Kellye Y. Testy, Capitalism and Freedom -- For Whom? Feminist Legal Theory and Progressive Corporate Law, Law & Contemp. Probs. 87 (2004), https://digitalcommons.law.uw.edu/faculty-articles/331
Law and Contemporary Problems
Beginning at least in the 1980s, the version of corporate law and governance prevailing in the U.S. (as well as widely exported to other nations) was a radically privatized one, treating the corporation as a contractual arrangement for maximizing shortterm share price in a laissez faire global marketplace. Though many robust and varied social movements, many of which were bolstered by the 1999 WTO protests in Seattle, have been and are engaged in challenging this hegemony from many angles, few have found their way into corporate law reform. That is not to say, however, that there are no progressive legal critiques from which to draw. For some time a diverse minority of corporate law scholars has been calling for increased attention to issues of corporate accountability to a wide variety of corporate stakeholders and to public interest concerns. Although those entreaties have not met with direct success in legal arenas, the voices have been increasing in both numbers and in theoretical sophistication.
A key question, then, for this new chapter in corporate law is whether the confluence of the mounting extra-legal critiques, the emerging progressive approach to corporate law, and the Enron-led rupture of confidence in corporate stewardship will ripen into meaningful reform or lapse into “business as usual.” To explore this urgent question, this essay proceeds in three parts. It first provides an overview of the dominant conception of corporate law and the emerging progressive assessments of that narrative. It then offers the lens of feminist legal theory as a tool to further analyze corporate law, detailing the central components of feminist analysis and surveying the few feminist inroads made thus far into corporate law and governance. The essay’s final section argues that a progressive theory of corporate law must also be a feminist theory, urges a more explicit alliance between the progressive and feminist corporate law projects, and describes several additional substantive directions that a feminist, progressive view of corporate law should take.
Not only is the unification of progressive and feminist theories important for gains in the political might that will be required to move the progressive project out of the law reviews and into the law, but it is important for a more substantive reason as well. Thus far, the progressive corporate law project’s most glaring omission is its failure to articulate normative values against which corporate law and policy might be judged, and thus to offer a positive prescription in addition to its critical assessments. Feminist theory fills that gap, helping to describe what corporate law should become, and thus strengthens the progressive project precisely at its weakest link.