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Bankruptcy Law and Entrepreneurship

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Bankruptcy Law and Entrepreneurship Bankruptcy Law and Entrepreneurship John Armour, University of Oxford,andDouglasCumming, York University Downloaded from Recent initiatives in a number of countries have sought to promote entrepreneurship http://aler.oxfordjournals.org/ through relaxing the legal consequences of personal bankruptcy. Whilst there is an intu- itive link, relatively little attention has been paid to the question empirically, particularly in the international context. We investigate the relationship between bankruptcy laws and entrepreneurship using data on self-employment over 16 years (1990–2005) and fifteen countries in Europe and North America. We compile new indices reflecting how “forgiving” personal bankruptcy laws are. These measures vary over time and across the countries studied. We show that bankruptcy law has a statistically and economically at Fundação Getúlio Vargas/ RJ on April 5, 2012 We gratefully acknowledge financial support from the UK Insolvency Service. In gathering data on bankruptcy laws, use was made of facilities in the Bodleian Law Library in Oxford, the Max Planck Institute for Foreign and International Private Law in Hamburg, and the Arthur W. Diamond Library at Columbia Law School, and we are grateful to these institutions for their assistance. We also thank Thomas Bachner, Ulrik Rammeskow Bang- Pedersen, Guy Horsmans, Monique Koppert-Van Beek, Jesper Lau Hansen, Johanna Niemi-Kiesilainen,¨ Erik Stam, Lorenzo Stanghellini, Daniel Stattin and Felix Steffek for their assistance in the construction of the indices of bankruptcy laws. All remaining errors are our sole responsibility. This paper has benefited from comments by Jeff Gordon, Peter Johnson, Simon Parker, Steve Schwarcz, Alan Schwartz, Julia Shvets, Erik Stam, and an anonymous referee, as well as from seminar participants at the Australian Graduate School of Entrepreneurship AGSE International Entrepreneurship Research Exchange, the American Law and Economics Association Annual Conference, an Insolvency Service Research Seminar and an ESRC/SBS Seminar at Cambridge University. Send correspondence to: John Armour, Lovells Professor of Law and Finance, Univer- sity of Oxford, Oriel College, Oxford OX1 4EW, UK; E-mail: [email protected], or Douglas Cumming, Associate Professor and Ontario Research Chair, Schulich School of Business, York University, 4700 Keele Street, Toronto, Ontario M3J 1P3, Canada; E-mail: [email protected]. American Law and Economics Review doi:10.1093/aler/ahn008 Advance Access publication August 1, 2008 C The Author 2008. Published by Oxford University Press on behalf of the American Law and Economics ! Association. All rights reserved. For permissions, please e-mail: [email protected]. 303 304 American Law and Economics Review V10 N2 2008 (303–350) significant effect on self-employment rates when controlling for GDP growth, MSCI stock returns, and a variety of other legal and economic factors. (JEL K35, M13) 1. Introduction Entrepreneurs are thought to act as catalysts for change in the economy through their capacity for innovation and risk-taking. As economies have Downloaded from become increasingly “knowledge-driven,” policymakers around the world have embraced the idea of “entrepreneurship policy” with enthusiasm. One mechanism by which governments have sought to implement such policies has been through bankruptcy law. A “forgiving” personal bankruptcy law, it is thought, will increase the supply of would-be entrepreneurs (Insol- http://aler.oxfordjournals.org/ vency Service (UK), 2001; European Commission, 2003). Based on such thinking, a European Union initiative has recommended the ready avail- ability of a “fresh start” through personal bankruptcy laws as a mechanism for fostering entrepreneurship (European Commission, 2003). Several Euro- pean countries, including Germany, the Netherlands, and UK, have recently changed their laws to introduce a “fresh start” or to make one available more quickly.1 Similarly, USA has an extremely “forgiving” bankruptcy regime at Fundação Getúlio Vargas/ RJ on April 5, 2012 for small-business debtors, who were specifically excluded from a recent change in US bankruptcy law that made it more difficult for individuals to obtain a discharge from indebtedness.2 In light of this seeming consen- sus amongst policymakers, it is surprising that relatively little attention has been paid to whether or not this intuitive relationship is borne out empirically across countries. This paper reports empirical findings that support the existence of such alink.Weinvestigateentrepreneurshipusingdataonself-employmentfor fifteen countries from Europe and North America over 16 years, covering an entire business cycle. We develop new indices of the “severity” of per- sonal bankruptcy laws that capture the extent to which bankrupt debtors are “punished” or “forgiven” by the legal process. An important part of this involves the number of years a bankrupt must wait until he may be 1. See Insolvenzordnung (Insolvency Code) 1994, in force January 1, 1999 (Germany); Wet Schuldsanering Natuurlijke Personen (Natural Persons Debt Reschedul- ing Act) 1998, in force December 1, 1998 (Netherlands); Enterprise Act 2002 256, in force April 1, 2004 (UK). § 2. Bankruptcy Abuse Prevention and Consumer Protection Act 2005, Pub. L. No. 109–8, 119 Stat. 23 (2005), in force October 17, 2005 (US). Bankruptcy Law and Entrepreneurship 305 discharged (if at all) from pre-bankruptcy indebtedness. Controlling for a range of other economic and institutional factors that may affect national levels of entrepreneurship, we show that bankruptcy laws have both statisti- cally and economically significant effects on levels of self-employment. In the Netherlands and Germany, for example, laws permitting discharge from personal indebtedness were introduced for the first time during the period we study. In the Netherlands, a discharge after three years was introduced at the Downloaded from end of 1998, and in Germany, a discharge after seven years was introduced in 1999, which was reduced to six years in 2001. This paper provides in- dices explicitly indicating the changes in the personal bankruptcy laws over the period 1990–2005. We show changes that make bankruptcy laws more “forgiving” are associated with increases in the self-employment rate—that http://aler.oxfordjournals.org/ is, the proportion of the population self-employed. The effects are consis- tently statistically significant and economically large. The magnitude of the economic significance depends on the particular index used, as detailed in the empirical analyses herein. The rest of the paper is structured as follows. Section 2 reviews prior lit- erature on the legal determinants of entrepreneurship, focusing in particular on the role of bankruptcy law. From this, our empirical hypothesis is formu- at Fundação Getúlio Vargas/ RJ on April 5, 2012 lated. Section 3 describes our empirical methodology and data, and Section 4 reports the results of our tests. Section 5 concludes with a discussion of the implications. 2. Literature Review In this section, we review relevant prior literature and formulate gen- eral hypotheses concerning the impact of changes in bankruptcy law on entrepreneurship. We begin by considering what is meant by “entrepreneur- ship”; we then turn to ways in which law in general, and bankruptcy law in particular, may affect its incidence. The term “entrepreneurship” is used in a range of contexts with widely varying meanings. In the neoclassical tradition, an “entrepreneur” is simply the owner-manager of a (small) business. Such a person receives the resid- ual returns from the business’ operations and therefore has the appropriate incentives to monitor the agency costs that would otherwise arise from inter- nal team production (Alchian and Demsetz, 1972). From a Schumpeterian perspective, entrepreneurs are primarily innovators, who dissociate from existing organizations in order to be free to pursue radical ideas that may 306 American Law and Economics Review V10 N2 2008 (303–350) bring about breakthroughs in the process of “creative destruction.” A num- ber of empirical studies demonstrate links between small entrepreneurial firms and risk-taking, innovation, and employment growth (e.g. Kortum and Lerner, 2000; Tykvova,´ 2000). Focusing on these potentially beneficial as- pects of entrepreneurship, policymakers in developed countries have become increasingly concerned with initiatives calculated to promote its incidence. Anumberoflegalandinstitutionalvariableshavebeenshowntoaffect Downloaded from the incidence of entrepreneurship.3 One is taxation: in particular, high lev- els of income tax (borne by employees) and lower levels of capital gains tax (for entrepreneurs’ shares in their business) are robustly associated with greater incidence of entrepreneurship both in single-country (Poterba, 1989; Gompers and Lerner, 1998; Poutziouris et al., 2000) and cross-country http://aler.oxfordjournals.org/ studies (Folster,¨ 2002; Parker and Robson, 2003). A second concerns the protection of property rights—in particular, intellectual property. Strong intellectual property rights enhance or protect the expected rewards to in- novation, and are reported to be positively associated with entrepreneurship and innovation (Lerner, 2002; Claessens and Laeven, 2003; Bigus, 2006). Labor market regulation might also be expected to impact the incidence of entrepreneurship, although the precise channel is likely to be sensitive at Fundação Getúlio Vargas/ RJ on
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