Despite the substantial growth of institutional ownership of U.S. corporations in the past 20 years, there is little evidence that institutional investors have acquired the kind of concentrated ownership positions required to be able to play a dominant role in the corporate governance process. Institutional ownership remains widely dispersed among firms and institutions in large part because of significant legal obstacles that discourage institutional investors both from taking large block positions and from exercising large ownership positions to control corporate managers. Thus, although much of the growth of institutional ownership since 1980 has been accounted for by the growth of mutual funds and private pension funds, there continue to be strong deterrents to the accumulation and use of large ownership positions to influence corporate managers. Another potentially important factor discouraging concentrated investments are incentive schemes that effectively reward money managers for producing returns that do not vary much from the S&P 500 (or whatever sector the manager is supposed to be representing). Using a very different incentive scheme that offers managers a share of the excess returns (as well as penalties for failure to meet benchmarks), a relatively new class of “hedge funds” has emerged that provides both more concentrated ownership positions and higher risk‐adjusted rates of return. To encourage mutual funds to take a more activist corporate governance role and to behave more like hedge funds, the authors recommend that current legal restrictions on mutual funds be relaxed so that mutual funds have a greater incentive to hold large ownership positions in companies and to use those positions to more effectively monitor corporate managers. In particular, the “five and ten” portfolio rules applicable to mutual funds could be repealed and replaced with a standard of prudence and diligence more in keeping with portfolio theory; mutual funds could be given greater freedom to adopt redemption policies that would be more conducive to holding larger ownership positions; and institutional investors could be permitted to employ a variety of incentive fee structures to encourage fund managers to pursue more pro‐active investment strategies. The prospect of actively involving institutional fund managers in the corporate governance process may be our best hope for improving U.S. corporate governance.
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