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3 - The Citizens United Gambit in Corporate Theory

Published online by Cambridge University Press:  30 April 2018

David Yosifon
Affiliation:
Santa Clara University School of Law
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Summary

Shareholder primacy theory, by its own terms, depends on government regulation to restrain the externalizing tendencies of corporations governed by the shareholder primacy norm. But shareholder primacy also compels firms to work in the political arena to stunt the development of profit-impeding regulation. A straightforward solution would be to keep corporations out of politics. But the First Amendment precludes such a move, according to the Citizens United case. This chapter first makes the case that Citizens United was rightly decided, and that the First Amendment should be interpreted to forbid the government from censoring political speech, whether it comes from natural people or corporations. The chapter then uses that conclusion to build the case in favor of altering our corporate governance law from shareholder primacy to a regime that requires directors to manager firms in the interests of multiple stakeholders, not just shareholders. This reform, I will argue, is both normatively desirable, and constitutionally permissible. The ambition is to develop an approach to socially responsible corporate operations that does not require censure of political speech.
Type
Chapter
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Corporate Friction
How Corporate Law Impedes American Progress and What to Do about It
, pp. 41 - 59
Publisher: Cambridge University Press
Print publication year: 2018

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