Fershee, Joshua Paul, This, I Believe: A New Look at Corporate Purpose, Director Primacy and the Business Judgment Rule (September 8, 2020). Transactions: The Tennessee Journal of Business Law, , Vol. 21, pp. 301-10, 2020, Available at SSRN: https://ssrn.com/abstract=3689236
I believe in the theory of Director Primacy. I believe in the Business Judgment Rule as an abstention doctrine, and I believe that Corporate Social Responsibility is choice, not a mandate. I believe in long-term planning over short-term profits, but I believe that directors get to choose either one to be the focus of their companies. I believe that directors can choose to pursue profit through corporate philanthropy and good works in the community or through mergers and acquisitions with a plan to slash worker benefits and sell-off a business in pieces. I believe that a corporation can make religious-based decisions — such as closing on Sundays — and that a corporation can make worker-based decisions — such as providing top-quality health care and parental leave — but I believe both such bases for decisions must be rooted in the directors’ judgment such decisions will maximize the value of the business for shareholders for the decision to get the benefit of business judgment rule protection. I believe that directors, and not shareholders or judges, should make decisions about how a company should pursue profit and stability. I believe that public companies should be able to plan like private companies, and I believe the decision to expand or change a business model is the decision of the directors and only the directors. I believe that respect for directors’ business judgment allows for coexistence of companies of multiple views — from CVS Caremark and craigslist to Wal-Mart and Hobby Lobby — without necessarily violating any shareholder wealth maximization norms. Finally, I believe that the exercise of business judgment should not be run through a liberal or conservative filter because liberal and conservative business leaders have both been responsible for massive long-term wealth creation. This, I believe.
It's not a bad creed.
