113 Yale L.J. 621 (2003)

For decades, practitioners and academic commentators who believe that target boards should have broad discretion to resist hostile takeover attempts have put forward the "bargaining power hypothesis" to support their view. This hypothesis states that a target with strong takeover defenses will extract more in a negotiated acquisition than a target with weaker defenses, because the acquirer's no-deal alternative, to make a hostile bid, is less attractive against a strong-defense target. The hypothesis helped usher in the modern era of takeover defenses: In endorsing the poison pill in Moran v. Household International, Inc., the Delaware Chancery Court framed the question as a balance between "the unrestricted right of shareholders to participate in nonmanagement sanctioned tender offers" and "the right of a Board of Directors to increase its bargaining powers." The bargaining power hypothesis has been voiced more frequently over the past few years as other shareholder-focused arguments in favor of takeover defenses, such as protection against "structural coercion" and protection against "substantive coercion," have been rendered less important through federal and state intervention or challenged by recent empirical evidence. Yet despite its venerable heritage and recent revitalization, the bargaining power hypothesis has generally been asserted by defense proponents and conceded by defense opponents, never subjected to a careful theoretical analysis or a comprehensive empirical test.

This Essay attempts to fill this gap. I use negotiation-analytic tools to construct a model of bargaining in the "shadow" of takeover defenses. This model identifies the conditions that must exist in order for the bargaining power hypothesis to hold in a particular negotiated acquisition. I demonstrate that the bargaining power hypothesis only applies unambiguously to negotiations in which there is a bilateral monopoly between buyer and seller, no incremental costs to making a hostile bid, symmetric information, and loyal sell-side agents. These conditions suggest that the bargaining power hypothesis is only true in a subset of all deals, contrary to the claim of some defense proponents that the hypothesis applies to all negotiated acquisitions.

I confirm the features of this model with evidence from practitioner interviews. It is interesting to note that while the bargaining power hypothesis lies squarely at the intersection of law and business--namely, legal rules on takeover defenses influencing the business issue of price--to my knowledge the businesspeople who actually negotiate price have been silent on this question. In order to better understand practitioner views, I interviewed the head or co-head of mergers and acquisitions at ten major New York City investment banks. Collectively these firms represented either the acquirer or the seller, or both, in seventy-two percent of negotiated acquisitions by number, and ninety-six percent by size, during the 1990s deal wave. The evidence compiled from these practitioner interviews is consistent with the theoretical model presented here.

I then test the bargaining power hypothesis against a database of negotiated acquisitions of U.S. public company targets between 1990 and 2002 (n = 1692). If the hypothesis is correct, then premiums should be higher in states that authorize the most potent pills (Georgia, Maryland, Pennsylvania, and Virginia), and lower in the state that provides the least statutory validation for pills (California), relative to Delaware, which takes a middle ground on the pill question. Consistent with the predictions of my model, however, I find no evidence that premiums are statistically different across these states, either overall or in those subsamples in which bargaining power is most likely to manifest itself. I further test for intrastate differences using the Maryland Unsolicited Takeovers Act of 1999 as the basis for a natural experiment, and also find no empirical support for the bargaining power hypothesis.

These findings have implications for the current antimanagerial, pro-takeover trajectory of Delaware's corporate law jurisprudence in the aftermath of Enron. Proponents of the status quo warn that such doctrinal movements will weaken targets' bargaining power in negotiated acquisitions, which will in turn reduce overall returns for target shareholders. But by unpacking the "black box" of negotiated acquisitions and examining the microlevel underpinnings of the bargaining process, this Essay suggests that a return to the original promise of intermediate scrutiny articulated in Unocal Corp. v. Mesa Petroleum Co. is unlikely to yield significant negative wealth consequences for target shareholders. Rather, as I and others have argued, a controlled revitalization of the hostile takeover marketplace can help to improve overall corporate governance, an objective that has become only more important in the post-Enron era.

The remainder of this Essay proceeds as follows. Part II provides relevant background, including the origins of the bargaining power hypothesis and the evidence put forward to support it. Part III constructs a theoretical model of bargaining power in the negotiated acquisition context, beginning with a baseline case in which the bargaining power hypothesis clearly holds, and then adding real-world complexities that make it less plausible in many negotiated acquisitions. In addition, Part III uses evidence from practitioner interviews to illustrate the features of the model. Part IV provides new econometric evidence on the validity of the bargaining power hypothesis. Part V discusses implications of these findings. Part VI concludes.

113 Yale L.J. 743 (2003)

At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of the Constitution. There are, however, complex constitutional questions about vouchers that linger in Zelman's wake. This Note addresses one such issue that has only just begun to receive scholarly attention: Can states require private voucher schools--including religious schools--to comply with antidiscrimination policies, or would the enforcement of those policies violate the First Amendment rights of the schools? For example, could a state require a private school to admit racial minorities, women, and gays and lesbians as a condition for eligibility in a state voucher program? What if the school administrators object on principle--perhaps religious principle--to racial integration, coeducational schooling, or homosexuality? Doesn't the First Amendment protect the schools' views?

The Supreme Court's jurisprudence does not provide easy answers to these questions, and the relevant body of case law is inconsistent. This Note seeks to make sense of the doctrine and to demonstrate that, as applied to private voucher schools, antidiscrimination laws can--and should--survive a First Amendment challenge.

Part I provides a brief overview of the current status of voucher laws and proposals, and discusses the opposition of civil rights organizations to these laws. Part II then analyzes the free speech problems that may arise if states require voucher schools to adhere to antidiscrimination norms. I argue first that voucher programs are a form of "government speech through private actors," and that in such cases the Free Speech Clause does not preclude states from making viewpoint-based distinctions. The remainder of Part II deals with the possibility that courts will reject this analysis. I discuss the various constitutional tests to which courts may subject antidiscrimination requirements, and I argue that antidiscrimination policies should survive any of them. Because the Free Speech Clause poses the most complex problems for antidiscrimination policies, the bulk of the Note centers on this issue.

Part III addresses issues raised by the Free Exercise and Establishment Clauses, and argues that religious voucher schools can also be bound to antidiscrimination policies without violating the schools' First Amendment freedoms. The only exception would be for clerical teacher employment disputes at religious schools; such suits are nonjusticiable due to a mixture of Free Exercise and Establishment Clause concerns.