Tuch, Andrew F., Review of David Kershaw, The Foundations of Anglo-American Corporate Fiduciary Law (May 16, 2019). 78(1) Cambridge Law Journal 210 (2019). Available at SSRN: https://ssrn.com/abstract=3389482 or http://dx.doi.org/10.2139/ssrn.3389482
How does legal doctrine form, why does it change, and why do doctrines with a common starting point, in legal systems with a shared heritage, diverge? This essay reviews and critiques a book by David Kershaw that addresses these questions. The book charts the evolution of corporate fiduciary law in the United Kingdom and United States and, comparing the two systems, explains how and why the respective legal regimes evolved as they did. Kershaw weighs in on contested U.S. scholarly debates, confronting the common claim that doctrinal change is less the product of internal logic or strict precedent than a response to extra-legal factors, including interest group politics, policy concerns, and state competition for corporate charters. Kershaw rejects this claim, offering other, provocative accounts for the production of U.S. corporate fiduciary law and for Delaware’s lead in attracting incorporations.
