Corporate law and the rhetoric of choice
Pages | 61-89 |
Published date | 19 May 2009 |
DOI | https://doi.org/10.1108/S0193-5895(2009)0000024008 |
Date | 19 May 2009 |
Author | Kent Greenfield |
CORPORATE LAW AND THE
RHETORIC OF CHOICE
Kent Greenfield
ABSTRACT
Rhetorically, the notionof choice has always been a powerful one in politics
and law. This chapter is intended to offer a note of caution about its use.
Despite its progressive hue of individual freedom, the rhetoric of choice
increasingly tends to be a notion used to defend and uphold existing
matrices of economic and social power. This is because the rhetoric of
choice is an excellent way to support existing power relationships. The
assertion that people acting within such power relationships are simply
choosing their current situation undermines efforts to change those
relationships. The powerful stay powerful; the weak stay weak. This is
true in a number of areas, from discussions about school vouchers, to
debates about tort reform, to the disagreements surrounding the regulation
of pornography.
The dependence on choice rhetoric also exists in corporate law, where
the school of thought currently dominant in corporate law doctrine holds
that the corporation is best seen as a voluntary arrangement among all the
various stakeholders of the corporation. The rhetoric of choice is thus a
powerful tool to fight against any reform of current relationships within
the corporation that would embolden and empower stakeholders
Law & Economics: Toward Social Justice
Research in Law and Economics: A Journal of Policy, Volume 24, 61–89
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 0193-5895/doi:10.1108/S0193-5895(2009)0000024008
61
traditionally left out of the corporate power structure. Those involved with
the corporation, whether shareholders, employees, or communities, have
chosen their position, and thus should not complain when they do not
receive more than what they explicitly contracted to receive. In this way,
the notion of choice is used to bolster a view of corporate law that protects
those already within the corporate power structure and excludes
important stakeholders from corporate decision making. The rhetoric of
choice is used in the same way in corporate law discourse as it is used
elsewhere by the right – to justify or bolster existing matrices of economic
and social power.
1. INTRODUCTION
For progressives, a dedication to liberty has often meant a respect for, and
protection of, individuals’ right to make choices for themselves. When one
hears about ‘‘the right to choose,’’ the progressive fight to protect a woman’s
right to an abortion is the example that will leap most quickly to mind, but
the concept of choice is broader. Choice has also been an important theme
in progressive struggles against poverty as well as discrimination on the
basis of race, sex, and sexual orientation. Women deserve the choice as to
whether to terminate pregnancy; poor people should be given greater
opportunities, and thus more choices, in their lives. Race-based animus, like
animus based on sex or sexual orientation, is wrong in part because it limits
the choices of the victims of such discrimination.
Historically, the respect for individual choice has been a significant, if not
essential, part of modernity, a part of history’s march from feudalism’s
dependence on status to modernity’s dependence on contract (Coquillette,
2004).
1
It is a part of – perhaps the most crucial aspectof – modernity’s respect
for the autonomy and dignity of the individual (cf. Nozick, 1974). Choice is a
powerful notion not only in legal and political theory but in political practice
as well. Simply framing a political issue asan issue of choice is a very powerful
and successful persuasive technique, especially in the United States.
Rhetorically, choice has always been a powerful notion in politics and
law. This chapter is intended to offer a note of caution about its use. Despite
its progressive hue of individual freedom, choice tends (perhaps increas-
ingly) to be a notion used to defend and uphold existing matrices of
economic and social power. This is true in a number of doctrinal areas, but
especially so in corporate law, where the idea of choice is the defining
principle of that slice of mainstream corporate law doctrine and scholarship
KENT GREENFIELD62
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