West Coast ports, and the Pacific Maritime Association, which represents carriers and terminal operators. ILWU members have been working without a contract since a six-year pact expired July 1.

In recent weeks, the PMA has accused the union of slowdowns at the ports of Seattle and Tacoma, Wash., and withholding some critical workers in Los Angeles and Long Beach, contributing to the current congestion. Some longshoremen walked off the job Oakland, Calif., last week, aggravating concerns over a widespread labor disruption during the holiday shipping season.

Port employers as well as retailers and manufacturers say their greatest fear is the possibility of a total shutdown across West Coast ports—similar to a 10-day worker lockout in 2002 after labor talks failed. The shutdown cost the U.S. economy several billions of dollars, industry groups say. Mr. Louttit of the Marine Exchange said the disruption at one point left 65 ships sitting at anchor off the Southern California coast.

The solution to these labor problems is straightforward: Congress should repeal “collective bargaining,” which is a euphemism for monopoly unionism. In other words, it should repeal the National Labor Relations Act (NLRA), which confers unjustified powers on unions and encourages them to disrupt workplaces.

The share of the private-sector workforce that is unionized has plunged for decades because unions make no sense in the modern fast-paced economy. But the unions that hang on in some industries cause a lot of trouble, as we’ve long seen with the high-paid longshoremen on the West Coast. I don’t imagine that NLRA repeal is on President Obama’s agenda, but it is a reform that policymakers should pursue down the road.

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Today in Cato’s Growth Forum

Cato’s special online forum on reviving growth continues today with the following new essays:

1. Morris Kleiner makes the case against occupational licensing.

2. Tim Kane calls for more immigration.

3. Alan Viard advocates moving to a progressive consumption tax.

4. Donald Marron argues for a carbon-corporate tax swap.