New Approaches To Corporate Law

The late cultural anthropologist Ernest Becker, in his Pulitzer prize-winning book The Denial of Death, asserted that each human being has a deep-seated longing to "justify himself as an object of primary value in the universe [and to] make the biggest possible contribution to world life."(1) In other words, we all want to do something important and meaningful. For those who work in corporate law, whether in the academy or the law office, when we pause as we do today to consider the future of corporate law, we really are reflecting on the following question: "Will corporate law be an important subject of intellectual inquiry in the years ahead, or will it be a kind of academic sideshow?"By "important" I do not simply mean prominent and highly regarded in the academic or larger social sphere, although that is an integral part of what I mean. I also mean whether the subject of corporate law is important to those of us who do corporate law, in the sense of dealing not just with intriguing intellectual ideas but with matters that we personally value and even cherish. Another way to ask whether the field of corporate law will be important to us is to ask whether corporate law issues somehow implicate an inner core of ultimate personal values; and whether what we do in our own work (which is to write about the work of others) is connected to what we care about throughout the rest of our lives. In short, if discourse in corporate law does not reflect matters of deep persona) significance--that is, if it is not carried on with our moral voice--I wonder if that discourse will be important in the larger collective sphere.This "will" question--will corporate law be a significant field of inquiry--prompts a "can" question: "Can corporate law be important if shareholder primacy remains the exclusive focus; alternatively, can corporate law be effective if it takes a substantially different focus?"The first aspect of this question raises a challenge for those taking a more orthodox approach to corporate law. They must attend more elaborately and convincingly to the task of stating why in this society at this time under the current (and varying) circumstances it is a meaningful social good for corporations (and corporate law) to dwell on shareholder welfare. The case cannot be pre-supposed or made by dropping a few standardized footnotes to the writings of such persons as Adam Smith, Milton Friedman, or Michael Jensen. Those who wonder "What crisis in corporate law?"(2) increasingly must appreciate--whether they like it or not is another matter--that, as an anthropological fact, many people do not, to use a corporate law term, regard shareholder primacy as the "default" norm, the norm that governs until displaced. Rather, more people are insisting that the case for an unbridled version of shareholder primacy be made anew, that the burden of persuasion for it be affirmatively carried. Failure to do so may exacerbate a perception that contemporary corporate law scholarship is engaged in a solipsistic conversation, and that, insofar as advancing an understanding of what truly plagues business organizations in the late twentieth century, such scholarship is doodling in the margins.The second aspect of the "can" question presents a challenge to those dissatisfied with the conventional approach and who therefore pursue more heterodox lines of inquiry. Many of those attending this symposium already have answered, for themselves at least, the first aspect of the question in the negative. The second aspect, however, presents a greater hurdle, and invites consideration of whether a more capacious conception of corporate law, one that makes it important, can also be effective and influential. I will briefly address these two aspects.There is a natural tendency for any individual or group facing a predicament to think that no one else ever has experienced the problem before or, at a minimum, ever has experienced it quite so deeply. …