For three decades, Lyman Johnson and David Millon have stood for the proposition that corporate law should concern itself with social welfare. They have done so with commitment, analytical skill, and rhetorical facility, seeking to preserve an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. They first intervened during the late 1980s, a time when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. At the time it seemed like the institutions had won, with Johnson and Millon striving to add protective depth to the outcome by advocating for inclusion of constituent interests as beneficiaries in the corporation’s legal model. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social welfare. The distance between the Johnson and Millon’s welfarist enterprise and its corporate law target has been widening ever since.
This Essay is a meditation on that widening gulf. It will compare the vision of the corporation and of the role it plays in society that prevailed during the immediate post-war era, before the fulcrum years of the 1980s, with the very different vision we have today, and trace the path we took from there to here. It will close with a brief prediction regarding corporate law’s future.
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