Vol. 11 No. 6 (June 2001) pp. 302-304.
RESPONSE BY DAVID SCIULLI
Let me begin by saying that I have never before written to a journal editor to complain about a book review, and, actually, I'm not really going to complain all that much about Daniel Greenwood's review of my book CORPORATE POWER IN CIVIL SOCIETY in the LPBR, Vol. 11 No. 5 (May 2001) pp. 249-254. I'm concerned most that over the course of the review Greenwood never describes the structure of the book. He says nothing at all about the order of the chapters. As a result, the reader has no idea how the book opens, how the early chapters establish central problems, and then how the book concludes.
He says in the review that I never offer an account of why "collegial formations" are important, but the opening chapter is explicit about this. And, I must confess, I state repeatedly across the book why these formations matter-so repeatedly that my greatest concern was (and remains) that readers will take me to task for being so repetitious. Related, I spend a great deal of time in the book talking about the immediate externalities of corporate governance and the institutional externalities of corporate governance. Indeed, I consider this distinction to be the pivot around which the whole book revolves. This distinction nowhere appears in the Greenwood review.
He also says that I never address particular court cases. Yet, chapter 5 revolves entirely around cases, and then chapter 10 describes the structure of Delaware courts and how they operate. Passing references to cases litter the chapter. He is right that I do not use or cite actual court opinions. But there is a reason for this. I am a sociologist, not a legal scholar. I have no good reason to debate legal scholars over the language of judicial decisions. My strategy was to rely on descriptions of a handful of cases that the widest swath of legal scholars-left and right, progressive (or communitarian) and contractarian-would accept in two ways. They would accept (a) that these cases are indeed among the most central in the field in the past two decades, and (b) that my descriptions of them are fair, are simply reports presented in an uncontroversial way. This means that there is a clear way in which Greenwood or anyone else can undercut this strategy of mine: They can argue that the cases I selected are not really central. Or they can argue that any one of my descriptions of cases in chapter 5 would not really be considered fair and accurate by the widest possible swath of specialists in the area. I do not think that he or anyone else can successfully make either argument-and, indeed, Greenwood never hints that he is trying to. He just says I don't look directly at the rulings. This is like saying to someone who uses uncontroversial data in an analysis that he didn't compile and run regressions
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on the data-rather than simply getting to the point of the analysis.
Greenwood is concerned that I don't promote balancing of more corporate interests and that I focus too much on the structured relationship between the board and top management team. He is entirely right about this. The problem is that he never offers the reader my rationale for doing this. Let's be clear: He may not like my rationale. Indeed, he may think it is utterly wrongheaded. But it would have been great if he had at least presented my rationale to the reader and then, after taking his best shot in explaining why his preferences differ, the reader could have decided for him- or herself whether I have a point or not.
In short, Greenwood wishes I had written his book instead of having written my book-which is a line of criticism that anyone can use against any publication. And so here I do conclude with one true complaint: Greenwood's review does not give me any evidence, really, that he read the book with even modest care, let alone methodically-as any book in social theory or legal theory really requires. I contrast this with David Frankford's (1994) review of my first book Frankford took all sorts of issues with my ideas, and did so at times more critically than Greenwood has done here. But Frankford leaves no doubt in anyone's mind what the structure of the book is and that in fact he had read it methodically. None of us expects agreement, and I respect criticism more than praise, actually. All any of us ask are modest care in reading and then some kind of basic reporting when describing an argument.
So let me put my complaint about this review differently: I look forward to some future law conference or law colloquium in which I might debate Professor Greenwood in person about contemporary issues of corporate governance. My thesis at any such meeting would be that his alternatives are impracticable: they will not happen even if the most forceful social movement imaginable was pushing for them (which itself is hardly likely to happen). I think it is time for legal scholars in particular to get more realistic when debating contractarians and then equally realistic when considering what the courts' outermost range of options is. Much is at stake in the debate over corporate governance. Lamenting the poor prospects of line employees is hardly going to reveal what it is.
Frankford, David M. 1994. "Book Review Essay: The Critical Potential of The Common Law Tradition: Theory of Societal Constitutionalism: Foundations of A Non-Marxist Critical Theory. By David Sciulli." COLUMBIA LAW REVIEW 94: 1076- 1123.
Copyright 2001 by the author, David Sciulli.
REPLY BY DANIEL GREENWOOD
Professor Sciulli complains that I didn't demonstrate that I read his book with care. I read it with the care I thought warranted and found it difficult going, with a structure and a thesis that were not clear enough for my simpleminded abilities, made more confusing by Professor Sciulli's claim that his reform proposals are already the law. The reader will have to decide whether that is my failing or Professor Sciulli's.
Professor Sciulli does indeed devote a chapter to the leading M&A cases. However, and no doubt because of Professor Sciulli's decision not to read the opinions, his discussion does not fairly summarize
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their central doctrinal issues or holdings: the secondary sources he relied upon assume the reader's familiarity with the underlying opinions and legal background. In any event, the M&A cases are not a sufficient basis for his legal claims, since those cases revolve around extraordinary end-game managerial-shareholder conflicts and Professor Sciulli's central claims are about more routine problems in ongoing (and more multi-party) relationships.
I understood Professor Sciulli's introduction to claim that the legal scholars have missed an obvious legal explanation of what the courts are doing-the sort of claim legal scholars make about each other routinely. But how can he do so relying solely on the reports of the very scholars who he simultaneously contends have entirely misunderstood what is going on?
Regarding judicially-led reform, I do not recall advocating the position that Professor Sciulli imputes to me (I made no reform proposal at all in the review). My problem with his proposals has nothing to do with a preference for balancing-boards as currently structured are poorly set up to balance interests of constituencies they do not even purport to represent and the Delaware courts have no mandate to create any meaningful type of balancing. Rather, his book-like his response-left me mystified as to how the form of board deliberation or "collegiality" he contends the courts are or should be imposing would serve either internal or external governance goals, or as he puts it, ameliorate "immediate" or "institutional" "corporate governance externalities." I need more explanation of why I should care whether board members have more experience of collegial deliberation.
In the end, the book I wish Professor Sciulli had written is not mine at all, but instead one that took more advantage of expertise I don't have. Legal scholars can handle the restatement of the legal academic and doctrinal debates that are too much of this book and do so with a clearer understanding of the scope of agreement and disagreement in the profession. Professor Sciulli's comparative advantage should be in describing social theory and perhaps even social reality.
Copyright 2001 by the author, Daniel Greenwood.