The History of Business Law at Yale
Ward S. Bowman, Ford Foundation Professor of Law and Economics, 1956-77
Ward Simon Bowman (1911-92) was an economist recruited to the Law School by Dean Rostow during his expansion of the faculty in the late 1950s. Bowman’s innovative work was an early exemplar of the use of price theory to analyze legal problems, an approach often referred to as the Chicago “School” of Law and Economics.
Bowman’s best-known work was in the field of antitrust, and its intersection with intellectual property law. His article, “Tying Arrangements and the Leverage Problem,” 67 Yale L. J. 19 (1957), is among the most cited articles in the history of the Yale Law Journal. The article anticipated the work of Robert Bork and others, contending that monopolists would generally be unable to “leverage” a monopoly through product-tying.
In 1973, Bowman published a path-breaking book, Patent & Antitrust Law: A Legal & Economic Appraisal. The book was a sustained critique of existing doctrine. For example, Bowman contended that “…by parlaying a leverage fallacy with an unproved, incipient monopoly hypothesis (arising from an assumed identity between effect on competitors and effect on competition) the Court has since 1917 consistently applied faulty economics leading to the wrong answers to the questions it has asked.” Patent & Antitrust Law, at 182. Another central insight in the book was that patent and antitrust law did not pursue opposing goals (monopoly, on one hand, and competition, on the other), but had a single, common goal— “to maximize wealth by producing what consumers want at the lowest cost,” Patent & Antitrust Law, at 1.
Francis W. Coker, Jr., Professor of Law, 1956-62
Francis William Coker, Jr. (1917-62) was a graduate of Yale College (1939) and the Law School (1946). He left a partnership at Paul, Weiss, Rifkind, Wharton & Garrison to join the faculty and, at the time of his untimely death, was also a consultant to the U.S. Securities and Exchange Commission. In that position, he developed the regulatory structure for issuers of variable annuity contracts under the Investment Company Act of 1940. He was also in charge of an inquiry reexamining the Investment Company Act, which had to be adapted to the sea change in the mutual fund industry caused by the extraordinary growth in funds’ equity holdings by the early 1960s.
Francis Coker was not a prolific publisher, in part because, as Joseph Bishop put it, he was a “perfectionist.” But Coker’s intellect was greatly admired by his colleagues. As Bayless Manning explained in tribute: “Consultation with Frank did not primarily produce extra information, or suggestions for research. It added new comprehension, new scales of proportion, new perceptions of relevancy, and new questions more interesting than the one with which one began.”
Coker was a dedicated and beloved teacher, and a fund that supports the first year small group teaching assistants was established in his honor at the Law School in 1963.
Bayless Manning, Professor of Law, 1956-64
Bayless Manning (1923-2011) graduated first in his class at the Law School (1949) and was Editor-in-chief of the Law Journal. He returned to join the faculty in 1955.
While on the faculty, Manning wrote several pioneering works on corporate law, including “The Shareholder’s Appraisal Remedy: An Essay for Frank Coker,” 72 Yale L. J. 223 (1962). The article offered an influential critique of appraisal rights, leading to statutory revisions that provided a “market exemption” from appraisal for merger consideration in the form of publicly traded shares. But it is probably best remembered for its colorful expression of the backward state of U.S. corporate law. In this regard, Manning’s criticism was at one with many of his Yale Realist-oriented predecessors, who identified ossified legal doctrines that were inadequate for the modern business enterprise, in Manning’s case, particularly for not recognizing the impact of the capital market. This theme continued to characterize Manning’s later work, A Short Textbook on Legal Capital (1st ed. 1968) and A Concise Textbook on Legal Capital (1st ed. 1977), which attacked the arcane rules regulating corporate distributions as worthless and out-of-date.
In addition to his research in corporate law, Manning was also a prominent scholar in legal ethics. Manning left Yale in 1964 to become dean of the Stanford Law School. In 1971, he became the first full-time executive of the Council on Foreign Relations, assuming a newly created post of President. Thereafter he joined the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison and, upon retirement, formed a consulting firm.
Ellen A. Peters, Southmayd Professor of Law, 1956-78
Ellen Ash Peters (1930-2024) came to the United States in 1939, fleeing Nazi Germany at the age of nine. A graduate of the Law School in 1954, two years after her graduation she became the first woman lawyer to be appointed to the faculty.
While at Yale, Peters was a leading scholar of contracts and commercial law. Among her many articles was her oft-cited “Remedies for Breach of Contracts Relating to the Sale of Goods Under the Uniform Commercial Code: A Roadmap for Article Two,” 73 Yale L. J. 199 (1963), which discussed the ambiguities inherent in Article 2’s damage provisions. Peters was the first woman at the Law School to gain full professorship in 1964 and was named Southmayd Professor of Law in 1975.
Peters took adjunct status in 1978 when she was appointed to the Supreme Court of Connecticut, and discontinued teaching in 1984 upon her elevation to chief justice. She remained chief justice until 1996, when she took senior status.
A 1995 survey of contracts textbooks revealed that they contained more opinions by Justice Peters than by any other active jurist other than Judge Richard Posner.
Harry H. Wellington, Sterling Professor of Law Emeritus, 1956-92 and Harry H. Wellington Professorial Lecturer, 1993-2011
Harry Hillel Wellington (1926-2011) joined the faculty after teaching at Stanford Law School for a year. He was dean of the Law School from 1975-85.
In his early years at Yale, Dean Wellington was a contracts scholar, and published a casebook in the field (with Harold Shepherd), Contracts and Contract Remedies (1957). Wellington soon began focusing his scholarship on the intersection of freedom of contract, organized labor, and collective bargaining, and published two influential books on the subject, Labor and the Legal Process (1968), and The Unions and the Cities (with Ralph K. Winter) (1972).
Wellington’s best-known scholarly works, however, are his writings on legal process, which include an early influential article coauthored with Alexander Bickel, “Legislative Purpose and the Judicial Process: The Lincoln Mills Case,” 71 Harv. L. Rev. 1 (1957). Wellington and Bickel shared in common a perspective shaped by the view on judicial restraint of Justice Felix Frankfurter for whom they both clerked.
Dean Wellington retired from Yale in 1992 to become dean of New York Law School.
Joseph W. Bishop, Sam Harris Professor of Law, 1957-85
Joseph Warren Bishop, Jr. (1915-85) came to the Law School in 1957, as part of Dean Rostow’s initiative to expand the faculty. Prior to joining the faculty, as General Counsel to the U.S. Army, he defended the Army from charges of communist infiltration during the McCarthy hearings of the early 1950s. He was decorated for exceptional civilian service by the Army in 1953 upon his departure for private practice.
Among his important contributions to corporate law scholarship was a groundbreaking article in 1968 on director liability, “Sitting Ducks and Decoy Ducks: New Trends in the Indemnification of Corporate Directors and Officers,” 77 Yale L. J. 1078 (1968). One of the most cited articles in the Journal’s history, it contended that director self-dealing is the touchstone of liability, famously observing that finding cases where directors had been held liable for “negligence uncomplicated by self-dealing [is] a search for a very small number of needles in a very large haystack.” “Sitting Ducks and Decoy Ducks,” at 1099.
In addition to his scholarly work, Bishop was a gifted essayist, contributing to such magazines as Commentary, Esquire, Harpers’ and The New Republic. A collection of his writings was published in 1971 as Obiter Dicta.
Merton C. Bernstein, Senior Fellow and Lecturer, 1960-66
Merton Clay Bernstein (1923-2019) came to the Law School after ten years in Washington, D.C. working as a staff assistant and counsel on Capitol Hill to several Senate committees and Senator Wayne Morse of Oregon.
Bernstein was a pioneer in the academic study of pension policy. His 1964 book, The Future of Private Pensions, discussed some of the deficiencies of contemporary private pension plans. It won the Elizur Wright Award for the most outstanding contribution to the literature on insurance in 1965. Throughout his career—both at Yale, and later at Washington University in St. Louis— Bernstein has been one of the most visible and forceful defenders of the Social Security system.
Robert H. Bork, Alexander M. Bickel Professor of Law, 1962-82
Robert Heron Bork (1927-2012) was on the faculty for two decades, although he spent several years on leave of absence when he served as Solicitor General of the United States and acting Attorney General.
Robert Bork’s most enduring legacy is his work in the antitrust field. He applied economic theory to demonstrate that much of antitrust doctrine was economically irrational and ultimately detrimental to consumer welfare, which he maintained was the normative goal of antitrust law, based on the intent of the enacting Congress. In the 1960s, Bork published a series of influential articles developing his thesis, including “The Rule of Reason and the Per Se Concept: Price Fixing and Market Division” (pts. 1 & 2), 74 Yale L. J. 775 (1965) and 75 Yale L. J. 373 (1966), one of the most frequently-cited articles in the history of the Yale Law Journal.
In 1978, Bork published The Antitrust Paradox: A Policy at War with Itself, which synthesized and elaborated his earlier work. The book surveyed antitrust case law, criticizing its tendency to protect competitors, rather than competition and maintaining that predatory pricing and harmful product-tying were not tenable business practices and should therefore be abandoned as legal principles.
Also an eminent constitutional law scholar, Bork emphasized the use of original intent to construe the Constitution. In 1982, he was appointed to the U.S. Court of Appeals for the D.C. Circuit and left the faculty. He resigned from the Court after the failure of his 1987 nomination to the U.S. Supreme Court and became a research scholar at the American Enterprise Institute. The political controversy over his nomination sparked heated debate over the proper role of the Senate in evaluating nominees and of judicial activism in decisionmaking. Bork touched upon these matters in his best-selling book, The Tempting of America: The Political Seduction of the Law (1989).
Upon the announcement of his death, Justice Antonin Scalia stated that “Robert Bork was one of the most influential legal scholars of the past 50 years. His impact on legal thinking in the fields of Antitrust and Constitutional Law was profound and lasting.”
John G. Simon, Augustus E. Lines Professor of Law Emeritus, 1962-2003, and Professorial Lecturer, 2003-2015
John G. Simon (1928-2022) graduated from the Law School in 1953 and was an assistant to the General Counsel in the Office of the Secretary of the Army from 1953-58. He was Deputy Dean of the Law School from 1985-90 and Acting Dean in 1991.
John Simon launched the academic study of nonprofit organizations. Furthering this research interest, he founded the internationally prominent Yale Program on Nonprofit Organizations, an interdisciplinary research center at the University. His interest in nonprofits was sustained on a number of dimensions, including establishing the Nonprofit Legal Clinic at the Law School, and serving on several foundation boards.
In addition, Simon’s book, The Ethical Investor (with Charles W. Powers & Jon P. Gunnemann), published in 1972, was the first book to consider in a systematic way social responsibility in investing. It quickly became highly influential in institutional investing circles, initiating what has now become the standard approach to investment policy of many university endowments, including Yale’s, and other non-profit institutions.
At the Law School, a research fund was established in his honor in 2007.
Ralph K. Winter, William K. Townsend Professor of Law Emeritus, 1962-82, and Adjunct Professor of Law, 1982-2014
Ralph Karl Winter, Jr. (1935-2020), an alumnus of both Yale College (1957) and the Law School (1960), joined the faculty following a clerkship with Justice Thurgood Marshall, then a Judge on the U.S. Court of Appeals for the Second Circuit. In 1982, Winter was appointed to that same court, served as Chief Judge from 1997-2000, and continued to teach at the Law School part-time through 2014.
Judge Winter’s pathbreaking 1977 article, “State Law, Shareholder Protection, and the Theory of the Corporation,” 6 J. Legal Stud. 251, changed the terms of debate about the decentralized system of U.S. corporate law. The article identified fundamental analytical flaws in the then conventional understanding of state law as a “race for the bottom” that facilitated managers’ exploitation of shareholders. Using economic analysis, Winter identified the many markets in which public corporations operate that would prevent managers from choosing the legal regime most harmful to shareholders because that would raise the cost of capital and thereby jeopardize managers’ career prospects. Judge Frank Easterbrook has called the article “the single most important contribution to the economic analysis of corporate law since Ronald Coase published ‘The Nature of the Firm’ in 1937.” Controversial when written, both for its analytical approach as well as its conclusion, the article’s analysis is mainstream today, although there is still disagreement among scholars concerning the quality of state law. In short, contemporary corporate law scholarship is unintelligible without referencing Winter’s contribution. In addition to his corporate law scholarship, Judge Winter made important contributions to labor law in his influential book with Harry Wellington, The Unions and the Cities (1972), and campaign finance law. Winter argued the foundational campaign finance law case, Buckley v. Valeo, 424 U.S. 1 (1976), representing the appellants (Senator James F. Buckley of New York, among others), in their challenge to the Federal Election Campaign Act of 1971. Still the leading case in the field, in Buckley v. Valeo, the Supreme Court struck down the statute’s limits on candidates’ own campaign expenditures as unconstitutional, while upholding limits on individuals’ campaign contributions.
Judge Winter received the 2017 Edward J. Devitt Distinguished Service to Justice Award, which honors an Article III judge who has achieved a distinguished career and made significant contributions to the administration of justice, the advancement of the rule of law, and the improvement of society as a whole.
Marvin A. Chirelstein, William Nelson Cromwell Professor of Law, 1965-82
Marvin A. Chirelstein (1928-2015) was a member of the faculty for close to two decades when he resigned to enter private practice. Thereafter he joined the faculty of the Columbia University Law School. He returned to Yale as an adjunct lecturer upon his retirement from Columbia.
Chirelstein was both a distinguished scholar and a gifted teacher in the corporate law and tax areas, attracting large enrollments in the courses that he taught. When he arrived at Yale from Rutgers in 1965, Chirelstein was dragooned by Dean Rostow to teach the “Business Units II” class, a course that consisted “entirely of case-annotations for commonly used bond indentures and other boiler-plate documents,” and that was, as he put it, “the most boring and insignificant course ever offered anywhere at any time in any language.” The 1960’s were, however, a fervent period in the theoretical development of modern finance. Finding reading the Journal of Finance more stimulating than reading bond covenants, Chirelstein incorporated those new concepts into the course. His groundbreaking casebook (coauthored with Victor Brudney of Harvard Law School), Cases and Materials on Corporate Finance (1st ed. 1972), revolutionized the subject by introducing modern finance into the business law curriculum.
In addition, Chirelstein’s Federal Income Taxation: a law student’s guide to the leading cases and concepts, first published in 1977, has gone through over a dozen editions, and is the preeminent text explicating and synthesizing the concepts of income taxation. The text is an example of the rare book that impacts the content of classroom teaching. By making the income tax code far more comprehensible to students, the book has permitted tax teachers to spend more time on policy issues and less on code mechanics. When he joined the Columbia faculty, Chirelstein began teaching contracts. This led to his authoring another best-selling text which is considered a classic in the field, Concepts and Case Analysis in the Law of Contracts.
Jan Ginter Deutsch, Walton Hale Hamilton Professor of Law Emeritus, 1966-2004, and Professorial Lecturer, 2004-2016
Jan Ginter Deutsch (1935-2016) graduated from Yale College in 1955, and received a Ph.D. in Political Science from Yale, as well as a J.D. from the Law School, in 1962. After a short stint in practice, he returned to the Law School as a member of the faculty. Perhaps his best-known work in the business law area is his book, Selling the People’s Cadillac: The Edsel and Corporate Responsibility (1976), in which he viewed the ill-fated Edsel as symptomatic of America’s social problems. In addition to his corporate law scholarship, Deutsch is noted for his work in jurisprudence. His 1969 article, “Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science,” 20 Stan. L. Rev. 169, is considered a classic. Written in the Realist vein in response to Herbert Wechsler’s famous essay on “Neutral Principles,” the article contended, in discussing constitutional law, that historical context determines whether a particular principle is properly classified as a “fundamental right” or an “opinion.”
President Clinton, when reminiscing about his Law School years, referred to Jan Deutsch as “the only man I’d ever met who ate all of an apple, including the core. He said all the good minerals were there. He was smarter than I was, so I tried it. Once in a while, I still do, with fond memories of Professor Deutsch.”
Arthur A. Leff, Southmayd Professor of Law, 1969-81
Arthur Alan Leff (1935-81) came to Yale from Washington University Law School and remained on the faculty until his untimely death in 1981. Leff was one of the most popular teachers in the Law School, known for making literary allusions, as well as coining words, such as a “fraudlette.” He was a leading scholar of contracts and commercial law, as well as jurisprudence. A central concern unifying his widely diverse corpus was the problem of legal meaning.
Leff’s classic contracts article, “Unconscionability and the Code–the Emperor’s New Clause,” 115 U. Pa. L. Rev. 485 (1967), critiqued section 2-302 of the new Uniform Commercial Code on unconscionable contracts, as a “study in statutory pathology,” that was a “meaningless mishmash” and formulated a distinction between “procedural” and “substantive” unconscionability. This formulation became the starting point for all subsequent discussions of unconscionability. Leff further developed the view of contract as a bargaining product rather than process, the then current approach, in subsequent articles, such as, “Contract as Thing,” 19 Am. U. L. Rev. 131 (1970), culminating in his 1976 book, Swindling and Selling, a change in perspective which he contended would enable courts to achieve desired outcomes more openly and efficiently by permitting contracts’ regulation as “things” rather than processes.
Oliver E. Williamson, Gordon Bradford Tweedy Professor of Law and Organization, 1983-88
Oliver Eaton Williamson (1932-2020), a leading economic theorist noted as a founder of the transaction cost economic approach, came to Yale from the University of Pennsylvania in 1983, with a joint appointment in the Law School, Economics Department and Management School. While at Yale, he founded the Journal of Law, Economics, and Organization and the Law, Economics and Organization workshop. Both the journal and workshop continue to thrive to this day. In 1988, he left Yale for the University of California at Berkeley.
By the time Oliver Williamson arrived at Yale, he had published his pathbreaking book, Markets and Hierarchies (1975), which developed ideas introduced in his earlier articles and was influenced by Ronald Coase’s 1937 article on “The Nature of the Firm.” While at Yale, Williamson continued to expand and refine the transaction cost approach, applying the framework to corporate governance and organizational behavior in a series of important articles, culminating in The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (1985). As, if not more, influential than his 1975 book, Economic Institutions of Capitalism has been translated into numerous languages and described by the eminent business historian, Alfred D. Chandler, as “[f]or a historian concerned with the evolution of modern institutions, … the most valuable book written by an economist since those of Joseph Schumpeter.”
In 2009, Williamson shared the Nobel Prize in Economics with Elinor Ostrom.
Henry B. Hansmann, Oscar M. Ruebhausen Professor of Law, 1983-2019, and Professorial Lecturer in Law, 2019-
Henry B. Hansmann (1945-) graduated from the Law School in 1974 and earned a Ph.D. in Economics from Yale University in 1978. He joined the Law School faculty in 1983 and was the first joint J.D.-Ph.D. in Economics on the faculty.
Hansmann’s scholarship focuses on the law and economics of organizational ownership and design. Through this analytical lens, he has examined legal entities of every kind, from proprietary to nonprofit, private to public, domestic to foreign, and ancient to modern. His article, The Role of Nonprofit Enterprise, 89 Yale L.J. 835 (1980), was the first to characterize non-profit organizations as rational economic responses to specific market contexts, mitigating information asymmetries between donors and those they seek to benefit, rather than creatures of history or embodiments of ethical consideration. In addition to his seminal work on nonprofits, his magisterial book, The Ownership of Enterprise, continues to provide powerful insight, as evidenced by a conference at Columbia Law School honoring Hansmann and the book’s 25th anniversary in 2021.
John H. Langbein, Sterling Professor of Law and Legal History, 1990-2016, and Professorial Lecturer in Law, 2015-
John H. Langbein joined the Law School faculty in 1990, after teaching at the University of Chicago. He is a preeminent authority on American trust, probate, pension, and investment law. His 1976 article, Market Funds and Trust Investment Law, coauthored with Richard Posner, introduced the portfolio theory of investments into trust law.
Langbein is also a distinguished legal historian, focusing on Anglo-American and European legal history. Langbein’s highly influential scholarship on modern comparative law has contended that European-style non-adversarial justice is fairer, more accurate, and more economical than Anglo-American procedures. And in 2006, his book, The Origins of Adversary Criminal Trial, received the Coif Biennial Book Award as the outstanding American book on law for 2003-04.
Langbein has complemented his scholarship by participating extensively in law reform. He has served continuously as a Uniform Law Commissioner under gubernatorial appointment since 1984. Langbein was also the reporter and drafter of the Uniform Prudent Investor Act (1994), which governs fiduciary investing in most American states.