May 16, 2009
Parting Thoughts on Christianity and Corporate Law
Posted by David Skeel

I’ve greatly enjoyed the two weeks of discussion of Christianity and corporate law, and think there are many promising leads for those of us who are so inclined to pursue. I just wanted to add a pair of unrelated thoughts as the two weeks come to a close.

First, much of the discussion has focused on the very important issue of how much scope directors who are religious believers have to take their beliefs into account in the board room. This discussion was loosely tied at one point to the Delaware courts’ recent good faith decisions, which hint at the possibility that the duty of loyalty will be expanded beyond the relatively narrow, formal boundaries it has long been thought to have. I haven’t read all of the cases yet (that’s a project for the fall), but I worry about the potential implications. I think there’s a lot to be said for a more limited duty of loyalty that has clear boundaries. Expanding its scope could open a can of worms. What, for instance, is the remedy if a director violates her duty of loyalty in a situation where she does not have a clear conflict of interest? In a sense, I am talking about the standard of formal review, whereas much of our discussion has focused on the standard of review, to use Mel Eisenberg’s distinction between standards of review and of conduct in corporate law.

Second, and slightly off topic, I personally am intrigued by the issue of the role that belief plays in markets generally. An interesting article in the current issue of First Things (Gary Anderson, “Faith and Finance”) points out the linguistic connections between credit and belief, and argues that failures of belief lie at the heart of the recent credit crisis. I personally think the article presses the analogy between credit markets and belief a little too far (and similarly presses the idea that giving alms is like a loan to God too far), but it seems to me raise some interesting issues about the relationship between faith and markets.

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