Daniel J.H. Greenwood

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Discussing Corporate Misbehavior

by Daniel J.H. Greenwood(1)

forthcoming 2005, Brooklyn Law Review (invited essay, Symposium Issue-Brooklyn Law School/Alfred P. Sloan Foundation Conference on Corporate Misbehavior by Elite Decision-Makers: Perspectives from Law and Social Psychology).

printable (pdf/adobe) version.

I.

Corporate law remains thin, but corporate law scholarship is thickening. This conference is both a symbol of and a major contribution to that process. We are stepping beyond the narrow models of rationally maximizing fictional shareholders and purely self-interested managers competing in an evolutionarily determined and purely individualistic market inevitably maximizing social wealth through the pursuit of private profit. Instead, here are richer views infused with the insights of group and individual psychology, recognitions of institutional realities, and broader conceptions of the social good.

American corporate law restricts itself to a limited view of the public corporation. In state corporate law, a corporation consists of little more than directors and shares, with the occasional cameo appearance of creditors of a firm near bankruptcy, or managers as the secret doppelgangers of the inside directors. The issues of central concern to the law are similarly restricted: the formal voting rights of shares, the ultimate power of the directors to manage the corporation and the limited exception granted to shares to sue derivatively, the directors’ limited fiduciary duties to the corporation and its shares, and some cameo appearances of other legal values when shares and directors are at odds over takeovers. Even in these areas, corporate law is famously “enabling,” a “vast empty edifice of girders twisting in the wind.”

When corporate law has entered the normative thicket, it has usually been to enforce the thin view of its purposes: to define shareholder interests as the interests of the role, rather than the human beings who inhabit it, and to force managers to restrict their view of the corporation’s interests to those of these legally constructed fictional shareholders.(2) ERISA and the fiduciary and agency rules regulating the decision-makers for most institutional shareholders (that is, the holders of most shares), often require them to act as if their only interest in the corporation or society as a whole were maximized returns to shareholding. More importantly, however, corporate law gives directors and shares the right to sell corporate control without consent of other corporate constituencies. Combined with the anonymous market for publicly traded stock, this creates vast market pressure to run the firm in the manner most likely to be rewarded by the stock market. And (at least since the demise of the conglomerate fad of the 1960s) the stock market has generally bid up the stock prices of corporations that demonstrate a decent respect for the opinions of institutional shareholders and a keen focus on identifying corporate interests with stock market interests.

Other areas of the law regulate other aspects of the public corporation, but generally without consideration of the specific characteristics of corporations. Securities law, in general, protects securities holders as consumers of a product produced by the corporation, creating rights to information in the manner of a truth-in-packaging law. (Even the Williams Act, which edges into regulation of the firm’s internal decision-making processes even while retaining the form of consumer protection by disclosure regulation, strikingly avoids substantive discussion of how, by, and for whom corporations are run.) Environmental law, constitutional law, criminal law, labor law and so on, generally regulate the corporation as a “person”, ignoring its collective and corporate character and subjecting it to norms created for citizens without much consideration of special issues of organizational behavior.

But public corporations are not individuals. They are large bureaucratic organizations, no more likely to respect individual rights or needs than the large bureaucratic organizations of the state, and generally a good deal less responsive to the views of the majority or those they affect. General American law starts from a basic distinction between state and citizen, public and private – but we have placed our large public business corporations on the private, citizen side of the divide, as if we needed rights for them rather than rights against them, or as if we existed for their sake rather than they for ours. Since the fundamental foundation of the individualist liberal political theory on which our polity is based is the recognition that groups and organizations often do not act as the individuals in them would like them to, this conflation of corporations with people is strange, to say the least.

Corporate law scholarship in the last quarter of the millennium both celebrated the limited protection the law offers and narrowed its own concerns even further.

Its psychology began, and usually ended, with a model of rational profit maximizers borrowed from neo-classical economics. Shareholders were viewed as one-sided fictions, modeled as if their only interest or value were increasing the value of the stock they hold in a single corporation – as if, that is, they were undiversified aliens or colonial occupiers with no interest in the society they sought to exploit. Directors and managers were reduced to self-interested cynics who must be coerced or paid obscene amounts to do their jobs or even observe minimal professional norms. Other employees simply disappeared altogether, except perhaps as tools to be maximally exploited.

Its normative concerns sometimes seemed restricted to no more than a debate between advocates of idolatry -- viewing every idiosyncrasy of legally regulated markets as sacred -- and plutocracy – seeking to ensure, market or no, that an ever increasing slice of the corporate pie was served to the capital markets.

And in its models, the firm itself seemed at times to lose its corporeality, as “nexus of contracts” models made the institution invisible, no more than a collection of individuals meeting in a collection of moments to exchange and then depart again into the “woods of America … perfectly in a state of nature.”(3)

In the last decade, however, we have moved into a new era. Corporate law scholars have begun to recognize that we must take into account the learning of real psychology, that we must understand group interactions outside the narrow bounds of neo-classical individualism, that the organization has behaviors and meanings that can no more be reduced to the individuals in it than government can be reduced to the governed, that ethical issues may be more complex than simply not stealing from shareholders (and stealing as much as possible for them).

II.

Prof. Linda Trevino’s contribution summarizes the research she and others have done demonstrating that the CEO’s behavior critically influences the ethics of the firm. When the CEO acts ethically and creates institutional structures that make clear to other employees that the firm values ethical behavior, the firm acts more ethically.

Over the course of the last three decades, CEO pay has risen astronomically in the United States, from perhaps 24 times the average employee’s pay in 1965 to 300 times by the turn of the century.(4) With our CEOs now paid so much more than the rest of us (and than comparable CEOs in other countries(5)), a cottage industry has followed defending the high compensation. The most obvious defenses follow directly from the standard neo-classical model of wage setting for any employee: A profit-maximizing company would hire someone only if their pay is lower than their contribution to the firm’s profit; ergo, it seems to follow, high CEO pay must mean high CEO productivity. Thus, the claim goes, American CEOs are paid more than foreign ones or their predecessors because they are doing a better job.(6)

But with high compensation should come high responsibility. It has been startling, then, to see the alacrity with which the CEO’s on the “perp walk” (as Prof. Trevino puts it) have adopted a defense based on ignorance. Apparently, we are to believe simultaneously that CEOs earn their enormous compensation through their ability to make the organization more productive and that they really have no idea what is going on in their organizations, even at the basic level of whether the organization is actually producing or just pretending to. Ignorance is a defense, even for those whose business is knowledge. As in My Lai or Abu Ghraib, the upper echelons deny any connection to crimes committed by their underlings: those designing institutions claim entitlement to assume that those below them will act appropriately in all circumstances.

Prof. Trevino responds that, at least in the corporate world, it just ain’t so. Whether they like it or not (and whether or not it fits into the thin theories of corporate behavior based on rational maximization), institutional ethics are largely under CEO control. CEO behavior matters. CEO talk matters. CEO silences matter. Organizational structures implemented by CEOs matter.

Prof. Trevino maintains that most corporate actors are not fully autonomous rule- following ethicists unaffected by the norms and expectations of those around them. Instead, most adults tend to conform their behavior to the norms they believe are expected of them. Since CEOs are instrumental in creating those expectations and the institutions that back them up, they are instrumental in determining how employees will behave.

Corporate law treats ethics as uninfluenced by its concerns. Companies and their employees may follow the rules or they may not. Corporate law and criminal law alike look just to the results—if things don’t work out, the firm will not be competitive or the regulators will stop it. But Prof. Trevino’s work, like the other work presented at this conference, suggests that we needn’t be so agnostic. We know how to influence the degree of corporate ethical behavior, and we could mandate better processes than the ones we allow.

III.

Prof. John Darley emphasizes the importance of seeing the firm as a group of people.

Corporate law generally thinks of the corporation to be a commonwealth of dollars. Shares, each representing an equal equity investment in the firm, are the citizens of this polity; it is they and they alone who are granted the political right to vote, entitled to demand equality, or barred from immigration and emigration without consent of the whole. Shares and shares alone are given the right to invoke the assistance of the law to insist that the firm consider their interests; in extreme versions of corporate law ideology (and in Revlon mode as a matter of corporate law) only the interests of shares ought to be considered.

In this picture, even the shareholders, in their full humanity as pensioners, employees, CEOs or progeny of the robber baron elite, citizens or aliens, parents and children, and holders of various religious, ethical or aesthetic values, ultimately disappear. The people who are the corporation in the ordinary course—employees—never appear in the first place. They are the concern of some other area of law.

When corporations go bad, however, the firm itself comes back into focus, not as a evanescent nexus of contracts or as a commonwealth of shares, but as a sociological entity with actions and values that cannot be reduced to those of its component parts.

Prof. Darley starts then, from the firm as a group of people working together, not a pot of money managed on behalf of its “owners.” His puzzle is that people in firms seems “more recruitable into corrupt practices” than seems reasonable. His explanation is a combination of normative drift, group loyalty and social roles that value ‘playing rough’.

The normative drift argument is a variant on the famous claim that a frog won’t jump out of a pot if you heat it gently enough. Because it can only identify incremental change rather than absolute states, it feels perfectly comfortable until it cooks. Here, the argument is that many scandals begin with a small deviation and proceed in small increments, so that at each point the participants can see the next step as merely an insignificant addition to a commitment already made. They start out with the typical lawyer’s rationalization – if “x” is permissible, than “almost x” must also be, since the two are so close as to be indistinguishable. By the point that no longer works, they shift to the criminal’s commitment: I’m in so deep already that a little more won’t hurt. This story is important, especially for law students, since it is often the lawyer’s role to turn the heat up gently by pressing the interpretative limits of regulatory norms -- but also to remember that when you press far enough, even in increments that are each justifiable, you generally end up cooked. Too many clever arguments without enough grounding in extra-professional norms, ultimately will send lawyer or client to jail.

But it is on the latter explanations that I want to focus here. Here, Prof. Darley is telling us not about people who have lost their normative way but about specific choices that seem correct to them, but wrong to us. Sometimes, as he points out, they are even consciously understood as moral dilemmas, not invisible at all but great and traumatic, in which the employee must choose between loyalties. On Prof. Darley’s view, corporate criminality partakes of classic tragedy. Pity the person who must choose between friend and country; only doom can result.

IV.

Corporations exist on the border between two conflicting sets of norms, and the issues raised by this conference can be seen as resulting from those conflicts. The conflict is irresolvable, but by bringing it into the open we can work towards a better mediation. Corporate law, however, has largely concealed the conflict.

On the one hand, we have the market, governed by contract law. The basic norms are of John Locke’s state of nature and Adam Smith’s market: disinterested strangers treating each other as means to their own ends, not as Kantian ends in themselves. No loving your neighbor—or even your child—as yourself here; this is the world of every man for himself, not one for all and all for one. To be sure, trade and the division of labor ultimately result in more stuff for everyone. However, any given bargain is inherently competitive: The more you get, the less I do. An invisible hand may assure that my selfishness works to the common good (at least under the right conditions), but in the norms of this role, the common good, or indeed your personal happiness, is important to me only to the extent that it makes me more likely to get what I want. Even norms as seemingly fundamental to the market as honesty are justified only in the self-centered utilitarian calculus of personal interest. Good bargainers never tell the whole truth about their intentions or concern themselves with the needs or expectations of the other side, except as tools to their own ends. The person who spots a value that others have missed and takes advantage of it—buying low, selling high—is an entrepreneurial hero, not a deceitful cheat.

The market is a world of symmetrical autonomy. In the market, we, or at least our dollars, are all equal and all the same. Markets presume that their participants are self-sufficient adults, aware of what they want, able to balance their needs, desires and capacities, negotiating in their own interest from a position of reasonable independence. Price discrimination is presumptively improper; equal products ought to command equal prices. The market normative system is radically disrespectful of persons, status and relationship: Money is green regardless of pedigree; opportunities should be taken regardless of tradition; cooperation is bought and sold. The anonymous stock market is the paradigm; the ideal of blind meritocracy its extension.

In the market, obligation stems mainly from contractual promise, and extends only so far as the promise did. This is not a world of solidarity or natural obligations. Your humanity or fellow citizenship has only a limited negative claim on me, that I not violate your individuality by violence or fraud, narrowly understood. Market participants are free, of course, to care for others, but to do so in public is nepotism or favoritism—a violation of market norms even when not illegal. In the public sphere, if you take the needs of your bargaining counterpart as values in themselves rather than tools to be used to overcome him, you are either discriminating or just a mark, a fool or a sucker. The goal of arms-length bargaining is to get as much as you can while giving as little as you can, limited only by the rules of the game.

But if firms hire, fire, buy and sell in the world of the market, they produce in a different arena altogether. As Coase pointed out, were firms just markets, they wouldn’t exist.(7) Markets are better at being markets. Firms exist because they can do things that markets can’t do well. In particular, they replace disinterested contracting with cooperative planning.

Inside the firm, market norms disappear. Instead, the fundamental legal norm governing employees is agency, with its strongly asymmetrical fiduciary obligations.

An agent is required to work for her principal. Instead of maximizing what she can get from a stranger (and relying on an invisible hand to turn this seemingly selfish behavior into something socially useful), she must take the principal’s ends as her own. Much as a mother is better off when her child is better off (without a contractual expectation of payback) or a patriot wins when the nation wins (even if he is killed in the process), the norms of agency demand that the employee see the employer’s good as her own. She must put aside her self-interest (in the market, contractual sense) and concern herself only with the interests of the other.

Agency is profoundly opposed to the symmetrical autonomy of market’s strangers. The market ideal is of blindness to personal characteristics—a common carrier open to all comers, an anonymous stock market, a medieval fair in which ancestral enemies charge the same price to lords and peasants alike. In contrast, agents must always remember who is who. To her principal, the agent owes a fiduciary duty; that duty requires her to work for the principal and against (in the market sense) all others. Employees work for employers, not the other way around: The principal gives orders and the agent takes them; the employee must set aside her own interests but the employer need not. Inside the organization, you obey or you cooperate; with outsiders you compete. Relationships and status are essential; until you know who is agent and who principal, who boss and who subordinate, who insider and who outsider, you know nothing at all.

This world of agency is defined by group loyalty and team spirit. The firm should be a team, with each agent working for the good of the whole. Instead of the morality of independence, equality and autonomy, here we have the morality of self-abnegation, sacrifice, caring and unity. We work together, to promote our collective good (against the others). This is a world not of strangers but of families.

We cannot privilege one value system over the other. Nor can we live by either alone. Market disinterestedness underpins bureaucratic regularity and offers liberation from feudal oppression, but threatens to descend into the Hobbesian war of all against all exemplified by the free market of post-communist Moscow or civil war Beirut. Agency status and mutual concern is the foundation of patriotism and social justice, but also of nationalist riots, mob violence, prejudice and group think. Capitalist affluence and democratic liberal freedom alike depend on both existing and each restrained.

When the values slip out of their proper spheres or when the spheres overlap, scandal results. A CEO who bargains for as many stock option grants as he can get or who sells his stock when the market is up is acting according to market norms. When he announces that the company is really doing well, that the situation is terrific, he is bluffing in the way that contractual bargainers always act. When he fires employees for no reason other than maximizing corporate profit, or treats their pensions not as a social good but as a cost to be cut in any way legally permissible, or encourages his traders to use the rules of a semi-deregulated market to generate private profits at the expense of the California public, he is acting quite properly if the proper norms to follow are those of the disinterested market. In a market, strangers may be exploited to the maximum extent permitted by law. Indeed, if he cooks the company’s books to make it appear to be worth more than it is, he may be acting as a faithful agent, putting aside his own interests (and integrity) in order to aid the firm and its shareholders.(8)

In these scandals, the problem is not lawless selfishness, corruption or poorly socialized sociopaths. The evil is not normlessness but the wrong norm in the wrong place at the wrong time. It is a complex problem that will require complex analysis and complex solutions.

Prof. Darley points out the “alternate identities on offer” in our business corporations, using the example of Michael Lewis’s experiences as a bond trader: Lewis was shocked to discover that in his employer’s view, his client was the bond desk, not the customer. The team is the company, and team loyalties trump legal responsibilities. Note, though, that the issue here is not selfishness or greed (at least not Lewis’s). Lewis was being asked to be loyal and self-sacrificing – but to the company, not his client. The ethical breach was not normlessness, but the wrong norm; not selfishness, but the wrong team. The alternative identities available include not just the Commedia del’Arte trickster, but the market hard bargainer, the capitalist entrepreneur, the team player and the loyal professional.

V.

Combining Prof. Trevino’s contribution with Prof. Darley’s, we can take the point further. Corporate wrongdoing often results from a conflict of norms, rather than a simple refusal to act ethically. In these cases, the problem is not “bad apples” rejecting the norms they are expected to apply but something close to the opposite.

To be sure, employees sometimes place their own self-interest above their obligations to others – Bering Bank failed when a trader made a bad trade and then covered it up rather than admit to his mistake, and many of the top executives who falsified their books profited directly from the artificially high stock prices resulting from their lies.

But these articles by Prof. Trevino and Prof Darley suggest that this type of corruption—variants on embezzlement—is not the most useful paradigm for corporate wrongdoing. Instead of focusing on outright criminals, we should focus on ordinary people caught in a web of conflicting norms—norms that are mediated, explained and ultimately enforced by corporate structures under the control of the CEO.

The contradictory norms are fundamental. First, we operate under a background regime that glorifies self-help, even at the expense of others. The basic market norm encourages hard bargaining, thinking of yourself and your needs without any consideration of others except as tools to your own ends: that is what we call arms-length bargaining, and success at it is success in the business world. Competing hard is a good thing, not a bad one.

Of course, at the same time that we glorify strong competitors, we expect them to observe certain limits to the competition. Athletes should play fair, not beat up their opponents or take performance-enhancing drugs. Businessmen should create better products for less, not lie about the product, falsify their books, or shake-down competitors. These rules act as constraints or outer limits to a game otherwise structured by a different set of norms.

Predictably, a certain number of people will fail to observe the limits, getting so caught up in the game that they forget that winning is not everything. Basketball players foul, seemingly patriotic commanders condone or order torture, publicity or advertising writers spin, and accountants stretch. But they do so to benefit the team, not necessarily to benefit themselves. Perhaps they are “bad apples” in the sense that they have lost their sense of where playing hard meets playing fair, but more importantly, they may also be altruistic team players—they are cheating for the glory of the team, not themselves. Perhaps this is why we often seem so conflicted about punishing them.

Second, corporations create their own internal norms of accepted and expected behavior. To be a professional is to put aside your own beliefs and adopt the goals of your client. Agency law principles (and their ordinary morality equivalents) say the same thing for employees: on one view, an employee, on the job, acts ethically, properly, if she puts aside her values and adopts her employer’s. Enron famously took this to the logical extreme, telling its employees that the way to be team players was to compete as hard and ruthlessly as possible – for themselves as individuals.

Corporations, like other groups and bureaucracies, can be structured to maximize group solidarity or not. In this age of the imperial CEO, the corporate world seems especially intent on creating solidarity in the work force. Managers train in the techniques of creating team spirit, team norms, team ethics and team loyalty. Whether by Tom Tyler’s procedural justice, tent-revival meeting style horation, or simple us v. them competition, well-run firms work to create and maintain norms of employee loyalty to the firm.

Group loyalty has well-known problems—most importantly, for our purposes, group think. Tightly knit groups tend to develop their own internal norms, as Prof. Darby points out, with most group members recreating themselves to fit their understanding of the demands of the group. But a group that adopts a uniform and closed analysis of the world will be poorly equipped to deal with changing external challenges. When everyone thinks the same way, no one will see the errors in the standard thinking, whether the problem is false analysis of the external world (seeing weapons of mass destruction where there are none, or not seeing competitive threats where they are clear) or normative drift.

With the collapse of the unions, the main external countervailing force to corporate loyalty is the corrosive individualism of the market itself. Employees are not only members of the team but also potentially out for themselves in a market governed by self-interest, not team spirit and mutual responsibility. Thus, market norms suggest, as the Wall Street Journal’s career management column regularly does, that the intelligent employee will always focus on creating the appearance of team loyalty without succumbing to its reality, and, as Dilbert teaches each day, a cynical distrust of anything “the Man” might say. These market norms limit the power of group loyalty and group think, but may not do so in particularly useful ways. Cynical self-interestedness leads to conformity, not to the sort of brave dissent that functional institutions need.

One aspect of corporate wrongdoing then, is the difficulty of mediating fundamentally contradictory norms. We demand that corporate agents cause the corporation to compete hard, treat the people they contract with at arms length as tools to the end of profit, set aside their personal political and moral beliefs while on the job in order to do the work they are paid for. We demand that employees be team players—and make clear that the team is the firm, regardless of the needs of the greater society. Paradoxically, that is, we demand that employees altruistically and selflessly serve—but the cause they are to serve is simply self-interestedness. It is not surprising that some fail at this difficult game.

Moreover, one key way in which we identify ethical behavior in ourselves and others is self-denial. Kant claimed that the highest form of moral behavior is that which does not benefit the actor at all. I suspect he was wrong, but the kernel of truth is clear. The clearest instance of unethical and unprofessional behavior is pure self-interested selfishness: stealing from the client.

Team players act on behalf of the team, not themselves. When the subcontractors described by Prof. Darley decided to falsify test results, they knew they were risking their personal careers and freedom. They were setting aside their own interests in favor of the interests of a whole greater than themselves. Prof. Darley describes this as adopting a social role and proposes various villains. But in a very simple and clearly understandable sense, the role adopted is simply the good and loyal team player. This is ethical behavior—self sacrifice for a cause. Good employees don’t shirk and they don’t tattle either.

The problem, then, is not (only) bad apples or selfishness, insufficiently socialized individuals who do not understand how to play fair. It is also morality in the cause of the firm—a type of local patriotism. Self-sacrifice for profit. Setting aside your own moral views to do what the job requires, distasteful as that may be. Enron’s traders viewed themselves as heroes, and on this level they were right: heroes fighting to oppress the ratepayers on behalf of the firm and its shareholders.

We have then this paradox. If the purpose of the corporation is to make a profit, as many have claimed, then the way that an employee fulfills her ethical obligation on the job is by promoting the corporation’s profit. But despite Milton Friedman’s famous claim that the ethical obligation of business is profit, placing profit above all is precisely the definition of unethical behavior for the corporate context.(9) Ethical behavior in the corporate context means understanding that loyalty, honesty, relationships with your customers, your suppliers, your employers, your country, even the earth itself, are sometimes more important than short-term (or even long term) profits. Ethical behavior on the individual level means knowing when to buck the group norms, when to stand up for one normative system in opposition to another, when to violate the agency norm of setting aside your own sense of right and wrong and to selfishly follow your own lights; on the institutional level it requires building in safeguards against group think, limits to the pursuit of short-term profit, commitments to particular relationships and focus on products and services rather than stock market prices.

When an entire institution goes bad, it is not the result of a “bad apple.” Rather, it is the result of employees or corporate agents doing exactly what they think they are supposed to do under the circumstances, even when they have strong misgivings about whether the actions are proper from a societal point of view. As Prof. Darley notes, in several of the most famous cases of corporate wrongdoing, the employees who did the bad acts were perfectly aware that they were acting improperly according to social norms, and even worried about criminal liability. The point is, however, that as they took actions they knew were wrong – falsifying test results, falsifying financial data, distorting the California electric market to “steal” from Aunt Millie – these employees saw themselves as acting properly within their job. Much as soldiers learn to kill in the cause of the nation, Enron’s employees learned to pillage in the cause of the firm. The moral thing to do, at least so long as you have not resigned from your job, appeared to be to set aside individual morality and act in the interests of the team, to do what was necessary to win.

Team loyalty and internal corporate norms, that is, trumped national patriotism and national norms. Indeed, in the end, they even trumped profit: Profit, like happiness, is one of those things best achieved by aiming elsewhere. The exclusive emphasis on short term profit in each of the institutions caught up in the great turn of the century scandals is not accidental. In the end, a corporation can only out-compete markets by being good at things markets are not good at, and the most important of those is long term relationships. But short term profit demands treating all relationships instrumentally, and that, in turn, destroys them, and with them, the basis of future profits. Laser-like focus on profits, as Enron demonstrates, is fundamentally incompatible with actually earning them.

From a regulatory perspective, several consequences follow.

First, we should not fall into the mistake of thinking that the problem is centrally one of sociopaths or should be dealt with by criminal law. Soldiers kill but they are not murderers (unless they are soldiers for a particularly evil state). Many of our corporate wrongdoers, particularly at the lower levels, are not motivated by selfishness but by selflessness. This means that obtaining convictions under conventional criminal law is going to be difficult: Some of the worst malefactors will be able to demonstrate that they were not thinking of themselves as they did their destruction. In the manner Hannah Arendt called the “banality of evil,” they were good bureaucrats, doing their jobs as they understood them, according to the norms of the job. Criminal law looks for corruption—self-interest where loyalty is required—but the problem here may often be loyalty where rebellion was needed.

Second, both at the legal level and within the organization, we need to think harder about what works and what does not. Corporate law is silent on ethics. The state laws that create our corporations and govern their basic decision-making processes do not require any consideration of the claims of stakeholders, society as a whole or even the real human beings who own shares. We rely on the price mechanism and external regulation to control our corporations, but build nothing into the firms to prevent them from seeking to subvert those systems or to induce them to explicitly consider any countervailing values.

Corporate law scholarship can most usefully aid this project of creating a more profitable and more committed corporate sector by exploring the ways in which the law structures our existing markets, to their benefit and detriment, rather than pretending that markets somehow exist abstracted from a legal framework. We have no agreement on how to resolve the conflicts among our normative systems (and perhaps such agreement is impossible). But we can have a fuller discussion of what it means to be ethical, of when market pressures ought to be resisted, of short term and long term conflicts, and so on, if we escape the trap of market determinism and the unfounded faith that in the end markets, including markets for law, will automatically take us where we want to go.

Corporate law itself could start by abandoning the internal affairs doctrine, so that a genuine competition between the states, seeking to affect market incentives instead of simply pandering to them, can develop. Once the larger states begin to take responsibility for the governance of their largest economic entities, a thicker corporate law might move us in the direction of a more functional set of norms, practices and incentives.

Specifically, corporate law does not require any internal compliance mechanisms. Although it eventually concluded that it might be a breach of fiduciary duty for a bank to hand cash to tellers with no safeguards, no parallel requirements require an ethics manager or an ombudsman. We know that group think is a problem in all bureaucratic organizations. Now, legislatures need to consider mandating ombudsmen or similar parallel reporting systems to lessen the likelihood of group think and to catch outright corruption. And courts need to consider whether corporate law fiduciary norms require more than avoiding unprofitable illegality while maximizing profit—whether, indeed, it isn’t a corporate law requirement that firms observe the spirit and not merely the letter of our other regulatory schemes, or whether profit ought to be maximized at all. Perhaps part of our problem is that too close a focus on profit maximization focuses firm actors on the wrong parts of our normative systems and, in the end, is not profit maximizing at all.

We need an external reporting system, modeled after successful practices of the airline accident reporting system or the CDC’s emerging hospital error reporting systems, to generate systematic knowledge about which ethical breaches regularly repeat and under what circumstances.

We need restrictions on corporate interventions in the regulatory system. An organization that has as its central mission the pursuit of profit restrained only by the limits imposed by law will always have a tendency to subvert the restrictions on it. Business corporations by their nature need to be policed; we need to keep them out of the business of eliminating their policemen.

We need countervailing power structures within the corporation. Profit is best pursued indirectly, by commitment to the products and services that create demand, together with commitments to the relationships that make a corporation a viable alternative to markets. Currently, the corporate decision-makers—upper management—are answerable to a board elected only by shares. The short-termism and narrow focus of the stock market become overly influential almost automatically as a result. Boards need to have built-in pressures to respond to other values and other commitments as well.

We need limits on CEO compensation relative to ordinary employees for the simple reason that too big an income gap automatically creates distance and the “out of touch” CEO identified by Prof. Trevino as the source of ethics problems and bad business decisions alike.

And because any reform that empowers employees or relationships relative to the stock market will tend to reduce the constant revolution of commitment-less capitalism, we need to work to lessen some external sources of friction in our system. We need to allow our industrial unions to organize by industry rather than by plant, so that they can stop being a lobbying force for obsolete plants and so that managers do not have a constant incentive to churn physical capital simply to union bust. We need to separate health and retirement benefits from specific firms for exactly the same reason, so that employees can change jobs more readily and less traumatically and so that employers don’t function under constant stock market pressure to find new and creative ways to abandon past commitments.

But most of all, we need to recognize that market Darwinism, like the natural kind, can lead to success, to extraordinarily strange, creative and unexpected uses of existing resources (the panda’s thumb, the bat’s wing), or simply to extinction. Fitness in a Darwinian world means only that you’ve survived so far. Stock market success comes from maximizing stock price, not from maximizing ethics, human decency, or even wealth—except to the extent that we can figure out how to make stock prices reflect human values. If we are to harness the wonderful power of the market to our own good—to human values of well-being, justice and the good life—we must always remember that the invisible hand is ours, and that if it is leading us in directions we don’t like, we can redirect it elsewhere. The choice is not between market or law, but between legally regulated markets that mandate or encourage us to abandon our other commitments and different regulation that could better harness the power of the market to work for us. We are the masters; the question is how to use our mastery.


1. ©2005 Daniel J.H. Greenwood, Prof., S.J. Quinney College of Law, University of Utah. My deepest thanks to Jim Fanto, Larry Solan, Brooklyn Law School and the Sloane Foundation for organizing and making possible this fascinating conference. http://law.hofstra.edu/greenwood.

2. As in Dodge v. Ford (declaring that the purpose of the corporation is to earn returns for its shares, regardless of the expressed views of the majority shareholder); Pillsbury (declaring illegitimate attempt of shareholder to cause corporation to consider values other than profit-maximization); Revlon (requiring managers, under limited circumstances, to pretend that shareholders have no interests other than the value of their shares, and to run the corporation in those legally defined interests). More often, however, corporate law’s business judgment rule removes the issue of corporate purpose from judicial purview.

3. John Locke, 2d Treatise on Government, ch II § 14, following Thomas Hobbes, Leviathan, ch XIII (describing state of mutual disinterestedness – war -- between individuals in America and anywhere else “where there were no common Power to feare”). As Hobbes contends, in the absence of relationship or government,

"[t]o this warre of every man against every man, this also is consequent; that nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice have there no place. Where there is no common Power, there is no Law: where no Law, no Injustice. Force, and Fraud, are in warre the two Cardinall vertues." Id.

Hobbes’ portrait of man in the state of nature is closely related to the usual models of motivation used in classic late 20th century corporate law.

4. Lawrence Mishel, et al., State of Working America 2004/2005 212-216 & figure 2Y. See also, Susan Stabile, One for you, 36 U. Mich. J.L. Ref. 115, n 4 (stating that in 2000, average CEO compensation was 531 times the pay of the average blue collar worker). Another way to see the same phenomenon is that average hourly wages are up roughly 11% in real terms since 1989 (calculated from Mishel, table 2.1), while average CEO compensation increased 342% in that period (Mishel, table 2.46).

American CEO pay is almost as unequal as American income generally. Accordingly, average (mean) CEO pay is vastly higher than median CEO pay (in 2000, $11.194 million vs. $3.101 million (Mishel, at 213)). Median CEO compensation of $3.6million in 2003 (Mishel, at 213) was 336 times the $10,712 a full time worker would earn at minimum wage ($5.15/hr, 8 hours/day, 260 days/year) and 101 times average 2002 wages of $35,424 (Mishel p. 113).

5. Stabile at n. 22; Mishel at p 214 and table 2.47 (stating that US CEOs are paid roughly 3 times as much as their counterparts in other developed countries).

6. See, e.g., Randall S. Thomas, Explaining the International CEO Pay Gap, 57 Vand. L. Rev. 1171, 1172 (2004) (noting that US executives are paid more than their foreign counterparts and explaining it as reflecting greater productivity). For further discussion, see Daniel J.H. Greenwood, Enronitis, 2004 Col. J. Bus. L. 773 (2004).

7. R.H. Coase, The Nature of the Firm, 4 Economica (1937) reprinted in R.H. Coase, The Firm, The Market and the Law (1988) 33-57, and in The Nature of the Firm: Origins, Evolution and Development (edited by Oliver E. Williamson, Sidney G. Winter) (1991).

8. The court in Kamin v. American Express accepted precisely this explanation of a corporate manager’s decision to account for a transaction in a way that cost the company real money but made its profit appear greater, and therefore, if the stock market was deceived, would keep its stock price higher.

9. Even Friedman acknowledges that pursuit of profit must be restrained by external legal norms of “deception and fraud,” although he does not explain why these violations differ from the additional ethical obligations he rejects. “There is one and only one social responsibility of business–to use it resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.” Milton Friedman, The Social Responsibility of Business is to Increase its Profits, The New York Times Magazine (September 13, 197