Minorities, Shareholder and Otherwise
113 Yale L.J. 119 (2003)
"[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himself a traditionalist." My juxtaposition of the corporate lawyer and the progressive activist may strike both as surprising and even uncomfortable. But corporate law has long been described as the constitutional law for the economic state. Both corporate law and constitutional law seek to order relations between heterogeneous persons who hold stakes in a shared enterprise. Yet the parallels between the two have rarely been fully drawn. In this paper, I have begun to sketch the unexplored but immanent connections in the two domains.
That the word "minority" is critical in both constitutional law and corporate law is not mere lexical coincidence. Much of life is affected by one's minority or non-minority status. On my reinterpretation, corporate law offers the same insight as critical scholarship: Law must take into account relations of domination and subordination. Corporate law already does this. Equal protection jurisprudence, at least as currently promulgated by the Supreme Court, denies it. But if there is to be a kind of grand unifying theory of corporate and constitutional law, it will turn on this insight about power.