Abstract

Bill Klein extends an idealistic and progressive invitation with the Criteria for Good Laws of Business Association. The structure of our debates, he says, prevents us from joining the issue. The discourse will move forward if we can isolate core components on which we agree and disagree. The invitation, thus directed, is well-constructed. To facilitate engagement, each criterion is set out as pari passu with each other. And there is a good reason for the inclusion of each listed criterion. Each has an established place in public and private law jurisprudence. Each has influenced results, coming forth as salient in one or another area of law, in one or another regulation or case. We can, then, agree in the abstract to take each criterion seriously. Klein bids us then to cull, modify, and restate, so as to identify more clearly the goals we hold out for corporate law. The remainder of this essay takes up that invitation, taking our debates to the Criteria, taking the Criteria to our debates, and taking both to the law itself. It suggests that the criteria on which we can agree lie at a higher level of generality than the Criteria: corporate law makes us all welfare consequentialists who agree that good corporate law is about encouraging productivity. We differ over the means to that end in debates that have over time evolved away from the ideological and toward the functional. Absent an ex ante set of empirically verifiable formulas for productive business organization, we are left to our debates.