Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily Sherwin, and Henry E. Smith, eds., The Oxford Handbook of The New Private Law (Oxford University Press, Forthcoming)
29 Pages Posted: 8 Aug 2019 Last revised: 16 Sep 2019
Date Written: August 4, 2019
This chapter, forthcoming in the Oxford Handbook of the New Private Law, situates corporations and corporate law theory within the nascent New Private Law movement. Most theorists allied to the New Private Law focus on fundamental private law and so, in turn, bodies of law addressed to singular forms of interaction. Corporations and other compound structures – including trusts, companies, and partnerships – pose an important challenge and opportunity for interpretive theory carried out in the spirit of the New Private Law. These structures entail a compounding of singular forms of interaction with novel elements supplied by organizational law. In the chapter I argue for an integrative model of interpretive analysis of compound structures. I explain what an integrative model of the corporation might look like. I also offer an illustration of the model’s relative advantages by contrasting it with dominant reductive analyses that distort the corporate form by treating it as a mere extension of various singular forms of interaction found in contract, property, and fiduciary law. I offer reinterpretation of core elements of the corporate form - corporate personality, purpose, agency and fiduciary administration - and conclude by showing how an integrative approach promises to shed new light on these elements while revealing interpretive excesses of alternative renderings found in reductive theories of the corporation.
Keywords: Legal Theory, Private Law Theory, Private Law, Corporations, Corporate Law Theory, Trusts, Partnerships, Companies
JEL Classification: K00, K10, K11, K12, K13, K20, K22
Suggested Citation: Suggested Citation