Introduction If you picked up this book, opened it to this page, and started reading this sentence, chances are you are a person. My assumption in writing this book is that its readers would be persons, i.e., human beings, actual flesh and blood people. I figured you might be a student, a professor, a lawyer, a business executive, a policymaker, an activist, or any other person who is interested in the role of corporations in our society today. What I did not contemplate is that the reader of this book would be a corporation. Yet corporations are people too, or so the law says. As legal persons, they can conduct activities in and out of the marketplace in much the same way human individuals do. Corporations can enter into contracts, buy and sell property, sue and be sued, and make claims to some of the most fundamental rights guaranteed to all persons under the Constitution. Why shouldn't I assume that a corporation as a person can pick up this book and absorb its contents? A corporation cannot read, yon reply; it is not a real person, its personhood under the law is a metaphor. But the corporation can speak, according to the United States Supreme Court. Indeed, its speech is entitled to First Amendment protection. And herein lies one of the most perplexing dilemmas in American law. The corporation is not a flesh and blood person, but it nonetheless seeks to be regarded as a person with all the legal rights that pertain to personhood. Courts over time have allowed corporations to be treated in much the same manner as human persons, but the justifications for doing so have not always been consistent nor clearly articulated, revealing a deep ambiguity over the idea that corporations are fellow persons in the eyes of the law. The personhood of corporations has always been a vexing puzzle for legal scholars, but in the last few years the dilemma over corporate personhood has moved well beyond academic circles and has become a controversial topic among wide swaths of the American public. Perhaps the surge of interest in the subject can be attributed to recent Supreme Court decisions that have extended corporate political speech and religious exercise rights in unprecedented directions. For example, in 2010, the Court in Citizens United v. Federal Election Commission upheld the First Amendment right of corporations to use unlimited coq^orate funds Introduction 3 Corporate Personhood to support or oppose candidates in political elections.1 In 20,4, the Court in iW ■mbbyUbhy Stores, Inc. jleld that it is a violation of a corporation's right to "•'•gious freedom to require the company to provide employees with access to contraceptive methods that the corporation finds morally objectionable based on J? pnnciPles'2 Most ^cently, in 20,8, the Court in Masterpiece Cakeshop, • Co/or^o CM Rights Commission upheld on very narrow grounds the right f a bakery business owner to refuse to bake a wedding'cakc for a same-sex couple ecaiisc of his religious objections to same-sex marriage.5 'I'lie nation engaged in 'rated debate over these cases, questioning whether corporate entities can and s lould have the same status as human individuals to claim fundamental free speech and religious exercise rights. Hie very notion that corporations can be persons under the Constitution has sparked outrage among a significant portion of the general public that believes corporations should not share the same constitutional rights of human beings-When former presidential candidate Mitt Romney famously stated, "Corporations are people," at the Iowa State Fair during his 2011 campaign, he found himself in the center of the corporate personhood controversy.4 Someone in the audience immediately shouted back, "No, they're not!" Romney replied, "Of course they are. everything corporations earn ultimately goes to people. Where do you think it goes?" Romney's point was not that corporations themselves are persons, but that corporations are essentially collections of human individuals whose financial interests arc always at stake. Nonetheless, his statement drew widespread ridicule and scorn from opponents who accused him of equating corporations with real persons and presumably revealing his bias in favor of large corporations. As the Romney incident demonstrated, the concept of corporate personhood has touched a nerve for many people who question the legitimacy of corporations' status as persons under the law. When the Occupy Wall Street movement began to pick up momentum in late 2011, angry protesters waved banners that read "lind Corporate Personhood" and "Corporations Are Not People."5 These slogans symbolized deep discontent over social and economic inequalities perceived to be the result of the Citizens United v. FKC, 558 U.S. 310 (2010). Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 5 Masterpiece Cakeshop, lid. v. Colorado Civil Higlits Comm'n, 138 S. Ct. 1719 (2018) Pliilip RucVer,Mitt Romney Says 'Corporations Are People,'Wasii. Post (Aug. 11,2011), www.Washington ]»st.com/politics/milt-roinney-says-torporations-are-]«ople/20i]/o8/ii/glQABw''/38I_sto7.htiid [https:// pcrnia.cc/6Ll'6-BE5C]. loel Baton, Psychopaths, inc.: On Corporate Personhood, in Tin-: Occupy 1 Ianijwxjk 353,354 (Janet Byrne ed., 2012) (noting sign at an Occupy protest reading "Wc the I'eople, Not We the Corporations"); Jim Hightower, Organize in 2012, Other Words (Jan. 9, 2012), littps://o(lierwords.org/orgaiiize_in_:or2/ [https://perma.ccAV332-Pl.99] (displaying photo of Occupy Wall Street sign reading "Revoke Corporate Personhood"); Mark Trumbull, Can 'Occupy Wall Street' Really Get Money out of Politics?, Ciimsiun Sei. Monitor (Oct. J4, 2011), www.csinoiiitor.com/USA/I'olitics^oii/iOLf/Can-Occiipy-Wall-Street-really-get-money-out-of-politics [https://perma.cc/A2XT-D8U)] (displaying photo of protester holding a sign reading "Knd Corpurate Personhood"). growing dominance of corporate power. Many people began to connect corporate personhood with tlve corrupting influence of money in politics and the widening gap between the "haves" and the "have nols." Several activist organizations launched a popular movement to amend the Constitution to establish that the expenditure of corporate money is not equivalent to political speech and that human beings, not corporations, are the only persons entitled to constitutional rights.6 Numerous federal and stale lawmakers, responding to pressures by their constituents, have openly expressed support for such a constitutional amendment to abolish the personhood of corporations. It is abundantly clear that corporate personhood is a significant issue that no longer occupies the attention of legal scholars alone, but has become a topic of considerable concern for many average Americans who decry "big business" and the overbearing influence of "corporate America." My interest in the concept of corporate personhood began almost twenty years ago when I wrote a law review article on a federal rule of evidence called the character evidence rule. Under that rule, evidence of a person's character generally is not admissible in court to show that the person acted in conformity with that character on a particular occasion.7 It is deemed unfair, for example, to present evidence of a person's prior misdeeds to prove that the person has a bad character and therefore must have committed the crime for which he is currently being tried. I wondered whether the character evidence rule applied to corporations in the same way it applies to individuals. I questioned first whether the corporation is even a "person" capable of having character for purposes of the character evidence rule, and second, even if the corporation could be regarded as a person, whether it could actually possess a "character" of its own, independent of the individual members of the corporation. After considerable research and thought, I answered both of those questions in the affirmative, but I ultimately concluded that the character evidence rule should not apply with equal force to corporations because they do not have the same moral status as human beings.8 My ideas were tentative at the time. I recognized even then that corporate personhood is complicated and that clear-cut conclusions about its implications were elusive. For me, the inquiry I entertained in that law review article was the start of a decades-long interest in understanding more broadly what it means to say that a coqwration is a person and why it matters. Over the years, I have learned how intractable the debate over corporate personhood is, largely due to the multidimensional nature of the topic. In the past, the subject of corporate personhood was of interest mainly only to a small group of legal academics who argued about the essentia] nature of corporate bodies. " Move to Amend'* Proposed 28th Amendment to the Consult,lion, Move to Amend, MlpsJ/movetoa mend.org/we.hepeopleamendment [https://perma.cc/5AFB-5KVM]; The ArnenJm«nt,f ree Speech tor People, https://freespccchforpcople.org/tlie-amendment/ [https://pem1a.ee/YG7H-YMU |. 7 See I'm. R. Evil). 404(a), ., 8 Sec Susanna M. Kin,, C/.c^clerfstics of Soulless ZVrsom: The Applicahihty of the Character Entfern» Rufe to Corporations, 2000 U. III. I,. Rev. 763. 804-08. Howi our Corporate Personhood wever, with corporations playing an increasingly more visible an 1 ^ enters1 ^ global society, 1 have watched as the corporate personhood toPl^.ng number5 ° public consciousness and become the source of dismay among &ro^.^^ corp°ra people. Some of the most provocative issues today arise in cases 'nvo^te raC;al idei»M| tion and free speech rights, corporate religious freedoms, and corpora ^ ^ t],a To the extent a corporation can be considered a person, how far W ^ ^ entitle10 the corporation then has its own speech, religion, and race, all of wl»c 1' -pi0n\ th4-some measure of respect? These are pressing issues that defy easy ansV"ost signir>ca0t United States Supreme Court's sharp 5-4 division in many of tl»e ^ divided as tlie recent corporate constitutional rights cases, it is clear th"1-lU" rest of us on these contentious topics surrounding the Mainstream presentation? ~t - !ear that the Court is as divided 1 Mamstream presentations of T SUrrounding the legal status of corporations ™P»"*c. People have a2 0t« Personhoodlnd to be binary and 6^ IT ^ borate person? to >l»np quickly into "for" or "against" camp- lf.rl no ------n,nt;nn: vou acccp If you W J "dve a tendency n„j , IP°rate Pcrsonlm^ 1 'i'MU'ckiv into "tor" or ag"»"» - -. ndemb he P 0 >ood you are regarded as pro-corporntion: you wL T °PP0Se c-Pora 2:atf ^ *"> the exercise of corporate power 'ainentthefin,r,;„„L. J dte Personlmnrt ..„...... -oration:y011 t ul corporate rights and the exercise 01 orp0rat»°lV } t(,t society. If you oppose corporate personhood, you ate viewed as an ' jenia0d gtca f_ lament the dominating presence of corporations in society and y°u s-mplistic 'n corporate accountability rather than htoad corporate rights. 'I bcse j comP^eX1 pretations and binary positions do not take into account the nuances. ^ corp0' ite personhood. If pressed, most people would likely say tl^YN ^ filling ; treated as persons in some situations, but not in all. Yet 1 VV :one or some.uV<"~ , — rill Persona m inn». ■. " 1 ""Liiu iiKciy say in^y "---- - ., ncwT ľ » P 0S'tUatÍ°"s'b«>t ™t in alí Yet if w'e are willing ^ 1 ul Í ľ t0 UnclerSt^ wl attľ° l0nS« a Person when the context change, n C \ :fleVant in ««bin eire ,ľ P°ratc Pers°nliood means and why it can or WC ;? r ,.»ucLStand what corpora should be relevant in certain circumstano One of the reasons it is so difficult ^ because ih» wo ten ood."' .^yiauon," ortlic"corpo^ „cOtp0ra : nature of the firm. The root of ^c w0 3rd corfmv —1 ■ ' liood means ar t0 '"aké sense of corporate personhood is fiat them<„l„„.....„..t„„„1!n:irily com- ■-ness" hZX COnCept C-bineS^ to -se ot corporate perso, th ob eT0rf °n and'P--nl.ood»-n 'thcmsel- extraordinarily corncob*,,, ref tQ the c ,dlurhcf corporation," or the "corporate—" °f t'on comes from tl,e Latin u,„ J^ °f firm. Th,......f^Lriu> • ■-^ ^»e«'ve nature of the firm. , ne root ot the wow tion" comes from the Latin word corpus, which means "body." The C J c0l-rcprescnts the unified body of human individuals who together comp°sC t0 lective association operating as one. This idea of many people coming t»gc form one person has always created tension and dichotomies in the law. Wc to define exactly what a corporate body is. h it simply the aggregate of in«lV1 who contract with each other to utilize the firm for their mutual benefit? Or is ^ entity, once created and thriving, that becomes something larger than the sum ^ parts, taking on an identity and force of its own? If the corporation is mcre y' j aggregation of its human participants, then the "rights and duties of an incorp^aalKi association are in reality the rights and duties of the persons who compose it, & Co 0 .Victor Momwe^ATM*™kon™ id cd 1886). Morawetz wrote that it is 'self-evident that a corporation is not 111 ready 1 Introduction 5 the law should be structured to protect their individual rights and hold them directly accountable. If, however, the corporation is an independent entity, separate and apart from the individual shareholders and employees (who can come and go without changing the structure and identity of the corporation), then the rights and duties of the corporation may be fundamentally different in kind from those of its individual members.10 In that case, the law should allow the entity itself to exercise certain rights in pursuing its own goals and likewise be held accountable for its actions. This tension between the "aggregate-ness" and the "separate-ness" of the corporation exists in all situations involving collective groups, including nation states. When we refer to "America," do we mean the sum total of all individual Americans, or do we mean the national entity that has its own global identity? Can an America exist without individual Americans to act as its members?" By the same token, can there be individual Americans without an America existing a priori?'2 The corporate nature of any association of human beings poses a conundrum whenever we must decide whether the collective should possess rights or bear duties that go beyond those of the individuals who compose the collective. At bottom, these two opposing positions represent the perennial clash between individualist and collectivist conceptions of human beings and their group associations. The individualist approach maintains that the individual is the only appropriate unit of social, political, legal, and economic analysis. The premise is that "society is constituted of autonomous, equal, units, namely separate individuals, and that such individuals are more important, ultimately, than any larger constituent group.'"5 Individuals are always primary; onrologically they exist prior to any group or collective entity. Groups are secondary; their existence and significance arise out of the freely contracted arrangements of their human constituents. This reductionist viewpoint asserts that all group actions are reducible to and redescribable as individual actions. From this perspective, the corporation cannot exist or act without its human members. Those human beings alone are accountable for corporate actions, and they alone are entitled to claim any rights. The individualist approach extols a tiling distinct from its constituent parts, 'llie word 'corporation' is but a collective name for the corporators or members who compose [it]." Id. at 2. lo Orro Gikkkk: Associaiions andI^vv: The Ciassical and Early Ciihishan Staces y (George I teiman ed. & trans., 1977) ("'llie association, or group, is a living entity ... Every group has a real and independent communal life, a conscious will, and an ability to act that are distinct from the lives and wills of its individual members."). " Cf. Patricia 11. Werhane, Pkksons, Klein's, and Cortoraiions 51 (1985) ("Corporations have no reality over and above their constituents, because they are created by and function only because of them."). 12 Cf. Peter I1'. Drucker, Conceit oft] in Corporation 21 (rev. ed. 1972) ("llie corporation is permanent, the shareholder is transitory. It might even be said without much exaggeration that llie corporation is really socially and politically a priori whereas the shareholder's position is derivative"). '! Alan Macfarlane, The Oricins of English Individualism ; (1978); see also May Brodbeck, Methodological Individualisms: Definition and Reduction, in Readings in the Pnuosonir oe the Social Sciences 280 (May Brodbeck ed., 1968). Corporate Personhood individual autonomy, self-realization, and responsibility- It SU^p"„rtiCipri"ls' '"' tions are nothing more than the aggregate of their individua j^^n.'4 colorations' status as independent entities is merely a convcnic" unian act>v1^' In contrast, the collectivist conception embraces a social model o ^l nent *Uci It asserts that human beings arc inherently social. Individuals from t « ^ ^,cy are born are first members of families and groups, anditisinthcseseltiib^ otherS. * learn to identify themselves in im— ~c •> • ■........>uets os tamilies and groups, and it is in these se ^ oUlĽrs- learn to identify themselves in terms of their positions and roles vlS^e;mUlg fr«nl Individuals are always embedded in social contexts and derive their i» ,^j,cy iirc community. Groups are primary; they are an essential part of society ^ulTian naturally occurring human institutions that arise out of the compe a^s0tbe^ tendency to socialize and associate with others. People arc continua > ^ gf0nps into large and small groups of all kinds throughout their lifetime, and inajySis-are basic components of society that are themselves appropriate units o '^rive an An organization as a whole can be greater than the sum of its parts; it can ' .cS identity, a presence, and a life of its own. There are irreducible group level P10^^ and processes that explain group phenomena in terms that cannot be rccles ^ solely as individual actions.'0 Under this view, corporations are real and sepa • entities in their own regard. They can have rights and duties that apply to them r>11 * organizational basis. The collectivist viewpoint suggests that corporations' indepen dence and autonomy demand a measure of respect and restraint from the state. The tension between die individualist model and the collectivist model of lunnai"1 activity is one of many dichotomies or dualities that arc inherent in the corporate form. Tire conflict reveals the problem with trying to define the corporation in unitary terms. When individuals join together in collective arrangements, the group can be described as both a cause and a result of individual intention and activity. The continual paradox of the corporation as both the aggregate of its individual members and a separate entity with its own identity reflects the multidimensional nature of the corporation as a person. Thus, the "corporate" component of corporate personhood is complex and resistant to simplistic interpretations of its meaning. The "personhood" component of corporate personhood is equally complex. What exactly does it mean to be a person? The origin of the word "person" comes from the Latin word persona, which originally referred to the masks worn by actors on a theatrical stage. The one wearing the mask took on a person* and played an identifiable role. Anyone can don the mask. So long as the mask is in place the wearer is deemed by others to be the character he is playing. Persona thus signified an outward disguise, or shell, an empty slot that anyone can fill. ln \c&\ ,cnrimoi m See Christian List & Philip Pettit. Grow tern* Tni; ľossmn.i iy, Urat:Ni AN„ Swuis ^ Agents 5,74 (am) (also icfctrmg to this individualist paradigm as "idimhuilwis.n" or "siugutarism" ' '5 See Robert C. Solomon, Ethics ano Kxckllknck-. Cww.kaikw an|) .mrľrny in buslnkss ^ (1991). Introduction a legal person is anyone the law deems fit to act" under the law and to play a particular role in the legal process. From this perspective, legal personhood is an empty slot into which the law can drop any object, including a corporation, in order to assign it various rights and duties.'7 Many statutes, including the federal Dictionary Act, define the term "person" to include corporations, partnerships, and other associations, as well as individuals.'8 Determining who or what should fit within the legal definition of person has not ahvays been a simple endeavor. It is often mired in controversy and conflict because deciding who counts as a person is inevitably influenced by considerations that go beyond legal expediency. Philosophers and psychologists consider personhood to be the exclusive privilege of those with essential traits such as the capacity for reason, rational thought, free will, self-awareness, or phenomenal consciousness. Religious and moral conceptions ot personhood emphasize the importance of possessing an inner conscience and the capaciiy to discern between right and wrong. Persons are often described as ends in themselves/9 having autonomy and moral rights that must be respected, as well as moral responsibilities for which persons must be held accountable. Political, social, and cultural assumptions and expectations also contribute to an understanding of persons as citizens who have a social and civic identity. They carry the capacities, rights, and duties that foster their meaningful participation in the political process and in the life of the community. All combined, our "notion of person, now bearing both a conscience and a civic identity, [has become] the foundation of modern political, social and legal institutions."10 Given the complexity of personliood, what sorts of living and non-living beings should qualify for personhood status? Debates over the personhood of fetuses, animals, artificial intelligence, and corporate bodies all raise strongly held beliefs and intuitions about the nature of personhood. In these situations, defining personhood is deeply controversial and is closely tied to legal, political, biological, and social conceptions of life, identity, autonomy, citizenship, and equality. To say that a corporation can be classified as a person arguably implies that it carries a certain 17 Richard Tur, The 'Person' in law, in Persons and Personality: A Contemporary Inquiry 116, 121 (Arthur Peacockc & Grant Gillett eds., 1987); see also Jolm Kinnis, Corporate Persons 11: Persons and Their Associations, in 63 Pnoc. AuiSTO'n;uan Soc'y, Suit. Vol. 267,274 (1989) (noting tliat (lie concept of persona as mast corresponds to "the law's carefree attribution of legal personality to anything that figures as the subject of legal relations"); Andrew Vincent, Can Croups Be Persons?, 42 Ri:v. Metaphysics 687, 700 (1989) (The term persona was "easily adaptable for use in the courts of law for those who were 'playing' particular roles (such as, plaintiff) in the legal process."). lS See 1 U.S.C. $ i (2012). The American Law Institute defines "person" broadly to include an individual, a corporation, partnership, government agency, any form of association, or any other legal or commercial entity. See Principles ok Corporate Governance: Analysis and Recommendations J 1.28 (Am. Law !nst. 1994). "> Immamiel Kant, Foundations or the Mutahiysics oe Morals 55 (Robert Paul Wolff ed., Lewis White Beck trans., Bobbs-Mcrrill Co. 1969) (1785). " The Category ok the. Person: Anthropology, Philosophy, History at viii (Michael Carrilhersctal. eds., 1985). Corporate Personhaad .....,~.u«c i-e«on/io«i to oral rig'1 alon J elevated status and is entitled to claim the legal ant' m° ' flt t\,e 1»^ ^og^ { persons. This triggers difficult ethical and moral question ^ ^ thc 0,c< ^,ct o not satisfactorily resolve. Sophisticated philosophical lhc° tc yet a" on,o^Q" value of persons provide insights into these issues but cre^ ^ ^\c\\ a n1o^ complexity. Moral philosophers have puzzled over the cx ci et|,\cahy 30 2 iH°rS can he considered a moral person such that it can be he: t javV. U ^,S,„,,sio(1' -sponsible for its actions, apart from any legal liability under :rson subject to duties to act inn'""-)uld it not hp '■' ......puershavepuzzledoveru^^^ ~m oc considered a moral person such that it can l>c ^ u ^lelvsi° ^ responsible for its actions, apart from any legal liability ^ \o&q3 ^dinS person subject to duties to act morally and ethically, t ic 0,iSf inc would it not be entitled to the moral rights belonging to al PL right to be treated as an end in itself? stiOilS Perhaps there is no reason to entertain any of these ql n0t a ^0fi corporation should be viewed simply as a form of P'01*^^' uic lC tbe,! The corporation is owned by shareholders who are persons, ^ jc pU*sl ^.sC in itself is merely a thing, a tool, an instrument through which real pc ^ ^^b'tf0 financial interests. To view the corporation as a person is sunP ^ypoh10 vi0& anthropomorphism. Human beings have a natural tendency to an ^.jlCS) l1' ^ objects. We like to attribute human characteristics to pets, pCfS°° shapes, and, of course, groups.1' But we should talec care not to press ^ analogies too far. . cate° ^ All thc same, thc corporation does not quite fit neatly or exclusively m ^ hu' of property either. It may arguably be owned by shareholders as their pr°f^ 1 the same time the corporation as an independent person owns its °W epCfs° Scholars who view corporations as social actors argue that corporation a c0rpo1^ with the ability to act intentionally in pursuit of corporate goals, an" . . div^0* tions can form their own identity and character separate from that of ihcif» ^ ^ 3$ participants. The two competing conceptions of thc corporation as pers° fl ^\-if property present another dichotomy within the corporation." The corpora 1 rllliPc dual roles, and as we shall see, this duality causes tension when trying to de the appropriate scope of corporate rights and duties. f the There is also a duality involving thc public versus private orientation ^ 0f corporation. On the one hand, the corporation can he viewed as the Pr0t1 f its the private initiative, private contracts, and private property arrangements ^e human members. They arc the ones who voluntarily come together to for111 ^ J corporation and to utilize it to advance their personal interests. The PurP°S>wi,i the corporation is to further thc goals of the individual members. They re ' - See Steven). 3,««*» & EHse )• °fCoU^ " Cbffccti* EnJiite Are \Ac\y to he Held R«'- —.1». i ne purpose y — '"«ividual members. They reta"1 oee hteven ). Sherman & Elise ). Percy, Vie Psychology 0f Collar ,> ■ „//,v Collective Entities Are likely to Re Held Kra/xmsiMe for the Mi J> ~s/»"»fci!>iy: When and POL'Y 137,165 (2010). 0/ l"d">d- _____me justification for its existence. A private oriu ^atio11' ale sizes the primacy of those who are deemed to be the owners of tbe C°jOI1 js to crC.'s(S the shareholders. For them, the main purpose of the business corpo <■ ^jon c* , p wealth and maximize their returns. That is the reason why the eorp ^xo^° . Proponents ofthe shareholder primacy model argue that the predoini11*1^^ ^ pltb 1 corporation is to pursue profits for the benefit of the owners. In con^< ^rr tl^1 >proach envisions a broader role for u-~ :hicle for shnrot"-11 ^^Trrni Shareh0,t'-S t ttl °r ,hc C°n>oration. It is more tl*» .„>..<. w turther their sclf-intcrcsts. It ^ setV"^c ... .^vcs many important public puqwscs as well.15 It supplies goo eCori°,.i,v to satisfy consumer needs, provides }ob opportunities to workers, tos ^ ^vca 'g growth and development, offers avenues for cntrcprencurship that glVC ^Q 3 se^ individuals opportunities for upward social mobility, and even contrite ^ c ^ of community through philanthropic corporate actions. Under tins vi ^o0l hs> poration exists to benefit the interests of a variety of stakeholders, all o ^v ^,0vi a stake in the prosperity of the corporation.16 The purpose of the corp»ri1 ol0te l"C not be narrowly construed to advantage only its private owners, b"110 ^ fro*11 1S welfare of the larger public community that contributes to and bene success.17 ,orati°n" One of the challenges with trying to isolate the main purpose that corporations can have multiple purposes simultaneously. .^otco^' private interests and conduct activities that benefit the public as well- N ^joH5' there arc many different types of entities that fit within the category of co^0 it---- "4 A ^ C<» . Xi. ^ hood. ' °"rSc/"^'-mc Co„ „' I{- Rw. =5 c ,7-,""'nva'e Uistinclhm M„,,„, 1 "er '> =<> c„. n '„VJ _. Ce/*"»i o/-(/le ,7* I Ht<^48 (,982). LM corporation, 14 Cari»zo L- 'av ^"^""'"m and the Bill ofHig''1*' 4' y-atc Vices (e Virtu*- Discourses of responsibility ci,i' * , v- Howie eT"' Cor/" -oio^, f of tlie c^S,iri--"Ä^-d- Cortomte ,Sovkm,oniy: J«;^' M I.b.ifi^*^ Public welfare ... arc U.« very P»bl.c welfare goal, % maxin.i.i,,™;^^0^ f- "3 (l01^'"J* S«-n"=l>«'««cr Promotes efficient resource allocation e 1"'"'* «^<« i'*"01 '"compatible with these PTotes efficient^"^3 E,""*« "«"»cely« a whole. &» Michael E DeLlTn''0" ""»»ate ' ' ^ "'c "e Corporate lM: Communitarian™ and Z *igllt ><- Ue Sfc ", a" of its ca"^»enc,es, ' md ^""'oc Allocation a'n''older'' shareholders and 1,J- J- Corp. L. 593,4,6-i9 (1993) Introduction 11 all of which have their own unique purposes and objectives. The large, multinational publicly held oil company is certainly a corporation. But so is the small, family-owned, local flower shop on the corner. When discussing corporations, we typically mean business entities that are formed for economic purposes, but the list of organizations that bear the corporate label is much more diverse. The earliest forms of corporations included guilds, townships, churches, and universities. Today, commercial businesses, nonprofit organizations, social clubs, trade unions, political parties, religious organizations, and media companies are all forms of corporations. Some organizations are large, some are small. Some are profit-oriented, some are not. Some are formed to promote specific values or pursue various educational, social, political, or religious objectives. Others exist mainly to advance the financial interests of their founders. Certain entities, such as "B corporations" or "benefit corporations," have hybrid goals to pursue profits while simultaneously producing a material positive impact on society and the environment. Some corporations are highly structured, formalized, complex entities witli thousands of employees and clearly defined group decision-making systems and procedures. They may be so large and have so much wealth that their power is likened to that of political states. Others are simply the alter ego of a single individual owner who performs all the work and calls all the shots, and whose firm is largely just an extension of himself. The wide range of entities that operate under the corporate form exist along a continuum with many different dimensions and purposes.28 The extent to which some or all of these entities can be categorized as persons may depend in part on the type of corporations they are. The plurality of organizations that can be classified as corporations is what often makes society's debate over the appropriate status of corporations so difficult to resolve. People's reactions to questions about the acceptable nature and role of corporations, as well as the appropriate scope of corporate rights and duties, differ considerably when speaking about large public corporations versus small mom and pop shops, or about for-profit companies versus nonprofit associations. Much of the controversy over corporate personhood, corporate rights, and corporate responsibilities tends to involve for-profit business enterprises, and this book will focus attention on that type of corporation the most. But at relevant points the book will also consider the range of various corporate entities in order to effectively explore the many aspects of the potential personhood of corporate bodies. In the context of the business corporation, economic analysis of the nature and function of the corporation has often taken center stage. Theorists have long tried to develop a coherent theory of the corporate firm, and the discipline of economics has made some of the most significant contributions in this regard. In fact, for several decades economic theories of the firm, including the model of the corporation as a "nexus of contracts" rather than a separate person, have dominated legal academic lS See Orts, supra nole 23, at 215-22. 12 Introduction Corporate Personhood thinking about the corporation." Under this model, the corporate person is *> ^ o mat serves as the center of a web of contracts between all the firm's coitftiWc' 3ry gher together to gain the benefit of their bargains with each other. The P tbJs objective of tins corporate contractual arrangement is to maximize profit Fr°ri J "° inudcPentlcn'- real corporate entity exists. Scholars have & 0i e firmTTr ^ both and normatively to explain the t*P> the fi™ and its appropriate purposes and oblieati— '3 .........u.veiy to explain uie ^ ____i^iopriate purposes and obligations. ^ %c2&C The economic model is influential, having stood as the stan < ^cjeflt ■a\i-' paradigm for analyzing the corporation for many years. But it is insl1 q^C5'1 ^t*3 incomplete. It offers too narrow a focus, too simplistic a response to cco^V° what is a corporation? By emphasizing the private contractual elements o ^gO*' ^\ , enterprises, the economic approach describes only one aspect of the ^,11^ entity. It docs not give significance to the many other legal, social, politic3 > philosophical, and moral aspects of the corporation. t0f 'I1ie corporation is not just an economic institution. H a participant in the political system- ^ :-a social n'»— r-.uuuii is not just an economic institution. It is also a legs' jt a participant in the political system; it is an artifact and product of our cm'1 ^ ^ a social presence and identity in ovir consumer world; it is a potential nl0tfj xtf j}V whose actions may be subject to moral praise or condemnation. Wc c«u restrict the corporation to being viewed solely as an economic tool for thc ^ beneficial exchanges of its participants, but the complexity of the corporate . c& such a narrow classification. There arc many faces of the corporate person,3,1 ec ble when viewed through the appropriate km. The disciplines of ^\ ss, political science, anthropology, sociology, psychology. ,:1 ' , and even religion* *l- .., ^assincation. There are many faces of thc corporate person,C' ^ is visible when viewed through the appropriate kns. The disciplines of ^ J} & x& nomics, political science, anthropology, sociology, psychology, organizationally ory, philosophy, moral theory, and even religious studies all have their o^n ° &. ^ lcnses through which they see the corporation. From their respective an^<%0~^-' highlight different sides of the entity, liach has validity, but each in itself >s * cO^ quale to provide a comprehensive view. Taken together, they rcvcal a ^ A plete and meaningful picture of the corporation and its rok in soc- ( ,° -" A primary premise of this hook is that corporate per*- ■ ,ecause it is multidimensional. Discussion. 1povcrishedhern..«°'u- r - —poration and'h?' !hcV revenl a mOfC A . r.....«.y premise of this book is that corporate society.,° • r***roi' that it loses its utility. Each of the chant **' ? bCC°mC S° exPansive length treatment. Space limitations prev ^ ^ b°°k easily mcrits itS 0W" of the literature in any given chapter hn' fr°m suPP1y»«g an exhaustive review in themes and key resources related t^f'1 Pr°Vk'C 3 focuseci discnssion °f ^ °f'! t, b"WI7- ln*»d, I Provide a focuseci discussion oHhe mam themes and key resources related to the issues at hand Tackling the mult, dimensional nature o corporate personhood witlun lhe confines of :1 sing]e book is an ambitious undertaking that will invariably bc subject for ]eaving out certain considerations or disciplinary contributions. I recognize that there are other disciplines as varied as cultural anthropology and theology that offer significant insights mto he personhood of the corporation, but 1 cannot feasibly include an exploration of all of hem. Instead, the hook presents a detailed examination of what I regard as most of the relevant disciplinary ulcories ^ tQ t,,c readcr a good interdisciplinary overview of the contours of personhood as it relates to corporate entities. Chapter i begins with the legal dimension of corporate personhood. The corporation is considered a person under the law with the capacity to act in ways that have legal significance. Historically, three different theories emerged to justify the corporation's personhood status: the artificial/fictional person theory, the aggregate theory, ancl the real/natural entity theory. Under the fust theory, the corporation is viewed as an artificial or fictional person created by the state that grants its charter. Introduction >5 Depending entirely on state law for its existence, the corporation does not belong to the physical world of fact but the abstract world of intangible legal concepts. In contrast, the second theory focuses on the human individuals who make up the corporation. Viewing the corporation as the collection, or aggregate, of the natural persons who participate in the enterprise, the aggregate theory maintains that the corporate person has no existence or identity that is independent of these individuals. This viewpoint eventually served as the basis for the development of the highly influential economic contractual model of the corporation. The final theory makes the claim that the corporation is an undeniably real entity, not an abstraction. It exists as something much more than the aggregation of its individual participants and much more than an approved charter document from the state. The real entity theory recognizes the corporation as an independent collective body with the capacity for group intentions and actions that are qualitatively different in kind from those of its human members. These traditional legal theories shaped and were shaped by the growth of corporations in America during the nineteenth and twentieth centuries. Each conception of the corporate person had its own normative implications for how corporate rights and duties should bc assigned under the law. The legal theories will serve as important reference points throughout the book as other disciplinary perspectives are discussed, hi subsequent chapters, the theories will provide a framework for analyzing corporations' status to claim certain fundamental constitutional rights. The competing legal theories of corporate personhood have not always been determinative of the rights and duties that have been established for corporations. Courts have not consistently relied on any one theory to make determinations about corporate standing in legal cases. Well-known legal realist John Dewey cautioned against reliance on any particular legal or non-legal theories about personhood to make such determinations because he believed any theory could be invoked at any time to support any result one wanted. Dewey instead favored the use of pragmatic considerations to determine whether it is sensible lo extend specific rights and duties to corporations based on the consequences of doing so.'2 While Dewey's indeterminacy thesis had merit, like all the other legal theories of the corporation, standing on its own, his view was also incomplete. In response to Dewey's position, Chapter i defends the idea that it is valuable to consider legal and non-legal conceptions of the corporation. A multidimensional approach to corporations provides a useful, richer understanding of the corporation. Theories of the corporate person may be indeterminate at times, but they are not irrelevant. The mental schemas we have regarding corporations, and the language we use to talk about them, can have effects on what corporations become. The legal language that is employed to describe corporations can have significant symbolic, expressive, and constitutive effects that can animate and reinforce the See John Dewey, The Historic Background of Corporate Lega/ Personality, 35 Yale L.J. 655 (1926). i6 Corporate Personhood Introduction !7 • theme that is personhood of corporations. The importance of language is a ^ introduced in Chapter 1 and revisited in subsequent chapters of the '° onn0od-Chapter 2 turns to philosophical conceptions of corporate P ^s Philosophers have long theorized over what it means to be a person an ^ j,aSize are essential for one to be classified as a person. Philosophical theories .ona]ity a host of characteristics and capacities that range from rationality and '"|(C"essentia^ to consciousness and emotional vulnerability. The point of identifying ^ n0ll. properties of personhood is to justify differential treatment of persons ^ persons for both legal and moral purposes. Whether collective entities 1' . asj,cen tions can be categorized as persons is a difficult philosophical question t ia ^ ^ the subject of intense debate. The topic raises thorny questions about in lV1 group ontology as well as the exclusive nature of personhood. -duals ^ A related philosophical issue involves the moral personhood of indiv" l^ ^ groups. What is required for someone or something to be a moral person. ^^^^^ subject of moral rights and moral responsibilities that go beyond legal enti ^ ^ and legal accountability? Articulating the necessary and sufficient cone i ^ moral personhood is particularly challenging in the context of corP°rat^,,rrn on If a corporation intentionally commits an act that wreaks devastating or a community or the environment, is the corporation subject to moral > -1 ^ condemnation? Docs it make sense for people to be morally outrage' ^ corporation's faulty intentions and actions, or to say that the corl'oratl.0"lUinan bears moral responsibility above and beyond that borne by its individna * ^ decision-makers? On the one hand, we might argue that the corPonlll°.nQn the a person with moral responsibilities because it has no real conscience or soi«- c other hand, it may be plausible to place moral blame on the corporation tor ^ magnified collective acts and intentions that cannot sensibly be attributed particular human member. Jistin-If the corporation is a person capable of making moral choices and ^ guishing between right and wrong, then we would be justified in cXPcCl'nf 'ties, abide by its moral duties to other persons. If the corporation has moral c would it then also be entitled to claim moral rights? Some philosopher prefer to draw a line at this point, acknowledging the personhood of corpora >^ for purposes of owing moral responsibilities, but denying such status to c°n>° ^ tions for claiming moral rights. As Chapter 2 explains, the variety of plnlOSOP cal theories both for and against corporate personhood underscores the cha eng ^ of differentiating between individual versus collective activity for Purp0SCSt,ie moral standing. The ideas that emerge from philosophical inquiry mt0 ^ nature of persons reveal the complicated philosophical and moral dinienS]1° of the corporation. Chapter 2 suggests that personhood may «ist a°"t a spectrum with corporations having a unique form of moral personhood. ^ philosophical understanding of corporate personhood ultimately contnbu c the way we shape the legal rules that apply to corporations. Other dimensions of the corporation's personhood can be viewed through the lenses of additional social science disciplines that are discussed in Chapter 3, including organizational studies, psychology, sociology, linguistics, and political science. Each of these disciplines identifies the corporation as an organizational reality that itself is an object of study and evaluation. Organizational theory conceptualizes the corporation as an independent decision-making entity that is purposeful and intelligent, having the ability to learn and apply new knowledge to accomplish its goals. The corporation is viewed as a living, active entity that is capable of profoundly affecting and interacting with its environment, with the human individuals who are its members, and with the world of people who are external to its operations. The manifestations of personhood that are often associated with organizations mirror those of human persons, including such concepts as life cycles, identity, personality, character, image, reputation, citizenship, and social influence. 'Hie corporate person has the capacity to form a corporate ethos, culture, and belief system that can significantly affect the individuals within it. Group level phenomena in corporations have significant psychological effects on those who are members of the group. Research findings highlight the power of a corporation's culture and climate to influence and direct individual behavior in the corporation. To the extent individuals' values and principles are shaped by their corporate environment, the individuals are in some sense creatures of the corporation, rather than the other way around. As social institutions that cultivate a specific brand identity in society, corporations can have a recognizable persona. Corporations create social bonds with people through their products and advertising. They substantially influence people's attitudes and behavior. Our regular interactions with corporations and the way we personify them in our ordinary discourse reinforces our tendency to regard them as separate persons. In fact, careful analysis of the words and grammar we use in speaking about corporations reveals that their perceived personhood is woven into the fabric of our language. The vocabulary we utilize to characterize corporations affects the way we relate to them as persons in the community. The social dimensions of the corporation's personhood raise important normative questions about the corporation's appropriate role as a functioning member of society. Should the corporation operate predominantly to maximize shareholder profits or should it carry broader social obligations to other sectors of society? Mow should the corporation balance or prioritize its many constituent interests? To whom should the corporation owe its greatest loyalty? The corporation's membership in society as a person is complicated and demanding because we expect it to fill multiple social functions simultaneously. In addition, the corporation acts as a relevant participant in the political community. Theories of political pluralism emphasize the distinctiveness and significance of organizations in society. Certain political philosophies envision organizations as mediating institutions that act as important buffers between individuals and the Corporate Personhood state. Under this view, the corporation as a powerful private institution can become a substantial countervailing force to protect individuals from potentially oppressive government power. At the same time, corporations with their vast resources and power can also resemble state authority and can pose a potential danger to individuals who are no match for corporate power. Corporations are prominent players in the political system. They insert themselves and their money in the political arena and consequently have influence over government officials, policies, and regulation. Whether the corporation's role in the polity is a good or bad thing depends on one's normative vision of the ideal political state, and there is sharp disagreement on that topic. What apparently seems incontrovertible is that the corporation's role in society is not unidimensional, but rich and complex. It is a member of the larger community, but it is a community in itself as well. The corporation's presence in society carries considerable social, economic, political, and cultural significance. That so many social science disciplines each have distinct and substantive insights into the corporation not only confirms the many dimensions of the corporation as a person, but also underscores the deep interdependence of corporations and individuals in the modern world. Building on the concepts discussed in the prior chapters, the next two chapters address the corporation's constitutional personhood, i.e., its standing as a person to claim fundamental constitutional rights. The United States Constitution contains no explicit reference to corporations, but the Supreme Court has held that corporations are persons entitled to claim an extensive array of constitutional rights. The support for these rights has developed implicitly from the many different and evolving conceptions of the corporation as a legal, moral, economic, social, and political actor. Chapter 4 provides an overview of the historical development of corporate constitutional rights. It explains how corporations came to be regarded as persons who are entitled to equal protection rights, due process rights, and many other constitutional protections. The analysis then focuses on three of the most controversial arenas today for legal battles on corporate constitutional personhood: (1) corporate free speech rights; (2) corporate religious exercise rights; and (3) corporate racial equality rights. Chapter 4 examines the extent to which corporations can and should be considered persons whose speech is entitled to protection under the First Amendment. lie chapter critically analyzes the cases and theories establishing that corporate persons like natural persons, have the right to voice their opinions and contribute to the marketplace of ideas. The Supreme Court has held that the expenditure of corporate funds in the political sphere is itself a form of speech and worthy of protection, [he Court's opinion in Citizens United confirming the speech rights of corporations to spend money in political elections intensified the debate over corporate First Amendment rights. The analysis in this chapter breaks down the conflicting arguments regarding corporate free speech rights in light of the diversity Introduction 19 of entities that utilize the corporate form, the wide range of goals pursued by these organizations, and the many disparate reasons for different corporations to engage in speech acts. The chapter suggests that different types of coqxwate persons could be eligible for different levels of speech protection. The multidimensional nature of corporations complicates not only the debate over corporate free speech rights, but also, as Chapter 5 explains, the heated conflicts over other recent expansions of coqiorate rights, including the right of religious freedom. How plausible is it to think the corporation itself can possess and exercise religious beliefs? While it may be acceptable for a church or religious organization to possess certain religious rights, is it equally sensible for a large public company to claim a right to freely exercise its religion? In the Supreme Court's highly controversial Hohhy Lobby case, the Court held that corporations are persons entitled to statutory protection for the exercise of their religious beliefs. As discussed in this chapter, the various arguments for and against coq>orate religious liberty rights reflect competing and complementary aspects of the corporate person. If corporations are persons who can produce their own speech for purposes of free speech rights, and who can form their own religious identity for purposes of religious liberty rights, might they also he capable of possessing their own racial identity for purposes of racial equality rights? There has been significant public discussion about corporate free speech and coqxirate religion, but a lesser known emerging topic involves the issue of corporate race. The extent to which corporate persons may be described as having a race has become an important issue as society becomes increasingly more diverse and race relations grow more complex. Various courts have held that corporations may acquire a specific racial identity that would allow them to assert racial discrimination claims. Chapter 5 explains how corporate persons can be described as having a race that would entitle them to object to racially discriminatory treatment. The chapter discusses at least four different theories that can potentially be utilized to assign racial identities to corporations, or alternatively, to grant standing to corporations to assert discrimination claims even when the corporation is "racially neutral." The debates over corporate race, religion, and speech all seek to determine the extent to which the corporate person can and should be treated like a natural person. As corporate rights have steadily expanded, many people have turned a critical eye toward the idea that the corporation is a person entitled to many of the same rights that are afforded to individuals. Concerns about the consolidation of corporate rights and corporate power have caused some people to argue that the concept of corporate personhood has gone too far. They believe that viewing the corporation as a person with claims to the same rights that belong to human individuals is fundamentally wrong and gives corporations an elevated status they do not deserve. The increasing dissatisfaction with the idea that corporations are persons for purposes of certain inalienable rights has galvanized a popular movement to revoke the personhood status of corporations under the law. 20 Corporate Personhood A book about corporate personhood would not be complete without some analysis of the popular effort to abolish it entirely. Chapter 6 addresses this important aspect of the corporate personhood debate. Recent years have seen dramatic growth among activist groups and community associations that want to amend the United States Constitution to establish that the only persons who have constitutional rights are human beings, not corporations. Hundreds of grassroots organizations have successfully worked to adopt resolutions at the state and local levels calling for such a constitutional amendment. Activists have made corporate personhood the main target of their reform efforts. They argue that corporate power will be significantly reduced if corporations are stripped of their standing to claim any constitutional rights. Chapter 6 critically analyzes the objectives, arguments, and achievements of this anti-corporate personhood movement. It is unclear whether the movement will be successful in its drive for a constitutional amendment declaring that corporations are not persons under the Constitution. However, in the process of trying, movement organizers are starting and continuing a public conversation about corporate personhood that is relevant. By zeroing in on corporate personhood, they have brought into sharper focus a concept that was largely of interest only to legal scholars for many years. Some of those scholars dismissed the corporate personhood concept as being indeterminate and irrelevant. But corporate personhood is a concept that has tremendous s.gn.ficance, whether justified or not, for many people who worry about the scope and exercise of corporate power in the modern world. The movement to amend the Constitution has sparked important discussions about the meaning of corporate personhood and created a broader need for books like this one to explain and analyze its contours. In this regard, the movement has contributed to the important discourse surrounding corporate personhood and corporate power. The book concludes with some closing observations regaining the complexity of the personhood of corporations. It identifies the need to balance various perspectives in deciding how we should view corporations, how they should be treated, and how they should treat us. 1 Legal Theories of the Corporate Person Perhaps the most powerful act of law is to make and define a legal person. A legal person is the subject of legal rights and duties.' Only those who are legally recognized as persons have the capacity to participate in legal relations. Legal personhood has never been a self-evident classification that applies only to living human beings. In fact, one's status as a human being is neither necessary nor sufficient to be a person in the eyes of the law. Non-human organizational entities are treated as legal persons for some purposes, while human beings like infants and mentally impaired individuals are not regarded as full-fledged legal persons for other purposes. Corporations have long been viewed as persons under the law, capable of entering into legal relations, exercising legal rights, and bearing legal obligations. As a person, the corporation has the ability to enter into contracts, to sue and be sued, to own property in the corporate name, and to claim many fundamental constitutional rights. The theoretical and practical justifications for treating the corporation as a person arc varied and have changed over time, reflecting historical changes in the form, purpose, and scale of corporate enterprise. This chapter describes the main legal theories of corporate personhood and explains how these theories shaped and have been shaped by the growing presence of corporations in society. As we will see, different legal theories of the corporation have cycled in and out of favor as political and economic climates for business have shifted. The differing conceptions of the corporation are analytical but also ideological; they are simultaneously descriptive and prescriptive. To subscribe to a particular theory of the corporation - to say that the corporation is x, and noty - often reflects a particular political attitude about corporate activity and correspondingly implies that corporations should be treated in a certain way. Although the various depictions of the coqjoration often seem to contradict each other, each one plays a complementary role in highlighting essential aspects of the multidimensional corporate person. ' John Chipman Gray, The Nature and Sources of hie Law 27 (Roland Cray ed., Macmillan Co. 2d ed. 1921) (1909). 21 22 Corporate Personhood Legal Theories of the Corporate Person 23 CORPORATION AS AN ARTIFICIAL AND DEPENDENT PERSON One of the earliest theories of the corporate person, the artificial person theory, viewed the corporation as an artificial construct of the law.2 According to this theory, the corporate person is simply an abstract legal fiction, created by law and human beings for the practical purpose of facilitating economic activity. It has no real, independent ontological existence of its own. It has no body, mind, or soul. The corporation's personhood is purely instrumental; it is a legal invention designed to enable human beings to engage usefully in commercial relationships. This conception of the corporation has two important components: (1) the fictional element, and (2) the dependence element. The fictional element emphasizes that the corporate person exists in only an imaginary way, quite different from the way in which natural persons exist. As an invisible, intangible abstraction of law, "the corporate body is but a name, a thing of the intellect."3 It has no substantive nature. It does not belong to the physical world of fact but the artificial world of legally created concepts. The "law calls forth the corporation out of nothing, that is, no extra-legal entity exists prior to the sovereign's act."4 In this sense, anything can be deemed a legal person because legal personhood is simply assigned or defined into existence. It is an "empty slot" into which the law can drop any object, whether real or fictitious, in order to give it rights and duties.5 The object need not have any measurable philosophical, moral, empirical, social, or political content, nor does it need to carry any resemblance to a natural person. The law can simply extend legal personhood to anything, including a corporation, when there arc good reasons for doing so.6 In the case of the corporation, its legal personhood serves the practical business purpose of allowing the corporation independently to enter into binding legal relations, to exercise rights and to incur obligations, without the continual involvement of every human member of the entity. "So it is that for one purpose and another, it becomes convenient, if not indeed necessary, to let the individual participants fade out of the picture and to look upon the organization as a unit."? The fictional nature of corporate personhood thus ' Paul Vinogtadoff, Juridical Persons, 24 Colum. L. R„v. m, fo^, (lw). Tim theory ha. been called by many different name,, including 11« ,ble granllne »he riclili^nolia,ily ll)eoiy, ,he artificial personality theory, the concession theory, and „,e llienm!|liral lhcoiy. Ron Harris, The IransplantaUon 0 the Ugal Discos on Corpomlc Personality Throne* From C*tn«in Codificalwn to Bntuk Pohtwal Pluralism and American liw Business, 63 Wash. & Lee L. Rev. 1421, 1424(2000). ' John Dewey, The Historic Background of Corporate Ugal Personality, 3; Yale L.J. 655. 6°7 ('9*)-■> Note, ComtUuUonal fogfcft of the Corporate Person, 91 Yalk L.J. 1641,164511.24 (.982). 5 Richard [111, The Person'm Uw, in Persons and Personality: A Contemporary Inquiry 116, 121 (Arthur Peacocke & Grant Gillelt eds., 1987). 6 See id. at 121 (referring to a case where an Indian idol was given legal personality); see also Arthur W. Machen, Jr., Corporate Personality, 24 Haiw. L. Rev. 347, 350 (i9n) (noting that purely inanimate objects may be personified, e.g., Hie estate of a deceased person, a jury, or a community). 1 Bryant Smith, IxgaX Personality, 37 Yale L.J. 283,288-89 (19*8). serves as an abbreviation, a convenient shortcut, to apply the rules for natural persons by way of analogy to coqwrate organizations. It is clearly a fiction, but it is a valuable one that makes economic enterprise easier for the real persons who are involved. The dependence element of the corporation focuses on the coq:>oration's dependence on the law to create and sustain its personhood. The corporation cannot exist nor have any sort of power without the law's consent. Also known as the "concession theory," it emphasizes that corporations are formed when the government grants approval of their charters, and therefore, the personhood of corporations can be described as a grant or concession from government.8 The classic statement of this view is found in Chief Justice Marshall's description of the corporation in 1819 in Trustees of Dartmouth College v. Woodward: "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it."9 From this perspective, the corporation is a creation of the state. It does not have an inherent essence. We cannot locate the source of its life and power by looking within the corporation. Rather, we must look to the law that exists outside the corporation as the originator of its personhood. The coqioration is completely dependent on a force external to itself, i.e., the state, to create and recognize it. The state also defines the scope of the corporation's rights and duties. The only powers the corporation possesses are those that are granted by the state. "A corporation has no inherent or natural rights like a citizen. It has no rights but those which are expressly conferred upon it, or are necessarily inferable from the powers actually granted, or such as may be indispensable to the exercise of such as are granted."10 Of course, any rights the state can give to the corporation, the state can also take away. The same is true for duties. Any legal obligations the corporation possesses, it possesses by reason of the legal rules that create those duties. This means that every element of the corporation's collective being, including every right and duty, is continually dependent for its very existence on the law that constitutes it. In the final analysis, corporations are whatever the law says they arc, and corporations have whichever rights and obligations the law says they have. This theoretical view of the corporation was consistent with the dominating political role of the sovereign that existed at the time the earliest modern corporations were formed." In seventeenth-century England, the corporate charter was used as a technique by the Crown not only to authorize and recognize corporate entities, 8 'Hie concession theory represents a "top-down" approach that sees the corporation as the subordinate subject of law and of the government that charters or otherwise recognizes it. Kric W. Orts, Business Persons: A Legal Theory ok hie Firm 9-13 (2013). ' 17 U.S. (4 Wheat.) 518,636 (1819). lo Shaffer & Munn v. Union Mining Co., 55 Md. 74, 79 (1880). " Historical antecedents to the corporate form can be traced back to the ancient Roman Republic. See Max Radin, The Legisiaiion of the Greeks and Romans on Corporations (Tnllle, Morehouse fr Corporate Personhood Legal Theories of the Corporate Person 25 but also to utilize their power for the benefit of the sovereign. Granting incorporation was the principal device by which royal power was administered and expanded in the polity. Corporate charters were gifts of immunity from the sovereign to encourage corporations to organize and manage hospitals, universities, religious orders, towns, imperial trade, and colonies. Through these operations, corporations helped the state to maintain order in the community, to care for the population, and to foster the wealth, stability, welfare, and security of the state.12 Corporate charters were granted by special grace of the sovereign, on an individual basis, and only upon a showing that the corporation's proposed project would serve a public purpose or further the interests of the sovereign slate. Obtaining a charter was deemed a significant gift because charters came with substantial privileges, including certain tax exemptions, monopoly rights, rights to land, and perpetual succession. England and other European countries chartered large trading companies, such as the East India Company, the Dutch East India Company, the Royal African Company, and the Hudson Bay Company, to develop foreign trade and colonize foreign lands. Corporations were granted territorial control over specific geographic regions and trade routes, all for the purpose of returning wealth, resources, and power back to the chartering country.'5 The status of these corporations resided in their dependence on the sovereign power that created them. Corporations were essentially an extension of the state. They were artificial instruments owing their existence to the will of the sovereign. It was one such corporation, the Virginia Company of London that established the first English settlement in Jamestown, Virginia, thereby bringing the corporate form to America. Many of the original American colonies including Massachusetts, Connecticut, and Georgia among 0lherS( were corporations char,ercd by the Crown. In colonial America, corporations obtained charters by grants from colonial governors or legislatures, thereby continuing the tradition of viewing the corporation as an art.ficial person created by law as a concession of the government.'4 Once America gamed its, independence, corporate charters were granted by special acts of state legislatures. States typically approVe(] ^ case.1)y.casc basis for corporate enterprises that served a public function and met specific social needs, e.g., public utdit.es, banks, insurers, transportation services, and water works. Taylor Pre,, ro.o); Ronald J Colombo, The First Amendment and the Business Corporation 30-32 (20,5); Henry Hansmann «* al.. Uvand the Khe oflhc K , W>4 (ajo6). During Hie Middle Ages, forerunners of the corporation existed in tl,e form of churches, guilds, mumcipahhes, and education.-, imhlutiom, aB 0f wllidl ^ ^ ^ gr.inlcd by ,Iie sovereign. See Ron Harris, Ini>ustr,alking Kncijsi, Uw: i^fpreneurmhp and Business Organization, 1720-1844, at 16-19 (J°°o). " Joshua Barkan, Corporate Sovereignty: Uw and Government under Capitalism 20-30 (2013). '' Id. at 31-35. '< James Willard Hurst, The Legitimacy or the Business Corporation in tub Law ok the United States 1780-1970, at 15-17 (1970). Lawrence M. Friedman, A 1 IisroRY oe American Law 188-201 (2d ed. 1985) The "corporate privilege was granted sparingly; and only when the grant seemed necessary ... to procure for the community some specific benefit otherwise unattainable."'6 From the state's perspective, the corporation was a tool of the government to further the public welfare, and this was the only satisfactory justification for the corporation's existence. As Chief Justice Marshall emphasized in the Dartmouth College case: "The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration of the grant.'"7 With the charter, states often granted to corporations special privileges, monopolies, and exclusive rights in order to encourage and reward corporations that undertook large and costly public projects, such as building a bridge or a canal.'8 At the same time, state legislatures imposed limits on corporate activity in order to protect the public. Early charters and state laws contained specific provisions designed to prevent corporations from engaging in potentially abusive corporate practices. For example, states strictly regulated banking activity through limited powers granted in bank charters and through strict construction of those charters by the courts.'9 Corporations were often limited in how large they could become, how much property they could hold, and how long they could exist. Sometimes legislatures required corporations to give equal voting power to smaller investors, provide favorable treatment to the poor, or ensure that investors and managers could be personally liable for coq^orate debts. Occasionally, states even regulated the prices that corporations could charge and the rate of return that investors could earn.2" Courts developed the ultra vires doctrine, which prohibited corporations from acting beyond the specified powers given to them in their charters. State legislatures reserved the power to amend or repeal corporate charters in order to retain control over corporate activity. This framework for corporate enterprise was consistent with the belief that incorporation was a unique privilege or concession awarded by the state. The corporation was viewed as a creature of law, possessing only the rights and duties that the law allowed it to have. This conception of the corporation was not incompatible with the expectation that investors would earn profits from the business. Organizers of early corporations were willing to engage in large and financially risky corporate projects precisely because investors sought to make money from the enterprise. However, the profit goal could not overshadow the idea that corporations '6 hwis K. Liggett Co. v. Lee, 288 U.S. 517, 549 (1933) (Ilrandeis, J., dissenting). '7 Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat) 518, 637 (.819). lS Barkan, supra note 12, at 51; Herbert Hovenkamp, The Classical Corporation in American Ixgal Thought, 76 Geo. L.J. 1593,1609-10 (1988). Gregory A. Mark, Comment, The Personification of the Business Corporation in American Law, 54 U. Cm. L. Rev. 1441,1444 (1987). io Martha T. McCluslccy, The Substantive Politics of Formal Corporate Power, 53 Bun\ L. Rev. 1453, 1476,1478 (2006). 26 Corporate Personhood Legal Theories of the Corporate Person 27 were given legal status to serve the ends of government. From a normative standpoint, the artificial person theory supported a public-oriented view of corporate activity. If the corporation is an artificial construction that derives its existence from the state, the logical result is that the corporation is subservient to the state and subject to state regulation in the public interest. The very laws that create corporations can and should also constrain them to act in ways that benefit, or at least do not harm, the public. The artificial person theory of the corporation dominated American thinking about corporate personhood until the mid-nineteenth century. At around that time, states began to eliminate the practice of chartering corporations on a case-by-case basis via special acts of the state legislature. The special chartering process fostered perceptions of political favoritism and corruption as certain businesses were granted charters while others were rejected. Many people believed the entire chartering structure favored wealthy, well-connected business people at the expense of new entrepreneurs. The system was regarded as inherently unfair, tainted by legislative bribery and monopolistic practices.11 It was also inefficient and unwieldy, requiring the state legislature formally to act to approve each individual charter. In response, states adopted general incorporation statutes allowing entrepreneurs to incorporate their businesses freely without individualized grants from the legislature. This legislative change equalized the opportunity for any and all who wished to incorporate their business. "It was cheap and easy to incorporate under general laws - a few papers filed, a few forms and signatures; the privilege of incorporation lay open to whoever wanted it."" The act of incorporation became merely a formality of filing and played little role in the personhood of corporations. The notion that corporations existed only as a result of state concession and only for the purpose of benefiting the public gave way to the belief that the corporation actually owed its existence to the individuals who formed the corporation to further their own private financial interests. The liberalization of the charter system was a factor in loosening the close tie that had previously existed between the corporation and the slate. Corporate charters that had previously contained specific restrictions on corporate structure and activity were replaced with standard charters that authorized corporations to engage generally in any lawful acts. By making the charter freely available, states gave up their demand that the corporation directly provide for the public good. The charter was no longer the strict tool of regulation it had i tarry G. Henn & John R. Alexander, Laws ok Corporations and Oiiier Business Enterprises 25 (3d student ed. 1983); 1 lurst, supra note 14, at 120. "[Legislative discretion over access to the corporate form enabled incumbent firms and their politically powerful owners to block entry by new firms." Eric i lilt, Early American Corporations and the State, in Corporations and American Democracy 37, 72 (Naomi R. Lamoreaux &i William J. Novak eds., 2017). ** Friedman, supra note 15, at 512. previously been. Ultra vires claims contending that corporations were acting beyond their specified powers virtually ceased by the late-nineteenth century because corporations were legally free to do anything an individual could do. With these changes, the artificial person theory of the corporation diminished in relevance since corporations no longer appeared to be mere fictions that were entirely dependent on the state to define the scope of their existence, purpose, and activities. The corporation looked less like an arm of the state and more like a vehicle for individuals to pursue economic ends. The law allowed for limited shareholder liability and perpetual duration of the business. This solidified the appeal of utilizing the corporate form for entrepreneurial endeavors that required large amounts of capital and risk. While the artificial person theory of the corporation correctly describes important aspects of the legal basis for corporate personhood, some scholars believe it lacks viability today.2' It was an idea that was good for its time, but it envisions a critical level of state involvement that is absent now that incorporation is essentially an administrative formality. "The difficulty with viewing the corporation simply as a creature of the state is that the state no longer functions as the dominant force in the development of a corporation's fomi and character."2"1 The artificial person theory may have fallen from dominance, but the normative and political implications of the theory continue to strike a chord with many who want to see the law regain greater control over the corporation. The idea that corporations should be more socially responsible and subject to stricter regulation resonates with those who believe corporations today have been permitted to gain too much financial and political power. The artificial person theory has never been formally renounced, and it is plausible that legislative and judicial authorities could invoke it today to justify limits on corporate activity.25 Opponents of corporate constitutional rights often revert to the artificial person theory to argue that corporations, as mere concessions of the state, should have no legitimate claim to constitutional rights such as freedom of speech or religion. Under this approach, the government "could easily reassert legal control over the structural make-up of corporations" and alter "one or more core attributes of *' See Henry N. Butler & UirryK. Ribstein, The Corporation and the Constitution, at ix (1995) ("This theory had its origin in the early history of the corporation, when corporations were, in fact, created by special charter. The theory has no relevance today, when corporations are freely formed by making a simple filing under general corporation laws."); Colombo, supra note 11, at 99 ("[C]cmccsskm theory Iras long been abandoned by the vast majority of corporate law scholars and commentators."); Michael J. Phillips, Corporate Moral Personhood and Three Conceptions of the Corporation, 2 Bus. I'hincs Q. 435,442 (1992) ("[T]he theory ceased to reflect social reality over a century ago, and ... few legal scholars who theorize about corporations take it seriously today."). 11 Jeffrey Nesteruk, BcIIotti and the Question of Corporate Moral Agency, 1988 Colum. Bus. L. Rev. 683, 687 n.23. *' See Lyman Johnson, Ixtw and Legal Theory in the History of Corporate Responsibility: Corporate Personhood, 35 Seattle U. L. Rev. 1135, 1148-49 (2012) (describing the potential viability of this argument). 28 Corporate Personhood corporate personhood" to limit corporate power and to increase^^ responsibilities.16 The switch to general incorporation statutes may u ^ stiH incorporation virtually automatic for anyone who wants it, but 'nC°^tcr js con-requires a charter from the state, and states' authority to grant a c ^ ,nade comitant with their authority to deny or revoke it. Indeed, efforts have j>c^ to revive the artificial person theory by petitioning state attorney genera jn)inao the charters of corporations accused of serious environmental crimes < ^ repre' rights violations.17 Although these petitions have not been success u > ^ aS sent an earnest attempt to reinvigorate the conception of the corpo eaSj]y a fictional person or government concession that can be terminated 'u^'.ons are as it can be created. Even so, revoking charters and dissolving corpo ^ ,r perceived as such extreme measures that states are unlikely to utilize i the artificial person theory regains some persuasive force. . (iependent The conception of the corporation as an artificial legal fiction that is ^ .{ on the stale for recognition is not an erroneous depiction of the corpora ^ '^:son is an incomplete one. It is true that the corporation has no status as a ^gacorp0ra-unless it has an effective charter approved by the state. In this sense, 1 ^ ierrnjs-\ion is a creature of the law, reliant on the state for legal recognition a^attrii)Utes sion to operate. The law endows the corporate form with special lega ^ w such as limited shareholder liability and perpetual duration. The 'aW.,S_t'?j^lUSj the defining the corporate person, as well as its lights, powers, and duties. ^ ^ personhood of corporations is tied to the state. Yet that docs not > ^e corporations are extensions of the state. While the corporation ^ a government-sanctioned entity, the corporation is not only that. Its 1 ^ n,'any a creature of law is one aspect of its personhood, but as we shall see, there arc ^ other aspects of its personhood that are equally elemental. The art«"c1' me theory is helpful to a point, but "taken alone, is too authoritarian with respe ^ ^ business enterprise"2 and fails to accommodate other important dimensions ^ corporation, including social and moral dimensions. It is understandab ^ artificial person model declined as theorists expanded their view t° ^ ^ additional facets of corporate personhood that went beyond merely i s origins. Id. nt 1151-52, 1158. Professor Lyman Johnson skillfully explains that the "existence of u,lt;xerC', cf [state] power over corporations means the fully emergent corporate 'person' need not he i" el 1 rights or responsibilities legally identical to humans, and corporations likewise need not simpl'5"03 Y be equaled to the institution of business more generally" U. at 1152. , _ 17 See Robert W. Benson, How Many Strikes Do Big Corporations Cct? The Petition to R«™ '« UNOCAL'S Corporate Charter, 55 Guild Prac. 113 (1908); Thomas Lim.ey, Petition to Attorney General of Delaware to Revoke Corporate Charters of WMX Tec/ino!ogißS and Chemical Was e Management inc., 52 Guild Prag. 116 (1995); Thomas Limey, Awakening a Steeping, Clan . Creating a Quasi-Private Cause of Action for Revoking Corporate Charters in Response 0 Environmental Violations, 13 Pace Knvtl. L. Rkv. 219 (1995). Orts, supra note 8, at 21. Legal Theories of the Corporate Person 29 CORPORATION AS AN AGGREGATE PERSON By the end of the nineteenth century, it was clear that the artificial person theory offered too narrow a description of the corporation, and a shift in thinking about corporate personhood began to take place. At this time, general incorporation statutes had completely displaced the method of specialized legislative chartering. With the simplification of the incorporation process, the number of corporations increased dramatically. In 1800, there were 335 corporations in the United States.29 By the time of the first federal income tax in 1916, there were more than 300,000 active corporations.,0 Many of these corporations were small- and medium-sized firms formed by individuals who sought (lie advantages associated with doing business in the coqwrate form. Because general incorporation laws allowed anyone easily to incorporate a business without the heavy state scrutiny that had previously existed, the focus shifted from the state as the authority and originator of the coqioration to the human individuals who incorporated the business for profit. The corporation looked less like a concession of government designed to serve a public purpose, and more like an arrangement between private individuals to pursue their own personal gain. An alternative view of the corporation arose during this time that looked past the formality of creating a legal fiction and identified the real source of the business: profit-seeking entrepreneurs. From this point of view, the corporation was not so much a creature of the state but the product of individual initiative and enterprise. This new approach formed the aggregate theory of the corporate person. While the artificial person theory holds that corporations cannot exist without the state, the aggregate theory emphasizes that the coqwration cannot be formed without the action and agreement of the human persons behind the business. In fact, no corporate acts would ever occur if not for the individuals who make up the corporate entity. It is "owned, managed, and administered by people" and "[i]ts so-called actions are but manifestations of actions by real persons."3' The corporation is seen as a collection, or aggregate, of individuals who contract with each other to utilize the corporation for their mutual benefit. The corporate person has no existence or identity that is separate and apart from these natural persons. It is "self-evident that a corporation is not in reality a person or a thing distinct from its constituent parts. The word 'coq)oration' is but a collective name for the corporators or members who compose [it]."'* All of the actions and intentions of the corporation "> 2 Joseph Stancliffe Davis, Essays in the Earlier History ok American Corporations, 110. IV, at 24 Ibl.i and surrounding text (lawbook Exch. 2006) (1917). '° Naomi R. I.imoreaux, Partnerships, Corporations, and the Limits on Contractual Freedom in U.S. History: An Essay in Economics, Law, and Culture, in Conducting Corporate America.- History, Politics, Culture 29, 34 (Kenneth t.ipartilo & David H. Sicilia cds., 2004). *' Donald R. Cressey, The Poverty of Theory in Corporate Crime Research, in 1 Advances in Criminological Theory 31, 36 (William S. Lnufer & Freda Adler eds., 1989). 35 1 Victor Morawetz, A Treatise oni he Law of Private Corporations 2 (Boston, Little, Brown, & Co. 2d ed. 1886). 3° Corporate Personhood Legal Theories of the Corporate Person 31 arc always reducible lo the actions and intentions of the individuals within the organization. This model of the corporate person is grounded in methodological individualism, the principle that the individual, not the group, is the appropriate starting point for any legal, political, or social theory. "Every complex social situation, institution, or event is the result of a particular configuration of individuals," and the only way to reach "rock-bottom explanations" of large-scale social phenomena is to boil them down to the "dispositions, beliefs, resources, and inter-relations of individuals."33 The aggregate theory retains the fictional element of the artificial person theory; the corporate person is seen as an artificial construct or fiction that is used as a convenient legal shortcut to facilitate economic enterprise. Neither theory suggests that the corporation has a real and distinct ontological existence of its own. Where the aggregate and artificial person theories differ is with regard to the dependence element of the corporation. The aggregate theory rejects the notion that corporations are entirely dependent on the state legislature for their creation; rather, the corporation relics on its human members for its organization and ongoing activity, '['he source and impetus for the corporation are the individuals who agree to aggregate their talent and resources within the corporate framework to pursue their joint ends. 'Hie corporation's origin is traced to these people and their private contractual arrangements with each other, not the state A corporation cannot "be formed by law without the action of the corporators; for the legislature has not the power to create the mutual consent, which is essential to every contractual relation. 34 In this way the aggregate theory reframcs the role of the corporate charter. Rather than characterizing the charter as a government grant, the aggregate model sees the charter as a contnrf Ti 1 „„mhinc to .... "-"""act among the individuals who comoinc w form he business, much hke a partnership agreement When the charter is filed with the state, it is only an ex post registration with the state registrar, not an ex ante plea tor a grant ot sovereign annrovnl ti • i- r.i- i- .n-ide a lot 1 ° s"''PProval. 1 his new hue of thinking matie a iui of sense when the era of free incorporation began in the late-nineteenth century. With the adoption of general incorporation laws, chartering censed to he a significant legislative affair and instead became a perfunctory procedural one. Incorporation was viewed more as a matter of individual entitlement than slate privilege. Corporations appeared to be self-organized firms created by and for their participants. The state's recognition of the corporate person was really just an affirmation of people's natural desire and right to come together to accomplish economic tasks in partnership with each other. From this view, the « I. W. N. Walkins, Methodological Individualism and Social Tendencies, in Readings in hie I'iwjosoniy oi-the Social Sciences 269, 270-71 (May Brodbeck ed., 1968). 54 Victor Morawetz, A Treatise on the Uw of Private Corporations other than Ciiaritam.e 11 (Boston, I.iltlc, Brown, & Co. 1882). / / corporation is "a creature of free contract among individual shareholders, no different, in effect, from a partnership."35 The aggregate theory, also called the contractual or associalioinil theory, is rooted in the right of individuals to associate with one another, to form voluntary groups, to strike mutually beneficial bargains, and to otherwise freely relate lo each other in ways that fulfill their own private interests. These concepts resonate with an "inherence theory" of corporations that suggests that "men have a natural right to form a coqjoration by contract for their own benefit, welfare, and mutual self-interest."36 One aspect of this model involves the right to partner together contractually to form beneficial business structures that allow individuals to achieve joint economic goals and pursue pecuniary profits. Another branch of this model involves a more political core; the right of political and social association. There has always been a deep American belief in the sanctity of association. People have always formed voluntary groups and organizations with like-minded people to pursue shared interests. Corporations, as collections of individuals, can be analogized to other political and social groups in society that are created to enhance the lives, voices, and powers of individual members, such as churches, clubs, and political parties. These groups form naturally out of individuals' private social, political, and economic relationships. The collective entity consolidates and represents the interests and values of its constituents. To determine any rights or duties of the organization, the aggregate theory requires us to look past the organizational form to the individual members themselves. Because the corporate person is really just the sum total of all those individuals, it is not possible to distinguish meaningfully between the interests of a corporation and those of its human constituents. The "rights and duties of an incorporated association are in reality the rights and duties of the persons who compose it, and not of an imaginary being."37 The United States Supreme Court implicitly relied on this view in Santa Clara County v. Southern Pacific Railroad when it declared that a railroad corporation is a person for purposes of the Fourteentl i Amendment, and thus its property cannot be taxed differently from the property of individuals.38 The underlying reasoning was that the corporation's property was essentially the property of the individual shareholders who owned the corporation and therefore should be protected in the same manner. Morton Horvvitz explained that the Court's decision relied on the aggregate theory arguments of the railroad company, and on Justice Stephen Field's reasoning 55 Morton J. i lorwilz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev. 175, 184 (1985). ^ Robert I lessen. In Defense of ihe Corporation 22 (1979). " 1 Morawetz, supra note 32, at 3; see also Henry O. Taylor, A Treatise on the Law 01 Private CoRi'OiwriONS Having Capital Stock, at iv (Philadelphia, Kay & Brother 1884) ("By dismissing this fiction [of the legal person] a clearer view may be had of the actual human beings interested, whose rights may then be determined without unnecessary mystification."). 58 118 U.S. 394 (1886). Legal Theories of the Corporate Person 33 Corporate Personhood in liis circuit court o ' ■ a constitution m a COrPoration hJ terminate if decide to and d3 Pr?Si°n in^e„"0" ^ ft Wo«'<' be a most singular result if rcsuh, the corpora*" ^ 3 "^ber**°',,dcea" to exerted, protection the h«man mem mustbe entitle COrPora"°n."4° To avoid this unfair corpSn ,W°U,d ^ Constit""onal protection that its * * PTop Ulhm:,,elV belongs olen f^dividuo] capacity The property of courts Z 1;, ,S',n fact '0 Cv !, 're,,0k,Urs- 'To deprive the corporate compl;; t,hr°"^ 4e idea, CP„1C ''e, ^tors of the!r property . . [Tjhe corporate richt, r Pr°tcct t!^m p "I""0 of t!)c coloration to the persons C«hhn normatPr°tCCt B,e tith™ persPec,i^ the law must uphold tio" Md its f0C(ls 7 lmplicahons flow J persons beJ»'nd the corporation. "SMed as thc '^"als. ,t " W'e aggregate paradigm of the corpora-corporation; J ™ct "Wate initia?v, , °"ly that corporations shoM be ,aws"°uhlbeview^ 1510 serve as a Ve, . , 35 P" We ]avv> nQ[ J and private contract, and that corporate Weall«. and to accoLIT. «0 „„ ' *,UW- Tile Purpose office corporation ^orations to selLJ ,C,r°Wn crests, to maximize their P"b,ic or cornrrmjJ"1 3Ct a* eXren!;„ Entrepreneurs do not form WeaIt'Uimejabor iu1"15050'5- Corporal- hcita'e '° Promote generalized sen«'ng, derivatively ,1 °w!edge in a b parficiP''nts who invest their own a sponsoring govern™ ^ °w" »uerests "css enterprise ... sec duns as repre-model a hands'^/ U"like ^Z^™0™' ral,,cr than ,,,0SC °f interfering witl>pr,Cf ory 2 J*™" the0ty' ^ P">Pe«y rights, »]le n^'^i^ h f° C°rp°ratC activity- ^'^ and't should protect th fl,e c COrPorale actions or restricting their because it encroaches on , ° ,n'nimize r„ , contractual relations. J his to contract in wavstl.^r^'^'^Propertv8,1'0" of h"si™ss corpora corporation. Useful th™ doininantpnra(i; ■ «'e nexus of contacl 1 f ?"ndation f«r ,1 £ I f"m°*™ conceptions of the eory of the corpor;ltc lat« in tl,c section of „lis c,)aptcr w ce(,Pn , ,o "s economic model has shaped J Co"'*)' of San Mateo,K at tt Cal'l88^); I lonrite, «0« note 35, at 41 °"s, supra note 8, at 10 Tllc a„ »'»«■«1» of the |,unian ,nenibe^'C H'«»y represent a -bottom „ of (lie corporation over those 0?.^ appraach ,llat Priorili^« Ae ' "'<-• state. IJ. ations im academic discourse about corporate law for decades. Moreover, as we will see in Chapters 4 and 5, the Supreme Court has often relied on the aggregate view to support thc extension of constitutional rights to thc corporation. The establishment of corporate constitutional rights is regarded as necessary to protect the constitutional rights of the individuals within the corporation. While the aggregate theory has been extremely influential, it too offers only a partial picture of the corporate person. Not all actions of corporations can be redescribed as individual actions.43 Organizations have certain properties that arc truly products of the organization itself; they come about because of the way individuals behave together.44 As the size of the corporation grows, the aggregate theory loses some of its practicability, and some perplexing questions arise. Which individuals are the relevant ones for puq>oses of the aggregation: the original individuals who started thc corporation (perhaps a handful of people), or the individuals who currently own the corporation's stock (perhaps hundreds of people)? Would it be more sensible to include thc corporation's employees, creditors, and suppliers in the aggregation of individuals who compose the corporate organization? If so, does this not begin to blur the line between the corporation and the rest of society as the aggregation necessarily expands with the growth of the corporation? If the corporation is merely the sum of its individual members, how can the corporation remain the same person when some or all of its individual members change or depart? By the early-twentieth century, as corporations grew dramatically in size and scope, the difficulty with answering these questions became increasingly more apparent. At that time, dispersed shareholder ownership and immense growth in the size of corporations revealed a deep separation of ownership and control in large corporations.45 Widely scattered shareholders of giant coqwrations were passive investors with small individual holdings who did not control the corporation in any meaningful sense. The board of directors and officers managed the business on the shareholders' behalf. The large corporation appeared to take on its own identity as a functioning organization, separate from the individual shareholders and employees who came and went without changing the fundamental nature of the organization's operations. The corporation had a longevity, a perpetual existence, that its individual members did not. Because the aggregate theory was not an entirely 45 Patricia 11. Werhane, Persons, Ricirrs, and Corporations 51-51 (1985). 44 Michael Kecley, A Social-Contract- Theory of Organizations 230 (1988). 45 Adolf A. Berle, Jr. & Gardiner C. Means, The Modern Corporation and Private Property 119-25 (1932) A shift Fronuleniocralic voting rights (one vote per person) to plutocratic voting rights (one vote per share) may have been a key factor in this separation of ownership and control, turning the many smaller shareholders into passive investors and enabling the few larger shareholders to control and further empower the board. See Colleen A. Dunlavy, From Citizens to Plutocrats: Nineteenth-Century Shareholder Voting Rights and Theories of the Corporation, in Constructing Corporate America, supra note 30, at 66, 72-87. 34 Corporate Persunhood satfa&ctory description of the corporate pcrson> a ncw th tl)e rea, entity theory, emerged to explam the personhood of corporations. CORPORATION AS A REAL AND INDEPENDENT PERSON t^beT ^ h^ »>e end of the nineteenth century, agers to „ n V r ! '>y miniero"s shareholders who allowed man- Ed InZ f°r ,he ^-holders' benefit. Many small- and medium- XZoZlrtT krgC consolidations during the g** oZ onw s t t °cmrTd * that timc46 T1- ™sivc growth of corporate a| e o I D °df "f1 " idGa corporations were simply associations, or becomingdie*™he r "» °f «'« -poration apart from its members was business be— n rda ,0nshlP of « « shareholders to the operations of the ach r™-g'y distant.- Largc Hons b^n taking on Trorn the -»«^~«- entity of their own, distinct work of Otto Gie gIT T rfowP™«<«"- "» origins were largely .n he development of German " ' ^ w,,ose writinSs 011 tllC ^ Knglis.1: and ^communities wL translated into Cierke observed tint l„I , r'rcderic Mait'and and Ernst Freiind. it be in S« " ""If6'"55 nah,rally fo™ action in groups, whether tbey are nlnl 2hne ' 7 T^' ^ are ™*seated by the state; rather, Gierke ™S,r ^ med' timdcSS cntiti- that Prcexist t,,C ^ ^3™trtrcre reai cmi,ies s existcnce and an abiliwto 2 V , 'ndePendcnt communal life, a conscious will, memW"'^ <™ f lives and wills of its indiv.dua. coneentuali^.M,,, 7 ' m „ . , , .nciKVfnr t, .r , .. I";13111110 °ne person can be said to be responsible tor the unified corporate action.58 Convw;„ . . ,, •ui„fnrtlw>ir i corporations can initiate and be responsible tor tlieir If the law ... declared that they did not factual... 'Hie huge machine would W>»„ • V'. w ™uulu ™llu " '. ,. „,„i no. of a legalistic creation." Adolf A S°" ™» » of the essence of an i.«t.tuuoMnd (>954)- exi5 the entities would be found to be not fictitious, but an in 1'-, The Zorn cVntoky Caimtausi' Revolution 18-19 55 George F. Deiser, The juristic Person 57 U Pa 1 n sC See Peter A. French, Collective and Cn»,„ , ?0°'504 W- , n „ The Personality of the CorporationZoTZ^™™«™ ,9-30 (,984); W. JcU.ro Brow, have argued that corporations can exist Z tl^ ^ & Rw' 3°5. 366-67 ('9°S>- Son,e SC have argued that corporations can exist for periods of Roger Scruton, Cor Supp. Vol.. 239,246 (1989); see also Meir Din rvi,„ n •v.............. c-_____e,rUJn^«>en,Ricms,persons ^Orcankations: AUcm. having no members whatsoever. Roger Scrurnn 7"' ""^VVi"1 a" oflheir "Sll,s 'c^'v - ■ - ......g bCruton> Corporate Persons, in 63 Proc. aristotelian Soc y, Theory for Burea«k:ratic Society 4,-45 (2d ed'20T(S) nehing a,rallegory of the "Pcrsonless Corporation" to show that one may "strip the corporation of all individuals and yet preserve, both conceptually and legally, the identity of [the corporation]") " Peter M. Blan & W. Richard Scott, Formal ORowcwnoNs: A Comparahve Am.OACii 1 (1962). In a complete reversal of the aggregate approach, it could be argued that the role of the shareholder is dependent on the corporation's prior existence, rather than the other way around. See Peter F. Orucker, Conceit of the CORPORATION 21 (rev. ed. 1972) ("The corporation is permanent, the shareholder is transitory. It might even be said without much exaggeration that the corporation is really socially and politically a priori whereas the shareholder's position is derivative."). 58 Susanna M. Kim, Characteristics of Soulless Persons: The Applicability of the Character Evidence Rule to Corporations, 2000 U. III. L. Rev. 763,790-91 (discussing ways in which the acts of the corporation sometimes may not sensibly be reduced to the actions of individuals within the organisation). own actions and intentions. Indeed, corporate criminal liability emerged at the turn of the twentieth century, about the time the real entity theory arose, to hold corporations independently responsible for their actions. Jurists began to perceive that a corporation itself could be convicted of a crime, due to its own organizational acts and culpable intent, independent of any criminal liability of specific individuals within the corporation.59 Support for the real entity theory grew out of the belief that the corporation was a natural outgrowth of people's tendency to join together for shared economic purposes. Far from being an artificial construction of the state, the corporation was viewed as a naturally formed entity that obligates the law to respect and officially recognize it. The law does not create the corporation but instead acts simply as "a device for facilitating and registering the obvious and the inevitable."00 Real entity proponents argued that the theories of the corporation as artificial and fictional creatures were irrelevant because corporations are real, naturally occurring entities whose "bodies existed and were recognized before a theory was invented to explain their existence and recognition."6' In its most extreme form, the real entity theory suggested that group organizations are real living organisms with a body and a will. There was a sense in which groups could take on an animating life force that gave them their own metaphysical ontological status. They were viewed as having a transcendent reality and organic permanence that went beyond the individuals engaged in it.62 This organicist conception led to metaphysical speculations and anthropomorphist ideas about the corporate entity that were bizarre and unhelpful. The doctrine at times was carried to "grotesque lengths/' likening the corporation to a biological organism possessing "senses," "organs," and "gender."63 This anthropomorphism made little substantive sense when applied to corporate legal transactions. It was too incredulous to think that the creation of a wholly owned subsidiary would mean the creation of a "living being" to serve as an owned "slave," and a contract for one company to merge into another would be "a promise to commit suicide."64 Critics subsequently argued that extreme notions of the real life of associations, including the state, served as the basis for political theories that became associated with totalitarianism. The more prudent use of the real entity theory was to avoid excessive organicist extensions and focus more specifically on the idea that the corporation was more 59 See N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481 (1909) (seminal case recognizing corporate criminal liability). F.dward S. Mason, Introduction, in The CorI'Okation in Modern Society 1,1 (Fdward S. Mason ed., ■959) f" VV. M. Geldart, Lega/ Personality, 27 tj\w Q. Rev. 90, 96 (1911). Sec Christian List & Philip Pettit, Group Agency: The PossmiLriY, Design, and Status of Coiitokate Agents 73-74 (2011); Michael J. Phillips, Reappraising the Real Entity Theory of the Corporation, 21 Fla. St. U. L. Rev. 1061,1068-69 (1994) (referring to the real entity theory's organicist characteristics that analogized groups to biological organisms). 6' Machen, supra note 52, at 256. r'4 Martin Wolff, On the Nature of\£gal Persons, 54 Law Q. Rev. 494,501 (1938). 38 Corporate Personhood Legal Theories of the Corporate Person 39 than just a fictional entity ant] more than the mere sum of its parts. The corporation could be viewed as a real person, similar to a natural person, but not identical to a human being. Two contrasting normative visions of the corporation proceed from the real entity theory. On the one hand, if the corporation is a real and natural being, much like an individual person, the corporation should be entitled to many of the same rights and privileges that are afforded to natural persons. Under the real entity approach, corporations are viewed as private institutions, not public entities, and therefore should be treated like private citizens. They should be free from government interference and overbearing regulation of their activities. They are no more in need of legal regulation than individuals are. If the corporation is a product of private entrepreneurial initiative and natural market tendencies toward economic consolidation, then the corporation should be left alone to do what it is naturally formed to do and what it is best at doing, i.e., furthering the shared interests of private individuals. It is not a creature of the state and thus should not be beholden to the state to foster specific public interests. On the other hand, a slightly different interpretation of the real entity theory implies a more public-oriented normative view of corporations. If the corporation is a real person in society, it should have the same sorts of moral, ethical, and social responsibilities that individuals have As a citizen of a larger community, .tc^oys certain rights and privileges, but it should also bear the corresponding duties of a citizen to be sensitive to the impact of Us activities on others. Its operations a feet not only its invcstors hut\ho its employees, customers, creditors, and the larger community in which H exists. 11« corporate may be a privatc , * is not just a matter of private concern because everything it be is bound to affect the pub he ,n significant ways. From this pc.peet ve he corporation has certain pubhe-onen ed obligations The corporation should rivc to be a contributing and responsible member of society, and at the very 1 should avoid affirmatively harming others as it pllrsues its , * haj the same intcrests as an individual ,„ avo.d.ng "embarrassment, expense and ordeal," not to mention Ming] in a continuing state of anxiety and insecurity."7' The Court has never c early explained why a corporation is a person for purposes of the double jeopardy clause of the Fifth Amendment, but not for purposes of the self-incrimination clause of the same amendment. The use of the term "person" in both clauses is analytically indistinguishable. The self-incrimination clause follows immediately after and is grammat.cally part of the double jeopardy clause. Yet the Court has used different conceptions of the corporate person to support the differing results, underscoring 70 M. at 662. ?1 Ilalev. Henkel, 20i 11.8.43,70(1906). 72 W.at74. 75 Id. 3tj(y. 74 United Slates v. White, 322 U.S. 694, 698 (1944). 75 United States v. Martin Linen Supply Co., 430 U.S. 564,569 (1977) (quoting Green v. United States, 355 U.S. ,84. ,S7 (,957)). Legal Theories of the Corporate Person 41 Dewey's argument that the paradigms are easily manipulate to rationalize conclusions that are politically determined. Scholars have argued that the personhood of corporations under the Constitution has not been consistently controlled by personhood terminology or theories, but by an almost ad hoc approach to corporate rights. At times, the Supreme Court has utilized conflicting theories of corporate personhood to support particular results, rather than as guiding principles to help reach them.75 From this standpoint, Dewey had a point in observing that the term "person" signifies whatever the "law makes it signify."77 Although Dewey downplayed the relevance of the legal theories of the corporation, his statement about the power of the law to determine the contours of the term "person" resonates with the artificial person theory. It suggests that the corporation is dependent on the state, through legislation and the courts, to define what the corporate person is and what rights and duties it should have. Dewey, however, ostensibly urged a pragmatic approach to dealing with issues of corporate rights and duties, i.e., dropping the theoretical debates about the source of the corporation's personhood and focusing instead on the practical consequences of assigning certain rights and duties to the corporation. He rejected the idea that in order for the corporation to be called a person it must possess certain intrinsic properties that are characteristic of what we define metaphysically as a person. The relevant question was not what corporations arc, but what coqxirations do, and whether treating them as legal persons and giving them particular rights or duties will produce beneficial or detrimental consequences.78 The legal realists like Dewey who favored this approach believed that resolving these issues about the scope of corporate power must involve practical political judgments, not abstract theoretical or philosophical ones. This legal realist view of the corporation dampened the debate over the various legal theories of corporate personhood. Dewey's assertion about their indeterminacy became conventional wisdom, and the controversy over the nature of the corporate person lost its fervor. To theorize over the concept of corporate personhood was deemed an exercise in "transcendental nonsense."79 The goal was no longer to search for an inhering essence of the corporation but to analyze concrete facts to identify and evaluate the effects of calling the corporation a person. This was a shift toward a pragmatic instrumentalist approach to law under which legal rules can be justified by assessing the practical consequences of utilizing those rules as 7(1 Phillip I. Blumberg, The Corporate Entity in an Era of Multinational Corporations, 15 Dei.. J. Coup. L. 283, 318 (1990). 77 Dewey, supra note 3, at 655. Dewey argued that (lie corporate persnnliood concept lias constantly displayed "cliainelcon-like change," and the effect on legal doctrine has been to "generate confusion and conflict." Id. at 658. 78 Id. at 660-61. 7'' See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Coi.dM. L. Ri;v. 809 (1935). Cohen argued that abstract concepts that cannot be defined in terms of actual experience are meaningless. Id. at 826. 42 Corporate Personhood Legal Theories of the Corporate Person 43 instruments to serve chosen ends.80 From this perspective, whether a corporation should be treated as a person depends on the facts and circumstances and may vary from case to case, depending on the issues at stake. Dewey's pragmatic treatment of the corporation's legal status continues to find support among modern legal scholars who prefer to avoid analysis of what the corporation is, and instead focus on the effects of granting corporations certain rights and duties.8' Not everyone agrees with Dewey's indeterminacy thesis. Some scholars have argued that legal conceptions of the corporation are not perpetually manipulable but have in fact influenced the determination of certain legal outcomes. While the legal theor.es have not necessarily dictated results they have had a role in "tilting" of shaping; our v.cws of the corporation and their treatment under the law81 In this regard legal theories matter, ideas have consequences, and different conceptualize t.ons of the corporation can and do influence the resolution of certain corporate heor,es J tlT ^ A«is had merit, like all the other legn Iheor es of the corporate, standing on its own his view of corporate personhood h« 72o Ct Wll] ^ CliSCl,SSed in section of this chapter on the language ot corporate personhood F legal frameworks into our legal unde account for the lasting j corporate personhood. language of corporate pcrso,L^e< legal frameworks into our ]c 1 Y rc)ect«l the value of integrating non-account for the lasting power l,ln(lerstancli,1g of the corporation, and he did not ------'- - r and lnfluencc of language to form our perceptions of ECONOMIC TMEnwv^ Although inf . • , THE CORPORATE PERSON Aitnougli interest m the theo - languished for many decades0^'03!^35'5 f°F Calling thc corPoration ° P°TS°n 1980s when legal scholars began T 1 ^ W°rk' tlle loPic waS economics and finance t„ ° draw "pon ideas nrmin.irinp in thc fields of ^.gan to draw upon ideas originating in the field economics and finance to form n npm h\„ r„ . -im ii,^nrv fociw- u „„fr,M,„i 1 ew theory °f the corporation. 1 he theory o on the contractual relations anion? thP ™™ , 1 . . . neutered by the , , . 6Ille corporation's participants. Uoisrcn- 1 law and econom, s movement in legal scholarship, the contractual theory became extremely influential in the legal academy »3 It ,JscrvC(] as tl)C flomi„ant paradigm of the corporation for several decades This view of the corporate person relies on a contract model rooted in neoclassical economic theory. Under this paradigm, the corporation is merely a fiction that 80 See Robert S. Summ*™ n..........■ • used See Robert S. Summers, Pragmatic hist A Synthesis and Cn«m„ - ' ■^»^^^^fc^. 'ominant Ce„ ; n T "' CeM"-cape from til fi™!::n8_0f which> has not Sive." a '"^.e 'Ct,t,°^ contract" r°'n ^ fictitioils Person we haw fallen "into the arms 1 he COrnj. deeo°ratC ^"isl TheT 3nd hnI'Iicit contracts is at the heart of the A!,Tlp0si»gthefirmin' ^^rian theory is thus immensely reductionist, a n°rniativc matter n, ma"y contractuaI pieces. ^ -----.mo its many contractual pieces. corporati°nS m a normative matter, the contractarian theory not only describes ^ i,ut als the center of interrelated contracts between freely contracting mdlVI that'manner asserts that corporations should be allowed to function freely in Jw be given I'he private individuals who voluntarily enter into these contracts s i ^ Corp0rate wide discretion to order their affairs in whatever way they ch°°*aWS .,IC those properly is private property. Under this model, the most important ^^i provide that protect private property rights and enforce contracts. The law s volnntary only a set of non-mandatory default rules that the parties can c'1iin^Cc;ng of their agreement if they desire.89 There should be no government po 1 contract relationships and contracts; rather, the state should yield to freedom implies and freedom of association principles. The contractarian appro3 rjclions a preference for minimizing the regulation of business and eliminating on corporate activity. 8,, £'eWart. «'A>ra note 6i, at 97-98. -See Krank II. Easterbrook & Daniel R Kiscl 1 T ('991); l.ncian Arve Behelmt r.'„-m.,....i.It'. "E Economic Sihuciukk of Cortokati; Uvv 15 (|990; l.ucian Arye Bcbclmk, Foreword- The'n) 'l^ EcoNOM'o Sihuciukk of Coworaie Uvv 15 Colum. L. Rev. 1J95i 1J96^ (l9g „ Ztie™r?Ta''Ual Preedom '" CortMmU lMW' 89 CKo. Mason U. I, Rev., no. 4, Summer 1989 \^\^eCml'aciua^eory of the Corporation, 11 Legal Theories of the Corporate Person 45 From this standpoint, corporations should be afforded the latitude to do what they do best, generate profits for shareholders. Under the shareholder primacy and profit maximization principles, the interests of other constituencies must be subordinate to the corporation's primary concern for maximizing shareholder wealth.90 Non-shareholder interests can all contract for their own protections. By maximizing profits, the corporation creates wealth for the broader economy, which ultimately benefits all of its constituents and society as a whole. According to this model, the more profits a company makes, the more those profits feed back into the system, providing jobs for workers, goods and services for consumers, prosperity for communities, and strong capital markets for the continuous economic growth of society.9' This does not mean that corporations owe any legal, moral, or social responsibility to promote the public interest. Unlike the artificial person theory, the contractarian theory rejects the idea that the corporation possesses public-oriented duties toward the state or society. The mass of contracts that make up the corporation is a private endeavor among private citizens who each seek to benefit financially from the arrangement. Thus, the corporation's main purpose should be to increase the returns to its participants, and the law should be structured to avoid distracting corporations from that goal. Because the firm is not regarded as a real or separate entity, it does not make sense to speak of such things as the entity's independent will, intent, or social or moral responsibilities, apart from those of its individual participants. Like the aggregate theory, the contractarian model reflects a strong adherence to methodological individualism wherein individuals are always the primary unit of analysis and groups can never be explained apart from their individual members. As a result, issues are analyzed from the vantage point of the individuals with an emphasis on their interests and obligations as the relevant contracting parties. The economic contractarian theory of the corporation has had a commanding presence in legal academic thought for many decades. Yet it remains subject to considerable criticisms. Some argue that the theory assumes perfect, complete, and purposive contracting by rational economic actors, but in the real world, human beings' bounded rationality and limited problem-solving abilities make such perfect contracting an illusion.92 The contractarian theory warns against the dangers of reification of the corporate enterprise, but "the equal and opposite sin to rcification See David Millon, The Single Constituency Argument in the Economic Analysis of Business Law, in Ivw rV Economics: Toward Social Justice 4j, 45 (Dana L. Gold ed., 2009). ''' See Easterbrook & FisclieJ, supra note 89, at 38; Mark J. Roe, The Shareholder Wealth Maximization Norm and Industrial Organization, 149 U. Fa. L Rev. 2063,2065-66 (2001) (describing tbe utilitarian basi* for maximizing sbarcholdcr wealth). 1,2 William W. Bratton, The Economic Simcture of the Post-Contractual Corporation, 87 Nw. U. L. Rev. 180,183-84 (1992); Bratton, supra note 86,3(448-49. In response, contractarians may counter that the theory does not contemplate true contracts as used in the conventional legal sense, but only an "analogy to contract." Easterbrook & Fiseliel, supra note 89, at 15. But then this is like an "analogy to persons," which is what the other theories of corporate personhood arguably entail. 1 Corporate Personhood Legal Theories of the Corporate Person 47 is rcductionism."9' The corporation might be reduced to a nexus of contracts, but those contracts can be reduced to a nexus of expectations, which in turn can be reduced to nexuses of perceptions, and so on. At some point, deconstructive measures blind us to the reality of the bigger picture.94 Critics also see a problem with the contractarian theory's emphasis on private contracting and economic markets. It fails to acknowledge that such private ordering operates against a backdrop of public law and it is the Jaw that provides the mechanism for creating and enforcing private contracts.''5 By focusing so intently on the private interests of shareholders to pursue profit maximization, the contractarian model loses sight of the public-oriented aspects of the firm that are integral to .b successful functioning. While economic market forces are important, the con-tractanan theory does not account for other powerful forces, both political and social, that shape what corporations are and what they do. f , nomtmf °M1 Til" imp0rtant co"triI'««ons to our understanding of the finn by pointing out that the corporation has sig„incanl contractlK1l aspects. Standing on its own, however, the theory is UKmapl£ coZchr pnnadigni does not n.lly explain the emprcarealiiv^ru i . contractarian p.iruu b „„,nr1Iion as well as the reltio ^ 1° ™™B "emben withm he cor^« give significance to ,h o °°?oa*™ a"d ««= S°f ^ ' , 0 he corporate person ThP r- ' ^ Political> and institutional aspects ot «c Hon of a ^lor^^f ' ^ ^ corporate person elm ade^S^ '" "liS cha^" ^ n° onC "'"I puqiosc of the corporation 111 C°m^^\y explain the nature, role, an I Each theory looks at the comn!-PerrSOn,,°od of corporations is multidimensional, side of the entity. T CT^^ especially usefulLo.bL!rrC ~n,ra<*>™ ' " ™ favor the economic theory beZ °"C ,0°l and t,,c"-' ™ »™Y otl,crS- ™°5t vu * .T "° tl^ry of the firni presents a credible 1 r t ------j- me cconn * da,»erci , -..mere . ...v.ny oelievc no other theory ot r" ~"~cs we alternative to the unitary nexus of contracts model. However, that belief ^""^fy must have a single theory that can adequately define the corporation and policy decisions about the legal treatment of corporate activity. If we must c •» Marc Galantcr, Planet of the Al's: Reflections on the Scale o(Imw and Us Users, 53 BuKK 1371 (2006). vetofo"0* ■m 'Hie denial of the existence of a reat and separate corporate entity does not necessarily W ^ lhe from a reductionist approach. A related formulation of the contractual model asset s contractual arrangements combine to create an entity that is not reducible to the collec ^ and duties of shareholders. Frederick Pollock & Frederic W. Mankind, Corporation ami AnTHKOPOIOGY and KaRI.Y Uw 300, 303 (tjwtcnce V'r->- ' contract hem""-' •<»'••: ntiiropoixxiy and Far, y 12 , ' 0"°ck * I'Weric W IT- , UC,1,le 10 "le C0"eC,i -tract becomes Z^^*c ft^^ ^,o„ and P * For an excellent discussion oX^T. *° ,,,,man be4) (C"r',0raf'0" Crcated ,l,rm'gl persons, see generally Or,, supra noull **** °' ^ «ealion and maimcnance „f e one or the other, the argument goes, the contractarian model is better than all others. But it is not clear why such a choice needs to be made at all. It is not necessary or even beneficial to settle on an agreement that, at bottom, the corporation is essentially a nexus of contracts, or essentially a legal fiction, or essentially an aggregate of individuals. The multidimensional nature of the corporate person defies unitary classification. The corporation is a complex reality, and to understand its nature and role in the world, we should be open to seeing it from many different vantage points. THE LANGUAGE OF CORPORATE PERSONHOOD AND A RESPONSE TO DEWEY To say that no one single theory of the corporation can capture the full picture of the corporate person does not mean that we should abandon theorizing about the corporation and simply adopt the exclusively pragmatic instrumentalist approach advocated by John Dewey in 1926. Because the corporate theories seem so indeterminate and manipulable, Dewey argued that the term "person" meant very little and the concept of corporate personhood was ultimately irrelevant. He disfavored the merging of popular and philosophical notions of personhood with the legal application of corporate personhood, and instead he preferred a practical, consequences-oriented conception of the corporation as the bearer of legal rights and duties. If Dewey's views maintain some of their sensibility today, one might wonder why we should continue to take corporate personhood seriously in light of Dewey's critique. Although Dewey would like us to drop the whole matter, the reality is, even after all these years, the controversy over the personhood of corporations refuses to be swept away by the proof that corporate personhood theories are indeterminate. People still care deeply about it and want to talk about it. Indeed, the terminology of corporate personhood has become the center of a national debate over what the corporation is and how it should be treated in modern society. The battle has moved beyond theoretical arguments among scholars. The battle appears in sharply divided Supreme Court cases holding that a corporation is a person for purposes of exercising its statutory rights to religious freedom (Hobby Lobby) and its free speech rights to donate to political campaigns (Citizens United). The battle appears in the angry protests of anti-corporate activists waving banners that read "End Corporate Personhood" and "Corporations Are Not People." It appears in the growing popular movement to amend the Constitution to declare that only human beings, not corporations, are persons entitled to constitutional rights. In spite of Dewey's insistence that the terminology of personhood is meaningless, the act of calling the corporation a person today is loaded with meaning, and that meaning is rooted in significant moral, social, political, and legal values. It is not enough to dismiss the controversy over the nature of the corporation as Dewey did by asserting that all conceptions of the corporation are indeterminate and 4§ Corporate Personhood Legal Theories of the Corporate Person 49 that personhood is an empty term. The problem is much more complicated. In the law, concepts have a force of their own because of their ability ex ante to influence our thinking and their use ex post to justify our conclusions about how things should be structured in our society. The fact that we talk about corporations in the language of personhood is not insignificant/' In an important sense, law is meaningful in the way that language is meaningful: "How we describe something [in our choice of words] is an important part of how we perceive it."97 Language as a system of discourse conditions the way people think about things and interpret the world around them. Beyond merely reflecting societal views and values, legal language actually helps form prevailing judgments and understandings. When the law endorses and promotes certain theories of the corporate entity, the law affects our perceptions of the corporation and nudges us to view it in a particular light."8 i calling the corporation a n™™ ..... .>...... ■ ■ ' ' '-- _________, •— -~ ^ l'ght 9^ y^njuvm or me corporation and nudges us to view it in a jwrtic\. ^ ^ ^ By calling the corporation a person, we tend to think of it as a being • ensjtyt0 attributes and the moral status of a natural person. This contributes to a P . ^j^] treat the corporation with similar considerations that ground the rights o !^eterm;_ human beings. The personhood designation is more than an arbitrary, ^ ^ nate label; it commands a measure of inviolability that is difficult to sc)U''ire j^ry idea that the entity is merely a tool to achieve an economic purpose. I he voc'______j that we use to characterize corDorailn"" relate ve use to characterize co ° econoillic purpose. 'Hie vocabulary ' to them. The ]egal ]a^P°ratl0ns inlWcs the manner in which we see and itutive functions that a'nin"t^ °i peiSOnhood 1,as symbolic, expressive, and ons. .-b... miiguagc of personhood has symbolic, eXPr£^ratj constitutive functions that animate and reinforce the personhood of cotp t0 Language does more than merely describe a state of affairs. Through lW ' ^ ^ influence thought and discussion, it can help bring about that state of affairs- ^ because "[institutions are very much dependent on language: what ica] imagine and express in language has little chance of becoming a soC1°ot Qnjy reality."99 This creative aspect of legal language is interesting. The " ed only tor Contrary to Dewey's assertion that the tetm "person" lias no substantive meaning ami isus Qf lnc legal convenience, linguists have utilized linguistic evidence to demonstrate that our "'^lijgeuce, term "person" reflects and shapes our view of corporations as beings that are capable ol Sci,ane, intention, and other qualities associated with human personhood. See Smlli>"\, {(utilizing Vie Corporation Is a Person: The Language of a Legat Fiction, 61 'I'm.. L. Rev. 563 ("^7) .nate). linguistic analysis to refute Dewey's claim that the term "person" is arbitrary and i,Kleli:""' L has Ellen A. Peters, IWiry and the Language of the law, qo Yale L.J. 1193, 1195 (>981)-. ^'l^nWO a labeling function that is an integral feature of law as language. Id.; see also Ian I lacking. -{of ■hie Soul: Multiple Personality anotuk Sciences of Memory 138 (1995) (discussing the co "semantic contagion," whereby tlic description of an action or behavior can shape ' consetpicnces). , jaW are 18 "It is vital not to discount the role that language plays in this context... The problems ' ^ problems of political language in the largest sense." 'Hie "verbal construct" of the ",ia^ions [0f corporation "channels the thinking about corporations and in turn controls the material re . individuals and collectivities) themselves." Mark, supra note 19, at 1467 n.70; see also Tarnara Why Personhood Matters, 30 Const. Comment. 361, 385 (2015) (Calling the corporation ' jna_ matters a great deal because the "personhood language exploits our impulse to reject as e corporations."). <>■> Robert N. Uellali et al„ The Good Society 15 (1991). reflects and incorporates pre-existing social conditions and relations. It also has the capacity to establish new ones.100 It is an active discourse that creates the social world.101 In this regard, the law creates truth, or makes things true in the eyes of the law.102 Law is "constitutive" in the sense that it forms the mental frames, categories and schema individuals use to comprehend and construct the social world.103 Legal labeling can not only create cognitive categories but can also "produce behavior that confirms the law's cognitive categories .. .",04 The ability to shape people's perceptions and understandings of the world around them, including their view of corporations, is one of the most important forms of power that legal language possesses Although the utilization of the corporate personhood designation may seem indeterminate at times, it is not immaterial. Law does matter, and language matters too. "Each of us is partly made by our language, which gives us the categories in which we perceive the world ... and in remaking our language we contribute to the remaking of our characters and lives."105 To focus so acutely on an analysis of language and its effects may strike some as engaging in needless semantics. This is a valid concern, and the intent of this discussion is not to engage in semantic arguments over the use of the personhood term. Rather, the goal is to highlight the critical role that language plays in how we evaluate corporate claims. Those who prefer Dewey's pragmatic approach to corporate personhood eschew extended discussions of the use of legal statements and terminology. Some scholars argue that ontological and semantic claims about legal statements are the wrong sorts of considerations for answering what they believe boil down to moral questions about corporate entitlements.106 Instead, they contend that common sense morality, moral theories, and our moral beliefs are what tell us whether corporate entities should or should not have certain legal entitlements. While this analysis is instructive, the question still remains, how are those moral theories and moral beliefs formed? What contributes to the development of common sense 100 Jeffrey Ncsteruk, Law and the Virtues: Developing a Legal Theory for Business Ethics, 5 Bus. Ernies Q. 361, 362 (199;) (book review). '°' Pierre Bourdieu, The Force of I aw: Toward a Sociology of the Juridical Field, 381 Iastincs L.J. 814,839 (1987); Laurence II. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 IIakv. L. Rev. 1,7-8,20 (1989) (describing the continually active and interactive role oflaw in recreating society). *" Jack M. ISalkin, The Proliferation ofLegalTnith, 26 Harv. J.L. & Pub. Pol'v 5,6(2003). Law helps to define reality by "selectively interpreting and therefore selectively reinforcing part of the status quo, thereby helping to reformulate or reconstruct reality." Warren J. Samuels, The Idea of the Corporation as a Person: On the Normative Significance of Judicial language, in Corpora! ions and Society: Power and Responsibiliiy 113,122 (Warren J. Samuels & Arthur S. Miller eds., 1987). '0, Richard 11. McAdams, The Expressive Power of Adjudication, 2005 U, III. L. Rev. 1043,1045 n.4. '04 Mark C. Stlchinan, On Beyond Interest: Rational, Normative and Cognitive Perspectives in the Social Scientific Study of Ixiw, 1997 Wis. L. Kev. 475,492. 105 James Boyd White, Justice as Translation: An Essay in Cultural and Lecal Criticism 23 (1990). ic6 See, e.g., Steven Walt & Micab Schwartzman, Morality, Ontology, and Corporate Rights, 11 lAVi & Ethics Hum. Rts. 1 (2017). 5° Corporate Pcrsonhood morality? I contend lliat language, both legal and cultural, plays a role in shaping moral beliefs and values. What we learn and believe, we acquire in part through language. To be sure, our common sense morality has a role in shaping the laws we create and the legal language thai we use to govern society. At Ihe same time, law influences the formation of prevailing values and understandings. There is a dynamic, reciprocal relationship between law and moral belief, with each informing and helping to create the other. It is important to think carefully about this connection and its application in the law and language of corporate personhood. We should acknowledge that "legal developments affect our moral judgments about corporations, including our conception of their moral status."'07 [n this respect, language and the expression of law d° have significance beyond semantics. Dewey's dismissal of the relevance of ">e legal terminology of personhood does not seem to do justice to the bigger picture. Part of the reason why the personhood designation is so controversial is due to wLPn7 1°nangUa§e and law *> "end signals about society's value judgments, ct ontmn 1 ' n'il ^ - message about how society values soeilTvli7- Fo^1Cnl"',and U CXP— <**ain and ^^t, I c™- i ' scntcnc'ng laws that punish criminal beJia " 1 -iibnnrtrie ie icies in ...............• v« example, sentencing laws that punish crini ^out express society's moral condemnation of certain acts, making a stated ^ p0lic'( kinds of conduct the community views as reprehensible.109 Gover £i.Hise, i that appear to endorse a particular religion violate the Establish>neI ^ t|)e;r part because they signal to non-adherents that they are outsiders a ^ pie-diffcring beliefs are unwelcome in the political community "° k^^cr ,ne viously legalized racial segregation in schools were invalid^' jcatcd the Fourteenth Amendment because, among other things, they coniniu l°r JefTrcy Nesterul<, 'Hie Monti Status of (lie Corporation; Comments on an Inquiry- - 461,463 (1992)- (20o2); Cl>ss ,o8 Alex Geisinger, A Relief Change Theory of Expressive U', 88 Iowa L. 1W. 35' * a5Seiti"gt!lilt R. Sunstein,On the Expressive Functionof Ixiw.^U. Va. 1.. Uiov. 2021,2024 (i996)j^ that ll>e (lie legal language of personhood matters, I do not seek to argue, as II. h. A- llar ^ ^ perform meaning of expressions is performative, i.e., that the meaning of an expression is >ts 1,6 |UKNcE and particular types of acts within a set of rules. See H. L. A. natt, Kssays in JuiusPW ^ V(cri|,illg 27S-76 (198O: see aim W.lt *- e-< OK lAW: IllEOUIES and LIMITS 136--57 (zokV Mnrl- 11 1, - , .Vm IW«»;im,78Cm,KEWrL.UWJ6^Sj\S5 Ks'^fe''"-'"' &/"-s""""' f" n"ne'm £T"' CmTS E"'i(V Cnm,W Jj^, 8. Ind. L.j. 473, 49S (2006); Dan M. Kahan, Social Influence, Social Meaning, an Margaret Radin has similarly observed that as concepts change and develop, they can cause social and cultural transformations; likewise, social and cultural developments can drive conceptual transformations. Margaret Jane Radin, Reflections on Objectification, 65 S. Cae. L. Rev. 341 (1991); see also David MiIlon,T»eories of the Corporation, 1990 Duke L.|- 201,241-47 (demonstrating how legal rules have shaped new thinking about corporations, and vice versa, liow theoretical beliefs about corporations have shaped the formation of new legal doctrine). 52 Corporate Personhood the law for guidance on what it means to be a person worthy of recognition under the law. Dewey argued that "popular, historical, political, moral, philosophical, metaphysical and ... theological" theories of personhood should not influence judgments about what the legal concept of personhood should entail."4 To av0ld confusion and conflict, Dewey urged us to keep the legal concept separate from any social and cultural notions of personhood. In his view, law is a self-enclosed system that does not and should not need to look elsewhere for its meaning. The difficulty with this approach, however, is that legal concepts are inherently a reflection of and connected with our broader system of beliefs. Law cannot divorce itself from our culture, history, politics, moral beliefs, and social norms. These non-legal factors contribute to our vision of what makes a person, and the legal concept of personhood , unavoidably infused with this vision. Even when trying to determine legal personhood of human beings, the analysis is necessarily a larger non-legal < ucs on mvolvng metaphysical, cultural, social (and not just biological) under- s^tioStctrS detemma«°» oflepl personhood with non-legal con-e w 03 " :'SPCC,S °f °»r ^ta'ce. Dewey preferred to ignore the legal term is const n 1 d SPccllla«°n about what it is to be a person [as even L JSJ^^^ * ^ ™»»' ^ ^ >r^ZZT*£^IT theoriesmakes personhood- with the times. But dett m n ^ ^ «« theories are constantly chang ng y and Pulsion are not necessarily superior values. ! that call In some situations, certain moral, ethical, and social concerns may emerge ^ for a more adaptable, open-ended approach. There is value in acknowlct g many facets of the corporation, as viewed through different disciplineleIlSCS' "t Dewey, supra note 3, at 655. ^ [!j;v. '•■> Ngaire Naffine, Who Are Ws Persons? From Cheshire Cats to Responsible Subjects, 66 f*l rf ^ fctus 346,359-61 (2003). 'tins analysis is raised, for example, when determining the per*"'"00 0I1 as or a mentally impaired individual. In our predominantly liberal legal culture, we regard . 1^ ^ an autonomous being who can stand alone, independently of others, individuated and seP3^tion., are one's mother, and capable of exercising reason and intelligent thought. These c""^!' see bow a product of our cultural, philosophical, political, and social views of personhood. " ,on(in,ous a particular cultural understanding of who and what is to count as an integrated and an ^ being, who is therefore susceptible to personification, shapes what we as lawyers often take biology. There is a metaphysics here that is rarely addressed." Id. at 361. dynamic "6 Id. at 349. In certain respects, Dewey's views are consistent with my own thesis about the ^ nature of personhood. He notes that "the history of western culture shows a chameleon-like c in the various philosophical and popular notions of personhood. Dewey, supra note 3, at '5 ^ ^ Dewey argues that these shifting notions should not alTect the legal conception of the corpora 1^ ■ does not dismiss them as entirely irrelevant. In fact, he acknowledges that these various "O.^, „ considerations "express struggles and movements of immense social import, economic an«p Id. at 664. Legal Theories of the Corporate Person 53 though we know the various disciplinary theories are bound to matter in different ways for different issues over time. Dewey preferred to abandon theoretical discussions of personhood and instead focus pragmatically on hard facts and consequences in evaluating legal issues. From his point of view, it does not matter how we conceptualize corporations; all that matters is evaluating the facts and then resolving conflicts by weighing the practical consequences of competing resolutions. While it is always critical to engage in comprehensive and honest assessments of facts and circumstances when faced with any legal controversy, it is also important not to jettison theory entirely from the analysis. It is error to assume that theory and practice arc necessarily separate inquiries. Practice without theory lacks perspective and direction; it results in an admixture of intuitive reactions to specific factual situations. Theory without a connection to practice is hollow and lacks relevance in the face of real world problems; it results in "an intellectual game only vaguely connected to the very phenomena it is supposed to understand and explain.""7 Theoretical and practical analyses go hand in hand and are deeply related. "When we think carefully about practical issues, we are impelled to theorize - although that does not mean that we merely 'apply' a theory.""8 It means that wc reflect on how specific cases are connected, how they fit into the big picture, and bow they can be resolved to build a more just society. For this reason, it is important to engage in discussions of the various theoretical conceptions of the corporation. We cannot effectively evaluate corporate rights and responsibilities unless we also think about the moral status of corporations. We need analysis of theory as well as practice to decide how best to deal with complicated corporate issues. MULTIDIMENSIONAL MODEL OF CORPORATE PERSONHOOD All of the legal theories of corporate personhood offer a partial glimpse into the nature of the corporation. Each one correctly describes but one of the many aspects of the corporate totality. The corporation's existence and functionality depend on individuals, on contractual relationships, on state law and charters, and on social recognition of its identity and presence. The corporation is a legal fiction, but it is a real entity with which we engage daily in a very practical way. All of the legal theories of corporate personhood, and the various features of the corporation that they accentuate, cannot be fully appreciated without an understanding of their interrelationship, and their relationship to the entity as a whole. While the different theories each seek independently to explain the essence of the corporation, the theories in fact are dependent upon each other and upon their integrated roles to provide a comprehensive description of the corporate person. "7 Hugh LaFollette, Introduction, in The Oxford Handbook of Practical Ethics 1, 8 (Hugh LnEollette ed., 2003). "* W.at8. 54 C°rporate pmmhood Legal Theorien of the Corporate Person 55 This hook favors a "IrUlJti,. passes the many different con mCnsional" analysis of the corporation that enconv nizes that all the various] , Cej}|,0,ls of the corporation."9 This approach rccog-describing the full ™d Il0n.,ega, ^ phy a part ;, corporation requires us t0 vie "!e borate person. An adequate account of th« rr.uJt.ple purposes. The Co " f,Ie entity broadly, focusing on its varied roles an< shaped by society's shifting viZ " a instantly evolving entity that shapes and i5 approach rccogniZes n^ ^ of tlle Ilature of ^ b,ife. A multidimensional ever-cvo Ivmg. It is an ^nhood of corpora ions is dynamic, textured, and non. Rather than enil^ J P<°Jcct *llat , reflcction and adapta- a multidimensional ap J °ne p^.^ le person> co^r^ a broade7out.ook and integrate, the X;:rnosinglcth Van'0l,S "^^P""^ conceptions of the t° s ::;'rt;,nces'r1, and ^si,rround rpon,le view of coroonr ^ »"d ot T* °"r PoIiticaI structures, our laws, our of the many fZT T °mso^fy it! , "nportant questions about the acceptable edge, She co COrp°ra'o Per :,°U!d «* helpfulto have a richer understanding legal Jo^ corporate e**ns from a mass of legal and non-Legal rule, and public , '° °Ur ^'^ ^ ,,0mB,hVC .....an corporate personhood 121 ..„„mt( Legal rules and public Do). . the corporation. Rervw • cs sboulrl l . » f coq>orate activity weT'^ ^th , , to the multiface.ed nature of business participa^ ***>"1*£"nd Private I""> 'l Multidimensiona. J ^ ^ elai "'f >°d> government and mdrodnal -j, we can -jpi business participants h, ' l0vv'ecice ,1, ., li l-"IviIlc: ""^-----, . ,. ., , Multidimcnsiona ni:Ve ^ government and .ndiV.dual and values to decie-r„t,S/1,,OWS ** Z * «P«*»«on, that merit attention. '"'"ni-ymeanconr^n^11^^^ baIa'-ng of different interests discussions over si ifi r^^ase, borate rights and respons.b.ht.es. some butincreasinX C°rp°ra(e con y~'SSUe> ^lantive interdisciplmary the global cTruS^"^^ wl"<* » ^'"'^ bUrC,en-n.ty. At tunes, certain 'C pLrs°ns coexist with human persons in ' I Bra proposed and diSCi,.«ed a,,-, „,„,.... trs°nnood concepts, theories, and values aboul a decade ago. See Susan 1- niei"ional to tfe GV/wate ^.J'l^ Cor,0 "J*""*' to analyzing corporate personhood - S« A/. at .68. Eric Or.s has Z°?"!'^. .5 IW ^ 7bo A Multi-Din*™™* skillfully combines elements fro J ar8"Cl1favor / & F™- L- 97- '^-74 (~°9); ground" between extremes. oZt"^ ^ ".«»SffI ",rSli,,"io™1 of "'C ^ f legal views of the firm or^tl^T' 8' a* '^9 U, f° pr°V''(,e 2 m°,'eratC T See Ripken, note at 2 "1 f''^pLical and so« 0,^"?.C'; " a,S° '""^ observed that an undcBbndi e ofr """'^ °f C^P" "'°6,caI di«»»'»»-«• aI *5- . thoiiPl.t m,l nmn- i . 8 Corl,ora(e power "rP C l>,,wer. Joslnia Barkan has similarly »10 gl t and practice that have attempted to defin, «VUn* "'ves.iga.in« the multiple modes of multiple and heterogeneous rather than linear ZZX^J™^ -I Z "til force, are '"fkaii, S!//,ra nofe 12> a[ J5 will take precedence over others for resolving certain issues. A consideration of the practical realities and specific consequences of privileging any given conception over another is also important. In this way, a multidimensional approach encompasses an informed analysis of the various theoretical components that underlie corporate personhood while also being mindful of the practical effects of corporate personhood that were of main concern to Dewey. Just as corporations evolve and our views of corporations change, the law develops in a continuously dynamic way.122 The law is not fixed, nor should it be. As many jurists have noted, the genius of the law is that it "is not simply a deductive exercise" or an inevitable working out of anything,'"23 but rather, it is "a living organism, ever growing and expanding to meet the problems and needs of changing social and economic conditions."124 As we formulate laws that regulate corporate activity, we should remain flexible and adaptable as various theories of corporations bring different issues to light. The law should not cater to any static conception of the corporation. Instead, it should reflect the dynamic nature of the theories that describe the coqjorate person, and should avoid any narrow or fixed framework for analyzing corporate activity. Broad consideration of the different disciplinary theories of corporate personhood will not be without contention and conflict. There will be, as there always has been, discord among the contrasting normative implications of the various theories. Nonetheless, it is worth the effort because it gives us a more in-depth view of a complicated reality. The more complete a picture we have of the subject of debate, the more informed the debate will be. An expansive view of the corporation that incorporates interdisciplinary input does not promise to end the enduring disputes over corporate rights and duties. As corporations change and societal ideas advance, each generation must struggle to find acceptable answers to the difficult questions regarding the legal and moral status of corporations. A multidimensional approach provides a starting point for tackling such questions with the understanding that the answers may be workable for only a period and then require reformulation at a later time. The coq)orate person is malleable, not fixed, and its role in our society is, in part, a product of our own continually changing moral, legal, philosophical, and political imagination. BENEFITS OF INDETERMINACY The indeterminacy of the various theories of the corporation is a perennial concern among scholars who echo Dewey's complaints about the inconsistent See Ripken, supra note 119, at 171-72. m William '1'. Allen, Our Schizophrenic Conception of the Business Corporation, 14 Carixizo L. Ri:v. 261, 278 (1992); see also Samuels, supra note 102, at 126 (arguing that law does not deduce or discover legal concepts, hut rather, makes the rules that then help shape economic reality). Russick v. Hicks, 85 F. Supp. 281. 28; (W.D. Mich. 1949). 56 Corporate Personhood application of theoretical concepts to legal problems. They bemoan the fact that the body of law with respect to corporate legal personhood often seems incoherent and contradictory as different theories are selectively invoked to justify chosen outcomes. There is a sense that judicial use of the personhood theories •,-<- is purely results-;erminacy of satisfaction v ncons.stency in general. Legal scholars naturally seek paradigms that are syst • - '"<■ —u„,-n with this prefer- that results in post-hoc rationalizations and in legal reasoning m;nacy oriented. That the competing theories contribute to the mde e law is considered a problem that warrants correction The objection to indeterminacy reflects an un derlying dissatisfy I of Ute with atically coherent and produce consistent results. The problem vV1 co]np]CX; and ence, however, is that legal issues involving people and groups 'Xl° ^^cX\ng the sometimes the preoccupation with consistency can detract from c app],cd in full picture. The fact that various legal theories may not he consisten ^ ^ practice does not mean they should be discarded altogether. Indeterrn Qc]egi\ a damning charge against legal theories and principles. A general c a ^ f hw refers indeterminacy simply means that the social construction or « cf valucs ana values and goals that are external to the legal system.115 These ^ i,j]osoph'c^ norms may derive from pertinent social, ethical, political, an ^(en a considerations, all of which arc constantly evolving. IndeteriTj"1' .iQn m the simple recognition of the inevitable reality of social change and law."116 a bad thing- From this standpoint, indeterminacy should not be regarded <■ ^ t]ic In fact, we should appreciate the value of indeterminacy in |\lL ^ retaii« advantage of having diverse views of corporate personhood. J ,Cta'te that the efficacy and legitimacy precisely because it docs not emphatically s ^ ^ ^ corporation is x. The conflicting themes that underlie the ^^Vj^ual'ism corporations - aggregate v. real entity, contract v. concession, 'n< rimacy v. collectivism, person v. property, public v. private, sl,arel1 ntradictory v. common good - all exist in constant tension. They produce c ,.„>;„,,,; and complementary visions of corporate life. However, the cor should be acknowledged and accommodated, not avoided a . yincSS of The inconsistencies and conflicts are constructive. They reflect the n ^ society's diverse valucs and norms. Appreciating their interplay tn ^ in enhances our positive and normative view of corporations and their 3nlradictions spurned- con cepts lical society"7 As a complex entity in which all of these contradictory coalesce, the corporation should not be reduced to a single simple theore framework that would necessarily be incomplete. Complex entities reql" complex rules. Although a multidimensional approach to corporations may result in inconsistent outcomes, it recognizes the reality of the multiface e Orts, supra note 8, at 118. "6 W. "7 See Bralton, supra note 86, at 465. Legal Theories of the Corporate Person 57 nature of the corporate person. The "flaws of inconsistency are far less serious than those of unreality.'"28 Indeterminacy in the law allows for selective application of different theories of the corporate person, depending on the situation and the issues to be decided. Because the corporation is a bundle of contrasting and coinciding concepts, the law must mediate between the various conceptual viewpoints. When a problem occurs that raises two valid but inconsistent normative demands, mediation is required, and choosing between the two is ultimately a matter of judgment.119 By considering the descriptive and normative components of different theories of the corporate person, the law adopts a thicker, more informed conception of the corporation. Equipped with this broader perspective, the legal decision-maker can make a judgment of belter quality, rather than a judgment that reflects only a narrow set of concerns. This may lead to favoring different concepts at different times, but this is the nature of mediation. To aim to adopt a clear-cut, unitary theory of the corporation is to close off the advantage of drawing on the insights of different theories even as they compete. The indeterminacy of the law should not be regarded as theoretical failure, but as the beneficial application of a more nuanced approach to corporate personhood.'30 An expansive, more complete view of the corporation can help us determine how best to resolve corporate issues as they arise. To that end, the following chapters explore other dimensions of the corporation and provide a wide-angle view of its personhood. 128 Alan Wolfe, The Modem Corporation: Private Agent or Public Actor?, 50 Wash. & Lee L. Rev. 1673, 1676 (1993). 119 See Bratton, supra note 92, at 214. ,5° See Ripken, supra note 119, at 173-74. 240 Corporate Personhood because the range of corporate organizations is vast. The nonprofit religious organization, the closely held minority business owned by a single shareholder, and the large publicly held corporation with thousands of shareholders are very different entities, but they are all incorporated organizations. They have different purposes, different needs, and different ways of interacting with their members and the public at large. They each have their own unique place in our cultural, political, and economic systems. Yet they share the same legal origin. The same law and social structure that facilitate the formation of Apple, Inc. also authorizes and fosters the formation of the local church on the corner and the small family restaurant owned by a husband and wife. The corporate form is flexible and enabling, affording its members broad opportunity to operate it in the manner they want, for the purposes they want. As a result, we encounter a proliferation of different types of corporations lying along a spectrum of personhood. When legislatures and courts are confronted with the task of expanding or limiting the rights of these corporate persons, "fw]Uat we see time and again is not the law's deference to some overarching conceptualization of the corporation and whatever logical consequences would flow therefrom, but rather a tailoring of rules and regulations to the particular business entity before it."110 Absolutist positions arguing that corporations should always or should never be treated like natural persons, or that corporations of all types should he treated identically, do not account for the complexity of corporations. The multidimensional nature of the corporation and its continually evolving role in society require us to analyze corporate structure and function when determining whether and how our basic legal rights might apply to the many different types of corporations that exist along the continuum of corporate persons. These determinations are difficult, and the implications of treating certain corporations as persons whose speech, religion, and race are deserving of respect and protection are serious. The difficult issues of corporate rights and obligations will warrant careful analysis as our social, political, and legal systems evolve, and the types and purposes of corporations grow increasingly more diverse. Colombo, supra note 53, at 191. Abolishing Corporate Personhood among a growing seem fT? ^ gCncrated disagreement and even dismay corporations can be co,' ) 8e"Cral P"b,'C- Many I>eopIe resist the notion that rights. There is increase pCrSOns for Pl,rP0Ses of" claiming constitutional corporate power in socrrvlgAC°rCt;ni ab°Ut ^ expansion of corporate rigllls ant' were outraged bv ti ^/ cllsa,ssed previously in Chapters4and 5, many people Lobby to uphold corC prem? .Court's decisions in Citizens United and Hobby rights The outr C°rp0K5te Polit'caI speech rights and corporate religious exercise corporate personswitt 7 fr°ni ^ ,,eIief tl,at t,lc rl,,inSs §° t0° far in trea,ing that the corporation i erence lllat is owecl to natural persons. To say and is entitled to'0" " Capab'c °f'e"gag>ng in speech and exercising religious beliefs, human beings vP™tectl0n wllen it does so, appears to equate corporate entities with fundamental r' i'^1,"5 f'le corP°ration as a person with an entitlement to the same trend that civ § ^ * * ^ be^on8 lo !uiman individuals is regarded as a dangerous dissatisfactiorwahT" I0"5. ^ StaU'S !hey d° "ot deSme- The m°Unti"g of certain inal' ^ * corporations can be considered persons for purposes fi,f- thi„. T ' le rie1,ts !'ns galvanized some people to take action to roll back The kstlecaT I3110" * Under tilC hw ormn- r T ° SSCn c'ramaric growth among activist groups and community only ersoT I ^'° a",end the U"itcd SlatcS Conslitution to esfab]ish that t,,e HundredT^f ° '"'^ Constitutional riSnts are human beings, not corporations. rtc s o grassroots organizations have worked to adopt local ordinances that reduce the politic-il -.,„1 ■ .- , . j ^ r , ' ' unu economic power of corporations in their communities. measures anT$' °ffidals at "ie State and miI»iciPa' levels have supported these alto ether M ^ WOr^n& to e''m,natc the doctrine of corporate personhood ,1 °c 'T' .Cmbcrs 0 ts legal effects altogether. This chapter looks carefully and ol,icctlvely.:1'tJuS popular movement with an eye toward examining its goals, the organize involved, the framing of their arguments, what their work has accomplishc , a where their efforts are leading. It is important to understand what is at stake in ' attempt to abolish corporate personhood from legal discourse entirely. DISDAIN FOR CORPORATE PERSONHOOD AND POWER Corporate abolitionists revile the dominance of corporations in modern society They believe large corporations, with their vast concentrations of wealth and their enormous size, possess economic and political power comparable to government power.2 Activists view multinational corporations as governing institutions whose presence permeates every aspect of "our lives, our government, our work, our health ' Molly Morgan & Jan F,dwards, Abolish Corporate Personhood, 50 Guild 1'kac. 209,214 (2002). In earlier works, I have examined the corporate abolitionist movement in the context of understanding the relationship between social movements and constitutional legal reform, as well as the legal source and maintenance of corporate power. See Susanna Kim Ripken, Corporate First Amendment Rights After Citizens United: An Analysis of tlie Popular Movement to F.nd the Constitutional Personhood of Corporations, 14 U. Pa. J. Bus. L. 209, 224-44 (*on); Susanna Kim Ripken, Citizens United, Corporate Personhood, and Corporate Power: The Tension lietween Constitutional Iaiw and Corporate Imw, 6 U. St. Thomas J. L. & Pub. Poi.'y 285, 291-99 (2012). 'Phis chapter incorporates some of the analysis contained in those articles. Many scholars agree with this assessment of corporate power. See, e.g., Kent Greenfield, Till-: Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities 4-5 (2006) (noting that ^-'ire and our food supply."3 The economic power of these corporate entities unques-t-bnably is significant. The largest corporations generate revenues that exceed the economies of many nation states.4 They have the resources to drive out or acquire mailer businesses and eliminate competitive economic threats. They have access to reinendous amounts of cash, and they maintain control over substantial portions of ;arth's productive capacity. Having control over such wealth produces unmatched political power. As discussed in Chapter 3, corporations are important players in the political system. Their role in lobbying government officials, in contributing to election campaigns, in exerting industry pressures on lawmakers and administrative agencies, and in heavily lawyering the rulemaking and enforcement processes, all allow corporations to " make changes to the political system itself that lock in lasting advantages for them and protect their dominance."5 According to one member of Congress, "[t]oday there is virtually no element of the political landscape into which corporate influence has not intruded, and it is usually the strongest political force arrayed in any part of that landscape."6 Anti-corporate activists believe that corporations' immense pol itical influence threatens the integrity of our system of governance and renders it impossible for average citizens to have a meaningful voice in government. Beyond their economic and political power, corporations also exert social and cultural power that has an impact on the desires, priorities, and behavior of consumers. Activists argue that corporate messaging plays a manipulative role in influencing our preferences, what we believe will make us happy, and how we view ourselves and others. This is a power that shapes our mindset and culture. So many aspects of our lives are governed by what corporations choose to do or not to do. Corporate decisions on what foods to produce, what products to manufacture, what services to offer, what research to fund, what drugs to market, what natural resources to use, what news to transmit, what forms of entertainment to make available, along with coLintless other fundamental corporate choices, directly impact our health, our work, our judgments, our activities, and the overall pace and quality of our lives. In these and other ways, corporations have profound effects on the basic structure and development of society. In the view of corporate abolitionists, the prevalence and power of large corporations are a cause for deep concern because they serve only to corrupt our government corporations are among the "largest and most powerful institutions in the world," wielding "the economic power of nations"). 5 About Us, Alliance for Democracy, http://alliancefordemocracy.weebly.com/about-us.litml [littps:/ pe11na.ee/3lIQS-UUUW]. *• See Joe Myers, How Do the World's Biggest Companies Compare to the Biggest Economies?, Wore licoN. F. (Oct. 19, 2016), ww\v.weforum.org/agenda/20i6/io/corT>orations-not-countries-daminate-th' list-of-tlie-world-s-biggest-economic-entities/ [https://perma.cc/G.2.QD-C3HQ]. 5 Sheldon Wlu'tehouse, Capiured: The Corporate Infiltration of American Democracy, at » (2017). ' Id. Corporate ft. and endanger our future. Activists contend that corporations "control the coi ^ ^ set the limits of public discussion, commercialize and debase our na '^ri\ sciousness, and manipulate mainstream public opinion. Everywhere ^ world is threatened. Yet people worldwide are exhorted to consume rn°rt- ,. .e . .1 r, . ■ ■ »7 Activists ve'' more m the name of progress so big corporations can get bigger. a^<-*~-* the relentless pursuit of corporate profit is the greatest cause of o"!'1""' social, and ecological injury around the worW A"' to government regulation. tb~ ystem limit'- -..uw-nie are exhorted to consume ™. ^ believ'< - progress' so big corporations can get bigger. 7 Ac !V1eCon0tr)ic. ...w icientless pursuit of corporate profit is the greatest cause of polthca , suv>ject social, and ecological injury around the world. Although the corporation^ ^.^j to government regulation, the mighty grip that corporations have on t;0ns-system limits the government's ability to restrain the coercive power ol corp^ ^esl It was not always this way. The corporate abolitionists note that during ^ tj,e years of corporations in America, states strictly limited corporations from g' ^Qt\. kind of power they have today. As explained in Chapter i, state legists u ^ cally granted special corporate charters to businesses on a ense-by-case ' alise these charters typically went only to corporations serving a public uinc,tl0^e powers a corporation derived its existence from the state, the state could restrict * ^ ^ of a corporation for the public interest. Laws kept corporate power in c ic^ ^ fear that corporations, if left unbridled, would grow so large and amass f1^.^ w3S that they would become oppressive and coercive.8 When the Consti i adopted, the Framers "took it as a given that corporations r""1'11 -egulated in the service of the public wp'f- "" rding to the cor"— ' ...entiled, would grow ■. 0- amaSS.it0Ii0n *as oecome oppressive and coercive.8 When the Con ,iensjVely auoptcd, the Framers "took it as a given that corporations could be compre regulated in the service of the public welfare."9 Supfem* According to the corporate abolitionists, everything changed when w- ^ Court announced for the first time that corporations arc persons 1 ^^es Fourteenth Amendment. That was the tool corporations used to shut i "from the duty side of the line, where they're accountable to the people, to ^ ^ side, wiiere they get protection from government.'"0 At that point, corpora i° ^c transformed into persons who could claim constitutional rights and c0 ^ government to justify its regulations affecting corporate business activities. ct ,0 interpretation of the Fourteentli Amendment, corporations that had ^eun.*Uf is]atjon strict regulation of their operations became the bearer of rights to oppose eg burdening their interests. ndmerit' Activists call this the corporate "hijacking" of the Fourteenth Amen ^ ^ and they trace the roots and consolidation of corporate power direc y a,e concept of constitutional corporate personhood." They blame c 7 Alliance for Democracy, su/ira note 3. 8 There was "[fjear orcticn>3clim»~' subjection of l.-i!—- ■ S 'fa.>,m„„. ^Shbahs, <-nrfi°rafe ft /' >■ Assenting) \ 2004), "rsot)!i st ,1, . 0r Abolishing Corporate Personhood HS «II* *. 'Pi* 'Port; 7'»« ma -"eirVjew r. "........„,,,.,e^ uj, «... c°rPora|, ' e"s u»ited and Hobby Lobby continue the pattern :e'ij"f C°nst,'luboi)1Sl "n "IC Sam° Posltion 35 human beings for purposes of °od a ^n'ted 1n 3nci statutory rights. Although the majority opinions in "'eorir.. . U ™ohhy ' ' - ,,0Wi"g corporations , - -— over the last 130 years to gain one by one ruble rights of human beings guaranteed by the Bill "ns|atefie°ries to hJst[lnl>by ^ob!,y I10t explicitly rely on corporate person to „„. but W 5 ' y "lejr outcomes, corporate abolitionists contend that the rf n,0>' tb, } Prcrnise o' ' f those cases is that corporations are persons entitled '"irn. 'lCtlv'sts """" sPeec" and religious exercise rights as human indivi-Mi0 l'nSc vvea)tJ, ar§)1e tJlat tllese hasic rights, combined with corporations and power, allow ism enUeMt]v I 'w C°rPorate ;L Cornc second-class persons with little ability to oppose or corporations to overpower individual citizens Hie 0,Tle more nCt'0ns" Many people fear that the corporate creation has now rn; W°rk of so P°M'er'"ul than its human creators. This concern finds support in 'He indivi,! "i° 6a) sc,'oJars wlio believe corporate rights threaten to under- C0Soratedl:a)^us,3 •'•bolitic rate D """'"on'sfs blame (lie Supreme Court for creating and entrenching 3 "^Watio r!°2hotKl in t,le 'aw. TJiey call the doctrine "iliegi'timate," '-rSUe 'fiat tj°n' , constitutional law," and "unconstitutional folly."'4 They .""^'tionalt16 C<"lrr- an "unelected" body, "gave us corporate personhood," and iCa' Povvt.3 r creatctl "u's problem."'5 They maintain that the economic and poli-c°rpor;!tc corPorations is derived from corporations' status as legal persons, and Personhood is identified as the true "threat to authentic democratic self- Cltte,ision Pf f',llPs:/4'<-'nm.cc/rSLj-W5VE]. In tine with this sentiment, one scholar calls the 'egaj 1 °'*he lrourtecnth Amcmlment to corporalions "one of the great perverse tragedies in t'in,„ .0ry-" William Quigley, Catholic Social Thought and the Amorality of Large Corporations: See Will ' Carl">Tate Personhood, 5 Ixjy. J. Pu». Int. L. 109,116 (2004) (!°oo) I Mt>'ere. T"R Santa Ciara Blues: Coktokatk Pbrso\iiood vnisvs Democracy 17-18 . filth,//, 'P://rec|aimv rfper,na «/icz7s-X[ir9i. fajiilV"10™ R' '''el)'' "kanoisiiimc the 1'ibst Amcnomemt: Commercul 12xiw:ssiom in America 231 Arn 1 ^"forat'ons'J power is already so great lliat Ihey do nol need the protection of the Firsl "le ,' nt To the contrary, if is we who need protection from ihem."); Carl /. Mayer, Personalizing cotJnt>mnnal: Corporations andthe BillofRights, 41 IMsnNCS L.J. 577,658 (1990) ("Die "extension of in ?OI?,e c°nstitutionaI rights is a zero-smn game that diminishes the rights and powers of real 1 ^ c,'viduals."). Do^ D' c'cmenls. ConTORATioNS Are Not Pnoprji: War They Have Mork Ricirrs Tiun you a>ji) What You Ca«j Do About It 56 (7012}; Greg Coleridge, Corsuch's Gory Expansion of rporate Personhood, ISv What Auriiowiv (Program on Corps., Law & Democracy, South armoutli, MA), Mar./Apr. 20.7, www.poclad.org/BVyA/fiIesA017/BWANfarel1 ApriI2017.pdf fhtrpsV/ fc"na.cc/N423-MQVW]; Our Mission, Free Stokcii For I'eopu:, https://freespeechforpeop)e org/ °ur-missi™/[htlps7/pcrm3.cc/P5SX-ANF7]. erelt D. Cressman, When Monet Talks: The Itar Price of "Free" Speech and toe Seui.no of EMocRACir 149-50 (joi6); Tttom llartmann, Unequal Vnanicnos: How Cori-oimtions Isecaue 1 eople" - and You Can Flour Back 322 (2d etl. »io); Thom llartmann, The Crash of 2016-,OT 10 Destroy America — and What We Can Do to Stop It 207 (2013) 246 Corporate Personhood Abolishing Corporate Personhood 247 governance."1 Indeed, activists portray corporations as being more than merely cm °ns| 0rp°rations are now * sort of super-being: They can live forever, they cannot be jaded, they have no conscience -yet they also enjoy virtually all the rights ia lumans have.'"7 "As ]ong as superhuman 'corporate persons' have rights under aren3^ ] 'Y^ mai°rity of pcoPle 1,ave ]itt'e or no effective voice in our political rena, winch is why we see abolishing corporate personhood as so important to ending corporate rule and building a more democratic society."'8 struct^'6 0,'t,0n'Sts say tl,ey;,re I'red of trying to work within the existing legal is fufl'Tt0 fe,nCOrporafe P°wer Wth regulatory reform. Their sentiment is that it » 1 e to spend any more "strength, time, and hope" on pursuing "dead ends" such codes°rf0r:1VCSPOnSibllily' COrpor:ltc accountability, corporate ethics, corporate cons' ° ° UCt' g00c] corPorate 'citizenship,' corporate crime, corporate reform, fixes do^'T neCt10"' fiX1'"8 reSu,at0,y agencies, or [helping] stakeholders."'9These be rest ' i 11 r°°f °f thc Pmu,cr»- " is not corporate behavior that must campa" t COrporate stat™- What the corporate abolitionists seek with their comora?" °StnP Cori)orations of ll'eir status as persons is a transformation in the way regirde l'0"' T "^^ a"d trCated in socicty so "'at corporations will always be believe tl''' ,OK,matc lnstl'"'t''ons with no claim to inalienable rights. Activists comnr, JC a ™7 '° accomPhsh "lis result is to take personhood away from TZ"5 J'r0Ugh a constit""'onal amendment, the histor' i° f'0"' Corpora,c abolitionists view their work as similar (o that of wl>° oham • I ltl0niStS'Wh° Sllcccssfl,11y labored to elld shvcV> "ie suffragists discrirni'natPonnCC ?'°meH's "'ghls' tile civiI r,'g',ts activists who opposed racial in the n ' ^"V3, ,hcAmenCanRcvo,l'tlonaricsw,1o resisted political oppression abolition ofLv-|OCrah'C-r-Ule'a0 Corparak" abolitionists believe that, like the imperative -pi^' aDolition of corporate personhood is supported by a moral go to Con ■ argU° ,1,at "le Carly :llx>!itionists °f the nineteenth century did not ;< voluntary Colt0 ?** * Protection Acr> "r a Slavery Regulatory Agency, or of slavery a r °COnduct f01 shvi; owners. The abolitionists viewed the institution y fundamentally and morally wrong, and therefore, "the whole thing had Why AJ)olish All C1 Democracy South Y^™" p0"*"'"'"'0"0' RiZhts- What Aurnow.y (Program on Corps., Law & 17 Doug |J,j 1 ' S^^'ujXK]. •resmag.'^ne'^lf^'' V' CorP°'««> "People": The Fight h On, YES! M«. (May 27, 2010), www .cc-/4B52.A787] fe 'S"cs/wa,er-soll,llo'ls/real-l>eop!e-v.-corporatc-people-tl,e-f,gl,t-i5-on [!ittps://perma Incorporation N™T & P,ank 'A A»rt Corporations, 'iniied-v-lec-supremc [https://pem1a.ee/7CNK-K6Dy]. to P« It the and pin 1 1 TT0™'0 abolitio"is,s ins"t constitutional corporate Personhood must be dismantled in order to achieve democracy and equal rights "an all-or-nothing proposition. Through their push to amend thc Constitution -WTOrporatc abolitionists hope to "slay the dragon of corporate personhood once" an tor all."" Like other historical social movements that changed the culture to s«PPort a strategy to change thc law, these activists stress the need for a grassroots e 'od to create a cultural shift in socicty favoring an amendment to the Constitution fo hmit constitutional rights to natural persons alone. According to corporate abolitionists, the consequences of successfully abolishing 1e status of corporations as persons would be dramatic. They are confident that once corporate personhood is revoked, corporations will no longer be able to '"rlependently assert any constitutional rights. New laws and stricter regulation of corporate activity will be possible, and corporations will have no standing to chal-lcnge these laws. For example, without First Amendment rights, corporations could bc Prohibited from engaging in campaign spending and other forms of political activity. Without Fourth Amendment rights, government inspectors coidd more freely search corporate premises and seize corporate records to ensure compliance w't!' various laws. Corporations could be prohibited from owning stock in other c°mpanics and prevented from becoming giant corporate conglomerates. Communities could ban corporations that exceed a certain size from operating in their towns and rely instead on local businesses and commerce. Corporations would once again be viewed as concessions of the government, subject to strict regiila on and privileged to have only the 1 imi.ed rights the state chooses to bestow. 1 he en e structure of society would be changed if ^^J^^^ Ijitica,, social, and economic■^'^^^M.^^ define our culture as we want to sec it. ^j-0™"8. • of frcec!om, de. abolishing corporate personhood would be "a new racy, and economic opportunity in America and arouna ononnv. v.j,j____ PERSONHOOD THEORIES OF THE CORPORATION Ir's clear from their rhetoric that thc activists' preferred view of the corporation is in ]'ne with the artificial person or concession theory of the corporation. They insist "'at the corporation he regarded as simply a device created by the state, a concession °f thc government. The state defines the corporation's existence, thc scope of its " Morgan & Edwards, supra note ,, at 213; Why Abolish All Corporate Constitutional Rights, supra note iG; sec also Meyers, supra nolo 12, at 24 ("The abolition of corporate personliood is part of the abolition of slavery ■ ■ ■ Ill's is not an optional campaign."). " Matthew Rothschild, Corporations Aren't Persons: Amend the Constitution, Progressive, Apr. 20,0, at ifi, 20. '5 Doug I laimncrstrom, Why Bother with Corporate Personhood, www.nancliO.net/corperson/cpbollicr .|,tml [l'Ups://perma.cc/K4XK-R7Ci2J. H Ilarinian"' UiwQUal Pncrn'.CTiON, supra note 15, at 296. 248 Corporate Pcrsonhood powers, and the limits of its activities. It is granted a charter by the state to operate for the lawful purposes permitted by the government and ultimately for the greater public interest. From this perspective, the corporation is merely a creature of law, an artificial, legal fiction. It is not, nor should it be analogized to, a real person. The corporation is an economic tool and nothing more.25 Corporate abolitionists reject the real entity theory of the corporate person, and they vehemently oppose language that anthropomorphizes corporations. They emphasize that corporations do not eat, sleep, dance, raise children, fight in wars, get sick, or lose loved ones. They argue that corporations have none of the truly essential elements that define the human condition. Coqioratc abolitionists commonly assert that corporations have no soul or conscience, no mental or emotional capacities, no internal moral compass or values. Corporations have no capacity for virtue or loyalty, nor are they designed for it. The corporation's sole objective is to pursue profit and externalize the costs of doing so on others. Although corporate abolitionists resist any descriptions of corporations in human like terms, they interestingly and perhaps unwittingly have similar tendencies to speak of corporations in real person terms. They characterize coqwrations as "single-minded," and "determined." Corporations are "relentless pursuers of profit," with "appetites that arc never satisfied." Corporations shrewdly plot to overpower citizens and undermine regulation, 'lliey seek to subvert the social order, corrupt our democratic system, promote irresponsible consumption, and brainwash society. Corporations are commonly referred to as self-interested "psychopaths" or "homicidal serial killers" holding little regard for others.26 While activists maintain corporations have no virtues, feelings, desires, and beliefs, they routinely speak of corporate greed," "corporate evil," and "corporate barbarity." Words such as "dominant," "diabolical," "tyrannical," and "pathological" appear often in the speeches and literature of the corporate abolitionists. On some level, these descriptions draw on a view of corporations as more than merely an artificial legal fiction or inanimate tool. Rather, the coq>oration is portrayed as a driven, unrelenting person or being that makes deliberate choices to fulfill its desires in its own self-interest. Many people arc comfortable making moral judgments about corporations because they believe corporations have obligations to act morally, honestly, and ethically. When coqjorations violate those expectations, 15 See Clements, supra note 14, at 60-61, 67; Coleridge, supra note 14 ("Corporations arc legal, subordinate creations of We the People, 'lliese artificial entities should receive only privileges, not rigbts, as authorized by the public."). See Joel Bakan, Psychopaths, Inc.: On Corporate Persouhood, in Tin: OccuiT I Iandhook 353 (Janet Byrne ed., 2012); Bruce A. Dixon, Time for a Corporate Death Penalty, Black Agenda Ri:r. (June 9. 2010), littps://l)lacbgcndareport.coin/content/time3)- Abolishing Corporate Persouhood ^ they become targets of blame and condemnation. Such feelings of moral blame would not be appropriate if directed to a merely inanimate object. Thus, invoking elements of the real entity aspects of the corporate person seems unavoidable even in the discourse of anti-corporate activists. What is conspicuously missing from this activist discourse is any reference to the aggregate concept of the corporate person. Under the aggregate view, the corporation is more than a creature of law. Its existence depends on the aggregate of the actual human beings who underlie the corporate form. The justification for many of the Supreme Court's most controversial decisions regarding corporate constitutional rights has relied on the aggregate conception of the coqioration as an association of the human individuals who make up the corporation. Those individuals are the ones whose rights are at stake. Under this view, the corporation is really the people who, by private contract, decide to participate together in an incorporated business. They do not lose their rights when they opt to operate their enterprise as a corporation. The Supreme Court has often looked through the corporation to the real people within and upheld the corporation's right as a means of upholding theirs. Corporate abolitionists rarely mention or acknowledge the aggregate aspects of the corporation. Indeed, they often discount the aggregate view, if not reject it altogether. Holding steadfastly to the artificial person theory of the corporation, they argue that corporations "cannot exist by private arrangement."27 They must be chartered by the state, and no amount of private contracting can form a legally recognized corporation. Coqwrate abolitionists disagree with the Supreme Court's view of the corporation as an aggregate of the human individuals who make up the corporation. Instead, they insist that a "corporation is not a person, nor is it an association or a group of people. A corporation is a creation of law, a public tool of economic policy."28 Thus, corporate abolitionists have a very narrow theoretical vision of the corporation, one that focuses solely on the artificial person aspects of the corporation. This allows activists to argue that corporations are only what We the People say they are, nothing more and nothing less. Whatever privileges the legislature elects to extend to corporations are the prerogative of the state, and corporations have no independent basis for asserting any other rights. That the Supreme Court has treated corporations as independent persons or as representatives of their human members for puq)oses of constitutional rights is viewed by corporate abolitionists as deeply flawed and unsupportable. They believe now is the time for a popular uprising to undo this result. Their preferred method for doing so is to amend the Constitution to clarify that only human beings, not corporate entities, arc persons entitled to constitutional rights. The movement, called "Move to Amend," seeks to abolish corporate personhood and invalidate all the fundamental constitutional rights that are currently afforded to corporations. *7 Clements, supra note 14, at 60. 18 Mat 56. Corporate Personhood Abolishing Corporate Personhood MOVE TO AMEND :ople reacted negatively when the Supreme Court in Citizens United ed strict campaign finance laws and upheld the First Amendment frCe ghts of corporations to spend their money to support or oppose candidates 1 elections. Polls showed that a large majority of the public disfavored tllL. The Move to Amend campaign was launched to push for the adoption of eighth amendment to the Constitution to declare that corporations arc not mtitled to any constitutional rights and that the spending of money is not speech entitled to First Amendment protection. to Amend is an outgrowth of several activist organizations that have been in : for some time and have expressed a commitment to "ending corporate building a vibrant democracy that is genuinely accountable to the people, Kate interests."50 Nationwide, several hundred grassroots community-based tave endorsed or joined the Move to Amend coalition. Many of these tions are themselves extensive coalitions of other progressive groups that create a national network of activists that support the campaign, inizations include, for example, the Alliance for Democracy, the National Guild, the Program on Corporations, Law & Democracy, Reclaim icy, and the Liberty Tree Foundation.3' to Amend activists have adopted the following petition as a centerpiece of npaign: "We, the People of the United States of America, reject the U.S. ; Court's Citizens United ruling and other related cases, and move to amend istitution to firmly establish that money is not speech, and that human tot corporations, are persons entitled to constitutional rights."'2 Citizens I to sign the petition and endorse the effort to retract all constitutional rights porations. As of the time of this writing, approximately 460,000 signatures :n collected.35 ampaign engages in grassroots efforts to encourage cities and counties to :ial resolutions in support of amending the Constitution to abolish corpo-onhood. Activists work with local organizations to draft resolutions for city in Fggcn, Poll: Large Majority Opposes Supreme Court's Decision on Campaign Financing,, Post (Feb. 17, 2010), www.wasl1ingto11post.com/wp-dy11/content/article/2_10/02/17/ 302l70ii5t.|itml [https://penna.ee/7RQD-ZEDQl- A recent survey indicated that most respon-support a constitutional amendment to effectively overturn Citizens United. See Balcerzak, Study: Most Americans Want to Kill 'Citizens United' with Constitutional Iment, Ctr. Pun. Integri'IY (May 10, 2018), www.publicintegrity.org/2018/05/10/21739/study- rnericans-want-kill-citizens-uiiited-constitiitional-ainendment [htlp5://perma.cc/4SKF-2PGJ]. Coalition, Move to Amend, https://movetoameiKl.org/abont-us [https://perma.ee/NGK7- ing Organizations, Move to Amend, https://movetoan1end.org/organi7.ations [https7/pernn WR-EWNP], 1 to Amend ~ Sign the Petition, Move to Amend, hilps://mnvetoainend.org/motion [litlpv// .cc/HFF4-695M]. councils to adopt, as well as ballot initiatives for voting citizens to approve.34 Move t( Amend's goal is to create a gronndswell of support at the municipal level in favor 0 amending the Constitution so that state legislatures and Congress will then b prompted to act. "When enough local communities have passed ordinances tha directly challenge coq^orate personhood, state legislatures will begin to notice [Eventually the federal government will get on board."35 Activists believe that th "[pjassagc of a critical mass of [constitutional amendment] resolutions throughoi the country will bring decisive pressure on Congress to finish the job."55 Move to Amend works alongside several other progressive groups with the goal < amending the Constitution and nullifying the Citizens United result. Organizatior such as Free Speech For People, Common Cause, Public Citizen, People for tl American Way, and American Promise, all support the adoption of a twenty-eighl amendment to the Constitution to curb the impact of corporate power on tl political system. But tensions arise among these and other activist groups over tl best strategies for accomplishing their common goal. Move to Amend is higli critical of other groups that promote a constitutional amendment that focus primarily on campaign finance reform by forbidding corporations from spendi money in political elections. While this strategy addresses the Citizens United resn Move to Amend and other corporate abolitionist groups believe it is weak a insufficient. In their view, revoking First Amendment corporate political spee rights to reverse Citizens United is a start, but not nearly enough to cut off the soui of corporate power. Rather, they argue coqx>rnte personhood itself must be ah ished, and any new constitutional amendment must explicitly affirm that corpc tions have no entitlement to r0srnCan Pr°mise sroi'P has recent]y begun a "Writing the 28th Amendment * cr,n W'th the 'ntent t0 bui]d national consensus on effective language for or>stitutiona] amendment''0 STATE AND LOCAL SUPPORT FOR ABOLISHING CORPORATE PERSONHOOD tnentCqUirCmenlS f°r amending,1,e Constitution arc stringent. A proposed amend-stat rCqU'reS aPProval from two thirds of Congress, and then three quarters of the con S mUSt raHfy !t' Alternative,y. two thirds of the slates can call a constitutional ratifVCn4.0n t0 Consic,cr the amendment and then three quarters of the states must 'ssuy RcqllirinSs,,ch a supermajority of Congress and the states to agree on an)' poses a formidable challenge. Roughly 12,000 proposals to amend the ^ nstitntion have been introduced in Congress since the Constitution's ratification, ^ only twenty-seven have been adopted as constitutional amendments, ten of hiil C,0mprÍSed lllC BH1 of RiSllts- In addition, although various states have filed pro" °f different Pet'tions with Congress to call a constitutional convention to Pose amendments, a convention has never occurred because the requisite superiority of the states has never been met.42 l movement t0 end coqrorate personhood through a constitutional amendment has made inroads in various states and met with some degree of success. Move mend and other activist groups have aggressively engaged in grassroots efforts to Prompt city councils and state legislatures to adopt resolutions urging Congress to r°posc a constitutional amendment eliminating the status of coqwrations as Pe"ons for purposes of constitutional rights. Movement organizers claim that to date nineteen states have made some type of ormal declaration in support of a constitutional amendment, whether through See Joel Bleifuss, Corporate Are Not People, In These Times (Sept. 19. 2011), hllp://inthesetimes ^om/article/ii937/corporations_arc_noLpeople [https://pen11a.cc/7XVZ-ZYRK] (discussing cun-rasting strategies of different activist groups). Some anti-corporate activist groups believe the corporate abolitionist movement is not radical enough. They argue that attempting to eliminate corporate personhood through ihe constitutional amendment procedure is futile because it requires dependence on federal and state lawmakers who are members of a corrupt corporate political power syslem. Instead, some activists encourage civil disobedience and defiance of corporate rights, empl1.-1si7.iug Ihe need to "become revolutionaries, not reformers." Cmty. Fnvtl. Legal Def. Fund, Statement 011 F-fforts to Amend the U.S. Constitution Following Citizens United (Jan. 2012), https://celdf.org/wp-content/iiploads/2ol5/o8/CELDI<'-CniZIiNS-UNrrED-ST^A'IT;MENl-JANUARY-i7-2oi2.pdf [https://perma.cc/7AK8-r4UW]. Vision/Mission, Am. Promise, www.americanproniise.net/who_\ve_are//vision_mission [https:// perma.ee/GR3R-2LNG]. 41 U.S. Const, art. V. 41 Roger C. Hartley, How Failed Attempts to Amend the CoNsnrunoN Mobilize Poijtical Chance 2-3 (2017). Abolislúng Corporate Personhood 253 official resolutions in the state legislature, ballot initiatives approved by voters in statewide elections, or formal letters to Congress signed by a majority of state lawmakers. Considering they will need thirty-eight states (i.e., three fourths of the states) to ratify the amendment, movement organizers claim that they are already half-way there.'" However, not all the nineteen slates supporting a constitutional amendment have explicitly demanded an end to corporate personhood per se. Rather, many states merely advocate a constitutional amendment that would allow for stricter regulation of corporate spending in elections, thereby reversing the effect of Citizens United, but not suggesting that corporations should be stripped of standing as persons for puqjoses of all constitutional rights. For example, the Nevada legislature passed a joint resolution in 2017 that urges Congress to propose a constitutional amendment allowing the federal government and the states to regulate political contributions and expenditures. Although the recitals of the resolution describe Citizens United as a precedent that "harm[s] our democratic system of government," the text of the resolution contains no language condemning corporate pcrsonhood or calling for ils abolition.44 Similarly, the Maine legislature in 2013 approved a joint resolution declaring support for a constitutional amendment "regarding campaign finance that would reaffirm the power of citizens through their government to regulate the raising and spending of money in elections;" the language of the resolution does not refer to the personhood of corporations.45 These and other states favor a constitutional amendment, but their focus is more generally on defining the scope of political speech rights, reforming campaign finance restrictions, and regulating corporate spending in elections, rather than targeting corporate pcrsonhood. There are several states, however, that have explicitly raised concerns about corporate personhood and have expressed support for a constitutional amendment allowing only natural persons, not corporate entities, to claim constitutional rights. For example, the Illinois state legislature in 2013 passed a joint resolution calling on Congress "to propose and send to the states for ratification a constitutional amendment to overturn Citizens United" and "make clear that the rights of persons protected by the Constitution are the rights of natural persons and not those of corporations or other artificial entities."46 Other states have utilized a direct written communication to Congress, rather than a state resolution, to express the same sentiment. For instance, ^ 'Hie nineteen states that appear to have indicated support for a constitutional amendment are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and West Virginia. See State and Local Support, Unht-D for the People, http:// united4thepeople.org/staIe-and-local-support-2/ [https://pern1a.ee/M3AW-WYXN]; Free Speech For People, 2017 F.Nr> of Yeah Update 4, https://freespeechfoq1eopIe.org/wp-contentA1ploads/2018/ o3/20i7-Aiinual-Keport-.pdf [https://pcru1a.cc/KYB8-Z45E]. 44 S.J. Res. 4, 79th Leg. (Nev. 2017). 45 S.P. 548,126th Leg., ist Reg. Sess. (Me. 2013). 46 S.J. Res. 27, 98th Gen. Assemb. (111. 2013). 4 Corporate Personhood Abolishing Corporate Personhood 255 2012, a majority of state legislators in Connecticut signed and sent a letter to )ngressiona] representatives in support of a constitutional amendment to overturn tizens United and to "firmly establish that money is not speech and that human ings, not corporations, are persons entitled to constitutional rights."'7 These types of lis for a constitutional amendment contain personhood language highlighting the Terence between corporations and human individuals. At the local level, activists assert that approximately 800 cities and counties have proved resolutions and ballot measures calling for a constitutional amendment to 'oke corporate personhood and/or authorize the regulation of corporate political mding. Chicago, Kansas City, Santa Fe, and Tucson are among the hundreds of ies that have formally expressed support for the constitutional amendment cam-gn in the last several years.48 Dne activist group called Wolf-PAC has focused on the alternative route to ending the Constitution: having two thirds of the states formally petition ngress to call a constitutional convention to amend the Constitution. To date, : states have officially adopted resolutions calling for a constitutional convention impose an amendment to address corporate political spending and to overturn izens United.49 t is not entirely clear how long these various state and municipal resolutions, ers, and referenda remain in effect to express the sentiment of their respective :ision-making bodies. Some may last indefinitely while others over time may no ger represent the state or locality's position and therefore require a renewed )ltttion by the state or city. For example, Illinois's joint resolution favoring institutional amendment was adopted in 2013. If it takes another ten years for Move to Amend campaign to get a total of thirty-eight states to indicate support the amendment, Move to Amend may not be able to still count Illinois as Letter from Conn. Gen. Assembly to Conn. U.S. Representatives (May 1, 2012), https://orr»; salsalabs.com/o/yooj/images/CTStateRepstor'ecls.pdf [https://perma.cc/A8C7-VI44]; Connecticut Zalls for Constitutional Amendment to Overturn Citizens United, Puis. Citizen (Sep. 12. 2012), »« citizen.org/media/press-releases/coriuccticut-calls-const it utional-an i end men t-overturn-citi/.ens-uni ed [https://perma.cc/NY6S-JCr9]. \ee Resolutions 0" Ordinances, move 'io AMEND, https://movetoaincnd.org/resolutions-niap [https:// 1erma.cc/PC32-Y732]; State and l/aca\ Support, supra note 43; 2017 in Review, Avi. Promise, u-ww imericanpromisc.netAvho_we_are//20i7_year_cnd_rcport [https://perma.ee/RC K8-VQV7] ("800 ities and towns liav[e] passed local 28th Amendment resolutions,"). lie five stales are California, Illinois, New Jersey, Rhode Island, and Vermont. Sec Davit) )uldcnschuli, Article V Progress Report, ARTICLE V CAUCUS, http://articleveancns.coni/news/arlicle--progress-report-4/ [htlps://penna.cc/25QX-N4SC]. Some activist groups strongly oppose this pproacli because a constitutional convention has never been used before to propose amendments, nd there are no settled rules or procedures to govern the convention once it is convened. They argue lat the convention could potentially be unlimited in scope, might result in the elimination of other stablished constitutional rights, and runs the dangerous risk of producing a wholesale rewrite of the constitution. See Common Cause, U.S. Constitution Threatened as Article V Convention Movement Wars Success (Feb, 2018), www.con1moncause.org/wp-content/uploads/2018/03/Arliclc-V-Mc1uo-eb-2018.pdf [https://penna.ee/4H43-2Q8Z]. a supporter state in the year 2029 if its resolution was passed in 2013.50 In any case, corporate abolitionists claim there is currently significant popular interest nationwide to envision an amendment that would limit or eliminate constitutional rights for corporations, either specifically in the context of First Amendment political speech, or altogether for all rights enumerated in the Constitution. FEDERAL SUPPORT FOR ABOLISHING CORPORATE PERSONHOOD At the federal level, members of Congress have introduced various resolutions proposing a constitutional amendment. These resolutions address the status of corporations as holders of constitutional rights. One resolution, the "We the People Amendment," is the version endorsed by the Move to Amend campaign.5' The resolution proposes a constitutional amendment providing that the "rights protected by the Constitution ... are the rights of natural persons only. Artificial entities, such as corporations, limited liability companies, and other entities... shall have no rights under this Constitution" and the "privileges of artificial entities... shall not be construed to be inherent or inalienable."52 The intent of the resolution is to forbid all entities, whether for-profit corporations, nonprofit corporations, or unions, from claiming any constitutional rights. While some activists suggest that an exemption should be made for nonprofit organizations and unions, Move to Amend maintains that all coq>orate entities are created by state charter, and it "is not intellectually honest to attempt to create a constitutional exemption for the types of artificial entities that one likes but not for the ones one doesn't like ... Because only people have rights, and only people are people."" This proposed amendment seeks to eliminate more than merely the First Amendment political speech (i.e., political spending) rights of corporate entities. It targets all the rights corporations have ever gained tinder the Constitution and revokes the standing of corporations to claim any of them. r' The Illinois Legislative Glossary's definition of "resolution" states that a "resolution is merely to express the opinion of one or both houses ... [and] is typically temporary in character." Illinois legislative Glossary, III. Gen. Assembly, www.ilga.gov/legislation/glossary.asp//R [htlps://pcnua.cc/ CW5K-TS1"/]. >' H.R.J. Res. 48, 115th Cong. (2017); Move to Amend's Proposed 28th Amendment to the Constitution, Move to Amend, https://niovctoamcnd.org/wcthepeopleamendnient [https://perma.cc/5Al'B-5KVM]. 'Hie resolution was introduced by Rep. Richard Nolan on Jan. 30, 2017. He lias proposed the same resolution in the last two Congresses, but it did not gain approval. SeeII.RJ.Rcs. 48,114th Cong. (2015); II.R.J. Res. 29,113th Cuug. (2013). s' II.R.J. Res. 48,115th Cong. 5 1(2017).'I he proposed constitutional amendment would also require the government to regulate political spending in elections, and it would forbid the judiciary from equating the spending of money in elections with political speech protected by the f'rst Amendment. See id. at S 2. » Move to Amend, Why Nan Profit Corporations Do Not Need (or Have) Constitutional Rights, supra note 38. a56 Corporate PersonhooJ Another Congressional resolution is the "Democracy for All Amendment," which is endorsed by Free Speech For People.54 The resolution proposes a constitutional amendment declaring that Congress and the states "may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections."55 The language of the proposed amendment is permissive, not mandatory. It does not call for the abolition of coqiorate personhood for all constitutional rights. Rather, it allows the government in its discretion to treat natural persons and corporate entities differently for purposes of regulating political spending. Move to Amend organizers and other corporate abolitionists are highly critical of this proposed amendment, calling it "a half-measure that - at best - takes us back to the pre-Citizens United era [where] corporations and the wealthy still dominated the political process."56 They argue that merely overturning Citizens United or taking away corporate political speech rights is not enough. Instead, they believe that a complete revocation of corporate personhood under the Constitution is necessary to effectively address the problems associated with the power of coq.orations to influence not only politics and elections, but also the overall direction and well-being of society. An alternative resolution addresses the meaning of personhood directly. The "People's Rights Amendment" proposes a constitutional amendment declaring that the rights protected by the Constitution are the rights of natural persons only, and the word "person" in the Constitution does "not include corporations, limited liability companies or other corporate entities."57 The intent of the resolution is to establish that corporations are not persons entitled to claim any constitutional rights whatsoever. This is a broader approach that seeks to ensure only human individuals, 54 H.R.J. Res. 31,115th Gong. (2017); S.J. Res. 8,115dl Cong. (2017). 'flic Democracy for all Amendment, Free Speech For People, littps://freespfechforpeople.org/t!ie-3nienclmcnt/deinocracy-for-all-:mit.'n(l merit/ [https://p_nna.ee/58f_C-ET5J]. '[lie resolution was introduced by Re]). 'Ilieodore Deutch in the House on January 24, 2017, with an identical resolution introduced by Sen. Tom Udall in the Senate. The same resolution was introduced in the last two Congresses, but it failed to gain approval. See I I.R.J. Res. 22, 114th Cong. (201;); S.J. Res. 5, 114th Cong. (2015); H.R.J. Res. 119, 113th Cong. (2014}; S.J. Res. 19,113th Cong. (2013). 'Ilie resolution was debated in the Senate in 2014 and resulted in a Senate majority vole (fifty-four Senators) in favor of the resolution, falling short uf the two-third, majority (sixty-seven Senators) needed to pass. John Nichols, The Senate Tried to Overturn 'Citizens United' Today. Cuess What Stopped Them?, Nation (Sep. 11, 2014), www.tlienation.coni/article/ senüte-tried-overturn-citi_eus-iiniled-today-guess-what-stopped-lhem/ [https://perma.cc/J9PC-6JZW], 55 f I.R.J. Res. 31,115th Cong. J 2 (2017). The proposed constitutional amendment would also allow the government to regulate political spending in elections. See id. at S 1. some ]ega] scholars agree wjlh (hjs ^ &k suggcstion that person- hood .s not important. On (he contrary, in their view, personhood matters, and it matters a lot.60 Calling the corporation a person has substantial rhetorical power because of our deeply held belief that all persons arc entitled to be treated equally, Mth dignity and respect. Our legal system is strongly committed to affording all People equal rights, and we generally condemn instances of discrimination among persons. When the corporation is viewed as a person, we are all the more inclined to afford it the same rights that are typically afforded only to human beings under the Constitution. Many believe that the personhood concept becomes misleading and dangerous at this point because it portrays the corporation as an embattled victim m need of protection from overbearing and discriminatory government power Referring to corporations as persons invokes the cherished notions of autonomy, freedom, and fairness that are intrinsically associated with personhood. If the corporation is a person, then it is deserving of the rights that we as a civilized societv extend to all those with that status. The idea that corporations arc persons makes the establishment of corporate rights seem natural and self-evident.6' It is true that the Supreme Court did not explicitly rely on theories of corporate personhood as the justification for its holdings in Citizens United and /lobby Lobby-But a good chunk of the general public certainly seemed to perceive that person hood was the reason behind those decisions. The idea that corporations as persons must be afforded the same free speech rights and the same religious freedom rights as human beings is what prompted some of the strongest public opposition to those rulings. 2 Activists' attacks on corporate personhood arise from their belief that the personification of corporations is what gives corporations power in society Reformers argue that "[w]hen we begin to insist that corporate money is not 'speech' and that corporations are not people, we begin to take back power."6' Much of this debate relates to the ability of language to reflect and to influence our beliefs and our perceptions of the world and reality. As discussed in Chapter 1. 2 Sec, e.g., Tamara R. t'icty. Why Personhood Matters, 30 Const. Commknt. 361 (2015). f Sec id. at 363, 384-85. Shortly alter the Citizens United decision, several members of Congress proposed a resolution i" express disapproval of the case, specifically criticizing the Court for "treating corporations and living persons equally with respect to free speech rights under the Kirst Amendment (and! cl'fcctuch bes(ow[mg] on corporations aspects of personhood, which ... ensures that ... individual citizens ... must now compete against ... the vast resources of inultibillion dollar, inultinatiou-'1 corporations, thus diminishing the [free speech rights of] individual citizen's]." 1I.R. Res. 1275. mil' Cong. (2010). 63 Clements, supra note 14, at 56. the fact that we talk about coqiorations in the language of personhood is not insignificant. Language as a system of discourse conditions the way people think about things and interpret the world around them. Beyond merely reflecting societal views and values, language helps form them. The way we speak about corporations lias a role in shaping our understanding of them and our judgments about them. Continually referring to corporations as persons may reveal certain perceptions of what corporations are or how they should be treated. But the practice of labelling a corporation a person may also nudge us toward viewing the corporation in a certain light and treating it in a certain way. We should not underestimate the power of words and language to influence thought and judgments. The vocabulary we use to characterize corporations affects the manner in which wc perceive and relate to 'hem. In this sense, labels matter/4 As mentioned in Chapter 3, postmodern philosophies view language as the medium through which our social world is constructed. Things around us become what they are and have their meaning as a result of the way we talk about them. '<> give something a name or a label, to speak about it in a particular way, and to verbalize a set of ideas around it, have powerful constitutive effects on what it becomes, how it is regarded, and why we treat it one way as opposed to another. Language doesn't just describe; it creates, and partly constitutes, what it both describes and creates."65 If this is true, then centers of power within society have the profound ability to decide how our social reality is constructed because "anyone who controls discourse Can make something exist, or disappear."66 If you can control the direction of the discourse, you can shape the social world. Those who exercise power may allow s°nic things to be said, but not others. Certain terminologies and communications '"ay be endorsed, while other expressive forms are discouraged. "[Tlhese controlled Practices [give] rise to the discourse that guides meaning making within its ^lindanes."67 This command over discourse can be particularly dangerous because "imbalances of power... allow some to define the reality in which others must live, bating the potential for exploitation and abuse."68 See Wm. Dennis I hiber, Lew, Language and Corporate hood: Corporations and the U.S. Constiluj">". 1 Ini'l J. ior Rule Law, no. 2,' Dec. 2017, at 78,79,87. Some commentators have suggested that (here may be benefits to discarding'the corporate person terminology and replacing it with terms that do not invoke human personhood, such as "corporatehood" or "entity." See id. at 98; Gwendolyn Gordon' Culture in Corporate Law or: A Black Corporation, a Christian Corporation, and a Maori Corpora on Walk into a Bar..„ Slai'tie U. L. Rkv. 353, 393 (2016). John R. Searle, Making tiik Social World: Tim Sikuctwe of Human Civilization »> (describing language's roic ;„ constructing social reality). "[I]n human languages we jiav* * capacity not only to represent reality, both how it is and how we want to make it be, but w u, l,3ve ,llc capacity to create a new reality by representing that reality as existing." H. at 86. Mary Jo Hatch with Ann L. Cunliffe, Organization Theory: Modern, Symbolic, and 1 ostmi ,; Pkrspkctives 13 (3d cd. 2013). /h '(J. at 43. Id- at 14. Corporate Personhood Abolishing Corporate Personhood this is in part why the corporate abolitionists so strongly condemn the *y of corporate personhood. In their view, when the Supreme Court and iwer refer to the corporation as a person, they are attempting to control the about corporations and their role in society. Judicial and legislative -•ments that have the effect of categorizing corporations as persons con-process of transforming and socially constructing corporate entities into th rights that, according to the corporate abolitionists, are intended only beings. Activists argue that this defines a reality in which corporations can rights to dominate and oppress individuals; activists want to change the : discourse about corporations to create a different reality, /ho are dismayed by corporate personhood also share a concern about the function of legal language. As discussed in Chapter 1, expressive theories 5gest that law does more than merely control or limit behavior. Law certain beliefs and attitudes about societal values; it sends underlying ind makes important statements that are understood by citizens.6*' Laws the wrong message or express the wrong values cannot be tolerated. For laws that are racially discriminatory are invalid under the Fourteenth :nt because they tacitly communicate the abhorrent message that certain ips arc inferior, disfavored members of society. Government policies that i particular religion are invalid under the First Amendment's nent Clause because they impliedly signal to non-adherents that they ers and that their religious beliefs are unwelcome in the community. ;uage is understood as expressing and endorsing particular value judg-i pluralistic civilized society, our goal is to ensure that our laws, as enacted aires and interpreted by courts, send messages that are constructive, md ever reflective of our democratic ideals. The expressive function of uage is said to be important because individuals can internalize a law's nd allow it to influence their judgments. Commentators argue that law ;e people's beliefs and values, and consequently shape their preferred 7o ontext of corporate personhood, laws can signal certain judgments about : of corporations and then influence people's beliefs about them. Legal that references the personhood and rights of corporations, whether itatutes or court decisions, may have expressive effects that send about the value we place on corporations. When the law announces ion is a person, or is entitled to the same rights as a human person, it makes isinger, A Belief Change Theory of Expressive Uw, 88 Iowa L. Rev. 35, 40 (2002); Mark 1, Establishment, Expressivism, and Federalism, 78 Cih.-Kent L. Rkv. 669, 681 (2003); Cass ein, On the Expressive Function oflsiw, 144 IJ. Pa. I.. Rkv. 2021, 2024 (1996). ert Cooter, Expressive Uw and Economics, 28 J. Legal Stud. 585, 58G (1998); Alex nger & Michael Ashley Sit-in, Expressive Law and the Americans with Disabilities Act, 114 . Rev. 1061, 1062-66 (2016) (reviewing Richard II. McAdams, The Expressive Powers ok eories and limit's (2015)). a statement regarding the equality in status of corporations and human bei: holders of fundamental rights. Although corporate abolitionists may not articulate their position in pre these terms, it is these expressive and constitutive functions of law and langua| seem to concern them so deeply. They worry that the legal doctrine of cor personhood sends the message that corporations count fully as persons in oursi that they possess the worth of a person under the law, and that they deserve th< rights and respect that are accorded to natural persons. Corporate abolitionists that this is the wrong message to send. They believe the language of coi personhood reflects an inappropriate valuation of corporations vis-a-vis 1 beings. When the Supreme Court announces in cases such as Citizens Unit corporations should not be distinguished from individuals while engaging in activities like speech, corporate abolitionists contend such legal pronounci disvahie human beings by improperly placing too much value on corporate Iliere is often backlash and resistance when people perceive that law an language transmit signals that conflict with other evolving societal values, that backlash manifested in the popular movement to propose a constit amendment to abolish corporate personhood. Activists seek to stop the Si Court from continuing to send what they believe is the harmful mess.i corporate activity and individual activity are equally deserving of consti protection. They worry that such legal endorsements of corporate pers cause people to internalize the notion that corporations are persons with tl constitutional status and entitlements. Corporate abolitionists want to rec< the law to change the way people talk and think about corporations with f that corporations can ultimately be removed from the category of persons alt THE NEED FOR CORPORATE PERSONHOOD While many people believe that corporations have too much economic and power, and that something more should be done to regulate or limit the corporate activity, not everyone agrees that taking all constitutional protects from corporations is the answer. Some who sympathize with activists' cone disproportionate corporate power in politics nonetheless believe that the al pass a constitutional amendment abolishing corporate personhood is 1111 likely to cause more harm than good. On one level, activists may be ignoring or minimizing the potential negative consequences associated with eliminating the status of corpor persons under the law. The Constitution was written to protect the pec overbearing government power. A person's ability to invoke fundamcn under the Constitution provides an essential check on government power. In the absence of constitutional rights, the government has the pc exercise control in oppressive ways. A constitutional amendment that tern 2Ö2 Corporate Personhood oveScW1 ri8htS C°rp0ratC Wtilies «=«'W ^ the -les in favor of government govÍnment Í'l mthe mrporatíon COU,d claim no ™h Amendment rights, the w h uZ gH bC "Ue {° in* take Foperty from the corporation at any time of oein S 7 COmpenSati011-»»* °f"he corporation would always be at governs2f 7 KnOWÍng lhat ™es could be taken by the ZZX" V !—tors w„,dd be far less likely to invest ,n naS 1 ec nmeSSCS- nŤS UP ÚK ^ that help to drive a healthy ScXST,y C° d bC ^ U,,f0rtUnatc -.sequence of revoking the conshtu-nonai riglits of corporations. pre^couldgn "Tří0" fr,°m tl,C FlrSt A'»endmenfs protection for freedom of the Ss of ir " tllC ,,nwdcon* of undermining the free speech nghts of mecha corporat,ons. If frmlom flf j only by natural Zp^TT 7' thCn SovcrnLTt ^Id^nMhc publication of Sout ^f thtfrClCfniS0f---ports by ,nedi companies. . unS nII fment ri8htS> initio™ potential! could be sub,ect to unreasonable searches and seizures of their property The government could enter the corporation's premises to search and Hi 1« without a warrant ind u,Hl,r,„* -i • r 1 ,at;c corporate records witnom and without consideration for interfere,. u . , • cities or relation- (hint R«.„ri ■ i' . mcr,erenec with its business activities u> sppli "f ;V°1Vln& he -nation's business relationships with customers, unrestricted search and seizure power Taking away all corporate rights under the Constitution would mean ťhat corporations charged with crimes would not be entitled .due process of law or a nny trial. If a corpora hon was acquitted of a crillK. it couU J llicd again and aga.n be ause i would have no claim »0 a ^ inst dollble jeopardy If const, utional rights were stripped from all corporate eiitities, whether for-profit 0 nonprofit, then many organizations such as union churches, charities, universes, and small family businesses would lose their consti utional protections as well. 1 he We the People Amendment" advocated by the Move to Amend campaign would produce this result. y Corporate abolitionists argue that the loss of all corporate constitutional rights will not produce negative results because hV 1„ , r »he corporate entity will retain their constitutional rights a"' l,man f.'ff °f ''lis invoke their • i. i , 6 ^ anc'those individuals can atway> rights when necessary to protect their iIltyrest, So, ^ irApp.e is not .person under the Con t.tut.on s due process clause," App e's shareholders are real people who do have due process rights not to have the 'due of their Apple shares turned over to he government without due pr0C(;ss. Not, . wollld prevent those real people from pro ectmg their rights.'- But ^ / ^holder* assert their due process rights if the government <\,, ■, i „f Apples ProPert>' ent decided to take some or ^PP 71 Clements, supra note 14, at 171. Abolishing Corporate Personhood 263 without due process? The activists' response is that the claim could "be brought by the corporation, if it is deemed to have standing by the Court to raise the riglits of its shareholders."72 It is not entirely clear how this result would change or remedy the current framework that allows corporations k> bring claims to assert constitutional rights. Requiring the corporation to prove that it has standing to raise the rights of its shareholders adds an extra layer of litigation to assert a due process claim the corporation would otherwise possess to make the very same substantive arguments. Constitutional rights have been extended to corporations in so many areas precisely because upholding the corporation's status to bring the claim ultimately protects the property or liberty interests of the underlying shareholders. Under the aggregate approach to corporate personhood, the rights of the coqxrration really boil down to the rights of its human members. In the Apple scenario, it seems likely that Apple would have standing to raise the rights of its shareholders if the government were to unreasonably search and seize Apple records, or take Apple's property without due process, or tax Apple in a discriminatory way. If so, then whether we sny Apple can bring the claim directly or as a representative of its shareholders seems to make little substantive difference since lhe factual and legal arguments that would bc made to prove the merits of the claims would bc the same. It appears that corporate abolitionists recognize that abolishing corporate constitutional rights can have detrimental effects on the interests of shareholders and others who participate in the corporate enteqjrisc. This is why corporate abolitionists offer the possibility that, once corporate personhood is abolished, corporations would still be permitted to bring claims on behalf of shareholders to protect their interests. However, this road seems to lead to the same end result, i.e., corporations coming into court to complain of violations of constitutional rights. Therefore, it is plausible that abolishing the constitutional rights of corporations will not have as large an effect as activists presume since coqjorations will bc able to simply assert the same constitutional challenges so long as corporations do so ostensibly as the representatives of their shareholders. THE CONNECTION BETWEEN CORPORATE PERSONHOOD AND CORPORATE POWER Activists have made corporate personhood the ^ think that their reasons for doing so are understandable, m ^ may bc somewhat mis-the popular movement to abolish corporate persor11 aJ ,he origjn of guided because it overstates the significance ot corpor. 1 corporate power. 7' Alternatively, the "claim could be brought by the sharel holders as a class." id. Abolishing Corporate Personhood 265 164 Corporate Personhood rof corporations Corporate abolitionists believe that the political and social power |_|arJie the stems from their status as legal persons to claim constitutional rights- 1 Court in Supreme Court for giving corporations their personhood status w > ^ claim the late-nineteenth century held that corporations were persons cn t p0int on. equal protection rights under the Fourteenth Amendment. From capacit>' corporations have steadily gained greater rights and correspondingly g,rca ^_ij-v_ the to challenge laws that burden corporate interests. This is why act'V1St^at corpotfl~ Supreme Court is ultimately respons iblc for the power and influence ^ c_)istitu-tions have today. They trace corporate power to the Court's 130 Ye' m_er die tional law jurisprudence establishing rights for corporations as person Constitution. ial role. . a.. a parti The reality, however, is that constitutional analysis played 01 7 * .-verning "[C]orporations were already powerful institutional arrangements c0nstitu-[society and] the complex of individuals and things before they wef^^r wealth and tional protections as persons."75 The large railroad companies with cXtended resources wielded enormous power long before the Supreme ^ ^ Court Fourteenth Amendment rights to them. It is a mistake to believe ^ ver and and constitutional law are entirely responsible for the rise of corpo ^.^.[jtntion is influence in society. The legal personhood of corporations under the 0^any other not solely what created and consolidated corporate power. 'I bere ^ t0 absorb dimensions of the corporation's identity -its wealth, its longevity, itsa j _ t|,at numerous individual participants into one body with a single-mi'K contributed to its empowerment. , rorcc in the Asubstantial part of what makes large corporations such a u0,n,nat.in^lC political, world today is their ability to accumulate such vast amounts of cap"a • deniable, economic, and social power that comes from having money Is ^ much 'Hie capacity to make, keep, and spend that much money 1S 11 n_ it is a function of constitutional law and one's legal standing :>s a P' rjse, free a function of an economic system that embraces entrepreneurial cn ^eWO_i. ui;u markets, and capitalist values, and of a legal system and public policy rJ« cconomic seeks to facilitate the implementation of those values.74 The 11,1 tly lT,0ting the and legal structures we have developed over time have the effect ot pr formation and peq.etuation of powerful coqioratc entities. nosvern. Our system of corporate law in particular makes this coqiorate einp^ possible. Corporate law doctrines allow corporations to be structured a^atJons „. in ways that enable exponential growth and unlimited life spans. Corpo en t " Joslnm Barkan, Cori'Orate SovEREIGN1-,.. /-.imtausM 68 '*"5*' « As one scholar stated almost a century l^™" Government unor.r Ca, 1 ilabm „ the fact that great aecnmnlatio„s ",e ^] ^ ,lcs "ie CT ly po*"™-^ consequently capable of mnch *«Y «>**; tam^S of our economic structureandrrotaeonsapreneeoftl,: L^r'^V'rT"" ^ " n '^S^^™'™ Problem of Corporate Perlonal.ty, 32 CoZ 1 ,. ^ ^"'^ " 3 OUJM-l-Rev. 643,658 (1932)- grow to an enormous size and exist perpetually. They are not generally constrained ky legal restrictions on their wealth, size, or geographic reach. Nor are they held back by time limits on how long they can exist. They are given considerable freedom jo operate for any lawful purpose, to make as much money as they can or want, and to spend it in whatever ways their duly elected managers deem best. Long-standing fjorms involving profit maximization, shareholder primacy, separation of ownership arid control, and deference for the business judgment of corporate managers, have sliaped the role that corporations play in our society.75 The combination of these deeply entrenched coq.oratc law doctrines and norms work together to cultivate an environment where corporations can achieve exactly what activists do not want corporations to have - enormous drive and power to accumulate and spend tremendous amounts of money - and thereby significantly influence our political and social systems. What makes corporations so powerful then is not merely their personhood under the Constitution, but the features of our legal, economic, and cultural systems that facilitate the growth and proliferation of corporations and their large accumulations of capital. While judicial development and interpretation of constitutional law has played a role in elevating the legal status of coq:>orations, our economic and business law frameworks have permitted and promoted corporate advantage and authority as well. In some measure, this is a choice we have made. We have allowed these systems to flourish because we depend on the material goods only large corporations can provide. We live in a consumer world that wants, needs, and demands a wide selection of complex products and services at our disposal, for our convenience, at a good price, on a timely basis. These demands require the ingenuity, organization, and performance of countless coqwrations, without whose large-scale operations the unremitting desires of modern society would go unmet. Corporations provide goods and services that we would find it difficult to live without in our technological day and age. "Many of the things we buy are much more complicated to manufacture and bring to the marketplace than the products of an earlier generation ... Individual producers, whether farmers, craftsmen, or professionals, can rarely satisfy the needs of the community."76 The corporation enables human beings to accomplish, through concerted action, many things that no individual could achieve alone, free of many of the inefficiencies that plague bureaucratic government agencies. Because we need and want what corporations can provide, we have provided legal frameworks to foster their widespread existence and growth. 75 See Ripken, Citizens United, Corporate Personhood, and Corporate Power, supra note i, at 301-13 (discussing the direct connection between corporate power and corporate law doctrines and norms such as shareholder primacy, profit maximization, separation of ownership and control, business judgment rule, perpetual existence, and unlimited growth). Robert G. Kennedy, Corporations, Common Goods, and Unman Persons, 4 Ave Maria L. Rev. 1, 27 (2006). 266 Corporate Personhood nst resources. As a consequence, corporations proliferate, and they accumuia e ' )iave With those resources comes power. With that power, corpo ^ statlis a dominating presence in society. Their pcrsonhood stretches beyon on paper and becomes a real force that is akin to government power. ^ Thus, any efforts to curb corporate power or to address it in a meaning ^ cQn have to involve more than terminating corporations' status as persons^^^^ stitutional realm. Corporate personhood and power do not find their o ^ ^ sively in constitutional law, but in the core fundamentals of the cor^ cntjtjes regime, and in the social and economic systems that animate corn ' j-corpora_ The demands of our consumer culture facilitate the presence and I10^."^^^ social tions, and even our cultural perceptions of corporations give them a ^ p0Vver are identity. In a complex way, the elements required to consolidate corpo ^ embedded in the very structure of law, culture, and society itself- 1 h>s ^"ations anc] a constitutional amendment to revoke the constitutional rights of corp mp\js^ reverse the effects of Supreme Court cases like Citizens United will "^^j crit;cs all that activists hope it will. Indeed, some of the corporation's most ^ ^ acknowledge that "corporate power and malfeasance are not roo ^ can Constitution, which is why excluding corporations from the benefits '^jj^itionall have only limited effects."77 It is possible that "[e]ven were the [cons ^ ^ amendment to pass, the Court could easily read its precedents to requ no change in its doctrine."78 drawatically From this perspective, a constitutional amendment is not likely to < ^ ^ diminish the power and influence of corporations because there will a* around the problem of corporate money. Money, like water, will always °^umujate obstacles and have its way. So long as corporations are authorized to at- ^ ^ immense stores of capital, that money will continue to have its himicnt^ncc will long as consumers want what corporations can provide, corporate pres continue to endure. j to slart Perhaps corporate abolitionists recognize all of this but feel they "^j.^ ^ somewhere. They know that passing a constitutional amendment to a ^ ^ personhood of corporations under the Constitution faces long °c ^mpting presents a much more straightforward and clearly defined route than a to take on all of corporate law and our capitalist economic system as a g structure. To otherwise address corporate power in the compre :hensive manner that corporate abolitionists wish, they would need to challenge core ^ ^ law doctrines and norms, as well as society's fundamental economic va T Bakan, supra note 26, at -556. titutional 78 Dördel I H Greenwood, Neof^alhm, yhe Foundaüons of ^'f% Rig/,,, of Rights, 20.7 U. III. L. Rev. ,63 see a/so Adam Winkler, Corporate Personhood and'U^ ^ Corporate Speech, 30 Seatt.e U. I Rev. 8f>3> 8?i ( , if „ie coU,ts were jo banning of corporate political speech entirely, comorate mfhlence aml power would not tially reduced ... Ihe problem, ,„ a nutshell, is corporate law ») Abolishing Corporaie Pcrsoii/iood 267 consumer preferences, and that is an entirely different battle that ,s much more difficult to wage. Focusing instead on corporate personhood gives acuvis a narrower target. Working to eliminate corporate constitution.-, "glib seems to offer people a concrete, practical solution, a clear objective, and a method for fixing a political system they feel is broken. A message ike Stop Corpoate Greed" is so general and amorphous that it is impractical, he call to amend the Constitution to "End Corporate Personhood," however, has appeal bee > se , 1 r l- „„.,1 i «necific path to take, it i:> it gives activists a precise and definitive goal, a spec i _^mnlish s„L,„ne „„p,e b'c.cve „,cy c„ »kc They view the abolition of corporate personhood as a - solution to limit corporate power. j Qn rcmoving The shortcoming with this approach is th ^ ^ the legal personhood of corporations under the C«™*« to ^ the other dimensions of the corporations KlC y, , ckx than just The perceived personhood of the corporation is ^ of its legal statu, to claim rights under the Const uton^^^^^^^ this book have explained, corporate personhood s. ^ ^ pMosopW. enon that can be analyzed from many differena g ■ m$ Revo]dng thc cal, moral, social, political, economic, and cultimi ^ ^ ^ ^ ^ corporation's legal pcrsonhood for constitution g ^ concept. Activists dimensions disappear. Personhood is more than a ^ ^ ^ ^ believe that lhc «dragon„ of cor,,oratc pcrsonlioo ^ wil, the corporation is no longer a person for purpo ^ ^ corporations are not by itself obliterate thc many other non-legal r - ^ ^ idea 0f regarded as persons in society. "Some may be ten I mQ^ ]gnoring the corporate personality entirely, but this is not a v^ciety create will not make organizations pcttons tllat laW| government, an acA entincs> and their them go away."7'' Corporations arc complex, rm < Addressjng the perceived pcrsonhood ;uiscs from „10re than ici ^ questions about corporations personl]0od and power requires us «fof oursc]ves and the economic, social, and political systems we i satisfacioty ansWers to .....v-, social, and political systems we satisfactory answers to how we Want t0 QrJcr o)ir prioriHcs aud values. ^ AwnU mAc [o the these and deciding what changes, 11 ' J'bcyond the scope of this nnderlymg striIctures that enipoWCr corporation ^ ^ on]y t0 ^ok; but it Win likcl rc irc a mHCh larger n n terminate tht ^ 0/co orations under the Cons UmV, ,*S Are Pe°"-K '''CO, siipw note 59 Make Pn ""^ '^V clies "f 'CoTP°131'rn'ri'sArc Peof corpl |0rpolat,°™ Human Again or 'If Corporal »" „ COrpor^ Personhood should he our goal, not our fear. r, ,,,, „ 72 (2013); see also Greenfield, T T"E "1 f respoO^'-S t° c;,ses such M Cl'femS . - co it»' ("I'«!«"1" "I , UouUi be chanting 'Let s z68 Corporate Personhood THE ROLE OF SOCIAL MOVEMENTS IN INFLUENCING DISCOURSE AND LAW Perhaps the movement to abolish corporate personhood can draw the >13 1 1 .- .. '.'hc drive to amend the , it cannot be a^ffectjve instigator of an important dialogue about what role corporations can and s ioi 1 ^ ^ in society. In this regard, the corporate abolitionist movement may kcn0Pin^ (]ie the same success that other historic social movements have had in m needle of public opinion toward stricter regulation, despite a a constitutional amendment a broader conversation about those deeper questions. The drive fln effcctiv Constitution may not be successful, but that does not mean it cann°^j ^10Uld play failure to obtain 'Hie organized women's movement of the i97oS accomplished ibis task. Although the movement failed in its effort to add the Equal Rights Amendment (BRA) to the Constitution to prohibit sex discrimination, the law today effectively operates as if the ERA had been adopted. Legislatures l,avc CIWctccI !aws am] the Supreme Court has interpreted the Constitution to forbid discrimination based on gender, leading many legal scholars commonly t0 acscribc t,lc «fai}ed constih,tionaI amendment as a successful one." Similarly, environmental activists never triumphed in securing const.luuonal protection for environmental sustainability But they did succeed in motivating widespread concern for the environment and prompted the enactment of he substantial environmental regulatory system we now have in place, signifying a transformation ,n American law that could be described as quasi-constitutional in scope. 1 A social movement's failure to amend the Constitution does not necessarily spell failure to c range soceta values and, ultimately, ,0 change how the Constitution ,s interpreted, the amendment proposal process can be used as a political forum for expressmg v.ews and makingargtlmcnts abou, ^ Constitl,ion doesorshould mean. Debate over whether to amend the Constitution can create a climate for ('(I he women's movement ... Was aU„ , "W'c 150 U. Pa. I» Kl,v-] J c virtually everything the ERA would have ^ °,J ""^ «*,«,, ™^ tot Constitution."); David A. Straus.,, T/lclirP " l,ad 11 becn n,"fie<' ,v I. Riv .457. 1476-77 («xa) (Today, » is dimculTT"^ Cf"stil"tim"1 Amendments, n4 • j ■ differentfrornwhatitwouldbavebee, u',^'^''^ an>' resPect in whid' '"'^enU the Supreme Court has acted as if the ^ adopted. Kor the last quarler^ntrm, basis of gender."). "10n co'"-w>s a provision forbidding disennnr Cary Coglianese, Social Movements Lmi> iv r iron Movement, 150 U. Pa. I.. Rev. 85, o8 ^«T- TÄe institutionalization offcn>. s . , Movements, end the Wight to liUa, 1^ (expiring bow several social Ä6^.. 4 Stan. J.C.R. eV C.L. 339-laws, ami (he interpretation of constihui , ,,atl a dramatic impact on altering s°cl 8* See g «™"d ",e Co,,S" nation on the mental Abolishing Cor/)ordfc Person/iood 26g . „„.vu,,iinnil issues. Popular movements that citizens to wrestle will, important ^°"S "^fconsti.ution is applied over time «5 oppose the status quo help to shape the way dKX^ IP ^ Although the Supreme Court, through con» and Hobby Lobby, plays a large role ^^c^ that arte to dispute important social and political issues, p0i , . soasweU. Social movements, those decisions can play a significant '°'e * ^ ^ ^ concept that is heavily laden disquietude over corporate personhood persis s^ jc w\w WOrry about the scope with meaning, whether justified or not, for many and exercise of corporate power across the g 0 an(j Hobby Lobby, which Recent Supreme Court cases like C'j126"^ concern over the idea of treating solidify corporate rights, have heightened pu^^meiita] dghts of their own. corporations like persons with claims to ^ nia.nslrcanl attention and a target Corporate personhood has become a topic °c^stjtul:on has spawned important of activists' ire. The movement to amend the nhoo(1 ami created a broader discussions about the meaning of corpora el ^ contoms ,n ,his regard, the need for books like this one to explain and >« » to thc discourse surrounding corporate abolitionist movement has coutn ^ discourse, may ultimately corporate personhood and power, and by a te nghts. Many social move- influence the direction of the law regarding i ^ Consnultion, but they have ments of the past have tried and failed to an ul,.mately the courts interpret nonetheless effectively altered how society « en whethcr thc ongoing move-important constitutional issues. U «*«ain?™ treat, and protect corporations will ment to change thc way we currently vie , accomplish its objective. I to ChaK°) ",c Constitution: The Case 0/ s, c 1 , Change (o'^"' °, nalkin oVRevaB. Siegel, Principles, 3 S« M. MVin, How Social Movements .....' 'onsb'P deeply ambiguous. Americans have a "long-standing lovc/liatc re poration" characterized by an "enthusiastic embrace °^'1C-^i^stnist of it as The place of corporations in our society and in our legal system has always bee. jrporation as an engine of opportunity and prosperity, and [a] simultaneous skeptica a source of corruption and driver of inequality The corporation is an extraordinarily useful instrument that can channel the collective energies of individuals to accomplish tasks that would be impossible for an individual to undertake alone. Corporations permeate almost every part of our lives contributing to so many integral aspects of our existence, including our food housing, healthcare, security, transportation, amusement, and communication needs Through the production and distribution of innumerable goods and services the corporation has revolutionized the way we live and offers every likelihood of further extending human possibility. h,ven so, the benefits produced by the corporation have come at a very high cost. Corporations have exposed us to unprecedented environmental hazards, worker alienation and exploitation, manipulative marketing, unsafe products, and financial scandals leading to market collapses that have had devastating rippling effects on people and communities worldwide. While the corporation would like lobe viewed as an engine o economic growth and a bulwark of democratic prosperity," it might also be legitimately described as "a potentially da (hrcat to that sainc democracy - a site of coercion, monopoly, and thc a lomcraHon of cxccssivc social, economic, and pohtical power. 1 hesc concerns about corporate power are a factor driving the current popular movement to elimir.^i 11 ,- „t, ' ' Constitution e,,minate the status of corporations as persons i We typically have ambivalent f«v>i;., i , desire nil thp mntlri.il kLd il mgs about corporations because we desire all trie material benefits thev can nrr,„;,i l , , i • ^mriH. tr. 1 ti- l i w prov,dc'D»t we fear their power and their capacity to harm, fins has led to coinnctinrrTM.ir 1 . A fieilirih- >l«.tmg pL,hi,c p0 c ti t i , SUDport and facilitate corporate activity while a so trvin.r r„ . , i v,r intent y 0 try'ng (o restrain and regulate it in the public interest. ' Naomi R. lamoreaiix& William i m i _ I r ■ Corporations and American DnLrT ' U"Pnmlio™and American Democracy: An lntmauci'on, m ■ Id. "Wocwcv2 (Naomi R Ummcm% & Wi,|ian,,. Novak e, anu tins ls an rnnortant aisti"1-11" ,.11 1 1 , t..<-fJ" ""I" , , r ,f./in 0f individual personhood, I capture the many '^is, and this is an important cum..— f hi(]ividuai personhood, there is no Just as thcru is no sjng]c scttkd definition t]lat can capture the many singular description of thc character of the corl ' tion can be conceptualized in dimcnsions of its perceivcd personhood. 11« cor> 270 272 Corporate Personhood different ways depending on one's point of view. All of the ^""^'poMsing perspectives shed light on different facets of the corporation as a pe ^ coniplcx on one aspect to the exclusion of the others risks oversimPhfica,!° nceptions social, economic, and political realities. The conflicting and coinciding ^ ^ ^ of the corporation arc not necessarily right or wrong, "neither true noi. omcnon only more or less helpful in calling attention to certain aspects of the P ^ under study."5 Each theory of the corporate person "has some vah ^'fluctuating butes to a better understanding of the full dimensions ofa'remarkaoiy reality.'"4 , textured, and Personhood does not fit into a neat and tidy box. It is complicate , ^ dynamic. People and societies change over time. Corporations ^cet the As human collectives, corporations continually adapt and evolve 0 jQns demands and preferences of each generation. Our understandings o c eJ ;n and personhood arc fluid and subject to adjustments as we experience ,5e];ers> our circumstances, political structures, economic conditions, legal systC"^!inges in language, and culture. Our interactions with corporations bring about c u ^ them and us. How we perceive the personhood of corporations is aticc .njtitu_ engagement with them: "shifts in the nature of some of the most power v tions in our society have caused shifts in the way that persons rela c )ioq{j institutions, and consequently shifts in the cultural meaning of Pas ^ ^ itself."5 What a person is at any one point in time is an unfinished P10'^^ to it is with the corporation. Conceptions of corporate personhood are > change over time, and matter in different ways for different issues. As the ^ shapes and is shaped by the fluctuating factual realities of the corporate en the "law, like ourselves, is always in flux, always 'becoming.'"6 The "eVCr'Cl over quality of law" suggests that any attempted resolution of the con}xoVC^^ js corporate personhood will never be a final answer to the question: a corporation?7 dcfy Corporate personhood is not a unitary concept, and it raises issues - d unitary treatment. Determining the legal u,les by which corporate perst>nS and be governed will necessarily involve a consideration of competing va i » W. Richard Scott, Organizations: Rational, Natural an,, Opkn SysiV.MS 3° (5«'^^^ "[P]aradigm» are not r,gh, or wrong, but they are predicated on the notion that certain < ,„ pameb ■more important and certam approaches to answering those cpies.ions are 'more lKf 1 (,0<* zoog) (referring to lliomas Kuhn's views of paradigms) , COW. L. ♦ Phillip I. Blumbeig, 1 he Corporate Entity an E,a of Multinational Corporations, .5 ^ J" 283,295(1990) uu Eric Gu.hey New Kron Ilomam,,Jsm ^onhooi T^iSoiS CTnTmG Cow'"^ AmJca: llL.iv, Pouncs, 325 (Kenneth Lipartito & David B. S cilia ™l„ ____> end the 325 (Kenneth Lipartito & David B. Sicilia eds 200,. 6 William T.Allen, Our ScfcophrimicCW.Ar' /, „ • ,C\*a070 279 (]g9^ v """conception of the Business Corporation, M OAK,JW 7 See id. kPHV.261, Conclusion 273 a balancing of varying interests. "Human [and corporate] life is all about choices, and we cannot have it all. When important values come into conflict, the sensible approach is not to resolve ahead of time to pick one over the other." Instead of dogmatically adhering to a particular theory of the corporate person that preferences one set of values over others in all circumstances, we should remain flexible and open to the many different conceptions of the corporation that highlight the corporation's diverse roles and multiple purposes. Corporations are multidimen- • 1 1.1 1 .» i„nl „>itli them will need to be sensitive to their sional, and the law we construct to deal with mem i.-r 1 1 11 ti 1 t ,„iiniT ind accounting tor the various dimen- multifaceted nature as well. Understanding anu ao-uu b ru . ii. 1 „„„ T^nWic nolicies and legal rules that can sions of the corporation can help to shape public pun t> rr • 1 1 , 1 -t, „nrl the diversity 01 corporate organtza- effectively accommodate the complexity and tne aiyt. 7 1 & , , , , 1 • „u„,vq for selective application of different tions. A broad, mu t d mens onal analysis allows tor se.u it , i;„„nn the situation and the issues to be conceptions of the corporate person, depending on tne eC' C ' .....1 will require difficult choices as At t.mcs, the process of legal dec,s,on-mak>ng vnl circnmstances than different values and interests will be more pre. g ^ ^^.^ ^ others. The inevitable clash of values and ^orlC ;ationsarccomp,ex>andtiiey difficult and can lead to inconsistent results. But co 1 ^ ^ corporations, need complex rules. "[W]e must have law and " 'an tQ construct a iegal systcm What more could we do, under such circumstances> ' ^ ^ u wouU that is as multifaccted-or, if one prefers, contracuci y presumably regulate?"10 personhood, corporate rights, The decisions we make today regarding coroor 1 ()f olir moment in history, and corporate duties will necessarily be a "II1C ' ^ 0f corporations in their The determinations represent our current "nders ^)rconccptions ofthem, are not contemporary context. However, corporations, ant °l in formulating rules to static. It is to be expected that the compromises Wc.s.onstliatseem suitable for our govern corporations may not last forever. Certain ec'^ ^ ^ ^ society today may turn out to be less acceptable at a ons> and those who seek status of corporations to claim all the rights of in U,VV, [hat will call for a certain to abolish fllat status altogether, hold strong p«*^ consenSlls, the best that we can amount of softening on both sides. In trying to reac a equilibrium, which is do is work towarc] "promoting and preserving >;11 r^jere wii] be mllch occa-constantly threatened and in constant need ofiep1" ^ .dentUy imp0rtant values, sion for exercising sound judgment. As we stiw ^ ^ controvcrsial balance competing in,creslS! craft appropriate lega ' ^ ' *™ »• Sbidrin, W,W-S W.osc w.tuth, ^^^Jolal Approach to the Corporate Susanna K. Ripken, Corporations Are People Toa AM" Personhood ^ ^ &. m L. f^lichclorl, 5o Was),. & Ux L. 73, Z S'^ C0r^ti0n: WW'C ^ or t^vs .6 (Henry Hardy ft Roger " |f alJ B«Iin, T„K PRol,R Study of M*n«no= An Ilausliewcd,., 1998). 274 Corporate Personhood ZTd "Sir,?? t wi,! ,,ave to usc °,,r bcst jucig,,,enř in "sht °{a]] ti,at we ''he resulHne re C°rporate pers»'ls "«1 their reason for being. Wendell Holme . "S nor 3,ways be consistent or logical. But, as Oliver ^out experience , f',C Iife of fl,c iaw rea,,y is not always about logic, but sitics of the time the mak;"g reasonable decisions based on the "felt ncces-Policy, avowed ™ 16 provalcnt m»ral and political theories, intuitions of public W uncon«i°us»» as well as the implicit beliefs we Mal and political theories, inl^ ^ ^ makings of a good society. The ideas that come from different ^'^"^j^ 0f the tives influence our beliefs and intuitions. Having a broad un r.derstanding ot tne r 'nlinary angles multidimensional nature of corporations as persons from various iscip ^ morc will help us to make important judgments about corporate I"atU'rS]].s ))00k bas informed basis. In an effort to facilitate that broader understanding, ' iti_ "luininate tin- explored the unique contributions of different disciplines to il faceted nature of the corporation. najvsis in the What is corporate personhood, and why does it matter? As the ana^cstJons is. preceding chapters has attempted to show, the answer to both of those q ^.^^ It's complicated. The corporation is as complex as the human persons v< ^ deepiy it. Whether the corporation is, can, or should be considered a afferent ntested. The nations and many here arc many different types of corporoii""- ni,0od can dimensions of personhood. The extent to which corporations and pers ^ ^ ^ be sensibly combined for legal, economic, political, and moral P"Jt)ie „nique Jualist a settled matter. Perhaps it is simply a story in progress. It is a story abou ^ relationship we have with corporations - organizations that fulfill bolU » ^ ^ and collectivist functions, that serve both private and public purposes,. „ ^ both as property and person. Time will tell how the story will unfold. Our ■ to do our best to move the storyline ever toward an Meal'balancc between m< and the vast array of corporate organizations that have become so larger human narrative. |(]ividuals central to our " O.W.IlolmK>Jr.,Tlu,CüMM( ion Iaw i (lawbook Kxch. 2005) (1881). Bibliography Ahd Albert Oi rfan>*at;onal Identity - h^haijng nih Cow^ 'mace, ]^,_. Be Aich - •.„,, coRrORA-"0"' uwei, MARKV.t1no 77 ,, p ■wit.at.on,' corpora™ B.*» ' ^ ■ m M- T. Balmc, A GrCVS° Ar-~ ■ lian All n, corpora™ c(ls. .cr& Stephen A^Ggc & Harold Dcmscfc, 1«*» L-^v.26l(: mien A rga'»>a!io ;1 ii'/"' roia - rort0ra(ioM,>4CARUO-/.o * Am. Kcon. Rkv. 777 (>97 ' f (/w p«in«« Our Schizophrenic Concept** of ^ ofVmnkPhdP and , V'w9,Irien* L** Fl""'S'"T*"( ^^fly. In Tnr: Ha**** Alvcsw». Mats, Or^^^/rure: M^J^I M. A**"^ Anal Alscliul<; Deod, 01- Amkhjcan Arn; R|. . L. Rev. 307 l'9v''- . „ n, .Q|) - J.Orgaíion£l;bullu*: M«"«»«^ Law „........tionalCulture--.^ ^•»ONA,. CUI.TURK ano CUMA^ 'co\i; In Anders And Ashfotth ....... 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