The Place of Corporate Lawmaking in American Society

Loyola Consumer Law Review, Vol. 23, 2011

Osgoode Legal Studies Research Paper

35 Pages Posted: 9 Oct 2010 Last revised: 1 Jun 2018

See all articles by Fenner L. Stewart

Fenner L. Stewart

University of Calgary, Faculty of Law

Date Written: 2010


This article provides a history of the legal debates over the corporate charters in the American context starting with a famous dispute, originating in a series of contesting law review articles in the 1970s. A brief literature review will recount the academic arguments that have provided the intellectual support for sustaining Delaware’s primacy over corporate law-making in the face of constant attack. By understanding the debates that have sustained Delaware’s ability to lead the American competition for incorporation, this article provides insight into what is regarded as the most important legal instrument for maintaining status quo for actual social relationships within the American corporation: the “market for incorporation.”

However, the article will draw attention to the growing skepticism over Delaware’s ability to generate optimal corporate law. This skepticism is most clearly evident in the federal government’s growing willingness to design and to pursue corporate law policies in the face of corporate governance scandal, notwithstanding the fact that corporate law in the United States is “state law”. The consequences of these developments are at present subject to scrutiny and discussion. In sum, this article provides an example of how shifts in law-making networks outside of the firm holds the potential to shift the embeddedness of behavior of social relationships inside the firm.

Keywords: Corporate Law, Delaware, Charter Markets, Embeddedness

JEL Classification: B25, G30, K22, G38

Suggested Citation

Stewart, Fenner L., The Place of Corporate Lawmaking in American Society (2010). Loyola Consumer Law Review, Vol. 23, 2011; Osgoode Legal Studies Research Paper. Available at SSRN:

Fenner L. Stewart (Contact Author)

University of Calgary, Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4

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