Volume 19

Feminism(s), Progressive Corporate Law, and the Corporate Oppression Remedy: Seeking Fairness and Justice

by Shannon Kathleen O’Byrne and Cindy A. Schipani

This article concerns the shareholder oppression action—which is well-known for advancing minority shareholder protection in a context that is expressly animated by the values of fairness and justice. The article concludes that the oppression action’s success in combatting the pro-majoritarian bias of the common law is at least partially due to courts’ understanding the action in a manner that is fortuitously consistent with a matrix of insights offered by feminist and progressive legal scholars, such as Kellye Testy. The oppression action regards as legally significant the consequences and implications of human relationships; it rejects abstractions, choosing context instead; it is concerned about the reach of limited liability; and it demands accountability from those who trade in unfairness. In short, certain values and perspectives associated with feminism(s) find expression in the oppression action—as it turns out—and thereby help to propel its ameliorating influence. The overarching purpose of this article is to build on the work of scholars who have identified what is wrong with corporate law by taking the opposite tack. Focusing on the closely held corporation where the remedy tends to have its greatest traction, this article identifies the oppression action as an important example of what is right about corporate law and, based on the work of authors such as Testy, offers an explanation for that success. The upshot of this analysis also works to indirectly offer insight as to best practices for the governance of closely held corporations.

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