How Would Directors Make Business Decisions Under a Stakeholder Model?

Business Lawyer, Forthcoming (2022)

U Iowa Legal Studies Research Paper No. 2022-06

22 Pages Posted: 18 Feb 2022 Last revised: 9 Mar 2022

See all articles by Robert T. Miller

Robert T. Miller

University of Iowa College of Law; Classical Liberal Institute, New York University Law School

Date Written: February 6, 2022

Abstract

Strong forms of the stakeholder model of corporate governance hold that, in making business decisions, directors should consider the interests of all corporate constituencies (employees, customers, suppliers, shareholders, etc.) in such a way that directors may sometimes decide to transfer value to a non-shareholder constituency even though doing so produces no net benefit for shareholders even in the long-term. This article makes four main points about the stakeholder model. First, although its advocates often speak as if the model placed all corporate constituencies on a par, in fact the model uniquely disadvantages shareholders: since the claims of other constituencies arise in contract or by law, directors have no power to invade these claims for the benefit of shareholders; hence, business decisions made under a stakeholder model will often transfer value from shareholders to other constituencies but never from other constituencies to shareholders. Second, although critics of the stakeholder model have long argued that the model provides no definite standard by which directors may decide what to do in particular cases, this greatly understates the point. In fact, the stakeholder model leaves business decisions radically indeterminate, for it includes no normative criteria by which any business decision could be judged to be any better or any worse than any other. Third, some normative criteria that can be added to the stakeholder model and might seem to solve this problem in fact fail to do so; this includes criteria based on Kaldor-Hicks efficiency, on hypothetical bargains among the corporate constituencies, or even on Delaware doctrines about allocating merger consideration among classes of shareholders. Finally, the article notes a surprising point of agreement between advocates of stakeholderism and its critics, viz., that decisions made under a stakeholder model would be essentially political in nature. That is, they will be based not on rational, normative considerations but on the varying abilities of different constituencies to pressure or lobby the directors—i.e., business decisions become essentially rent-seeking contests.

Keywords: stakeholders, stakeholder governance, esg, shareholder wealth, shareholder value, Berle-Dodd, stakeholderism

JEL Classification: K20, K22, M10, M14, M20, A13

Suggested Citation

Miller, Robert T., How Would Directors Make Business Decisions Under a Stakeholder Model? (February 6, 2022). Business Lawyer, Forthcoming (2022), U Iowa Legal Studies Research Paper No. 2022-06, Available at SSRN: https://ssrn.com/abstract=4032539 or http://dx.doi.org/10.2139/ssrn.4032539

Robert T. Miller (Contact Author)

University of Iowa College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States
(319) 335-9034 (Phone)

HOME PAGE: http://https://law.uiowa.edu/people/robert-t-miller

Classical Liberal Institute, New York University Law School ( email )

40 Washington Square South
Individual, NY 10012-1099
United States
13193359001 (Phone)

HOME PAGE: http://www.classicalliberalinstitute.org/

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