Corporations are people. Thank goodness.

Published in The Boston Globe on November 2, 2018

Are corporations people? They don’t have brains or hearts or consciences. They do not feel love, fear, or pride. They do not feel awkward at holiday parties or worry about their kids when they cough all night. Over two centuries ago, the Lord Chancellor of England pointed out that a corporation “has no soul to be damned, and no body to kick.”

Back To School: BC's Kent Greenfield Talks Corporate Law

Published in Law360 on October 11, 2018

An internationally renowned scholar of constitutional law and corporate governance, Kent Greenfield is a professor of law at Boston College Law School. He was the founder and president of the Forum for Academic and Institutional Rights and co-authored an amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In this series featuring law school luminaries, Greenfield reflects on his corporate law theories, his legal battle with the Pentagon over free speech and gay rights, and important constitutional law issues to watch out for.

Q: You are well known for your book, "The Failure of Corporate Law," in which you propose that laws controlling firms should be more protective of the public interest. What motivated you to write on this topic?

A: This question is a “why” question that pertains not only to that book, which I wrote over 10 years ago, but also to much of my legal career over the past couple of decades. I’ve always been interested in the connection between business and community. Some businesses get it right, and some don’t seem to care at all. I grew up in a small town in Kentucky. My grandfather was a coal miner. One of my earliest memories is going to the company-owned market with my grandmother, where she paid for groceries with scrip. When my grandfather retired, he suffered from both “black lung” disease and emphysema. Coal companies are not exactly known for their attentiveness to employee well-being.

Later in life, but before law school, I worked at Levi Strauss & Co., the jeans maker, in San Francisco. That company was in a highly competitive market segment, but nevertheless took seriously its obligations to its employees and communities. While I was there, a family-dominated management team took it private through a leveraged buyout, in part to insulate the company from short-term market pressures to abandon or weaken its self-imposed obligations.

I was fortunate that by the time I made it to law school, at the University of Chicago in the early 1990s, I had had a range of experiences that I could draw on to question and probe the law-and-economics view prevalent there. It struck me that many of the underlying assumptions of the movement, which were especially strongly held among the business faculty, were at least imprecise and at worst flat wrong.

I became a law professor in the mid 1990s after practicing for a year and clerking for a couple of years. My scholarly attention was devoted to fleshing out my contrarian viewpoint of the way corporate law and governance was then taught and understood. Because of my parallel interest in constitutional law, I was able to apply a more public law-like critique to corporate law.

The Failure of Corporate Law, one might say, was an effort to apply public law tools to the regulation of corporate governance, using my childhood and early career experiences as motivator and touchstones.

The President’s Attacks On The Press Are Dangerous

Published in Cognoscenti on August 15, 2018

For most of our history, the First Amendment did not mean much. As a matter of original intent, the freedoms of speech and press were narrow. Beginning in the early decades of the 20th century, however, the rights blossomed. Justices Oliver Wendell Holmes Jr. and Louis Brandeis wrote a series of Supreme Court opinions describing the importance of a robust and well-protected right to speak, publish, think, argue, persuade, emote and inquire.

Published in Cognoscenti on July 19, 2018

Over the last two weeks, we have witnessed President Trump act on to two of his most important constitutional responsibilities. He nominated Brett Kavanaugh to the Supreme Court, subject to the “advice and consent” of the Senate. A day later, Trump jetted to Europe to act as head of state — first in a summit with NATO leaders, then in meetings with British Prime Minister Theresa May, and finally in an obsequious chat with Vladimir Putin.

Without Kennedy, the Future of Gay Rights Is Fragile

Published in The New York Times on June 28, 2018

In 30 years on the Supreme Court — the past 13 as the swing justice — Justice Anthony Kennedy has been the decisive vote in cases on issues ranging from abortion to affirmative action. Yet his legacy will be defined primarily by his opinions in the area of gay rights, where he wrote the major majority opinions expansively reading the Constitution to protect gay Americans.

Guns in Risky Waters

Published in the BC Law Magazine in Summer 2018

We were on break between hours of my Supreme Court seminar when my phone buzzed with an alert. “There’s been another school shooting,” I announced to the students lingering around. “In Florida.” A collective moan. A few days before, I had received a similar alert while teaching constitutional law. That shooting was in Kentucky, down the highway from my hometown. News reports featured a video of my cousin running to the school to ensure her kids were safe. (They were.) It brought back memories of the day we heard the grotesque news of the children gunned down in Newtown, Connecticut. I made a special trip to pick up my son from high school that afternoon, not because I thought he was at particular risk. I just needed to reassure myself of his existence, of his safety.

Published in The ACSBlog on February 5, 2016

If government employees can object to funding a union’s political activity, should shareholders have the right to object to a corporation’s? The Supreme Court has answered no, and a new case risks making the gap between the rights of dissenting employees and dissenting shareholders more stark.

But there is good reason to treat shareholders and employees differently.