January 13, 2010
Backer on Corporate Legal Theory
Larry Cata Backer has posted The Drama of the Corporate Law: Narrator Between Citizen, State and Corporation on SSRN with the following abstract:
The allure of a narrative of business law continues to prove irresistible. It is even more so in a contemporary regulatory context in which the separation between politics and economics, law and governance, and political and economic actors becomes fuzzier. Within this dynamic context, spinning a narrative of economic collectives can serve as an important source of the constitution of social institutions, like corporations. This essay reviews David A. Westbrook’s recent contribution to this endeavor, Between Citizen and State: An Introduction to the Corporation (Boulder, CO: Paradigm Press, 2007). Westbrook seeks to situate the corporation between property and institution, and then again between social and political institutions inside the framework of American law and policy. That American framework, for Westbrook, is fundamentally ambiguous, melding elements suggesting corporations as autonomous social organs that have unsettled relationships with both individuals who have legally recognized stakes in them and with the organs of the political state which simultaneously assert legally recognized regulatory stakes. Westbrook queries what he describes as a weakness of our political thought that produces a deeply traditional academic corporate law, which an essentially conforming and conservative community of legal academics seeks to theorize away. This review essay examines this deeply conservative and tightly focused narrative world within the larger narrative of unconventional corporate entities and markets - the mafia and the yakuza. Westbrook’s call for a dramatic understanding of law in the American narrative context becomes a promising analytic method that reveals not so much the weakness of political thought as a play within a play without a script. Westbrook’s narrative offers elaborate tales of domestication and privatization of that portion of the economic sector that is capable of governance, of property that is animated - like the creation of Frankenstein - and of entities that are better understood as beyond citizen and state. The narrative of yakuza and mafia suggest both the limits and character of the conventional narrative of the American corporation so masterfully recounted by Westbrook. The three stories together constitute a wider universe of power-reality that also emphasizes the malleability of reality and the power inherent in controlling the parameters of narrative. The managerial character of narrative in the legitimating context of law stories becomes the great moral of Westbrook’s tale as much as the autonomy of human activity, and its complex inter-connections, is from the yakuza and mafia stories.