Law Commons^™

The Difference Between The Occupiers And The Tea Party? The Meaning Of Freedom, Kent Greenfield

Kent Greenfield

No abstract provided.

The Unjustified Absence Of Federal Fraud Protection In The Labor Market, Kent Greenfield

Kent Greenfield

Federal law offers significant protection against fraud in the capital market, based on the compelling rationale that accurate information is important in allowing the securities markets to allocate financial capital to real capital. Notwithstanding some recent statutory adjustments, federal securities law remains committed to a central idea: it is wrong for a company or a corporate official knowingly to make a misrepresentation in order to take value from another in a securities transaction. This article argues that rationales analogous to those justifying fraud protection in the capital market also hold true in the labor market. Fraud may in fact be …

Should Corporations Have First Amendment Rights?, Kent Greenfield, Daniel Greenwood, Erik Jaffe

Kent Greenfield

As Professor Winkler correctly stated, current doctrine emphasizes the rights of listeners rather than the identity of corporate speakers. My argument is, in effect, that this emphasis misses the key point. But I will not deal with listeners directly. I am simply going to assume, rather than argue, that if corporate advertising were ineffective in influencing voters or legislators, normal market processes would eliminate it. I'm going to take it for granted that when corporations speak, it makes a difference in the actual results.

Corporate Law And The Rhetoric Of Choice, Kent Greenfield

Kent Greenfield

Rhetorically, the notion of choice has always been a powerful one in politics and law. This essay is intended to offer a note of caution about its use. Despite its progressive hue of individual freedom, the rhetoric of choice increasingly tends to be a notion used to defend and uphold existing matrices of economic and social power. This is because the rhetoric of choice is an excellent way to support exiting power relationships. The assertion that people acting within such power relationships are simply choosing their current situation undermines efforts to change those relationships. The powerful stay powerful; the weak …

Corporate Ethics In A Devilish System, Kent Greenfield

Kent Greenfield

Prepared for a roundtable on corporate ethics at the University of Maryland School of Law, this essay argues that discussions of corporate ethics that focus on mere compliance with law are too narrow. While an emphasis on legal compliance is indeed crucial, a dedication to legality standing alone is hardly a robust sense of ethics, corporate or otherwise. Whether one takes guidance from religious norms or from secular philosophers, there are significant areas of agreement as to what amounts to ethical behavior: acting with due care for others; taking responsibility for the effect of one's actions; being honest; considering broadly …

The Disaster At Bhopal: Lessons For Corporate Law?, Kent Greenfield

Kent Greenfield

Prepared for a conference at New England Law School marking the upcoming twenty-fifth anniversary of the disaster at Bhopal, this essay asks whether we have anything still to learn from what occurred in the early morning hours in Bhopal on December 3, 1984, and in the hours, days, and weeks that followed. Is there reason to believe, for example, that corporations have a tendency to create the context in which such disasters are more likely? More recent corporate behavior poses the same question, whether it pertains to environmental destruction, injuries to consumers, collusion with illegal governmental activities, or financial malfeasance. …

The Impact Of "Going Private" On Corporate Stakeholders, Kent Greenfield

Kent Greenfield

As capital markets in the United States increasingly "go private," it is unclear how the privatization of corporate finance will affect non-shareholder stakeholders of firms, most centrally employees, communities, and the environment. Some scholars and public policy experts believe that concern for such stakeholders should not hold any relevance in the discussion of corporate law in general, and thus may be presumed to believe the same about a conversation about privatization. In such a view, these concerns lie outside the realm of corporate governance law; they therefore should be of no great moment in the debate over whether public policy …

New Principles For Corporate Law, Kent Greenfield

Kent Greenfield

The fundamental assumptions of corporate law have changed little in decades. Accepted as truth are the notions that corporations are voluntary, private, contractual entities, that they have broad powers to make money in whatever ways and in whatever locations they see fit. The primary obligation of management is to shareholders, and shareholders alone. Corporations have broad powers but only a limited role: they exist to make money. Those who maintain these principles – a group that includes most of the legal scholars who teach and write in the area – have derived the narrow role of corporations in one of …

Debate: Saving The World With Corporate Law?, Kent Greenfield, D. Gordon Smith

Kent Greenfield

The current debate within corporate law is as fundamental as any time since the New Deal, when the great exchange between Merrick Dodd and A.A. Berle defined the issues for a generation of scholars. Today, the community of corporate law scholars in the United States is split between two groups. The first, heavily influenced by economic analysis of corporations, argues the merits of increasing shareholder power vis-à-vis directors. Another group, animated by concern for economic justice, challenges the traditional, shareholder-centric view of corporate law, arguing instead for a model of “stakeholder governance.” The enclosed article is an untraditional method to …

Law, Politics, And The Erosion Of Legitimacy In The Delaware Courts, Kent Greenfield

Kent Greenfield

One of the putative benefits of incorporation in Delaware is the expertise and knowledge of the Delaware courts. Professor Jonathan Macey says that Delaware “offers current and prospective charterers . . . a judiciary with particularized experience and expertise in corporate law.” Professor Faith Stevelman cites the “expertise” of Delaware’s judges as “fostering the state’s leading reputation in corporate law,” which “safeguard[s] the financial returns which flow to Delaware from its chartering business.” Professor Michael Klausner argues that Delaware’s dominance will likely be permanent in part because of the corporate expertise of Delaware’s judiciary. In fact, “[s]ome see the quality …

Democracy And The Dominance Of Delaware In Corporate Law, Kent Greenfield

Kent Greenfield

Among the grandest debates within corporate law is whether the dominance of Delaware is the result of a “race to the bottom” -- toward a legal regime that benefits managers at the expense of the shareholders -- or a “race to the top” -- toward an efficient, shareholder-centric governance framework. This paper argues that this debate is largely beside the point. Even if Delaware’s dominance is the result of a competition resulting in law that efficiently serves the interests of shareholders, it is nevertheless illegitimate. This is because the internal affairs doctrine, on which Delaware’s preeminence depends, in effect allows …

Attorney General Mukasey’S Defense Of Irresponsibility , Kent Greenfield

Kent Greenfield

Attorney General Mukasey’s commencement speech at Boston College Law School did a disservice to the institution. First, it gave a platform to one whose position on torture is contrary to the humanitarian values of the school. Second, by encouraging students to divorce their own morals from their legal reasoning and simply “say what the law is,” it reduced the practice of law to a mere exercise in research, devoid of any of the principles for which the school (and legal education in general) stands. This Article addresses two issues surrounding Attorney General Michael Mukasey’s invitation to speak at Boston College …

Our Conflicting Judgements About Pornography, Kent Greenfield

Kent Greenfield

No abstract provided.

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Kent Greenfield

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that result. …

The Place Of Workers In Corporate Law, Kent Greenfield

Kent Greenfield

This article critiques the low place of workers within corporate law doctrine. Corporate law, as it is traditionally taught, is primarily about shareholders, boards of directors, and managers, and the relationships among them. This is despite the fact that workers provide an essential input to a corporation's productive activities, and that the success of the business enterprise quite often turns on the success of the relationship between the corporation and those who are employed by it. Black letter corporate law requires directors to place the interests of shareholders above the interests of all other "stakeholders," including workers. This article analyzes …

An Experimental Test Of Fairness Under Agency And Profit Constraints (With Notes On Implications For Corporate Governance), Kent Greenfield, Peter Kostant

Kent Greenfield

Building on the scholarship using ultimatum game experiments to explore the presence of fairness norms in bargaining exchanges, the authors test whether such norms are affected by agency relationships alone or agency relationships linked with a duty to maximize returns to the principal. The findings are dramatic. The study, the first of its kind, indicates a significant decrease in a concern for fairness (defined as a willingness to share a pot of money) when a participant in a bargaining transaction acts as an agent for another and owes a duty to maximize the return to the principal. We find no …

Reclaiming Corporate Law In A New Gilded Age, Kent Greenfield

Kent Greenfield

Corporate law matters. Traditionally seen as the narrow study of the relationship between managers and shareholders, corporate law has frequently been relegated to the margins of legal discussion and political debate. The marginalization of corporate law has been especially prevalent among those who count themselves as progressives. While this has not always been true, in the last generation or so progressives have focused on constitutional law and other areas of so-called public law, and have left corporate law to adherents of neoclassical law and economics. To the extent that the behavior of businesses has been a matter of concern, that …

Gradgrind’S Education: Using Dickens And Aristotle To Understand (And Replace?) The Business Judgment Rule, Kent Greenfield, John E. Nilsson

Kent Greenfield

This article uses literature and philosophy to help explain and critique existing corporate law doctrine. Starting from Charles Dickens's Hard Times, the article provides a new explanation for one of the great puzzles of existing corporate law doctrine, the coexistence of the strict duty of management to maximize profits and the "business judgment rule," the practice of courts to review management decisions with great deference. The article argues that the business judgment rule is a necessary corrective to the irrationality of the underlying duty to maximize profits. The article makes this argument by analogizing corporate law to Dickens's character of …

Moderator, Secularism, Islam, And Democracy, Kent Greenfield

Kent Greenfield

No abstract provided.

The Herman Cain Blame Game, Kent Greenfield

Kent Greenfield

No abstract provided.

The Hidden Costs Of Choice, Kent Greenfield

Kent Greenfield

No abstract provided.

Interview With Professor Kent Greenfield About His Book “The Myth Of Choice: Personal Responsibility In A World Of Limits”, Kent Greenfield

Kent Greenfield

Professor Kent Greenfield’s newest release, The Myth of Choice: Personal Responsibility in a World of Limits (Yale University Press), is a broad-reaching view of the dynamics of choice.

Greenfield’s book begins with his knowledge of law and then ranges widely, tapping areas as diverse as sociology, the study of brain activity, and religious freedoms. He draws on scholarly commentary, news reports, political research polls and his own life decisions to complete the picture of choice and its many dimensions. Examining choice and its influence on public policy and legal theory, The Myth of Choice serves as a catalyst to challenge …

When Kids Are Left In Cars: Blame The Brain, Kent Greenfield

Kent Greenfield

No abstract provided.

Constitution Day, Happy Illegal Holiday!, Kent Greenfield

Kent Greenfield

No abstract provided.

The Debt Ceiling Impasse: It's Madison's Fault, Kent Greenfield

Kent Greenfield

No abstract provided.

Reforming Limited Liability Law, Kent Greenfield

Kent Greenfield

No abstract provided.

The "Sweat Lodge Guru" Guilty Verdict: Recognizing The Deadly Influence Of Authority, Kent Greenfield

Kent Greenfield

No abstract provided.

Panelist, Beyond The Quarterly Report: Managing Risk And Creating Long-Term Value Through Corporate Responsibility, Kent Greenfield

Kent Greenfield

No abstract provided.

Moderator, Globalization, Corporate Accountability, And The Courts, Kent Greenfield

Kent Greenfield

Moderated panel of scholars and practitioners on the corporate exposure to tort liability for involvement in human rights violations.

France And Belgium Have Banned The Burqa. Should America Follow Suit?, Kent Greenfield

Kent Greenfield

No abstract provided.