What Is the Domain of Corporate Law?

Abstract

Judges, legislators, practitioners, and scholars all conduct their work based on some working conception of what "corporate law" is. Strangely, however, the question of what this conceptual vessel actually contains is seldom asked, let alone answered with any specificity. This article investigates the domain of corporate law - that is, the scope, content, and boundaries of the field. In so doing, the article aims to illuminate why it is that defining the field with any precision has been so difficult, and what such insights have to tell us about corporate law's nature and significance.

The article first explores the general challenges faced in any project of legal taxonomy, focusing on the inherent tension between internal and external views of law and the dynamic relationship between legal doctrine and social context. Through that lens, the analysis turns to extant modes of defining corporate law as a field - including frameworks emphasizing core constituencies, core features, and core theories, respectively - as well as our increasing resort to the related though distinct "corporate governance" concept. In light of the strengths and limitations of these frameworks, the article ultimately turns to contextual and historical dynamics that foreclose a single stable conception of corporate law's domain across all places and times.

Failure to appreciate these dynamics obscures critical drivers of difference across jurisdictions and narrows our sense of the possible at home. Strategic definition of the "corporation" may cloak contestable normative claims with an air of inevitability, burying the conclusion in the premise and thereby taking off the table propositions that ought to remain contestable. Similarly, assignment of a particular form of regulatory problem to one legal field or another - perhaps "corporate law," but perhaps something else - may impact how we think about the values at stake, the menu of regulatory options, and who possesses regulatory competence.

The article provides examples from the United States and other jurisdictions that illustrate the taxonomic limitations and challenges discussed - a comparative approach that I consider warranted in light of the universalizing thrust of much contemporary corporate law literature. The goal is to promote recognition of corporate law's contingency, and to argue that this is a feature rather than a bug - a capacity for dynamism that allows the corporate form and corporate law to respond to social and economic needs that may differ markedly from one jurisdiction to another, and change markedly within a given jurisdiction over time.

Keywords: corporate law, company law, corporate governance, comparative law, shareholders, stakeholders, nexus of contracts, team production, shareholder primacy, co-determination, internal affairs doctrine, Centros, charter competition, Takeover Directive, tunneling, taxonomy, positivism, realism

JEL Classification: K22, L21, L22