Document Type

Article

Publication Date

1-2008

Keywords

Agency costs, Capital markets, Corporate governance, Derivatives, Private equity, Risk management

Disciplines

Banking and Finance | Companies Law | Corporation and Enterprise Law | Securities Law

Abstract

The traditional law and finance focus on agency costs presumes that the premise that diversified public shareholders are the cheapest risk bearers is immutable. In this Essay, we raise the possibility that changes in the capital markets have called this premise into question, drawn into sharp relief by the recent private equity wave in which the size and range of public companies being taken private expanded significantly. In brief, we argue that private owners, in increasingly complete markets, can transfer risk in discrete slices to counterparties who, in turn, can manage or otherwise diversify away those risks they choose to forego, arguably becoming a lower cost substitute for traditional risk capital.

If diversified shareholders are no longer the cheapest risk bearers, then the associated agency costs may now be voluntary; and if risk management can substitute for risk capital without requiring a transfer of ownership, then why go public at all? Do more complete capital markets herald (once again) the eclipse of the public corporation? We offer some preliminary responses, suggesting that the line between public and private firms may begin to blur as the balance between agency costs and the benefits of public ownership shift toward a new equilibrium.

Comments

This article predates Charles K. Whitehead's affiliation with Cornell Law School.

Publication Citation

Published in: Columbia Law Review, Vol. 108, No. 1 (January 2008).