See No Evil? Revisiting Early Visions of the Social Responsibility of Business: Adolf A. Berle’s Contribution to Contemporary Conversations

Abstract

This Article situates Adolf A. Berle’s contribution to the field of corporate law in the context of current debates over the alleged complicity of multinational corporations in international human rights violations. Specifically, this Article revisits some central insights offered by Berle and Gardiner C. Means in The Modern Corporation and Private Property and reconsiders what conducting business consciously across borders requires in the context of a governance gap generated by economic globalization. Further, this Article considers how both corporate ownership and control are well situated to ensure that business conduct becomes better aligned with a growing consciousness that business organizations must respect human rights and protect the environment, or risk reputational harm. This Article concludes by asserting that the dominant approach to the study of corporate law, with its emphasis on internal governance and the relationship between ownership and control, must be dislodged to create space for additional inquiry focusing on the external effects of the modern corporation and its relationship to society.By revisiting some of the insights offered by Berle, this Article reviews how his insights might inform international human rights advocacy and corporate social responsibility in cross-border contexts. This Article proceeds in three parts. Part I describes how Berle’s groundbreaking work, The Modern Corporation and Private Property, was received at the time of its publication, and its treatment over time. In addition, Part I also reviews the relevant portions of The Modern Corporation and Private Property that could serve to further advance the consciousness underlying contemporary efforts to demand corporate accountability for human rights violations. Part II documents how human rights advocates have criticized corporate conduct and increasingly asserted claims against corporations for alleged complicity in human rights violations and environmental damage over the past several years. Finally, Part III offers reflections on how legal scholars might look to Berle’s legacy to explain the underlying conditions that can lead to human rights violations where corporate power operates in various governance voids around the globe. Part III concludes that, under pressure from the community, ownership and control can and must consider external effects in order to make choices that are sustainable for the environment and consistent with human dignity.