Proxy Access and Optimal Standardization in Corporate Governance : An Empirical Analysis

According to the conventional wisdom, “one size does not fit all” in corporate governance. Firms are heterogeneous with respect to their governance needs, implying that the optimal corporate governance structure must also vary from firm to firm. This one-size-does-not-fit-all axiom has featured prominently in arguments against numerous corporate law regulatory initiatives, including the SEC’s failed Rule 14a-11—an attempt to impose mandatory, uniform “proxy access” on all public companies—which the D.C. Circuit struck down for inadequate cost–benefit analysis. This Article presents an alternative theory as to the role of standardization in corporate governance—in which investors prefer standardized terms—and empirical evidence that is consistent with this theory. Under my theory, shareholders prefer standardization because they must incur considerable transaction costs to exercise control rights that contain idiosyncratic terms. Standardization reduces these transaction costs. Consistent with this theory, I find that standardization, not heterogeneity, has pervaded the post–Rule 14a-11 private ordering of proxy access. Shareholder proposals and adopted bylaws alike have converged around standardized terms, and regression analysis suggests that this standardization reflects shareholder preferences. Moreover, employing a regression-discontinuity design, I find evidence indicating that markets have generally reacted favorably to the passage of these standardized proposals. However, robustness checks cast some doubt on the internal validity of this regression-discontinuity design, and thus these results should be taken with a grain of salt. My theory and empirical findings have important implications for longstanding normative debates in corporate law. With a proper understanding of the role of standardization in corporate governance, the one-size-fits-all critique—though not baseless—takes on a different meaning. Although lawmakers would still do well to retain a presumption in favor of default rules instead of mandatory rules, the need for heterogeneity does not appear to be as great as some have supposed, and lawmakers may benefit from a greater focus on encouraging optimal standardization instead of optimal heterogeneity. These insights bear both on optimal regulatory design in the abstract and on the wisdom of currently pending federal legislation in a more concrete way