COMPANY LAW AND CODLIVER OIL

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COMPANY LAW AND COD-LIVER OIL

• Dr Stephen Copp,
• Bournemouth Law School,
• Bournemouth University

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Introduction

• Research informing teaching all about the
  Leading Authority and the Leading Text?
• The teaching and learning of company law a
  subject described as unteachable, dry and
  dull
• The role of theory renaissance or red herring?
• Experiences and evaluation of introducing
  research

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Company law origins 1

• Earliest text Kyd on Corporations (1793), yet
  still regarded as modern law subject
• Practitioner texts dominated development until
  first academic text Company Law by Charlesworth
  (1932)
• Leading academic text Gowers Principles of
  Modern Company Law (1954) observed that students
  thought subject technical and dull

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Company law origins 2

• Company law optional on most law undergraduate
  law courses
• Company law once compulsory not only for law
  vocational stage but also for many non-law
  professional qualifications, especially
  accountancy
• Most professional courses emphasise coverage not
  depth and black-letter law

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Black letter law method 1

• ... either implicitly or explicitly,
  formulating hypotheses as regards the meaning of
  legal concepts, legal rules, legal principles or
  legal institutions. These are checked out on
  the basis of materials generally considered
  authoritative (e.g. established precedents,
  supreme court decisions, legislative materials)
  and by using the classical interpretation
  methods. (Van Hoecke and Warrington (1998))

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Black letter law method 2

• Appropriate for defining legal rules applicable
  to a particular factual situation
• Inappropriate for significant (i.e.
  non-incremental) development of legal rules as
  little normative or theoretical base
• Inappropriate as guide to practice because of
  problem of obsolescence

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The role of theory 1

• 1989 Snaith Report to SPTL Company Law Group
• Caution required because of age and limited
  response
• Concerns as to extensive statutory developments,
  scandals and theory
• Found black letter law dominant approach,
  limited use of alternatives included
  reconciliation of competing interests, law in
  context, law and economics and Marxism

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The role of theory 2

• Challenge of weakening links with professional
  accounting courses
• Challenge of continuing growth in scope of
  subject in areas such as corporate governance, EU
  and human rights
• Challenge of relationship with law vocational
  stage
• Challenge of academic criticisms

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The role of theory 3A

• Hicks (1992) need to
• identify basic principles of company law
• promote skills development (esp. statutory
  interpretation)
• apply to non-contentious problems
• Hicks (1994) use of company life-cycle case
  study

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The role of theory 3B

• Kingsford Smith (1999) law in context
• Core elements a focus on
• Familiarity with institutions and practices
• Policy analysis
• Statutory interpretation
• Learning substance of regulation
• Developing situation sense
• Use of materials from other social science
  disciplines, e.g. economics and sociology

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The role of theory 3C

• Cheffins (1999) argued for theoretical
  perspective
• Law and economics
• Feminism
• Institutionalist/ communitarian/ stakeholder

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Experiences of introducing research 1

• Relevant autobiographical information
• Practitioner background as solicitor/ barrister
  entered HE 1992 research fellowship 1996/7
• PhD The Early Development of Company Law in
  England and Wales Values and Efficiency (2003)
• Development of inter-disciplinary research

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Experiences of introducing research 2

• Relevant subjects
• LLB Business Law Business Organisations unit,
  now Corporate Law and Governance unit
• MSc CG Corporate Law Practice 2 unit, now
  Corporate Governance Law unit
• LLM ICL Legal Regulation of International
  Business Organisations unit

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Experiences of introducing research 3

• Theoretical underpinning an integrated and
  pervasive approach
• New substantive legal topics developed
• Support provided by alternative (non-law)
  materials
• New questions posed for evaluation

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Example 1 Historical perspective

• Often perceived as a dead topic recently
  dropped from leading textbook
• Yet of real value in understanding development of
  statute-based topic
• PhD research provided access to many original
  materials
• Comparison, e.g., of Victorian and contemporary
  corporate scandals and solutions

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Example 2 The Purpose of the Company

• Patchy coverage in mainstream company law texts
• Introduces students to alternative conceptual
  frameworks, in particular, contrasting economic
  and stakeholding approaches
• Based on research for A Christian Vision for
  Corporate Governance (1998)
• Applied to relevant legal concepts
• Importance illustrated by fictional video of US
  stockholders meeting to consider closing
  obsolescent corporation

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Example 3 International Comparisons

• Ltd coverage in mainstream company law texts
• Importance demonstrated by scandals such as Enron
  and extra-territorial effect of SOX
• Methodological problems of cross-jurisdictional
  comparisons has to be addressed
• Raises theoretical issues of convergence/ race
  to bottom exposure to US academic literature
• Media case-study approaches valuable, e.g.
  DaimlerChrysler governance changes

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Example 4 Shareholders responsibilities

• Not covered as independent topic in mainstream
  company law texts
• Yet important parallel to common topic of
  directors duties raising significant social/
  political issues
• Enables students to explore weaknesses in law and
  evaluate alternatives in light of theoretical
  approaches

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Example 5 Dispute resolution

• Shareholder disputes a key topic on almost all
  company law units
• Research indicates importance in light of recent
  legal developments of non-contentious solutions
• Students encouraged to consider effectiveness of
  approaches such as mediation

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Example 6 Companies and human rights

• Limited coverage in mainstream company law texts
• Undergraduate students now have high awareness of
  human rights from earlier studies
• Significance illustrated by Human Rights Act 1998
• Students encouraged to develop knowledge of human
  rights law and apply to mainstream company law
  problems

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Evaluation 1 Advantages

• Relevance
• Motivation
• Understanding
• More fun!

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Evaluation 2 Disadvantages

• Inconsistency with vocational needs?
• Balance between mainstream coverage/ lecturers
  interests?
• Need for external examiner support?