Managers vs. Owners: The Struggle for Corporate Control in American Democracy deals with a subject of profound importance: understanding the place of the modern corporation in a democratic society. This latest volume in the acclaimed Ruffin Series in Business Ethics describes how the balance between corporate power and government regulation has changed with the interests of society as a whole. The first section examines the debates over the rules that individuals or organized groups would agree to follow in their interactions (...) to accrue social advantages. The second section looks at management's point of view and tells how law promotes the need for managerial collective action and provides a vocabulary for articulating management as a profession. The authors conclude by looking at the impact of collective investor action - especially institutional investors - on the efforts by managers to preserve their autonomy. This examination of the inherent conflicts between the interests of corporate owners, the interests of the larger society, and the interests of managers who run corporations will be essential reading for students, scholars, and professionals concerned with the place of the large corporation in a democratic society. (shrink)

Abstract:In providing an ethical guide for managers, the Clarkson Principles offer one part of a possible professional code, namely, that managers have a fiduciary duty—a duty of loyalty of the corporation’s stakeholders. However, the Clarkson Principles contain little advise for managers when they act politically to fashion the regulatory framework in which stakeholders negotiate. When managers participate in these arenas, I argue that they ought to assume a second fiduciary duty—a duty of loyalty to fair bargaining. Where the first duty (...) of loyalty pertains to the firm’s “constituents,” the second refers to the firm’s “constitution”—to the rules by which the firm’s stakeholders bargain and to the background conditions that distribute advantages. Together, these two fiduciary duties establish the large good—development as freedom—from which a managerial profession can mature. (shrink)

Stakeholder theorists distinguish between normative stakeholders, those who gain moral standing by making contributions to the firm, and derivative stakeholders, those who can constrain the corporate association even though they make no contribution. The board of directors has the legal authority to distinguish among these stakeholder groups and to distribute rights and obligations among these stakeholder groups. To be sure, this stakeholder formulation appropriately seizes on the firm’s voluntary, associative character. Yet, the firm’s constituents contribute assets and incur risks to (...) participate in market, economic activities. And, as such, the firm’s “stakeholders” must share an imperfect language to assist in making two key economic decisions: (1) who are the legitimate and who are the derivative stakeholders; and (2) who should sit on the board? Still, stakeholder theorists have good reason to be skeptical of neoclassical economics. Its assumptions that all act opportunistically and that all can calculate rationally and fully hardly correspond to studies on the managerial experience of corporate coordination. However, advances in behavioral law and economics now provide a cogent economic logic that readily fits into a stakeholder mode. In brief, we argue that (1) the firm’s economic purpose designates legitimacy to core stakeholders, to those who add value, assume unique risk, and can incur harm; (2) the board serves as the principal who coordinates these core stakeholders to sustain competitive advantage and new wealth creation; and (3) state incorporation law, Delaware in particular, reinforces the board’s function. These, in turn, supply selection criteria for board membership. We aim to synchronize concepts from behavioral law and economics with stakeholder theory. (shrink)

This paper explores the historical American political values which have shaped modern financial theory and agency theory. Financial agency theory's intellectual roots are shown to be located in the liberal tradition which espouses the instrumental nature of property and property rights. The paper also argues that financial theorists should recognize that, historically, economic efficiency was not a value or end in itself but merely a means by which more fundamental social goals might be achieved.