The Good Faith Thaumatrope: A Model of Rhetoric in Corporate Law Jurisprudence

Abstract

This paper develops a model of rhetoric in corporate law jurisprudence. It begins by examining a recent innovation in Delaware case-law: the emerging principle of good faith. Good faith is an old notion in law generally, but it offers to bring significant change to corporate law, including realignment of the business judgment rule and a shift in the traditional balance between board authority and judicial accountability. Tracing the development of this new doctrine, the paper argues that good faith operates like a thaumatrope, oscillating between the traditional standards of care and loyalty, lowering the doctrinal hurdles of each without adding any distinct substantive content to the law. In this way, good faith functions as a rhetorical device rather than a substantive standard. That is, it operates as a speech-act, a performance, as opposed to a structured mode of analysis. Building upon political science theories and the recent work of Professor Roe and others in modeling Delaware law as a function of the twin threats of corporate migration and federal preemption, the paper argues that the judiciary employs such rhetorical devices to mitigate threats to its authority. This, then, is the rhetorical structure of corporate law. In periods of crisis and scandal, the judiciary employs rhetorical devices to reduce the pressure, typically with the effect of increasing board accountability, only to return, once the pressure recedes, to a position of board deference. The paper finds several examples of this rhetorical structure in corporate law history and argues, ultimately, that the good faith thaumatrope is merely the latest such device and is likely to follow a similar evolutionary path.