Pitching the Big Tent of Corporate Citizenship: Reconciling Kent Greenfield’s Humanist Corporate Person-hood with an Enlightened Shareholder Primacy
Introduction
Debate over the corporation’s proper role in society and its responsibilities to the public has recently taken center stage in American popular discourse. On the campaign trail, Senators Elizabeth Warren and Bernie Sanders have espoused ambitious corporate reforms including breaking up tech giants like Google, Amazon, and Facebook1; establishing employee stock funds and giving workers seats on company boards of directors2; and expanding criminal accountability for corporate executives.3 In Washington, federal regulators including the Federal Trade Commission, the Securities and Exchange Commission, and the Justice Department have increased oversight of, and launched investigations into, America’s largest tech companies.4 The courts have made some headline-grabbing decisions concerning corporate obligations to the public, with the Supreme Court recently allowing a high-profile antitrust class-action lawsuit to proceed against Apple,5 and an Oklahoma judge ruling against Johnson & Johnson for its role in the opioid crisis, finding that the company had breached state public nuisance law.6 Wall Street has also joined the conversation, with the country’s largest investment funds publicly urging corporations to take seriously their environmental, social, and governance impacts.7 Most recently, CEOs have joined the fray of a popular concern with the corporation’s public role. In August 2019, 181 CEOs of some of the country’s largest companies, including Amazon, Apple, JPMorgan Chase, and Walmart, signed a Statement on the Purpose of a Corporation, disavowing the long-enshrined principle of shareholder primacy and committing themselves to leading their companies “for the benefit of all stakeholders.”8 The public zeitgeist is, apparently, witnessing a dramatic shift in its perception and expectations of corporations.
Against this background debate over the corporation’s proper role in, and obligations to, society, Kent Greenfield’s Corporations are People Too (And They Should Act Like It)9 offers timely and discerning guidance for making sense of the corporation’s status from the perspective of contemporary American legal doctrine. Greenfield has been a leading voice in progressive corporate law for over two decades.10 In 2006, long before progressive accounts of the corporation’s role in society had become mainstreamed in the United States, Greenfield’s The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities11 offered a compelling counternarrative to the prevailing law and economics account of the corporation. In that book, he went beyond the principal-agent problem at the center of mainstream corporate law scholarship to outline key failures of corporate law including costly externalities, the absence of corporate commitment to communities, shareholder primacy at the expense of other stakeholders, and shorttermism. He sketched out possibilities for reforming the American corporation to make it “more rational, democratic, accountable, and lawabiding.” 12 Greenfield argued that a public conception of corporate law should replace the current private conception, and took direct aim at the canonical notion of shareholder supremacy.13 In the years since, these oncefringe arguments have become part of the mainstreamed scholarly and popular discourse.
Now, in his newest book, Greenfield once again takes a bold position, claiming the controversial notion of “corporate personhood” from the conservative right and championing it for the progressive left. He offers us even-tempered analysis and nuanced argument that move beyond rhetorical sparring to focus on the essence of what’s really at stake in the fight for or against corporate personhood. Greenfield situates personhood in the context of constitutional and corporate law, and advances it as the answer for bringing corporations more in line with the public interest. He argues that corporate personhood, properly construed, actually furthers the ends that progressives support by limiting some dimensions of corporate power,14 increasing corporate accountability,15 and enabling corporate management to govern in the interests of all stakeholders.16 In the constitutional law domain, Greenfield develops a framework for determining which rights should be granted to a corporation, based on the nature of the corporation and on the right in question. In the corporate law domain, he elaborates a vision of corporate law reform that incorporates the interests of all corporate stakeholders in managerial decision-making.
Greenfield’s formulation also presents corporate personhood and corporate citizenship as foils to shareholder primacy, the notion that corporate management should govern first and foremost in the interest of a firm’s shareholders. In this symposium response, I will offer an alternative framing. Rather than relegate shareholder primacy outside the parameters of corporate citizenship, I propose instead that we leverage corporate citizenship as a broad conceptual umbrella with the potential to reconcile a self-aware and socially conscious construction of the corporation that Greenfield advances with the interests of today’s “enlightened shareholders.” Such an approach to corporate citizenship can move us closer to the desired outcome of better aligning corporate decision-making with a broader public interest. This response will proceed in three parts. I will begin Part I by mapping out the most popular, yet divergent, uses of “corporate citizenship” to situate Greenfield’s position within its discursive context. In Part II, I will focus on the core arguments of Corporations Are People Too and highlight the tools that it offers us for navigating questions concerning the corporation’s rights and responsibilities. I will then conclude with Part III, pointing to some new possibilities for reconciling an enlightened shareholder primacy with Greenfield’s account of corporate personhood under an inclusive interpretation of corporate citizenship.
I. Mapping Corporate Citizenship
In a 1970 New York Times article, Milton Friedman famously declared that the social responsibility of business is to increase its profits.7 Nearly half a century later, an op-ed by Lionel Barber, editor of the Financial Times, noted that the liberal capitalist model has come under strain “particularly the focus on maximizing profits and shareholder value” and advanced that, “[t]he long-term health of free enterprise capitalism will depend on delivering profit with purpose.” As these two contrasting interpretations evidence, an account of corporate citizenship is animated by an underlying conception of the corporation and represents a corresponding vision for that corporation’s role in its wider society.18 A survey of the academic literature and popular applications yields various accounts of corporate citizenship that can be broadly grouped as conservative, liberal, and progressive. This section will provide a brief account of each of these conceptions of the corporation and introduce the corresponding interpretation of corporate citizenship it implies. It will locate Greenfield’s approach to corporate citizenship within the progressive account.
A. The Conservative Corporation
An economic rationalism dominates the conservative account of the corporation. This account considers the firm to be an artificial creation of the state and an aggregate of individual shareholders bound to one another through bi-lateral contracts. The conservative corporation exists to maximize efficient transactions. In the Milton Friedman tradition, the social obligation of the conservative corporation is to maximize benefit to shareholders by increasing profits. Any participation in a public arena or attentiveness to the public interest is purely elective, if not suspect. The conservative corporation inspires a model of corporate citizenship best described as corporate philanthropy. The corporate philanthropist acts out of rational self-interest and aims to improve shareholder returns by generating social legitimacy for the company. Corporate philanthropic projects are not necessarily related to a company’s industry or core operations and mostly take the form of charitable initiatives in areas like education and health.19 The conservative corporate citizen rationalizes decision-making with reference to the corporate bottom line. One view within this camp more closely aligns the company’s philanthropic ventures with its core operations and casts corporate social responsibility as part of a firm’s long-term financial planning and as a check against short-termism in managerial decision-making.20 This is captured, for example, by Michael Porter and Mark Kramer’s emphasis on the relationship between a company’s philanthropy and its competitive context, “the more closely a company’s philanthropy is linked to its competitive context, the greater the company’s contribution to society will be.”21 More generally, however, the conservative account of corporate citizenship has become largely passé.
B. The Liberal Corporation
More popular today is the liberal account of the corporation. It conceives of the corporation as an artificial creation of the state and a citizen with a public inclination. It attempts to meet dual commitments to shareholder dividends while also being attentive to the public good. The liberal account upholds the fiduciary relationship as a defining feature of the corporate arrangement. Accordingly, a liberal corporation maintains legitimacy by being internally accountable to the interests of its shareholders, while also being conscious of the ways that its public legitimacy affords it a social license to operate.22 The liberal corporation animates most accounts of socially responsible investors (SRIs), and the enlightened shareholder primacy demonstrated in Larry Fink’s advocacy for both purpose and profit. Michael Jensen’s work provides a popular rationale for the social orientation of the liberal corporation. In a 2002 article,23 he argued that in order for a corporate entity to exercise purposeful behavior, it must direct its operations towards a singular function. He identified this function to be maximizing the firm’s long-term value. Jensen distinguished value maximization from stakeholder theory, clarifying that value maximization allows for goaldirected decision-making by management. By contrast, stakeholder theory does not provide decision criteria for making tradeoffs between conflicting and/or inconsistent stakeholder demands.24 Jensen advanced a theory of corporate citizenship whereby “social welfare is maximized when all firms in an economy maximize total firm value.”25 This account of corporate citizenship is the most dominant today.
C. The Progressive Corporation
The progressive corporation is conceptualized as an artificial creation of the state comprised of many participating stakeholders including shareholders, employees, and citizens, among others. The progressive corporation deviates from a presumed exclusivity of shareholder property rights. It most commonly takes the form of a stakeholder theory of the corporation that aims to maximize value for all of a company’s stakeholders and not just its shareholders. Corporate citizenship in the progressive account is concerned with questions of power, representation, and governance within the corporate entity and in corporate decision-making.26 Kent Greenfield’s vision for corporate citizenship falls within the progressive account. His characterization of the “corporate person” provides shorthand for a relational understanding of the corporation that incorporates “non-equity investors”27 in corporate governance and grants them entitlements to corporate wealth.28 This of course has direct implications for how we should allocate rights within the corporation and how we define the corporation’s social role.29 From this progressive standpoint, Greenfield’s new book takes on the challenge of elaborating how corporate personhood translates into constitutional and corporate law.
II. In Defense of Corporate Personhood and Progressive Corporate Citizenship
In Corporations Are People Too, Greenfield tackles the concepts of corporate personhood and corporate citizenship from a progressive position that takes as its starting point the claim that corporations should be good for society. The claim that “corporations are people” has incited fervent mobilization on the political right and left, with the right brandishing it as a victory for the free market and the left attacking it as an erosion of democratic accountability. In a surprising, yet compelling, reformulation of this common narrative, Kent Greenfield’s Corporations Are People Too backs corporate personhood as a progressive objective. He argues that corporations are people in three key ways: (1) they are legally separate entities who “can sue, be sued, enter into contracts, own property, buy stuff, and sell stuff,” (2) they are made up of people, and (3) they hold constitutional rights.30 Asserting corporate personhood in the constitutional and corporate law domains, Greenfield argues, advances progressive demands by making corporations more accountable to the public. Personhood prevents shareholders from attaching their religious beliefs to companies,31 it provides a limit on government power by granting corporations standing to assert their due process rights when those rights are germane to their economic purpose,32 and it affords the public a deep pocket to sue when harmed.33 Greenfield refocuses the essence of the personhood debate, moving it away from the question of whether corporations are people with constitutional rights, to focus instead on determining what corporations are for, and, accordingly, which rights they should be afforded.
Greenfield centers his discussion of corporate personhood in constitutional law on the presumption that “corporations should receive the rights necessarily incidental to serving [their] economic purpose and should not receive those that are not germane to that purpose.”34 He identifies some easy legal cases where corporations should obviously have constitutional rights. Some examples are cases concerning checks on government power like protection from uncompensated takings under the Fifth Amendment, procedural due process protections against capricious governmental acts, and protections against government actions outside the scope of executive power like violations of the Commerce Clause.35 Other more difficult cases have to do with criminal procedure, such as the Fourth Amendment right to be free from unreasonable searches and seizures and the Fifth Amendment protection against self-incrimination. For these cases, “[t]he difference between the public nature of corporations and the private . . . nature of humans should make a difference in constitutional analysis.”36 Greenfield identifies the most difficult legal cases as those concerning equality, religion, and fundamental rights.37 For these cases, “we need to look at the purpose of the right in question and ask whether such purpose is furthered by extending it to corporations.”38 Greenfield uses some of the most highprofile corporate personhood cases of the past years to show where the Supreme Court has gotten personhood right, and where it has gotten it wrong. He urges that progressive factions should actually be backing corporate personhood to advance their objective of creating constraints on corporate power.
In the later chapters of his new book, Greenfield pivots to the domain of corporate law, and identifies it as the proper realm for dealing with the types of problems that progressives have been trying to address through constitutional law. He advances that “[t]he best hope for constraining corporate power and legitimizing corporations’ participation in the public square is not an adjustment in constitutional doctrine but an adjustment to corporate governance within corporate law.”39 In the corporate law context, Greenfield argues for a shift away from shareholder primacy and towards corporate personhood. Here he uses “personhood” as shorthand for a complex decision-making rationality that is both self-aware and socially conscious. This rationality sharply contrasts with the more familiar economic account of personhood that is far less public-facing or altruistic and that takes the form of the rationally self-interested actor.40 It is important then to acknowledge that what Greenfield is advocating for is a particular type of personhood, consistent with the progressive account elaborated in Part I. We might distinguish this as humanist corporate personhood, expressed in the form of a responsible corporate citizen who “owe[s] a robust set of duties to society and to stakeholders that go beyond shareholder primacy.”41 Stakeholder governance, Greenfield argues, would allow for organizational, economic, and political benefits including better corporate decision making, less economic inequality, and a shift away from short-termism.42
Greenfield aptly notes that the contemporary public appetite for corporate reform, and the apparent political will to drive this agenda, provide an opportunity to reformulate corporate governance and to bring about an orientation to corporate citizenship that is good for society. A window of opportunity has also opened up for reforming securities law in line with this progressive vision, and for integrating diverse commitments into corporate decision-making. The “reasonable investor” archetype that has dominated American securities law for the past fifty years43 is now evolving, as evidenced by investor demands and behaviors that increasingly undermine classic shareholder primacy doctrine. Investors’ concern with corporate environmental, social, and governance disclosure and decisionmaking has implications for how both investors and companies conceive of shareholder primacy. The shift in investor preferences and behavior also brings today’s reasonable investor into closer alignment with the vision of the corporate person, and of corporate citizenship, that Greenfield advances. The next section will summarize two notable trends in the nature of today’s “reasonable investor” and will point to some implications these have for reforms to securities law that align with Greenfield’s progressive corporate personhood.
III. The New “Reasonable Investor” and Expanded Possibilities for A Liberal-Progressive Alliance
Kent Greenfield’s account of personhood in corporate law frames shareholder primacy as the foil to corporate citizenship.44 In recent decades, however, hard lines separating a shareholder primacy model from stakeholder governance have become perforated as a result of increasing investor concern with corporate environmental, social, and governance (ESG) decision-making. In recent decades, shareholder preferences and demographics have evolved in two key ways: (1) mainstream investors have been demanding ESG disclosures from companies and relying on this information in their engagement strategies and portfolio allocations, and (2) SRIs have been gaining market share and undermining traditional assumptions about the “reasonable investor.” These trends present an opportunity for bringing enlightened shareholders into the fold of corporate citizenship as allies in advancing a version of corporate governance that accords with a broader public interest, in line with the vision Greenfield sets out.
Over the past century, mainstream investor demographics and preferences have evolved, with investors becoming more attuned to their long-term sustainability and the social repercussions of their activities.45 In his 2018 letter to CEOs, Laurence Fink46 affirmed that “BlackRock is eager to participate in discussions about long-term value creation and work to build a better framework for serving all [company] stakeholders.”47 Fink’s January 2019 letter took this message further, asserting that “[p]rofits are in no way inconsistent with purpose – in fact, profits and purpose are inextricably linked.”48 As Fink’s letters capture, ESG performance is increasingly important to firms of all ethical persuasions and is being integrated across entire investment platforms. BlackRock’s attentiveness to ESG appears representative of a broader trend in the investment community. A 2018 study by Amir Amel-Zadeh and George Serafeim surveyed investors to understand why and how they use ESG data.49 Their findings showed that 82% of investors consider ESG data when making investment decisions and that they primarily use ESG information for financial rather than ethical motives. 63% of investors reported that they consider ESG information in their investment decisions because it is financially material to investment performance.
Parallel to the changing rationality of mainstream investors, the increasing popularity of socially responsible investment has also been undermining assumptions about the reasonable investor archetype in securities law. SRIs50 set themselves apart from mainstream asset managers by committing to particular ethical and environmental performance indicators and by screening for companies that meet these standards when making their portfolio allocations. They ground their operational mandates in the procurement of ESG performance data and predictive ESG indicators, and allow investors to direct their capital to companies that adhere to selected social and/or environmental values. In this sense, the reasonable SRI diverges from the conventional economically rational mainstream investor who is the current focus of legal doctrine.51 A 2018 U.S. SIF report on sustainable, responsible, and impact investing trends in the United States observed that United States domiciled assets under management reached $12 trillion in 2018, representing 26% of total assets under professional management.52 Investors today are soliciting ESG disclosures and influencing company ESG decision-making as reflected in their shareholder proposals, proxy voting behavior, and engagement reports.53 In 2018, social and environmental proposals comprised 43% of all shareholder proposals submitted.54 In a review of shareholder proposals from 2000 to 2018, Kosmas Papadopoulos found that support for environmental and social shareholder proposals increased from 6% of votes cast in 2000, to 24% of votes cast in 2018. Today, the percentage of “ethical funds” comprising mutual fund assets and the percentage of shareholder proposals concerning environmental and social issues affirm that investor interest in these matters is significant and growing.
CONCLUSION: CORPORATE CITIZENSHIP AS A “BIG TENT” THEORY
The modern corporation is facing a long-overdue public reckoning. Kent Greenfield’s rich legacy of progressive corporate law scholarship, now with the addition of his newest book, offers us a framework for navigating difficult questions about the corporation’s role in society. Greenfield redirects the national conversation about whether we should have corporate personhood (his answer is a decided yes), and focuses on what the corporation’s purpose is and what related rights are at stake in the constitutional and corporate law domains. These questions will also have to be addressed in other areas of the law, like securities law, labor law, criminal law, and tort law.
Greenfield’s valuable contribution can be bolstered by an interpretation of corporate citizenship that unifies disparate ideological strands with their varying conceptualizations of the corporate entity. Rather than present corporate citizenship and shareholder primacy as foils of one another, an alternative formulation might grant space to enlightened shareholder primacy under the umbrella of corporate citizenship. Such an interpretation has the potential to build off of the momentum that enlightened shareholders have been gaining, to reconcile between enlightened shareholder primacy and a progressive take on corporate personhood. Such rhetorical framing might allow us to take advantage of present-day investor demographics and dynamics, with their appetite for ESG data and their demand for corporate ESG decision-making, in order to push corporate and securities law in a direction that furthers the progressive ends Greenfield is advancing.
The noted trends in investor behavior and demographics, elaborated above, provide a window of opportunity to join cause between liberal and progressive conceptions of corporate citizenship. Enlightened shareholders of the liberal variety can advance the objectives of a corporate personhood agenda by advocating for a broader set of “material” considerations that corporations must publicly report on and, consequently, internally measure and monitor. This could prompt an iterative cycle whereby they modify internal rationalities and the types of stakeholder interests they incorporate into decision-making. Corporate personhood advocates of the progressive variety might advance the enlightened shareholder primacy agenda by supporting investor calls for mandatory ESG disclosure requirements from the Securities and Exchange Commission, and advocating for judicial interpretations that find ESG disclosures to be material and therefore legally actionable in securities litigation.
In The Failure of Corporate Law, Greenfield observed, “the question is not one of the existence of good progressive possibilities but the presence of political will” and argued that “there are meaningful alliances that could be built that have yet to be attempted.”55 Thirteen years since he published those words, the political will for corporate reform is present, and the potential for meaningful alliances should not be passed up.
*✕Aisha I. Saad, Research Scholar in Law and Bartlett Research Fellow, Yale Law School. J.D., Yale Law School (2018). MPhil/DPhil, University of Oxford (2013).
1✕Astead W. Herndon, Elizabeth Warren Proposes Breaking Up Tech Giants Like Amazon and Facebook, N.Y. TIMES (Mar. 8, 2019), https://perma.cc/28LU-TSNK.
2✕Jeff Stein, Bernie Sanders Backs 2 Policies to Dramatically Shift Corporate Power to U.S. Workers, WASH. POST (May 28, 2019, 12:43 PM EDT), https://perma.cc/A885-CGYC.
3✕Senator Warren Unveils Bill to Expand Criminal Liability to Negligent Executives of Giant Corporations, ELIZABETH WARREN (Apr. 3, 2019), https://perma.cc/P3KK-8DMU.
4✕See, e.g., 16 Ways Facebook, Google, Apple and Amazon Are in Government Cross Hairs, N.Y. TIMES (Sept. 9, 2019), https://perma.cc/P37G-XQH5.
5✕Adam Liptak & Jack Nicas, Supreme Court Allows Antitrust Lawsuit Against Apple to Proceed, N.Y. TIMES (May 13, 2019), https://perma.cc/J72H-9YDY.
6✕Jan Hoffman, Johnson & Johnson Ordered to Pay $572 Million in Landmark Opioid Trial, N.Y. TIMES (Aug. 26, 2019), https://perma.cc/G6R9-ZDMW.
7✕See, e.g., Larry Fink, A Fundamental Reshaping of Finance, BLACKROCK, https://perma.cc/6QV9-DTCL (last visited Feb. 4, 2020).
8✕Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy That Serves All Americans’, BUS. ROUNDTABLE (Aug. 19, 2019), https://perma.cc/BT3S-6ZU5.
9✕KENT GREENFIELD, CORPORATIONS ARE PEOPLE TOO (AND THEY SHOULD ACT LIKE IT) (2018) [hereinafter CORPORATIONS ARE PEOPLE TOO].
10✕See, e.g., Kent Greenfield, The Third Way: Beyond Shareholder or Board Primacy, SEATTLE U. L. REV. 37, 749–73 (2014); Kent Greenfield, The Place of Workers in Corporate Law, 39 B.C. L. REV. 283, 283–328 (2001); Kent Greenfield, There’s a Forest in Those Trees: Teaching About the Role of Corporations in Society, 34 GA. L. REV. 1011 (2000).
11✕KENT GREENFIELD, THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES (2006) [hereinafter THE FAILURE OF CORPORATE LAW].
12✕Id. at 241.
13✕See id. at 2.
14✕See CORPORATIONS ARE PEOPLE TOO, supra note 9, at 9.
15✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 12.
16✕See CORPORATIONS ARE PEOPLE TOO, supra note 9, at 27.
17✕Milton Friedman, 32 The Social Responsibility of Business Is to Increase Its Profits, N.Y. TIMES, Sept. 13, 1970, at 126, https://perma.cc/Z5VP-XTYU (“[T]here is one and only one social responsibility of business—to use its 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.”).
18✕See Eric C. Chaffee, The Origins of Corporate Social Responsibility, HARV. L. SCH. F. ON CORP. GOVERNANCE & FINANCIAL REG. (May 28, 2017), https://perma.cc/8BFY-TMJM (“The reason for this confusion over the metes and bounds of the obligation to engage in socially responsible behavior is that the essential nature of the corporate form is not well understood.”).
19✕See Michael E. Porter & Mark R. Kramer, The Competitive Advantage of Corporate Philanthropy, HARV. BUS. REV. (Dec. 2002), https://perma.cc/KFE3-6NG9 (“The majority of corporate contribution programs are diffuse and unfocused. Most consist of numerous small cash donations given to aid local civic causes or provide general operating support to universities and national charities in the hope of generating goodwill among employees, customers, and the local community. Rather than being tied to well-thought-out social or business objectives, the contributions often reflect the personal beliefs and values of executives or employees.”).
20✕See generally id. (“Understanding the ways in which philanthropy creates value highlights how they can achieve the greatest social and economic impact through their contributions.”).
21✕Id.
22✕See Olivier Jan, The Board and ESG (Feb. 25, 2019), HARV. L. SCH. F. ON CORP. GOVERNANCE & FINANCIAL REG., https://perma.cc/QE3G-4EQG (“It can be useful to think of ESG risks in terms of the organization’s social license to operate. Unlike a legal license to operate, the social license to operate is granted, in part, by customers through their purchasing decisions. If your ESG reputation is tarnished or people associate your enterprise with global warming, water pollution, resource abuse, child labor, or poor working conditions, your business may suffer either a gradual or rapid decline in demand.”); e.g., THE LAW OF TRANSNATIONAL BUSINESS TRANSACTIONS § 1:10 (Ved P. Nanda ed., 1981) (“Recently, Ernst & Young ranked “social license to operate” third in its top 10 strategic business risks in the global mining and metals sector.2 The focus on mitigating “above the ground” or “non-technical” risk has led many companies to address risks by spending as much money as deemed necessary to secure a social license to operate (SLTO) from local communities and community leaders. As a result, many companies seek to increase their level of social investment as a way of demonstrating benefits to communities and obtaining a social license to operate.”).
23✕Michael C. Jensen, Value Maximization, Stakeholder Theory, and the Corporate Objective Function, 12 BUS. ETHICS Q. 235, 237 (2002).
24✕Id. at 241–42.
25✕Id. at 239.
26✕See Jedrzej George Frynas & Sian Stephens, Political Corporate Social Responsibility: Reviewing Theories and Setting New Agendas, 17 INT’L J. MGMT. REV. 483, 483 (2015).
27✕Kent Greenfield, Reclaiming Corporate Law in a New Gilded Age, 2 HARV. L. & POL’Y REV. 1, 20 (“[T]he use of the term ‘non-equity investor’ as a way to characterize stakeholders embodies the last premise of this article: corporations are collective entities, demanding a variety of investments from a variety of sources.”).
28✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 211 (“If corporations were required to take into account the interests of all their stakeholders and include their views within a pluralistic, more democratic corporate structure, the voices of corporations themselves would be more pluralistic and democratic.”).
29✕See Julian Velasco, Shareholder Ownership and Primacy, 2010 U. ILL. L. REV. 897, 927 (2010).
30✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 2–3.
31✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 9–11.
32✕See CORPORATIONS ARE PEOPLE TOO, supra note 9, at 66–69.
33✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 11–12.
34✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 62, 103 (“[W]e need to look at the purpose of the right in question and ask whether such purpose is furthered by extending it to corporations.”).
35✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 70–74.
36✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 75.
37✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 81.
38✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 103.
39✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 170.
40✕See generally CORPORATIONS ARE PEOPLE TOO, supra note 9, at 170 (explaining that this is most familiar in the notion of a rationally self-interested homo economicus).
41✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 208.
42✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 214–23.
43✕See TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 445 (1976).
44✕CORPORATIONS ARE PEOPLE TOO, supra note 9, at 175 (“As a matter of internal corporate governance, ‘citizenship’ stands in contrast to ‘shareholder primacy,’ the notion that shareholder interests are the sum by which corporations should be measured.”).
45✕See Daniel C. Esty & Todd Cort, Corporate Sustainability Metrics: What Investors Need and Don't Get, 8 J. ENVTL. INVESTING 1, 13 (2017).
46✕See generally Alicia McElhaney, Larry Fink to CEOs: Contribute to Society or Lose BlackRock’s Investment, INSTITUTIONAL INVESTOR (Jan. 16, 2018), https://perma.cc/X7RN-G9V2 (explaining that Laurence Fink is the Chairman and CEO of BlackRock, the world’s largest investment firm which manages more than $6 trillion in investments. BlackRock is an industry icon and Fink’s annual letter has come to represent a proxy for the pulse of the mainstream investment world).
47✕Larry Fink, Larry Fink’s Annual Letter to CEOs: A Sense of Purpose, BLACKROCK, https://perma.cc/ZL8U-YDZD (last visited Oct. 16, 2019).
48✕Fink, supra note 7.
49✕Amir Amel-Zadeh & George Serafeim, Why and How Investors Use ESG Information: Evidence from a Global Survey, FIN. ANALYSTS J., 74:3 (2018) (examining responses of largely mainstream investors, comprising 43% of global institutional assets under management).
50✕Liz Smith, Socially Responsible Investing Defined, SMARTASSET (Aug. 21, 2019), https://perma.cc/59NV-GFEL (explaining the shorthand designation socially responsible investors (SRIs) which will be used to refer to the broad category of sustainability-minded investors who incorporate considerations of sustainability in addition to profit).
51✕A growing body of literature links superior ESG performance to superior stock performance. See, e.g., Tensie Whelan & Carly Fink, The Comprehensive Business Case for Sustainability, HARV. BUS. REV. (Oct. 2016); Gunnar Friede, Timo Busch & Alexander Bassen, ESG and Financial Performance: Aggregated Evidence from More than 2000 Empirical Studies, 5 J. SUSTAINABLE FIN. & INV. 4 (2015); Robert Eccles, Ioannis Ioannou & George Serafeim, The Impact of Corporate Sustainability on Organizational Processes and Performance, 60 MGMT. SCI. 11 (Nov. 2014).
52✕Report on U.S. Sustainable, Responsible and Impact Investing Trends, USSIF 1 (2018), https://perma.cc/UKK9-NP3M; see Jon Hale, Sustainable Funds U.S. Landscape Report: More Funds, More Flows, and Strong Performance in 2018, MORNINGSTAR 2–3 (Jan. 2018), https://perma.cc/92D7-44C2.
53✕See, e.g., BlackRock Investment Stewardship’s Approach to Engagement on Climate Risk, BLACKROCK INC. 1 (Jan. 2019) https://perma.cc/W75J-PQN9.
54✕See Shareholder Proposal Developments During the 2018 Proxy Season, GIBSON DUNN (July 12, 2018), https://perma.cc/6BXV-Q2B9 (Governance proposals comprised 36%, corporate civic engagement proposals comprised 12%, executive compensation proposals comprised 7%, and other proposals comprised 2%.).