While at university, IP Draughts discovered, through trial and error, that he received much higher marks for his employment law essays if he wrote them from a left-wing, pro-employee standpoint. This experience came to IP Draughts’ mind as he perused an academic legal journal, Legal Studies, that he receives as a member of the Society of Legal Scholars.
The latest edition of Legal Studies includes a lead article that won the SLS Annual Conference Best Paper Prize 2011. It can therefore be used as an example of a good academic paper. The paper is entitled Giving purpose to the corporate purpose debate: an Equitable Maximisation and Viability principle. The author is Dr Daniel Attenborough, a lecturer in law at the University of Leicester.
The author considers the purpose of a corporation, and the duties of the directors of a corporation to promote that purpose. At first sight, the subject is one that might be of interest to IP Draughts as a commercial law practitioner. Directors’ duties is an important subject that is of practical relevance to many of IP Draughts’ clients. It is also a difficult subject, particularly in light of the provisions of Part 10 of the Companies Act 2006, which require directors to take into account many “stakeholder” interests, including those of the company’s employees under section 172(1)(b).
IP Draughts was also encouraged to read the article by the editorial at the beginning of the journal, in which a new set of editors promised to make articles in the journal relevant to the general reader as well as the specialist.
So, how does Dr Attenborough’s paper live up to these expectations in IP Draughts’ mind? The author proposes that directors of a company should be required to act in accordance with an equitable maximisation and viability principle. The principle is summarised as follows:
The objective of the corporation should be to: (i) provide enhanced safeguards to the demonstrable, legitimate intra-corporate interests against adverse impacts that its activities engender; and (ii) to facilitate the corporation’s longevity and viability as a separate juridical entity.
IP Draughts thinks the above paragraph is trying to say that companies should be required to take their employees’ interests into account, and should not just focus on making a profit. He is reminded of a famous line from the 1980s sitcom Yes, Minister, when Sir Humphrey Appleby, the senior civil servant at the Department of Administrative Affairs, reluctantly admits that he is responsible for an error in the terms of a Government contract made 30 years earlier:
The identity of the official whose alleged responsibility for this hypothetical oversight has been the subject of recent speculation is not shrouded in quite such impenetrable obscurity as certain previous disclosures may have led you to assume, and, in fact, not to put too fine a point on it, the individual in question was, it may surprise you to learn, the one to whom your present interlocutor is in the habit of identifying by means of the perpendicular pronoun.
Leaving aside questions of writing style, IP Draughts felt a familiar sense of frustration when reading the article. It follows what is presumably a conventional academic pattern: (1) review the current academic literature, (2) comment on it and advance the academic oeuvre a little, and (3) if possible, make proposals for future action. The article appears to fulfil those requirements admirably. But it has very little relevance to the world that IP Draughts inhabits. The article doesn’t even mention the Companies Act 2006. It has no ambition to engage with the interests of practising lawyers; it lives entirely within the world of academia.
IP Draughts has no wish to criticise Dr Attenborough personally. He is at an early stage of an academic career, and his work has been singled out for praise by his peers; this should be a cause for personal celebration.
Instead, IP Draughts worries that there is something fundamentally wrong with the way in which the practice of academic law has developed and the way in which senior academics encourage their junior colleagues to develop their careers. IP Draughts would like to see a much greater percentage of academic legal articles focussing on subjects that connect with the world of practising lawyers.
A good test of practicality would be whether the article is cited in a court judgment. IP Draughts recalls an article by Professor Andrew Robertson being discussed in a judgment in the House of Lords, by Lord Hoffmann, but this is a rare exception.
The articles can and should still be academically rigorous and even mention other ideas from academic literature. But they should not focus exclusively on what other academics have written and think. Preferably they should advance the knowledge of practising lawyers. Preferably all academic lawyers would spend at least a year or two working in private practice, to understand the perspective of practising lawyers.