Corporate Law Doctrine and the Legacy of American Legal Realism

36 Pages Posted: 13 Aug 2015 Last revised: 11 Sep 2015

See all articles by Edward B. Rock

Edward B. Rock

New York University School of Law; European Corporate Governance Institute

Date Written: 2015

Abstract

In this contribution to a symposium on "Legal Realism and Legal Doctrine," I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.

Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be resolved in more or less the same way in each system. This is unsurprising in a field such as corporate law, where market and institutional pressures demand practical solutions to practical problems.

On the other hand, the differences in style are inescapable. While Delaware corporate law judges openly identify gaps and resolve them by reference to policy, U.K. judges employ a traditional historical/doctrinal approach, working through precedent and, in doing so, developing principles to resolve the case at bar. These differences in style, it seems to me, are a legacy of the impact of American Legal Realism on legal education in the United States, in contrast to the more traditional approach dominant in the United Kingdom. Explicit policy analysis is far more acceptable and natural in the Delaware approach than in the United Kingdom, and this difference in legal culture has effects on how lawyers present cases.

Keywords: Comparative law, judicial reasoning, United Kingdom company law, legal formalism, underdetermination, adjudication, controlling shareholder freezeouts, bondholder exit consents, MFW litigation, In re Hellenic & General Trust, Katz v. Oak Industries, Assénagon, Azevedo, corporate law, legal realism

JEL Classification: G34, G38, K22

Suggested Citation

Rock, Edward B., Corporate Law Doctrine and the Legacy of American Legal Realism (2015). University of Pennsylvania Law Review, Vol. 163, P. 2019, 2015; U of Penn, Inst for Law & Econ Research Paper No. 15-30. Available at SSRN: https://ssrn.com/abstract=2642443

Edward B. Rock (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

European Corporate Governance Institute ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

Register to save articles to
your library

Register

Paper statistics

Downloads
181
rank
163,504
Abstract Views
1,008
PlumX Metrics
!

Under construction: SSRN citations will be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information