CONTESTED VISIONS: THE VALUE OF SYSTEMS THEORY FOR CORPORATE LAW

• Published in: University of Pennsylvania law review Vol. 166; no. 3; pp. 579 - 631
• Main Authors: Belinfanti, Tamara, Stout, Lynn
• Format: Journal Article
• Language: English
• Published: Philadelphia, PA students of the University of Pennsylvania Law School 01.02.2018; University of Pennsylvania Carey Law School; University of Pennsylvania, Law School; University of Pennsylvania Law School
• Subjects: Accountability; Analysis; CORPORATE GOVERNANCE; Corporation law; Corporations; CORPORATIONS LAW; Culture; Evaluation; Influence; Law; Law and legislation; Laws, regulations and rules; LEGAL THEORY; Politics; SHARES AND SHAREHOLDERS; Stockholders; Supreme Court decisions; System theory; Systems theory; UNITED STATES; United States > US
• ISSN: 0041-9907; 1942-8537

Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remain hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. The prevailing narrative for the past quarter century has been that corporations "belong" to shareholders and should pursue "shareholder value," but support for that approach, which has long been justified as essential for managerial accountability, is eroding. Its proponents have retreated to the position that corporations should seek "long-term" shareholder value. Yet, as this Article shows, when shareholder value is interpreted to mean "long-term" shareholder value, it no longer offers the sought-after managerial accountability. What can? This Article argues that systems theory offers an answer. Systems theory is a well-developed design and performance measuring methodology routinely applied in fields such as engineering, biology, computer science, and environmental science. It provides an approach to understanding the nature and purpose of corporate entities that is not only consistent with elements of the many otherwise-conflicting visions of the corporation that have been developed, but also with important and otherwise difficult-to-explain features of corporate law and practice. It recognizes, and explains, the possibility and desirability of corporations pursuing multiple goals. It also offers proven methods for measuring and improving corporate performance—methods that highlight the critical role of corporate sustainability, and specific strategies to promote it. Finally, it cautions that, by ignoring the lessons of systems theory, shareholder value thinking may have encouraged regulatory and policy interventions into corporate governance that are not only ineffective, but destructive.