Criticism of the ALI's Corporate Governance Project has had two very different strains. Most vocal have been those critics who exhibit what one sympathetic observer has aptly termed "a neurotic fear of articulation." Although their expressed concern – namely, that courts will be encouraged to second guess boards and impose liability for arm's length business decisions that turned sour – would be a legitimate cause for anxiety if this indeed were the intent or likely effect of the Project, the underlying fear of these critics is more basic and instinctive. It is best revealed in the title of one critique of the Project by a Harvard Business professor: Corporate Governance Eludes the Legal Mind. Essentially, its author argues that corporate governance is an organic and evolving form that prescriptive legal rules can only freeze or distort. Such a claim goes beyond viewing lawyers as literalistic pettifoggers and seems actually to assert that the ineluctable should remain ineluctable. In a world where murkiness is seen as a virtue and clarity a vice, we are advised to let sleeping doctrines lie.
Estates and Trusts | Law
John C. Coffee Jr.,
Litigation and Corporate Governance: An Essay on Steering Between Scylla and Charybdis,
Geo. Wash. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3020