Shan on Gordon, “The Contingent Corporation”

On Friday, March 23, Professor Gwendolyn Gordon from the Wharton School of Business at UPenn visited Duke to lead the discussion for the Mellon Sawyer Seminar on the Corporation and International Law. Professor Gordon’s academic background, as described by Professor Stern, perfectly embodies the interdisciplinary aspects of the Seminar. After obtaining a BA in psychology from Cornell and a JD from Harvard, she spent one year practicing corporate law at Shearman & Sterling LLP. Afterwards, she pursued a PhD in anthropology at Princeton, for which she studied indigenously owned corporations. She is currently a professor at Wharton teaching legal studies and business ethics.

The Seminar engaged in a lively discussion of Gordon’s most recent project, in which she adopts an interdisciplinary, culture-oriented approach to study corporations. In her 2016 article “Culture in Corporate Law,” she observed that recent Supreme Court cases approach corporate identity in a similar way as it approaches personal identity by recognizing the political, religious, and moral preferences of the corporation. This new trend, she argues, warrants adopting a cultural approach to understanding the corporation—not just a descriptive study of the internal cultures of corporations, but rather using culture as an analytical tool to understand how corporations operate in light of internal (its own employees and shareholders) and external (other corporations, third parties, and institutions) social expectations. The shorter paper that she prepared for the Seminar continues the dialogue by specifically investigating the culture-laiden processes through which a corporation negotiates boundaries in conducting business and engaging with the community. Both papers draw insights from her study of Wakatu, a Maori corporation based in New Zealand.

Much of the Seminar discussion was about her experience studying Wakatu for her PhD dissertation while in graduate school. Wakatu resembles most U.S. corporations in that it contains all the elements of a formal corporation—separation of ownership and control, developing business plans, etc.—but it’s unique in that it reflects and executes the shareholder tribal community’s moral and cultural expectations. Our discussion further highlighted the unique cultural foundation of Wataku. In developing its 500-year business plan, the corporation asked its shareholders to consider the deep-rooted, core community values of the tribes and synthesize them into moral principles that the corporation will abide by. The notion of continuity—the present embodies the past and engenders the future—is in the forefront of the corporation’s consciousness. The general sense is that, the corporation is just a tool for the community to act, but the community has been around before the corporation and will continue to exist after the corporation. The significance of community even affected Gordon personally. While the Wakatuleaders and shareholders were initially reluctant to open up to an American corporate lawyer, they considered her “part of us” after learning about Gordon’s Native American ancestry.

Gordon told us that the last thing the Wakatu community wanted was to be seen as yet another example of indigenous corporation adopting Western corporate law and how it does business. Her research did justice to that request. By carefully analyzing the ethical and legal boundaries of the Wakatu, she extracts a new theory of corporate law that uses culture as an analytical tool to understanding corporate law. Recent Supreme Court developments that treat corporations like natural persons reflect the salience of culture in a similar way as the role of culture in Wakatu. But these developments, argued Gordon, are haphazard and implicit. Adopting a cultural approach and articulating these differences can provide a more principled understanding of the ethical and legal responsibilities of the corporation.

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