There is much public criticism of recurrent failures to hold major corporations, their owners and senior executives to account for the many wrongfully inflicted harms their conduct inflicts. It offends both our political and legal value systems. Outside the corporate sphere, law is intent on holding those who benefit from activities they control responsible for the outcomes of those activities for example, liquor licensees’ liability for their patrons’ wrongdoing; churches for their misbehaving clergy. How has it come about that a different set of rules apply in the corporate sphere? A non-technical exposition as to the way in which law has constituted our most important economic vehicle, the for-profit corporation, to make it (i), difficult for us to use our normal rules and (ii), invite those in control of corporations to act heedlessly toward others, will be offered. This cannot be justified, neither conceptually, nor morally. Frequently a counter-argument is used to justify this different legal treatment of corporate actors. It is that, in the end, corporate exceptionalism benefits us all. That argument is an empirical one.
Evidence will be offered to show that the extent and quality of welfare created by allowing entrepreneurs to use the corporation are vastly exaggerated and that the harms done by the use of this vehicle are seriously underestimated. A recommendation as to what can be done to bring the treatment of corporate actors into line with the way in which all other citizens are expected to behave will be proffered. Essentially it calls for controlling shareholders to abide by the Canadian values and norms they are often heard to urge the rest of us to respect and honour.
Harry Glasbeek, B.A., LL.B. (Hons.) University of Melbourne, JD (Chicago), Professor Emeritus and Senior Scholar, Osgoode Hall Law School, York University, has taught at the universities of Melbourne and Monash in Australia, and the University of Western Ontario in Canada. From 1974 to 1996 he was a Professor at Osgoode Hall Law School. After retirement, until 2013, he spent 6 months of the year as a visitor and Adjunct Professor at Victoria University. He has written books on Australian labour law and Australian evidence law, on Canadian labour law and Canadian evidence law, as well as more than 130 articles on tort law, labour law, Bills of Rights, legal education, corporate law, corporate criminality, corporate social responsibility and occupational health and safety. His last book, the eleventh, is Class Privilege: how law shelters shareholders and coddles capitalism, Toronto: Between the Lines, 2017. His forthcoming book is Capitalism: A Crime Story (2018, Between the Lines).