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Corporate Governance and the Feminization of Capital, Exercises of Corporate Finance

Notre Dame College (NDC)Corporate Finance

Abstract. At the start of the twentieth century, women made up a small proportion of shareholders in American publicly traded companies.

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515
Stanford Law Review
Volume 74 March 2022
ARTICLE
Corporate Governance and the
Feminization of Capital
Sarah C. Haan*
Abs tr ac t. At the start of the twentieth century, women made up a small proportion of
shareholders in American publicly traded companies. By 1956, women were the majority
of individual shareholders. Although this change in shareholder gender demographics
happened gradually, it was evident early in the century: Before the 1929 stock market
crash, women shareholders had come to outnumber men at some of America’s largest and
most influential corporations, including AT&T, General Electric, and the Pennsylvania
Railroad. This Article synthesizes information from a range of historical sources to reveal
an overlooked narrative of corporate history—the feminization of capital, or the
transformation of American public-company shareholders from majority male to
majority female. It charts the growing proportion of women shareholders over the first
half of the twentieth century, describes the business community’s response to this trend,
and explores the impact of the rise of intermediation on the gender politics of corporate
control.
Corporate law scholarship has never before acknowledged that the early decades of the
twentieth century, a transformational era in corporate law and theory, coincided with a
change in the gender composition of the shareholder class. Scholars have not considered
the possibility that shareholders’ gender—which was being tracked internally at
companies, disclosed in annual reports, and publicly reported in the press—might have
* Professor of Law, Washington and Lee University School of Law. The Author thanks the
following individuals for their generous and thoughtful comments: Afra Afsharipour,
Alexandra Andhov, Margaret M. Blair, Naomi Cahn, June Carbone, Christine Sgarlata
Chung, Richard Chused, Aaron A. Dhir, Jill E. Fisch, Carola Frydman, Jeffrey N. Gordon,
Joan MacLeod Heminway, Jennifer Hill, Eric Hilt, Andrew Jennings, Kristin N. Johnson,
Nancy Levit, Ann M. Lipton, Gregory A. Mark, Veronica Root Martinez, Martha T.
McCluskey, Benjamin Means, Bill Nelson, J.S. Nelson, Chuck O’Kelley, James Park,
Elizabeth Pollman, Mark Roe, Darren Rosenblum, Noah A. Rosenblum, Laura A.
Rosenbury, D. Daniel Sokol, Faith Stevelman, Janice M. Traflet, Andrew Verstein,
Harwell Wells, Bob Wright, and Larry Zacharias. The Author gratefully acknowledges
the financial support of the Frances Lewis Law Center, and the excellent research
assistance of Franklin L. Runge, Alex Zhang, and law student Sasha Hoyt. Finally, the
Author thanks the editors of the Stanford Law Review, especially Megan R. Izzo, Taylor
Nicolas, and Danielle Tyler Roybal, for their extraordinary efforts in preparing the
Article for publication.
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Download Corporate Governance and the Feminization of Capital and more Exercises Corporate Finance in PDF only on Docsity!

Stanford Law Review

Volume 74 March 2022

ARTICLE

Corporate Governance and the

Feminization of Capital

Sarah C. Haan*

Abstract. At the start of the twentieth century, women made up a small proportion of

shareholders in American publicly traded companies. By 1956, women were the majority

of individual shareholders. Although this change in shareholder gender demographics

happened gradually, it was evident early in the century: Before the 1929 stock market

crash, women shareholders had come to outnumber men at some of America’s largest and

most influential corporations, including AT&T, General Electric, and the Pennsylvania

Railroad. This Article synthesizes information from a range of historical sources to reveal

an overlooked narrative of corporate history—the feminization of capital, or the

transformation of American public-company shareholders from majority male to

majority female. It charts the growing proportion of women shareholders over the first

half of the twentieth century, describes the business community’s response to this trend,

and explores the impact of the rise of intermediation on the gender politics of corporate

control.

Corporate law scholarship has never before acknowledged that the early decades of the

twentieth century, a transformational era in corporate law and theory, coincided with a

change in the gender composition of the shareholder class. Scholars have not considered

the possibility that shareholders’ gender—which was being tracked internally at

companies, disclosed in annual reports, and publicly reported in the press—might have

  • Professor of Law, Washington and Lee University School of Law. The Author thanks the following individuals for their generous and thoughtful comments: Afra Afsharipour, Alexandra Andhov, Margaret M. Blair, Naomi Cahn, June Carbone, Christine Sgarlata Chung, Richard Chused, Aaron A. Dhir, Jill E. Fisch, Carola Frydman, Jeffrey N. Gordon, Joan MacLeod Heminway, Jennifer Hill, Eric Hilt, Andrew Jennings, Kristin N. Johnson, Nancy Levit, Ann M. Lipton, Gregory A. Mark, Veronica Root Martinez, Martha T. McCluskey, Benjamin Means, Bill Nelson, J.S. Nelson, Chuck O’Kelley, James Park, Elizabeth Pollman, Mark Roe, Darren Rosenblum, Noah A. Rosenblum, Laura A. Rosenbury, D. Daniel Sokol, Faith Stevelman, Janice M. Traflet, Andrew Verstein, Harwell Wells, Bob Wright, and Larry Zacharias. The Author gratefully acknowledges the financial support of the Frances Lewis Law Center, and the excellent research assistance of Franklin L. Runge, Alex Zhang, and law student Sasha Hoyt. Finally, the Author thanks the editors of the Stanford Law Review , especially Megan R. Izzo, Taylor Nicolas, and Danielle Tyler Roybal, for their extraordinary efforts in preparing the Article for publication.

74 S TAN. L. REV. 515 (2022)

influenced business leaders’ views about corporate organization and governance. This

Article considers the implications of this history for some of the most important ideas in

corporate law theory, including the separation of ownership and control, shareholder

“passivity,” stakeholderism, and board representation. It argues that early-twentieth-

century gender politics helped shape foundational ideas of corporate-governance theory,

especially ideas concerning the role of shareholders. Outlining a research agenda where

history intersects with corporate law’s most vital present-day problems, this Article lays

out evidence showing that the feminization of capital shaped changing ideas about the role

of shareholders in corporate governance. In so doing, it invites scholars to begin a

conversation about gender, power, and the evolution of corporate law.

74 S TAN. L. REV. 515 (2022)

Introduction

In 1951, the American Telephone and Telegraph Company (AT&T)

became the first corporation in America with one million stockholders. 1 The

company celebrated the milestone with a publicity campaign, flying the one-

millionth stockholder—a Michigan couple who had bought the stock jointly—

to New York for a publicity tour. 2 Photos from the campaign showed the

company’s president, Leroy Wilson, presenting a stock certificate to a young

automobile salesman, Brady Denton, as the couple’s school-age sons looked on.

Behind them all, partly obscured by Wilson’s arm as it reached past her, stood

Dorothy Denton, Brady’s co-owner, gazing into the camera lens with a

strained smile. 3 The image celebrated a young couple’s entrance into the

stockholder class, but it also depicted Dorothy as marginalized in the

transaction. Newspapers around the country memorialized the event and

proclaimed the democratization of AT&T’s shareholder class: It had become “a

cross section of America, including farmers, businessmen, clerks, mechanics,

clergymen, merchants, teachers, housewives, doctors, lawyers, Civil Service

workers, people who [had] retired, widows, home-town folks and neighbors.” 4

But this picture—the staged photo, the list of shareholder occupations that

emphasized “farmers” and “businessmen,” even AT&T’s choice of a married

couple as its millionth stockholder—was misleading. By 1951, most of AT&T’s

individual stockholders were women. 5 They outnumbered individual men

stockholders by almost two to one. 6 In fact, women stockholders had

  1. AT&T Fetes 1,000,000th Stockholder , L.A. TIMES , May 16, 1951, at A9; see also Thomas P. Swift, Million Mark Near in A.T.&T. Holders: 75-Year-Old Company Will Be First to Boast that Number of Owners of Its Shares , N.Y. TIMES , Apr. 22, 1951, at F1.
  2. AT&T Fetes 1,000,000th Stockholder , supra note 1.
  3. See Million Now Own Telephone Stock: Couple Buys 7 Shares at $1,078 and Company Gives Gala Tour of New York , N.Y. TIMES , May 16, 1951, at 42. At a dinner hosted by AT&T to mark the occasion, AT&T director Arthur Page addressed Brady Denton as if he were the sole owner of the couple’s shares. See Arthur W. Page, Director, Am. Tel. & Tel., Speech Presented at the Millionth Stockholder Celebration of the American Telephone and Telegraph Company: Trusteeship in Business (May 15, 1951) (on file with author) (“Mr. Denton, you have entrusted your savings to American enterprise which is somewhat different from enterprise anywhere else in the world.”).
  4. Harold Walsh, March of Finance: AT&T Milestone Points Up Democracy of Ownership , L.A. TIMES , May 17, 1951, at A10; see also One in a Million! , CHI. TRIB ., May 16, 1951, at 49; Bell System Has Millionth Stockholder , P OST (Big Stone Gap, Va.), May 17, 1951, at 4.
  5. See Walsh, supra note 4; A M. TEL. & TEL. CO ., A NNUAL REPORT 1950, at 15 (1951) [hereinafter AT&T 1950 A NNUAL REPORT ]; L EWIS H. KIMMEL, BROOKINGS INST ., S HARE OWNERSHIP IN THE UNITED S TATES : A S TUDY PREPARED AT THE R EQUEST OF THE NEW Y ORK S TOCK E XCHANGE 15 & n.13 (1952).
  6. Wayne Oliver, AT&T To Make History with Millionth Holder , D AYTON D AILY NEWS , Apr. 10, 1951, at 27 (reporting that 244,200 of AT&T’s shareholders were men and 483,700 were women); Walsh, supra note 4. These numbers did not include joint footnote continued on next page

74 S TAN. L. REV. 515 (2022)

outnumbered men stockholders at AT&T since at least 1910. 7 As recently as

1948, AT&T had disclosed that 43% of its stock was owned by women,

considerably more than the 26% owned by men. 8 In 1951, individual women

stockholders held 12 million shares, 9 about 41% of AT&T’s stock—more if you

included stock held jointly. Women comprised AT&T’s largest stockholder

demographic whether you counted shareholders by the head or by the share. 10

That year, the New York Times described AT&T’s April shareholder

meeting, held at the company’s Manhattan headquarters, as “Ladies Day.”^11 At

least half of the stockholders who attended were women. 12 During the

husband-and-wife accounts, which comprised roughly 23% of AT&T’s stockholders. See Walsh, supra note 4.

  1. A M. TEL. & TEL. CO ., A NNUAL R EPORT OF THE D IRECTORS OF A MERICAN TELEPHONE & TELEGRAPH COMPANY TO THE S TOCKHOLDERS FOR THE Y EAR E NDING D ECEMBER 31, 1910, at 17 (1911) [hereinafter AT&T 1910 A NNUAL R EPORT ]; AT&T 1950 A NNUAL REPORT , supra note 5, at 15; Women Stockholders: Feminine Army of 310,000 Holds Stock in 252 Corporations , BROOKLYN D AILY E AGLE, Feb. 1, 1914, at 21; see also J ULIA C. OTT , W HEN WALL S TREET M ET M AIN S TREET : THE QUEST FOR AN INVESTORS ’ D EMOCRACY 154 (2011) (describing the “feminization of the AT&T stockholder” by the 1920s).
  2. A M. TEL. & TEL. CO ., A NNUAL REPORT FOR THE Y EAR 1948, at 9 (1949) [hereinafter AT&T 1948 A NNUAL R EPORT ] (noting that another 12% was held by joint accounts); see also Purely Gossip—ATT Shareholders , W ALL S T. J., Mar. 17, 1941, at 15 (reporting that at the end of 1940, 42% of AT&T’s stock was held by women, 30% by men, 5% in joint accounts, and 21% by trustees and institutions, with the balance held in the name of brokers).
  3. This statistic about women’s share ownership was widely reported in May 1951 and probably originated in AT&T’s promotional materials about its millionth stockholder. See, e.g ., Bell Telephone Fetes Millionth Stockholder , A RLINGTON H EIGHTS H ERALD, May 18, 1951, at 2; Private Ownership , D AILY REPUBLICAN (Kane & Mt. Jewett, Pa.), May 21, 1951, at 4; see also A M. TEL. & T EL. CO ., A NNUAL REPORT 1951, at 35 (1952) [hereinafter AT&T 1951 A NNUAL R EPORT ]. Jointly held stock was typically assumed to be stock held by a married couple, which in the 1950s meant one man and one woman. See Wayne Oliver, AT&T Shortly Expects Its Millionth Stockholder , A USTIN S TATESMAN , Apr. 10, 1951, at A- (describing joint holdings as those between “man and woman”).
  4. As explained more fully below, AT&T was one of several large public companies that celebrated a milestone stockholder in the early 1950s. In each case, the company organized a public-relations campaign around a milestone stockholder who was a young, white, male, married, middle-class wage earner. See infra note 405 and accompanying text. In fact, in 1952, American stockholders were evenly divided between men and women, and most were fifty or older. See KIMMEL, supra note 5, at 89- 92 (presenting demographic data). These celebrations presented idealized images of shareholders, not accurate ones.
  5. Women Enliven Meeting of A.T.&T. But Their Move to Make One of Them a Member of Board of Directors Loses , N.Y. TIMES , Apr. 19, 1951, at 58 [hereinafter Women Enliven Meeting ] (“It was ‘Ladies Day’ at the annual meeting of stockholders of the $12,000,000,000 American Telephone and Telegraph Company yesterday, but they came off second best.”).
  6. Id. ; Charles F. Speare, Stock Market Shows Vitality in Face of Unsettled News , M UNCIE S TAR , Apr. 22, 1951, at 31 (noting that “the presence of women was a conspicuous footnote continued on next page

74 S TAN. L. REV. 515 (2022)

consideration. 19 Taking advantage of a rule enacted by the Securities and

Exchange Commission (SEC) only nine years earlier, Aronstam had asked

AT&T to add her resolution to the materials that the company sent to its

million stockholders in advance of the meeting. 20 The company had included

Aronstam’s proposal in its proxy statement, alongside its instruction that

stockholders vote against her. 21

Tiny and white-haired, Aronstam was a retired schoolteacher from

Brooklyn who owned 100 shares. 22 Her proposal asked the company to expand

the board by one member—and to fill the vacant position with a woman. 23 “I

don’t expect the resolution to pass this time,” she told a reporter before the

meeting, “but we will put up a good fight.” 24 When the votes were tallied, more

than a million shares of AT&T stock were cast in favor of Aronstam’s

proposal—just over 5% of all the shares that were voted. 25 Management had

voted all of the proxies it had collected against the proposal. 26

AT&T’s vibrant 1951 annual meeting—alive with women, the dominant

shareholder demographic, rising to give speeches, propose resolutions, and

demand representation—was, in many ways, typical for its time, although it

defies our present-day understanding of corporate history. 27

  1. Fred Klann, Off the Beaten Path: From 2 Employees to 602,466 , M OLINE D AILY D ISPATCH, Mar. 22, 1951, at 19; Broadway Revue , supra note 13, at 3-4 (suggesting that the author Fannie Hurst spoke on Aronstam’s behalf).
  2. See SEC Rule X-14A-7, Exchange Act Release No. 3347 (Dec. 18, 1942), 7 Fed. Reg. 10,655, 10,656 (requiring reporting companies to print shareholder proposals in proxy statements).
  3. See A.T.&T. Shies from Women as Directors , C HI. TRIB ., Mar. 17, 1951, at 29; see also New Fight Planned to Seat Woman on AT&T Directorate , S.F. E XAM ’ R , Mar. 14, 1951, at 30.
  4. See Robert H. Prall, Ella Girds for the Second Round: Little Woman vs. Big Business , N.Y. WORLD-TEL. & S UN , Apr. 17, 1951, at 22 (reporting that Aronstam was four feet nine inches tall and 103 pounds). The article noted that after Aronstam’s proposal was published in the proxy, a “Connecticut farmer” sent her a letter telling her to stick to knitting, since AT&T’s officers were doing a good job “without any women to mess up the works.” Id.
  5. See id. ; A.T.&T. Meeting Told Company Is Striving to Increase Earnings , W ALL S T. J., Apr. 19, 1951, at 18.
  6. See Prall, supra note 22.
  7. Increase Earnings and Reduce Debt: AT&T Fiat , supra note 18. More than 18 million shares were voted against. Id.
  8. AT&T Shies from Women as Directors , supra note 21.
  9. See, e.g. , Saw Dawson, Influence of Women in Business Increasing , L.A. TIMES , Mar. 14, 1950, at 25 (“The womenfolk have discovered recently what fun they can have at a stockholders’ meeting, just by asking questions.”). Women were active in shareholder governance throughout this period. For example, among the first thirteen individuals to utilize the SEC’s shareholder-proposal rule in 1943 was Harriett Skipwith, who owned 3,700 shares of common stock of the White Sewing Machine Company and submitted six proposals on subjects related to the company’s corporate governance. See footnote continued on next page

74 S TAN. L. REV. 515 (2022)

Over the first half of the twentieth century, the percentage of women

among individual shareholders at American public companies continuously

grew until, sometime between 1952 and 1956, women became the majority. 28

The trend was documented over six decades in ad hoc studies conducted by

government agencies, journalists, investment firms, and eventually the New

York Stock Exchange (NYSE). In 1956, the NYSE published the first

comprehensive study finding that women constituted a majority of

shareholders across the U.S. public capital markets. 29 But the trend received

almost no recognition in the academic literature—not in economics, corporate

law, or business management, the three academic disciplines in which scholars

studied and published information about the expanding shareholder class and

the role of shareholders in corporate organization. This silence contrasts

strongly with the scholarly attention lavished on the rise of institutional

holders starting in the 1950s—a time when women’s shareholding was

reaching a high point. 30

Women’s market-wide majority status may have been less important than

the feminization of shareholding at individual companies. Before the 1929

stock market crash, women shareholders outnumbered men at some of

America’s largest and most influential public companies, including AT&T,

General Electric, and the Pennsylvania Railroad—the “blue-chip” companies

whose CEOs and directors formed an elite cadre of business leaders. 31 As the

Rolf Enno Wubbels, Regulation of Stockholder Proxies 106 tbl.4 (1949) (Ph.D. thesis, New York University) (on file with author). Around this time, women board candidates were nominated from the floor of the annual meetings of several companies, including Radio Corporation of America, General Motors, and U.S. Steel. See Andy Logan, Hoboken Must Go! , NEW Y ORKER , Mar. 17, 1951, at 34, 48; U.S. Steel Annual Meeting Covers Girth, Mirth, Women—and Upturn in Business , W ALL S T. J., May 4, 1954, at 11. At other companies, stockholders made demands for women directors during shareholder meetings. See, e.g. , S TANDARD OIL CO. (N.J.), S TENOGRAPHIC REPORT OF THE A NNUAL M EETING OF THE S TOCKHOLDERS 25-26 (1947); 950 at Its Stockholders’ Meeting, A Record in History of A.T.&T. , N.Y. TIMES , Apr. 20, 1950, at 45. Shareholder proposals demanding female representation on corporate boards were published in the proxy statements of Alex Smith & Sons Carpet Co. (1950), the American Radiator & Standard Sanitary Corp. (1950 and 1951), Bayuck Cigar, Inc. (1950 and 1951), Borden Co. (1951), and AT&T (1951). See Frank D. Emerson & Franklin C. Latcham, The SEC Proxy Proposal Rule: The Corporate Gadfly , 19 U. C HI. L. REV. 807, 817 (1952) (summarizing the proposals). In 1966, Wilma Soss was forcibly removed from IBM’s annual meeting after she “stubbornly continued to try to nominate a woman director” from the floor. Traflet, supra note 13, at 21-22.

  1. See infra notes 222-24 and accompanying text.
  2. N.Y. S TOCK E XCH., W HO OWNS A MERICAN BUSINESS? 1956 C ENSUS OF S HAREOWNERS 6 (1957) [hereinafter N.Y. S TOCK E XCH., W HO OWNS A MERICAN BUSINESS ?].
  3. See infra Parts I.E, I.H.
  4. See supra note 7 (AT&T); infra note 145 (General Electric); infra note 189 (Pennsylvania Railroad).

74 S TAN. L. REV. 515 (2022)

among other things, that the feminization of shareholding encouraged

corporate law experts to view shareholders as “passive” actors, and justified

laws and practices that shifted power away from shareholders toward

corporate managers.

During the early decades of the twentieth century, ownership of the

nation’s biggest corporations became “widely scattered.” 34 In the conventional

narrative, the dispersion of stockholding caused “passive” shareholders to lose

the power of control, and a new and growing cadre of technocratic managers

to gain it. 35 The separation of ownership and control reflected the triumph of

centralized corporate management over the dispersed, small shareholder. 36

The separation framework introduced a “separate spheres” dichotomy to

corporate-governance theory that not only survives to this day, but became

the basis of modern corporate law. In recent years, some scholars have

questioned the timing of the separation of ownership from control. 37 Virtually

everyone agrees, however, that ownership did eventually separate from

control—and that reducing the resulting “agency costs” has become the

singular focus of modern corporate law. 38 Indeed, the choice to view the

99 COLUM. L. R EV. 1253, 1254, 1292 (1999). Though Eisenberg’s work did not consider gender as a source of social norms, this Article shows that cultural attitudes about gender difference have been relevant to the evolution of modern corporate law. See generally Patricia Yancey Martin, Gender as Social Institution , 82 S OC. F ORCES 1249, 1266 (2004) (arguing that using gender to construct social relations is useful “primarily because of its extensive pervasiveness and intertwining with other social realms”).

  1. A LFRED D. C HANDLER , JR ., THE VISIBLE H AND: T HE M ANAGERIAL REVOLUTION IN A MERICAN BUSINESS 9-10 (1977); see also Frederick H. Wood, The Small Investor and Railroad Ownership and Management , 11 PROC. A CAD. POL. S CI. CITY N.Y. 433, 433 (1926) (“In each of the last two decades the number of stockholders [in eighteen companies] has approximately doubled.”).
  2. See, e.g. , A DOLF A. BERLE , JR. & G ARDINER C. M EANS, T HE M ODERN CORPORATION AND PRIVATE PROPERTY 59 (1932) (describing the separation of ownership and control).
  3. Id.
  4. See, e.g. , Eric Hilt, The Berle and Means Corporation in Historical Perspective , 42 S EATTLE U. L. REV. 417, 420 (2019) (stating that “ownership was separated from control to a lesser extent among 1930s corporations studied by Berle and Means than among the public companies of the 1870s and even the 1820s”); Brian Cheffins & Steven Bank, Is Berle and Means Really a Myth? , 83 BUS. H IST. REV. 443, 445-58 (2009) (mapping the literature).
  5. See, e.g ., Jan Fichtner, Eelke M. Heemskerk & Javier Garcia-Bernardo, Hidden Power of the Big Three? Passive Index Funds, Re-concentration of Corporate Ownership, and New Financial Risk , 19 BUS. & POL. 298, 301 (2017) (describing “an overwhelming consensus that since the second half of the twentieth century corporate ownership in the United States is by and large fragmented and dispersed”); Michael Klausner, Fact and Fiction in Corporate Law and Governance , 65 S TAN. L. REV. 1325, 1326 (2013) (describing agency- cost analysis as “the dominant framework of analysis for corporate law and corporate governance today”); Lyman Johnson & David Millon, Corporate Law After Hobby Lobby , 70 BUS. L AW. 1, 14 (2014/2015) (asserting that a “fixation on agency costs [has] taken root and flourished within the corporate law academy”). For an early and important footnote continued on next page

74 S TAN. L. REV. 515 (2022)

separation of ownership and control as naturally occurring and inevitable has,

for nearly a hundred years, led corporate law to operate within a framework of

perpetually warring camps of “strong managers” and “weak owners.” 39 This

Article is the first work of corporate law scholarship to suggest that the study

of shareholder gender sheds light on these narratives.

The idea of the passive shareholder took off after Adolf Berle, Jr., and

Gardiner Means presented it in their 1932 book, The Modern Corporation and

Private Property. 40 This Article argues, among other things, that the

shareholder-passivity thesis relied on gender stereotypes and may have

misrepresented the desire of small stockholders, including many women, to

actively participate in shareholder governance. In the first half of the twentieth

century, the typical shareholder held stock in only a few companies. 41 With

governance rights in only a handful of firms, shareholders had the time and

resources to attend to corporate-governance matters. Evidence suggests that

shareholder interest was there as well. 42 During this period, however, corporate

law evolved in a direction that de-emphasized mechanisms for shareholder

collective action. The choice to view shareholder passivity as natural and

inevitable helped turn corporate law away from control-based reforms, which

would have empowered shareholders. Instead, shareholder passivity pushed

corporate law toward market-based solutions, a trend that was formalized in

New Deal securities legislation. 43 The passivity thesis helped to justify the

contribution to the agency-cost genre, see Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure , 3 J. F IN. E CON. 305, 357 (1976).

  1. See generally M ARK J. ROE , S TRONG M ANAGERS, WEAK OWNERS : THE POLITICAL ROOTS OF A MERICAN CORPORATE F INANCE (1994) (discussing the origins of this framework).
  2. BERLE & M EANS , supra note 35, at 347-48. As described in further detail in Part II.B below, Berle and Means did not introduce the concept of shareholder passivity, but they were largely responsible for popularizing the idea among corporate theorists in the United States.
  3. See, e.g ., TEMP. N AT ’ L E CON. COMM ., 76 TH CONG., INVESTIGATION OF CONCENTRATION OF E CONOMIC POWER : THE D ISTRIBUTION OF OWNERSHIP IN THE 200 L ARGEST NONFINANCIAL CORPORATIONS , at xvii (Comm. Print 1940) (stating that the average stockholder held shares in “about two and one-half corporations”). Almost twenty years later, the NYSE found that the average stockholder held stock from only 3. different stock issues—fewer than in 1956, when the average was 4.25 issues. N.Y. S TOCK E XCH., S HARE OWNERSHIP IN A MERICA: 1959, at 5 (1959). But see Harold S. Sutton, Who Are a Company’s Stockholders? Utility Company Survey Discloses Wide Ownership in All Classes , 87 TRS. & E STS. 9, 9 (1948) (showing that a 1948 survey of stockholders of the Consolidated Edison Company of New York found that 5% owned no other stocks; 12% owned two or three other stocks; 37% owned three to ten; and 51% owned over ten).
  4. See infra notes 362-68 and accompanying text.
  5. Morton Horwitz dates “the beginning of the shift away from ‘the traditional point of view’ of shareholders as ‘the ultimate owners, the corporate equivalent of partners and footnote continued on next page

74 S TAN. L. REV. 515 (2022)

organization. 47 As late as the 1950s, some companies were reporting the results

of shareholder voting on both a pro rata (share) and a per capita (shareholder)

basis, reflecting a continuing adherence to the traditional view in which

shareholders were cognizable as people. 48 Most experts peg the shift to

institutional stockholding to the 1970s or later, even though it was recognized

earlier as a development on the horizon. 49 The intermediation of stockholding

after the midcentury was itself gendered in effect. Since intermediary holders

were managed by men, 50 the rechanneling of retail stockholding through them

restored male voting control over women’s stock.

What explains the rise of women’s stockholding in the first half of the

twentieth century? 51 Although many factors likely played a role—including

the fact that women could and did participate in shareholder governance in

large companies at a time when their participation in political governance was

limited—this Article highlights an economic explanation. Women experienced

sex discrimination in labor markets, but the dividends paid on a share of stock

did not vary with the identity of the share’s owner. 52 That is, the return on

  1. Women did own more stock than men at individual companies, however. See infra notes 270-72 and accompanying text (describing how women’s pro rata shareholding exceeded men’s at AT&T and U.S. Steel).
  2. See, e.g ., S TANDARD OIL CO. (N.J.), S TENOGRAPHIC REPORT OF THE A NNUAL M EETING OF THE S TOCKHOLDERS 45 n.*, 46 (1948) (providing vote totals on both a pro rata and per capita basis). In addition, some companies continued to use a voice vote to decide substantive motions brought at shareholder meetings, effectively giving each shareholder a single vote. In 1946, for example, when a shareholder of Standard Oil New Jersey moved for a vote to switch from semiannual dividends to quarterly dividends, a floor vote of shareholders resolved the matter. See S TANDARD OIL CO. (N.J.), S TENOGRAPHIC REPORT OF THE A NNUAL M EETING OF THE S TOCKHOLDERS 24 (1946). The motion failed. Id. at 25.
  3. See, e.g. , David M. Kotz, The Significance of Bank Control over Large Corporations , 13 J. E CON. ISSUES 407, 409 (1979) (“Whereas in 1929 less than one-tenth of outstanding U.S. corporate stock was held by financial institutions, by 1974 financial institutions held over one-third.”); C OX , supra note 44, at 2 (noting “the emphasis which has been placed on the growing importance of institutional investors in the market during the 1950s” but observing that “in 1960 individual owners continue to represent the most important group of holders of equities”); J.A. L IVINGSTON, THE A MERICAN S TOCKHOLDER 246-47 (1958) (recognizing the significance of institutional investors).
  4. See infra notes 282-86 and accompanying text.
  5. This Article is only a preliminary effort at answering this important question, which deserves book-length treatment. A longer work would help explain where twentieth- century American women obtained wealth (for example, through inheritance, wage labor, or other means), and how and why women saved or invested that wealth, particularly in light of then-existing gender norms, legal constraints on women’s property ownership, differences between the life expectancies of men and women, and the exclusion of women from politics.
  6. See generally A LICE KESSLER -H ARRIS , OUT TO WORK : A H ISTORY OF WAGE-E ARNING WOMEN IN THE UNITED S TATES (2003) (describing sex discrimination in the U.S. labor market).

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women’s capital was not discounted for their sex. The fact that women could

expect equitable returns for their investment of capital in stock, but not for

their labor, may have encouraged women to save and invest in stock when

possible. 53 The dynamic effects of sex discrimination across labor and capital

markets may help explain why, over the first half of the twentieth century,

women came to outnumber men as common stockholders in the United

States. 54

Shareholders’ race is also relevant to this story. In the first half of the

twentieth century, the great majority of American shareholders probably were

middle-income and wealthy white women and men. Some women

shareholders were the beneficiaries of inherited wealth, while others were

investors of income earned in labor markets that were segregated not only by

sex, but also by race. 55 Unfortunately, data on shareholders’ race and ethnicity

during this period is thin. It is fair to assume, however, that the feminization of

shareholding was shaped by racial discrimination and bias.

Part I synthesizes information from a range of historical sources to present

a history of twentieth-century shareholding that pays attention to gender. It

offers an original and important contribution to the fields of business history,

women’s history, corporate law, socioeconomics, and the study of capitalism,

and a fascinating “lost history” 56 that may surprise readers because, until now,

there has been little recognition that women played any kind of significant

role in early-twentieth-century corporate capitalism.

Part II considers the implications of this history for some of the

foundational ideas in corporate law theory. These include the separation of

  1. See, e.g. , infra note 173 (describing a 1929 financial-advice article in Good Housekeeping that revealed how the economic reality of 1920s womanhood related to women’s investment risk tolerance). Stocks, of course, provided better returns than bonds. The fact that women had fewer options than men did to generate income over a lifetime— because women were essentially excluded from high-wage jobs—may have encouraged some women to rely on the high returns on stocks as their primary means of growing wealth.
  2. See, e.g. , Women Outrank Men Stockholders: Corporation Canvass Shows They Predominate in Many of the Largest , N.Y. TIMES , Aug. 12, 1927, at 26 [hereinafter Women Outrank Men Stockholders ]; Woman’s Investment Invasion: Overtopping Facts and Figures (pt. 2), W ALL S T. J., Aug. 12, 1927, at 15.
  3. The transmission of wealth from one generation to the next in white families would, of course, have reflected economic advantages conferred by centuries of American racial discrimination as well as the institution of slavery. See, e.g ., S TEPHANIE E. J ONES - ROGERS , THEY WERE H ER PROPERTY : WHITE WOMEN AS S LAVE OWNERS IN THE A MERICAN S OUTH, at xvii (2019) (exploring the ways in which “slave-owning women invested in, and profited from their financial ties to, American slavery and its marketplace”).
  4. See Debora L. Threedy, Feminists & Contract Doctrine , 32 IND. L. REV. 1247, 1252 n. (1999) (“One of the projects of feminism has been to recover women’s ‘lost’ history.”).

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Stockholding by women is evident in the historical record long before 1900. 62

For example, when it was chartered in 1791, at least twelve of the 194

stockholders of the Bank of New York were women. 63 Collectively they

owned only 6.7% of the bank’s total stock, but a woman, Temperance Green,

was the bank’s second-largest shareholder. 64 One early American corporate law

treatise noted that a corporation “may consist of both men and women,

provided, its institution is not repugnant to the condition and modesty of

women.” 65 An 1849 Pennsylvania statute forbade stockholders who lived

within ten miles of the meeting place from voting by proxy, “females

excepted.” 66 In 1877, the Banker’s Magazine and Statistical Register published a

small survey of the sex of stockholders in ten national banks in central New

York, reporting that women constituted almost 41% of stockholders and held

31% of shares. 67 By 1878, there were already so many women shareholders of

the Pennsylvania Railroad that the corporation distributed dividends by sex;

women shareholders could receive their payments a day before the men. 68

  1. For a summary of evidence from the 1700s and 1800s, see R OBERT E. W RIGHT , F INANCIAL E XCLUSION : H OW COMPETITION CAN F IX A BROKEN S YSTEM 233-46 (2019).
  2. A LLAN NEVINS, H ISTORY OF THE BANK OF NEW Y ORK AND TRUST COMPANY: 1784 TO 1934 app. at xi-xiii (1934). This source lists women stockholders at the time of the Bank of New York’s 1791 incorporation: Julia Bunyan (2.5 shares); Jane Byrne (1.5 shares); Mary Daubney (3 shares); Temperance Green (25 shares); Maxwell & Berry, Attorneys for Ann Robertson (5 shares); Unus McIvers (1 share); Ann Mullen (3 shares); Mary Phillips (1 share); Sarah Robinson (3 shares); Helena Scott (1.5 shares); Ann Van Horne (1 share); Cornelia Van Horne (1 share). Id. app. at xiii.
  3. See id. app. at xi, xiii. Green held twenty-five shares; only one stockholder, “Alex. Robertson,” held more stock—thirty-four shares. (Note that I am assuming “Alex. Robertson” was a man.)
  4. JOSEPH K. A NGELL & S AMUEL A MES , A TREATISE ON THE L AW OF P RIVATE CORPORATIONS A GGREGATE 51 n.1 (Morton J. Horwitz & Stanley N. Katz eds. Arno Press 1972) (1832); see also A.B. Johnson, Advantages and Disadvantages of Private Corporations , 23 M ERCHS .’ M AG. 626, 630 (1850) (noting that “some” stockholders “are women”).
  5. Act of Apr. 7, 1849, ch. 909, § 4, 1849 Pa. Laws 1173, 1174.
  6. This was the earliest published study of stockholder gender that I found in researching this Article. See Females as Stockholders in National Banks , BANKER ’ S M AG. & S TAT. REG ., June 1877, at 987, 987. By the 1870s, women were common enough among stock speculators to be described with their own monikers. See John T. Flynn, How to Make Money in Wall Street , W OMAN ’ S H OME COMPANION, Jan. 1930, at 25, 26 (referring to woman speculators as “ladybulls”); “Mudhens”: How the Brokers’ Clerks Designate the Female Stock-Operators , CHI. D AILY TRIB ., Nov. 15, 1876, at 2 (“ ‘Mudhens’ is the euphonious and rather peculiar epithet applied by the brokers’ clerks to that class of females that engage in the fascinating but uncertain game of stock speculations.”).
  7. See Giving Women Stockholders Precedence , N.Y. T IMES , Dec. 1, 1878, at 2; see also Little Schuylkill Navigation R.R. & Coal Co., Advertisement, N. A M. (Phila.), Jan. 8, 1884, at 3 (advertising a dividend for the company to “be paid to women stockholders in person” on an upcoming date).

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Readers may be surprised to learn that some public companies tracked the

sex of their own shareholders and disclosed it in their annual reports. Some

government agencies also tracked and reported on the sex of stockholders in

the early twentieth century, particularly for the manufacturing industry and

national banks. Leading financial journalists reported on shareholders’ sex,

going so far as to conduct investigative reporting. These practices suggest that

business leaders believed that shareholders’ sex mattered —and that information

about shareholders’ sex shed light on business itself.

A. Women Shareholders in the New Century

At the turn of the twentieth century, several government agencies were

tracking and reporting on the gender of corporate shareholders. Both

Massachusetts and New Jersey tracked the gender of shareholders of in-state

manufacturing companies. 69 In Massachusetts, women constituted nearly a

third of shareholders, 70 while in New Jersey, the percentage of women started

lower, at 16.2% in 1900, and grew to 21.4% by 1906. 71

From at least 1897 to 1921, the Office of the Comptroller of the Currency

periodically reported on the sex of shareholders in national banks. 72 In 1904,

  1. See, e.g. , M ASS. B UREAU OF S TAT. OF L AB., THE A NNUAL S TATISTICS OF M ANUFACTURES 1898, at 5, 9 (1899); B UREAU OF S TAT. OF L AB. AND I NDUS. OF N.J., T WENTY -F IFTH A NNUAL REPORT OF THE BUREAU OF S TATISTICS OF L ABOR AND INDUSTRIES OF NEW JERSEY FOR THE Y EAR E NDING OCTOBER 31 ST , 1902, at 18 tbl.1 (1903) [hereinafter N EW J ERSEY TWENTY -F IFTH A NNUAL REPORT ].
  2. Women constituted not a third of individual stockholders, but a third of all stockholders, including trusts and other institutional investors. From 1898 to 1905, the percentage of female stockholders ranged from 31.65% to 33.35%. See M ASS. BUREAU OF S TAT. OF L AB ., supra note 69, at 7; M ASS. B UREAU OF S TAT. OF L AB., T HE A NNUAL S TATISTICS OF M ANUFACTURES 1899, at 81 (1900); M ASS. BUREAU OF S TAT. OF L AB., T HE A NNUAL S TATISTICS OF M ANUFACTURES 1900, at 75 (1901); M ASS. BUREAU OF S TAT. OF L AB., THE A NNUAL S TATISTICS OF M ANUFACTURES 1901, at 53 (1902); M ASS. BUREAU OF S TAT. OF L AB., THE A NNUAL S TATISTICS OF MANUFACTURES 1902, at 54 (1903). These statistics included both privately held and publicly traded manufacturing firms incorporated in Massachusetts.
  3. See NEW JERSEY TWENTY -F IFTH A NNUAL REPORT , supra note 69, at 16 tbl.1; B UREAU OF S TAT. OF L AB. AND INDUS. OF N.J., TWENTY -NINTH A NNUAL REPORT OF THE BUREAU OF S TATISTICS OF L ABOR AND INDUSTRIES OF NEW J ERSEY FOR THE Y EAR E NDING O CTOBER 31 ST , 1906, at 17 (1906).
  4. See Off. of the Comptroller of the Currency, Report of the Comptroller of the Currency, Dec. 5, 1904 , BANKERS’ M AG ., Jan. 1905, at 62, 63 [hereinafter Comptroller Report of Dec. 5, 1904 ]; Ellen M. Henrotin, Women in Finance , N AT ’ L M AG., October 1897, at 51, 53-54 (showing that the Comptroller of the Currency was tracking the sex of stockholders in national banks as early as 1897). After 1921, the Comptroller’s Office issued reports on the national banks that no longer broke out male versus female stockholders. The reports are available online. See Annual Report of the Comptroller of the Currency: 1863-1980 , FRASER, https://perma.cc/5TWU-BPEQ (archived Feb. 12, 2022). Comparing the 1904 and 1921 reports indicates that women constituted 32.8% of national bank stockholders footnote continued on next page

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report stated that officials of the railroad were “said to be considerably alarmed

over the last report which shows that women stockholders outnumber the

men by 5 per cent.” 76 The editors noted that it was “a time when the railroad

would like to have none but the hardest-headed business men concerned in its

affairs, and privately the officials admit that the large percentage of female

holders constitute a menace.”^77

The first major investigative reporting on women’s shareholding appeared

in 1913, when both the New York Times and the Wall Street Journal published

sex-disaggregated data from surveys of the stockholder lists of major

companies. 78 The New York Times study found that more than 40% of

  1. Railroads Fears Women , M ONTGOMERY TIMES , June 30, 1910, at 2.
  2. Id. Another newspaper reporting on the same issue wrote that there was “good cause for excitement” among the New Haven Railroad’s officials “as to what might happen if the women should demand a seat in the directors’ meeting.” Announcements , M T. CARMEL M ORNING REG ., July 1, 1910, at 4.
  3. How American Stocks Are Owned.: Corporations Representing Eight Billion in Capital Give Details About the Holdings of Investors, the Speculative Supply of Stocks, and Amounts Held Here and Abroad. , in N.Y. TIMES , A NN. F IN. REV. AFR4, AFR4 (1913) [hereinafter How American Stocks Are Owned ] (asserting that, from 1900 to 1912, “the number of blocks of stock held in women’s names” among 193 large corporations had “quadrupled”); Owners in Six Companies Increased 12.3% This Year: In Twelve Years Capitalization Increased 81. Per Cent and Number of Stockholders 204.7 Per Cent , W ALL S T. J., Oct. 4, 1913, at 1 (providing data for American Sugar Refining Company, Standard Oil New Jersey, Pennsylvania Railroad, AT&T, and United States Rubber Company); In 63 Corporations Women Own Nearly 166,000 Shares: The Hand That Rocks the Cradle Already Has the Suffrage at the Corporation Polls , W ALL S T. J., Oct. 25, 1913, at 2 [hereinafter In 63 Corporations Women Own Nearly 166,000 Shares ]. Both newspapers had published earlier articles on women shareholders, but those articles provided only ad hoc numbers. See, e.g ., Giving Women Stockholders Precedence , N.Y. TIMES , Dec. 1, 1878, at 2 (reporting that, according to the Pennsylvania Railroad’s assistant treasurer, “probably $500,000” in dividends was paid to women shareholders on a day set aside for payments to women exclusively); Many Holders of Stocks: Shares of Various Corporations Very Widely Distributed , N.Y. TIMES , July 14, 1899, at 1 [hereinafter Many Holders of Stocks ] (reporting that “[a]bout one-half of the stockholders” of Western Union were women; “about 30 per cent. of the shareholders” of Consolidated Gas Company of New York were “women and children”; and that a “goodly proportion of the Harlem Railroad stockholders” were “women, savings banks, and trustees of estates”); Many New Holders of Railroad Stock: Recent Depression in Prices Brought Many Buyers of Railway Securities , N.Y. TIMES , Sept. 23, 1907, at 12 (reporting that the Pennsylvania Railroad had 25, men shareholders and 22,400 women shareholders); 28,000 Women Stockholders: They Own $148,000,000 of Pennsylvania Road Shares—6,117 Since Last Year , N.Y. TIMES , Nov. 28, 1908, at 1 [hereinafter 28,000 Women Stockholders ] (reporting that women shareholders of the Pennsylvania Railroad numbered “about 28,000”); Women in Wall Street , N.Y. TIMES , Dec. 12, 1909, at SM2 (reporting “nearly 25,000” women shareholders in the Pennsylvania Railroad and 104,000 women shareholders of national banks); Country’s Shareholders Show Heavy Increase in 10 Years: Since 1901, Shareholders of Railroad and Industrial Corporations Have Been Trebled , W ALL S T. J., July 29, 1911, at 2 (asserting that “from 30% to 50% of the shareholders of the great corporations are women”); Heavy Gains in Shareholders Are Reported by Corporations: Great Northern Shows Remarkable footnote continued on next page

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individual shareholders in 193 companies were women; women held almost

one-sixth of the companies’ stock. 79 The influx of women to shareholding was

viewed skeptically by some investors. As one explained, the fact that “women,

proverbially poor investors, are now more numerous than ever before on the

stock books of the companies” meant that those companies’ stocks were “out of

the hands that used to protect them in the market.” 80

The next year, the Wall Street Journal published the results of a large study

of stockholders at American companies. 81 At 199 industrial and utility

companies for which sex-disaggregated data was available, women comprised

40% of holders. 82 At fifty-five railroad companies (and one airline), women

constituted 39.5% of stockholders. 83 The Journal ’s data revealed that women

made up a higher percentage of holders at companies with large numbers of

stockholders: At industrial companies with fewer than 500 stockholders,

women were 29.7% of the total, while at companies with more than 2,

Increase and Has 6,263 Women Share-Holders As on List , W ALL S T. J., Aug. 3, 1911, at 1 (reporting that women stockholders at the Great Northern Railway Co. had grown by over 1,000% since 1901); Shareholders of Corporations Continue to Show Increases , W ALL S T. J., Aug. 4, 1911, at 1 (stating that in 1901, Boston Wharf Co. had 50,000 shares of stock that was “largely held by trustees and women”); Corporation Shareholders Now Nearing the One Million Mark: Feature of To-Day’s Installment is Report of Erie Railroad, Revealing 10,000 Shareholders , W ALL S T. J., Aug. 11, 1911, at 2 (“[I]t is estimated that women own 35% of the outstanding shares of the leading corporations.”); Railroad and Industrial Corporations with $9,000,000,000 Capitalization Owned by 873,000 Shareholders , W ALL S T. J., Aug. 31, 1911, at 6 (noting, among other statistics, that “[a]bout 50 per cent of the shareholders of the American Sugar Refining Co. are of the so-called weaker sex”).

  1. See How American Stocks Are Owned, supra note 78, at AFR4.
  2. Of Interest to Investors , 8 INVESTMENT 231, 278 (1913).
  3. See In 252 Corporations Women Shareholders Number 310,000, of Whom 130,000 Are Railroad Shareholders and 180,000 Are Industrial Investors , W ALL S T. J., Jan. 31, 1914, at 8; Tabulation of Corporation Stockholders: Table No. 1 — Railroad Corporations , W ALL S T. J., Feb. 28, 1914, at 8 [hereinafter Tabulation of Corporation Stockholders: Table No. 1 ]; Tabulation of Corporation Shareholders: Table No. 2—Industrial, Public Utility and Miscellaneous Corporations , W ALL S T. J., Apr. 4, 1914, at 6 [hereinafter Tabulation of Corporation Stockholders: Table No. 2 ].
  4. See Tabulation of Corporation Shareholders: Table No. 2 , supra note 81. Data for 1913 shows that women were a majority of holders at sixteen companies, comprising almost 8% of companies that reported sex-disaggregated data: Adams Express (55.0%), American Bank Note (51.1%), American Express (51.1%), American Sugar Refining (52.9%), AT&T (52.5%), Cambridge Gas Light (55.2%), D.L. & W. Coal (50.7%), Eastman Kodak (65.2%), Kings Co. Electric Light & Power (50.5%), Mergenthaler Linotype (53.8%), National Biscuit (51.9%), Newark Consolidated Gas (50.7%), Otis Elevator (52.0%), Pennsylvania Salt Manufacturing (60.0%), Union Natural Gas Corp. (51.5%), and United Fruit (50.2%). Id.
  5. See Tabulation of Corporation Stockholders: Table No. 1 , supra note 81. Women were a majority of stockholders at the Cleveland, Cincinnati, Chicago & St. Louis Railway. Id. Sex-disaggregated data was available for a smaller set of forty companies for 1912; women made up 40.1% of stockholders in that dataset. See id.