In a recent column, Tibor Machan voices his dismay at the fact that “in several states across the U.S.A.—among them California, Vermont, Maryland and others—politicians have created, by legislation, “benefit corporations” in which managers may proceed to do pro bono work without having to answer to shareholders whose resources are being used for this.” He goes on:
Normally if managers mis-allocate company resources, they could be sued by the owners for malpractice but with this law they will become immune. The only recourse by shareholders will be to sell their stocks and of course these stocks will have lost a goodly portion of their value given that the company isn’t committed to making a profit any longer; nor does the management have to answer to the owners for abandoning this task.
Then, he offers a parade of horribles—doctors who ignore their patients in favor of non-paying clients, teachers who fail to grade students’ papers because they “must provide service to people in the neighborhood” and “will be in violation of the law” if they do not.
The benefit corporation as Machan has described it is a legal form available to contracting parties. Those parties can opt for this form or for a more familiar alternative. Nothing Machan says suggests either that the availability of the more familiar corporate form has been eliminated by legislation in the states he mentions or that existing corporations are being or will be transformed without investors’ knowledge or consent into benefit corporations.
Rather, it appears that, on the facts he presents, people who want to do so can choose, if they wish, to create, work for, and invest in corporations legally structured in particular ways. This seems suspiciously like what could be expected to happen in a freed market in which patterns of business association were determined not by state-created templates but by voluntary agreement.
Is attachment to a particular vision of the corporation and of investor behavior so great that the voluntary nature of the transactions contemplated here is invisible?