Corporate Fiduciary Duty Law as the Heart of the Beast of Capitalism

This Commentary choreographs corporate fiduciary duty law in the United States against the backdrop of political-economic theory, and posits that such law is the heart of capitalism. Theorists invoked chronologically are Adam Smith, Karl Marx, Friedrich Engels, Max Weber, Antonio Gramsci, Milton Friedman, and David Harvey. Roadmap cases revisited are Dodge v. Ford Motor Co. (1919) , Unocal Corp. v. Mesa Petroleum Co. (1985) , Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (1986) , eBay Domestic Holdings, Inc. v. Newmark (2010), and McRitchie v. Zuckerberg (2024). The golden thread throughout is shareholder primacy: in other words, the law’s serving capital. The law, however, is not only a reflection of society but also an expression of societal aspirations that sometimes go beyond the existing social system and signal change. Someday, the law might evidence negation of the negation, and the powers-that-be will be obligated to act as fiduciaries for workers, communities, and (even, perhaps) the environment, rather than for capital.