The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

WILLIAM H. SIMON


23
CONTRACT VERSUS POLITICS IN CORPORATION DOCTRINE

THE traditional corporation law doctrine expounded in the law schools and the law reviews tends to disappoint both those looking for vocationally relevant technical instruction and those looking for theoretical insight into the vital business institutions of capitalism. The type of deconstructive or "trashing" analysis associated with Critical Legal Studies that finds tension and contradiction underlying a veneer of doctrinal coherence and confidence seems to have been preempted here. Mainstream lawyers have dismissed the field in terms as radical as those of the most implacable trasher. "We have nothing left," wrote Bayless Manning, "but our great empty corporation statutes--towering skyscrapers of rusted girders, internally welded together and containing nothing but wind."1

While the widely held belief that corporation doctrine needs overhauling is surely correct, traditional doctrine does have more significant content than Manning's remark implies. Perhaps the most important content is an implicit map of the universe of business law that situates disparate rules in a way that influences the way people learn and manipulate them. A striking feature of this map is its tendency to relegate considerations of power and public value to the periphery. The explicit content of the corporations course seems resolutely apolitical, but the implicit map expresses a vision that seems an unmistakably conservative one.

Most of the recent efforts inspired by economics to revise business doctrine have not challenged its basic premises or its political vision. They have, however, made these premises more explicit and given them more theoretical substance. This is a real achievement, but an ambitious reform effort ought to consider, not only fleshing out the conventional

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