Abstract

http://ssrn.com/abstract=571121
 
 

Footnotes (287)



 


 



The Good Faith Thaumatrope: A Model of Rhetoric in Corporate Law Jurisprudence


Sean J. Griffith


Fordham University School of Law

December 2004


Abstract:     
This paper develops a model of rhetoric in corporate law jurisprudence. It begins by examining a recent innovation in Delaware case-law: the emerging principle of good faith. Good faith is an old notion in law generally, but it offers to bring significant change to corporate law, including realignment of the business judgment rule and a shift in the traditional balance between board authority and judicial accountability. Tracing the development of this new doctrine, the paper argues that good faith operates like a thaumatrope, oscillating between the traditional standards of care and loyalty, lowering the doctrinal hurdles of each without adding any distinct substantive content to the law. In this way, good faith functions as a rhetorical device rather than a substantive standard. That is, it operates as a speech-act, a performance, as opposed to a structured mode of analysis. Building upon political science theories and the recent work of Professor Roe and others in modeling Delaware law as a function of the twin threats of corporate migration and federal preemption, the paper argues that the judiciary employs such rhetorical devices to mitigate threats to its authority. This, then, is the rhetorical structure of corporate law. In periods of crisis and scandal, the judiciary employs rhetorical devices to reduce the pressure, typically with the effect of increasing board accountability, only to return, once the pressure recedes, to a position of board deference. The paper finds several examples of this rhetorical structure in corporate law history and argues, ultimately, that the good faith thaumatrope is merely the latest such device and is likely to follow a similar evolutionary path.

Number of Pages in PDF File: 84

Keywords: Good faith, fiduciary duty, loyalty, care, corporate law, jurisprudence, Delaware, shareholder litigation, disney, rhetoric, authority, accountability

JEL Classification: K00, K22

working papers series





Download This Paper

Date posted: December 31, 2004  

Suggested Citation

Griffith, Sean J., The Good Faith Thaumatrope: A Model of Rhetoric in Corporate Law Jurisprudence (December 2004). Available at SSRN: http://ssrn.com/abstract=571121 or http://dx.doi.org/10.2139/ssrn.571121

Contact Information

Sean J. Griffith (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,905
Downloads: 282
Download Rank: 62,073
Footnotes:  287

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.312 seconds