The first major break from the Cary-Winter race frame came in two forms, in adjacent years. Jeffrey N. Gordon's 1989 piece in the Columbia Law Review, The Mandatory Structure of Corporate Law, challenged the strongest private-ordering version of corporate law by emphasizing that corporate law contains mandatory architecture — rules about governance structure, fiduciary obligation, and decision rights that cannot be reduced entirely to contract.37 Gordon's point matters for this site because reincorporation is not merely a menu choice among default rules; it is a change in the legal architecture that allocates authority among shareholders, boards, controllers, courts, and legislatures.
In 1990, Bernard S. Black published Is Corporate Law Trivial?: A Political and Economic Analysis in the Northwestern University Law Review.5 Black observed that the operative differences between state corporate codes — the actual variation in fiduciary standards, voting rules, and remedial provisions — are remarkably small. Most of the apparent variation, he argued, is either default rules that firms can and do contract around, or doctrinal vocabulary that points to substantively similar behavior.
If the differences between state corporate codes are small, then the choice of incorporation state should have correspondingly small effects on firm value, governance behavior, and operational outcomes. This is the proto-irrelevance thesis. Black's 1990 article supplied an early and explicit triviality formulation that the later irrelevance scholarship would revisit. Together, Gordon and Black mark the moment the relevance question became live in a way that neither Cary's race-to-the-bottom nor Winter's race-to-the-top had contemplated: Gordon by insisting that some part of corporate law is non-negotiable, Black by asking whether the negotiable part is large enough to matter.
A parallel doctrinal track running through the same period is Stephen Bainbridge's director-primacy account, which supplies an explicit theory of internal corporate authority — the proposition that corporate law vests decision-making fiat in the board, while fiduciary duties and shareholder voting supply accountability at the margins52 — together with the companion claim that the business judgment rule is best understood as an abstention doctrine rather than a liability standard, so that the practical content of corporate law depends not only on stated fiduciary standards, but on when courts decide to enter the field at all.53 That frame supplies the doctrinal premise on which the post-Tornetta “clear-day” business-judgment rule of Maffei v. Palkon later rests.