David Yosifon on Corporate Law as An Existential Project

Professor David Yosifon has published Corporate Law as An Existential Project, 88 Fordham L. Rev. 1801 (2020). In this essay, Professor Yosifon posits that corporate law can serve as a guide as we search for meaning in our lives and in our relationships with other people. In fleshing out this thesis, Professor Yosifon paints signposts with corporate law principles to guide our journey to make meaning. Corporate law dictates that the board of directors must act. We too must engage to find meaning. The business judgment rule insulates an informed unconflicted business decision regardless of whether the decision strays from the norm and no matter the outcome. Accordingly, if we act based on evidence as we think best, we should refrain from judging ourselves. Given the corporate law mandate that directors must seek profits for shareholders, directors need not think about what their purpose should be. Nor should we struggle to understand the purpose of our life. Rather, we should focus on means to achieve the default purpose of life—to be a good member of our family and community. The duty of loyalty is a cardinal principle of corporate law. The giving of loyalty has numerous rewards, including allowing us to see ourselves more clearly. Professor Yosifon concludes with a focus on the corporate law principle of volunteerism: “This volunteerism is prior to and supersedes the duty of loyalty. This is to say: you can always breach. And maybe you should. The future ‘cannot be colonized in advance.’ The power and vulnerability dictated by the fiduciary opportunities of care and loyalty may generate any kind of new, unexpected meaning, and if it is heretical to fiduciary scriptures, so be it. Something very different, very bold may come out. Law is not the destination. Law is the path.”