Friday, September 28, 2007
Tsuk Mitchell, From Pluralism to Individualism: Berle and Means and 20th-Century American Legal Thought
Posted by Mary L. Dudziak
Dalia Tsuk Mitchell, George Washington University Law School, has posted an article, From Pluralism to Individualism: Berle and Means and 20th-Century American Legal Thought. It appeared in Law & Social Inquiry. Here's the abstract: This article is an intellectual history of Adolf A. Berle, Jr. and Gardiner C. Means, The Modern Corporation and Private Property (1932). I argue that Berle and Means's concern was not the separation of ownership from control in large pubic corporations, as many scholars have suggested, but rather the allocation of power between the state and a wide range of institutions. As I demonstrate, Berle and Means shared a legal pluralist vision of the modern state. Legal pluralism treated organizations as centers of power that had to be accommodated within the political and legal structure. Berle and Means viewed collective entities such as corporations as the foundation of the modern state, at the same time that their concern about the power that these entities could exercise led them to proclaim that corporate power (like sovereign power) should be exercised to benefit the community at large. The article further explores how Berle and Means's legal pluralist vision was eclipsed in the second half of the twentieth century as the attention of lawyers, legal scholars, and government officials shifted from collective entities to the individual as the basis for legal and political analysis (postwar interest group pluralism reflected this shift). The article then shows how this transformation helped legitimate the view that corporate entities were nexuses of private, contractual relationships. Informed by neoclassical economics, advocates of this new vision of the firm emphasized the role of economic markets in regulating corporate power. With deregulation and free markets in mind, neoclassicists came to treat The Modern Corporation and Private Property as a book about the limited question of the effects of the separation of ownership from control on efficiency and profit maximization, not as a book about corporate power as Berle and Means had intended.