Constructing a Matrix for Integrating Economics, Law, and Ethics: A Rethinking of the Model for Teaching Corporate Governance Rebecca Luzadis1 Daniel Herron2 I. Introduction The thesis of this paper is that there is essentially a dichotomous model for business decision-making: one based on investors’ or shareholders’ interest; the other based on multiple stakeholders’ interest. As such, this paper argues for the latter. This is not a new debate but it is one that has been raging for twenty-plus years. Supporting the former, Milton Friedman and others argue that two principles must guide business decision-making: obeying the law and maximizing investor (or owner) wealth.3 Supporting the latter, ethicists Tom Donaldson, Kenneth Goodpaster and others argue that all stakeholders affected by business decision-making must have their interests incorporated into the decision-making process.4 As Donaldson and Dunfee note “The concept of corporate obligations to stakeholders has been a major theme in Western business ethics for several decades….the nature and scope of corporate obligations to stakeholders is one of the most important and extensive components of the modern literature on business ethics.”5 Most of the debate between these two approaches has been centered in two venues: the economic one or the ethical one. The arguments are laid out rather simplistically like this: Economic argument: Investor theory: since market efficiency is a desired outcome, the focus of business decision-making should be on maximizing return on investment; other constituent concerns may be considered by the government, the legal system or some other advocate, but not by the business decision-maker. In other words, business does business, government does government, social welfare groups do social welfare 1 Associate Professor, Department of Management, Miami University, Oxford OH. Professor of Business Legal Studies, Department of Finance, Miami University, Oxford OH. 3 See, for example, Friedman M. 1962. Capitalism and Freedom Chicago: University of Chicago Press; 1970 The Social Responsibility of Business is to Increase its Profits, New York Times Magazine September 13; Coelho, McClure. Spry. 2003. The Social Responsibility of Corporate Management: A Classical Critique 18:1 Mid-American Journal of Business 15-24 4 See, for example, Freeman, M, 1970. Strategic Management: A Stakeholder Approach. Boston: Pitman; Donaldson and Preston. 1995. The Stakeholder Theory of the Corporation: Concepts, Evidence, and Implications. Academy of Management Review 20:65-91. 5 Cite to Donaldson and Dunfee social contract book p. 235; also Timothy L. Fort, ETHICS AND GOVERNANCE: BUSINESS AS MEDIATING INSTITUTION (2001) (“No approach has been more prominent in contemporary business ethics than stakeholder theory. Lead by the work of Ed Freeman, the theory successfully played off the typical focus on corporate duties to “shareholders” to identify duties toward employees, suppliers, community, and perhaps many others besides”). p. 119 2 activities, etc and with everyone doing what they are supposed to do, the system not only works but is efficient. Stakeholder theory: accepting the notion that market efficiency is a desired outcome, this theory argues that the most efficient approach is to take into account all stakeholder interests since that approach will incorporate all aspects of the decision-making process; proponents of this approach tend to point to the financial success of companies with articulated corporate social responsibility credos that incorporate multiple stakeholders.6 Ethical argument: Investor theory: business decision-makers have a fiduciary, and hence ethical, obligation to owners/investors to safeguard and prudently manage the “money” entrusted to them. No other constituency or stakeholder has the comparable degree of fiduciary obligation owed to them by the decision-makers. Stakeholder theory: the business decision-makers affect, via their decisions, a variety of stakeholders, including, but clearly not limited to the investor/owners; as such, some degree of duty, generally characterized as an ethically based-one (rather than an economically-based one), is owed to these stakeholders. While economics and ethics command the focus of the ongoing arguments, ironically the legal aspect is fairly well-settled and it runs parallel with the investor/ethical argument. The paramount relationship is that of investor/owner and those who manage that investment (via decision-making).7 The decision-maker has a fiduciary obligation to manage that owners’ money according to the wishes and expectations of the investors. This legal maxim has only been questioned in light of evolving reliance theories which will be introduced below in part II. The paper will examine the following issues: 1) the underlying moral and ethical foundations giving rise to the concept of obligation; 2) the underlying economic foundations that compliment or contradict these underpinnings; 3) the decision-making model itself and how it may be operationalized. 6 See, for example, Medtronic, Inc., at http://www.medtronic.com/corporate/codeofconduct.html See the classic book which lays out traditional corporate/legal theory Berle, A and Means, G., 1932. The Modern Corporation and Private Property. New York: MacMillan 7 II. Moral Obligation Fundamental Western philosophy holds that all individuals have some degree of autonomy. We have free will.8 Even with the advent of nineteenth century Darwinist and Freudian determinism, we base our lives and societies on the concept that human beings can make decisions.9 Our social institutions rely on this belief. Freedom to marry, work, worship…all the daily decisions we make are premised upon this one concept of autonomy and operationalized with the function of free will. Our legal and political systems could not survive without such a foundation of “free choice.” The determination of legal liability would be a hollow exercise and democracy would be a silly activity. However, if autonomy or free will is the very first foundational stone and an obvious one at that, the second stone is far more difficult to identify and understand. If indeed “choice” is the first characteristic of decision-making functions, what are the products and ramifications of such “choice”? We know the following by experiential data: Choice or decision a result We also know by experiential data that the following may and usually does occur: Choice or decision a result affect on others The question which is created, which is fundamental to understanding the nature of “obligation,” is: what is, if any, the relationship between the decision-maker and those who are affected by that decision. Does some kind of obligation spring into being as a result of this relationship? Common law addresses this issue but only after adding two variables.10 If the affected person “relied” on the decision-maker’s choice to the affected person’s detriment AND the decision-maker knew or should have known that such reliance was occurring, then obligation from the decision-maker to the affected person is created.11 This has been morally encapsulated by John Stuart Mill in 1859: When a person, either by express promise or by conduct, has encouraged another to rely upon is continuing to act in a certain way—to build expectations and 8 See Uyl, Douglas, Autonomous Autonomy: Spinoza on Autonomy, Perfectionism, and Politics in Paul, Miller, Paul, eds., Autonomy Cambridge Univ.Press: 2003), pp.30-69. 9 Id., p. 30, citing to Robert Paul Wolff, In Defense of Anarchism, “The fundamental assumption or moral philosophy is that men are responsible for their actions. From this assumption it necessarily follows…that men are metaphysically free.” 10 There is no statutory reference to reliance theories. Reliance theories have evolved exclusively from judicial interpretation in case law. 11 See McIntosh v.Murphy, 52 Hawaii 29, 469 P.2d 177 (1970) in which the court held that though the formal contract between the two was technically unenforceable due to the statute of frauds and neither enforcement of the agreement nor money damages were available, the enforcement of the agreement under a reliance argument was justified since “…injustice can only be avoided by the enforcement of the contract and the granting of money damages…” calculations, and stake any part of his plan of life upon that supposition—a new series of moral obligations arises on his part towards that person, which may possibly be overruled, but cannot be ignored…a person is bound to take all of these circumstances into account, before resolving on a step which may affect such important interests of theirs; and if he does not allow proper weight to those interests, he is morally responsible for the wrong.12 Reliance theories essentially permit the substitution of detrimental reliance for consideration in contract formation and enforcement.13 For example, a person clearly promises her niece that in exchange for her niece’s many years of devotion and care to her, she is leaving the niece her home, a valuable piece of property, upon her death. The aunt invites the niece to move in now while the aunt is still alive. The niece relies on this information, sells her current home, and moves in with her aunt. Her aunt passes away a few months later but she neglected to change her will and her will does not mention the bequest to the niece. Under classic contract law or under the laws of descent, the niece has very little legal leg to stand on. The niece has not given good consideration for the transaction (the “years of devotion” were in the past and not good current consideration; this was essentially a gift that was not executed and thus not enforceable). However, this is where reliance theory may come into play. Because there was a clear promise upon which the niece relied and upon which the niece acted to her detriment (i.e., selling her home and moving in with the aunt), the promise will be enforced as if it were an enforceable contract.14 However, the law is equally settled that the affected party’s reliance must be based on good faith and cannot be created if the party knows or should know that such reliance is misplaced.15 It is not a leap to understand that since the law only requires a fiduciary obligation between the business decision-maker and the investor/owner, then any attempt to create a relationship between the business decision-maker and other stakeholders would be misplaced.16 To capsulate this issue in the context of this paper: must business decision-maker take into account constituencies, i.e., stakeholders, other than owners, if it can be shown that 1) by express or implied behavior (action or words) the business decision-maker created 12 Mill, John Stuart On Liberty (1859: Cambridge: Cambridge University Press, 1989) p. 103f as cited in Stakeholder Theory, ed. Zakhem, Palmer, Daniel E., Stoll, Mary Lyn (2008: Prometheus Books, NY) 13 Habibi, Don A.and Herron, Daniel J., Law, Ethics, and the Dilemma of Modern Liberalism, 13 Midwest Law Review 14, 1-19 (1995). 14 See Farber and Matheson, Beyond Promissory Estoppel: Contract Law and the “Invisible Handshake”, 52 U. Chicago Law Review 903, 903-947 (1985); Metzger and Phillips, The Emergence of Promissory Estoppel as an Ind ependent Theory of Recovery, 35 Rutgers Law Rev. 472, 472-557 (1983). 15 See Metzger and Phillips, “Promissory Estoppel and the Evolution of Contract Law,” 18 American Business Law journal 160 (1980) 16 Of course, the long-held judicially-created “business judgment rule” does permit fiduciaries to act in discretionary ways in the furtherance of the business activity even if the “return on investment” is not fully and unequivocally maximized. This, for example, would apply to the area of business philanthropy. reliance in those stakeholders; and, 2) the business decision-making will have a detrimental effect on those very stakeholders in whom reliance was created. Yet, from a moral perspective, the question still remains, regardless of the law’s modification of the question, “does the mere affecting of another by a decision-makercreate some obligatory relationship flowing from the decision-maker to the affected party?” The resolution of this question goes to the very heart of whether stakeholder theory has legitimacy as an ethical theory rather than as an economic one based on competing efficiency approaches or legalistic ones based on reliance theories. III. The Economic Rationale for Stakeholder Theories Milton Friedman has argued that the “essence of a competitive market is its impersonal character,”17 where “no individual can by himself have more than a negligible influence”18 on the outcomes of competition. “Monopoly exists when a specific individual or enterprise has sufficient control over a particular product or service to determine significantly the terms on which other individuals shall have access to it.”19 Friedman went on to say that “the existence of monopoly raises the issue of ‘social responsibility,’ as it has come to be called, of the monopolist.”20 One rationale for preferring stakeholder theory over investor theory is that Friedman’s argument against this so-called social responsibility is essentially a political, rather than an economic, argument. Friedman said: “The monopolist is visible and has power. It is easy to argue that he should discharge his power not solely to further his own interests but to further socially desirable ends. Yet the widespread application of such a doctrine would destroy a free society.”21 Here, Friedman’s primary concern is the protection of individual freedom and, perhaps one could argue, in particular the protection of individual freedom of those with that visible power to which he refers. Protection of such individual freedom, even if one wishes to argue its political or ethical desirability, is not shown to be necessary for economic success. This brings up two questions: 1) What is necessary for economic success? And, 2) What is the definition of economic success? In his Essays in the History of Economics, George Stigler describes the concept of perfect competition as being “as pervasive and fundamental as any in the whole structure of classical and neoclassical economic theory.”22 This is essentially the same concept of competition as used by Adam Smith, where competition is seen as a rivalry (“a race to get limited supplies”23). According to Stigler, Smith had 5 conditions of competition24: 17 Milton Friedman, Capitalism and Freedom. University of Chicago Press, 1962, p. 119. Ibid, p. 120. 19 Ibid. 20 Ibid. 21 Ibid. 22 George J. Stigler. Essays in the History of Economics. University of Chicago Press, 1965, p. 234. 23 Ibid, p. 235. 18 Rivals must act independently, not collusively, There must be a sufficient number of rivals, Rivals must have a ‘tolerable’ knowledge of market opportunities, Rivals must have the freedom to act on this knowledge, and There must be sufficient time for resources to change hands as desired. According to Stigler, one could reasonably infer that the first two conditions were based on Smith’s observations of how economic transactions actually occurred.25 The other conditions, however, appear to be “the necessary conditions for the validity of a proposition which was to be associated with competition: the equalization of returns in various directions open to an entrepreneur or investor or laborer.”26 With respect to the question of the viability of stakeholder theory versus investor theory, let us look at the third and fourth conditions required by Smith: possession of ‘tolerable’ knowledge of market opportunities and the freedom to act on that relevant knowledge. In 1939, N.W. Senior wrote, “It is obvious that these suppositions have no resemblance to the truth.”27 Despite the clarity of his observation, Senior was the exception; as Stigler notes, no significant challenge was made to the dominance of the theory.28 Critics tended to denigrate the entire logic (not to mention ethics) underlying capitalism, rather than seeking to improve the realism of Adam Smith’s theory. In the early twentieth century, the mathematical school of economics came into prominence and, in the main, this approach has continued to dominate economic theory ever since. Stigler observed, “The vitality of the competitive concept in its normative role has been remarkable. One might have expected that, as economic analysis became more precise and as the range of problems to which it was applied widened, a growing list of disparities …would develop. Yet to date there have been only two major criticisms of the norm. The first is that the competitive individual [as described by theory] ignores external economies and diseconomies, which – rightly or wrongly – most economists are still content to treat as an exception to be dealt with in individual cases [i.e. outside the theoretical model]. …The time may well come when the competitive concept suitable to positive analysis is not suitable to normative analysis…’’29 Perhaps that time has come. The reliance on mathematics and the consequent focus on positive analysis has been a shield behind which modern economics has hidden for too long. Far too many critical aspects of economic policy and outcomes have been ignored in favor of a neat, if not very useful, theoretical model. Unlike their historical predecessors, too many modern-day economists are locked in the limited world of positivism. Many claim to favor positivism over the more complicated realm of 24 Ibid, p. 237. Ibid, p. 237. This assumption may also be found to be unrealistic in much of modern day business, where strategic partnerships are formed. 26 Ibid, p. 238. 27 N.W. Senior. Political Economy, New York, 1939, as cited in Stigler, 1965, p. 239. 28 Stigler, p. 238. 29 Ibid, p. 266. 25 normative economics, arguing that there is no place in the ‘science’ of economics for normative judgments. Modern economic modes of thinking … depart from what was labeled “political economy” by attempting to isolate economics from a traditional context of moral activities, and to establish it as a set of activities that could be judged purely in instrumental terms.30 In this way of thinking, individuals are thought of as independent beings who act in the pursuit of their own self-interest. The law serves to establish rules that govern relations between individuals, and are based on protecting individual liberties and private property.31 According to Adam Smith, “The drive for economic self-interest did not, or at least not necessarily, undermine the important moral values of society.”32 Establishing economics firmly as a science enabled the distinction between positive analysis and normative judgment.33 In 1890, John Neville Keynes (father of the more well- know John Maynard Keynes) “distinguished the positive, scientific study of economics from the ethical value standards required for policy recommendations.”34 Pareto argued that economics must be a science, with its principles rooted in experience and observation, and that it could “assume no dogmas, ethical principles, or political exhortations.”35 In 1932 Lionel Robbins said: “Economics deals with the choice of means to achieve given ends. It is ‘neutral’ with regard to the ends themselves, which are value judgments that cannot be scientifically evaluated.”36 This position of the ethical neutrality of economics is, of course, subject to obvious challenge. So-called positive propositions may (and indeed do!) have normative implications. What’s more, “those implicit value judgments may be more insidious when advanced as scientific conclusions.”37 “The unstated conclusion is still a sermon to the effect that the competitive system is best, and this conclusion is no more valid than any other value judgment.”38 For example, Lester Thurow argues: In a market economy the income distribution plays a central role in the allocation of goods and services. Individual preferences determine market demands, but preferences are weighted by income before they are communicated to the market. If an individual has no income, his potential demand for goods and services has no effect on the market. He must have Daniel Bell, “Models and Reality in Economic Discourse,” in D. Bell and I. Kristol, eds. The Crisis in Economic Theory. New York: Basic Books, 1981, p. 47. 31 Ibid. 32 Adam Smith. The Theory of Moral Sentiments, as quoted in Everett J. Burtt. Social Perspectives in the History of Economic Theory. (New York: St. Martin’s Press, 1972), p. 45. 33 Burtt. p. 4. 34 Burtt, p. 6. 35 Ibid. 36 Lionel Robbins. The Nature and Significance of Economic Science. 1932, as quoted in Burtt, pp. 6-7. 37 Burtt, p. 7. 38 Ibid. 30 income with which to make his preferences felt. …The achievement of efficiency in a market system depends on the prior achievement of an optimum distribution of income. …If income is not distributed in accordance with society’s preferences, the market adjusts to an inequitable set of demands. Market signals to not express society’s desires and the market system does not result in an acceptable distribution of goods and services. There is nothing in the system that automatically achieves the desired income distribution.39 Of course, for centuries economists have known they were on thin ice if they tried to argue the justness of the existing income distribution, whether it be in 21st century United States, or hundreds of years before. In the 1800s, John Stuart Mill struggled with what he saw as competition among individuals for wealth. Mill wrote: I confess I am not charged with the ideal of life held out by those who think that the normal state of human beings is that of struggling to get on; that the trampling, crushing, elbowing and treading on each others’ heels, which forms the existing type of social life, are the most desirable lot of mankind.40 Alfred Marshall had “firm faith in the benevolence of the … free enterprise system.”41 However, Marshall noted that “there were evils in the process of economic development, evils that it was important to identify. For example, the early ‘capitalist employer … was tempted to subordinate the well-being of his workpeople to his own desire for gain.’”42 “Improvement of the moral climate was important. Marshall urged that businesses adopt fairer and more benevolent attitudes toward their employees and others. This philanthropic approach, which emphasized the personal relationships between employers and their workers and businessmen and the public, he called ‘economic chivalry’”.43 Lest this is not persuasive enough, Adam Smith himself had his doubts about whether the free-enterprise system was indeed capable of producing the most desired results in terms of income distribution. Smith thought: Merchants and businessmen were the ‘enterprisers.’ This class, he said, was distinguished by its ‘acuteness of understanding’, whereas the landlords, ‘whose revenue costs them neither labour nor care’ were ‘too often, not only ignorant, but incapable of that application of mind’ needed to foresee and understand the consequences of public regulations. As for the workers, their economic condition and lack of education impaired their judgments.44 39 Lester Thurow. Poverty and Discrimination. (Washington, DC: The Brookings Institution, 1969), p. Burtt, p. 112. 41 Burtt, p. 206. 42 Burtt, p. 207. 43 Burtt, p. 210. 44 Burtt, p. 47. 40 But, Smith wasn’t comfortable leaving capitalists completely on their own. However valuable they were to society in promoting economic growth, “their self-interest tended to produce undesirable social ends….Because they have an interest that is ‘never exactly the same with that of the public … they have generally an interest to deceive and even to oppress the public, and … have, upon many occasions, both deceived and oppressed it.’”45 So, clearly many if not most of the most prominent scholars in economics over the centuries, excluding the latter half of the twentieth century, were well aware of the shortcomings of classical and neoclassical economic theory. This is not to say that the theory is of no use. It is to say, however, that neoclassical economic theory should be limited to areas in which the underlying assumptions are moderately tenable. Consider, for example, some arguments by Michael Jensen. As Jensen himself explains stakeholder theory, “managers should make decisions so as to take account of the interests of all stakeholders.”46 This rule may become troublesome when interests of some stakeholder(s) conflict with those of stockholders. In setting up his argument, Jensen explicitly acknowledges that his theory works “under the assumption there are no externalities or monopolies,” by which he means “the situation in which the full social cost of an action is not borne by the firm or individual that takes the action.”47 It is precisely in this reality that stakeholder theory is relevant. Further, Jensen contradicts himself by arguing first “To the extent that stakeholder theory argues that firms should pay attention to all their constituencies, the argument is unassailable. Taken this far stakeholder theory is completely consistent with value maximization…”48 He then he goes on to say “Any theory of action must tell the actor, in this case managers and boards of directors, how to choose among multiple competing and inconsistent interests of those constituencies. …Stakeholder theory as stated by Freeman and others contains no conceptual specification of how to make the tradeoffs among stakeholders that must be made. This makes the theory damaging to firms and to social welfare…”49 How does it necessarily follow that the theory is damaging? Less than fully useful, perhaps, but damaging? More damaging than a theory that presumes a just income distribution, full information, and complete mobility? Unlike what Jensen and others claim, management is not fundamentally worse off considering input from stakeholders. In many cases, decisions managers must make in the course of doing business do not have the benefit of full information and incorporation of stakeholders could actually increase access to and reliability of information that is vital to making effective business decisions. Claims that consideration of additional 45 Adam Smith. The Wealth of Nations, as quoted in Burtt, pp. 47-48. See, for example, Michael C. Jensen, “Value Maximization and the Corporate Objective Function,” in Breaking the Code of Change, M. Beer and N. Norhia, eds., Harvard Business School Press, 2000. 47 Ibid, p, 7. 48 Ibid, p.8. 49 Ibid, p.9. 46 stakeholders in some way necessarily will result in less-than-optimum decisions are unjustified. IV. The Stakeholder Decision-Making Model In order to fully develop the stakeholder model, there is an imperative for “managers to act as follows: 1) Identify the full range of stakeholders for a given firm and decision; 2) Identify the stakes at issue in the decision; 3) Assess the legitimacy of the stakes; 4) Allocate priority among conflicting stakeholder claims; 5) Identify strategic options for responding to the legitimate stakes having priority; 6) Assess the viability of the options within the framework of corporate governance, including any special considerations to be given to the interests of the stakeholders; 7) Make a final decision.”50 From a structural perspective, the model appears to be a classic matrix illustrated something like this: Stakeholders→ Owners Perspectives ↓ Customers Employees (incl vendors, creditors, et al.—i.e., external contractual relationships) Market Society Financial aka the bottom line, profit Legal aka compliance Ethical The empty cells represent the implications on each stakeholder from each of three perspectives. 50 Donaldson and Dunfee op. cit. p. 236 With this model presented, the natural questions must be: Why these stakeholders? Why these perspectives? THE S TAKEHOLDERS One of the criticisms of stakeholder theory is the unwieldiness of ascertaining the actual stakeholders themselves.51 This model answers that criticism by incorporating the entire universe of potential stakeholders into five manageable categories. Owners and Employees Internal to any business functionality are two discrete, though arguably similar, interests: those who monetarily invest in the venture (and their managerial agents) and those who non-monetarily invest by virtue of employment commitment; in other words, owners and employees. In the literature, few if any, dispute the validity of listing owners and employees on the list of traditional stakeholders. However, the model above does collapse an often-cited stakeholder into the owner category, and that is “management.” Management represents the interests of the business organization itself and as such, at least when squaring that with the legal model of fiduciary obligation, means that management represents the interests of the owners. If managers or collectively “management” acts in a way to protect their own jobs, they fall the into the “employee” stakeholder group and their employment becomes the primary variable in decision-making activities. As a discrete group, management represents either owners in an agency relationship or represents a facet of employee interests, i. e.. their own. Customers It is this category of stakeholder that the greatest latitude is taken by this paper for the sake of model efficiency. “Customers” include all external constituencies (vis owners and employees as “internal”) that have a contractual relationship with the business and whose relationship, at least legally, is controlled by that contract. This would naturally include a whole host of discrete entities: any buyer, suppliers, vendors, or creditors. The consideration here by the business decision-maker is the long-term business relationship that both parties are likely anticipating and which they likely were cognizant of when forming the initial contractual relationship. Much like employees, “customers”, as defined here, invested not money but the anticipation of a continued business relationship. The investment goes beyond whatever contract is at hand and looks to the future relationship as well. Society 51 See, for example, Coelho, McClure, Spry, The Social Responsibility of Corporate Management: A Classical Critique, 18 Mid-American Journal of Business, 15, pp. -19 (2003). Society is the stakeholder that has the most tenuous relationship back to the business decision-maker. While an external constituent, it has no legally contractual connection. Yet, when defined contextually as the “local” society, links become apparent. The previously-identified three stakeholders—owners, employees, customers—are members of society. The business in question is a member of this society. It does not take any stretch of logic or imagination to argue that the local community may well be affected by the business decision-making process. In light of current debate regarding social responsibility theories, there is strong argument for inclusion of society in the panoply of identifiable stakeholders.52 Market Many stakeholder-theory proponents include “competitors” as a stakeholder group.53 This seems a bit disingenuous in light of our underlying acceptance of a capitalistic market. If the paradigm of business decision-making is to give some degree of consideration to those constituencies which have a “stake” in the business, the disenginuity of giving consider to one’s competitors is even more obvious. However, what proponents of “competitor as stakeholder” are really articulating is the obligation that business decisionmaking owes to the competitive environment. In other words, participants in business decision-making must be cognizant and nurturing of the dynamic that makes the entire activity possible: the relatively free and competitive market. The “market” is the dynamic or glue that holds the process together. As such, it forms the fifth and final constituency or stakeholder that needs to be considered in the matrix. THE PERSPECTIVES The classic constraints on business decision-making have traditionally manifested themselves in two forms: investor expectation and statutory limitations. A third one is the ethical component which is espoused by this paper and supported by stakeholder theory. Financial The traditional view here is simply return on investment or bottom-line ramification. It is Friedmanesque in nature and simply espouses the capitalistic view that business decisionmaking must “take care of the bottom line.” Clearly, the contrasts to such a view can be found in neo-Marxist economic theories and some theories of the not-for-profit firm. None the less, the U.S. society is premised upon a for-profit and capitalistic model and as such, profit or the “financial” constraint is a viable perspective. 52 See, for example, Goodpaster and Matthews, Can a Corporation Have a Conscience?, Harvard Business Review 132-141 (Jan-Feb 1982) 53 See, for example, Kaler, J. Morality and Strategy in Stakeholder Identification, Journal of Business Ethics 39:91-99 (2002). Legal As with the financial constraint, the legal constraint is one that both stakeholder and shareholder proponents may agree. The legal perspective is reflected by governmental statutory regulation at both the federal and state level. This perspective is characterized as a compliance matter. In other words, this perspective is manifested in Friedman’s admonition to “maximize owners’ wealth and obey the law.”54 Other than for anarchists, this constraint, just as the financial constraint dictates, is also a constant variable that must be considered in business decision-making. Ethical The ethical perspective provides the point of departure for the stakeholder proponents and the shareholder proponents. Friedman’s dual variable model is reflected by consideration of the financial and legal perspectives. The sum of those two results in the Friedman “ethic.” This paper has argued an ethical position that espouses not only the consideration of stakeholder interests but a consideration of an ethical perspective in addition to the financial and legal perspectives. This paper has argued the validity of such a perspective. However, it has not proposed from what sources such a perspective may originate. Express manifestation of business or corporate positions serve as a starting point: mission statements, value statements, corporate credos, personnel handbooks, even advertising campaigns serve as express statements of values which can serve as the touchstone for business decision-making ethical perspective.55 Board of director directives can also fall into this category. Balancing Stakeholder Interests To operationalize the Donaldson and Dunfee model as illustrated above,56 the practical model or flowchart would be as follows: 1) framing or identifying the question, problem or issue posed that requires a decision or course of action; 2) brainstorming for all possible solutions to the issue posed; 3) identifying the affected stakeholder(s) in light of the proposed solutions; 4) evaluating each effect on each stakeholder from first the financial, then legal, then ethical perspectives; 54 Friedman, op. cit. See, for example, Pearce, J.A. and David, F., “Corporate Mission Statements: the Bottom Line,” Academy of Management Executive, Vol. 1, #2, pp. 109-16 (1987); Krohe, James, “Do We Really Need a Mission Statement?” Across the Board, July-August 1995, pp.16-22; David, F., “How do Companies Define Their Mission,” Long Range Planning, Vol. 2 #1, pp. 90-97 (1989); 55 Bart, C.K., “The Impact of Mission on Firm Innovativeness,” International Journal of Technology Management, Vol. 11, pp. 479-93 (1996) 56 See footnote 50 above. 55 5) identifying complimentary and competing interests and beginning the balancing process. There is nothing inherent in this model that compels the decision-maker from weighting anyone stakeholder more than another. The model does not compel the decision-maker to place owners’ at a disadvantage vis a vis other stakeholders. What the model minimally does is forces the decision-maker to consider all constituent interests in the decisionmaking dynamic. However, the crux of the matter rests in the evaluation process. What weight is given each of the stakeholder considerations? How are the effects of proposed solutions to posed issues considered in relation with each other? A number of models have been proposed. The “win-win” matrix of four cells representing two “competing” stakeholder interests as win-win, win-lose, lose-win, loselose. The goal of the business decision-maker is to find the solution that is encapsulated in the win-win cell.57 Other models include prioritization of competing stakeholder interests58 and majoritarian determination among the identified stakeholders.59 V. Corporate Governance Issues Perhaps the most efficient manner to accomplish this prioritization or balancing the stakeholder interests lies not in the weighing of those interests per se but in the process for the weighing of those interests, i.e. ensuring that those competing interests are represented in the decision-making process. One option would be to include representatives from the various stakeholders into the management structure and/or even the board of directors of the firm. Such a change in corporate governance could be voluntary, through a change in the current corporate culture or through governmental mandate via regulations. As is often the case when the market fails to respond to societal concerns, “government might be called in to fill the gap between society and business, which could result in additional governmental regulations.” 60 Much like the evolving literature on corporate governance in areas of shareholder rights vis a vis stakeholder rights61 or much like negotiated contractual rights between labor and 57 See Windsor, Duane, Can Stakeholder Interests Be Balanced? Unpublished paper delivered at the International Association for Business and Society annual conference (Paris: June 1999) citing to Drucker, P.F. Management Challenges for the 21st Century (New York: HarperBusiness 1999) 58 Ibid. p.5. 59 Ibid. 60 Abbass F. Alkhafaji, A STAKEHOLDER APPROACH TO CORPORATE GOVERNANCE: MANAGING IN A DYNAMIC ENVIRONMENT (1989) at 108. 61 See, for example: Craig Ehrlich, Dae-Seob Kang ,U.S. Style Corporate Governance in Koreas’s Largest Companies, 18 UCLA PAC. BASIN L.J. 1 (2000);OECD Principles of Corporate Governance, http://www.oecd.org/daf/governance/principles.htm (May 1999);Galai, Dan, Wiener, Zvi, Stakeholders and the composition of the voting rights of the board of directors J OURNAL OF C ORPORATE F INANCE pp. 107117, April 2008. management,62 corporate board composition may be legally mandated to include stakeholder representation. However, as one commentator notes that if such governmental regulation occurs occurs, “the organization will have to oblige and conform to the rules…[h]owever, by recognizing the various stakeholders present, the organization can eliminate the excess cost of regulations and benefit from a higher rating by society, perhaps in the form of profits.”63 Freeman argues, though, that the legislatively-imposed board composition requirements could be detrimental to the board functioning and advocates for voluntary recognition of stakeholder interests. He argues for a board-level management process in which “directors and managers can achieve the goals of the reformers voluntarily while keeping a substantial amount of control over their own future.” 64 He adds that, “to conceive of board structure in other than these process terms, is to run the risk of legislating ‘mechanical structures’ which will do far more harm than good in terms of ensuring the responsiveness of the corporation to its stakeholders.” 65 To this end, we return then to the pedagogical emphasis of this paper: the teaching of stakeholder theory to future managers and, thus, decision-makers, with a goal to changing the corporate decision-making culture.66 VI. Pedagogical Model for Business Education Nearly every school of business has what is called a “professional core.” The primary collegiate accrediting body, the Association of Collegiate School of Business International (AACSB), requires that specific learning objectives be met.67 The traditional manner in which such learning objectives are met is with discrete courses. Endemic to nearly all business professional cores are courses such as: Principles of—finance, management, marketing, supply chain plus the foundational courses of micro and macro economics, business law, and the “tools” courses in accounting, statistics, and management information systems.68 5 USCS § 7101 Abbass F. Alkhafaji, OP CIT.. 64 R. Edward Freeman, STRATEGIC MANAGEMENT (1984) p. 112 65 Id. 66 The debate here, which is clearly being begged, is that the common law development in agency theory of the “fiduciary” obligation of agent to principal interferes, to a great degree, with the altering of the shareholder exclusivity rule. Under the common law (and reinforced in countless legal precedent) is the requirement that the agent owes his/her principal exclusive duty (read: corporate board of directors as the agent of the shareholders). However, the question being begged here is whether that exclusivity can accommodate primacy. So long as the agent (i.e., business decision-maker) only incorporates other stakeholders into the decision-making matrix and does not exclude the shareholder, will this fiduciary duty be satisfied. Another way to look at this would be that shareholders retain primacy in the pantheon of stakeholder but do not retain exclusivity. 67 pg 3-8, http://www.aacsb.edu/accreditation/BUSINESS-STANDARDS-2009-Final.pdf 68 Ibid, footnote on pg 8 which reads: For the purpose of determining inclusion in AACSB accreditation, the following will be considered “traditional business subjects”: Accounting, Business Law, Decision Sciences, Finance (including Insurance, Real Estate, and Banking), Human Resources, Management, Management Information Systems, Management Science, Marketing, Operations Management, 62 63 It is interesting to note that stand-alone ethics courses and even courses that would focus on decision-making are absent. Though, many business professional cores include a capstone strategy course to “tie-up” the curriculum.69 Introducing such concepts at that stage of collegiate education is much like the adage of closing the barn door once the horse has escaped! This paper advocates the creation and implementation of a first-year course taken prior to any business course in the curriculum. Such a course would not have the complexity of a traditional capstone course, taken by students after three or four years of collegiate business education. Instead it would focus on the prefatory material in understanding how business decisions are made, or, more pointedly, how they should be made. The course would have three foci: 1) Identifying and characterizing the various business stakeholders, generally identified as : owners or investors, customers, employees, the supply-chain (and creditors), society, the market; 2) Exploring how these stakeholders interrelate with each other; 3) Exploring how these stakeholders’ various interests impact decision-making.70 The primary teaching tool would be a combination of real and hypothetical cases to provide a context for each of these foci. An example of such a case is below. Identify the key stakeholders below and briefly describe each stakeholder’s interest. The Province of St. Joseph Capuchin, a small Catholic religious order based in Milwaukee, placed a resolution on the 2000 shareholder ballot of Merk (a huge pharmaceutical company), calling on the company to price their drugs “at reasonable levels” to ease the burden on the elderly and the uninsured. The company opposed the proposal, citing the high cost and risk of research and development for new medicines. Organizational Behavior, Organizational Development, Strategic Management, Supply Chain Management (including Transportation and Logistics), and Technology Management. This list is not intended to be exhaustive. Normally, extensions of the “traditional business subjects”, including interdisciplinary, integrated courses, majors, programs, concentrations, or areas of emphasis, will be included in the scope of AACSB accreditation reviews consistent with Eligibility Criterion D….. 69 Walker, Kenton B., and Black, Ervin L. Reengineering the undergraduate business core curriculum: aligning business schools with business for improved performance 6 B USINESS PROCESS M ANAGEMENT J OURNAL 3, pp. 194-213 (2000)… “Finally, the process management approach provides the opportunity for business managers, faculty, and students to understand the variables that impact on organizational and individual performance. A lack of perspective on what factors impact performance is a significant gap in business education and on the management of business schools. Most business education programs include a capstone policy course intended to provide an integrative view of the functions within a business. However, this is frequently a case of too little, too late. For business faculty, a reward system based on student evaluations of teaching and publication output ignores the basic responsibilities of business schools to their student and employer customers. The process perspective needs to be introduced early in the business curriculum and within the business faculty to ensure that process is indeed paramount to function in business education as it is in business.” (emphasis added) 70 See Section IV of this paper above. Despite support from 15 other institutional investors, the Catholic brothers’ proposal received less than 10 per cent of the vote. But the company agreed to advocate prescription drug coverage for recipients of Medicare, Medicaid, and other public health insurance programs. An example of a syllabus for such a first year course is attached as appendix A. APPENDIX A – Sample Generic Syllabus Ethics in Business Decision Making Students are encouraged to stop in during office hours to talk about any problems or suggestions you may have concerning the course. If you find the office hours inconvenient, feel free to schedule an appointment at a more convenient time or contact the professor by e-mail. Individuals who have any disability, either permanent or temporary, that might affect ability to perform in this class, are encouraged to inform the professor at the start of the semester. Adaptation of methods, materials or evaluation may be made as required to provide for equitable participation and grading. Equitable participation in this class also requires the use of inclusive language, methods and materials. Students are expected to use inclusive language in written and oral work, and to respect diversity in viewpoints expressed by others. Students are also encouraged to identify and bring to the instructors’ attention any ways in which the classroom climate is not inclusive. Books: Linda Trevino and Katherine Nelson. Managing Business Ethics, 3rd edition, Wiley, 2004. James E. Post, Anne T. Lawrence, and James Weber. Business and Society: Corporate Strategy, Public Policy, Ethics, 11th edition. McGraw-Hill/Irwin, 2003. Course Description: This course introduces students to the integral role that ethical considerations play in business decision making. Historical as well as current events mandate the importance of ethical decision making in the marketplace. This course is one of two sections being offered in the School of Business Honors Program and also will satisfy a requirement for the University Honors Program. In that this is a first-year course, students are not presumed to be particularly familiar with any of the functional areas or academic disciplines within business. Course Objectives: The primary goal of the course is to develop students’ abilities to recognize that ethics is an integral part of business decision making and to develop a framework for incorporating ethical considerations. In order to accomplish this objective, the course is structured to include three substantive components: * exploring the integration of business and ethical theories, including learning to recognize major groups of stakeholders having an interest in the problems at hand (including employees, shareholders, society, among others); * developing a model for business decision making that incorporates ethical considerations; * applying the model to a wide variety of business cases. Another equally important objective of this course is to allow students an opportunity to improve analytical reasoning skills. We will cover all aspects of critical thinking, from first gathering enough relevant and reliable information, to careful analysis of the information, to developing an informed position on the subject. Careful analysis requires one to pay special attention to information and perspectives that contradict their preconceived ideas on a subject. We should not assume a conclusion to be a "good" one just because it conforms to our personal prior views. This class will give students ample opportunity to practice general analytical skills as well as to increase their comfort level in dealing with complex issues and problems. Students will be called upon to communicate their own carefully considered ideas on topics related to ethics and business decision making. Thinking carefully about constructive criticism offered by classmates (as well as by the instructor) is often a good way to hone our reasoning skills in general along with our ideas on particular subjects. Students will be expected to be thinking about the assigned material throughout the semester. Course Requirements: This class is a seminar and, as such, will rely heavily on student participation. Along with a portfolio of regular written preparation assignments, participation will factor heavily into the final grade for the course. There will be two exams, a midterm and a final, and students will complete an individual project Attendance is necessary but is not a sufficient condition for meeting the participation requirement. (In other words, just being there will not be enough.) Before most classes, students will be given an assignment for the next class. Students are expected to come to class having completed the assigned reading as well as the class preparation assignment each day. Students should write out answers to class prep assignments; high quality answers will demonstrate substantial thought (i.e. preparation) and will best position the student to participate appropriately in class. The written answers may or may not be collected in class. Students should always be prepared for assignments to be collected. Frequently, the instructor will call on students to begin and/or contribute to class discussion. Quality of contribution is more important than quantity. Most beneficial contributions will offer insight into assigned readings and/or preparation assignments, or connections between the two. When called upon to participate, students will be allowed to pass occasionally if unprepared; students should realize that passing too often is likely to reflect negatively on class preparedness as well as participation. Students who are well prepared and make a valuable contribution to class will get an “A” for this component of the class. The ultimate determination of a grade for this component of the class will involve multiple factors. Throughout the semester, students’ preparation and participation will be evaluated. Students are always welcome to discuss this aspect of the class with the instructors via an individual appointment. In the end, evidence of written work done in preparation for class will comprise an individual portfolio of writing. This, as well as quality of contributions to class, will factor into the grade. Both the midterm and the final exams will involve significant writing. Both will be inclass. Several preliminary deadlines relating to the project are listed on the course outline and schedule. Students will each identify an issue for study, in consultation with the professor and will be expected to meet several times with the professor outside of class as the projects are proceeding. Grades will be earned in this course as follows: Preparation portfolio and class participation Midterm exam Final exam Research Project 25% 25% 25% 25% If you have any questions or concerns, or if you are not sure or clear about the course requirements, please see the professor immediately for clarification. Naturally, individual problems and circumstances can arise which might interfere with your academic responsibilities. You are encouraged to become familiar with Part V of the Student Handbook. Please note that we take issues of academic misconduct very seriously and will pursue severe penalties against those guilty of such acts. If you are not sure what the University and the professors consider to be academic misconduct, please ask so you don’t find out the hard way. All sources (including internet sources) used in the preparation of any written work for this course must be fully cited. This is true whether direct passages are used or if you are just paraphrasing. Claiming credit for words or thoughts that are not your own is one type of academic dishonesty. Tentative Class Schedule B&S=Business and Society textbook MBE=Managing Business Ethics **Possible joint classes or part-of-time joint classes Date Topic **August 24 Introduction to course “Getting the whole picture” **26 Homework assignment(s) Film on PharMor Readings B&S chapter 1; 31 Intro to Stakeholder theory Journal articles by Post et al MBE 5-45 September 2 Owners Corporate Model: B&S chapter 15 who are the owners? September 7 is exchange day September 9 Owners B&S 286-288, “Napster” 14 Market B&S 206-207, Oracle” B&S chapter 10 16 21 Consumers B7S 328-329, “Big Fat Liability”” B&S chapter 16 23 28 Employees B&S 60-61, “Malden B&S chapters 18 and 19 Mills” 30 October 5 Society B&S 246-247, “ Intel” B&S chapters 12 and 17 7 Perspectives: Legal, Financial, Ethical **12 Legal Hoebel et al. pieces **14 Financial Milton Friedman piece **19 Ethical B&S chapters 3 and 4 21 –THURSDAY MIDTERM 26 Review Midterm **28 Decision-Making Model **Nov 2 Research topic Review: Post et al pieces identified; outline format, annotated bib format, and paper format reviewed Application of model How the model B&S 408, “Enron” works: --Frame the issues --Id the stakeholders --Examine the perspectives --formulate conclusions 4 Meet with Professor Outline due to turn in and review outline 9 Application of model 11 16 Application of model Annotated bibliography due Application of model 18 Application of model Pinto Case 23 25th –no class THANKSGIVING **30 Intro to Peachtree case Dec 2 Research paper due **7 Role-play Peachtree Analyze Peachtree using model B&S 421, “Odwalla, Inc., and the E.Coli Outbreak” B&S 454, “Microsoft” B&S 464, “GlaxoSmithKline and AIDS Drugs for Africa” MBE pages and roles to be assigned 9 Class Wind-up FINAL EXAM WILL BE IN-CLASS DURING FINALS WEEK Bibliography 5 USCS § 7101 Abbass F. 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