On the Future of Business Law
| Author | Robert C. Bird |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| DOI | http://doi.org/10.1111/jlse.12079 |
Journal of Legal Studies Education
Volume 35, Issue 2, 301–320, Summer 2018
On the Future of Business Law
Robert C. Bird∗
I. INTRODUCTION
The subject of our present, and our future, is what I would like to talk to you
about today. The discipline has many possible futures, and the business law
faculty of today will shape the business law discipline of tomorrow. With these
possible futures, challenges and opportunities will inevitably follow. We must
anticipate these challenges, and prepare for the opportunities that will in-
evitably disrupt business education. Today, I will discuss the important role of
business law in business ethics, and then present strategies for advancing the
discipline on a path that keeps it vital and engaged with our stakeholders—
the business school, its faculty, our students, the business community, and
the society that we serve.
II. LAW AND ETHICS ON THE CONTINUUM
OF SOCIAL POLICY
A. Law and Ethics Operate in Concert
Business ethics are moral values and principles that guide the conduct of
business toward promotion of the common good. This simple explanation of
business ethics belies a deeper and broader understanding of how business
ethics evolves. Business ethicists are not cordoned by discipline, but rather
∗Professor of Business Law and Eversource Energy Chair in Business Ethics, University of
Connecticut; Academy of Legal Studies in Business, Ethics Scholar in Residence (2017). I
appreciate comments and support from colleagues who reviewed various versions of this
manuscript.
Author’s note: As the 2017 Ethics Scholar in Residence, I presented a keynote address to the Ethics Section of
the Academy of Legal Studies in Business at the annual conference in Savannah, Georgia. These remarks
have been revised and expanded for publication. Footnotes have been added where they may be useful for the
reader.
C2018 The Author
Journal of Legal Studies Education C2018 Academy of Legal Studies in Business
301
302 Vol. 35 / The Journal of Legal Studies Education
share a common application of critical thinking and analysis to challenge
established norms and values in society.1Law and ethics, which some see
as distinct fields, are deeply connected and mutually reinforcing. Laws are
hardened ethical values that are forged in debate, codified with precision,
and sharpened by disputants to serve the needs of a complex society.2Law
and ethics need one another. Ethics without laws lack precision of applica-
bility and enforcement by the state. Laws without ethics lack a moral anchor
and encourage self-serving behavior outside the reach of authorities. Law
and ethics are on a continuum of social policy, and the ethical values of
today become the legal principles of tomorrow.3For example, bribery, once
an acceptable business practice, was subsequently viewed as unethical, and
eventually that condemnation hardened into law in the form of the Foreign
1See Peter Seele, What Makes a Business Ethicist? A Reflection on the Transition fromApplied Philosophy
to Critical Thinking, 150 J. BUS.ETHICS 647 (2018). Seele explains that a definition of business
ethics “that does not exclude scholars because of their academic background” is appropriate.
Id. at *8. Seele then concludes that a business ethicist is
Anyone, who teaches, writes about, or researches in Business Ethics understood as critical
thinking—and this applies whether the person is in philosophy, management studies,
economics, anthropology, sociology, law, history, or ‘you name it’—either in its specific or
its general aspects, empirical, conceptual or normative, is a Business Ethicist, and what he
or she does is Business Ethics.
Id.
2See Vincent R. Johnson, The Virtues and Limits of Codes in Legal Ethics,14NOTREDAME J.L. ETHICS
&PUB.POL’Y25, 27 (2000) (“Forged in heated debate, codified with precision, and routinely
invoked by disputants, the principles of legal ethics are today regularly enforced by courts and
administrative bodies as rules of law.”).
3See, e.g., Clark v. Beach, 6 Conn. 142 (1826), which explained
[T]he distinction between strict law and equity, is never, in any country, a permanent dis-
tinction. Law and equity are in continual progression; and the former is constantly gaining
ground upon the latter. A great part of what is now strict law was formerly considered as
equity; and the equitable decisions of this age, will unavoidably be ranked under the strict
law of the next. No learned lawyer wants a proof or illustration of these remarks; and even
our own reports furnish abundant confirmation of this unquestionable truth.
Id. at 158 (emphasis in original). See also Spect v. Spect, 26 P. 203, 205 (Cal. 1891) (similar).
Equity was generally coterminous with fairness and ethical principles of the day. See T. Leigh
Anenson, “Clean Hands” and the CEO: Equity as an Antidote for Excessive Compensation,12U.P
A.J.
BUS. L. 947, 975–76 (2010).
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