Corporate Governance

Law Blogs, Scholarship, and The Race to the Bottom

By J. Robert Brown

The debate over blogs and legal scholarship continues.  As we have described, blogs are appropriately viewed as part of the continuum of legal scholarship, a place to debate ideas or apply more traditional scholarship in practice.   We have discussed this in much greater length in the paper, Of Empires, Independents, and Captives:  Law Blogging, Law Scholarship, and Law School Rankings. 

We take a moment to note a recent law review citation for The Race to the Bottom.  In The Enduring Ambivalence of Corporate Law, 59 Ala. L. Rev. 1385 (2008), Chris Bruner writes:

• But in any event, as has long been recognized, the Delaware legislature has traditionally remained very cautious indeed when it comes to fundamental reform.  Thus in the near term we are likely left with the status quo which, by the way, may not be such a bad thing. Former Chief Justice of the Delaware Supreme Court Norman Veasey, for example, observing that neither the shareholder-centrists nor the board-centrists are "fully satisfied" with the present state of the doctrine, has suggested that perhaps this means something approximating an appropriate balance has been struck. "Maybe that is good," he suggests, "like a settlement where there are no clear-cut winners or losers.³⁰⁴

As part of footnote 304, Bruner says the following:

• An interesting reflection of the dynamic identified by Veasey emerged out of an exchange between scholar J. Robert Brown, who wrote a blog post highlighting the five decisions from 2007 "that most show the anti-shareholder, anti-plaintiff nature of the Delaware courts," and Delaware practitioner Francis G.X. Pileggi, who responded with a blog post highlighting five decisions "that demonstrate that the Delaware courts take shareholder rights and the duties of directors very seriously." Compare J. Robert Brown, Delaware's Top Five Worst Shareholder Decisions of 2007, THERACETOTHEBOTTOM.ORG, Jan. 3, 2008, http://www.theracetothebottom.org/preemption-of-delaware-law/delawares-top-five-worst-shareholder-decisions-of-2007.html, with Francis G.X. Pileggi, In Defense of Delaware Corporate Law Opinions, DELAWARE CORPORATE AND COMMERCIAL LITIGATION BLOG, Jan. 4, 2008, http://www.delawarelitigation.com/2008/01/articles/chancery-court-updates/in-defense-of-delaware-corporate-law-opinions/index.html.

The exchange was an interesting exercise by two individuals who routinely follow the decisions of the Delaware courts and Perhaps there will be a reprise of the exchange for cases decided in 2008.  Certainly there are plenty of candidates that would qualify for any anti-shareholder list.

Full post as published by The Race to the Bottom on November 10, 2008 (boomark / email).