Courts and Corporations: A Comment on Coffee

Abstract

In his essay on the role of the judiciary in corporate law, Professor John C. Coffee, Jr. contends that the differences between the competing sides in the mandatory/enabling debate in corporate governance have been greatly overstated because both sides have ignored the important role of a central institutional actor, namely the judiciary. According to Professor Coffee, courts, using well-recognized techniques to interpret statutes and intrafirm contracts, often will reconcile whatever tension may exist between contractarians and anticontractarians. Anticontractarians, according to Coffee, generally misperceive the nature of corporate law because they fail to understand the extent to which courts adjust the mandatory statutory provisions imposed by legislatures. Contractarians, on the other hand, misperceive the nature of corporate law because they fail to appreciate the role that courts play in evaluating the contractual innovations suggested by the parties against the backdrop of the fiduciary duties of care and loyalty owed by directors and managers to their shareholders.