CLOSING ARGUMENTS

LIONIZING COLUMBUS FOR “DISCOVERING” AMERICA NEGLECTS THE CONTRIBUTIONS OF NATIVE AMERICANS

BY MARGARET M. RUSSELL, PROFESSOR OF LAW AND INTERIM ASSOCIATE PROVOST FOR DIVERSITY AND INCLUSION AT SANTA CLARA UNIVERSITY

The question of whether Indigenous Peoples Day should replace Columbus Day as an official government holiday should ultimately be one of democratic governance. Although some trace precursors of Columbus Day as far back as the late 18th century, the process of making it a state and federal holiday did not occur until the early 20th century. It achieved federal holiday status in 1934 by congressional enactment during the administration of President Franklin Delano Roosevelt. Columbus Day is most commonly associated with the arrival of Christopher Columbus in the Americas in 1492, as well as with a celebration of Italian-American heritage. In my view, celebrating Italian-American culture is both glorious and delightful, but lionizing Christopher Columbus for his “discovery” of America is misguided.

Herein lies the story of the development of Indigenous Peoples Day: the desire to acknowledge that the story of this nation did not begin with the arrival of Columbus. Recognizing Indigenous Peoples Day offers an opportunity to restore Native Americans to their rightful place at the center of the American story.

“An unattended wound gets infected.” This observation from writer Tommy Orange in There There, his novel about contemporary Native American urban life, is a succinct assessment of why it is important to acknowledge the historical and present-day harms inflicted upon Native Americans. Amidst the rancorous and painful divisions in the United States today, there is a great need for truth, reconciliation, and healing. We cannot reach these goals without being straightforward about basic facts underlying our country’s origins and expansion. Indigenous Peoples Day takes us a step forward by recognizing that the Americas were inhabited before Columbus arrived, and by honoring Native American history and culture.

If we are to create a society of equality and respect, it is essential to resist the temptation to obscure or devalue the significance of Native Americans. Nelson Mandela, in speaking of the atrocities of his own country, South Africa, commented: “True reconciliation does not consist in merely forgetting the past.” The United States has its own record of atrocities. The emergence of Indigenous Peoples Day reflects a willingness to face up to our past with the hope of building a better future.

One misconception of Indigenous Peoples Day is that it is just a faddish indulgence of the left. In fact, it is celebrated across the United States as a city or state holiday in numerous locations based on local grass roots efforts. South Dakota was the first state to designate the second Monday of October as Native Americans’ Day, in early 1990 under Gov. George S. Mickelson, a Republican. This South Dakota law, and the designation of a statewide “Year of Reconciliation,” was the result of hard work spearheaded by Native American advocates Tim Giago, Harold Iron Shield, Birgil Kills Straight, Lynn Hart, and others. The final bill was the result of legislative compromise, but its text is clear: “Native Americans’ Day is dedicated to the remembrance of the great Native American leaders who contributed so much to the history of our state.” Today, four states—Alaska, Hawaii, Oregon, and South Dakota—have replaced Columbus Day with some version of a day of recognition of indigenous peoples.

More than 50 cities from a diversity of states across the country have joined them, including cities in New York, Connecticut, Maine, Oklahoma, Texas, Georgia, West Virginia, Utah, California, and Tennessee. A few municipalities recognize both; others have chosen a day other than the second Monday in October to recognize Native Americans. But ultimately, one or two days of recognition of the history and culture of Native Americans is only a beginning. True progress is measured by hard work on an ongoing basis. This requires recognizing and addressing the issues faced by the approximately 1 to 2 percent of the U.S. population who identify as Native American: higher rates of suicide, diabetes, tuberculosis, alcohol addiction; higher rates of violence against women; higher rates of poverty, to name a few.

Ultimately, Indigenous Peoples Day is just one opportunity for Americans to educate ourselves fully about both the origins of our country and the tremendous gift of culture that Native Americans have given us. As is true with the many cultures in our country, there should be more than one day of the year to celebrate, honor, and heal.

NOTE: This op-ed appeared in the Los Angeles Times on Oct. 4, 2018, as well as nearly 30 other publications or news sites nationwide including the Chicago Tribune.

A CALL TO REFORM CORPORATE GOVERNANCE LAW

BY DAVID YOSIFON, PROFESSOR OF LAW, SANTA CLARA UNIVERSITY SCHOOL OF LAW

From railroads to smartphones, basic needs and delights alike have been served by corporate operations. But the corporation has also catalyzed menace, orchestrating exploitation of some people on behalf of others, polluting nature and culture, and subverting our democratic politics. The achievements and disgraces of corporate conduct can both be attributed, in part, to its legal design. We can improve upon that design. To thrive as a species, to prosper as a nation, to flourish as individuals, we must have what is good in corporate law. And we must be rid of what is corrupting in it.

In the United States, the fundamental law of corporate governance is that firms must be managed in the best interests of shareholders. Corporate directors may not sacrifice profits in order to advance the competing interests of workers, consumers, the environment, or anything else. Sometimes the most profit can be made by behaving in a socially responsible way, but not always. Proponents of “shareholder primacy” insist that corporate overreach in pursuit of profits should be dealt with by government regulation, such as labor laws, environmental protections, and the like. But corporations pursue profits both in markets and in the halls of Congress, where they work to stunt the very regulations that shareholder primacy proponents promise can force firms to pursue profits in a socially useful way. If we cannot keep corporations out of our democracy, then we must have more democracy in our corporations. We must reform our corporate governance law to require the directors of our largest firms to consider the interests of all corporate stakeholders, and not just shareholders, in corporate decisionmaking.

The law of corporate purpose should be regarded as a basic fulcrum of social policy, but it hides in plain sight in our social and political discourse. Politicians blame powerful corporate interests for blocking this or that regulatory change, but the reproach always takes the form of moralistic shaming of corporations for being mean or greedy, as if corporations are doing anything other than what the law of shareholder primacy compels them to do. They could do other than what they are doing, if we altered the law of corporate governance.

Law is a provisional truce. People on both the left and the right—from socialist-leaning anticorporate Bernie Sanders supporters, to nationalist-leaning anti-corporate Donald Trump supporters—seem fed up with corporations, and appear to be galled in particular by the selfish, myopic nature of corporate political activity. Behind this animosity is an unarticulated dissatisfaction with the narrow, shareholder-focused agenda of the prevailing corporate governance system. I believe that a reform of shareholder primacy, in favor of more stakeholder-oriented corporate governance, could prove satisfactory enough to keep a dissatisfied public from seeking more destructive alteration of the status quo. We must safeguard the corporate instrument against its own worst tendencies, which might otherwise spur radical political action that will destroy it, and maybe destroy much more.

When Corporate Friction was published in May, it came out as an academic book. Like many academic writers, I hoped the book might contribute to active public policy discourse. That hope may find opportunity sooner than I had imagined. In August, Senator Elizabeth Warren of Massachusetts filed a bill called the Accountable Capitalism Act (ACA), which would significantly reform corporate governance of the largest American firms (those with more than $1 billion in annual earnings) in ways similar to what I suggest in the book. While Warren’s legislation is unlikely to become law very soon, the issue of corporate governance reform is becoming more salient in our politics. Corporate Friction might be read as an explanation for why reforms such as those called for in Warren’s ACA are both necessary and plausible.

NOTE: The above is an excerpt from Corporate Friction: How Corporate Law Impedes American Progress and What To Do About It, by David Yosifon (Cambridge University Press, 2018).

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