Courts, practitioners, and academics alike have long considered corporate officers and directors to be fiduciaries of the public corporation and its shareholders. As corporate law has evolved, however, with the business judgment rule strengthening, the duties of care and loyalty narrowing in scope, and executive compensation schemes further introducing self-interest into corporate decision making, the fiduciary paradigm is no longer an accurate description of the nature of the relationship between corporate managers and the corporation. Corporate officers and directors have significant latitude to make decisions that take into consideration their self-interest while still satisfying their duties to the corporation. Further, the “best interests” of the corporate entity and its multitude of stakeholders are highly variable and often ill-defined, such that it would be impractical to pursue those interests as a singular goal. This Article argues that corporate officers and directors are not governed by fiduciary duties in the truest sense of the term. This misconceptualization inhibits an accurate understanding of the dynamics underlying corporate decision

The goal of the business corporation traditionally has been understood to be the maximization of shareholder wealth. A growing demand for social enterprise has led to the creation of various new forms of business organization, including the benefit corporation, that have the goal of creating both shareholder wealth and other public benefits. Although benefit corporations were developed to overcome the shareholder wealth maximization norm, it is not fair to say that they also overcome shareholder primacy. Properly understood, benefit corporations are shareholder-centric: they exist to allow shareholders to pursue altruistic goals rather than to require them to do so. This essay demonstrates this from the history and structure of the Model Benefit Corporation Act and argues that benefit corporation legislation ought to remain essentially enabling rather than mandatory in nature.

This chapter critically examines the claim that shareholders have a homogeneous interest in wealth maximization. This claim, which is central to several arguments for the exclusive shareholder franchise, is not accurate. Shareholder preferences diverge along a number of dimensions, including those in or out of a control group; those with differential voting power; those involved in vote buying or voting trusts; hedged shareholders; management, employee, and pension fund shareholders; sovereign wealth funds; and corporate social responsibility investors. Even shareholders with shared goals of wealth maximization may have differing timelines, risk tolerances, and ways of defining “wealth.” Thus, actual shareholders have a range of preferences far too great to support many of the arguments that rely on their shared agreement.

Although economic theories capture the relationality and contextuality of promising, they produce more than one determinate outcome and need to be completed with values-balancing reasoning.