This article is written by Thejashwini S in 3rd Year of B.A., LL.B., of The Central Law College, Salem during her internship with LeDroit India
ABSTARCT
This article explores the application of feminist jurisprudence to corporate law, examining how traditional judicial reasoning in corporate governance has often overlooked or marginalized gender perspectives. Through a critical analysis of landmark corporate law cases and feminist legal theory, this research demonstrates how re-imagining key judgments through a gender lens reveals structural biases and presents alternative frameworks for corporate governance that prioritize stakeholder interests, care ethics, and substantive equality. The article identifies significant research gaps in the intersection of feminist theory and corporate law while proposing pathways for developing more inclusive corporate legal frameworks.
Keywords: Feminist jurisprudence, corporate governance, stakeholder biases, substantive equality.
INTRODUCTION:
Traditionally, corporate law has been conceived as a gender-neutral domain preoccupied mainly with economic efficiency, shareholder value maximization, and contractual freedom. In the recent past, however, feminist legal scholars have increasingly challenged this assumption, contending that corporate law reflects and reinforces systematically disadvantageous gendered power structures that perpetuate masculine norms of rationality, competition, and profit maximization. The feminist judgments project-which first emerged in the common law world-seeks to show how judicial reasoning might differ if informed by feminist perspectives, with a view to exposing hidden assumptions and biases within ostensibly neutral legal doctrines.
This article considers how feminist jurisprudence can reimagine key corporate law judgments to bring to light the gender implications of corporate governance structures, fiduciary duties, shareholder primacy doctrine, and corporate personality theory. By applying feminist analytical frameworks to seminal corporate law cases, this research illustrates that corporate law is not just a technical field of commercial regulation but indeed a site where gender relations are constructed, contested, and legitimized.
The importance of this inquiry goes beyond merely theoretical concerns. Insofar as corporations increasingly dominate economic and social life, the gender blindness of corporate law has tangible real-world consequences for women’s economic participation, workplace equality, and access to corporate power. Through a feminist reimagining of corporate law, therefore, we can identify new avenues of legal reform that would promote greater gender justice within corporate structures.
LITERATURE REVIEW:
Feminist Legal Theory: Foundational Concepts
Feminist Legal Theory encompasses several schools of thought, each of which is united in calling attention to the ways in which law both creates and maintains gender as a source of inequality, while challenging those circumstances.
Liberal Feminism, represented by figures such as Katharine Bartlett and Martha Nussbaum, focuses primarily on equality in law and knocking down barriers to equality in participation in the legal and economic arenas as well. Cultural Feminism, as expressed in the thought of Carol Gilligan and Robin West, emphasizes the unique moral voice of woman and a method of knowledge based in relationship and care, and contends that this should also be considered a source of values in law, in addition to those of liberty and equality.
Dominance Feminism, as expressed in the thought of Catharine MacKinnon, sees law as a reflection of male domination in which men’s experiences are simply reiterated as universal through law, analyzing in detail how formalistic concepts of law are themselves vehicles of oppression of women through comparison of men’s experiences as a standard against which others are judged as inferior. By contrast, “Intersectionality,” as articulated by Kimberlé Crenshaw, asserts that gender, far from being unitary or separable from race, class, and sexuality as axes of oppression, interacts in complex and unique ways not accountable through a one-axis analysis of each of these factors.
Feminist Perspectives on Corporate Law
Feminist ideology on corporate law has proceeded along several tracks. At the start, there was analysis of gender discrimination in the employment setting—issues of how women are treated in a corporate environment, impediments to promotion, and demands for equality in the workplace. In more recent years, the focus has broadened to consider how the underlying principles of corporate law itself embody masculinity and recreate this in hidden ways through law itself.
Lisa Fairfax demonstrates that unless diversification in the boardroom is coupled with a transformation in decision-making processes, it can readily remain a cosmetic issue. She asserts that the obsession with maximizing shareholder wealth causes a disregard for secondary stakeholders’ interests, particularly affecting women and minorities. Joan MacLeod Heminway attacks the study of corporate law for one-sidedly emphasizing the dominant masculine paradigm of competition and opposition and individualism over cooperation and responsibility.
Ann Lipton questions the dogma of shareholder primacy on the notion that it should be necessary on economic grounds, opting to present it as more of a legislative intention. She espouses alternative models of business practices that place the well-being of stakeholders at the heart of financially sustainable models for more equitable outcomes. Faith Stevelman Khan points to the lack inherent in equality on the economic agenda of the field.
Finally, the book can be enriched by the combination of behavioral economics and feminist theories, as presented in the study of Claire Hill and Brett McDonnell, who challenge the assumption of rational market actors.
REARCH GAP:
Limited Feminist Analysis of Core Corporate Law Doctrines
Though feminist scholars show considerable attention to employment discrimination and board diversity, core principles of corporate law-fiduciary duties, shareholder voting, corporate finance, and merger regulation-have been inadequately reviewed through a feminist perspective. A rigorous feminist critique of corporate law treatises and casebooks could expose how gender assumptions quietly underpin such doctrines.
Intersectional Analysis of Corporate Governance
Many feminist engagements on corporate law also appear to be focused on gender in a manner that overlooks how issues of intersection, including those related to issues of race, class, sexuality, and disability, among other factors, intersect to produce distinct experiences of power and exclusion, which remain confined to the world of corporate entities. There appear to be many issues that would arise if we were to consider how corporate law affects women in different positions in society.
Empirical Research on Gender and Corporate Outcomes
In turn, feminist corporate law scholarship has remained largely theoretical, with relatively few empirical studies examining the ways in which gender diversity in corporate leadership influences governance, stakeholder relations, and corporate social responsibility. Quantitative and narrative work could further investigate feminist assertions of the impact of gender on corporate conduct and whether or not gender-inclusive governance yields different outcomes.
Artificial Intelligence, Algorithmic Governance, and Gender Bias
The increasing deployment of artificial intelligence in corporate decision-making from hiring algorithms to automated performance evaluations and credit decisions raises critical feminist concerns that remain underexplored in corporate law scholarship. Research must examine how AI systems embedded in corporate governance structures perpetuate or amplify gender bias, how corporate law allocates responsibility for algorithmic discrimination, and whether existing corporate accountability mechanisms adequately addresses automated decision-making harms. Additionally, scholarship should investigate the gender dimensions of AI corporate governance itself, including whether automated board analytics and algorithmic shareholder activism tools reflect masculine rationality assumptions, and how corporate law might mandate algorithmic transparency and bias auditing to protect stakeholders from discriminatory corporate AI systems.
RESEARCH METHADOLOGY:
This article employs a combination of incisive doctrinal critique with insights from feminist theory to frame how major corporate law rulings might be reconsidered through a clear gender-aware perspective. The approach unfolds as follows:
Case selection: Choosing landmark corporate law decisions that establish or apply core doctrines with gender-related implications.
Doctrinal analysis: This involves a critical look at legal reasoning, assumptions, and structures that came out with the original judgments. Feminist critique-to shed light on feminist analytical methods and thus brings about gendered presumptions and structural biases.
Alternative reasoning: Articulating feminist re-imaginings while adhering to doctrinal coherence in a weaving manner to include gendered perspectives.
Comparative analysis: a judgment about how these feminist rewrites can change legal outcomes and practices in corporate governance. The method follows the feminist judgments project, but adopts this to suit the corporate law arena. It also draws on a spectrum of feminist theories, acknowledging that no one approach is able to fully capture all gender dynamics in corporate law.
KEY CORPORATE JUDGEMENTS:
Salomon v. Salomon & Co. Ltd [1897] AC 22
Salomon established a central tenet with regard to incorporation; a properly constituted company shall always be a separate legal person, separate from its shareholders no matter how few and interrelated. In Salomon’s case, he operated a boot and shoe company with his wife, daughter, and four sons. As the company went bankrupt, the creditors claimed Salomon was personally liable because the company was merely a façade, an alter ego.
However, the House of Lords denied such a notion; thereby establishing companies remain separate legal entities no matter how their stocks are held. The implication of the ruling was the emphasis on the equality of the law, with the court declaring that the law does not distinguish between those who are wealthy and those who are poor, or those who are intelligent and those who are not, and that it treats every properly incorporated company the same.
Feminist Critique:
By feminist analysis, the Salomon case reveals a sequence of wobbly assumptions deeply embedded in the situation. Essentially, the ruling applies the incorporation principle as if it were a functionally neutral switchboard, somehow gender-uniformly impervious, despite the fact that the basic corporation structure has long been a reflection of these same gender-power relationships. The actual case reveals Mrs. Salomon and the Salomon daughter as mere token owners, with utterly trivial, if any, voice in how the business is administered—not, of course, surprisingly, given the Victorian attitude toward what women were supposed to be able to accomplish in the economic world.
The decision relies heavily on formal equality, but this is to say that the actual inequalities in accessing the mechanics of incorporation and the benefit of limited liability are obscured. On the one hand, every corporation could be subject to the same formal equality under the law; however, for women, this advantage has been denied through social and economic means. The importance of freedom in the realm of contract assumes the equality of the balance of power in every contract being struck.
Furthermore, the shield of limited liability offered by Salomon’s case draws corporate actors away from accountability for damage caused to workers, creditors, and communities, which comprised, for the most part, more women and other marginalized sections. It appears that the interests of business entrepreneurs have been given priority over the very people whom corporate activity negatively impacts, as it reflects a bias towards the male notion of liberty.
Feminist Reimagining:
A feminist approach to Salomon might retain the doctrine of separate corporate personality, but it might define its limitations and responsibilities better. It might proceed on the basis that the right of limited liability is never a right accorded to anyone in nature, but always a concession accorded by the state, which involves its own responsibilities. The decision might hold that corporate personality cannot be a device to avoid responsibility towards the workforce or the creditors.
This feminist critique would scrutinize how indeed Mrs. Salomon and her daughter were involved in governance, analyzing indeed whether incorporation also constitutes a new, separate juridical personality, considering that some so-called shareholders indeed only participate on paper. It would reveal how often women remain on the margin economically through these juridical structures that give the impression of involvement but not power.
At the same time, the feminist methodology could outline the dogmatic plausibility of the direct liability of the corporation after limited liability has been used in order to shift damage to the vulnerable, particularly in close corporations. It would aim for an interim between liberty of entrepreneurship and the corresponding duties with regard to the humanely impacted individuals, reflecting the care ethic orientation towards relationships.
Dodge v. Ford Motor Company, 170 N.W. 668 (Mich. 1919)
This historical decision is often referred to as a moment that shaped and defined the concept of shareholder primacy in U.S. corporate law. Henry Ford, as majority stockholder and president of Ford Motor Company, declared a policy decision that would reduce dividend payments in order to finance and energize increasing productive capacity and reduce automobile prices. He clearly stated his purpose and intent: to employ more people and bring the benefits of the industrial system to as many people as possible and help them improve their lives.
In the Michigan Supreme Court case, the court disagreed with the aim of the Ford Corporation to benefit employees and consumers at the expense of maximizing financial gains for its shareholders. According to the Michigan Supreme Court, the aim of a business corporation was to make profits for its shareholders. Directors of the corporation cannot limit or withhold these profits for the benefit of others. It is sufficient to make charitable donations to carry out the prime aim of making profits for the shareholders.
Feminist Critique:
In feminist jurisprudential terms, it represents a critical juncture at which the law preemptively subordinates stakeholder interest in favor of maximizing corporate profits, reflecting an aggressively masculine approach to individual gain and profit maximization while simultaneously dismissing values underpinned by care, such as the welfare of employees.
It enfranchises shareholder interests as one and above all others, passing off the way in which such a model inherently discriminates against groups which are comprised almost exclusively of women. As for the ideas on higher salaries and lower prices that Ford had to benefit the working classes and women consumers, these were deemed improper deviations from the raison d’être of the corporation. This case is an example of how so-called neutral corporate law is actually imbued with value judgments that privilege capital above labor and profitable gain above social welfare. Prioritize maximizing shareholder returns as a legal obligation instead of merely one of several conceivable objectives of a corporate enterprise.
Furthermore, the manner in which this decision has been framed, insofar as concern for workers and communities has been termed “quasi-philanthropy” as opposed to being considered shrewd business sense, this itself marginalizes care ethics principles. This implies that taking into account any stakeholder interest other than the stockholders’ constitutes mere sentimentalism on the part of business organizations.
Feminist Reimagining:
A feminist interpretation of the Dodge vs. Ford case would resist the doctrine that the existence of the firm is only for the maximization of what accrues to stockholders. From the school of stakeholder theory and care ethic, it would recognize the existence of obligations to diverse groups in an institution and the capacity, if only occasional, to regard the well-being and interests of employees, customers, and the community in making institutional decisions. A feminist analysis may well pick up on the sustainability theme with regard to the proposed wage increase, job creation, and price cut to better support the interests of shareholders in a more-rounded sense as it looks to make the firm more sustainable.
It may well disagree with the fallacious distinction between maximizing shareholder value and maximizing stakeholder value. Deeper still, it would call into question the basis for the prioritization of shareholder interests in relation to the interests of the workers, who supply the human capital and bear the risk of the corporation. The case may prescribe the scope of the fiduciary duty that would include obligations to stakeholders who are vital for the survival of the corporation, including the workers whose labor generates value.
It would also apply a gender perspective to corporate objectives, pointing out that Ford’s strategy might benefit working families who face low wages and high costs, which are concerns closely related to women’s roles in managing households and working towards economic security. By so doing, this discussion would make visible how corporate legal rules allocate societal burdens and gains along this process.
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)
This new US Supreme Court decision examines very large questions of what it means to be a human and what rights corporations might have in this regard. In this new decision, it has been determined that closely held corporations have rights of religion and a right to exempt themselves from the Affordable Care Act’s contraceptive mandate based on RFRA. In this decision, it has been determined that corporations have rights to freedom of religion based on the fact that these corporations are owned and founded by religious human beings who do not lose these rights simply based on founding corporations.
Justice Alito’s majority opinion underlines that the protection of RFRA for the exercise of religion should extend to closely held corporations. This was because the protection for the free exercise of religion for corporations such as Hobby Lobby, Conestoga, also protects the free exercise of religion for the individuals behind these corporations. The Court rejected the suggestion that for-profit corporations lack the ability to exercise their religion, similar to its position on the free speech rights of corporations.
Feminist Critique:
In Hobby Lobby case, the issue of gender is clearly focused on because the case involves women’s reproductive healthcare. It can easily be interpreted through the feminist perspective, based on the argument that religious liberty should not apply to corporations because it allows men’s religious beliefs to coerce women on how they should take care of their sexual health.
The Court follows, as Catharine MacKinnon describes the tradition of the “problem of the point of view”: the Court adopts the perspective of the men who own the corporation, relegating the interests of women to second-class status. The Court speaks of the contraceptive mandate as imposing a “substantial burden” on the practice of the owners’ religion, downplaying the challenged practice’s impact upon the females who are denied care. Thus, a hierarchical order emerges: the owners’ beliefs take precedence over the needs of their employees.
Feminist Reimagining
Feminist perspectives would draw the distinction between the corporation and the individuals involved in the corporation concerning religion. It would point out that the corporation is a distinct entity that does not in any way exercise religious beliefs. It would then explain that owners of the corporation cannot religiously dictate how workers conduct themselves.
“A feminist analysis might focus on the impact of not covering contraception on women and would recognize that access to reproductive health services is a crucial component in ensuring equality and equal opportunities in society.” Such an analysis would call for an examination of religious exemptions that disproportionately affect women and would find that exemptions should be justified by compelling reasons and should not impose costs on other people. Based on ant-subordination values, this argument would recognize that the effect of denying benefits is to put women in a position of disadvantage by making their health care seem optional or discretionary in nature. It would also state that corporate law should not facilitate gender discrimination based on religious beliefs.
It would also lay down some guidelines regarding limits on claims about corporate rights, which often prove harmful to some communities in the long run. It is a fact that companies have some set rights that they require to carry on their operations, but these rights should not be used to impose personal opinions on employees, nor should they withhold benefits that support equality. The corporate form of ownership is adopted selectively, wherein the corporation enjoys the benefits of religious liberty without assumed obligations to the health of the workers.
The judgment widens the concept of corporate personality in terms of claiming rights, but shirks the responsibility of healthcare obligations. It negatively affects female workers in terms of lost benefits, while corporate owners retain the advantage of limited liability. Moreover, the Court appears to ascribe to companies as if they can “practice” a religion in a coherent manner, without regard to the fact that “deeply held beliefs” necessarily entails a quality that is non-transferable to artificial legal entities.
This decision amalgamates the companies’ conception of faith with the corporate entity itself that undermines the idea of separate corporate existence when it is convenient for the corporate entities’ owners but retains the separate existence when it is helpful for liability avoidance purposes.
eBay Domestic Holdings, Inc. v. Newmark, 16 A.3d 1 (Del. Ch. 2010)
Original Decision and Reasoning
This Delaware Chancery Court decision considered whether Craigslist’s directors could block eBay’s efforts to increase the profitability of the company, and instead retain Craigslist’s community-oriented, not-for-profit direction. Chancellor Chandler concluded that directors may consider goals of corporate social responsibility, but may not deploy defensive measures to entrench their own vision at the expense of shareholders.
The opinion was unequivocal: directors cannot justify the preservation of “culture” or the perpetuation of a charitable purpose as a basis to defeat the aspirations of shareholders. The court did acknowledge that Delaware law permits directors to pursue community interests and to forego profit maximization, but with the blessing of the shareholders. This decision emphasized that shareholder value maximization should remain the core goal unless the shareholders provide explicit approval for other purposes.
Feminist Critique
eBay vs. Newmark highlights the struggle that exists between for-profit gain and the satisfaction of communality, and it has a definite gender aspect to it. “The business model that Craigslist adopted was one of community service. This has proved to be a lifeline for many, particularly women, as it enabled them to advertise their products free of charge.”
The hegemonic approach poses financial objectives as the corporate mandate by moving the primary objective for the corporation to the forefront while secondary objectives such as the health and welfare of society are moved to the sidelines. Indeed, the approach of Chancellor Chandler seems to move the view that the health and welfare objectives for Craigslist are legitimized only when they receive the imprimatur of approval from corporate shareholders to the same effect that bottom-line financial success is the indicator for business success anyway.
Furthermore, the injunction illustrates how the dominance of shareholder rights can enable stakeholders like eBay to capitalize on socially beneficial businesses. Social enterprises and benefit corporations in particular will feel the brunt of this trend, since these organizational models that combine profits with purpose often come from the vision of women entrepreneurs.
Feminist Reimagining:
A feminist analysis of the eBay vs. Newmark case could begin with the observation that there is not one but multiple ways in which the purpose of a company can be defined, and the pursuit of profit, while important, is hardly the only obligation the company must meet. The court’s decision would establish that directors controlling an enterprise founded with a sense of larger purpose can resist shareholders who seek to maximize profits, where the initial purpose was clear to the shareholders who supplied the capital.
In the feminist analysis, the relational contract doctrine assisted in explaining how eBay had knowledge of the fact that Craigslist was founded for community purposes and could not simply eliminate it because of increased ownership of its shares. Its effects would protect stakeholders who were concerned with keeping the objectives of the business in line with the needs of the community, rather than financial goals. Based on care ethics, the act would embody Craigslist’s model for providing accessible community resources as a morally valid business goal that deserves legal recognition to be protected as such.
This would establish criteria for the evaluation of corporate social responsibility that acknowledges the intrinsic value in such efforts—beyond the use for financial gains for corporate stakeholders. The feminist approach may also argue that there should be a strengthening of protections available to benefit corporations and social enterprises. The idea is that corporate law should be pluralistic and include a variety of different forms that aim to further different objectives.
THEMATIC ANALYSIS: GENDER IMPLICATIONS ACROSS CASES
Examining these reimagined judgments reveals several consistent themes in how feminist perspectives transform corporate law reasoning:
From Formal to Substantive Equality
Conventional corporate law maintains equal treatment in form: the same treatment is accorded to everyone in the corporate context: the corporation, the shareholders, and the stakeholders irrespective of the circumstances. Feminist thoughts provoke the need for substantive equality, because the same treatment accorded to those in different seats can maintain inequality in its existence. Thus, attention is redirected to who gets to make decisions in the governance of corporations, who benefits from the working of the corporation, and who suffers from the consequences of the actions of the corporations.
Relational Rather Than Atomistic Perspectives
Historically, corporate law has reiterated the notion of corporations as a system of contract among profit-seeking parties. The gender perspective, on the other hand, emphasizes relation, duty, and interconnection, which are grounded in an understanding of corporations as activities taking place in the context of a network of stakeholders with real stakes. It contests the assumption that the superior status rests in the shareholders.
Care Ethics and Stakeholder Responsibility
By its nature, feminist judgment literature translates the ethics of care into corporate law by incorporating obligations towards other parties besides those determined in contracts and the fiduciary duty. It takes into account the impact of the corporation on employees, society, consumers, and future generations and attributes all this as a valid factor in reaching business decisions without treating it as something that could be ignored if it leads to financial gains.
Challenging Value Neutrality
The typical mindset behind traditional company law is as if it were value-neutral, presenting concepts like the primacy of shareholders as mere technicalities, and not as value judgments on what we actually care about. From feminist perspectives, we find that company law actually reflects value judgments in self-interest, profit maximization, and competitiveness, while devaluing but important priorities like cooperation, community well-being, and environmental sustainability. This allows value judgments to be subject to democratized discourse in what we actually want from company law.
IMPLICATIONS FOR CORPORATE LAW REFORM:
Reconceptualizing Fiduciary Duties
To an increasing extent in many jurisdictions, and quite deliberately in some countries such as France and Germany, corporate law should recognize that directors’ duties are not merely to stockholders but that other interests, those of employees and/or surrounding communities affected by corporate decisions, should also be considered. Legislation might reflect this and/or judicial determinations might expand a directors’ fiduciary obligation.
Mandatory Stakeholder Representation
Ensuring that corporate governance is inclusive of stakeholders or has stakeholders like labor representatives on company boards or other decision-making bodies is essential. Codetermination in Germany and new EU dimensions on corporate governance reforms can be used as a learning model on how to incorporate stakeholders into decision-making.
Benefit Corporation Expansion
It should be easier to incorporate benefit corporations and other alternative forms of corporations in which stakeholders are given governance powers through law. This entails doing away with hurdles in the adoption of benefit corporations and setting guidelines on how one can determine the effectiveness of such corporations in achieving their mandates.
Mandatory Diversity and Inclusion
There is a need for corporate law to encourage diversity on the firms’ boards, perhaps through means such as the equal number of female and male directors that were required on the boards of Californian companies, though indeed subsequently challenged for constitutional invalidity.
CONCLUSION:
The feminist perspective, as it impacts the analysis of corporate law, shows that the current framework is not as gender-neutral as it is purported to be. Rather, it is saturated with masculinity that values self-interest, competitiveness, and the supremacy of the shareholder. These issues can often be detrimental to women and other minorities. The two most pressing doctrines of limited liability and the duty of care are saturated with these ideals.
The feminist interpretations of key court show that alternative decisions can be legally valid and morally sound. The feminist judgments project exposes the toolkit of values that current law utilizes and challenges the assumption of necessity regarding certain decisions. Future scholarship should combine the understanding of the intersection of gender with empirical research to create a more equitable form of gender-just corporate governance.
