In 2010s Citizens United, the Supreme Court held that corporations do indeed have a right to freedom of speech, just as regular citizens do, and that the government could not restrict expenditures based on an entity’s corporate identity. Citizens United thereby allowed corporate donations to flood into elections. In her feminist judgement, Carliss Chatman breaks with the original opinion and refuses to extend the political speech rights of individuals to corporations. She grounds her analysis in the injustice of affording full personhood rights to corporations – which are artificial persons – even as natural persons like women and minorities have historically not enjoyed such rights and continue to suffer inequality. Amy Sepinwall’s commentary situates and contextualizes the feminist judgment, and then questions a key premise. She suggests an alternate feminist approach focusing on the right of the listener to hear from all perspectives, rather than having one side use spending to dominate – and drown out – other voices.

In U.S. v. Chestman, the Second Circuit applied the misappropriation theory to insider trading. Robert Chestman, a stockbroker, received a tip from his client Keith Loeb, who was informed of material nonpublic information by his wife Susan. The misappropriation theory finds liability when a party fails to disclose the use of confidential information for trading and tipping to the party to whom a duty of confidence and trust is owed. The Chestman court used the theory but decided that Susan gave the information “gratuitously” to Keith without expectation of confidence; therefore, Chestman’s conviction could not be sustained under the misappropriation theory. Unlike this restrictive definition of fiduciary relationships, Professor Karen Woody, writing as Judge Woody in her rewritten opinion, instead finds that Keith breached a duty of confidence to Susan. As highlighted by Professor Donna Nagy in her commentary on Woody’s opinion, Susan’s choice to trust her husband was not – and should not be – an individual choice or a rebuttable presumption, but rather a fundamental feature of marriage as “definitionally a relationship of trust and confidence.” Nagy’s commentary explains the courage of augmenting spousal duties of trust and confidence, despite declining marriage rates amidst the emergence of the third wave of feminism.

The #MeToo movement exploded in the wake of Harvey Weinstein’s sexual misconduct while being a director and executive for TWC. Over 100 women have reported abuse or harassment by Weinstein in the course of his employment. Employment Agreements are given great leniency to draft around default rules in many states. As Professor Alexandra Andov describes in her commentary, the terms of Weinstein’s various employment agreements incentivized or sheltered behavior and crimes that harm women. Limited oversight and reporting, expansive indemnification provisions, underinclusive codes of conduct, and overly protective terms of termination contributed to Weinstein’s reign of terror on women around him. Professor Susan Chesler provides a modified employment contract that features narrative theory and “tone from the top” to increase accountability for employees and protection for victims. Drafting employment contracts to achieve these goals is achieved by mandated reporting of all incidents, eliminating indemnification to the wrongdoer for sexual wrongdoing, requiring compliance with investigations, and subjecting termination to cause employees to terminate without the ability to cure instances of sexual misconduct. Chesler’s contract is a starting point for transforming relationships across an entire organization, provide voice for stakeholders, and foster a culture that respects women’s dignity.

Sunita Malepati’s commentary describes how number of minority shareholders brought suit against a family-owned supermarket, Market Basket, with a history of treating employees and other stakeholders well. A group of minority shareholders had offered to sell their shares to a third party, and CEO Arthur T. Demoulas resisted, arguing that the shareholders could not sell their stock if it would imperil the corporation’s tax status. The original opinion found that the shareholders could sell their shares to whom they pleased, regardless of how it might impact the corporation. The feminist judgment rejects the original opinion, applying a feminist ethic-of-care lens and embracing a feminist-informed stakeholder theory of corporate governance. Rather than replicating the shareholder primacy model’s privileging of shareholder-owners, the feminist judgment vindicates the interests of the corporation’s employee-stakeholders and community the corporation serves—each ethnically and socioeconomically diverse groups.

Using a communal approach that employs diverse feminist perspectives, co-authors Anne Choike, Martha Albertson Fineman, and Cheryl L. Wade argue that feminism offers corporate law a vitally important analytical tool to advance the creation of a more just legal framework governing corporations and their stakeholders. Choike, Fineman, and Wade highlight feminist corporate law literature that uses various feminist and feminist-inspired approaches to illuminate how using such perspectives can facilitate critical examination of corporate law concepts (including corporate personhood, limited liability, board diversity, firm ownership, and theories of the firm). Choike, Fineman and Wade argue that each type of feminism offers unique tools to analyze corporate law. Liberal feminism’s focus on gender identity, among other intersectional identity characteristics, reveals corporate law’s inequitable substance and operation. Relational feminism’s attention to gendered values and ethical frameworks highlights their impact upon the role and function of the corporation. Dominance feminism’s focus on power enables critique of implicitly gendered privileges that corporate law confers upon corporate actors. Feminism-inspired universal theories like vulnerability theory transcend gender to consider how institutional relationships in corporate law, such as principal/agent and worker/owner, may be unequal. Professional practitioners, scholars, and students can benefit from this chapter.

Following the publication of a U.S. News and World Report article about ICN’s CEO, Panic, entitled “Sex and the CEO” detailing the pharmaceutical company’s expansive cover-up of workplace sexual harassment, a shareholder, White, filed suit against Panic for breaching his fiduciary duty by using corporate funds to resolve sexual harassment claims. The feminist rewrite finds that Panic and ICN’s board failed to exercise valid business judgment and did breach their fiduciary duty. The lack of diversity on ICN’s all-male boardroom is noted as a factor that led to the acceptance of Panic’s workplace sexual harassment and the allowance of corporate funds to actively conceal it. The examination refuses to sanitize the legal analysis to only rules and processes and instead chooses to analyze the case for its full revealing facts. The rewritten opinion views ICN’s board’s repeated decision to use corporate funds to settle sexual harassment cases as a proof of the fact that the board did in fact have actual knowledge of the persistent sexual harassment of its employees by Panic. Using precedent available at the time of White v. Panic, the feminist rewrite is able to come to the conclusion, which has become more common twenty years later in the post-#MeToo world.

In Smith v. Van Gorkom, the Delaware Supreme Court held that corporate directors owe a duty of care to act on “an informed basis, in good faith, and the honest belief that the action taken was in the best interest of the company.” This holding shocked boardrooms everywhere by subjecting directors to the threat of personal liability for gross negligence in decision-making. While legislatures moved swiftly to allow corporations to adopt exculpation clauses relieving directors from these heightened standards, Van Gorkom remains a high-water mark in holding directors liable for their actions. Lua Yuille’s feminist judgment expands Van Gorkom’s reach, focusing on the homogeneity of the all-white male board and resulting in lack of diverse qualities and perspectives. She takes the revolutionary step of only affording the business judgment rule presumption to the decisions of an appropriately diverse board. In her rewritten opinion, the majority’s cramped duty of care is expanded to encompass all stakeholders, not merely shareholders. Virginia Harper Ho contextualizes the feminist judgment and explores possibility of a faith-centered feminism and its relationship to stakeholder-centric governance.

In re Walt Disney Company Derivative Litigation iconically revealed the latitude the Chancery Court gives boards when using the business judgment rule. The business judgment rule presumes that “directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interest of the company.” The burden is on the plaintiff to show that duties were breached and that the directors acted in bad faith, but both the Chancery Court and the Delaware Supreme Court ruled it had not. Professor Hillary Sale, rewriting the Delaware Supreme Court’s opinion as Justice Sale, suggests an alternative “inclusive process” that sets a higher ideal for corporate governance Sale urges boards to ask follow-up questions, explain different assessments, and listen to and weigh multiple viewpoints. In her commentary on the rewritten Disney opinion, Professor Laura Rosenbury contextualizes Sale’s approach by comparing its relational reasoning to similar insights of feminist scholars in other legal fields at the time, and also by situating the facts giving rise to the Disney litigation in light of the company’s and broader economy’s then-prosperity. Professor Rosenbury also highlights the intersectional strengths of Sale’s rewritten judgment.

Revlon, Inc. v. MacAndrews & Forbes Holdings is a landmark decision setting shareholder primacy as the main concern in M&A transactions. The Delaware Supreme Court held that directors “are charged with the duty of selling the company at the highest price attainable for the stockholders’ benefit.” Professor Christina Sautter, as Justice Sautter in her rewritten feminist judgment on the case, takes the position that the interests of other constituencies should be taken into account to consider the long-term health of a company best. In her commentary on Justice Sautter’s opinion, Professor Afra Afsharipour also emphasizes the masculine norms of takeover contests and how the masculine traits of authoritarianism, paternalism, and informalism motivated the Revlon acquisition discussions. Justice Sautter suggests that when these masculine traits interfere, short-term shareholder wealth maximization usurps the company’s long-term interest. Sautter leans on the fact that a small group of men made all of the decisions for a cosmetic company whose customers are predominantly female to reveal the importance of stakeholder interest in a takeover contest. A feminist perspective that appreciates complex relational factors could have influenced the board’s decisions to maximize value in the long-term.

Jessica Kiser situates the chapter, explaining that the plaintiff in Donahue was a minority shareholder who sued the company and its directors for breach of fiduciary on account of causing the company to purchase the stock of a former director and controlling shareholder, but refusing to treat her equally by purchasing her shares at the same price. The court held that the company and its directors had breached their fiduciary duty, reasoning that shareholders in a close corporation owe a heightened standard of good faith and loyalty as compared to public companies. Cindy Schipani’s feminist judgment preserves the original opinion’s holding, but expands on the nature of the Donahue’s oppression – not just as a minority shareholder, but as a woman shut out of employment opportunities by virtue of class and gender. Kiser highlights the intersectionality of Schipani’s rewritten opinion.

This chapter by the volume editors provides an overview of the volume and its relationship with the global and U. S. Feminist Judgments Projects. It explains how cases were selected and the parameters were provided to authors and commentators. The introductory chapter also identifies common themes and feminist methods in the rewritten opinions and locates this work in the context of larger concerns about gender equality and justice.

The plaintiffs, John and Horace Dodge, owned a ten percent share in the defendant’s, Ford Motor Company (FMC), corporation. The Dodge brothers had recently started their own car company, but the Dodge Brothers retained interest in FMC, which had paid hefty dividends. Henry Ford very publicly decided to stop paying dividends to investors and to build a new plant in River Rouge, Michigan, which would drive competition for lower priced vehicles. The Dodge brothers filed this suit in response. The case highlights the debate over the fundamental purpose of business: investor benefit or societal benefit. Through the lens of feminist theory, Ford’s approach would promote both the financial interests of FMC and the equitable access to private transportation to the betterment of society. By withholding dividends, FMC could maintain a cash reserve in times of financial adversity; meanwhile, by driving down the price of cars, private transportation could be more widely available to even the most marginalized groups who were more likely to experience harassment on public transportation. The feminist perspective argues that the notion that a corporation’s only purpose being to immediately maximize profits for the sake of stockholders is too narrow a view.

In Ringling, two women shareholders of the closely held Ringling Brothers circus (the widow of one Ringling brother and the daughter-in-law of the second Ringling brother) entered into a voting agreement from control. The court enforced a shareholders agreement to vote in concert and to have an arbitrator determine the votes in the case of a disagreement. Benjamin Mean’s dissenting feminist judgment considers the larger context of the voting dispute and argues for a different result, reasoning based on ambiguities in the agreement and on the parties’ intent. Gabriel Rauterberg’s commentary situates the original and rewritten opinion in terms of the circus business and the role of workers and women within it. It then considers whether shareholder agreements are special kinds of contracts meriting a distinctive approach.

The plaintiff, John Walkovsky, was struck by a taxi owned by Seon Cab Corporation while walking in New York City. Seon Cab Corp. was one of the ten cab companies owned by a group of shareholders, including William Carlton. The case highlights the harms visited on innocent parties by limited liability and shareholders’ focus on profit. A feminist rewrite would examine the costs visited upon vulnerable groups such as tort victims with limited access to the legal system, children who are likely to be more severely injured if harmed by corporate activity or by the loss of a parent so injured, and immigrants and lower-income Americans who may not have health insurance to cover the physical harms caused by corporate business. Intentional undercapitalization of corporations and an adherence to minimum insurance requirements externalizes the costs of doing business onto the rest of society. This externalization of costs is particularly harmful when it causes physical injury or death to portions of the population who cannot absorb the costs ducked by the corporation. A feminist perspective could consider the interests of these vulnerable populations in designing a limited liability doctrine that encourages entrepreneurial risk-taking while balancing it against the cost of significant corporate externalities.

Mrs. Pritchard became the director of a family-owned reinsurance firm, Pritchard & Baird Intermediaries Corp (P & B), following the death of her husband. Mrs. Pritchard’s two sons were executives of the company, which eventually went bankrupt. The plaintiff, trustee of the P & B’s bankruptcy estate, filed this suit against the deceased Mrs. Pritchard’s estate claiming she was negligently liable as director for the over $10 million her sons improperly removed from the firm. The feminist rewrite agrees with the original opinion that Mrs. Pritchard was negligent in her role of corporate oversight, but it deviates by arguing Mrs. Pritchard was not negligent for failure to notice the financial issues because she should not have been expected to understand the intricacies of the business of which she served mostly as the figurehead and emotional glue. The rewritten opinion points out the implicit bias built within the New Jersey directors’ duty statute, which refers to “prudent men.” The commentary argues Mrs. Pritchard chose not to extend great care because she was not compensated or given much actual power within P & B. The commentary also critiques the rewritten opinion’s dismissiveness of Mrs. Pritchard’s corporate knowhow as not feminist enough.