The Elephant in the Room: Helping Delaware Courts Develop Law to End Systemic Short-Term Bias in Corporate Decision-Making

Abstract

Short-termism in corporate decision-making is as problematic for long-term investors as relying on a three-mile radar on a supertanker. It is totally inadequate for handling the long-term risks and opportunities faced by the modern corporation. Yet recent empirical research shows that up to 85% of the S&P 1500 have no long-term planning. This is costing pension funds and other long-term investors dearly. For instance, the small minority of companies that do long-term planning and risk management had a long-term profitability that was 81% higher than their peers during the 2001–2014 period—with less stock volatility that costs investors dearly as well. This corporate short-termism mindset is even more troubling given that at least half of the value of the companies in the S&P 1500 is generated by expectations for realization of future value. Long-term investors therefore face a long-term expectations pipeline of hoped-for returns without a plan by corporations to back it up. The tragic result: this short-termism mindset appears to have a substantial depressing impact on long-term market returns while increasing long-term risk exposure. Both have contributed to the significantly underfunded status of many pension funds today. Delaware courts, the primary referees of corporate director fiduciary duties in the United States, are so frustrated with the persistent effects of short-term pressures—including corporate fraud and compliance breaches—that they are actively encouraging investors to bring the right cases to help change the rules. This Article examines the effects of short-termism and the Delaware judiciary’s responses to it. It then shows how existing Delaware law could be extended to address the underlying causes of corporate short-term bias, rather than merely imposing punishment on the symptoms.