Corporate Governance as Privately-Ordered Public Policy: A Proposal

Abstract

In this Article, we show how our society can use corporate governance shifts to address, if not entirely resolve, a number of currently pressing social and economic problems. These problems include: rising income inequality; demographic disparities in wealth and equity ownership; increasing poverty and income insecurity; a need for greater innovation and investment in solving problems like disease and climate change; the "externalization" of many costs of corporate activity onto third parties such as customers, employees, creditors, and the broader society; the corrosive influence of corporate money in politics; and discontent and loss of trust in the capitalist system among a large and growing segment of the population.We demonstrate how, to a very significant extent, these problems can be traced to the way shares in business corporations are currently owned, traded, and voted. We also offer a plausible plan for shifting the structure of share ownership, trading, and voting to create a more Griffiths, Struan Scott, Ursula Cheer, and David Ciepley for their comments and suggestions, along with participants at workshops on and presentations of this paper given at Cornell Law School, the Berle Conference held at Georgia State University, the University of Otago in Dunedin, the University of Canterbury in Christchurch, the University of Milan, and Victoria University of Wellington.democratic and sustainable capitalism that allows business corporations to better serve humanity. Our proposal, which envisions developing a new form of institutional shareholder, does not rely either on market forces or government interventions. Rather, it relies on voluntary cooperation and the private ordering of free individuals using modern information technologies. It operates to reduce inequalities not only in wealth and income but also in influence over business corporations. INTRODUCTIONChange begins with imagining something better. In this Article, we imagine a future where our society has ameliorated, if not resolved, a number of currently pressing social and economic problems. These problems include: rising socioeconomic inequality; racial and generational disparities in participation in equity markets; increasing poverty and income insecurity; inadequate innovation and investment in solving problems like disease and climate change; the "externalization" of many costs of corporate activity, such as carbon emissions, systemic risk, and the degradation of human health, onto third parties (customers, employees, creditors, the broader society); the corrosive influence of corporate money in politics; and the disengagement and alienation of large and growing segments of the population, leading to loss of trust in the capitalist system and the possibility of civic unrest.The insight underlying our approach is that governments are not the only institutions that can solve collective social and economic problems. Another type of powerful institution-the business corporation-can be brought to bear. Many of today's corporations ri...