Reuven Avi-Yonah's "Citizens United and the Corporate Form": A Comment

Avi-Yonah's article is to be commended for bringing corporate theoretical sophistication to bear on the opinions of a Court that is largely unfamiliar with the real world of corporate and business practice. But the essential question with which I leave Avi-Yonah's work is: Why does it matter? The principal flaw in Avi-Yonah's argument is that it consistently operates at the level of high theory while failing to contextualize the theoretical debate in a way that might elucidate for us theory's importance. While he takes us through all of the standard cases, he disregards the purposes for which theory was used in each. For corporate theory in the context of constitutional law is about the power relationship between the corporation and the state, while corporate theory in the context of corporate law is about the relationship between directors and shareholders, and thus the distribution of power within the corporation. One set of theories is largely independent of the other, as clear as the contrast between the Progressive Era theoretical literature Avi-Yonah cites, and Berle and Means's "The Modern Corporation and Private Property". What difference does it make? Constitutional law is about power within politics, writ both large and small. Corporate law is about power within business. The former goes to the question of the corporation's power vis-a-vis the state and society. The latter goes to questions of the efficiency of the enterprise and the legitimacy of its organization.