《法学资料大全》（英文版）公司法——暗喻到实际之路

Forthcoming in 2 STAN AGORA(2000). As David Millon so ably demonstrates, metaphor drives much of the debate within corporate law jurisprudence and corporate law scholarship. It has done so for decades, even centuries. Scholars have used metaphors-corporation as person, corporation as creature of the state, corporation as property, corporation as contract,

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shareholders, if such a practice disadvantages shareholders in any way, is an unconstitutional taking or, even more provocatively, socialism. Or, corporations are contracts (or so most law students in 2000 are taught), and thus have no ethical or legal duties other than those specified in the contract. Most shareholders, it is assumed would contract with the business s managers to ensure that the managers seek to maximize profit. So-called corporate social responsibility activities cannot be allowed, much less required, therefore, unless the shareholders expressly agree to contract around the standard contract terms provided by corporate law to allow the managers to forego profits for such reasons. In other words, there can be no responsibil ity outside of the contract, so unbar responsibility is oxymoronic. Non-shareholders are parties to the contract and deserve only what they SSee Lynda J. Oswald, Shareholders V. Stakeholders: Evaluating Corporate Constituency Statutes Under the Takings Clause, 24 J CORP. L 1(1998) See Friedman, supra note 2, at 1. This name-calling occurs not only in scholarly works recently gave a faculty colloquium arguing for changes in corporate governance that would require corporate management to take into account the interests of workers. One listener referred to my views as"socialism. For a partial justification for my views that the interests of workers be taken into account within corporate law, see Kent Greenfield, The Place of workers in Corporate Law, 39 BC.L.REV.283(1998) See daniel R. Fischel, The Corporate Governance Movement, 35 VAND. L REV. 1259 1273(1982)(because corporations are contracts, they are"incapable of having social or moral obligations much in the same way that inanimate objects are incapable of having these obligations") See Jonathan R Macey, An Economic Analysis of the Various Rationale for Making Shareholders the exclusive Beneficiaries of Corporate Duties, 21 STETSON L. REV. 23, 36, 42 (1991)(arguing that workers and other non-shareholder constituencies can protect themselves through contract or through the political process); FRANK H. EASTERBROOK AND DANIEL R. FISCHEL, THE ECONOMIC STRUCTURE OF CORPORATE LAW 23(1991)(all parties to the corporate"contract"can protect themselves through negotiation); cf. Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L REV. 611, 649(1988)(because contract outcomes depend on preexisting entitlements bargained for outcomes are just only if preexisting circumstances are fair and just), Greenfield, supra note 4, at 283, 322-26 (arguing that market defects make contract between labor and the corporation inefficient, and criticizing assumption that contract norms should be the basis for public policy since"the ability of parties to bargain is a function of their preexisting entitlements and wealth)

3See Lynda J. Oswald, Shareholders V. Stakeholders: Evaluating Corporate Constituency Statutes Under the Takings Clause, 24 J. CORP. L. 1 (1998). 4See Friedman, supra note 2, at 1. This name-calling occurs not only in scholarly works. I recently gave a faculty colloquium arguing for changes in corporate governance that would require corporate management to take into account the interests of workers. One listener referred to my views as “socialism.” For a partial justification for my views that the interests of workers be taken into account within corporate law, see Kent Greenfield, The Place of Workers in Corporate Law, 39 B.C. L. REV. 283 (1998). 5See Daniel R. Fischel, The Corporate Governance Movement, 35 VAND. L. REV. 1259, 1273 (1982) (because corporations are contracts, they are “incapable of having social or moral obligations much in the same way that inanimate objects are incapable of having these obligations”). 6See Jonathan R. Macey, An Economic Analysis of the Various Rationale for Making Shareholders the Exclusive Beneficiaries of Corporate Duties, 21 STETSON L. REV. 23, 36, 42 (1991) (arguing that workers and other non-shareholder constituencies can protect themselves through contract or through the political process); FRANK H. EASTERBROOK AND DANIEL R. FISCHEL, THE ECONOMIC STRUCTURE OF CORPORATE LA W 23 (1991) (all parties to the corporate “contract” can protect themselves through negotiation); cf. Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611, 649 (1988) (because contract outcomes depend on preexisting entitlements, bargained for outcomes are just only if preexisting circumstances are fair and just); Greenfield, supra note 4, at 283, 322-26 (arguing that market defects make contract between labor and the corporation inefficient, and criticizing assumption that contract norms should be the basis for public policy since “the ability of parties to bargain is a function of their preexisting entitlements and wealth”). 2 shareholders, if such a practice disadvantages shareholders in any way, is an unconstitutional taking3 or, even more provocatively, “socialism.”4 Or, corporations are contracts (or so most law students in 2000 are taught), and thus have no ethical or legal duties other than those specified in the contract.5 Most shareholders, it is assumed, would contract with the business’s managers to ensure that the managers seek to maximize profit. So-called corporate social responsibility activities cannot be allowed, much less required, therefore, unless the shareholders expressly agree to contract around the standard contract terms provided by corporate law to allow the managers to forego profits for such reasons. In other words, there can be no responsibility outside of the contract, so unbargained-for responsibility is oxymoronic. Non-shareholders are parties to the contract and deserve only what they bargain for.6

These metaphors of property and contract are powerful and seductive. While they may b helpful pedagogically, as Millon suggests we must be careful not to mistake the descriptive power of metaphor for normative prescription. To oppose corporate social responsibility reforms on the basi that it is inconsistent with the property or contractual rights of shareholders is simply unhelpful, since in reality neither pure property nor explicit contract is involved. What is meant, presumably, when one says that a stakeholder statute is contrary to the property and contract rights of shareholders is that such a statute is inconsistent with corporate law as it is now, or is inconsistent with the way corporate law should be. If the former argument is what is meant, such a description is beside the point of a normative debate. That is, in considering whether, say, directors should owe fiduciary duties to workers is in an important sense asking whether shareholders should"own"the firm. One cannot answer this question simply by saying that the shareholders own the firm If the latter argument is what is intended, then the argument must depend on a detailed description of why corporate law should be based on property or contract principles. It is meaningless to talk about property or contract"rights without a much thicker normative justification for those rights To the extent that these metaphors are placeholders for that thicker justification, the debate should take note of that fact and encourage that the justification be brought forward so that the debate can progress on specific normative grounds Another problem with the use of metaphors is that they do not inexorably lead to the conclusions that one supposes. Even if corporations are best seen as contracts, that decides little in itself since contract law includes a wide range of common law and statutory exceptions to contractual obligations. A contract for murder or for blackmail is unenforceable. a court would require an employer to pay an employee the minimum wage, even if the employee had entered into a contract to ' Greenfield, supra note 4, at 290; see also Margaret M. Blair, OWNERSHIP AND CONTROL RETHINKING CORPORATE GOVERNANCE FOR THE TWENTY-FIRST CENTURY 224(1995)(argument that shareholders own the corporation and should thus be able to control it"is simply circular logic"); Singer, supra note 6, at 637-38( To assume that we can know who property owners are, and to assume that once we have identified them their rights follow as a matter of course, is to assume what needs to be decided)

7Greenfield, supra note 4, at 290; see also Margaret M. Blair, OWNERSHIP AND CONTROL: RETHINKING CORPORATE GOVERNANCE FOR THE TWENTY-FIRST CENTURY 224 (1995) (argument that shareholders own the corporation and should thus be able to control it “is simply circular logic”); Singer, supra note 6, at 637-38 (“To assume that we can know who property owners are, and to assume that once we have identified them their rights follow as a matter of course, is to assume what needs to be decided”). 3 These metaphors of property and contract are powerful and seductive. While they may be helpful pedagogically, as Millon suggests we must be careful not to mistake the descriptive power of metaphor for normative prescription. To oppose corporate social responsibility reforms on the basis that it is inconsistent with the property or contractual rights of shareholders is simply unhelpful, since in reality neither pure property nor explicit contract is involved. What is meant, presumably, when one says that a stakeholder statute is contrary to the property and contract rights of shareholders is that such a statute is inconsistent with corporate law as it is now, or is inconsistent with the way corporate law should be. If the former argument is what is meant, such a description is beside the point of a normative debate. That is, in considering whether, say, directors should owe fiduciary duties to workers is in an important sense asking whether shareholders should “own” the firm. One cannot answer this question simply by saying that the shareholders own the firm.7 If the latter argument is what is intended, then the argument must depend on a detailed description of why corporate law should be based on property or contract principles. It is meaningless to talk about property or contract “rights” without a much thicker normative justification for those rights. To the extent that these metaphors are placeholders for that thicker justification, the debate should take note of that fact and encourage that the justification be brought forward so that the debate can progress on specific normative grounds. Another problem with the use of metaphors is that they do not inexorably lead to the conclusions that one supposes. Even if corporations are best seen as contracts, that decides little in itself since contract law includes a wide range of common law and statutory exceptions to contractual obligations. A contract for murder or for blackmail is unenforceable. A court would require an employer to pay an employee the minimum wage, even if the employee had entered into a contract to

work for only $2 an hour. In many jurisdictions, a duty of good faith is injected, as an act of law, into the terms of every contract Some states prohibit firms from terminating employees for reasons that are contrary to the public interest, even when the agreement between the employee and employer provides for "at will "employment. These are only a few of the "exceptions"in the law of contract, 0 and the contract metaphor cannot be applied to corporate law without an exploration of why any number of exceptions should not be applied as well Similarly, to say that the shareholders"own the company is unhelpful without a description of why certain aspects of property law are relevant and others are not. Notwithstanding the"illusion of absoluteness that accompanies much property-rights rhetoric, property has always been subject to reasonable regulation. The broad principle that one should not use one's property to inflict harm on others has been"routinely applied"in U.S. courts since the nations beginning. 2 The Supreme Court recognized over 150 years ago that"[w ]hile the rights of private property are sacredly guarded, we must not forget that the community also have [sic]rights. 3 A property owner cannot burn noxious trash in her backyard so as to cause a nuisance to her neighbors, for example, and a factory owner may not operate a factory that is unreasonably dangerous to the employees working there. To use the metaphors of property or contract as a normative argument therefore is unhelpful without an explanation SSee Restatement(Second), Contracts S 205(1979) See, e.g., Derose v. Putnam Management Co, 398 Mass. 205(1986); Hobson v. Mclean Hosp. Corporation, 402 Mass. 413(1988) I See, e. g, Sternamen v. Metropolitan Life Ins. Co., 170NY. 13, 18, 62N E. 763(1902) (The power to contract is not unlimited. While as a general rule there is the utmost freedom of action in this regard, some restrictions are placed upon the right by legislation, by public policy and by the nature of things. Parties cannot make a binding contract in violation of law or public policy. II See marY aNN glendon rights talk: THe IMPoVERISHMENT OF POLITICAL DISCOURSE 18,20(1991) ld. at 25 IGLENDON, Supra note 11, at 26(citing Charles River Bridge v. Warren Bridge, 36 U.S (11Pet)420,548(1937)

8See Restatement (Second), Contracts § 205 (1979). 9See, e.g., Derose v. Putnam Management Co., 398 Mass. 205 (1986); Hobson v. McLean Hosp. Corporation., 402 Mass. 413 (1988). 10See, e.g., Sternamen v. Metropolitan Life Ins. Co., 170 N.Y. 13, 18, 62 N.E. 763 (1902) (“The power to contract is not unlimited. While as a general rule there is the utmost freedom of action in this regard, some restrictions are placed upon the right by legislation, by public policy and by the nature of things. Parties cannot make a binding contract in violation of law or public policy.”). 11See MARY ANN GLENDON, RIGHTS TALK:THE IMPOVERISHMENT OF POLITICAL DISCOURSE 18, 20 (1991). 12Id. at 25. 13GLENDON, supra note 11, at 26 (citing Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420, 548 (1937)). 4 work for only $2 an hour. In many jurisdictions, a duty of good faith is injected, as an act of law, into the terms of every contract.8 Some states prohibit firms from terminating employees for reasons that are contrary to the public interest, even when the agreement between the employee and employer provides for “at will” employment.9 These are only a few of the “exceptions” in the law of contract,10 and the contract metaphor cannot be applied to corporate law without an exploration of why any number of “exceptions” should not be applied as well. Similarly, to say that the shareholders “own” the company is unhelpful without a description of why certain aspects of property law are relevant and others are not. Notwithstanding the “illusion of absoluteness” that accompanies much property-rights rhetoric, property has always been subject to reasonable regulation.11 The broad principle that one should not use one’s property to inflict harm on others has been “routinely applied” in U.S. courts since the nation’s beginning.12 The Supreme Court recognized over 150 years ago that “[w]hile the rights of private property are sacredly guarded, we must not forget that the community also have [sic] rights.”13 A property owner cannot burn noxious trash in her backyard so as to cause a nuisance to her neighbors, for example, and a factory owner may not operate a factory that is unreasonably dangerous to the employees working there. To use the metaphors of property or contract as a normative argument therefore is unhelpful without an explanation

of why some aspects of the metaphor are excluded and others included. Unfortunately, however, these metaphors are so powerful that they are taken not as placeholders but as arguments themselves, thus not only describing the law but shaping it as well It is no coincidence that those who oppose more socially responsible corporate governance choose metaphors from the common law. Common law Tights have long had significant rhetorical er. Much of this persuasiveness is based on the fact that they are seen as neutral, pre-political, and pre-legal --witness Daniel Fischel's assertion that reformers should not disturb the nexus of contracts imbedded in corporate governance but should focus instead on imposing political restrictions from outside the corporation. 4 Consider also Milton Friedmans assertion that allowing corporate managers to weigh societal concerns makes those managers into unelected public servants instead of agents of the shareholders. Both views rely implicitly on the notion that corporate governance is, as presently constructed, neutral and insulated from politics This takes one back to Lochner v. New york 6 There. in striking down New York's law establishing maximum work hours for bakers, the Supreme Court interpreted the U.S. Constitutions Fourteenth Amendment to create a category of impermissible legislative ends and used a laissez-faire conception of government as its theoretical basis. What was seen as liberty and laissez-f however, was the framework of common law rights. The common law was seen as priva non- coercive, as"resistant to the dangers of political influence. "8 The market was viewed as a"self- FIschel, supra note 5, at 1271(those who are concerned with corporate misdeeds should seek redress through the political process and [should] note [] attempt to disrupt the voluntary arrangements that private parties have entered into in forming corporations") IS See Friedman, supra note 2, at 3 16198US.45(1905) 169 1See Cass Sunstein, Naked Preferences and the Constitution,84 COLUM. L REV. 1689, I MORTON J HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960 10(1992)

14Fischel, supra note 5, at 1271 (those who are concerned with corporate misdeeds should “seek redress through the political process and [should] note [] attempt to disrupt the voluntary arrangements that private parties have entered into in forming corporations”). 15See Friedman, supra note 2, at 3. 16198 U.S. 45 (1905). 17See Cass Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689, 1697 (1984). 18MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960 10 (1992). 5 of why some aspects of the metaphor are excluded and others included. Unfortunately, however, these metaphors are so powerful that they are taken not as placeholders but as arguments themselves, thus not only describing the law but shaping it as well. It is no coincidence that those who oppose more socially responsible corporate governance choose metaphors from the common law. Common law “rights” have long had significant rhetorical power. Much of this persuasiveness is based on the fact that they are seen as neutral, pre-political, and pre-legal -- witness Daniel Fischel’s assertion that reformers should not disturb the nexus of contracts imbedded in corporate governance but should focus instead on imposing political restrictions from outside the corporation.14 Consider also Milton Friedman’s assertion that allowing corporate managers to weigh societal concerns makes those managers into unelected public servants instead of agents of the shareholders.15 Both views rely implicitly on the notion that corporate governance is, as presently constructed, neutral and insulated from politics. This takes one back to Lochner v. New York. 16 There, in striking down New York’s law establishing maximum work hours for bakers, the Supreme Court interpreted the U.S. Constitution’s Fourteenth Amendment to create a category of impermissible legislative ends and used a laissez-faire conception of government as its theoretical basis.17 What was seen as liberty and laissez-faire, however, was the framework of common law rights. The common law was seen as private and noncoercive, as “resistant to the dangers of political influence.”18 The market was viewed as a “self-

executing system that justly distributed rewards through voluntary agreement among individuals. "9 Under this conception of liberty and government neutrality, the Court struck down the New York law restricting the work hours of bakers as a violation of the right of free contract The institution of contract was seen as the legal expression of free market principles, and every interference with the contract.. was treated as an attack on the very idea of the market as a natural and neutral institution for distributing awards. 21 Much of the rights-based discourse in present-day corporate law hearkens back to Lochnerian justifications. Corporate law is private law(whether the law of property or contract), defined by common law principles, and therefore neutral. To change it is impermissible But Lochner came at the Supreme Courts"nadir of competenceand has been repudiated One of the mistakes of the Lochner-era Court was to believe that the marketplace was neutral, existing outside the realm of politics and law. 3 Even the so-called laissez-faire marketplace is shot through with government, and even the most basic common law entitlements are functions of legal rules. 4"The market status quo [is] itself a product of government choices, 2and had long been so even at the time iiD at 33 198US.at45 Horwitz, supra note 18, at 33. As history rarely falls into neat categories, it is important to note here that, while Lochner is often invoked to characterize turn-of-the-century jurisprudence, the Supreme Court was quite inconsistent in its adherence to freedom of contract even during the "Lochner era. See Aviam Soifer, The Paradox of paternalism and Laissez-Faire Constitutionalism, United States Supreme Court, 1888-1921, 5 LAW History rev. 249, 250 n 4(1987) 2 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 166(1996)(Souter, J, dissenting) 2See id( Souter, J, dissenting)("It was the characteristic of the Lochner era, and its characteristic vice. that the court treated the on law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. 24 See CASS SUNSTEIN, AFTER THE RIGHTS REVOLUTION 41(1990) nstein, supra note 17, at 1697

19Id. at 33. 20198 U.S. at 45. 21Horwitz, supra note 18, at 33. As history rarely falls into neat categories, it is important to note here that, while Lochner is often invoked to characterize turn-of-the-century jurisprudence, the Supreme Court was quite inconsistent in its adherence to freedom of contract even during the “Lochner era.” See Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism, United States Supreme Court, 1888-1921, 5 LAW & HISTORY REV. 249, 250 n. 4 (1987). 22Seminole Tribe of Florida v. Florida, 517 U.S. 44, 166 (1996) (Souter, J., dissenting). 23See id. (Souter, J., dissenting) (“It was the characteristic of the Lochner era, and its characteristic vice, that the Court treated the common law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect.”). 24See CASS SUNSTEIN, AFTER THE RIGHTS REVOLUTION 41 (1990). 25Sunstein, supra note 17, at 1697. 6 executing system that justly distributed rewards through voluntary agreement among individuals.”19 Under this conception of liberty and government neutrality, the Court struck down the New York law restricting the work hours of bakers as a violation of the “right of free contract.”20 The institution of contract was seen as “the legal expression of free market principles, and every interference with the contract . . . was treated as an attack on the very idea of the market as a natural and neutral institution for distributing awards.”21 Much of the rights-based discourse in present-day corporate law hearkens back to Lochnerian justifications. Corporate law is private law (whether the law of property or contract), defined by common law principles, and therefore neutral. To change it is impermissible. But Lochner came at the Supreme Court’s “nadir of competence”22 and has been repudiated. One of the mistakes of the Lochner-era Court was to believe that the marketplace was neutral, existing outside the realm of politics and law.23 Even the so-called laissez-faire marketplace is shot through with government, and even the most basic common law entitlements are functions of legal rules.24 “[T]he market status quo [is] itself a product of government choices,”25 and had long been so even at the time

of Lochner:. Morton horwitz tells us that as contract law had become more formalized and generalized after the Civil War, the legal rules came to bear a more and more tenuous relationship to the actual intent of the parties 26 Instead, judgments in common law courts came to" depend upon the notions of the court as to policy, welfare, justice, [and] right and wrong 27 As Cass Sunstein explains, it was the law that"created property and contract rights, and... imposed various limits on those rights. 8 The so-called"free market "was a creation of law, not of nature, and"the common law could not be considered as a natural or unchosen baseline 29 Thus Lochner's defense of the common law as private law was indefensible, and eventually came to be recognized as such 0 Contract and property law are no more neutral, private, or pre-legal than statutory law My point is not that a legal regime should not include a bundle of common law entitlements The point here, rather, is that these rights are not best perceived as natural, pre-legal, or non-political but rather should be recognized as tools to be utilized for the furtherance of social good, however defined. The language of rights may be used as a descriptive matter, but such language is out of place in a normative discussion. One cannot justify the present make- up of corporate law as non-political or ald justi law itself as non-political or pre-legal. The corporate law scholars who make this mistake are thus 26Horwitz, supra note 18, at 35 Horwitz, supra note xx, at 35(citing Arthur L. Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26 YALE L J. 169, 206(1917)). See also Oliver W. Holmes, Jr, The Path of the Law, 10 HARV. L. REv. 457, 466(1897)(Why do you imply [a condition in a contract]? It is because of some belief that as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of exact logical conclusions. Sunstein, supra note [ The Partial Constitution), at 50 30 See gEoFfrey STone, ET AL, CoNSTITUTIONAL LAW 739(1986)(Lochner" turned on an indefensible distinction between the public andprivate spheres, defined in terms of common law categories.)

26Horwitz, supra note 18, at 35. 27Horwitz, supra note xx, at 35 (citing Arthur L. Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26 YALE L.J. 169, 206 (1917)). See also Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 466 (1897) (“Why do you imply [a condition in a contract]? It is because of some belief that as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of exact logical conclusions.”). 28Sunstein, supra note __ [The Partial Constitution], at 50. 29Id. 30See GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LA W 739 (1986) (Lochner “turned on an indefensible distinction between the ‘public’ and ‘private’ spheres, defined in terms of common law categories.”). 7 of Lochner. Morton Horwitz tells us that as contract law had become more formalized and generalized after the Civil War, “the legal rules came to bear a more and more tenuous relationship to the actual intent of the parties.”26 Instead, judgments in common law courts came to “depend upon the notions of the court as to policy, welfare, justice, [and] right and wrong.”27 As Cass Sunstein explains, it was the law that “created property and contract rights, and . . . imposed various limits on those rights.”28 The so-called “free market” was a creation of law, not of nature, and “[t]he common law could not be considered as a natural or unchosen baseline.”29 Thus Lochner’s defense of the common law as private law was indefensible, and eventually came to be recognized as such.30 Contract and property law are no more neutral, private, or pre-legal than statutory law. My point is not that a legal regime should not include a bundle of common law entitlements. The point here, rather, is that these rights are not best perceived as natural, pre-legal, or non-political, but rather should be recognized as tools to be utilized for the furtherance of social good, however defined. The language of rights may be used as a descriptive matter, but such language is out of place in a normative discussion. One cannot justify the present make-up of corporate law as non-political or pre-legal because it is based on common law principles any more than Lochner could justify common law itself as non-political or pre-legal. The corporate law scholars who make this mistake are thus

subject to Roscoe Pound's criticism of Lochner and its progeny: they" exaggerate the importance of property and contract . [and] exaggerate private right at the expense of public interest. I If, as Millon proposes, corporate law scholars were willing to"jettison[ our obsession"with the various rights-based metaphors used to understand and explain the corporate form, how should we move forward? In other words, how should we engage in a conversation about possible changes in corporate govemance if the language of rights is temporarily off limits? Let me suggest that one useful way to think of these issues is to look at corporate law regulation. Instead of being seen as a set of statutory and common law rules contained within itself, corporate law should be subject to the same analysis as environmental law, labor law, tax law communications law, and the like. there are a number of ways to characterize what this analysis should be, of course, and there are many grounds for vigorous disagreement about what"counts'" "in regulatory theory. But behind all the complexity, at a high level of generality, the analysis with regard to corporate law rules should be the same as the analysis for other kinds of statutes and regulations. That is, one should ask what we want our society to look like. Then, we should seek to craft a bundle of legal rules and regulatory programs that are likely to move us in that direction. This construction could be at such a high level of abstraction as to be unhelpful. But it is worth noting that this conversation starts quite differently than how the discussion about corporate governance usually begins. Instead of looking at the outset to common law principles and notions of property and contract(or, for that matter, the rights of people in some kind of community ) we are forced to state at least--our assumptions about the purposes of law and our vision for society. Thus David Engel is correct in his claim that the issues of corporate social responsibility "cannot be debated except against the background of a general political theory. 3 The project, then, of constructing corporate law Roscoe Pound, Liberty of contract, 18 YALE L Horwitz, supra note?, at 32David L Engel, An Approach to Corporate Responsibility, 32 STAN. L REv. 1, 1(1979)

31Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454, 560-461 (1909) (quoted in Horwitz, supra note ?, at 34. 32David L. Engel, An Approach to Corporate Responsibility, 32 STAN. L. REV. 1, 1 (1979). 8 subject to Roscoe Pound’s criticism of Lochner and its progeny: they “exaggerate the importance of property and contract . . . [and] exaggerate private right at the expense of public interest.”31 II. Reality If, as Millon proposes, corporate law scholars were willing to “jettison[] our obsession” with the various rights-based metaphors used to understand and explain the corporate form, how should we move forward? In other words, how should we engage in a conversation about possible changes in corporate governance if the language of rights is temporarily off limits? Let me suggest that one useful way to think of these issues is to look at corporate law as regulation. Instead of being seen as a set of statutory and common law rules contained within itself, corporate law should be subject to the same analysis as environmental law, labor law, tax law, communications law, and the like. There are a number of ways to characterize what this analysis should be, of course, and there are many grounds for vigorous disagreement about what “counts” in regulatory theory. But behind all the complexity, at a high level of generality, the analysis with regard to corporate law rules should be the same as the analysis for other kinds of statutes and regulations. That is, one should ask what we want our society to look like. Then, we should seek to craft a bundle of legal rules and regulatory programs that are likely to move us in that direction. This construction could be at such a high level of abstraction as to be unhelpful. But it is worth noting that this conversation starts quite differently than how the discussion about corporate governance usually begins. Instead of looking at the outset to common law principles and notions of property and contract (or, for that matter, the rights of people in some kind of community), we are forced to state -- at least -- our assumptions about the purposes of law and our vision for society. Thus David Engel is correct in his claim that the issues of corporate social responsibility “cannot be debated except against the background of a general political theory.”32 The project, then, of constructing corporate law

ought to depend on a broader, and ongoing, project that asks what our society should look like and analyzes the capacity of law -- including corporate law -to get us closer to that ideal One can illustrate the ways this would change the debate within corporate law by pointing to he way debates about other public policy choices affecting business enterprises take place. The minimum wage provides a good example. Several years ago, the U.S. Congress increased the minimum wage from $4.25 to something over $5 per hour. Note the similarities with a proposal to have corporations balance the needs and interests of non-shareholder constituencies in making corporate decisions. Both proposals impose costs on the corporation that might result in a decrease in shareholder return. 3 Both proposals restrict the intermal decisionmaking of the corporation-the minimum wage statute by disallowing labor contracts offering wages below the statutory minimum, the stakeholder statute by disallowing agreements between management and shareholders that include a promise by management to maximize returns without concen for other constituencies. Both proposals impose mandates on the corporation that were not necessarily assumed by the shareholders when they purchased their shares In the debate about the minimum wage however an argument that a legislated increase is impermissible because the shareholders"own the corporation"would seem incongruous and unresponsive, or a throw-back to Lochner. people seem to understand that the debate about an increase in the minimum wage turns on, and should turn on, the effect of such an increase on workers companies, and the economy as a whole. Few serious commentators would argue that raising the minimum wage is impermissible because it forces managers to give away money that"belongs"to the shareholders, and no one would find it persuasive( after the New Deal) that increasing the minimum wage violates a"contract"" between managers and shareholders The"rights of the shareholders are simply beside the point in the debate. In contrast, when a proposal is made to change the rules of corporate governance, rights-based arguments become a common part of the discourse consumers or suppliers of capital and labor. This will in turn depend on the elasticity of supply any o 3 How much of a loss will depend in large part on how much of the costs can be passed on demand in the various markets

33How much of a loss will depend in large part on how much of the costs can be passed on to consumers or suppliers of capital and labor. This will in turn depend on the elasticity of supply and demand in the various markets. 9 ought to depend on a broader, and ongoing, project that asks what our society should look like and analyzes the capacity of law -- including corporate law -- to get us closer to that ideal. One can illustrate the ways this would change the debate within corporate law by pointing to the way debates about other public policy choices affecting business enterprises take place. The minimum wage provides a good example. Several years ago, the U.S. Congress increased the minimum wage from $4.25 to something over $5 per hour. Note the similarities with a proposal to have corporations balance the needs and interests of non-shareholder constituencies in making corporate decisions. Both proposals impose costs on the corporation that might result in a decrease in shareholder return.33 Both proposals restrict the internal decisionmaking of the corporation -- the minimum wage statute by disallowing labor contracts offering wages below the statutory minimum, the stakeholder statute by disallowing agreements between management and shareholders that include a promise by management to maximize returns without concern for other constituencies. Both proposals impose mandates on the corporation that were not necessarily assumed by the shareholders when they purchased their shares. In the debate about the minimum wage, however, an argument that a legislated increase is impermissible because the shareholders “own the corporation” would seem incongruous and unresponsive, or a throw-back to Lochner. People seem to understand that the debate about an increase in the minimum wage turns on, and should turn on, the effect of such an increase on workers, companies, and the economy as a whole. Few serious commentators would argue that raising the minimum wage is impermissible because it forces managers to give away money that “belongs” to the shareholders, and no one would find it persuasive (after the New Deal) that increasing the minimum wage violates a “contract” between managers and shareholders. The “rights” of the shareholders are simply beside the point in the debate. In contrast, when a proposal is made to change the rules of corporate governance, rights-based arguments become a common part of the discourse

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