The corporation as mediating institution: An efficacious synthesis of stakeholder theory and corporate constituency statutes

Notre Dame Law Review

Volumn 73, Issue 1, 1997, Pages 173-202

  Fort, Timothy L ^a,b,c  

^a UNIVERSITY OF MICHIGAN   (United States)

^b NORTHWESTERN UNIVERSITY   (United States)

^c UNIVERSITY OF NOTRE DAME   (United States)

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EID: 6244254149     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (133)

1. William M. Evan & R. Edward Freeman, A Stakeholder Theory of the Modern Corporation: Kantian Capitalism, in ETHICAL THEORY & BUSINESS 97, 101-105 (Tom L. Beauchamp & Norman E. Bowie eds., 3d ed. 1988). The authors specifically leave open the notion that the potential list of stakeholders could be quite broad.
2. See ARIZ. REV. STAT. ANN. § 10-2702 (West 1996); FLA. STAT. ANN. § 607.0830 (West 1993); GA. CODE ANN. § 14-2-830 (1994); HAW. REV. STAT. § 415-35 (b) (1993); IDAHO CODE § 30-1702 (1996); 805 ILL. COMP. STAT. ANN. 5/8.85 (West 1993); IND. CODE ANN. § 23-1-35-1 (Michie 1995); IOWA CODE ANN. § 491.101B (West 1991); KY. REV. STAT. ANN. § 271B12-210(4) (Banks-Baldwin 1996); LA. REV. STAT. ANN. § 12:92(G) (West 1994); ME. REV. STAT. ANN. tit. 13-A, § 716 (West 1996); MASS. GEN. LAWS ANN. eh. 156B, § 65 (West 1996); MINN. STAT. ANN. § 302A.251(5) (West Supp. 1993); MISS. CODE ANN. § 79-4-8.30(d) (1996); MO. ANN. STAT. § 351.347 (West 1991); NEB. REV. STAT. § 21-2035(1)(c) (1991); N.J. STAT. ANN. § 14A:6.1 (West Supp. 1997); N.M. STAT. ANN. § 53-11-35(D) (Michie 1997); N.Y. BUS. CORP. LAW § 717(b) (McKinney Supp. 1997); OHIO REV. CODE ANN. § 1701.59(E) (Anderson 1992); OR. REV. STAT. § 60.357 (Supp. 1996); 15 PA. CONS. STAT. §§ 1715-1716 (1995); R.I. GEN. LAWS § 7-5.2-8 (1992); S.D. CODIFIED LAWS § 47-33-4 (Michie 1991); TENN. CODE ANN. § 48-103-204 (1995); WIS. STAT. ANN. § 180.0827 (West 1992); WYO. STAT. ANN. § 17-16-830(e) (Michie 1997).
3. See Timothy L. Fort, Corporate Constituency Statutes: A Dialectical Interpretation, 15 J.L. & COM. 257 (1995).
4. Eric W. Orts, Beyond Shareholders: Interpreting Corporate Constituency Statutes, 61 GEO. WASH. L. REV. 14, 71 (1992).
5. For the remainder of this paper, I use "stakeholder theory" and "corporate constituency statutes" interchangeably.
6. Timothy L. Fort, Business as Mediating Institution, 6 BUS. ETHICS Q. 149 (1996).
7. See id. at 152.
8. In this regard, Business as Mediating Institutions theory is much like that of some contemporary feminist theories. The feminist version of stakeholder theory, in fact, develops this notion and will be described in Section II. I have definite affinities with some parts of feminist thought, and it may well be that a mediating institutions theory can be assisted by an integration of the two. That focus on relationality is not the source for mediating institutions in this paper nor in the sources cited in this paper, so that integration will not be done here.
9. For an even more sweeping statement of our relational sense, see ERROL E. HARRIS, FORMAL, TRANSCENDENTAL & DIALECTICAL THINKING: LOGIC AND REALITY (1987). Harris argues that the entire physical, biological, and even logical structure of the world is "dialectical" (Harris' philosophical term for what is essentially relationality). Thus, it is not simply that human beings are relational, but the entire physical and philosophical world is a series of complex interrelationships.
10. TOM CHAPPELL, THE SOUL OF A BUSINESS: MANAGING FOR PROFIT AND THE COMMON GOOD 61-62 (1993).
11. See Fort, supra note 6, at 156.
12. CHAPPELL, supra note 10, at 71.
13. See Fort, supra note 6, at 155-57.
14. See id. (noting JULIET B. SCHOR, THE OVERWORKED AMERICAN: THE UNEXPECTED DECLINE OF LEISURE (1991)) (Schor argues that contrary to expectations that technology leads to leisure, it leads to more time for workers working. Thus, capitalism has led to less time for family and other mediating institutions.).
15. See id. (noting RONALD TAKAKI, A DIFFERENT MIRROR: A HISTORY OF MULTICULTURAL AMERICA (1993)) (Takaki argues that as diverse as Americans are, their common meeting ground has always been work. It is "on the job" that we become more multiculturally integrated.).
16. See id. It is one (important) thing to learn that everyone has certain rights. It is another to realize that those rights are not the totality of identity. If it were, a rights position would suggest that we are autonomous beings that should be left alone. If it is not, then in addition to rights, we understand our responsibilities in this complex web of relationality.
17. See id.
18. See Fort, supra note 3, at 284-85.
19. See Fort, supra note 6, at 159.
20. See id. (noting CHAPPELL, supra note 10, at 71).
21. See note 2.
22. In addition to other material cited in this paper, see, for example, Walter M. Cabot, The Free Market Promotes Long-Term Efficiency That Benefits All Stakeholders, 21 STETSON L. REV. 245 (1991); Lawrence E. Mitchell, A Theoretical and Practical Framework for Enforcing Corporate Constituency Statutes, 70 TEX. L. REV. 579 (1992); Edward D. Rodgers, Striking the Wrong Balance: Constituency Statutes and Corporate Governance, 21 PEPP. L. REV. 777 (1994); David A. Ruder, Public Obligations of Private Corporations, 114 U. PA. L. REV. 209 (1965); Steven M.H. Wallman, The Proper Interpretation of Corporate Constituency Statutes and Formulation of Director Duties, 21 STETSON L. REV. 163 (1991); Gary von Stange, Corporate Social Responsibility Through Constituency Statutes: Legend or Lie?, 11 HOFSTRA LAB. L.J. 461 (1994).
23. In addition to other material cited in this paper, see, for example, Walter M. Cabot, The Free Market Promotes Long-Term Efficiency That Benefits All Stakeholders, 21 STETSON L. REV. 245 (1991); Lawrence E. Mitchell, A Theoretical and Practical Framework for Enforcing Corporate Constituency Statutes, 70 TEX. L. REV. 579 (1992); Edward D. Rodgers, Striking the Wrong Balance: Constituency Statutes and Corporate Governance, 21 PEPP. L. REV. 777 (1994); David A. Ruder, Public Obligations of Private Corporations, 114 U. PA. L. REV. 209 (1965); Steven M.H. Wallman, The Proper Interpretation of Corporate Constituency Statutes and Formulation of Director Duties, 21 STETSON L. REV. 163 (1991); Gary von Stange, Corporate Social Responsibility Through Constituency Statutes: Legend or Lie?, 11 HOFSTRA LAB. L.J. 461 (1994).
24. In addition to other material cited in this paper, see, for example, Walter M. Cabot, The Free Market Promotes Long-Term Efficiency That Benefits All Stakeholders, 21 STETSON L. REV. 245 (1991); Lawrence E. Mitchell, A Theoretical and Practical Framework for Enforcing Corporate Constituency Statutes, 70 TEX. L. REV. 579 (1992); Edward D. Rodgers, Striking the Wrong Balance: Constituency Statutes and Corporate Governance, 21 PEPP. L. REV. 777 (1994); David A. Ruder, Public Obligations of Private Corporations, 114 U. PA. L. REV. 209 (1965); Steven M.H. Wallman, The Proper Interpretation of Corporate Constituency Statutes and Formulation of Director Duties, 21 STETSON L. REV. 163 (1991); Gary von Stange, Corporate Social Responsibility Through Constituency Statutes: Legend or Lie?, 11 HOFSTRA LAB. L.J. 461 (1994).
25. In addition to other material cited in this paper, see, for example, Walter M. Cabot, The Free Market Promotes Long-Term Efficiency That Benefits All Stakeholders, 21 STETSON L. REV. 245 (1991); Lawrence E. Mitchell, A Theoretical and Practical Framework for Enforcing Corporate Constituency Statutes, 70 TEX. L. REV. 579 (1992); Edward D. Rodgers, Striking the Wrong Balance: Constituency Statutes and Corporate Governance, 21 PEPP. L. REV. 777 (1994); David A. Ruder, Public Obligations of Private Corporations, 114 U. PA. L. REV. 209 (1965); Steven M.H. Wallman, The Proper Interpretation of Corporate Constituency Statutes and Formulation of Director Duties, 21 STETSON L. REV. 163 (1991); Gary von Stange, Corporate Social Responsibility Through Constituency Statutes: Legend or Lie?, 11 HOFSTRA LAB. L.J. 461 (1994).
26. In addition to other material cited in this paper, see, for example, Walter M. Cabot, The Free Market Promotes Long-Term Efficiency That Benefits All Stakeholders, 21 STETSON L. REV. 245 (1991); Lawrence E. Mitchell, A Theoretical and Practical Framework for Enforcing Corporate Constituency Statutes, 70 TEX. L. REV. 579 (1992); Edward D. Rodgers, Striking the Wrong Balance: Constituency Statutes and Corporate Governance, 21 PEPP. L. REV. 777 (1994); David A. Ruder, Public Obligations of Private Corporations, 114 U. PA. L. REV. 209 (1965); Steven M.H. Wallman, The Proper Interpretation of Corporate Constituency Statutes and Formulation of Director Duties, 21 STETSON L. REV. 163 (1991); Gary von Stange, Corporate Social Responsibility Through Constituency Statutes: Legend or Lie?, 11 HOFSTRA LAB. L.J. 461 (1994).
27. In addition to other material cited in this paper, see, for example, Walter M. Cabot, The Free Market Promotes Long-Term Efficiency That Benefits All Stakeholders, 21 STETSON L. REV. 245 (1991); Lawrence E. Mitchell, A Theoretical and Practical Framework for Enforcing Corporate Constituency Statutes, 70 TEX. L. REV. 579 (1992); Edward D. Rodgers, Striking the Wrong Balance: Constituency Statutes and Corporate Governance, 21 PEPP. L. REV. 777 (1994); David A. Ruder, Public Obligations of Private Corporations, 114 U. PA. L. REV. 209 (1965); Steven M.H. Wallman, The Proper Interpretation of Corporate Constituency Statutes and Formulation of Director Duties, 21 STETSON L. REV. 163 (1991); Gary von Stange, Corporate Social Responsibility Through Constituency Statutes: Legend or Lie?, 11 HOFSTRA LAB. L.J. 461 (1994).
28. See Orts, supra note 4, at 20.
29. See id. at 23-26.
30. See A.A. Berle, Jr., Corporate Powers as Powers in Trust, 44 HARV. L. REV. 1049 (1931); E. Merrick Dodd, Jr., For Whom Are Corporate Managers Trustees, 45 HARV. L. REV. 1145 (1932).
31. See A.A. Berle, Jr., Corporate Powers as Powers in Trust, 44 HARV. L. REV. 1049 (1931); E. Merrick Dodd, Jr., For Whom Are Corporate Managers Trustees, 45 HARV. L. REV. 1145 (1932).
32. Thomas J. Bamonte, The Meaning of the "Corporate Constituency" Provision of the Illinois Business Corporation Act, 27 LOY. U. CHI. L.J. 1, 14 (1995) (footnote omitted).
33. The seminal portion of Marshall's opinion reads: A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 636, 4 Wheat. 250, 303 (1819).
34. John Boatright, What's So Special About Shareholders?, 4 BUS. ETHICS Q. 393, 405 (1994).
35. This is not to suggest, however, that there may not be recurring problems in business or recurring values in business that do take on the character of immutability. It simply acknowledges that we are culturally able to specify the particular things that corporations ought to do in our specific society.
36. See Boatright, supra note 28. Boatright concludes that there is no moral superiority of extending duties solely to shareholders. Instead, it is a matter of public policy.
37. Orts, supra note 4, at 71.
38. See id. at 24. Orts argues that Rustbelt states such as Pennsylvania, Ohio, Wisconsin, Indiana, Minnesota, and Illinois were among the leaders in passing constituency statutes. (citing John C. Coffee, Jr., The Uncertain Case for Takeover Reform: An Essay on Stockholders, Stakeholders and Bust-ups, 1988 WIS. L. REV. 435, 436).
39. See, e.g., ROBERT CLARK, CORPORATE LAW § 1.2.4, at 21-22 (1986).
40. See Katherine Van Wezel Stone, Employees as Stakeholders Under State Non-shareholder Constituency Statutes, 21 STETSON L. REV. 45, 54-55, 70-71 (1991).
41. See, e.g., James J. Hanks, Jr., Playing with Fire: Nonshareholder Constituency Statutes in the 1990s, 21 STETSON L. REV. 97, 111 (1991).
42. Jonathan K. Macey, An Economic Analysis of the Various Rationales for Making Shareholders the Exclusive Beneficiaries of Corporate Fiduciary Duties, 21 STETSON L. REV. 23 (1991).
43. Id. at 33.
44. See Nell Minow, Shareholders, Stakeholders, and Boards of Directors, 21 STETSON L. REV. 197, 219 (1991).
45. 3 F. A. HAYEK, LAW, LEGISLATION, LIBERTY: THE POLITICAL ORDER OF A FREE PEOPLE 82 (1979).
46. It is for this reason that, although unlikely to be upheld by the courts, a "takings" problem might exist.
47. See Macey, supra note 36, at 41-44.
48. "Market forces provide the strongest restraints on the discretion of corporate directors." Bamonte, supra note 26, at 17.
49. Joseph Biancalana, Defining the Proper Corporate Constituency: Asking the Wrong Question, 59 U. CIN. L. REV. 425, 429-30 (1990).
50. See id. at 434-36.
51. See id.
52. William J. Carney, Does Defining Constituencies Matter?, 59 U. CIN. L. REV. 385 (1990).
53. Bamonte, supra note 26, at 9-10 (quoting Shlensky v. Wrigley, 237 N.E.2d 776, 780 (Ill. App. Ct. 1968)) (footnotes omitted).
54. See Evan & Freeman, supra note 1, at 101-05.
55. See id.
56. 50 See id.
57. See id.
58. Boatright, supra note 28, at 402.
59. See Kenneth E. Goodpaster, Business Ethics and Stakeholder Analysis, 1 BUS. ETHICS Q. 53 (1991).
60. See generally Boatright, supra note 28.
61. Andrew C. Wicks et al., A Feminist Reinterpretation of the Stakeholder Concept, 4 BUS. ETHICS Q. 459, 483 (1994).
62. Id. at 490.
63. See Fort, supra note 6, at 265-70.
64. See generally 1 HERBERT A. SIMON, MODELS OF BOUNDED RATIONALITY: ECONOMIC ANALYSIS AND PUBLIC POLICY (1982).
65. CHARLES TAYLOR, MULTICULTURALISM AND "THE POLITICS OF RECOGNITION" 35 (1992).
66. Ian Maitland, The Morality of the Corporation: An Empirical or Normative Disagreement?, 4 BUS. ETHICS Q. 445, 455 (1994).
67. Id.
68. Id. at 453.
69. Id.
70. Stephen Cohen, Stakeholders and Consent, BUS. & PROF. ETHICS J., Spring 1995, at 3, 13 (footnote omitted).
71. SUN-TZU, THE ART OF WAR (Samuel B. Griffith trans., Oxford Univ. Press 1963). In the fourth paragraph of Sun-Tzu's work, he writes that leaders must have moral influence so that people are in harmony with their leaders. Id. at 64.
72. See Van Wezel Stone, supra note 34, at 54.
73. See id. at 49-51.
74. See, e.g., W. EDWARDS DEMING, OUT OF THE CRISIS 83-85 (1986); CHARLES HAMPDEN-TURNER, CREATING CORPORATE CULTURE: FROM DISCORD TO HARMONY 58-59 (1990).
75. See, e.g., W. EDWARDS DEMING, OUT OF THE CRISIS 83-85 (1986); CHARLES HAMPDEN-TURNER, CREATING CORPORATE CULTURE: FROM DISCORD TO HARMONY 58-59 (1990).
76. See generally Thomas Donaldson & Thomas W. Dunfee, Toward a Unified Conception of Business Ethics: Integrative Social Contracts Theory, 19 ACAD. MGMT. REV. 252 (1994).
77. Id.
78. See generally RICHARD JOHN NEUHAUS, DOING WELL & DOING GOOD: THE CHALLENGE TO THE CHRISTIAN CAPITALIST (1992).
79. It may also be true that conscience is an inherent aspect of human nature. I would support that view in fact. But it is also at least in part the result of the internalization of the results of having been "caught" by others in a community. A child who is disciplined for hitting a sibling, for instance, may eventually internalize the notion that she should not hit her brother, regardless of whether or not she could get away with it.
80. See EDWIN M. HARTMAN, ORGANIZATIONAL ETHICS AND THE GOOD LIFE (1996); ROBERT SOLMON, ETHICS AND EXCELLENCE (1992).
81. See EDWIN M. HARTMAN, ORGANIZATIONAL ETHICS AND THE GOOD LIFE (1996); ROBERT SOLMON, ETHICS AND EXCELLENCE (1992).
82. See Rob Coffee & Gareth Jones, What Holds the Modern Company Together?, HARV. BUS. REV., Nov.-Dec. 1996, at 133.
83. See id.
84. See id. at 133-34.
85. Id. at 134.
86. WILLIAM C. FREDERICK, VALUES, NATURE, AND CULTURE IN THE AMERICAN CORPORATION 251 (1995).
87. Id.
88. See generally FREDERICK, supra note 78.
89. Id. at 9.
90. Id. at 42-43.
91. Id. at 259-60.
92. Id. at 260-61.
93. Id. at 261.
94. Id. at 262.
95. See id. at 8.
96. See ROBERT WRIGHT, THE MORAL ANIMAL: EVOLUTIONARY PSYCHOLOGY AND EVERYDAY LIFE 38 (1994).
97. See COLIN M. TURNBULL, THE FOREST PEOPLE: A STUDY OF THE PYGMIES OF THE CONGO 37 (1962); see also JULIAN JAYNES, THE ORIGIN OF CONSCIOUSNESS IN THE BREAKDOWN OF THE BICAMERAL MIND 129 (1976) (estimating the optimal number in such groups to be approximately thirty).
98. See COLIN M. TURNBULL, THE FOREST PEOPLE: A STUDY OF THE PYGMIES OF THE CONGO 37 (1962); see also JULIAN JAYNES, THE ORIGIN OF CONSCIOUSNESS IN THE BREAKDOWN OF THE BICAMERAL MIND 129 (1976) (estimating the optimal number in such groups to be approximately thirty).
99. Gary Stix, Different Strokes, SCI. AM., Nov. 1996, at 36 (reviewing Robin Dunbar's GROOMING, GOSSIP, AND THE EVOLUTION OF LANGUAGE (1996)).
100. Gary Stix, Different Strokes, SCI. AM., Nov. 1996, at 36 (reviewing Robin Dunbar's GROOMING, GOSSIP, AND THE EVOLUTION OF LANGUAGE (1996)).
101. ROBIN DUNBAR, GROOMING, GOSSIP, AND THE EVOLUTION OF LANGUAGE 70 (1996).
102. LAWRENCE H. KEELEY, WAR BEFORE CIVILIZATION 93 (1996).
103. JAMES Q. WILSON, THE MORAL SENSE 23, 41-42 (1993).
104. See Jacques Ellul, The Theological Foundation of Law 11-43 (1960). Ellul makes a complex argument in which he links the legitimacy of law to the ability of persons in the community to spontaneously identify with it. He argues that in its origin, all law is religious. There is no separation between the lawgiver and the religious leader, such as perhaps a shaman, of the society. Gradually, however, the institutions of law and religion separate. There becomes a space between the religious and governmental institutions, but there is extensive homogeneity among the people so that they "naturally" or spontaneously understand what is right and wrong. Over time, however, scholars emerge who reflect upon the decisions that have been made about right and wrong. These persons develop "principles" and "laws" to encapsulate what previously was a spontaneously lived understanding of right and wrong. The problem with this scholarly distillation is that once articulated, the principles become malleable. In particular, those with money and power employ intelligent interpreters of the principles who interpret according to the interests of the rich and powerful. This causes laws to increasingly become divorced from the spontaneously understood "natural law" to become a set of rules that are understood and manipulated only by the rich and powerful. At that point, law ceases to be legitimate because the common people have no ability to connect with it nor to influence it. Although Ellul's argument may prove too much, there is a wisdom of tying law's legitimacy to its meaning and to those who are affected by it. Without such a connection, law is indeed unjust and so viewed. A contemporary example of this is in the public's reaction to the Internal Revenue Code which does indeed seem to be a bewildering morass disconnected from the lives of everyday human beings. In corporate terms, the same dynamic argues for rules and procedures that connect with the lives of stakeholders. While international treaties and accords are important to global business, there also need to be laws within the control of those affected by them if the laws themselves are to retain legitimacy.
105. See WRIGHT, supra note 88.
106. See J. BRONOWSKI, THE ASCENT OF MAN 45 (1973).
107. ROBERT A. NISBET, THE QUEST FOR COMMUNITY: A STUDY IN THE ETHICS OF ORDER AND FREEDOM 50 (2d ed. 1990).
108. Id. at 237.
109. See, e.g., JAYNES, supra note 89, at 129; TURNBULL, supra note 89, at 37; WRIGHT, supra note 88, at 38-39.
110. See, e.g., FREDERICK HERZBERG, WORK AND THE NATURE OF MAN (1966); DAVID C. MCCLELLAND & DAVID G. WINTER, MOTIVATING ECONOMIC ACHIEVEMENT (1971); CHARLES R. WALKER & ROBERT H. GUEST, THE MAN ON THE ASSEMBLY LINE (1952).
111. See, e.g., FREDERICK HERZBERG, WORK AND THE NATURE OF MAN (1966); DAVID C. MCCLELLAND & DAVID G. WINTER, MOTIVATING ECONOMIC ACHIEVEMENT (1971); CHARLES R. WALKER & ROBERT H. GUEST, THE MAN ON THE ASSEMBLY LINE (1952).
112. See, e.g., FREDERICK HERZBERG, WORK AND THE NATURE OF MAN (1966); DAVID C. MCCLELLAND & DAVID G. WINTER, MOTIVATING ECONOMIC ACHIEVEMENT (1971); CHARLES R. WALKER & ROBERT H. GUEST, THE MAN ON THE ASSEMBLY LINE (1952).
113. See generally Fort, supra note 3.
114. A traditional mediating institution, such as a church, has a common purpose for its members. Voluntary organizations do also and, insofar as childrearing and family affection is concerned, so do families. Corporations may also have a common purpose of economic viability, if not profitability.
115. Donaldson & Dunfee, supra note 69, at 259-60.
116. Id. at 265-66.
117. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 147 (1980). Finnis goes on to write: It is therefore a fundamental aspect of general justice that common enterprises should be regarded, and practically conducted, not as ends in themselves but as means of assistance, as ways of helping individuals to "help themselves" or, more precisely, to constitute themselves. And in all those fields of activity, including economic activity, where individuals, or families, or other relatively small groups, can help themselves by their own private efforts and initiatives without thereby injuring (either by act or omission) the common good, they are entitled to justice to be allowed to do so, and it is unjust to require them to sacrifice their private initiative by demanding that they participate instead in a public enterprise; it remains unjust even if the material dividend they receive from the public enterprise is as great as or even somewhat greater than the material product of their own private efforts would have been. The principle of subsidiarity [which includes participation] is a principle of justice. Id. at 169.
118. See, e.g., Solomon, supra note 73.
119. See generally Timothy L. Fort, Goldilocks and Business Ethics: A Paradigm that Fits "Just Right", 23 J. CORP. L. (forthcoming Jan. 1998).
120. See JEFFREY WATTLES, THE GOLDEN RULE (1996).
121. Iwao Taka, Business Ethics: A Japanese View, 4 BUS. ETHICS Q. 53 (1994).
122. See MARY WALTON, THE DEMING MANAGEMENT METHOD (1986).
123. See JOHN S. OAKLAND, TOTAL QUALITY MANAGEMENT (1989), for a good example of the individual steps and statistical processes necessary to establish a TQM system.
124. See id. at 29-42, 145.
125. See PETER BERGER & RICHARD JOHN NEUHAUS, TO EMPOWER PEOPLE: THE ROLE OF MEDIATING STRUCTURES IN PUBLIC POLICY 7 (1977).
126. DEMING, supra note 68, at 83-85.
127. See JOHN CASE, OPEN-BOOK MANAGEMENT: THE COMING BUSINESS REVOLUTION (1995).
128. GARY HAMEL & C.K. PRAHALAD, COMPETING FOR THE FUTURE 290 (1994).
129. Id. at 129.
130. See Edward B. Rock, America's Shifting Fascination with Comparative Corporate Governance, 74 WASH. U. L.Q. 367 (1996), for a good review of German and other comparative corporate governance models.
131. See Timothy L. Fort, The Spirituality of Solidarity and Total Quality Management, 14 BUS. & PROF. ETHICS J. 12 (1995), in which I argue that TQM's efficacy is based on an affective connection between the person and her work that is similar to the solidarity that is prominent in Roman Catholic Social Thought.
132. See, e.g., W. Jethro Brown, The Personality of the Corporation and the State, 21 LAW Q. REV. 365, 368 (1905). Brown wrote that people act differently in groups than they do individually so that "[u]nder the inspiration of espirit de corps, the humane will give a cruel decision, the cruel a humane." This is a potential problem requiring serious attention.
133. Although I have not seen formal work making the connection between traditional theories of natural law and hypernorms in business ethics, this strikes me as a worthy integration to make.