THE TRAJECTORY OF

(CORPORATE LAW)

SCHOLARSHIP

CONTENTS

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I. INTRODUCTION

LEGAL academics, despite facing inevitable teaching and administrative pressures, spend a considerable portion of their career reading, discussing and producing legal scholarship.1

In so doing, most will develop a sense of why certain ideas spread and prosper whereas other claims ‘burn out’ or fail to capture attention in the first place. Still, while academic lawyers may make assumptions about the trajectory of legal scholarship, their understanding of the topic will almost certainly be intuitive only. This is because, despite the attention devoted to scholarly activity, there is little literature on the process by which academic writing on law evolves.2

This lecture departs from the existing pattern and examines various possible trajectories scholarship. Such an exercise might be thought by some to constitute introverted navelgazing. The volume of academic writing on law is, however, mushrooming and there indeed is a growing literature on the genre.3 Given all of this intellectual endeavor, it is

The author is grateful for comments by Deborah DeMott, Lyman Johnson, Matthew Kramer, Lynn Stout and for feedback received at law faculty seminars at UCLA and the University of Manchester.

1John Gava, ‘Scholarship and Community’ (1994) 16 Sydney L. Rev. 443, 443.

2George P. Fletcher, ‘Two Modes of Legal Thought’ (1981) 90 Yale L.J. 970, 970; Deborah L. Rhode, ‘Legal Scholarship’ (2002) 115 Harv. L. Rev. 1327, 1327. For an exception, see David Kennedy, ‘When Renewal Repeats: Thinking Against the Box’ (2000) 32 N.Y.U. J. Int’l. L. and Pol. 335, though the purpose of this article was to discuss international law rather than legal scholarship generally. See also Brian R. Cheffins, ‘Corporations’ in Peter Cane and Mark Tushnet (eds.), The Oxford Handbook of Legal Studies (Oxford 2003), 486, 501–507, which outlines in a summary way various themes developed in this paper.

3On the volume of legal scholarship, see Peter Birks, ‘The Academic and the Practitioner’ (1998) 18 Legal Stud. 397, 398; Reinhard Zimmermann, ‘Law Reviews:

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appropriate to pause and seek to discern the trajectory of legal scholarship.4

No one is truly competent to evaluate properly the overall state of legal scholarship.5 Correspondingly, this lecture is not designed to determine in a definitive way the manner in which academic writing on law evolves. Instead, it is more of a thought experiment, with the central objective being to provide a platform for further analysis. The format will be a survey of five potential trajectories for legal scholarship, to be followed by a case study of corporate law. The topic for the case study has been chosen on pragmatic grounds, with corporate law being the field of law with which the author is most familiar. On the other hand, there is reason to believe that the attributes of this particular field conform sufficiently to the norm in legal scholarship to make the case study a representative one.6

This lecture’s ‘bottom line’ is that each of the five trajectories canvassed can potentially influence academic writing on law.

A Foray Through a Strange World’ (1998) 47 Emory L.J. 659, 692–693; Darla L. Daniel, ‘Of Deckchairs, Icebergs and Gestalt Shifts: Unger, Kahn, and a Student of Contemporary Legal Thought’ (2001) 72 U. Colo. L. Rev. 851, 852. On the literature on legal scholarship, see Mary B. Beazley and Linda H. Edwards, ‘The Process and the Product: A Bibliography of Scholarship About Legal Scholarship’ (1998) 49 Mercer L. Rev. 741.

4It is being assumed that the fact legal academics spend a lot of time thinking about scholarship provides sufficient justification for the analysis undertaken here. A different—and stronger—case could be made for undertaking this study if academic writing on law had a substantial influence on society at large. There no doubt has been legal scholarship that has had a significant impact on economic, political and social trends. Still, since most of what is published by legal academics is ignored outside legal circles, justifying a study such as this on the basis of the general significance of academic writing on law is not really tenable.

5David P. Bryden, ‘Scholarship about Scholarship’ (1992) 63 U. Colo. L. Rev. 641, 641.

6See below notes 323 to 324 and accompanying text.

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At the same time, none captures fully the dynamics at work and indeed there is some conflict between the various paths available. This sort of pluralist verdict is unlikely to satisfy those seeking definitive answers concerning legal scholarship.7

Still, some type of hedging is inevitable (and prudent) since, as of yet, there has been little explicit analysis of the manner in which academic writing on law evolves.

Before proceeding, it is necessary to clarify a threshold issue, which is to define what qualifies as legal scholarship.8 Its precise boundaries are uncertain.9 For our purposes, though, it should be sufficient to say that legal scholarship constitutes the body of learning, and especially the academic research available, in the field of law. Under this definition, jurisprudence, which is concerned with questions regarding the nature of law, its general structure, its sources and so on, clearly qualifies. Theoretical legal scholarship—which implies the use of intellectual disciplines external to law to carry out research on its economic, social or political implications—does as well.10 This is also the case with academic writing on law

7For a criticism of ‘congenial pluralism’ in the context of legal scholarship, see John C.P. Goldberg, ‘Twentieth Century Tort Theory’ (2003) 91 Geo. L.J. 513, 580–582.

8There is a tendency to assume that everyone knows what is meant by scholarship in general and legal scholarship in particular: David Feldman, ‘The Nature of Legal Scholarship’ (1989) 52 Mod. L. Rev. 498, 498.

9Kenneth Lasson, ‘Scholarship Amok: Excesses in the Pursuit of Truth and Tenure’ (1990) 103 Harv. L. Rev. 926, 935; Edward L. Rubin, ‘Legal Scholarship’ in Dennis Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Oxford 1996)

562, 562.

10On this definition of theoretical legal scholarship and how it relates to writing about jurisprudence, see Brian R. Cheffins, ‘Using Theory to Study Law: A Company Law Perspective’ (1998) 58 Cambridge L.J. 197, 198.

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