This immensely learned volume from the holder of the chair in civil law, international private law, and comparative law at the University of Trier shares two characteristics of the specifically German genre of the Habilitationsschrift. First, it is an enormously ambitious enterprise resulting in an enormous product: 1,089 pages long. It exhaustively surveys scholarship in Germany and the United States concerning corporation law and its history, comparative method, sociological jurisprudence, and law and economics, and it traces debates between and within the German and United States legal academies. The 110-page bibliography testifies to the relentlessness of the author's research. Second, and more importantly, this book, like most of the dauntingly thick and heavy second dissertations from German scholars, offers gems of insight to other researchers interested in a myriad of topics.
Hein divides the book into eight substantive chapters, the first four of which consider methodological and historical issues (7–463), and the second four of which consider particular issues in contemporary corporation law (465–957). He first examines the utility of the very concept of legal reception, surveying the traditional explanations that states adopt foreign legal models for reasons of prestige (the reception of Roman law) or power (the Meiji era adoption in Japan of European-style legal codes), and he considers whether emerging similarities over time might simply result from convergence; independent embrace of similar corporation law solutions to common problems of advanced capitalism. Hein concludes that, despite the potential of reception theory to bruise national pride, reception is a useful perspective from which to understand the increasing interrelatedness of German and American corporation law.
In doing this, Hein provides a series of helpful histories. For American scholars interested in the development of German corporation law from its beginnings, he supplies an account of German corporation law from the origins of stock corporation law in the seventeenth and eighteenth centuries to the present (§3, 63–285), which offers surprising insights. For example, the Nazi-era Stock Corporation Law of 1937, despite the enveloping atmosphere of radical ideology, enacted into German law reforms inspired by United States legal developments that had been blocked by political paralysis in the latter years of democratic government in the Weimar Republic, reforms that persisted with only modest changes into the Federal Republic of the 1960s. Key to reception of aspects of United States corporation law was the post-World War I need for German corporations to resort to United States investors for capital. In the 1920s drawing upon direct investment of United States capital, both equity and debt, and by the 1970s and 1980s including listings of German corporations on the New York exchanges for access to United States capital markets, German corporate managers, legislators, and legal theorists all recognized the need to make German law of corporate structure, governance, and operations transparent to these rich potential investors and therefore the need to adopt into German corporation law structures and doctrines understandable and reassuring to potential United States investors. In Hein's account, globalization of world capital markets, far from being a post-1989 phenomenon, since the advent of the twentieth century has pushed German corporation law toward a reception of United States forms and structures.
Changes in United States traditions of corporate law also affected the German reception. Useful to German scholars is Hein's history of United States corporate law, detailing the emergence of general incorporation laws and structures at the state level in the United States federal system, with a cautionary case study of the early twentieth-century shift of dominance from New Jersey to its current locus in Delaware. Detailed analyses of the reasons for Delaware's dominance, the greater calculability of the equity jurisdiction of the Delaware Chancery Court, and the political virtues for corporations of incorporation in a small state far from the site of their operations and headquarters, will help German scholars who have not themselves studied in the United States to understand this American Sonderweg. And Hein's historical sketch traces the growing prestige and power of federal government interventions in the interests of protecting the integrity of capital markets, from the post-great crash legislation of the New Deal, especially creation of the Securities and Exchange Commission (SEC), through the enactment of the Sarbanes–Oxley Act of 2002 in reaction to the collapses of Enron and WorldCom, arguing that both the extraterritorial reach of this act, and its application to German companies seeking to list on the New York Stock Exchange (NYSE) and Nasdaq increased the inevitability of reception of United States corporation law by Germany.
Reception does not mean, however, that German corporation law has become identical to that in the United States. Hein always reminds the reader that reception can be selective, and that cultural, social, and political imperatives in the receiving state require preservation of space for domestic particularities. Germany, for example, has avoided creation of a national (federal) level regulatory body to oversee corporations, analogous to the SEC. It maintains its bifurcated corporate board system of the management and supervisory boards, despite adoption of a board committee structure suited to United States capital markets; it retains the social solidarity structure of co-determination; and the structures of concentrated financial and industrial corporations in Germany still reflect a far more consolidated shareholder culture than in the United States. Hein outlines current scholarly debates about all these issues, as well as the consequences of the embeddedness of German corporate law structures in an increasingly integrated European Union legal system, in sections fruitful to American scholars who seek a detailed overview of German conditions.
No brief review can more than scratch the surface of all this volume has to offer. Daunting in its size, Hein's book rewards the reader who persists in the effort of reading it, and it will be the standard work on the subject until either European integration supersedes it, or until post-2008 reforms of corporation and capital market law in the United States emerge as new reception challenges for the Germans.
