This article is reprinted from the Introduction to David Kershaw’s The Foundations of Anglo-American Corporate Fiduciary Law which will be published by Cambridge University Press in August 2018. The book explores the doctrinal pre-history of US and UK corporate fiduciary law – the duties the law imposes on directors, and shows how understanding these pre-histories drives a reevaluation of the nature, quality and production processes of contemporary corporate law in both jurisdictions. The book provides a legal etymology of US and UK corporate fiduciary law – an account of the origins of the concepts and ideas that provide the raw materials of modern corporate fiduciary law, such as rationality review and fairness review, gross negligence and skills adjusted ordinary care – and a historical legal genealogy or topography – the excavation of a map of the path of these ideas from their origins through to today. In excavating these historical legal maps, the book seeks to explain why these US and UK legal paths were taken and why alternative available paths were not seen, or were foreclosed. It is the juxtaposition of the UK and US prehistories which enables this exploration because although today the fiduciary duties which corporate law imposes on the directors of US and UK companies are starkly different, both jurisdictions started from the same place by borrowing from the same eighteenth and nineteenth century English, non-corporate legal sources. This juxtaposition, the book argues, enables us to see the real drivers of US and UK corporate legal evolution and divergence and to challenge contemporary accounts of corporate legal production and change.
Kershaw, David, The Foundations of Anglo-American Corporate Fiduciary Law (July 6, 2018). LSE Legal Studies Working Paper No 15/2018.