Review Essay: Performing Accountability and Corporate Social Responsibility

In 2015, as a capstone to a ten-year program of corporate shaming, a global coalition of activists awarded its Public Eye “lifetime achievement award.” The “honor” for most egregious environmental and human rights violations went to oil company Chevron for its contamination of vast stretches of rainforest in Ecuador (inherited with its acquisition of Texaco) and its refusal after more than two decades of litigation to accept responsibility for cleanup. U.S. courts say they have no jurisdiction, while Chevron is adamant that damages awarded in Ecuador have no legal standing. Lawyers filed a complaint on behalf of the affected communities with the International Criminal Court, but they were rebuffed shortly after the Public Eye award ceremony when the ICC disagreed that environmental damage qualified as a “crime against humanity.”

Who is to be held liable for injustices that do not fit neatly within state borders, lack clear or jailable perpetrators, or affect victims far beyond immediate injuries? Scholars of law, anthropology, and human rights grapple with these questions of accountability in an era defined by the influence of neoliberal reforms, globalization, and corporate power at the expense of state protections, social concerns, and citizen rights. These trajectories are not absolute, however. Nor, the optimists claim, are they irreversible.

The interactions between Chevron, state officials, various court systems, activists, impacted citizens, and the public at large illustrate the complex relationships (particularly since the 1990s) that are the focus of three recent books on corporate ethics (on Public Eye see Coyle in Walker-Said and Kelly, pp. 297-300). These works put legal scholars and social scientists in conversation, if not always in agreement, about whether global corporations must or can reconcile their profit motives and mandates with their responsibilities as social actors. As noted in the editors’ introduction to Corporate Social Responsibility?: Human Rights in the New Global Economy, there are no such things as “marketless societies” (p. 19). Nor, we should add, are there such things as asocial markets. Markets are institutionalized, performed, and localized. Corporations regularly ritualize accountability through compliance programs, audit agreements, and Corporate Social Responsibility (CSR) initiatives. While it is easy to critique CSR programs as unsubstantial window dressing, the books argue from a variety of angles that these performances constitute more than that. They are ongoing negotiations between what are often thought of as distinct realms of capital and conscience, and they have concrete effects.

Together these books tackle what various authors call the chameleon-like, or shape-shifting adaptability of the corporate form as it negotiates uneasy and overlapping relationships between the rules and expectations of the market, the legal system, and basic morality. The question that remains is how the global corporation, an institution in a constant state of flux, can be best directed to create economic growth as well as social benefit, or at minimum to do the least harm.

In Too Big to Jail: How Prosecutors Compromise with Corporations, legal scholar Brandon L. Garrett delves into thousands of U.S. federal criminal cases to reveal the failures of current legal practices to prevent corporate crime. At the crux of his argument is a spike he identifies in the first decade of the twenty-first century in the number of cases ending with deferred prosecution agreements, or DPAs. In these agreements, corporate defendants are granted amnesty and individuals escape jail time in exchange for meeting certain stipulations, such as subjecting to outside audits, bolstering compliance programs, or paying fines. As such, Garrett writes, the government treats institutions not as criminals to convict, but “more like juveniles – not entirely innocent, but mainly in need of guidance, rehabilitation, and supervision” (p. 55). Garrett argues that these agreements are largely toothless, however, and that fines even of millions or billions of dollars usually represent a drop in the bucket of corporate profits. Federal prosecutors, he alleges, have aligned with the dominant market ethic of “shareholder primacy” in which the potential economic effects of corporate bankruptcy are considered more damaging than the identified crime. Not only are corporations too big to fail; Garrett shows us that many also are considered too big to jail.

Garrett builds this argument primarily with quantitative analyses of data he compiled from a decade of federal criminal cases (2001-2012), including court evidence like internal emails, testimony, and the terms of the DPAs. The scope of this data is impressive; he spent years assembling an archive of more than 2,000 corporate convictions and has made the database available online. At the same time, as Garrett readily acknowledges, it is glaringly incomplete. The ‘black box’ of corporate malfeasance is both his inspiration and his greatest frustration. We do not know the underlying corporate crime rate in the United States, for example, nor are civil cases or the details of many agreements publicly available.

Although he does not set out to propose a theory of corporate personhood, Garrett is adamant that institutions, and not just individual employees, deserve to be punished, and that the public increasingly expects them to be held accountable. Without explicitly granting corporations human equivalency, Garrett is clear that they have collective cultures, and that these cultures must be actively shaped for good instead of evil. He believes an effective deterrent of corporate crime necessitates bigger fines, more active oversight, and more transparency. In other words, in the face of power disparities between weakened or underfunded state controls and overriding corporate profit agendas, he prescribes stronger government intervention.

To make this argument, Garrett organizes his chapters around a series of questions, from the practicalities of how corporations are prosecuted to the role the victims play in these cases, and he approaches each question through illustrative white-collar case (such as tax fraud, bribery, or anti-trust violations). The 2008 prosecution of Siemens is central in the book as both exemplary of the complexity of crime in a transnational context, and as Garrett’s glimmer of hope for transformation. Siemens, a global technology leader with more than 400,000 employees, was accused of violating the U.S. Foreign Corrupt Practices Act by paying more than $1 billion in bribes to secure contracts from foreign officials in sixty-five countries. In addition to paying large fines, Siemens agreed to a four-year continuous audit by an outside monitor. In exchange, the company did not need to admit guilt to all charges.

Garrett’s interest in this case is in part attributable to the fact that he was able to interview the appointed monitor, former German minister of finance Theo Waigel, and his U.S. counterpart Joseph Warin after the audit period ended. While much of the book is cynical about the ability of DPAs to effect real change, here Garrett seems convinced of an overhaul of Siemens’ corporate culture, what he calls a “study in corporate metamorphosis on a grand scale” (p. 173). Siemens replaced top executives, expanded its compliance staff, and redesigned its training for managers. The corporation gave Waigel a prominent office at its headquarters to signal the importance of his role (p. 184). It “proselytized” ethical standards and practices to other companies to announce its new character (p. 194). By the end of his term, Waigel concluded there was “no systemic risk” that remained (p. 186). Corporate earnings ultimately rose. But how does one determine whether this transformation is more than cosmetic? In addition to the interviews with monitors who have an interest in showing they were effective, much of Garrett’s material here also comes from the earnings reports, press releases, and shareholder meetings that Siemens authored and orchestrated.

Despite Garrett’s focus on the need to transform institutional cultures, he does little to define what corporate culture means or how one locates it. Beyond a one-page overview of the nebulous concept (p. 57) and a lawyer’s description of corporate culture as “a web of attitudes and practices that tends to replicate and perpetuate itself” (p. 47), Garrett has not set out to tackle theoretical questions of how that web takes shape, how it is sustained, or how is it implicated in power structures. He vaguely suggests the need for compliance programs that reflect “an ongoing process affecting how employees think and behave” (p. 57), but he is most interested, and most successful, in systematically presenting evidence of the court system’s shortcomings to a general audience fed up with powerful corporations benefiting from backroom deals and lenient sentences.

Two edited volumes targeted more directly at academics pick up on what Garrett calls the slipperiness of the global corporation to define the state of CSR studies. Although CSR programs may involve similar tactics as DPAs, such as philanthropic donations or public outreach, they differ in that they are not legally mandated. Rather, CSR is often part of elaborate corporate performances to stave off state intervention or public backlash. The editors of Corporate Social Responsibility? examine the intersection of the “hard law” on which Garrett fixates with the “soft law” of voluntary social gestures. These dual paradigms, which the authors show are more entangled than at odds, place CSR and its ongoing adaptation at the heart of understanding the corporation today as a living social institution.

Of the three books, Corporate Social Responsibility? is the most interdisciplinary, bringing together legal scholars, anthropologists, historians, political scientists, and human rights experts. The volume, edited by historian Charlotte Walker-Said and anthropologist John D. Kelly, originated at the University of Chicago’s Human Rights Program. Although supporting a conversation across disciplines that could lead to real-world interventions is the driving goal, the collection of essays eschews clear prescriptions of the kind found in Too Big to Jail. Rather than reach consensus in their dialogue, these diverse voices – as the title of the book suggests – raise more questions than answers.

Corporate Social Responsibility? focuses on the corporation’s growing role in global governance, and specifically on how its mandates for economic growth do and should interface with progressive human rights agendas. This volume intervenes in a broad literature that more often frames neoliberalism “as a contest between market economies and nonmarket values” (p. 8). The ‘business case’ for CSR would suggest that social issues are only of concern to corporate powerhouses if they benefit the bottom line, as in the reputational form of a ‘social license’ to operate or a more stable economic and political climate in which to do so.

These essays instead complicate understandings of ‘corporate responsibility’ and ‘corporate citizenship’ to dismantle the presumed market/society duality. Rather than consider neoliberalism as abstract economic policy, the authors take a valuable on-the-ground approach that includes case studies of the apparel, mining, oil, and tobacco industries and their operations in diverse locales. The collection as a result “mirrors CSR themes in practice throughout the world, which claim participation in a global movement, but in fact are highly distinctive, autonomous, and require contextualization” (p. 6).

The book is divided into three parts. The first tackles the role of CSR as a corporate strategy, where what critics call ‘empty rhetoric’ is nonetheless transforming expectations for corporate governance. Human rights and legal scholar Peter Rosenblum kicks off the section with “Two Cheers for CSR,” a cautious endorsement suggesting that such programs have “led to some genuine and surprising improvements… even in the face of willing hypocrisy” (pp. 47-48). State regulation, he argues, has not always been a protective force, particularly as it concerns extractive industries. But as Garrett’s work and other authors in this volume make clear, the hoped-for corporate shift to ‘stakeholder primacy,’ in which a range of actors, including workers and local residents, are considered in addition to shareholders, is far from guaranteed. As Rosenblum himself states based on a career working in law schools, “I can only stress how few mainstream corporate lawyers would recognize the stakeholder governance claims” (p. 46).

The other essays in this section follow this more cynical view, memorably illustrated by anthropologist Peter Benson’s investigation of the tobacco industry and smoking prevention campaigns that are ‘choreographed’ to deflect corporate liability and reframe public health concerns as issues of individual choice and parenting instead (pp. 58-59, see also Benson 2012). Similar tactics are evident in other vice industries such as casino gaming and alcohol (Schüll 2012). CSR, the example suggests, allows corporations to position themselves as moral actors and redirect criticism even as such CSR programs are at root opportunist business strategies.

This interface between corporate regulation and ethical behavior is the focus of the legal scholarship that comprises Part II. The chapters specifically interrogate the practical possibilities and limitations of international law to enforce corporate accountability. Where Garrett highlights the far-reach of the Foreign Corrupt Practices Act, the legal analysis in Corporate Social Responsibility? centers on the potential of the Alien Tort Statute (ATS) to hold corporations liable for global offenses. The law, which dates to 1789, was designed to protect against breeches of international law, such as piracy. Human rights lawyers and activists have in recent decades attempted to use this long-dormant law to try perpetrators in U.S. courts for human rights violations committed elsewhere. But the 2013 U.S. Supreme Court decision Kiobel v. Royal Dutch Petroleum Company, which frames much of the work in this volume, determined that Nigerian citizens could not sue Royal Dutch Shell in U.S. court for crimes related to oil exploration outside the U.S., including destruction of property, forced exile, killings, and torture.

Law, like corporate form, is an institution in constant flux, and whether corporations can be prosecuted under the ATS remains unresolved. David Scheffer, former U.S. Ambassador at Large for War Crimes Issues, filed amicus briefs in Kiobel, and in his essay here he is confident that corporations will be vulnerable to additional ATS cases for atrocity crimes. Other contributors are less certain, but likewise maintain that international law is the key domain for enforcing corporate accountability where “CSR has little regulatory bite” (p. 182). Scott A. Gilmore presents an intriguing parallel for legal intervention by outlining the similarities between the social structures of businesses and the military. Executives, he argues, should be held accountable, as leaders are under ‘military command responsibility,’ for the actions of subordinates and for promoting an appropriate group culture. After reading Garrett’s study of the systemic failure of courts to hold top executives liable for their underlings’ crimes, however, Gilmore’s solution would seem to face a number of obstacles.

The case studies in Part III suggest the need for additional tools. The editors titled this section “Africa as CSR Laboratory,” a sweeping and fraught characterization that they nonetheless use to refer less to a blank slate testing ground than to a crucible for generating effective local protections. Given the goal of the volume to break down scholarship ‘siloes,’ Lauren Coyle’s chapter stands out as one of the most interdisciplinary and nuanced of the collection. Trained as a lawyer and anthropologist, she positions the corporation as a ‘shadow sovereign,’ drawing on the example of mining in Ghana. By weaving in local and historical context, Coyle suggests that citizens are primed to see the corporation as the arbiter of social provisions given that until 1986, when the industry was privatized, “the mining company was the most visible, palpable, addressable manifestation of the state government” (p. 302). As one resident vividly explained, “The ghost of the military regime was still heavily with us, hanging over us, somehow controlling our actions” (p. 306). Coyle’s inclusion of community voices from her ethnographic research gives the best account of a complex social drama through which the corporation acquired locals’ land, and adds substance to her claim that in addition to profiteering, the mining corporation plays an ongoing role in ‘world-making’ both for the community and for its own public relations purposes.

Other authors in this section, including Walker-Said, further ask whether instead of pushing the state to reclaim a mythic past role as social protector — a common critical response to neoliberalism’s destructive capacity — it must rather be reconfigured in relationship to global corporations. In accepting that private enterprise is now sovereign, they argue, there are new opportunities for both economic development and humanitarian advancement. Indeed, as a whole, the book is optimistic that CSR, because of its ongoing adaptably, can be shaped to do the most good. While making the best of a bad situation may be a sell-out in the eyes of many activists, the approach fits the goal posited at the volume’s outset to identify practical interventions.

Truly interdisciplinary understanding nonetheless remains elusive, and the editors admit as much in their conclusion. The anthropologists in the volume, Walker-Said and Kelly unapologetically write, “are remarkable … in their ethical outrage,” but

“are clearer that something must be done, than to how to make new solutions work” (p. 340). The lawyers, on the other hand, compromise complexity to resolve practical dilemmas. Policy experts, meanwhile, jarringly write in the final chapter that government officials in Nigeria simply “do not understand” why they need to make their tax policies more business friendly (p. 327). With the exception of Coyle’s chapter, there is limited ethnographic material in this collection that gives voice to the victims of corporate abuses and might more effectively balance theoretical claims with culturally appropriate and equitable interventions.

Catherine Dolan and Dinah Rajak address this gap with The Anthropology of Corporate Social Responsibility, their edited volume of ethnographic approaches to CSR studies. The essays in this collection rest more firmly within disciplinary boundaries, often evoking classic anthropological frameworks (gifting and reciprocity, ritual and performance, and the Melanesian ‘Big Man’) to describe corporate activities and motivations. The collection is less cogently framed or organized, perhaps a result of the fact that eight of the eleven chapters were previously published elsewhere. It is also as a whole more one-note in its critique, demonstrating the many ways CSR works to reproduce inequality and create new geographies of exclusion. To these authors, rather than encourage corporations to change their cultures or positively intervene for humanitarian causes, CSR and other initiatives like ‘triple bottom line’ fit firmly within an exploitative neoliberal context. They reframe community interests to fit corporate priorities, often placing the onus on the poor to help themselves. As the editors put it in the introduction, “corporations use the language and practice of ethics to contain and respond to different kinds of challenges and conflicts generated by their activities.” Key to this activity is “CSR’s immense flexibility to offer itself up as the solution to all of them” (p. 11).

The volume positions itself as the pulse of an emergent field of CSR ethnography, and its introduction provides a sprawling review of the past decade’s work. Through a diverse set of studies, including of oil fields in Bangladesh, gold mining in Chile, and Avon ladies in South Africa, this collection makes a strong case that ethnographic methods can capture the ways global ethics take particular shape within local contexts. The authors treat corporations as moral agents as they track how CSR is enacted and performed from corporate boardrooms to community settings (see also Welker 2014).

A series of chapters address what Jamie Cross in his essay calls the “ethic of detachment” that CSR performs, by which corporations displace responsibility rather than forge new social ties (p. 112). Much as Garrett demonstrates how top executives attempt to pin crimes on rogue subordinates and Benson shows how corporations deflect responsibility onto consumers, Cross reveals a similar strategy in the practice of subcontracting. During a year working as a diamond polisher at an Indian subcontractor of De Beers, he observed how corporations use CSR to distance themselves not only from liability but also from social obligations. As Geert De Neve similarly argues in his chapter on international codes of conduct in the garment industry, inspections, certifications, and audits are all part of ritualized processes by which a corporation’s moral purview is delimited. In Cross’s fieldwork, managers tasked with verifying compliance with international codes internalized this ethic by filling out thick stacks of prescriptive worksheets that distanced them from the complexities of workers’ concerns and “extract[ed] relationships from local contexts of interaction” (p. 124).

Other authors build on Cross’ work to multiply the scales on which CSR is enacted and social hierarchies are reinscribed. Katy Gardner, in her essay on Chevron’s operations in Bangladesh, argues that community development programs and CSR ‘partnerships’ with locals can in fact facilitate the corporation’s withdrawal by promoting ‘self-reliance’ rather than cementing long-term social commitments. In one telling example, Gardner describes the “handing over ceremony” of a “Friendship Bridge” as a public relations stunt intended primarily for a global audience of executives and shareholders, made readily apparent by the fact that the bridge’s plaque was written only in English (p. 137).

Like the law, CSR is not fixed, unambiguous, or uncontested. These three books together make a strong case for reaching beyond the compartmentalized quantitative metrics that profit-driven businesses valorize and court systems reify as measures of corporate responsibility. Anthropological approaches in particular are well suited to investigate how CSR and other accountability initiatives are imagined and enacted on the ground and to understand how social relations and structures of power are shaped and sustained. Treating corporations as agentive social institutions, and not simply collections of individuals, bridges the false distinction between moral and economic action, and can unravel the logics of shareholder primacy holding that businesses owe no debts to the societies in which they operate. Market and society do not just blur together; they are co-constitutive.

Despite efforts to include diverse case studies, the edited volumes, like the Public Eye Awards, focus their attention primarily on the global South and on the most egregious violators of human and environmental rights, extractive industries such as mining and oil. In interrogating the extremes and implicating corporations in ‘crimes against humanity,’ authors bring the mechanics and salience of corporate governance into stark relief. But CSR is just as ubiquitous in lower profile business operations, such as the accounting and pharmaceutical firms that Garrett highlights. Other species of extractive industries, including commercial casinos and private prisons, likewise actively perform their roles as responsible corporate citizens outside of the developing world. As CSR and related initiatives permeate almost every industry at every scale, less extreme cases of corporate malfeasance and business tactics can be equally instructive of the subtle ways the interface of economic and ethical motivations permeate our cultures and everyday expectations.

Indeed the call for further research that these three books make is one that is itself wrapped up in the indeterminacy and constant shape-shifting of corporate relations. Garrett is not alone in his frustration with the challenges of researching the black box of corporate activity. Corporate gatekeepers routinely deny independent researchers access to materials, current or historical, and in-house anthropologists often are barred from disseminating their findings. Ongoing processes of corporate reorganization and bankruptcy, meanwhile, obscure or obliterate archival records altogether.

The uneasy relationship between the law, business, and the university impacts all of these authors. Anthropologist Stuart Kirsch, whose essay “Virtuous Language in Industry and the Academy” appears in both of the edited volumes discussed here, is among those whose ethnographic work has taken him from the classroom to the courtroom as he testified on behalf of communities he studied in Papua New Guinea that were adversely impacted by mining company BHP Billiton (Kirsch 2014). Kirsch found that back home, he still is not beyond the corporation’s global reach. There, his university appointed BHP Billiton as a board member to establish a new academic institute for sustainability (in Walker-Said and Kelly, p. 106). Together, these three volumes make clear that communities, workers, the law, the general public, and scholars will be need to break down entrenched disciplinary boundaries to effectively influence corporate behavior. As it stands, the corporation has more readily adopted the requisite ‘chameleon-like’ performance, enabling its continued capacities for elusiveness.

Chloe E. Taft, Lake Forest College