Progressive Corporate Law

By Lawrence E. Mitchell | Go to book overview

7
Trust. Contract. Process.

Lawrence E. Mitchell

Trust is one of the most important institutions binding our society. Trust in our government makes our popular democracy possible. Trust in our businesses makes it possible for us to purchase and consume products with relative confidence that they will perform their functions adequately and without harming us. Trust in others makes it possible for us to permit our children to be educated in schools and to leave them in the care of others while we work. Trust enables us to give others the power to manage our money and to run our businesses.

Trust does all of this, up to a point. For while we live in a society that is both predicated upon and sustained by trust, we also live in a society ideologically committed to preserving the integrity of the individual. We live in a society in which pursuit of one's own interests not only is tolerated but welcomed, in which our economy, our laws, and our political institutions are largely predicated on the notion that such pursuits will benefit the society as a whole. Thus, wholehearted trust is checked by the ineradicable suspicion that those we trust may pursue their own interests to the exclusion, and sometimes the harm, of our own.

This tension between the need to trust engendered by our dependence on others and our desire to privilege individual autonomy is kept in check by a variety of social institutions, including religious institutions, family, community and state. These forces tend towards a form of social equilibrium, producing a measure of social control. But the point of equilibrium changes. At various stages in our history, one or another of these forces has sounded the dominant social theme, diminishing the need for other institutions and overwhelming the values embodied within them.

At this point in our history, the dominant institution is the state, as manifested through its laws. The values embodied in those laws, and especially the system of private laws with which I am most concerned, are values primarily of individual autonomy and self-sufficiency. These values are manifested

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Progressive Corporate Law
Table of contents

Table of contents

  • Title Page v
  • Contents vii
  • Foreword ix
  • Preface xiii
  • Note xv
  • Acknowledgments xvii
  • About the Editor and Contributors xix
  • 1: Communitarianism in Corporate Law: Foundations and Law Reform Strategies 1
  • Conclusion 30
  • Notes 31
  • 2: Working Toward a New Paradigm 35
  • Conclusion 59
  • Notes 60
  • 3: Some Observations on Writing the Legal History of the Corporation in the Age of Theory 67
  • Conclusion 84
  • Notes 86
  • 4: The Death of Contractarianism and the Vindication of Structure and Authority in Corporate Governance and Corporate Law 93
  • Introduction 93
  • Conclusion 105
  • Notes 106
  • 5: Experiencing Limited Liability: On Insularity and Inbreeding in Corporate Law 111
  • Introduction 111
  • Conclusion 130
  • Notes 130
  • 6: Game Theory and the Restoration of Honor to Corporate Law's Duty of Loyalty 139
  • Conclusion 168
  • Notes 169
  • 7: Trust. Contract. Process. 185
  • Conclusion--Trust as a Bedrock Value of Society 209
  • Notes 209
  • 8: Promoting Economic Justice in Plant Closings: Exploring the Fiduciary/Contract Law Distinction to Enforce Implicit Employment Agreements 219
  • Conclusion 234
  • Notes 236
  • 9: The Legitimacy of Multinational Corporations 247
  • Notes 266
  • 10: On the Frontier of Capitalism: Implementation of Humanomics by Modern Publicly Held Corporations -- a Critical Assessment 281
  • Introduction 281
  • Conclusion 303
  • Notes 307
  • About the Book 315
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