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.