No Imagination: The Marginal Role of Narrative in Corporate Law
Adolph Berle, the key twentieth-century theorist about the corporation, wrote that business does not produce heroes. He touches on a distinctive feature of corporate law: despite dealing with the clashes of strong personalities and high stakes, corporate law lacks successful narratives that attract general interest and sustain legal argumentation. "No Imagination" captures and examines this feature of discourse about business and the corporation.
Enron was a revelatory moment, in which we learned that a company's board, its analysts, its lawyers and accountants, and its shareholders failed as readers, whether the reading involved corporate reports, corporate disclosures, or corporate documents and, indeed, shredded corporate documents. In this breakdown of the supposed corporate mechanism, unsuccessful efforts at personification emerged to explain the corporation and society's reaction to it. Enron was denounced morally, and its derelict officers auditioned by commentators for roles in a morality play performed in the language of everyday normative concerns. Denouncing shredding gives hopes of introducing a moral dimension because the destruction is a marker of concealment, suggesting there is something to be concealed and a furtive understanding by a secret reader who has monopolized text by creating, reading, and destroying it.
Oddly, reformers reacting to Enron called for yet more corporate discourse in the form of yet more disclosures and reports. Given the failures of corporate text, reforms that posit a hypothetical reader of more documents than are now disclosed, but that remain unread, are bound to fail. Corporate discourse by its nature resists narrative and its accompanying normative claims. The discourse generated by business is a feature of the undertaking and not a matter that could arise from a purposeful manipulation. The claim of futility, or No Imagination, can be seen as a tragic view of corporate law as a body of law about a human enterprise that, by its nature, has no place within its language for the prototypical human concerns, or mere realism about the essential limits of emotions engaged by business and hence by the corporate enterprise. The analysis here provides both a basis for critiques of the corporation and a reason to resist them.
Mae Kuykendall, No Imagination: The Marginal Role of Narrative in Corporate Law, 55 Buff. L. Rev. 537 (2007-2008).