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Outside Director Liability: A Policy Analysis

Author

Listed:
  • Bernard S. Black
  • Brian R. Cheffins
  • Michael Klausner

Abstract

Outside directors of public companies play a central role in overseeing management. Nonetheless, they have rarely incurred personal, out-of-pocket liability for failing to carry out their assigned tasks, either in the litigation-prone United States or other countries. Historically, as threats to this near-zero personal liability regime have appeared, market and political forces have responded to restore the status quo. We suggest here reasons to believe that this arrangement is justifiable from a policy perspective, at least in countries where reputation and other extra-legal mechanisms provide reasonable incentives for outside directors to be vigilant.

Suggested Citation

  • Bernard S. Black & Brian R. Cheffins & Michael Klausner, 2006. "Outside Director Liability: A Policy Analysis," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 162(1), pages 5-20, March.
  • Handle: RePEc:mhr:jinste:urn:sici:0932-4569(200603)162:1_5:odlapa_2.0.tx_2-l
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    References listed on IDEAS

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    Cited by:

    1. Bird, Robert C. & Borochin, Paul A. & Knopf, John D., 2015. "The role of the chief legal officer in corporate governance," Journal of Corporate Finance, Elsevier, vol. 34(C), pages 1-22.
    2. Michael Firth & Sonia Wong & Qingquan Xin & Ho Yin Yick, 2016. "Regulatory Sanctions on Independent Directors and Their Consequences to the Director Labor Market: Evidence from China," Journal of Business Ethics, Springer, vol. 134(4), pages 693-708, April.
    3. Yanmin Gao & Jeong-Bon Kim & Desmond Tsang & Haibin Wu, 2017. "Go before the whistle blows: an empirical analysis of director turnover and financial fraud," Review of Accounting Studies, Springer, vol. 22(1), pages 320-360, March.
    4. Brochet, Francois & Srinivasan, Suraj, 2014. "Accountability of independent directors: Evidence from firms subject to securities litigation," Journal of Financial Economics, Elsevier, vol. 111(2), pages 430-449.
    5. Fahlenbrach, Rudiger & Low, Angie & Stulz, Rene M., 2010. "The Dark Side of Outside Directors: Do They Quit When They Are Most Needed?," Working Paper Series 2010-7, Ohio State University, Charles A. Dice Center for Research in Financial Economics.
    6. Jackson, Howell E. & Roe, Mark J., 2009. "Public and private enforcement of securities laws: Resource-based evidence," Journal of Financial Economics, Elsevier, vol. 93(2), pages 207-238, August.
    7. Dain C. Donelson & Christopher G. Yust, 2014. "Litigation Risk and Agency Costs: Evidence from Nevada Corporate Law," Journal of Law and Economics, University of Chicago Press, vol. 57(3), pages 747-780.
    8. Jagannathan, Murali & Pritchard, A.C., 2017. "Do Delaware CEOs get fired?," Journal of Banking & Finance, Elsevier, vol. 74(C), pages 85-101.
    9. Lin, Chen & Officer, Micah S. & Zou, Hong, 2011. "Directors' and officers' liability insurance and acquisition outcomes," Journal of Financial Economics, Elsevier, vol. 102(3), pages 507-525.
    10. Aharony, Joseph & Liu, Chelsea & Yawson, Alfred, 2015. "Corporate litigation and executive turnover," Journal of Corporate Finance, Elsevier, vol. 34(C), pages 268-292.
    11. Adams, Renée B. & Ferreira, Daniel, 2008. "Do directors perform for pay?," Journal of Accounting and Economics, Elsevier, vol. 46(1), pages 154-171, September.
    12. Sokolyk, Tatyana, 2011. "The effects of antitakeover provisions on acquisition targets," Journal of Corporate Finance, Elsevier, vol. 17(3), pages 612-627, June.
    13. Aguir, Iness & Burns, Natasha & Mansi, Sattar A. & Wald, John K., 2014. "Liability protection, director compensation, and incentives," Journal of Financial Intermediation, Elsevier, vol. 23(4), pages 570-589.
    14. Ertimur, Yonca & Ferri, Fabrizio & Maber, David A., 2012. "Reputation penalties for poor monitoring of executive pay: Evidence from option backdating," Journal of Financial Economics, Elsevier, vol. 104(1), pages 118-144.
    15. Peecher, Mark E. & Solomon, Ira & Trotman, Ken T., 2013. "An accountability framework for financial statement auditors and related research questions," Accounting, Organizations and Society, Elsevier, vol. 38(8), pages 596-620.
    16. Engert, Andreas & Goldlücke, Susanne, 2013. "Why agents need discretion: The business judgment rule as optimal standard of care," Working Papers 13-04, University of Mannheim, Department of Economics.
    17. Mohamed Khenissi & Peter Wirtz, 2013. "Processus Decisionnel En Matiere De Remuneration Des Dirigeants : Le Cas Vinci," Working Papers halshs-00850083, HAL.
    18. Sharad Asthana & Steven Balsam, 2010. "The impact of changes in firm performance and risk on director turnover," Review of Accounting and Finance, Emerald Group Publishing, vol. 9(3), pages 244-263, August.
    19. Sun, Jerry & Liu, Guoping, 2014. "Audit committees’ oversight of bank risk-taking," Journal of Banking & Finance, Elsevier, vol. 40(C), pages 376-387.
    20. Baum, Christopher F. & Bohn, James G. & Chakraborty, Atreya, 2016. "Securities fraud and corporate board turnover: New evidence from lawsuit outcomes," International Review of Law and Economics, Elsevier, vol. 48(C), pages 14-25.

    More about this item

    JEL classification:

    • G34 - Financial Economics - - Corporate Finance and Governance - - - Mergers; Acquisitions; Restructuring; Corporate Governance
    • G38 - Financial Economics - - Corporate Finance and Governance - - - Government Policy and Regulation
    • K22 - Law and Economics - - Regulation and Business Law - - - Business and Securities Law

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