Modern Anti-Capitalist Thought in Corporate Social Responsibility

• Author: Grace Mayes Schieffer
• Position: J.D., Georgetown University Law Center (expected May 2023); B.S., John Brown University (2020)
• Pages: 917-932

Modern Anti-Capitalist Thought in Corporate

Social Responsibility

GRACE MAYES SCHIEFFER*

INTRODUCTION

Throughout the last few decades, and particularly after the Global

Financial Crisis in 2008, the eyes of the world have been on the corporate sec-

tor and the ethical guidelines that it follows, particularly in terms of corporate

governance. Corporate governance schemes determine how companies are

directed and determine how each board of directors sets the values and goals

of the company.

1

What is Corporate Governance?, INST. OF CHARTERED ACCOUNTANTS IN ENGLAND AND WALES, https://

www.icaew.com/technical/corporate-governance/principles/principles-articles/does-corporate-governance-

matter [https://perma.cc/P54A-LXQP] (last visited Nov. 20, 2021).

While distinct from day-to-day operations, corporate gover-

nance sets the tone for the corporation. The rise of two major movements

nearly coincide with each other: the focus on corporate social responsibility

(CSR) as part of corporate governance and the anti-capitalist movement. The

legal field is not immune to these movements, and attorneys who work with

corporations may find themselves at a crossroads between the two.

2

See Corporate Social Responsibility Compliance in 2018, and Beyond – An Overview for In-House Legal

Counsel, ROPES & GRAY (Mar. 12, 2018), https://www.ropesgray.com/en/newsroom/alerts/2018/03/Corporate-

Social-Responsibility-Compliance-in-2018-and-Beyond-An-Overview-for-In-House-Legal-Counsel [https://

perma.cc/XX8U-YESF]; Rex Nutting, Opinion: Capitalism’s Dirty Secret: It Was Built By Lawyers, Not By

The ‘Invisible Hand’, MARKETWATCH (May 2, 2019), https://www.marketwatch.com/story/capitalisms-dirty-

secret-it-was-built-by-lawyers-not-by-the-invisible-hand-2019-05-01 [https://perma.cc/JTP3-EZ7B]; Aamna

Mohdin, Legal Threat Over Anti-Capitalist Guidance for Schools in England, THE GUARDIAN (Oct. 1, 2020)

https://www.theguardian.com/education/2020/oct/01/legal-threat-governments-anti-capitalist-guidance-schools-

political [https://perma.cc/URL6-HNTA].

When

faced with corporate governance decisions that will impact a corporation’s

CSR standards, attorneys should assess their views on capitalism and the

anti-capitalist movement to best serve their clients or employers, as well as

advancing social good and protecting the consumer.

CSR is “about developing a strong company culture that empowers employees

to do social good and embrace diversity by being kind and open-minded.”

3

Carl Hung, Three Reasons Why CSR and ESG Matter to Businesses, FORBES (Sept. 23, 2021), https://

www.forbes.com/sites/forbesbusinesscouncil/2021/09/23/three-reasons-why-csr-and-esg-matter-to-businesses/?

sh=6358458e39b9 [https://perma.cc/MF7W-MMGD].

It is a

set of internal procedures:

* J.D., Georgetown University Law Center (expected May 2023); B.S., John Brown Univer-sity (2020).

© 2022, Grace Mayes Schieffer.

1.

2.

3.

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[W]hereby commercial entities deploy social and environmental policies that

go beyond their formal legal duties and potentially beyond their goal of maxi-

mizing profits for shareholders . . . . In this respect, CSR is at once a field of

action that presumably exists outside law and a terrain constitutive of new

types of legality.

4

Because CSR exists outside law and is concerned with the social good, it must

holistically consider all facets of the corporation and the societal culture and

trends the corporation is adapting to.

5

As corporations continue to refocus on CSR to benefit both the corporation’s

finances as well as public image and impact, more and more attorneys will face

the dilemma of determining what actions will best serve both the corporation and

the public. An attorney’s decision-making should be grounded in a consistent

ideological and ethical foundation influenced by philosophers and political

economists.

Anti-capitalist thought is a direct rejection of and response to the profit-driven

focus of capitalism.

6

Anti-capitalism is more concerned with promoting the social

good for all, and this shift in priorities is reflected in modern times, particularly

with younger people.

7

See Clare Malone, The Young Left’s Anti-Capitalist Manifesto, FiveThirtyEight (Jan. 22, 2019), https://

fivethirtyeight.com/features/the-young-lefts-anti-capitalist-manifesto/ [https://perma.cc/B4SZ-D4TD].

Particularly in light of the younger generation’s gravitation

toward anti-capitalism, this Note proposes anti-capitalism as the attorney’s deci-

sion-making foundation.

This Note will present the landscape of capitalist and anti-capitalist philoso-

phy, as well as a broader analysis of the modern political economy of anti-capital-

ism, to aid in informing attorneys about how an anti-capitalist philosophical

foundation would positively impact the development and implementation of CSR

standards. Part I elaborates on a few examples of failures of modern capitalism.

Part II explains the foundations as to why modern capitalism cannot sustain itself

as it is and how CSR may serve as a solution to this issue. Part III provides the

context for this Note by laying out a broad philosophical, political, and economic

overview of anti-capitalism and will put forward the tie between anti-capitalism

and the corporate legal field and why it matters for CSR. Part IV proposes solu-

tions for situations that corporate social responsibility officers and corporate law-

yers may find themselves in when creating and implementing CSR standards to

best serve the corporation as informed by anti-capitalism, while also respecting

the Model Rules of Professional Conduct.

4. Ronen Shamir, Capitalism, Governance, and Authority: The Case of Corporate Social Responsibility, 6

Ann. Rev. L. & Soc. Sci. 531, 532 (2010).

5. Id.

6. See JAMES FULCHER, CAPITALISM: A VERY SHORT INTRODUCTION 2 (2nd ed. 2015).

7.

918 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:917