Eible on Gordon, “The Contingent Corporation” and “Culture in Corporate Law”

Professor Gwendolyn Gordon, Assistant Professor of Legal Studies & Business Ethics, The Wharton School, University of Pennsylvania, discussed her work and fielded questions from students and faculty during the March 23, 2018 meeting of the Mellon Sawyer Seminar on Corporations and International Law. Professor Gordon offered commentary on Culture in Corporate Law or: A Black Corporation, a Christian Corporation, and a Māori Corporation Walk into a Bar . . .[1] and a draft piece titled The Contingent Corporation: Network and the Nature of the Firm.

Professor Gordon’s opening remarks focused on her draft piece. She noted that she uses an anthropological theory of the firm, rather than a more common economic theory of the firm, when she researches Māori corporations.[2] Moreover, she highlighted that the Māori social understanding of indigenous culture builds on top of what legal rules allow to be done to Māori land. The Māori people focus on making sure that future generations will have something to touch and call their own land; the Māori believe that you are your ancestors and that future generations are you. This is a unique conception of time, and the Māori population’s relation to the past, present, and future influences the business practices of a Māori corporation.

In response to audience questions, Professor Gordon noted that the Māori people do not see the corporate form as a remnant of colonialism. The Māori think of the corporate form as a tool and not as intrinsic; they note that they have existed as a population prior to the institution of the corporate form and that, while the corporate form may go away in the years ahead, they will continue to exist. Professor Gordon also noted that the Māori are a powerful economic actor in New Zealand, much more so than indigenous populations are in the United States, and that the Māori are the most powerful indigenous population in the world. She highlighted that she was accepted by them as a researcher because they identified her as being one of them; they consider everyone part Māori who can trace their genealogy to a native people. This helped her interact with the Māori, who knew she was previously a corporate lawyer and did not want her to simply profile them as an outsider to provide advice to the outside world. This concern plays into a general critique of anthropologists and other researchers, where a majority-population outsider observes and critiques or tries to aid a minority indigenous or other population, and Professor Gordon noted that she had to be careful to avoid this trap while doing research in New Zealand. She also reminded the audience that while indigenously-owned corporations tend to play on tropes of family-owned corporations, which may make the Māori’s focus on unity of purpose and unique understandings of time more understandable to a wider audience, indigenously-owned corporations and family-owned corporations are quite distinct.

Professor Gordon also highlighted, in response to questions about her Culture in Corporate Law article, that older ideas of corporatism were more explicit about relationships between the corporation and the social good. She critiques the more modern iteration of corporations bound up with culture, which she associates with recent Supreme Court cases like Citizens United[3] and Hobby Lobby,[4] as being much more haphazard or unaware of its articulation of the relationship between culture and corporations. Professor Gordon believes that the Supreme Court should be more thoughtful in how it develops this line of cases, particularly given how the language in Hobby Lobby does not articulate much in the way of limits as to how far the Court can go in accepting cultural identities for closely held corporations.

Finally, in closing the session, Professor Gordon was asked whether, considering her legal, anthropological, and business background, a corporation is better conceived of as a person or a society. Tracking the themes of the day and of the Seminar on Corporations and International Law, Professor Gordon concluded by underscoring that a corporation can be conceptualized as something person-like, something society-like, and something like a person inside a society.

[1] Gwendolyn Gordon, Culture in Corporate Law or: A Black Corporation, a Christian Corporation, and a Māori Corporation Walk into a Bar . . ., 39 Seattle U. L. Rev. 353 (2016).

[2] The Māori people are an indigenous population in New Zealand. Id. at 385.

[3] Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[4] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

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