A BAYOU PRIVATEER CRITIQUE’S MARCOUX’S FIDUCIARY ARGUMENT AGAINST STAKEHOLDER THEORY

摘要

This Article critique’s Alexei Marcoux’s A Fiduciary Argument Against Stakeholder Theory which set the mark for Shareholder Theory. Stakeholder Theorists sense the denouement of Shareholder Theory, but perhaps this in-depth reassessment of Marcoux’s Article may have them reconsidering. Recent corporate scandals reveal only the moral paucity of that company’s management and are not conclusive evidence of any odious qualities inherent to either shareholders or Shareholder Theory. The theory that can throw out the bathwater and keep the baby will win. This article adheres to a modified Shareholder Theory elucidated therein while admitting that the human, all-too human Shareholder Theory evinces every fiber of our moral being when injustice harms that which we most love. This Article hopefully makes clear that Stakeholder Theory is best attainable within the legal rubric of 3rd party beneficiary analysis, which is a valid extension of Shareholder Theory. One can see the power of this when applied to a 3rd party beneficiary (stakeholder), thereby generally negating any further philosophizing as to a Stakeholder Theory when the legal contract principle of 3rd party beneficiary so readily inculcates it. Thus, Stakeholder Theorists can sleep at night, 3rd party beneficiary Contract Law is operating 24/7. The contracting 1st parties need only address important contingencies likely enough to warrant the transaction costs of express provision, such as the possible subsequent inclusion of 3rd party beneficiaries. For all other contingencies, the fiduciary obligation fills the gap. And so, while presently in an awkward position, Shareholder Theory has the advantage of being right, even if it desperately needed this Article to save itself.