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Abstract

Should your company become a benefit corporation? In a comprehensive set of law review opinions, this installation of Business Law & Ethics Corner uncovers several fundamental issues to consider. First, the main premise for the benefit corporation–—the legal preeminence of the shareholder primacy norm–—may be unfounded. Second, benefit corporations may increase director liability and company costs. Third, contrary to the stated goal of such laws, benefit corporations do not empower stakeholders, and therefore are not substantially different from traditional corporations. Many legal analysts argue that, paradoxically, benefit corporations actually inhibit corporate social responsibility efforts by perpetuating the myth that business corporations do not have the flexibility to pursue social missions, and by claiming to, but failing to, empower stakeholders. They argue that the benefit corporation form is likely to increase corporate greenwashing, and that it enhances public cynicism about all corporations by creating competing sets of ‘beneficial’ and ‘other’ corporations. In the face of widespread acclaim for the benefit corporation, both corporate directors and researchers should take these significant concerns into account.

7. Should your company become a benefit corporation?

This article suggests that corporate directors and managers should carefully weigh whether the liabilities and costs of the benefit corporation outweigh its advantages, which are widely described elsewhere and include creating a favorable brand and joining a movement of like-minded directors. They should also weigh the strengths and weaknesses of all social enterprise forms against the traditional corporation, including how well a traditional corporation competes against a social enterprise brand. Ultimately, directors should consider the risks and rewards of being an early adopter of any new legal form. From an ethical point of view, directors and managers should thoroughly evaluate whether benefit corporation legislation meets their standards as a socially responsible innovation. Such a discussion would address a variety of interesting questions: Isit right that the government should brand some corporations as beneficial, but not others? What might be the long-term trade-offs in their industry and in society? Do you believe stakeholders should be empowered? If so, how? Do you approve of using an unspecified third-party evaluator in lieu of other types of standard setters, such as industry groups? Concerned directors will consider that government itself is a third-party standard setter and evaluator, albeit one that is powerful and democratic, with its own strengths and weaknesses. In fact, the case of the benefit corporation is sparking renewed debate about the proper role of government, business, and the private sector as standard setters.