The Return of the Lawyer-Statesman?

Abstract

Ben W. Heineman, Jr., a former general counsel of General Electric, has written a book (The Inside Counsel Revolution) proposing an ambitious role for legal advisors to corporations, which he calls "resolving the partner-guardian tension." Corporate lawyers, Heineman argues, must be effective agents in helping their clients attain their performance goals. But they must also ensure that the company acts with "integrity," meaning compliance with the spirit as well as the letter of the laws of the jurisdictions in which the company does business, fostering constructive relations with stakeholders as well as maximizing share prices, and forming collaborations with other companies to promote public policies that mitigate the harmful externalities of corporate conduct. This Essay points out that this program looks like a revival of the "managerialist" agenda of progressive corporate statesmen of the 1920s and 1930s and of relatively progressive business associations of the 1950s and 1960s, like the Committee for Economic Development. In recent decades, the managerialist ideal of corporate statesmanship has been abandoned in favor of the view that the only social responsibility of businesses is to maximize their profits and that the only responsibility of their lawyers is to help them overcome regulatory and tax restraints that stand in their way. This Essay argues that this dominant vision of corporations as amoral profit-seekers and of their lawyers as their amoral facilitators has proved dangerously misguided, and it welcomes the revival of the lawyer-statesman ideals of Heineman and his collaborators as a corrective. It also raises some questions about the feasibility of the ideal.