Why Do Judges Write Law Review Articles?

January 25, 2008

Here is a question I have been pondering for a while: Why do Delaware judges write so many law review articles? For example, I have sitting on my desk a stack of 14 articles by Norman Veasey former Chief Justice of the Delaware Supreme Court.  On closer examination, most of these are speeches rather than articles.  But still the question remains why do the judges write these pieces and why do the law reviews publish them?

The question arises as part of my research into the mechanisms for crafting corporate law in the U.S.  Because Delaware judges play a central role in the process, it seems important to determine how they play their role, what motivates them, and to whom they are accountable. 

Many scholars have noted the prolific nature of Delaware’s judiciary.  Professors Marcel Kahan and Ed Rock counted 22 recent articles published by Delaware judges. Professor Lawrence Hamermesh has published a helpful chart as an appendix to his Columbia Law Review article, The Policy Foundations of Corporate Law. Yet nobody seems to have persuasively explained this phenomenon.  Presumably judicial opinions provide judges with an adequate forum to explain and justify their decisions.  Why then would judges feel compelled to supplement their legal opinions with further explanations, elaborations or justifications in the academic literature?  More importantly are these extra-judicial exhortations helpful, harmless or insidious?

One purpose of these articles and speeches could be to provide guidance to corporate managers, attorneys and commentators as to the substance and meaning of Delaware corporate law.  Thus judges are supplementing their law-making role, moving beyond ex-post assessment of corporate conduct to ex-ante guidance for practitioners and their clients.  Such motivation can be viewed as positive, but also potentially  problematic.  The message may be lost in translation and, because judges cannot be bound by these extra-judicial comments, advice gleaned from their comments may be of dubious value.

Another view is that the constant commentary has a political purpose: to shore up the legitimacy of the state’s role in setting corporate policy.  On this view, Delaware judges not only seek to explain their approach to corporate controversies, but promote their own superior abilities to act as arbiters in these disputes.  Certainly, many articles by Delaware jurists fit this mold.  If this is the motivation, we might want to take the message conveyed with a grain of salt.  If part of the motivation for the articles and speeches is preserving the state’s (and the judges’) sphere of influence, then readers and scholars should consider such when evaluating the arguments the judges present.   

 Cross-posted at Conglomerate.


More Thanks

May 15, 2007

Many thanks to Professor Bainbridge and Barbara Black of Securities Law Prof blog for welcoming the Corporate Law and Democracy blog. 

Like Larry, I also noticed a slight disconnect between Professor Bainbridge’s mention of my blog and his ensuing critique of “left communitarianism.”  I took Professor Bainbridge’s comment as a response to the blog’s stated themes, rather than the blog itself. Perhaps he will clarify in a comment.


Introducing Guest Blogger Lawrence A. Cunningham

May 11, 2007

I am pleased to introduce our first guest blogger, Lawrence A. Cunningham of Boston College Law School.  Larry is a good friend and a wonderful colleague.  He is a prolific scholar with a wide range of interests.  He is perhaps best known for his work on corporate law and accounting, auditing and internal controls.  Larry has teed up a number of interesting posts exploring international competition in accounting standards, the potential eclipse of FASB, and accounting as “the language of capitalism.”  He will start posting here next week. 


Thanks

May 10, 2007

I would like to express my thanks to fellow bloggers Al Brophy at  PropertyProf , Jay Brown at Race to the Bottom , Dan Filler at Concurring Opinions , and Gordon Smith at Conglomerate , for their warm welcome to Corporate Law and Democracy.  I greatly appreciate their encouragement and kind words.


Featured Papers

May 4, 2007

The early posts in this blog will feature relevant articles published within the last year.  Future posts will feature forthcoming and newly published articles that might be of interest to readers.  This allows for the assembly of interesting but diverse works related to the blog’s theme.  Please contact me if you have a paper that you think will interest readers.


Hello world!

April 30, 2007

Welcome to the Corporate Law and Democracy Blog, a repository of ideas, comments and papers on a range of issues related to corporate law and democracy.  My aim is to bring together concepts and theories from a variety of legal disciplines that touch on questions related to the internal governance of corporations and the influence of corporations and corporate law on our political and social structure. 

 

The Blog will approach this broad topic from a variety of perspectives including federalism, legal history, and political theory.  I will include my own thoughts, along with insightful perspectives and interesting ideas of others that are relevant to the broader inquiry.


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