Reflections on a Corporate Law Draftsman: Ernest L. Folk's Lessons for Writing and Judging Corporate Law

Abstract

Despite the infusion of theory into corporate law scholarship in the last twenty-five years, entrenched differences persist between those who favor more regulation and wider input into corporate law-making and those who prefer to rely on market discipline. Corporate law and policy, particularly given the lack of consensus over the right response to recent events, would benefit from refreshed thinking and long-term perspective. Professor Ernest L. Folk, III, draftsman of the highly successful 1967 Delaware law revision, deserves careful study for the lessons he offers as to law-making about the corporation, substantive aspirations of corporate law, and the role of the scholar in analyzing and articulating corporate law and policy. As a model of the professional contribution of a law professor to law and scholarship, he directs attention to the role of the corporate law professor as an expert writer, who functions alongside other writers as a craftsman of corporate law materials. He exemplifies the values of modesty, openness, pragmatism, service, precise thinking, and optimism, each of which is a useful quality for collaborative writing. As a source of insight on contemporary corporate law, he directs attention to realism about the necessity of managerial input into state corporate law; the need for credible processes of law-making; the distinctive functions of state and federal law; the inevitability of gap filling by federal law; the possibility of renewal of the state corporate codes over time; and the presence of harmony in the whole group of corporate law texts. Folk provides a model for a relaxed standard of scholarly review of corporate statutes subject to the existence of credible processes of law-makings, in effect, a policy version of the business-judgment rule for the academy in relation to corporate law. Folk manifested the virtues of the academic lawyer in the era before theory began making contributions to scholarship. While theory has made valuable contributions, the legal academy should strive to maintain a place for first-rank scholars like Folk. This is particularly true in that Folk's career presents a case study of the way that a first-rate academic can help to translate the norms of corporate law to the practitioners and policy-makers who help to shape corporate statutes and practice.