Family Law and Entrepreneurial Action

In response to Benjamin Means, The Contractual Foundation of Family-Business Law, 75 Ohio St. L.J. 675 (2014)

Law & Entrepreneurship: Do Courts Matter?

In this essay, we sketch the outlines of a research agenda exploring links between courts and entrepreneurship. Our conception of law and entrepreneurship encompasses the study of positive law (including constitutions, statutes, and regulations), common law doctrines, and private ordering that relate to the discovery and exploitation of profitable opportunities by new firms. We briefly survey the economics literatures that relate to law and entrepreneurship, including the law and finance literature launched by the work of Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny (LLSV). Relying on the suggestive work of LLSV and other economists who have labored over the connections between entrepreneurship and law, we suspect that courts may play an important role in facilitating or hindering entrepreneurial activity. We are particularly interested in the possibility that courts may facilitate the evolution of legal rules to address novel issues raised by entrepreneurial firms. This adaptability hypothesis may be subject to empirical testing, thus shedding light on the otherwise perplexing divide between common law and civil law countries identified by LLSV. The motivation for such a test lies in the conjecture that common law countries update their laws more frequently than civil law countries through judicial intervention. Adaptability in this sense is said to encourage entrepreneurship because outmoded laws allow for opportunism, thus discouraging capital formation. The adaptability hypothesis implies that judges in common law systems have more room to maneuver than judges in civil law systems, and we describe the method by which we intend to approach our future study of adaptability

Debate: Saving the World with Corporate Law?

The current debate within corporate law is as fundamental as any time since the New Deal, when the great exchange between Merrick Dodd and A.A. Berle defined the issues for a generation of scholars. Today, the community of corporate law scholars in the United States is split between two groups. The first, heavily influenced by economic analysis of corporations, argues the merits of increasing shareholder power vis-à-vis directors. Another group, animated by concern for economic justice, challenges the traditional, shareholder-centric view of corporate law, arguing instead for a model of “stakeholder governance.” The enclosed article is an untraditional method to explore these debates. It comes in the form of a debate between two prominent scholars, one from each of the two major groups, on the audacious question, “Can Corporate Law Save the World?” Each of us has authored a paper comprising one-half of the article. Professor Greenfield, a leading proponent of “progressive corporate law” and the author of THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES (2006, The University of Chicago Press), uses this paper to offer an provocative critique of the status quo using organizational and regulatory theory. In his paper, Professor Smith, one of the nation’s leading advocates of increased shareholder power, contends that changes in corporate law cannot eradicate poverty, clean our air or our water, or solve “the labor question.” Indeed, he argues, the only changes in corporate law that will have a substantial effect on such issues are changes that will make matters worse, not better

Fiduciary Discretion

Discretion is an important feature of all contractual relationships. In this Article, we rely on incomplete contract theory to motivate our study of discretion, with particular attention to fiduciary relationships. We make two contributions to the substantial literature on fiduciary law. First, we describe the role of fiduciary law as “boundary enforcement,” and we urge courts to honor the appropriate exercise of discretion by fiduciaries, even when the beneficiary or the judge might perceive a preferable action after the fact. Second, we answer the question, how should a court define the boundaries of fiduciary discretion? We observe that courts often define these boundaries by reference to industry customs and social norms. We also defend this as the most sensible and coherent approach to boundary enforcement

The Social Costs of an MTBE Ban in California

Resource /Energy Economics and Policy,

Entrepreneurs on Horseback: Reflections on the Organization of Law

“Law and entrepreneurship” is an emerging field of study. Skeptics might wonder whether law and entrepreneurship is a variant of that old canard, the Law of the Horse. In this Essay, we defend law and entrepreneurship against that charge and urge legal scholars to become even more engaged in the wide-ranging scholarly discourse regarding entrepreneurship. In making our case, we argue that research at the intersection of entrepreneurship and law is distinctive. In some instances, legal rules and practices are tailored to the entrepreneurial context, and in other instances, general rules of law find novel expression in the entrepreneurial context. As a result, studying connections between law and entrepreneurship offers unique insights about them both