May 06, 2009
What vs. How
Posted by Susan Stabile

I'm in the midst of grading Administrative Law exams this morning so don't have time for an extended post.  But just a brief observation that I don't think Lyman and I are as far off as his post suggests in his comment about what vs. how.  The thrust of my Wake Forest piece is to suggest a different way of thinking about corporations and their actors and I speak only briefly about what role the law might play at the end of hte piece.   

The point I made in the article (which I still stand by) with respect to the role of law is that one can justify using law to achieve certain societal aims regarding the corporation.  The fact that corproations are creaturs of the law and can not exist without state permission means there is nothing philosophically wrong with the state setting the parameters under which they can operate.  Moreover, the law gives corporations a lot of benefits via tax breaks, limited liability and the like, making the use of law to achieve some social aim merely a quid pro quo for the benefits corproations reap through the law. 

Whether one decides some type of mandate or a legal incentive or some other legal approach is a good idea in a paricular circumstance is a different question.  I tend, like Lyman, to have some nervousness about legal mandates...and probably have more nervousness about them than I did 5 years ago when I wrote the Wake piece. 

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