FROM METAPHOR TO REALITY IN CORPORATE LA W KENT GREENFIELDT 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, corporation as community, to name the most prominent-as justifications for the imposition of, or freedom from, legal and ethical requirements. The metaphors are often taken as given or as self-evident. The legal and ethical arguments flow, then, quite naturally. I this essay I will join Millon in his criticism of the way metaphors are used within corporate law cholarship and then offer an alt While the use of metaphor and syllogism has been a rhetorical practice for many years for many corporate scholars, it certainly seems to be particularly common among those who have dominated corporate law scholarship over the last half century, the property theorists and the contractarians Corporations are property-it has been famously said- and thus any effort to spread the corporate surplus, for example, to workers or the community in a way that reduces corporate profit is spending money that belongs to the shareholders and imposing an illegitimate"tax"on them. 2 Indeed, in this iew, corporate governance that takes into account the interests of stakeholders other than o 2000 by Kent Greenfield. [Draft of December 27, 2000. 1 aSsociate Professor of Law, Boston College Law School. J.D., University of Chicago; AB Brown University See Milton Friedman, The Social Responsibility of Business is to Increase its Profits, NY TIMES(magazine), Sept 13, 1970, reprinted in MANAGERIAL DECISION MAKING AND ETHICAL VALUES: COURSE MODULE 1, 2(Kenneth E Goodpaster Thomas R. Piper, eds, 1989)*© 2000 by Kent Greenfield. [Draft of December 27, 2000.] †Associate Professor of Law, Boston College Law School. J.D., University of Chicago; A.B., Brown University. 2See Milton Friedman, The Social Responsibility of Business is to Increase its Profits, N.Y. TIMES (magazine), Sept. 13, 1970, reprinted in MANAGERIAL DECISION MAKING AND ETHICAL VALUES:COURSE MODULE 1, 2 (Kenneth E. Goodpaster & Thomas R. Piper, eds., 1989). 1 FROM METAPHOR TO REALITY IN CORPORATE LAW * KENT GREENFIELD† [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, corporation as community, to name the most prominent – as justifications for the imposition of, or freedom from, legal and ethical requirements. The metaphors are often taken as given or as self-evident. The legal and ethical arguments flow, then, quite naturally. In this essay I will join Millon in his criticism of the way metaphors are used within corporate law scholarship and then offer an alternative for consideration. I. Metaphor While the use of metaphor and syllogism has been a rhetorical practice for many years for many corporate scholars, it certainly seems to be particularly common among those who have dominated corporate law scholarship over the last half century, the property theorists and the contractarians. Corporations are property – it has been famously said – and thus any effort to spread the corporate surplus, for example, to workers or the community in a way that reduces corporate profit is spending money that belongs to the shareholders and imposing an illegitimate “tax” on them.2 Indeed, in this view, corporate governance that takes into account the interests of stakeholders other than