The Humanities Strike Back: (E)ESG and Justice Strine Challenge Gamer Shareholder Primacy

9 Pages Posted: 7 Nov 2022

Date Written: October 1, 2022


Imagine if we stopped deciding basketball games by baskets alone. Instead, victory would be determined by a combination of baskets, rebounds, steals, and fouls. Each of these is universally acknowledged as a critical component of the game. Why not reward them directly instead of indirectly, by their connection to baskets alone? Don’t we track steals and award rebounding titles? As to fouls, we use foul shots to convert their value into the only outcome of interest. But don’t fouls also have an ethical dimension, one concealed by basket-scoring primacy? And speaking of ethics, should scoring be limited to on-court behavior? For example, in the recent Netflix documentary, The Last Dance, about Michael Jordan’s final championship year with the Chicago Bulls, the Detroit Pistons served as a convenient foil to the Second City’s heroic team. Detroit’s “Bad Boys” played dirty, fouled frequently, and famously walked off the court before the end of the game, and without shaking hands, after losing to the Bulls in the 1991 Eastern Conference Finals. Why let teams like that even get so far? Why not directly factor their behavior into the score, forcing the team to internalize the full cost of its conduct?

The response to my hypothetical basketball reform is straightforward. Even if these alternative metrics have some merit, even if scoring all would provide a richer picture of what occurred on (and off) the court, their inclusion would destroy the game. Almost any single, simple metric would be preferable to more than one. Multiple metrics would undermine consensus about who won, and even a combined weighted metric might trigger endless debates not about the outcome but about the weights. The latter would let fans leave the arena or shut off their televisions either unsure of who won or agreeing to disagree about who did. No more last-second buzzer beaters, no more highs and lows of decisive victory, just endless disputes. Playoffs would become debate tournaments, a prospect that appeals to no one except lawyers. There could never be an undisputed scoring champion like a Michael Jordan, or at least not one without an asterisk, “*baskets only.” The joy of the game is increased, its energy concentrated and intensified by its ability to produce these winners and losers, to create an absolute and universally agreed hierarchy—league tables—to do so within fixed timeframes—quarters—that have a clear beginning and end, enabling victors to be declared and the season to restart, a fresh chance for losers to become winners and vice versa. To give up all that, even in exchange for greater fairness or accuracy, would not be worth the sacrifice.

Leo E. Strine, Jr. is closing in on Blair and Stout for the undisputed title of all-time top-scoring stakeholderist...

Keywords: shareholder primacy, stakeholderism, fiduciary duty, ESG, shareholder, stakeholder

JEL Classification: G11, G23, K22, K41, E22, E62, G23, G31, H55, O16, R53, D74, G34, G38, K23

Suggested Citation

Webber, David H., The Humanities Strike Back: (E)ESG and Justice Strine Challenge Gamer Shareholder Primacy (October 1, 2022). University of Pennsylvania Journal of Business Law, Vol. 24, No. 4, 2021-22, Available at SSRN:

David H. Webber (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-358-6194 (Phone)

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