Critical Corporate Law, Colorblind Constitutional Law
7 Pages Posted: 26 Jul 2010 Last revised: 10 Aug 2010
Date Written: 2008
Should minority status be a relevant datum for judicial decision? That is the question motivating my paper, Minorities, Shareholder and Otherwise, published a handful of years ago in the Yale Law Journal. This short essay published in the Yale Law Journal Online introduces an online symposium revisiting that work, with responses from Stephen Bainbridge, Richard Delgado, and Kevin Johnson, and a final rejoinder from me.
In Minorities, Shareholder and Otherwise, I demonstrate that corporate law recognizes the relevance of minority status, even while constitutional law more and more insists on minority-blindness. I argue that this is precisely backwards – that the constitutional domain should require greater judicial vigilance with respect to minority status than the corporate domain. The difficulty of exit from a polity and the inability to negotiate (or at least select among) terms of entry into a polity, not to mention a history of grave injustice, call for special attention to minorities in the constitutional context.
By juxtaposing the colorblind aspirations of current constitutional law doctrine with the minority-mindfulness of corporate law, I reveal a fundamental incoherence in the law. Minorities, Shareholder and Otherwise identifies this puzzle, and suggests that corporate law has a grip on real world relations that constitutional law increasingly abjures.
Keywords: minority, majority, shareholder wealth maximization, colorblindness, minority shareholders
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