Prospects for Democratizing the Corporation in US Law *

Abstract

This essay examines the prospects for democratizing corporations in the context of US corporate law. US corporate law is “enabling”—it provides enormous latitude to design and alter the rules of corporate governance in almost any way participants see fit. This creates greater room for democratization than is often recognized; at least in principle, there is plenty of room to add employees or other constituencies to corporate boards. Yet board decisions are deeply constrained both by directors’ fiduciary duties and by the values and assumptions underlying US corporate law, all of which are strongly biased toward shareholder primacy. These create ongoing ideological and material barriers in both corporate law and supporting institutions that serve as strong obstacles to democratization.