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对外贸易经济大学：《法律与金融》课程教学资源（参考资料）Legal Origins, Politics, and Modern Stock Markets

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HARVARD LAW REVIEW ing a decision until he has to. Only experience counts., and so he is not given to abstract rules of law.' 12 The civil law plans, the common law reacts. B. Legal Origins and Financial Progress According to the legal origins theory, these contrasts between civil and common law systems induce differences in financial law, which lead to differences in financial outcomes. The first link between legal origins and financial markets is said to be how the legal system protects small investors. "[C]ommon law countries protect shareholders better than do civil law countries and especially better than French civil law countries. 1 3 If small investors fear that insiders could rob them, they will not invest in the insiders' firms. If outsiders do not buy, then a deep stock market does not develop, and the big owners - founding families and their successors - are locked in.' 4 Common law systems protect minority stockholders well via judge-made fiduciary duties,1 5 while civil law systems, the theory goes, are too rigid to protect minority stockholders. As Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny (LLSV) wrote: [There's a] 'judicial' explanation of why common law protects investors better than civil law . Legal rules in the common law system are usually made by judges, based on precedents and inspired by general principles such as fiduciary duty or fairness. Judges are expected to rule on new situations by applying these general principles even when specific conduct has not yet been described or prohibited in the statutes. 16 And "these rules [protecting investors] vary systematically by legal origin."' 7 12 Id. 13 Simeon Djankov, Edward Glaeser, Rafael La Porta, Florencio Lopez-de-Silanes & Andrei Shleifer, The New Comparative Economics, 31 J. COMP. ECON. 595, 61o (2003). 14 The most precise model linking law to ownership diffusion does not tie the two via legal origin. See Lucian Arye Bebchuk, A Rent-Protection Theory of Corporate Ownership and Control 23-30 (Nat'l Bureau of Econ. Research, Working Paper No. 7203, 999), available at http:// ssrn.com/abstract=203 1o. 15 See, e.g., Simon Johnson et al., Tunneling, 90 AM. ECON. REv. PAPERS & PROC. 22, 23-24, 26 (2000). Additionally, see Glaeser & Shleifer, supra note 6, arguing: [Bright line rules] notoriously fail to catch undesirable conduct [concerning] the expropriation of investors by corporate insiders . [Bright line rules] do not work well in this area because a broad range of creative behavior designed to expropriate investors 'falls between the cracks' in the rules . [C]ommon law regimes . . do better than civil law in . investor protection . Id. at 1222. 16 Rafael La Porta et al., Investor Protection and Corporate Governance, 58 J. FIN. EcON. 3, 9 (2000). 17 Rafael La Porta et al., Legal Determinants of External Finance, 52 J. FIN. 1131 (997). This is a foundational article in the law and finance literature. A deepening of the fiduciary duty ar- [V01. 120:46o

20061] WAR VS.LEGAL ORIGIN 47I The second maior explanation for financial differences between civil and com mon law omies is that civil law systems ov killing securities markets before regulate they can develop Tlhe sta ite ha s a relatively greater role in regulating business in civil law countries than in common law ones."18 Common law systems are more decentralized and less regulatorv.They facilitate the private.marketplace transac- tions that allow securities markets to thrive.19 If either channel is determinative financial protection via com mon law fiduciary duties or an intrinsically overregulatory character of the civil law then,a sympathetic commentator concludes,the impli cations of the legal origins work(and the commentator's own)are that France and Italy "[should ilnstall a common law,adversarial legal sys- tem and scrap their civil law systems."20 Although strong medicine it's a natural he and ot all that radical in the legal or gins literature. Key players do say that nations protect property,grow,and get rich.2 gaorigin explains why some So,could those differences in legal origin matter much for financial differences today in the wealthy West?Not likely,I argue in the fol- lowing sections.The core differences could easily be exaggerated.The answers lie s mewhere else Minority Stockholders via Fiduciary Duties A common law,fiduciary duties run from controlling insic ders to outside shareholders. Shareholders buy stock more comfortably when they know that a judge will protect them later from insider overreaching. Although hardly anyone thinks that legal protection is unimportant, the legal origins the ory tries to go deeper:the common law via its ent focusing on procedures to reduce self-dealing can be found in Simeon Diankov et The Law and Ec s of Self-Dealing (Nat'l Bureau of Econ.Research,Working Paper No. http: 6404 nce,supra note 16,at Rafael La Porta et al,The Quality of Goverment,15 J.LECON.&ORG.(19). ing rece at c mon law nations Ratael La Porua.FIN.)ereinafter La Pora etal.What Works Leaders in legal origin deb may n ularly as so civil law y from their ease with market 2 So Th help. 7 J.FIN.ECON.137,138 (003).Although not every legal origin proponent mns onto every idea held by every other legal origin proponent,the items quoted and summarized here are repre-

WAR VS. LEGAL ORIGIN The second major explanation for financial differences between civil and common law economies is that civil law systems overregulate, killing securities markets before they can develop. "[T]he state has a relatively greater role in regulating business in civil law countries than in common law ones."'' Common law systems are more decentralized and less regulatory. They facilitate the private, marketplace transactions that allow securities markets to thrive. 19 If either channel is determinative - financial protection via common law fiduciary duties or an intrinsically overregulatory character of the civil law - then, a sympathetic commentator concludes, the implications of the legal origins work (and the commentator's own) are that France and Italy "[should i]nstall a common law, adversarial legal system and scrap their civil law systems. '20 Although strong medicine, it's a natural conclusion here and not all that radical in the legal origins literature. Key players do say that legal origin explains why some nations protect property, grow, and get rich.2 1 So, could those differences in legal origin matter much for financial differences today in the wealthy West? Not likely, I argue in the following sections. The core differences could easily be exaggerated. The answers lie somewhere else. i. Protecting Minority Stockholders via Fiduciary Duties. - At common law, fiduciary duties run from controlling insiders to outside shareholders. Shareholders buy stock more comfortably when they know that a judge will protect them later from insider overreaching. Although hardly anyone thinks that legal protection is unimportant, the legal origins theory tries to go deeper: the common law - via its gument - focusing on procedures to reduce self-dealing - can be found in Simeon Djankov et al., The Law and Economics of Self-Dealing (Nat'l Bureau of Econ. Research, Working Paper No. 11883, 2005), available at http://ssrn.com/abstract=864645. 18 La Porta et al., Investor Protection and Corporate Governance, supra note 16, at i2; Rafael La Porta et al., The Quality of Government, i5 J.L. ECON. & ORG. 222, 224 (1999). 19 Interesting recent legal origins papers propose a third channel - that common law nations intrinsically favor markets, transparency, and contract. See, e.g., Djankov et al., supra note i7; Rafael La Porta et al., What Works in Securities Laws?, 6i J. FIN. i (2oo6) [hereinafter La Porta et al., What Works?]. Leaders in the legal origin debate may - as they turn to the overall preference for market-friendliness - find themselves emphasizing political factors and forgetting about legal origins, particularly as some civil law nations move away from their post-World War II unease with markets. 20 Dennis C. Mueller, The Economics and Politics of Corporate Governance in the European Union 28 (European Corporate Governance Inst., Law Working Paper No. 37/2005, 2005) (emphasis added), available at http://ssrn.com/abstract=730366. But, the author adds, mid-range reforms could help. Id. 21 See Thorsten Beck, Ash Demirguig-Kunt & Ross Levine, Law, Endowments, and Finance, 70 J. FIN. ECON. 137, 138 (2003). Although not every legal origin proponent signs onto every idea held by every other legal origin proponent, the items quoted and summarized here are representative, not outliers. 2006]

472 HARVARD LAW REVIEW [Vol.120:46 use of fiduciary duties is structurally better suited to protect distant shareholders than civil law. The fiduciary duty channel for the legal origin theory has its weak- nesses.For one thing,the United States uses securities regulation as well as fiducia ary duties to do the job. And civil law w nati ons could, were they so disposed,develop the institutions to protect minority stockholders. Moreover,some scholars see the protections coming from the American common law judge as anemic22:one of the best known American corporate law articles,by William Cary,former chair of the SEC,was a rolling assault on judges'unwillingness to protect distan minority stockholders.23 Take an example the and I97os:Going-private transactions had insiders setting the price at which they bought out the public shareholders.Many such transac- tions were seen as scandalous,yet our courts let them go forward even though this problem of controlling shareholders exploiting outside shareholders -is the type that can unde nine a stock market.The SEC criticized the and there were calls for new gislation and commentators think that it was those threats,and not the common law evolving on its own,that induced the courts to toughen up on in- siders.24 Another example:Earlier in the twentieth century,common law fiduciary duties were seen as weak enough to demand new federal regulation Insider trading,for example, was legal in most states at common law.2 Thus,although common law fiduciary duties can be central in pro tecting shareholders,and often are in the United States,they're not always as strong as they can be cracked up to be.26 Still,one has the impression that the United States uses fiduciary duties more than civil law nations (and mayhe more than other com mon law nations). The 此 ntives to pr duc ng with ing tr and the very insider machinations that can uashst marke) William】 Cary,Federalism and CorporateLaw: 6 J.LEGAL ST 5(在977an ROBERTA ROMANO,THE GENIUS OF AMERICAN CORPORATE LAW 19-21(1993) BLACK THE LAW AND FINANCE OF coGoodwin vgassi 1 NE666-62 Ma holding that and individual stockholders,an insid r was not liable for trading on LAW OF BUSINESS ORGANIZATION 577-78(2003). ). 22,at144

HARVARD LAW REVIEW use of fiduciary duties - is structurally better suited to protect distant shareholders than civil law. The fiduciary duty channel for the legal origin theory has its weaknesses. For one thing, the United States uses securities regulation as well as fiduciary duties to do the job. And civil law nations could, were they so disposed, develop the institutions to protect minority stockholders. Moreover, some scholars see the protections coming from the American common law judge as anemic 22: one of the best known American corporate law articles, by William Cary, former chair of the SEC, was a rolling assault on judges' unwillingness to protect distant minority stockholders.2 3 Take an example from the I96os and i97os: Going-private transactions had insiders setting the price at which they bought out the public shareholders. Many such transactions were seen as scandalous, yet our courts let them go forward even though this problem - of controlling shareholders exploiting outside shareholders - is the type that can undermine a stock market. The SEC criticized the courts and there were calls for new legislation - and commentators think that it was those threats, and not the common law evolving on its own, that induced the courts to toughen up on insiders. 24 Another example: Earlier in the twentieth century, common law fiduciary duties were seen as weak enough to demand new federal regulation. Insider trading, for example, was legal in most states at common law. 2S Thus, although common law fiduciary duties can be central in protecting shareholders, and often are in the United States, they're not always as strong as they can be cracked up to be. 26 Still, one has the impression that the United States uses fiduciary duties more than civil law nations (and maybe more than other common law nations). The 22 See Lucian Arye Bebchuk, Federalism and the Corporation: The Desirable Limits on State Competition in Corporate Law, 1O5 HARV. L. REV. 1435, 1441 (1992) (arguing that states have weak incentives to produce good law dealing with "self-dealing transactions, taking of corporate opportunities, . . . insider trading," and "regulation of going-private and parent-subsidiary freezeouts" - the very insider machinations that can quash a stock market). 23 William L. Cary, Federalism and Corporate Law: Reflections upon Delaware, 83 YALE L.J. 663, 670, 672, 681-84 (1974). The contrary view is in Ralph K. Winter, Jr., State Law, Shareholder Protection and the Theory of the Corporation, 6 J. LEGAL STUD. 251 (I977), and ROBERTA ROMANO, THE GENIUS OF AMERICAN CORPORATE LAW 19-21 (1993). 24 See, e.g., RONALD J. GILSON & BERNARD S. BLACK, THE LAW AND FINANCE OF CORPORATE ACQUISITIONS 1254-56, 1256 n.40 (2d ed. 1995). 25 See, e.g., Goodwin v. Agassiz, 186 N.E. 659, 66o-62 (Mass. 1933) (holding that without privity between insider directors and individual stockholders, an insider was not liable for trading on inside information, a result that left buyers in the stock market with reduced recourse - or none at all); WILLIAM T. ALLEN & REINIER KRAAKMAN, COMMENTARIES AND CASES ON THE LAW OF BUSINESS ORGANIZATION 577-78 (2003). The bright-line rules of section i6(b), 15 U.S.C. § 78p(b) (2000), sufficed until the i96Os, when the SEC expanded insider trading liability. 26 See Bebchuk, supra note 22, at 1441. [V01. 120:46o

2006] WAR VS.LEGAL ORIGIN 473 critics could be seen as saying that American fiduciary duties should be even stronger-or that alone they do not protect investors enough. common law,fiduciary-based protections get mu from regulators like the SEC,from the nge and fro om the legislature. Yes,the American common law judge is,despite the crit ics,very important in corporate law,but the judge is not alone in pro- tecting American stockholders.And even if the common law judge were central-and not just very important we'd need to know that regulators could not do the job as well before concluding that nlaw judging had an inh stru cival law in building financial markets tural adva antage over the Indeed,in Britain,the other major common law jurisdiction,the judge seems not to have protected minority stockholders well.27 And much that's important to shareholder protection isn't driven by fiduciary duties.Fiduciary duties do not protect distant stockhold- ers from manage erial mistake or from managers'neglect of sharehold- ers'interests Because the business judgment rule stifle such lawsuits (properly,I might add).American stockholders must rely on other in stitutions to protect them from managerial error. Thus.if uncon- strained managers would be systematically less shareholder-oriented in some firms,or in some nations,than in others,then dominant share. holders could ot easily sell out their stock to distant stockholders be caus e sto holder value would arply d Thus,if the common law-civil law distinction rested on basic fidu ciary duties,it would be weak:Yes,fiduciary duties have been impor- tant to common law.But modern American corporate law is not solely fiduciary oriented,but also made largely by the SEC,a regulator.And the goal sought rotectin distant stockholders can he achieved via mult means, pr ithi in th reach of either le gal orign.It wo be a mistak e to read the qualitative evidence as telling us to prescribe mainly judge-based,fiduciary duty tools to propel financial and eco- nomic development. 2.Overregulating Financial Markets. lohn Coffee reinvigorated the legal origins theory,arguing that civil law overregulates se ark ock if left alo ne,could protect stockholders But statist,centralized civil law nations would not leave them alone, tion of Own and in th J.LEGAL STUD.()(importance of British stock exchange) c.c e, :The Ro and the Staten he Sep legislation). mp and in MARKRO e e,POLITICAI ORPORATE GOVERNANCE 159-90

WAR VS. LEGAL ORIGIN critics could be seen as saying that American fiduciary duties should be even stronger - or that alone they do not protect investors enough. Indeed, common law, fiduciary-based protections get much help from regulators like the SEC, from the stock exchange, and from the legislature. Yes, the American common law judge is, despite the critics, very important in corporate law, but the judge is not alone in protecting American stockholders. And even if the common law judge were central - and not just very important - we'd need to know that regulators could not do the job as well before concluding that common law judging had an inherent structural advantage over the civil law in building financial markets. Indeed, in Britain, the other major common law jurisdiction, the judge seems not to have protected minority stockholders well.2 7 And much that's important to shareholder protection isn't driven by fiduciary duties. Fiduciary duties do not protect distant stockholders from managerial mistake or from managers' neglect of shareholders' interests. Because the business judgment rule stifles such lawsuits (properly, I might add), American stockholders must rely on other institutions to protect them from managerial error. Thus, if unconstrained managers would be systematically less shareholder-oriented in some firms, or in some nations, than in others, then dominant shareholders could not easily sell out their stock to distant stockholders because stockholder value would sharply decline.2 8 Thus, if the common law-civil law distinction rested on basic fiduciary duties, it would be weak: Yes, fiduciary duties have been important to common law. But modern American corporate law is not solely fiduciary oriented, but also made largely by the SEC, a regulator. And the goal sought - protecting distant stockholders - can be achieved via multiple means, all within the reach of either legal origin. It would be a mistake to read the qualitative evidence as telling us to prescribe mainly judge-based, fiduciary duty tools to propel financial and economic development. 2. Overregulating Financial Markets. - John Coffee reinvigorated the legal origins theory, arguing that civil law overregulates securities markets. Stock exchanges, if left alone, could protect stockholders. But statist, centralized civil law nations would not leave them alone, 27 See Brian R. Cheffins, Does Law Matter? The Separation of Ownership and Control in the United Kingdom, 30 J. LEGAL STUD. 459, 469-70 (2001) (importance of British stock exchange); John C. Coffee, Jr., The Rise of Dispersed Ownership: The Roles of Law and the State in the Separation of Ownership and Control, iii YALE L.J. 1, 41-42 (2001) (importance of British legislation). 28 I develop this idea in Mark J. Roe, Corporate Law's Limits, 31 J. LEGAL STUD. 233 (2002), and in MARK J. ROE, POLITICAL DETERMINANTS OF CORPORATE GOVERNANCE 159-96 (2003). 2oo6]

474 HARVARD LAW REVIEW [Vol.120:460 stymieing stock markets from emerging and quashing private efforts to stockholders A lo w-regulation envi ronment in the d o1 pug astie o1 aaueqoxa yois a pamolle saesoxd nority stockholders,and then exchange practices morphed into good securities law.29 Finance scholarship took up Coffee's overregulation theory3o and expanded itto osit deep law nations for markets reference in common and private contracting.31 The overregulation hypothesis comes in three varieties:first,common law judiciaries confine the overregulatory tendencies of their legislatures;second,civil law sys- tems overregulate securities markets;and third,the civil law intrinsi- cally induces overregulation of the economy,while the common law let markets flou rish With this third channel,origins theory ties into a system's propen- sity to adopt market-preferring,transparency-enhancing disclosure rules.32 Pro-or anti-market regulation is important,but attributing it to origin suffers from two limitations:First.we are now talking more about nations'preferences for outputs -for (or against)markets. transparency,and priva te contracti thar ab legal system' institutional qualities. Stronger explan tions for r riva I national prefer ences exist,as we see in Parts III and IV.Second,both legal origins in modern times could go either way. America passed the Sarbanes. Oxley Act of 2002,33 which was quite directive,34 while Germany was settin up market-preferring, transparency-enhancing "comply or ex ru le whi did not impose regulatory straightja A w器ic心心 law,wea LEGALSTUD. eShieifer,p note tFrench civilw courehibit beav e secure prop ry rights stitutions to further the power of the State eg.La p ta et al. What Works?,supra note 19,at 14,28 (common law"emphasis on mar Sce id at This channel is distinct from Coffee's overregulatory channel. Pub.L.No.1o7-204.116 Stat.745 (codified in scattered sections of I5,18,28,and 29 The Saxh s-Oxhes Act and the Mabi ance,114 YALE LJ 151,1539.1594-1603 (aoos)(severely criticizing the Act for being so [Act in Furtherance of ransp ,161;BERICHT DER REGIERUNGSKOMMISSION CORPORATE E IR ort or the Germa ain rules has vet to be seen.See generally E.Wymeersch.The Enforcemen of Corporate Coverance

HARVARD LAW REVIEW stymieing stock markets from emerging and quashing private efforts to protect minority stockholders. A low-regulation environment in the United States allowed the stock exchange to arise and to protect minority stockholders, and then exchange practices morphed into good securities law.2 9 Finance scholarship took up Coffee's overregulation theory30 and expanded it to posit a deep preference in common law nations for markets and private contracting. 3I The overregulation hypothesis comes in three varieties: first, common law judiciaries confine the overregulatory tendencies of their legislatures; second, civil law systems overregulate securities markets; and third, the civil law intrinsically induces overregulation of the economy, while the common law lets markets flourish. With this third channel, origins theory ties into a system's propensity to adopt market-preferring, transparency-enhancing disclosure rules. 32 Pro- or anti-market regulation is important, but attributing it to origin suffers from two limitations: First, we are now talking more about nations' preferences for outputs - for (or against) markets, transparency, and private contracting - than about a legal system's institutional qualities. Stronger explanations for rival national preferences exist, as we see in Parts III and IV. Second, both legal origins in modern times could go either way. America passed the SarbanesOxley Act of 20o2, 3 3 which was quite directive, 34 while Germany was setting up market-preferring, transparency-enhancing "comply or explain" rules, which did not impose regulatory straightjackets. 35 A 29 See Coffee, supra note 27, at 9. Paul Mahoney argues that although legal origin does not affect corporate law, weak property protection in civil law nations stunts their economic growth. See Paul G. Mahoney, The Common Law and Economic Growth: Hayek Might be Right, 30 J. LEGAL STUD. 503, 523 (2001). 30 See, e.g., Glaeser & Shleifer, supra note 6, at 1194 ("French civil law countries exhibit heavier regulation [and] less secure property rights . than do the common law countries."); La Porta et al., The Quality of Government, supra note i8, at 231-32 ("[C]ivil legal tradition . build[s] institutions to further the power of the State . "). 31 See, e.g., La Porta et al., What Works?, supra note I9, at 14, 28 (common law "emphasis on market discipline and private litigation"). 32 See id. at 27-28. This channel is distinct from Coffee's overregulatory channel. 33 Pub. L. No. 107-204, 116 Stat. 745 (codified in scattered sections of ix, i5, 18, 28, and 29 U.S.C.). 34 See Roberta Romano, The Sarbanes-Oxley Act and the Making of Quack Corporate Governance, 114 YALE L.J. 1521, 1529, 1594-1603 (2005) (severely criticizing the Act for being so directive). 35 See Gesetz zur weiteren Reform des Aktien- und Bilanzrechts, zu Transparenz und Pulizitdt [Act in Furtherance of Transparency and Publicity of Corporate and Accounting Law], July 19, 2002, BGB1. I at 2681, art. i, § 161; BERICHT DER REGIERUNGSKOMMISSION CORPORATE GOVERNANCE [Report of the German Government Panel on Corporate Governance] Rz. 8-io (Theodor Baums ed., 2001) (recommending "comply or explain" rules). The effectiveness of these rules has yet to be seen. See generally E. Wymeersch, The Enforcement of Corporate Governance [Vol. 120:46o

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