Dave Hoffman recently posted on the question of whether corporate veil piercing is really the most frequently litigated issue in corporate law, to which I responded (civilly, mind you) by posing a question of my own. In response, Hoffman wrote:
I suppose I care, mildly, because it might be that attention better spent on other issues in corporate law, like someone's ... nontraditional ... theories of director primacy, has instead been diverted to veil piercing on the theory that piercing is more practically important than it is. And because if if you search the web, you'll find dozens of companies puffing this exact claim to sell you their incorporation products and advice. Or it might be that the question is worth asking simply for love of the game.
The love of the game answer is, of course, unresponsive because the same answer would justify paying attention to veil piercing.
Hoffman's other point, however, is both responsive and quite interesting. In effect, he's asking what corporate law topics get more attention from legal scholars then their real world importance merits and which topics get too little attention given their real world importance. And that's a question worth thinking about, because it implies that we corporate law scholars are collectively falling down on the job. Put another way, we're exhibiting classic herding behavior by collectively beating a few horses to death.
So what would go on my list of topics to which we devote too much attention? Please note, that I'm not necessarily saying these are unimportant topics. I'm just saying they get more attention than necessary. So here are some candidates, in no particular order.
- Whether the corporation is a nexus of contracts
- Corporate philanthropy
- Corporate social responsibility
- Predicting what Rawls or Dworkin would say about anything remotely related to corporate law
- The Perlman v. Feldman suite of issues
- The utility of rational actor models in the law and economics of corporate governance
- Anything having to do with the Constitution and corporations
- Insider trading? (Very important, of course, but written to death)
- Executive compensation (ditto)
- Agency costs (ditto)
- Corporate takeovers (ditto, at least back in the day)
- The race to the bottom
- Fiduciary duty of directors in the vicinity of insolvency
- A federal law of corporations
- Corporate personhood
Mea culpa.
I'm opening comments on this post, for on topic non-anonymous suggestions only.
