Indeterminacy: The Final Ingredient in an Interest Group Analysis of Corporate Law
Legal realists emphasized the contradictory norms of law. Contradictory norms permitted judges to reach conclusions about what basic equities and broadly accepted social interests required in particular cases. Judges then used whatever norm of law suited them to reason in support of their a priori conclusions about what these equities or broad social interests required.
Critical Legal Studies (CLS) has inherited and enhanced the legacy of questioning the value of legal rules. CLS thinkers maintain that law is indeterminate, drawing heavily upon linguists who have explored the indeterminacy of language.' CLS scholars go beyond realists, however,both in positing contradictory norms of law and law's indeterminacy,and in stating their view of what has filled the subsequent void.
Nothing, however, has been thought to be as distant from legal realism or the CLS movement as corporate law. At best CLS scholarship has applied its dogma to commercial law. No less a jurist than William 0. Douglas fancied himself a realist but in corporate law emerges as an old fashioned populist.'
A value of any jurisprudence, however, lies in how wide a variety of phenomena the jurisprudence explains. Although realism and indeterminacy have yet to touch corporate law, these schools of jurisprudence explain many basic phenomena in Delaware corporate law and, indeed,do so very well. Furthermore, with the recent outpouring of case law resulting from the takeover boom, Delaware law has become our national corporate law, and thus, indeterminacy describes the state of corporate law generally.
Part II of this Article explores past explanations of Delaware corporate jurisprudence, including revenue raising explanations such as Professor Harry First's "Law for Sale," and the late Professor William Cary's "Race to the Bottom" thesis." Professor Daniel Fischel and other economic analysis of law scholars also have espoused an efficiency enhancing, federalist theory of Delaware corporate law.' Most recently,Professors Jonathan Macey and Geoffrey Miller have developed an interest group explanation for Delaware's dominance in the corporate field."