The Trouble with Corporate Conscience
Accomplished corporate law scholars claim that modern businesses need an infusion of morality. Disappointed by conventional regulatory responses to recurring corporate scandal, these scholars argue that corporate conscience provides a more fruitful path to systemic economic reform. In Burwell v. Hobby Lobby, which held that for-profit businesses can claim religious exemptions from general laws, the Supreme Court gave this notion of corporate conscience added momentum. Emboldened by the Court’s embrace of business goals extending beyond shareholder profit, proponents of a moralized marketplace now celebrate corporate conscience as an idea whose time has come.
This Essay criticizes the leading arguments for corporate conscience. These arguments identify three plausible sources of corporate morality—shareholders, managers, and society as a whole. Although initially appealing, each account ultimately proves impractical, illegitimate, or self-defeating. These shortcomings not only give us reason to reject existing accounts on their own terms, but may also reveal a more accurate and attractive picture of the modern corporate world.
James D. Nelson