Lyman P. Q. Johnson: Counter-Narrative In Corporate Law

Professor Lyman P. Q. Johnson, the Robert O. Bently Professor of Law, had his article, Counter-Narrative In Corporate Law: Saints and Sinners, Apostles and Epistles, 2009 Mich. St. L. Rev. 847 (2009), published in the Michigan State Law Review.

Professor Johnson discusses the bi-vocal nature of corporate law. On the one hand, liberating and amoral statutes permit a master narrative of business persons eagerly pursuing the good life as they see it. The mixture of such lax law and human frailty frequently leads to the unleashing of boundless ambition, vanity, avarice, duplicity, and much mischief. On the other hand, another voice in corporate law occasionally moves into the foreground to interrupt and tell its own story – a counter-narrative demanding a measure of self-restraint – when those who direct or manage company affairs press self-gain (or sloth) to the point of intolerable excess. The tellers of these stories are judges – especially Delaware’s judges – when, sitting in equity, they invoke the discourse of fiduciary duty to confront the dominant story line and reshape how corporate managers may use the vast power conferred by law.

Professor Johnson argues that corporate law permits a master narrative that is highlighted and made legally visible only when challenged by equity’s counter-narrative, with which it is complicit. To do so, he draws on a biblical narrative where the New Testament’s redemptive teachings, for the most part, are conveyed by didactic parables and sermons emphasizing overarching principles and standards, not detailed rules or codes of conduct. Critically, moreover, apostles and epistles were exhorted not to keep the stories to themselves. Rather, they were commissioned to go forth and re-tell the Good News to the whole world. In a parallel way, equity’s co-producing role in corporate law is redemptive, and Delaware’s chancellors frequently preach and teach in parables and sermons. In response to law’s tale of unbridled freedom, they speak of restraint. Moral drama arises from this clash.

Congratulations to Professor Johnson on his publication.