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 non￾coercive, as “resistant to the dangers of political influence.”18 The market was viewed as a “self-