公司理论：独立经营者代理公司.pdf

The Theory of the Firm: The Corporation as Sole-Proprietor Surrogate Charles R. T. O’Kelley Introduction What is a corporation? Who owns a corporation? What is the purpose or function of corporation law, particularly fiduciary duty? What is a firm? What does the theory of the firm tell us about the answer to the first three questions? These core questions form the backdrop for the paradigm shift in corporation law scholarship which occurred between 1970 and 1980 and for the current search for a new paradigm. This article reassesses the currently dominant nexus-of- contracts paradigm, and the current controversy over the normative validity of shareholder primacy, and articulate a new vision of the corporation as sole-proprietor surrogate. For four decades, until the 1970s, the Berle and Means paradigm dominated corporation law scholarship, much as it had dominated the New Deal reform agenda.1 This paradigm is based on the asserted empirical fact that shareholders, though unquestionably the owners of publicly-traded corporations, do not have effective control over most publicly-traded corporations. Berle and Means also made a normative claim: the primary purpose of corporation law - a regulatory purpose - is to protect shareholders from depredation at the hands of selfish or careless entrenched managers, a risk of harm made possible by separation of ownership and control. Not surprisingly, the dominant research agenda for corporation law scholars during the ascendancy of this paradigm was corporate law reform intended to better regulate the conduct of corporate managers or otherwise protect shareholders’ interests.2 Equally unremarkably, 1 2 The reasons why the Berle and Means Paradigm so quickly came to dominate c