Someplace Between Philosophy and Economics: Legitimacy and Good Corporate Lawyering

Abstract

This essay deals with the demands of responsible lawyering when one's client is a corporate or other business entity. I suspect that to most business clients, many of the laws they encounter are mundane and, worse, suspicious in their origins. We would be naive to think that laws always do more good than harm, or even that they are intended to do so. Too often, law in economic and commercial settings is the product of special interest haggling, political grandstanding, or bureaucratic sloth. In its totality, the bulk of commercial and regulatory law probably is mediocre at best. If this is the law we imagine, identifying the right posture for responsible legal advice gets much harder. To pose the question bluntly, what is the right way to advise a business person whose company is facing burdensome new regulation that is the product of effective lobbying by a trade group representing its competitors? Or with regard to new investor protection rules responding to some recent scandal, if it seems that compliance will cost those investors much more in diminished returns than they will ever realize in protection?