Volume 3.2
Summer
2024

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Volume 3.2
Political Freedom and Economic Constraints: The Political Setting for the Problem of Twelve
John C. Coates
Deputy Dean and John F. Cogan Professor of Law of Economics at Harvard Law School

This essay outlines foundations of the current moment facing corporations and politics, which I have characterized as a new “problem of twelve”—that is, the concentration of power in the hands of a small number of index and private equity fund sponsors.

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Volume 3.2
The Power to Shape the “Political”
Amanda Shanor
Assistant Professor and Wolpow Family Faculty Scholar, the Wharton School of the University of Pennsylvania.

Thank you to the editors of the University of Chicago Business Law Review, including Anna Dincher and Maddie Fleming, for organizing this rich conversation and for their helpful comments and suggestions. I am grateful to Emily Chapuis, Sarah Light, Elizabeth Pollman, and Robert Post for helpful conversations and feedback that sharpened these ideas. All errors are my own.

The role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make?

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Volume 3.2
Kalven For Corporations: Should For-Profit Corporations Adopt Public Statement Policies?
Anthony J. Casey
Donald M. Ephraim Professor of Law and Economics, Faculty Director, The Center on Law and Finance.

The authors are grateful to Tom Cole for his advice and to participants at the University of Chicago Business Law Review Symposium for comments. The Richard Weil Faculty Research Fund and the Paul H. Leffmann Fund provided generous support.

Tom Ginsburg
Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Faculty Director, Forum for Free Inquiry and Expression, University of Chicago Law School.

The authors are grateful to Tom Cole for his advice and to participants at the University of Chicago Business Law Review Symposium for comments. The Richard Weil Faculty Research Fund and the Paul H. Leffmann Fund provided generous support.

In the last few years, publicly held for-profit companies have been called upon to take public positions on myriad issues unconnected to core business concerns. Demands for public statements may arise from customers, employees, shareholders (large and small), the media, and others.

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Volume 3.2
How Did Corporations Get Stuck in Politics and Can They Escape?
Jill E. Fisch
Saul A. Fox Distinguished Professor of Business Law at the University of Pennsylvania Carey Law School and a Fellow of the European Corporate Governance Institute.

We are grateful for helpful comments from Reilly Steel, Heidi Welsh, and participants in the Wharton/Penn Law Women in Law and Finance Conference, the Penn Law Faculty Ad Hoc Seminar, the Berkeley Forum on Corporate Governance, the Section on Business Associations at the AALS Annual Meeting, the BYU Winter Deals Conference, the University of Chicago Business Law Review Symposium on the Corporation’s Role in Politics, the Università Cattolica del Sacro Cuore Faculty Seminar, the Global Corporate Governance Colloquium, the Global Institutional Governance Network, and the University of Texas Faculty Workshop.

Jeff Schwartz
Hugh B. Brown Presidential Professor of Law at the University of Utah, S.J. Quinney College of Law.

We are grateful for helpful comments from Reilly Steel, Heidi Welsh, and participants in the Wharton/Penn Law Women in Law and Finance Conference, the Penn Law Faculty Ad Hoc Seminar, the Berkeley Forum on Corporate Governance, the Section on Business Associations at the AALS Annual Meeting, the BYU Winter Deals Conference, the University of Chicago Business Law Review Symposium on the Corporation’s Role in Politics, the Università Cattolica del Sacro Cuore Faculty Seminar, the Global Corporate Governance Colloquium, the Global Institutional Governance Network, and the University of Texas Faculty Workshop.

Corporations have always been involved in politics, but today is different. They are taking public positions, either directly or indirectly, on contested political and social issues unrelated to their businesses. In contrast to the conventional wisdom, we argue that this practice, which we term “corporate political posturing,” is problematic.

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Volume 3.2
Corporate Participation in Social Debates
Anna Toniolo
Fellow and Director, Harvard Law School Program on Corporate Governance, and SJD candidate, Harvard Law School.

For helpful comments and discussions, I would like to thank Lucian Bebchuk, Shelley Alpern, Jane Bestor, John Coates, Alma Cohen, Louis Kaplow, Reiner Kraakman, Ignacio Orellana Garcia, Anete Pajuste, Ariel Rava, Kathy Spier, Tom Zur, and participants in the Harvard Law School Program on Corporate Governance Workshop, the Harvard Law School Graduate Program LLM Paper Presentation, The University of Chicago Business Law Review Symposium 2024, and the 2024 National Business Law Scholars Conference. I am also grateful to the Center for Political Accountability for sharing the data on the corporate political contributions to RAGA and DAGA, and in particular to Bruce Freed and Jeanne Hanna.

Corporations are increasingly wading into social and political matters that are unrelated to their business operations. This Paper empirically investigates corporate participation in social debates through the corporate response to Dobbs, the Supreme Court’s decision overturning the constitutional right to abortion.

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Volume 3.2
The Surprising Survival—So Far—of the Corporate Contribution Ban
Richard Briffault
Joseph P. Chamberlain Professor of Legislation, Columbia Law School.

This article benefited from the skilled research assistance of John D. Sullivan Baker of the Columbia Law School Class of 2024 and Alon Goldfinger of the Columbia Law School Class of 2025.

In Citizens United v. Federal Election Commission, the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns—that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy.

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Volume 3.2
Lawbreaking as Lawmaking
Michael Kang
Class of 1940 Professor of Law, Northwestern Pritzker School of Law.

Many thanks to Richard Briffault, John Coates, Jill Fisch, and Nancy Leong for their comments on an earlier draft.  Thanks also to Zach Furlin, Gene Kim, Brent Larson, and Christine Thomas for excellent research assistance.

Uber has been described by its most extreme critics as “the root of all evil” for its lawbreaking business tactics, among other things, in pursuit of becoming “too big to ban.”

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Volume 3.2
Nonprofit Corporations & Politics: The Entity/Coordination Tension
Lloyd Hitoshi Mayer
Professor, Notre Dame Law School.

I am very grateful for the opportunity to participate in this symposium, for the comments and questions from its participants, and for the research assistance of Nathaniel Barry.

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election-related actions are generally not attributed to another nonprofit corporation.

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Volume 3.2
Twin Inadequacies in the FTC’s Recent Biometrics Policy Statement
John Burroughs
J.D. Candidate 2025, University of Chicago Law School.

Many thanks to Professor Josh Avratin for his invaluable feedback and guidance, and to my family for their constant support. Thank you as well to the University of Chicago Business Law Review editorial staff.

In the spring of 2023, the FTC released a policy statement addressing biometric information and technologies using or purporting to use such information. The policy statement contains a remarkably broad definition of “biometric information” and describes a variety of business practices that could violate § 5 of the Federal Trade Commission Act by being either “deceptive” or “unfair.” In spite of the policy statement’s comprehensiveness, however, it has two substantial inadequacies.

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Volume 3.2
Private Equity Investment in Health Care and Ineffective Antitrust Regulations
Sofia Gracias
J.D. Candidate 2025, University of Chicago Law School; MPH 2021, Emory University, Rollins School of Public Health.

The corporatization of health care in the United States has forced us to confront society’s moral expectations of the industry, which serves uniquely vulnerable consumers. Health care has become increasingly more lucrative, attracting private equity (“PE”) investment, specifically in private physicians’ practices.