ABSTRACT
The apologist flavor of law and economics arises from the non-coincidental fact that the conclusions of scholars in the field dovetail nicely with the wishes and desires of the titans of corporate America. This chapter demonstrates that the contractarians have not carried the day. In fact, the movement is regressing, returning to its proper place as useful analysis for some purposes. The idea of corporate law in many instances serving to provide default and penalty default rules which parties who truly are capable of negotiation can vary is useful. Contractarians hold up as a model of deliberative process and authoritative source of corporate law the American Bar Association’s Committee on Corporate Laws and the Revised Model Business Corporation Act, the principal product of the committee. An irreducible minimum or core of principles, in modern corporate law reflected in fiduciary principles, as for instance codified by the American Law Institute’s Corporate Governance, rather than in.
