Facilitative and Mandatory Rules in the Corporation Law(s) of the United States

in corporate law, the influence of modern economic views on the nature of the firm, launched 60 years earlier by Coase,2 reached mainstream corporate law discourse in the United States. From the perspective of the positive law, however, this was hardly a revolutionary view. State codes had supported a facilitative rather than a regulatory treatment of corporations whether that facilitation was mandatory or not since the enactment of New Jersey's corporation code in 1875.3 It follows that the U.S. discussion of the issue of mandatory versus suppletive4 or optional rules is in one sense of limited comparative utility: after all, the less onerous a nominally mandatory rule, the less relevant the debate. As will become clear below, that may be the most important point to take away from a discussion of U.S. law.