Smith on Lawless on Law of Entrepreneurship

Posted by Jeff Lipshaw

Gordon Smith at Conglomerate posted a follow up by Bob Lawless (Illinois, right) from the Law of Entrepreneurship conference at Wisconsin.  I just posted a comment over there that I am going to repeat here, because I think it invokes a meta-issue about law and society, or here, simply law and business, or lawyers and business people.

After reading Gordon’s essay on whether courts mattered to entrepreneurship, I puttogether a little essay that started with the law of the horse issue (see Frank Easterbrook on whether there is a law of the horse). Idon’t doubt that entrepreneurship is a distinctive field of study; myskepticism is whether the law of entrepreneurship is a distinctdiscipline. (If so, perhaps Gordon has already pre-empted most of the area in which itdoes seem to be a distinct area – the down-round – in his analysis ofthe Benchmark case.) And my initial reaction in the essay (clearly anearly-stage thought piece) was that I needed to dig deeper than whatseemed to be mere categorization. That is, my intuition is that lawyersand entrepreneurs, by and large, are ships passing in the night, forvery fundamental reasons about the way they see the world, and what isimportant to them in terms of risk, finitude and open-endedness, andthe allocation of property versus the allocation of liability. Thatearly stage “auto-brainstorming” morphed into something that Ibrown-bagged at Tulane called “ABOUTNESS, THINGNESS, VISCOSITY, AND THEONTOLOGY OF FORMAL SYSTEMS IN LAW.” (Faculty members are stillscratching their heads, I’m sure.) But as I read recently on somebody’sblog somewhere, just when I think I have it, it slips away from meagain. Pardon the self-promotion, but I think the topic is fascinating(obviously) and the thought piece is still sitting out there: “Why the Law of Entrepreneurship Barely Matters”.