Issue 5

On Lenity: What Justice Gorsuch Didn’t Say

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the Supreme Court has acknowledged the reality of this majestic inequality of the law. Instead, the Court itself has been complicit in upholding facially neutral doctrines when confronted with the racial disparities they create. It advances the systemic racism of colorblindness against any race-conscious remedial legislation, while denying marginalized people relief from unequally burdensome systems so long as those systems’ rationale is facially neutral. This obstinate colorblindness has become so pervasive in the framework of criminal jurisprudence that race is no longer merely the elephant in the room—it is the room itself.

This Essay presents the Court’s recent decision in Wooden v. United States as a case study of what the Court could achieve by saying the quiet part out loud and explaining the white supremacist motives underlying presumptively neutral doctrines. The Court can overturn its misguided doctrines without acknowledging their racial and colonial dimensions, but fixing the underlying rot in the system requires the Court to first acknowledge that the rot exists. Otherwise, new “neutral” doctrines and rationales will continue to crop up to take the place of those that were overturned. The decline of lenity and corresponding shifts in fundamental doctrines can only be fully reversed if the Court is willing to embrace the anti-colonial and abolitionist consequences.

Introduction

“As every civil rights lawyer has reason to know—despite law school indoctrination and belief in the ‘rule of law’—abstract principles lead to legal results that harm [B]lacks and perpetuate their inferior status. Racism provides a basis for a judge to select one available premise rather than another when incompatible claims arise.”1 1.Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 369 (1992).Show More

– Derrick Bell

In the second season of Star Trek: Deep Space Nine, the longsuffering engineer Miles O’Brien is arrested and tried in a Cardassian criminal court.2 2.See Star Trek: Deep Space Nine: Tribunal (Paramount Television June 5, 1994) (depicting the trial of Miles O’Brien on Cardassia Prime).Show More The trial is overseen by an archon, who acts as both judge and prosecutor.3 3.See id.Show More At the beginning of the trial, she declares, “The offender Miles O’Brien, Human, officer of the Federation’s Starfleet, has been found guilty of aiding and abetting seditious acts against the state. The sentence is death; let the trial begin.”4 4.Id.Show More As viewers, we recoil from this perversion of justice; it’s the stuff of kangaroo courts. Our notion of justice is grounded in the public perception of a fundamentally fair process.5 5.See Tracey L. Meanes, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 Ohio St. J. Crim. L. 105, 106 (2005) (discussing the role of public perception in the fundamental fairness analysis of due process).Show More We would be shocked to encounter Cardassian procedures in an American courtroom.

And yet, there are two sorts of justice in America. There is the ideal, guided by strong constitutional limits on prosecution meant to produce a fair trial for defendants, even if it means the guilty sometimes go free. Traditional doctrines guide the court to favor the defendant until the prosecution can overcome all reasonable doubt. And then there is the fast and loose world of mass incarceration, replete with plea bargaining, harmless error, qualified immunity, and good faith exceptions. That sort of justice is fit for a colonial power—like the Cardassians—bent on subjugating large portions of its populace. That sort of justice would have little use for lenity. These two systems often exist in parallel, with the latter cloaking itself in the trappings of the former.

In Wooden v. United States,6 6.Wooden v. United States, 142 S. Ct. 1063 (2022).Show More the Court, in an opinion authored by Justice Kagan, held that a series of burglaries committed at a single address on a single night did not count as more than one “occasion” under the Armed Career Criminal Act’s7 7.18 U.S.C. § 924(e)(1).Show More (“ACCA”) mandatory minimum sentencing provision.8 8.Wooden, 142 S. Ct. at 1069.Show More In a concurring opinion joined in part by Justice Sotomayor, Justice Gorsuch indicated that, when interpreting ambiguous statutes such as the ACCA, courts should turn to the rule of lenity before analyzing a statute’s legislative history or purpose.9 9.Id. at 1081 (Gorsuch, J., concurring).Show More The rule of lenity requires that courts resolve reasonable doubts about the application of penal laws in the defendant’s favor.10 10.Id.Show More

Justice Gorsuch observed that courts have weakened the rule of lenity over time, culminating in the Court’s current interpretation, which requires a finding of a “grievous ambiguity” before courts can apply lenity and find in favor of the defendant.11 11.Id. at 1084.Show More This narrow rule of lenity is one factor that perpetuates mass incarceration and its concomitant racial disparities. But Justice Gorsuch does not say why this shift in the rule of lenity occurred. This Essay presents the narrowing of the historical doctrine of lenity as an offshoot of mass incarceration’s racist roots. That is, lenity—or rather, its narrowing—is one tool courts use to lock up Black, Brown, and poor people, and to keep them locked up.

This constriction of lenity was only an intermediate step in the erosion of constitutional law to permit racially driven mass incarceration. In the early years of the conservative reaction to the Civil Rights Movement, the Court both invented new doctrines and revised or abandoned longstanding ones to police marginalized people and prevent their recourse to the courts. Even the Warren Court contributed to this reaction, giving rights access with one hand while erecting procedural barriers to rights access with the other.12 12.See William J. Stuntz, The Collapse of American Criminal Justice 79–80, 227–30, 260–65 (2011) (demonstrating how the Warren Court’s procedural rulings reduced the focus on a defendant’s guilt in favor of procedural questions, thereby incentivizing the legislative criminalization of increasingly trivial behavior). Daniel Harawa and I will address the racial dimensions of the Warren Court’s ostensibly colorblind criminal procedure jurisprudence in a forthcoming piece, The Warren Court’s Colorblind Counterrevolution.Show More The Court extended harmless error to encompass constitutional violations in 1967.13 13.See Chapman v. California, 386 U.S. 18, 23–24 (1967).Show More The Court invented qualified immunity in 1967,14 14.See Pierson v. Ray, 386 U.S. 547, 555 (1967).Show More then expanded it considerably over the next few decades.15 15.See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).Show More Police harassment gained fresh justification with the invention of reasonable suspicion in 1968.16 16.See Terry v. Ohio, 392 U.S. 1, 19 (1968).Show More Lenity was (sometimes) corralled to only apply in cases of “grievous” ambiguity in 1974.17 17.See Huddleston v. United States, 415 U.S. 814, 831 (1974).Show More By 1983, the Court began to foreclose the possibility of implying damages as relief for constitutional violations by federal actors.18 18.See Bush v. Lucas, 462 U.S. 367, 390 (1983).Show More The Court created a “good faith” exception to its Fourth Amendment exclusionary rule in 1984.19 19.See United States v. Leon, 468 U.S. 897, 908 (1984).Show More While advancing purportedly race-neutral doctrines, the Court buttressed the racial hierarchies of the carceral state.20 20.See Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002) (“[T]he Supreme Court’s construction and reification of race in Fourth Amendment cases legitimizes and reproduces racial inequality in the context of policing.”); Brandon Hasbrouck, The Antiracist Constitution, 116 B.U. L. Rev. 87, 116 (2022) (“While the individual mechanisms [of procedural racism] have often been decried for their role in perpetuating white supremacy, the pattern of their adoption and application reveals a much larger problem: the Court is decidedly anti-Black.”).Show More This is what Justice Gorsuch didn’t say. Leaving out this critical context indicates that even when the Court is willing to address the symptoms, it will leave the disease of systemic racism undiagnosed and untreated.

Part I explains lenity and provides a background of Wooden. Part II discusses how courts have shifted and narrowed the doctrine of lenity, so that it almost never applies today. Part III explains the reason for that shift: courts’ narrowing of the rule of lenity is one purportedly race-neutral means of imprisoning Black, Brown, and poor people. Finally, this Essay explains why it is necessary for members of the Court to start saying the quiet part out loud. The Court can overturn its misguided doctrines without acknowledging their racial dimensions. But to fix the rot in the system, the Court must first acknowledge that the rot exists. Otherwise, new “neutral” doctrines will continue to crop up to take the place of those that were overturned.

  1. Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 369 (1992). ↑

  2. See Star Trek: Deep Space Nine: Tribunal (Paramount Television June 5, 1994) (depicting the trial of Miles O’Brien on Cardassia Prime). ↑

  3. See id. ↑

  4. Id. ↑

  5. See Tracey L. Meanes, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 Ohio St. J. Crim. L. 105, 106 (2005) (discussing the role of public perception in the fundamental fairness analysis of due process). ↑

  6. Wooden v. United States, 142 S. Ct. 1063 (2022). ↑

  7. 18 U.S.C. § 924(e)(1). ↑

  8. Wooden, 142 S. Ct. at 1069. ↑

  9. Id. at 1081 (Gorsuch, J., concurring). ↑

  10. Id. ↑

  11. Id. at 1084. ↑

  12. See William J. Stuntz, The Collapse of American Criminal Justice 79–80, 227–30, 260–65 (2011) (demonstrating how the Warren Court’s procedural rulings reduced the focus on a defendant’s guilt in favor of procedural questions, thereby incentivizing the legislative criminalization of increasingly trivial behavior). Daniel Harawa and I will address the racial dimensions of the Warren Court’s ostensibly colorblind criminal procedure jurisprudence in a forthcoming piece, The Warren Court’s Colorblind Counterrevolution. ↑

  13. See Chapman v. California, 386 U.S. 18, 23–24 (1967). ↑

  14. See Pierson v. Ray, 386 U.S. 547, 555 (1967). ↑

  15. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). ↑

  16. See Terry v. Ohio, 392 U.S. 1, 19 (1968). ↑

  17. See Huddleston v. United States, 415 U.S. 814, 831 (1974). ↑

  18. See Bush v. Lucas, 462 U.S. 367, 390 (1983). ↑

  19. See United States v. Leon, 468 U.S. 897, 908 (1984). ↑

  20. See Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002) (“[T]he Supreme Court’s construction and reification of race in Fourth Amendment cases legitimizes and reproduces racial inequality in the context of policing.”); Brandon Hasbrouck, The Antiracist Constitution, 116 B.U. L. Rev. 87, 116 (2022) (“While the individual mechanisms [of procedural racism] have often been decried for their role in perpetuating white supremacy, the pattern of their adoption and application reveals a much larger problem: the Court is decidedly anti-Black.”). ↑

The Common Law of Interpretation

Courts and commentators have claimed that there is no methodological stare decisis. That is, the Supreme Court’s decision to use purposivism or textualism to interpret a legal text in one case is not binding in future cases. While a contrarian strain of scholars has argued that judicial decisions about interpretation should serve as controlling authority in later cases, critics fear that this approach would tie the hands of future courts too tightly.

However, this Note argues that the Supreme Court’s directions about how to interpret legal texts already have a soft and salutary authoritative force. It does so, first, by reconceptualizing so-called “methodological precedent.” Those who argue that interpretive decisions are not binding are led astray by the assumption that methodological stare decisis would look like a categorical commandment, such as: “Thou shalt not consult legislative history.” A more modest vision of methodological precedent is a kind of common law: that is, a collected series of smaller decisions converging on a set of norms for interpreting legal texts. Different norms might be settled to different degrees at different times. But as certain methods become accepted in the case law, even opponents may employ them, or feel that they have some constraining force. This kind of case-by-case development is already happening (albeit imperfectly). It has both horizontal and vertical effects, causing judges to adopt specific interpretive approaches or engage in specific modes of analysis. Additionally, this methodological common law is normatively desirable because it balances goals of stability and predictability while respecting the value of interpretive pluralism.

Introduction

The U.S. Supreme Court is in the business of determining the meaning of legal texts.1 1.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”).Show More It should be no surprise, then, that many of the pages in the U.S. Reports are devoted to communicating the Court’s views on the proper methods of interpretation. Some of these statements are general and trans-substantive, like the declaration, “Today, our statutory interpretation cases almost always start with a careful consideration of the text.”2 2.Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021).Show More Some are specific to the kind of legal directive, such as the principle that “remedial statutes should be liberally construed.”3 3.Peyton v. Rowe, 391 U.S. 54, 65 (1968).Show More Sometimes the Court articulates a canon of construction that is triggered by a particular context, such as the rule that “[i]mplications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction.”4 4.Immigr. Naturalization Serv. v. St. Cyr, 533 U.S. 289, 299 (2001).Show More

But what is the legal status of these interpretive directions? For many years, judges and scholars have agreed there is no such thing as “methodological stare decisis.”5 5.See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2144 (2002) (“[T]he Justices do not seem to treat methodology as part of the holding [of a case].”); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 389 (2005) (“[S]tare decisis effect attaches to the ultimate holding . . . but not to general methodological pronouncements, no matter how apparently firm.”); Stephen M. Rich, A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law, 87 S. Cal. L. Rev. 1197, 1197 (2014) (“When the Supreme Court rules on matters of statutory interpretation, it does not establish ‘methodological precedents.’” (quoting Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1902 (2011))); B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 167 n.4 (2015) (Thomas, J., dissenting) (“[N]o principle of stare decisis requires us to extend a tool of statutory interpretation from one statute to another without first considering whether it is appropriate for that statute.”).Show More No Supreme Court majority opinion purports to require that future justices be textualists or purposivists. Nor does one majority’s decision to use a particular extrinsic source (like dictionaries or drafting history) seem to mean that future courts must do the same. Thus, while a given case may stand for any number of legal propositions, each court supposedly writes on a blank methodological slate.

But this consensus may rest on eroding foundations. First, the wholesale exclusion of interpretive premises from a case’s “holding” has always been in tension with the Supreme Court’s view that the “portions of the opinion necessary to [reach the] result” are binding on future courts.6 6.Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). Although, what makes a part of an opinion “necessary” to the result and what kinds of propositions are “necessary” is open to interpretation.Show More The fact that the Supreme Court’s conclusions about legal interpretation are treated differently than its other outcome-determinative premises has been assumed more often than it has been defended. Second, an emerging wave of scholars has suggested that the Court’s statements about methodology should (and perhaps do) have some precedential effect.7 7.E.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1870 (2008) (“[A]s a matter of policy, courts should give extra-strong stare decisis effect to doctrines of statutory interpretation.”); Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681, 684 (2008) (terming decisions about judicial methodology “subdecisions” and arguing that “the purposes behind traditional stare decisis suggest that the appropriate reform is to extend the scope of stare decisis to statutory interpretation subdecisions”); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1754, 1848 (2010) [hereinafter Gluck, States as Laboratories] (arguing that methodological stare decisis “appears to be a common feature of some states’ statutory case law” and is therefore possible and potentially beneficial); Grace E. Hart, Comment, Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context, 124 Yale L.J. 1825, 1826 (2015) (arguing that statutory interpretation decisions should be treated as substantive law to help govern choice-of-law disputes); Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 106 (2020) (arguing primarily that lower courts follow the Supreme Court’s lead on methods of statutory interpretation).Show More They contend that rule of law values would be enhanced by clarity about how courts will approach difficult questions of statutory interpretation.

But these arguments in favor of methodological stare decisis have provoked strong criticism.8 8.See, e.g., Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1591 (2014) (“[I]t would be severely problematic for federal courts to attempt to freeze interpretive rules into place by applying stare decisis.”); Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in Precedent in the United States Supreme Court 135, 154 (Christopher J. Peters ed., 2013) (“[Adopting] a regime of methodological stare decisis . . . would for some period of time imperil rather than foster stability.”).Show More As a descriptive matter, at least some judges may not feel that they are bound by the Supreme Court’s prior methodological decisions.9 9.See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment) (“[W]e do not regard statements in our opinions about . . . generally applicable interpretive methods . . . as binding future Justices with the full force of horizontal stare decisis.”).Show More Indeed, it is hard for lawyers to believe that the Court’s interpretive views are “binding” in any sense when they have witnessed decades of intractable disagreement over the proper methods of statutory and constitutional interpretation.10 10.Gluck, States as Laboratories, supra note 7, at 1753–54.Show More As a normative matter, judges are likely to chafe at the suggestion that their deeply held convictions about interpretation are trumped by old judicial decisions or long-dead members of their court.11 11.See Randy J. Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, 97 Tex. L. Rev. 1125, 1149 (2019) (suggesting that a jurist would likely protest if “faced with the prospect of subordinating her individual view” and “urged to apply an interpretive methodology”).Show More

This Note pushes back against both of those objections. First, it argues that there is already a soft system of methodological precedent at the Supreme Court and in the lower federal courts. Both critics and detractors of the idea of methodological precedent generally assume that, if such precedent existed, the Supreme Court would issue (and future courts would follow) explicit and broad legal directives, like: “legislative history is a permissible source of evidence for resolving statutory ambiguity,” or “the Constitution should be interpreted according to its original public meaning.”12 12.See notes 57–59 and accompanying text.Show More But the absence of such categorical holdings does not mean that the interpretive statements that the Court does issue are not authoritative. Instead, the Supreme Court’s back-and-forth about interpretation operates as a common law of methods, where individual cases elucidate specific norms and facilitate consensus. It can take multiple cases and many decades for a methodological dispute to be “settled,” and different areas of the law are settled to different degrees. But as interpretive norms are enshrined in case law, they exert an authoritative force on the Supreme Court and lower courts in a way that mimics the effect of precedent. And second, despite the fears of commentators, this system is actually beneficial. In fact, a system of gradual methodological common law achieves many of the rule of law goals underlying stare decisis while still allowing room for interpretive pluralism.

The argument proceeds in four Parts. Part I briefly explores the concept of “precedent.” Part II proposes a common law model of interpretive precedent where individual cases serve as minor but meaningful authorities about the proper way to interpret legal texts. Over time, debates about interpretive methods can be settled through accumulated decisions and judicial practice, even without the Supreme Court explicitly dictating a comprehensive philosophy of interpretation. Part III is descriptive, arguing that such a common law of interpretive methods already exists. Part IV is a normative defense of this status quo.

  1. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”). ↑
  2. Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021). ↑
  3. Peyton v. Rowe, 391 U.S. 54, 65 (1968). ↑
  4. Immigr. Naturalization Serv. v. St. Cyr, 533 U.S. 289, 299 (2001). ↑
  5. See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2144 (2002) (“[T]he Justices do not seem to treat methodology as part of the holding [of a case].”); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 389 (2005) (“[S]tare decisis effect attaches to the ultimate holding . . . but not to general methodological pronouncements, no matter how apparently firm.”); Stephen M. Rich, A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law, 87 S. Cal. L. Rev. 1197, 1197 (2014) (“When the Supreme Court rules on matters of statutory interpretation, it does not establish ‘methodological precedents.’” (quoting Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1902 (2011))); B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 167 n.4 (2015) (Thomas, J., dissenting) (“[N]o principle of stare decisis requires us to extend a tool of statutory interpretation from one statute to another without first considering whether it is appropriate for that statute.”). ↑
  6. Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). Although, what makes a part of an opinion “necessary” to the result and what kinds of propositions are “necessary” is open to interpretation. ↑
  7. E.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1870 (2008) (“[A]s a matter of policy, courts should give extra-strong stare decisis effect to doctrines of statutory interpretation.”); Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681, 684 (2008) (terming decisions about judicial methodology “subdecisions” and arguing that “the purposes behind traditional stare decisis suggest that the appropriate reform is to extend the scope of stare decisis to statutory interpretation subdecisions”); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1754, 1848 (2010) [hereinafter Gluck, States as Laboratories] (arguing that methodological stare decisis “appears to be a common feature of some states’ statutory case law” and is therefore possible and potentially beneficial); Grace E. Hart, Comment, Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context, 124 Yale L.J. 1825, 1826 (2015) (arguing that statutory interpretation decisions should be treated as substantive law to help govern choice-of-law disputes); Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 106 (2020) (arguing primarily that lower courts follow the Supreme Court’s lead on methods of statutory interpretation). ↑
  8. See, e.g., Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1591 (2014) (“[I]t would be severely problematic for federal courts to attempt to freeze interpretive rules into place by applying stare decisis.”); Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in Precedent in the United States Supreme Court 135, 154 (Christopher J. Peters ed., 2013) (“[Adopting] a regime of methodological stare decisis . . . would for some period of time imperil rather than foster stability.”). ↑
  9. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment) (“[W]e do not regard statements in our opinions about . . . generally applicable interpretive methods . . . as binding future Justices with the full force of horizontal stare decisis.”). ↑
  10. Gluck, States as Laboratories, supra note 7, at 1753–54. ↑
  11. See Randy J. Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, 97 Tex. L. Rev. 1125, 1149 (2019) (suggesting that a jurist would likely protest if “faced with the prospect of subordinating her individual view” and “urged to apply an interpretive methodology”). ↑

  12. See notes 57–59 and accompanying text. ↑

Stakeholderism, Corporate Purpose, and Credible Commitment

One of the most significant recent phenomena in corporate governance is the embrace, by some of the most influential actors in the corporate community, of the view that corporations should be focused on furthering the interests of all corporate stakeholders as well as the broader society. This stakeholder vision of corporate purpose is not new. Instead, it has emerged in cycles throughout corporate law history. However, for much of that history—including recent history—the consensus has been that stakeholderism has not achieved dominance or otherwise significantly influenced corporate behavior. That honor is reserved for the corporate purpose theory that focuses on shareholders and profit. Thus, many view the most recent embrace of stakeholderism as empty rhetoric. In light of this view, and the relatively fickle history of allegiance to stakeholderism, this Article seeks to explore whether we can expect that this most recent resurgence of stakeholderism will be different and hence whether we can expect that corporate actors will work to ensure that their corporations are governed in a way that benefits all stakeholders.

Relying on the theory of credible commitment—a theory focused on predicting whether economic actors will comply with their promises—this Article argues that there are considerable obstacles to achieving stakeholderism. This Article first argues that there are some reasons for optimism that this most recent embrace of stakeholderism will translate into reality. Second, and despite that optimism, this Article draws upon credible commitment theory to argue that it is unlikely that stakeholderism will have a lasting impact on corporate conduct unless corporations make a credible commitment to operating in a way that advances stakeholder interests and a broader social purpose. Third, this Article not only highlights the significant credible commitment challenges posed by efforts to pursue a stakeholder-related corporate purpose, but it also reveals significant concerns with the ability of prevailing reforms to overcome those challenges. Nevertheless, this Article argues that these concerns do not necessarily doom to failure the credible commitment effort. Instead, relying on the too often overlooked emphasis credible commitment theory places on norms, this Article insists that the collection of governance mechanisms aimed at achieving credible commitment, even if flawed, may facilitate norm internalization in a manner that increases the likelihood that corporate actors will align their behaviors with stakeholderism.

Introduction

One of the most significant recent phenomena in corporate governance is the outspoken embrace of the view that corporations should operate in a manner that benefits society and all of the corporations’ stakeholders.1 1.See, e.g., Elizabeth Pollman, The History and Revival of the Corporate Purpose Clause, 99 Tex. L. Rev 1423, 1447–51 (2021) [hereinafter Pollman, History and Revival]; Colin Mayer, Prosperity: Better Business Makes the Greater Good 5–7, 9 (2018) (proposing that corporations be legally required to articulate a purpose); Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 106 Cornell L. Rev. 91, 124–26 (2020) (discussing reactions reflecting belief that focus on social purpose represented a “significant turning point”); Ofer Eldar, Designing Business Forms to Pursue Social Goals, 106 Va. L. Rev. 937, 939 (2020) (discussing trends toward firms pursuing social goals); Jill E. Fisch & Steven Davidoff Solomon, Should Corporations Have a Purpose?, 99 Tex. L. Rev. 1309, 1309–11 (2021) [hereinafter Fisch & Solomon, Should Corporations Have a Purpose?]; Elizabeth Pollman, Corporate Social Responsibility, ESG and Compliance, in The Cambridge Handbook of Compliance 662, 662–63 (Benjamin van Rooij & D. Daniel Sokol eds., 2021).Show More This Article refers to this view of corporate purpose as stakeholderism.2 2.See infra note 146 (explaining other labels used to refer to stakeholder-centered view of corporate purpose).Show More This recent embrace of stakeholderism is best captured by two of the most influential actors in the business community. In 2018, Larry Fink, the Chief Executive Officer (“CEO”) of BlackRock, Inc. (“BlackRock”), the world’s largest shareholder and asset manager,3 3.See The Rise of BlackRock, Economist (Dec. 5, 2013), https://www.economist.com/leader​s/2013/12/05/the-rise-of-blackrock [https://perma.cc/CVY2-R373]; Liam Kennedy, Top 500 Asset Managers 2021, IPE (June 2021), https://www.ipe.com/reports/top-500-asset-ma​nagers-2021/10053128.article [https://perma.cc/8M8U-3YTX] (identifying BlackRock, Vanguard, and State Street as three of the largest asset managers).Show More posted a letter to CEOs proclaiming that corporations had an obligation to make a “positive contribution to society.”4 4.See Larry Fink, 2018 Letter to CEOs: A Sense of Purpose [hereinafter Fink, 2018 Letter], https://ww​w.blackrock.com/corporate/investor-relations/2018-larry-fink-ceo-letter [https://perma.cc/H​U35-78YS] (last visited Apr. 14, 2022).Show More Fink asserted that corporations should be operated with a view towards benefitting all stakeholders as well as the broader community.5 5.See id.Show More In 2019, Fink reiterated these sentiments, proclaiming that corporations need to have purpose and that “[p]urpose is not the sole pursuit of profits but the animating force for achieving them.”6 6.Larry Fink, 2019 Letter to CEOs: Purpose and Profit [hereinafter Fink, 2019 Letter], https://www.blackrock.com/corpora​te/investor-relations/2019-larry-fink-ceo-letter [https://perma.cc/Y3NB-JSA7] (last visited Apr. 14, 2022).Show More

Along these same lines, in 2019, the Business Roundtable, the nation’s leading nonprofit association of chief executives and directors, released a statement signed by 181 CEOs, expressing a commitment to embracing a corporate purpose that included a “fundamental commitment” to deliver value to all of the corporations’ stakeholders.7 7.Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy that Serves All Americans,’ Bus. Roundtable (Aug. 19, 2019) [hereinafter Business Roundtable Statement], https://www.businessroundt​able.org/business-roundtable-redefines-the-purpose-of-a-corporation-to-promote-an-econom​y-that-serves-all-americans [https://perma.cc/XJS9-TTR4].Show More The Business Roundtable made clear that its statement was aimed at “[r]edefin[ing]” corporate purpose to promote “an economy that serves all Americans.”8 8.Id.Show More A 2020 Fortune survey revealed that sixty-three percent of CEOs surveyed agreed with the Business Roundtable statement.9 9.See Ira T. Kay, Chris Brindisi, Blaine Martin, Soren Meischeid & Gagan Singh, The Stakeholder Model and ESG: Assessing Readiness and Design Implications for Executive Incentive Metrics – A Conceptual Approach, PayGovernance (Sept. 1, 2020), https://w​ww.paygovernance.com/viewpoints/the-stakeholder-model-and-esg [https://perma.cc/K2JF-WAZZ]; Alan Murray & David Meyer, The Pandemic Widens Rifts; Businesses Need to Help Heal Them, Fortune (May 11, 2020), https://fortune.com/2020/05/11/coronavirus-pandemic-stakeholder-capitalism/ [https://perma.cc/53H3-P39R].Show More

There are certainly reasons to be skeptical about the potential impact of this statement. First, we have been here before.10 10.See Leo E. Strine, Jr., Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy: A Reply to Professor Rock, 76 Bus. Law. 397, 411–15 (2021) [hereinafter Strine, Restoration] (discussing origins of social purpose debate).Show More The concept of a corporate purpose focused on stakeholders and social purpose is far from new. As early as 1932, Columbia Law Professor Merrick Dodd insisted that the corporation must serve a community of interests, including employees, creditors, and the broader society, and that the corporation should behave in a socially responsible manner.11 11.See E. Merrick Dodd, Jr., For Whom Are Corporate Managers Trustees?, 45 Harv. L. Rev. 1145, 1147–48, 1161 (1932).Show More Moreover, throughout the history of corporate law, various scholars and corporate actors have advanced the view that corporations have an obligation to be socially responsible and serve the interests of all stakeholders impacted by the corporation’s activities, including shareholders, non-shareholders, and the broader community.12 12.See Lisa M. Fairfax, Doing Well While Doing Good: Reassessing the Scope of Directors’ Fiduciary Obligations in For-Profit Corporations with Non-Shareholder Beneficiaries, 59 Wash. & Lee L. Rev. 409, 432 (2002) [hereinafter Fairfax, Doing Well While Doing Good]; Lisa M. Fairfax, The Rhetoric of Corporate Law: The Impact of Stakeholder Rhetoric on Corporate Norms, 31 J. Corp. L. 675, 690–98 (2006) [hereinafter Fairfax, Rhetoric of Corporate Law] (noting proliferation of social purpose and social responsibility rhetoric in corporate documents and throughout the business community); Margaret M. Blair & Lynn A. Stout, A Team Production Theory of Corporate Law, 85 Va. L. Rev. 247, 280–81 (1999); William W. Bratton, The Economic Structure of the Post-Contractual Corporation, 87 Nw. U. L. Rev. 180, 208–15 (1992) (outlining the “entity theory” of corporation); Timothy L. Fort, The Corporation as Mediating Institution: An Efficacious Synthesis of Stakeholder Theory and Corporate Constituency Statutes, 73 Notre Dame L. Rev. 173, 184–86 (1997) (detailing stakeholder theory); C.A. Harwell Wells, The Cycles of Corporate Social Responsibility: An Historical Retrospective for the Twenty-First Century, 51 U. Kan. L. Rev. 77, 91–96 (2002) (discussing the debate on corporate social responsibility sparked by Dodd’s 1932 article).Show More Despite these periods, many scholars consistently and vehemently insist that “shareholder primacy,” which maintains that the corporation’s purpose is to maximize profits to its shareholders,13 13.See Adolf A. Berle, Jr. & Gardiner C. Means, The Modern Corporation and Private Property 8–9 (1932); Milton Friedman, The Social Responsibility of Business Is to Increase Its Profits, N.Y. Times Mag., Sept. 13, 1970, at 32, 33, 126 (stating that corporate executives are employees of shareholders). For a discussion of more recent supporters of shareholder maximization, see, for example, Sanjai Bhagat & Glenn Hubbard, Should the Modern Corporation Maximize Shareholder Value?, AEI Econ. Perspectives, Sept. 1, 2020, at 1, 3–4 and Bebchuk & Tallarita, supra note 1, at 94–95. See also Fairfax, Doing Well While Doing Good, supra note 12, at 430–31 (discussing shareholder primacy theory); Edward B. Rock, For Whom is the Corporation Managed in 2020?: The Debate over Corporate Purpose, 76 Bus. Law. 363, 363–67, 375 (2021) [hereinafter Rock, For Whom is the Corporation Managed?] (detailing various perspectives on stakeholderism).Show More should serve as the primary guide for how corporate agents govern their corporation.14 14.See Henry Hansmann, How Close is the End of History?, 31 J. Corp. L. 745, 746 (2006); Fairfax, Rhetoric of Corporate Law, supra note 12, at 690.Show More This includes scholars who believe that stakeholderism is more appropriate.15 15.See Fairfax, Rhetoric of Corporate Law, supra note 12, at 682.Show More The very fact that we have been here before, and that scholars continue to dismiss stakeholderism, suggests reason for skepticism about whether the promises contained in stakeholderism will be realized. A second reason for skepticism is the fact that many corporations, including those who signed the Business Roundtable commitment, have a history related to socially responsible acts that is questionable at best.

This history, coupled with the historically fickle nature of the embrace of stakeholderism, begs an important question: Can we really expect that the most recent embrace of stakeholderism will translate into real change in corporate behavior? This Article answers that question by drawing on insights from the theory of credible commitment. The theory of credible commitment is an ideal lens through which to explore the viability of stakeholderism because it is aimed at exploring the extent to which individuals will honor the promises they make in an economic exchange.16 16.See infra Part II (describing credible commitment theory).Show More

With credible commitment theory as a backdrop, this Article makes four important claims. This Article begins by acknowledging reasons to be skeptical about the impact of the most recent embrace of stakeholderism on corporate behavior. Nonetheless, this Article first contends that the type of corporate actors involved in this most recent embrace, coupled with socially conscious stakeholders’ growing ability to influence corporate reputation and bottom line through their use of twenty-first century public and social media platforms, may be influential enough to offer a genuine opportunity to turn the corner, thus setting the stage for corporations to genuinely make efforts to operate in a manner that advances the interests of all stakeholders.

Second, however, this Article argues that unless corporations make a credible commitment to ensuring that corporations will focus on other stakeholders, it is not likely that corporations will be able to seize this opportunity so that it translates into a genuine shift in corporate attitude and behavior, particularly in the medium and long-term. In advancing this argument, this Article draws from credible commitment theory to remind us that the realities of the economic environment along with the nature of economic promises mean that we cannot simply assume that corporations will be incentivized to adhere to their commitments, even if we assume they are acting in good faith when they make those commitments. In other words, this Article reminds us why corporate commitments have credibility problems.

Third, this Article not only argues that there are significant challenges to credible commitment in the context of stakeholderism but also questions whether available corporate governance mechanisms can overcome these challenges. In so doing, this Article sketches out a typology of factors necessary to facilitate credible commitment, and through the lens of this typology, demonstrates the manner in which prevailing credible commitment vehicles, even if reformed, may fall short of addressing those factors.

However, this Article argues that this demonstration does not doom credible commitment in this area to failure. To be sure, several prominent scholars have concluded that the kind of credible commitment flaws highlighted in this Article render efforts to actualize stakeholderism infeasible.17 17.See Bebchuk & Tallarita, supra note 1, at 147; Rock, For Whom is the Corporation Managed?, supra note 13, at 391–95 (noting factors that complicate implementing a regime of stakeholder primacy); Dorothy S. Lund, Corporate Finance for Social Good, 121 Colum. L. Rev. 1617, 1619–21 (2021).Show More This Article rejects that conclusion. Instead, this Article argues that such a conclusion fails to account for the emphasis credible commitment theorists place on informal constraints in the form of norms and thus fails to account for the possibility that the cumulative effect of reforming foundational governance mechanisms may serve a very important normative function.18 18.See infra Part IV.Show More This Article uses the term “norm” to refer to expectations regarding how individuals ought to behave.19 19.For general discussion of the meaning of the term “norm,” see Cristina Bicchieri, Norms in the Wild: How to Diagnose, Measure and Change Social Norms 28–32 (2017) [hereinafter Bicchieri, Norms in the Wild]; Cristina Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms 29 (2006) [hereinafter Bicchieri, The Grammar of Society]; Eric A. Posner, Law and Social Norms 5 (2000); Cass R. Sunstein, Social Norms and Social Rules, 96 Colum. L. Rev. 903, 914 (1996) [hereinafter Sunstein, Social Norms]; Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. Pa. L. Rev. 1643, 1656–57 (1996).Show More Social science and empirical research reveal that norms can have a significant impact on behavior because individuals feel pressure to align their behavior with prevailing norms.20 20.See infra Section IV.B.Show More While external pressures such as those embedded in formal rules and legal constraints associated with corporate governance vehicles can ensure norm compliance, norms have the greatest chance of influencing behavior when they are internalized.21 21.See infra Section IV.B.Show More This is because when norm internalization occurs, individuals comply with the norm irrespective of formal rules, legal enforcement, or other forms of external pressure.22 22.See infra Section IV.B.Show More While the process of norm internalization is inexact, consistent and repeated exposure to norms, the credibility and legitimacy of normative sources, and the visibility of the norm can all contribute to the process of norm internalization.23 23.See infra Part IV.Show More Based on these insights, this Article argues that the collection of governance mechanisms aimed at achieving credible commitment, even if flawed, will be instrumental in facilitating norm internalization in a manner that increases the potential for corporate actors to align their behaviors with stakeholderism.

From this perspective, credible commitment theory suggests that while these reforms may not be an end, they may facilitate a means to an end. That is, their cumulative effect may be to increase the likelihood that individual corporate actors will believe that they ought to embrace stakeholderism, thereby increasing the likelihood that such actors will seek to engage in behaviors that align with such embrace—even or especially when external actors are not around to pressure them to do so.

Part I of this Article highlights the most recent embrace of stakeholderism and then articulates reasons for skepticism and optimism related to that embrace. Part II introduces the theory of credible commitment and demonstrates why credible commitment is necessary to actualize stakeholderism. Part II then draws upon credible commitment theory to advance a typology of factors that hinder credible commitment. Finally, Part II utilizes that typology to illustrate how the significant challenges associated with credible commitment apply to corporate behavior in general and to behavior focused on stakeholders in particular.

In light of this illustration, Part III begins by identifying the set of factors necessary for overcoming credible commitment challenges to stakeholderism. Part III concludes by surfacing several flaws with prevailing credible commitment reforms and pinpointing the difficulties with overcoming those flaws.

Despite this conclusion, Part IV redeems the collection of proffered reforms by demonstrating that they can play a role in facilitating credible commitment through increasing the potential for norm internalization, and thus opening a pathway for altering corporate behavior in favor of stakeholderism in a manner that does not rely on formal rules and constraints. Part IV then addresses important limitations and concerns associated with this norm internalization exercise. Part V concludes.

Credible commitment theory demonstrates that credible commitments are an essential component to any economic promise, thereby highlighting the importance of credible commitment to the promises embedded in stakeholderism. That theory also highlights the difficulty of credibly committing to stakeholderism and raises serious concerns about whether reforms can combat those difficulties. Viewed from this lens, credible commitment theory appears to confirm the skepticism with which many have greeted this new wave of stakeholder rhetoric. However, this Article concludes with a note of optimism. It is entirely possible that the collection of mechanisms aimed at reforming core aspects of our governance system can facilitate credible commitment by altering the normative expectations that guide corporate behavior, paving the way for corporations to make real on their promise to focus on all of their stakeholders.

  1. See, e.g., Elizabeth Pollman, The History and Revival of the Corporate Purpose Clause, 99 Tex. L. Rev 1423, 1447–51 (2021) [hereinafter Pollman, History and Revival]; Colin Mayer, Prosperity: Better Business Makes the Greater Good 5–7, 9 (2018) (proposing that corporations be legally required to articulate a purpose); Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 106 Cornell L. Rev. 91, 124–26 (2020) (discussing reactions reflecting belief that focus on social purpose represented a “significant turning point”); Ofer Eldar, Designing Business Forms to Pursue Social Goals, 106 Va. L. Rev. 937, 939 (2020) (discussing trends toward firms pursuing social goals); Jill E. Fisch & Steven Davidoff Solomon, Should Corporations Have a Purpose?, 99 Tex. L. Rev. 1309, 1309–11 (2021) [hereinafter Fisch & Solomon, Should Corporations Have a Purpose?]; Elizabeth Pollman, Corporate Social Responsibility, ESG and Compliance, in The Cambridge Handbook of Compliance 662, 662–63 (Benjamin van Rooij & D. Daniel Sokol eds., 2021). ↑
  2. See infra note 146 (explaining other labels used to refer to stakeholder-centered view of corporate purpose). ↑
  3. See The Rise of BlackRock, Economist (Dec. 5, 2013), https://www.economist.com/leader​s/2013/12/05/the-rise-of-blackrock [https://perma.cc/CVY2-R373]; Liam Kennedy, Top 500 Asset Managers 2021, IPE (June 2021), https://www.ipe.com/reports/top-500-asset-ma​nagers-2021/10053128.article [https://perma.cc/8M8U-3YTX] (identifying BlackRock, Vanguard, and State Street as three of the largest asset managers). ↑
  4.  See Larry Fink, 2018 Letter to CEOs: A Sense of Purpose [hereinafter Fink, 2018 Letter], https://ww​w.blackrock.com/corporate/investor-relations/2018-larry-fink-ceo-letter [https://perma.cc/H​U35-78YS] (last visited Apr. 14, 2022). ↑
  5. See id. ↑
  6.  Larry Fink, 2019 Letter to CEOs: Purpose and Profit [hereinafter Fink, 2019 Letter], https://www.blackrock.com/corpora​te/investor-relations/2019-larry-fink-ceo-letter [https://perma.cc/Y3NB-JSA7] (last visited Apr. 14, 2022). ↑
  7. Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy that Serves All Americans,’ Bus. Roundtable (Aug. 19, 2019) [hereinafter Business Roundtable Statement], https://www.businessroundt​able.org/business-roundtable-redefines-the-purpose-of-a-corporation-to-promote-an-econom​y-that-serves-all-americans [https://perma.cc/XJS9-TTR4]. ↑
  8. Id. ↑
  9. See Ira T. Kay, Chris Brindisi, Blaine Martin, Soren Meischeid & Gagan Singh, The Stakeholder Model and ESG: Assessing Readiness and Design Implications for Executive Incentive Metrics – A Conceptual Approach, PayGovernance (Sept. 1, 2020), https://w​ww.paygovernance.com/viewpoints/the-stakeholder-model-and-esg [https://perma.cc/K2JF-WAZZ]; Alan Murray & David Meyer, The Pandemic Widens Rifts; Businesses Need to Help Heal Them, Fortune (May 11, 2020), https://fortune.com/2020/05/11/coronavirus-pandemic-stakeholder-capitalism/ [https://perma.cc/53H3-P39R]. ↑
  10. See Leo E. Strine, Jr., Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy: A Reply to Professor Rock, 76 Bus. Law. 397, 411–15 (2021) [hereinafter Strine, Restoration] (discussing origins of social purpose debate). ↑
  11. See E. Merrick Dodd, Jr., For Whom Are Corporate Managers Trustees?, 45 Harv. L. Rev. 1145, 1147–48, 1161 (1932). ↑
  12. See Lisa M. Fairfax, Doing Well While Doing Good: Reassessing the Scope of Directors’ Fiduciary Obligations in For-Profit Corporations with Non-Shareholder Beneficiaries, 59 Wash. & Lee L. Rev. 409, 432 (2002) [hereinafter Fairfax, Doing Well While Doing Good]; Lisa M. Fairfax, The Rhetoric of Corporate Law: The Impact of Stakeholder Rhetoric on Corporate Norms, 31 J. Corp. L. 675, 690–98 (2006) [hereinafter Fairfax, Rhetoric of Corporate Law] (noting proliferation of social purpose and social responsibility rhetoric in corporate documents and throughout the business community); Margaret M. Blair & Lynn A. Stout, A Team Production Theory of Corporate Law, 85 Va. L. Rev. 247, 280–81 (1999); William W. Bratton, The Economic Structure of the Post-Contractual Corporation, 87 Nw. U. L. Rev. 180, 208–15 (1992) (outlining the “entity theory” of corporation); Timothy L. Fort, The Corporation as Mediating Institution: An Efficacious Synthesis of Stakeholder Theory and Corporate Constituency Statutes, 73 Notre Dame L. Rev. 173, 184–86 (1997) (detailing stakeholder theory); C.A. Harwell Wells, The Cycles of Corporate Social Responsibility: An Historical Retrospective for the Twenty-First Century, 51 U. Kan. L. Rev. 77, 91–96 (2002) (discussing the debate on corporate social responsibility sparked by Dodd’s 1932 article). ↑
  13. See Adolf A. Berle, Jr. & Gardiner C. Means, The Modern Corporation and Private Property 8–9 (1932); Milton Friedman, The Social Responsibility of Business Is to Increase Its Profits, N.Y. Times Mag., Sept. 13, 1970, at 32, 33, 126 (stating that corporate executives are employees of shareholders). For a discussion of more recent supporters of shareholder maximization, see, for example, Sanjai Bhagat & Glenn Hubbard, Should the Modern Corporation Maximize Shareholder Value?, AEI Econ. Perspectives, Sept. 1, 2020, at 1, 3–4 and Bebchuk & Tallarita, supra note 1, at 94–95. See also Fairfax, Doing Well While Doing Good, supra note 12, at 430–31 (discussing shareholder primacy theory); Edward B. Rock, For Whom is the Corporation Managed in 2020?: The Debate over Corporate Purpose, 76 Bus. Law. 363, 363–67, 375 (2021) [hereinafter Rock, For Whom is the Corporation Managed?] (detailing various perspectives on stakeholderism). ↑
  14. See Henry Hansmann, How Close is the End of History?, 31 J. Corp. L. 745, 746 (2006); Fairfax, Rhetoric of Corporate Law, supra note 12, at 690. ↑
  15. See Fairfax, Rhetoric of Corporate Law, supra note 12, at 682. ↑
  16. See infra Part II (describing credible commitment theory). ↑
  17. See Bebchuk & Tallarita, supra note 1, at 147; Rock, For Whom is the Corporation Managed?, supra note 13, at 391–95 (noting factors that complicate implementing a regime of stakeholder primacy); Dorothy S. Lund, Corporate Finance for Social Good, 121 Colum. L. Rev. 1617, 1619–21 (2021). ↑
  18. See infra Part IV. ↑
  19. For general discussion of the meaning of the term “norm,” see Cristina Bicchieri, Norms in the Wild: How to Diagnose, Measure and Change Social Norms 28–32 (2017) [hereinafter Bicchieri, Norms in the Wild]; Cristina Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms 29 (2006) [hereinafter Bicchieri, The Grammar of Society]; Eric A. Posner, Law and Social Norms 5 (2000); Cass R. Sunstein, Social Norms and Social Rules, 96 Colum. L. Rev. 903, 914 (1996) [hereinafter Sunstein, Social Norms]; Robert D. Cooter, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. Pa. L. Rev. 1643, 1656–57 (1996). ↑
  20. See infra Section IV.B. ↑
  21. See infra Section IV.B. ↑
  22. See infra Section IV.B. ↑

  23. See infra Part IV. ↑

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