The Call of Conscience and the Current Moment: A Reflection Honoring William T. Allen and John L. Weinberg

Abstract

This keynote lecture honors the intellectual contributions of John L. Weinberg and William T. Allen on the occasion of the 25th anniversary of the Weinberg Center for Corporate Governance at the University of Delaware. The lecture surfaces common themes in the extensive writings of Chancellor and Professor Allen on corporate governance, and in the singular lengthy writing of John Weinberg, his senior thesis focusing on the critical role of boards of directors in governing public companies. Both considered it critical to educate corporate leaders about their duties, and the relationship those duties had to not just the best interests of the corporation and its stockholders, but to society itself. Both also stressed the need for high integrity corporate leadership, characterized by a commitment to speak with candor and act with independence when that was necessary to do what was right. Both believed deeply in the nation’s commitment to the rule of law and freedom, and believed that principled corporate leadership was vital to ensuring that our society as a whole benefited from a market economy. The lecture addresses these themes and finishes by relating them to the current moment during which fundamental principles Weinberg and Allen accepted as essential to our society are under serious challenge, and the ethical and moral questions this moment poses to leaders of not just business corporations, but of all key institutions in our society.

Introduction

I’m honored to give this keynote lecture before this distinguished audience. The University of Delaware — or the U of D as we old-school grads call it, not the name of the mascot — is my cherished alma mater. To celebrate the generosity of John L. Weinberg in endowing the Weinberg Center for Corporate Governance would be meaningful enough. To add to that, the task of honoring my late dear friend and mentor, former Chancellor and Professor William T. Allen, makes the honor even greater.

With the greater honor, however, comes the greater terror that I may not do justice to them or those who have devoted so much to the Weinberg Center. But the only real failure in life is failing to try in good faith to do your best, and it is in that (very Bill-Allen inspired) spirit that I have prepared these remarks.

In my time with you, I will first reflect on how the vision and spirit of Bill Allen infuses the mission of the Weinberg Center, and others like it, and forged a tradition of close interaction between the Delaware Judiciary and the stakeholders of Delaware business law.

After that, I will examine the similar themes in the singular lengthy writing of John L. Weinberg, his senior thesis, and the more extensive judicial and academic writings of Bill Allen. Both John Weinberg and Bill Allen stressed the important role of business corporations in our republican democracy, and the corresponding need to sensibly encourage other-regarding behavior by corporate leaders and help them understand the serious obligations they owe to not just their corporations, but to our society. Both believed deeply in the American system that had emerged in the wake of the Great Depression and World War II. That system created a regulatory framework where private enterprise could generate prosperity for the many, not just the few — a framework that depended on a strong social compact built on the rule of law and the understanding that with freedom and market power came reciprocal social responsibilities.

Each believed strongly in the role of private enterprise and its value to a republican democracy committed to freedom. But each also recognized that large corporations had to earn that role by conducting business in a manner that was good for society as a whole. Trust and confidence were essential. They advocated the voluntary embrace of good values by business leaders. Not only would that create the best outcome for our nation, it would also reduce the need for more prescriptive governmental regulation and direction of the economy. Put simply, having the license to conduct business through the corporate form was a privilege granted by a democratic society and one that should be repaid by good faith efforts to be good corporate citizens.

I will conclude by relating their thinking to the current precarious and dangerous moment. Both John Weinberg and Bill Allen believed in the rule of law. Both believed that the American system was better than those resting on authoritarian cults of personality or totalitarian ideologies. Stable, fairly and neutrally applied laws, not the caprice of arbitrary power, should set the bounds for participation and competition in our market-based economy.

Both also believed that with economic power came public responsibility. And that responsibility required sticking by your principles and speaking up for what is right. How relevant is that responsibility right now and does it extend to speaking up for the larger project of our republican democracy when its fate hangs in the balance? And if it does, is that responsibility being met?

While you finish your delicious lunch, I’ll address these subjects in order, starting with Bill Allen’s key role in stimulating the Delaware Judiciary’s engagement with the stakeholders of corporate governance and thus in inspiring forums like the Weinberg Center itself.

The Influence of Chancellor Allen on the Weinberg Center’s Central Mission: Encouraging All the Stakeholders of Corporate Governance to Learn from Each Other in Good Faith and With Good Will

In preparing for today, I confirmed something. That was the reality that Chancellor Allen played a leadership role in creating what now seems to be routine, but was then novel: opportunities for business law academics, practitioners like corporate lawyers and investment bankers, and, yes, the judges who decide corporate law cases, to come together in a spirit of mutual good faith to learn from one another.

To check my memory, I reached out to two people special to Bill who are each, in their rights, icons of American business law: Bob Mundheim, former Dean of Penn Law School, former General Counsel of the U.S. Treasury Department, and eminent corporate lawyer and scholar; and Jack Jacobs, Bill’s long-time colleague on Chancery whose incisive opinions as a member of Chancery and the Delaware Supreme Court solidified Delaware’s reputation for excellence in business law.

As Bob and Jack confirmed, it was Chancellor Allen who brought the judges to the table at what became the University of Pennsylvania Institute for Law and Economics. In the 1970s, Bob had pioneered moves in that direction by bringing leading corporate and securities lawyers like Marty Lipton, Art Fleischer, and Stanley Sporkin to Penn for Chatham House Rule discussions with key academics. When serving as Dean in the mid-1980s, Bob sought to expand this tradition and invited Chancellor Allen to a dinner at Penn. The Chancellor brought along Vice Chancellors Jacobs and Berger. The question on the table: might the members of Chancery want to have regular sessions to discuss key issues with leading academics in a constructive atmosphere? The late Michael Wachter, the person most responsible for Penn ILE’s incredible success and who did the most to deepen the ties between Penn, the academic community, and Delaware’s Judiciary, was at the dinner to discuss this idea. So was a young Assistant Professor named Ed Rock. At the dinner, Bill, of course, agreed to Bob’s invitation.

These early small “seminars” — as Bob Mundheim likes to call them — began a now approaching 50-year tradition that has expanded beyond Penn’s ILE, which is still going strong, to the center Bill himself formed at NYU after leaving the bench, and is at the heart of the Weinberg Center’s own mission.

Relevant to the Weinberg Center specifically was Bill’s longstanding view — shared by Dean Mundheim and then-Vice Chancellor Jacobs — that it was not just the broader legal community from whom the judges could learn, but also academics and practitioners from other relevant disciplines, most especially those involved in studying management, corporate finance, economics, and financial markets. Thus, it is not coincidental that the Penn ILE is a joint project of the Law School and Wharton, or that Bill’s NYU Center was a joint venture of its law and business schools. These examples made plain that centering the Weinberg Center within what became the Lerner School of Business made logical sense.

Bill’s intellectual curiosity and desire to understand the best, cutting-edge thinking in academic areas relevant to his judicial work led him to have a national network among leading academics and practitioners. He leveraged those relationships to introduce respected Delaware judicial colleagues to these networks and help them become members of the American Law Institute. The meaningful relationships many of us have had with the academic and practice community while serving on the Delaware Judiciary extend directly from Bill’s example and his personal generosity in helping others build on his legacy.

Bill also understood that by teaching corporate law, sitting judges could steep themselves in the tradition and broaden their understanding of the intellectual and empirical framework within which corporate law cases were decided. Likewise, Bill’s willingness to engage in meaningful non-judicial writing on corporate law was pathbreaking for a Delaware judge and opened a trail that many of us have since followed.

It’s thus fitting that we recognize Bill as we honor the Weinberg Center’s 25th Anniversary. The Center’s goals reflect Bill’s belief that we can all learn from each other and that the better angels of our nature need the unique spiritual nourishment on offer when people of goodwill come together in good faith to build on what we have in common.

Resonant More Than Ever: The Common Values and Beliefs of Bill Allen and John Weinberg

Now, let’s take a shot at a bit of substance. Although Bill Allen and John Weinberg had different backgrounds and careers, they occupied expansive common ground. Of course, a certain creative license must be taken in extrapolating from the one major writing of John Weinberg, but that writing is extensive and can be reasonably read in the context of his father’s words, and his career leading one of our nation’s most influential financial institutions and as an outside director of important public companies. My goal today is to surface some of the shared assumptions of Bill Allen and John Weinberg about how to think about corporate governance and why they viewed high-integrity corporate governance as important to the effective and principled functioning of our republican democracy.

In terms of method, both brought to bear a practical and pragmatic view of policy. Academics ideas for improved policy deserved thoughtful consideration by corporate governance policymakers. But knowledge of how the real world works — including the dynamics of human relationships central to the governance of institutions — had to infuse any theories addressing the responsibilities of business leaders. Thus, both John Weinberg and Bill Allen understood that creating the right incentives for corporate directors not just to apply themselves to their duties but also to be willing to make risky, potentially value-creating decisions under information and time constraints was not a simple exercise. Without meaningful liability risk for failing to act with due care, would outside directors put in the sweat they should? But if liability risk from the after-the-fact second-guessing of law-trained judges was too great, would outside directors embrace new ideas when the economic success would mostly profit others, but possible failure endangered the outside directors’ reputations and personal wealth? For that reason, Bill Allen supported the business judgment rule and considered the tool of liability to be one best reserved for policing director loyalty.

Both Bill Allen and John Weinberg also understood that for-profit corporations did not exist in a state of nature. Their very existence and extensive privileges and rights in the American system rested on the public’s belief that the wealth- and welfare-enhancing role of corporations created the opportunity for a more prosperous and equitable society. In John’s words, “The need for a socioeconomic philosophy for American industry, aimed at benefiting the whole economy, cannot be overemphasized. ….[B]usiness is encouraged by law primarily because it is a service to the community rather than because it is a source of profit to its owners.”

If corporate conduct was untrustworthy, unlawful, or exploitive of society and corporate stakeholders, then the room that corporations had to operate without government restriction might be narrowed and our nation might move closer to economic models where the often arbitrary and self-interested edicts of those wielding government power dictated the direction of the economy and of particular enterprises. In this respect, both John Weinberg and Bill Allen were American patriots who recognized that the ability of our nation to remain free and to be a world leader depended on the economic strength and social well-being delivered by corporations. Each wrote at different periods in our history, but each addressed threats to American pre-eminence that they considered urgent. For John Weinberg, the threat was that the balanced form of capitalism that emerged from the New Deal and World War II would not deliver the shared prosperity necessary to show that our approach was superior to that touted by the Soviet Union. For Bill Allen, it was the need for American corporations to shed the complacency arising from their former global hegemony and to show that they could compete with the emergingly efficient and innovative corporations from — how quaint this seems now — Japan and Germany.

Underlying both their world views was that there remained a distinction between the private sector of business and the public sector of government. The government should set rules of law to ensure that business was conducted in a way that was consistent with the interests of society, but it should not absorb and direct the private sector. Rather, within a framework of neutral rules — call it the rule of law — market forces would direct the flow of capital and the creation of new products. Government could stimulate and could support the creation of new knowledge and economic opportunities, but government should not overstep its bounds and incline toward the kleptocracy that existed in nations where totalitarian and autocratic approaches to economic policy prevailed. There should be private enterprise with a healthy and generous freedom of action.

Bill Allen and John Weinberg did not pretend that their preferred system would persist without continued proof of concept by large corporations with a broad impact on communities, workers, consumers, and the nation’s economy. The privilege of these inescapably social institutions to be free from overly intrusive government regulation and direction had to be earned.

But Bill Allen and John Weinberg had confidence that business leaders could prove worthy of the public’s continued trust. That confidence rested in their shared assumption that there is a larger American identity transcending our political spectrum, an assumption that what we all have in common as Americans far exceeds our differences. That, as citizens of a republican democracy, our American identity was grounded in the rule of law, respect for individual freedom, and a belief that a market economy ought to be fair to all its stakeholders and provide the opportunity for growing prosperity for the many, not just the few.

For all these reasons, both emphasized the importance of high-integrity, well-informed, and active corporate leadership. Corporate leadership that inspires trust and confidence. Corporate leadership that recognizes that a singular focus on immediate profit is too blinkered. Short-term thinking ignored the broader social context within which large corporations function and slighted the need for sustainable, long-term economic growth, net of negative externalities that harm society and act as a drag on real gains in prosperity. As Sidney Weinberg observed: “In carrying out his functions, the director must take the long view and bear in mind the public interest. He must have a social sense and must be continually aware of the human problems involved in decisions of the board. Board decisions affect human beings.”

And consider these thoughts from Bill Allen:

When I consider the role of corporate director in the context of global economic competition, I begin to see the role of outside director as a private office imbued with a public responsibility. In most contexts, the director’s responsibility runs in the first instance to shareholders as the residual risk bearers of the firm, but it also benefits creditors, employees as a class, and the community generally.

Because I do see a director’s role as imbued with some elements of a public or civic responsibility, I see the men and women who accept this responsibility and who do it conscientiously and well, as performing a service to the whole community, to the nation.

Both of them were also stubborn Americans of their time in another way. Both were fundamentally optimistic about human nature and the American experiment. America was not perfect, but it was in the process of perfecting itself and had forged a positive way forward through a global Depression and a second World War. America had not just come out on top in the War, it had provided an enlightened economic model for adoption by other nations, including its defeated adversaries — a model that enabled more widely shared prosperity to emerge from a market-based economy and that used the neutral application of the rule of law to channel international business conduct in a productive manner.

If corporate leaders understood their role, most of them would try to fulfill it. That is what Bill Allen and John Weinberg believed. Although humans are fallible, and subject to giving in to temptation, most of them try to do the right thing, if they know what that is. John Weinberg thus viewed the goal of explaining the proper role of the corporate board as his thesis’s primary objective because that was the one most useful to bringing out the best in corporate directors. As he wrote: “The primary step to be taken is a comprehensive educational program.”

In his extensive writings, Bill Allen stressed how essential it was that those with power and influence in corporations understood their obligations to act in good faith not just toward stockholders, but to all the stakeholders that the corporation’s conduct affected and to society as a whole. “The rules of our organization [i.e., corporate governance] are … vital and the role of outside directors within those rules can, I think — if properly understood — contribute to the long-term vitality of our economy and the welfare of our people.”

To this point, both focused on corporate directors as particularly responsible for corporate integrity. The role of outside directors — or the concept as it has evolved — independent directors — was to bring to bear a more objective, selfless perspective. By asking difficult questions, ensuring the creation and evaluation of quality information, insisting upon a rational decision-making process, and supporting management in its difficult duties, independent directors could add value.

Ensuring corporate integrity depended on corporate directors, and their advisors, acting with a word that was fundamental to Bill Allen and to John Weinberg’s father, Sidney. That word was independence.

There were larger things than lucre or going along to get along with a powerful CEO or controlling stockholder. The responsibility to speak up and act independently was at its most urgent when failure to do so would dishonor the legitimate expectations of society — as reflected not just in the letter of the law, but in accord with its animating spirit and requirements of ethics. For Bill Allen, corporate advisors who were lawyers had a special duty to the system of justice itself — in other words, to the rule of law. For all doing the socially important work of governing large corporations, there was a duty to exercise good faith judgment “independent” of their own self-interest. Or as Sidney put it, “[I]f the chief officers of the corporation do not want me to speak my mind, they should not have invited me to be a director. If they insist on a policy of my silence, I will resign and publicly say why. Above all, directors must be independent.”

In advocating for corporate leaders and advisors to embrace their larger obligations, Bill Allen and John Weinberg were not trying to overturn the existing framework within which business operated, they were trying to improve and thus preserve it. Although Bill Allen was an excellent, deep corporate law judge, he was not engaged in a project of innovation. His deeper project was preserving long-standing principles of corporate law by showing how their proper application to evolving market developments remained the best policy. Bill viewed the courts as a necessary, important, but constrained, part of an overall accountability system. Ideally, the need for judicial involvement to overturn a business decision would be scarce, and that could be made more likely by encouraging business leaders to remember their duty to act in the best interests of the corporation, its stockholders, and the society that authorized the corporation to operate.

Bill Allen was sensitive to not just the reality of integrity, but the perception of it. He believed that independent directors and corporate advisors could address conflicts of interest and ensure that they were resolved in a manner that advanced the best interests of the company and its disinterested investors. But, because trust is essential if societal institutions are to be respected, Bill Allen also stressed the need for corporate leaders and advisors to avoid structures and behavior that raised legitimate concerns that conflicts of interest were influencing corporate decisions and policies. If corporations inspired confidence, a virtuous cycle would ensue where more corporate leaders did the right thing and there would be less need for government regulation or judicial second-guessing.

Both Bill Allen and John Weinberg wrote in an instructive, but not preachy or prescriptive manner. As Bill himself said, he felt uncomfortable making one-size fits all pronouncements about the right way to approach diverse, often grey, and ever-changing business circumstances.

That was not, in his view, the proper role of a judge or likely to be good policy. But he did feel the confidence to express, at a high level, certain normative best practices that flowed out of his understanding of the duties owed in particular circumstances. Thus, if a special committee was charged with getting the best price and a fair deal from a controlling stockholder in a negotiation, it must be free to choose its own advisors and be willing to displease the controlling stockholder by saying no to a suboptimal transaction. If a person took on the important duty of being a director of a public company that may only conduct lawful business by lawful means, then that director must make a good faith effort to ensure that the corporation complies with the law.

The fundamental principle, and singularly important best practice, animating the writings of Bill Allen and the Weinbergs was this: corporate leaders have a responsibility to try to do the right thing — and to stand up and be counted when necessary to achieve that end.

Put another way, they called on business leaders to recognize their special responsibilities as citizens in our republican democracy. As Sidney Weinberg wrote: “The director has obligations to all stockholders. Beyond his legal duties, he must recognize the broad social responsibilities he has to the general public and to the country.”.

With greater power and influence comes correspondingly greater responsibility. If business leaders and their advisors took that obligation on board themselves, then our republic could flourish, confidence in business would grow, and the blessings of prosperity could spread more widely. Bill Allen believed that most business leaders cared deeply about their reputation and whether the communities in which they wielded influence respected them as good citizens. In his own words: “[F]or the most part the men and women who sit on the boards of our public companies want to do the right thing in that job. They want to deserve the respect of the community from which they are drawn.”

Some other important words besides independence were integral to the high-integrity leadership called for the Weinbergs and Bill Allen. Character, courage and candor, all of which depend on a well-developed conscience, were essential attributes of principled business leadership in our society. There will be times when doing what is immediately most profitable and less personally painful is the wrong thing to do. Leaders of any kind in a republican democracy cannot avoid the need to speak truthfully and to earn the trust of their stakeholders and community. And acting with the required integrity when it matters would not always be easy; it would require being willing to do what was right when that was unpleasant and contrary to immediate self-interest. Consistent with his Catholic upbringing, Bill Allen recognized that even willing spirits could be failed by the human flesh, and that departures from responsibility could be motivated by many emotions, not just greed. Fear, resultant cowardice and a desire to placate or be close to power are among the weaknesses that can lead all of us to stray from doing what is right.

That very human insight of Bill Allen’s, alas, cannot but bring to mind the current moment.

Conscience and The Current Moment

Within recent memory, many business leaders said that it was the right thing to do to admit our moral responsibility to overcome 400 years of racial discrimination against black Americans. Within recent memory, many business leaders embraced the rule of law, the bipartisan, independent structures of the key institutions set up to regulate the economy and business, and the absence of corruption as vital ingredients to our nation’s economic success and world leadership. Within recent memory, many business leaders argued that government should be careful not to “pick winners and losers” by directly subsidizing or meddling in the affairs of, much less becoming owners of particular market players. Within recent memory, many business leaders admitted that the facts — let’s call it science — demonstrated that human-caused climate change presented an existential danger to the world’s economy, stability, and Earth’s livability. Within recent memory, many business leaders pledged not to give corporate funds to candidates who failed to denounce a violent insurrection against our democracy.

No one made these corporate leaders voice these views. They did freely so as elite members of an important class of Americans with a profound social responsibility.

When they spoke on these issues, business leaders said it was the right thing to do. That they were speaking out as a matter of principle. That doing the right thing was what made long-term business sense.

As we meet in October 2025, the facts underlying those beliefs have not themselves changed. But many of those stated beliefs have been either outright reversed, diluted to mocktail form, or swallowed by those who gave them voice. Beyond words to actions, many corporations have reversed their corporate policies addressing these issues. What legitimate factor has led to so many reversals in position by so many in so short a time? More broadly, why are leaders of important societal institutions stifling their voices as the foundation of our republic is being systematically undermined? Is it because government actors are using their powers to coerce private enterprises and deprive them of their legitimate freedom to make their own decisions?

This moment calls for the principled leadership that Bill Allen and John Weinberg called for; what we are seeing is its opposite. Much more than short-term stockholder returns are in the balance now. I could make my own list of what is at stake and so can you. The current moment does not involve the ordinary policy back-and-forth expected in a free society. It involves a deliberate effort to undermine the foundations of genuine freedom, which rest in the idea that those who wield power must do so in a manner faithful to the law and respect the rights of those they have the privilege to provisionally govern.

The republican democracy and free enterprise system that both Bill Allen and John Weinberg accepted as the foundation for their writings hangs in the balance. The leaders of universities, the legal community, and business face a mirror test in this moment — as do the various organizations that typically claim to speak for them collectively. Stand up for shared values that virtually all Americans — yes, virtually all — embraced within recent times or face their loss. It took centuries for our nation to come closer to its stated founding principles, it will take far less time for us to lose our moral and ethical moorings.

As we reflect today on the writings of Bill Allen and the Weinbergs that call on the leaders of institutions to understand their larger obligations, to accept responsibility, and have the courage to do what they believe is right, the urgency of the current moment cannot go unmentioned. We cannot pretend by our silence that this is a normal moment. If we do, we are complicit with those who seek to undermine the foundational values that Lincoln reminded us of at Gettysburg. If the American experiment is worthy of enduring respect, it is because we all strive, however haltingly, to make those values a reality for all our fellow Americans. If the American experiment is worthy of enduring respect, it is because no man is above the law, and everyone has the law’s equal protection. If the American experiment is worthy of enduring respect, it is because it enables all of us to be secure in our freedom and not fear that those privileged to hold office can wield arbitrary power over us during their limited terms.

Will we do our part to show that Bill Allen and John Weinberg rightly reposed confidence in people like us? What say we?

The American experiment is in grave danger right now. The mirror test is one each of us must face right now. Will we be counted? Doing it in isolation is far more difficult. Will we pull together and pass that test?

The full keynote lecture is available here.

The views expressed in this lecture are solely those of the author in his individual capacity and not those of any organization or person with which he is affiliated.