Constitutional Dimensions of the Corporate Person: Corporate Religion and Race
01 Aug 2019-pp 179-240
TL;DR: The idea that a corporation is a person entitled to certain constitutional rights has become the subject of intense debate in the context of religion and race as mentioned in this paper, which has generated significant controversy in recent years.
Abstract: The idea that the corporation is a person entitled to certain constitutional rights has become the subject of intense debate in the context of religion and race. To what extent can and should corporations be regarded as persons with the status to claim fundamental religious liberty rights and racial equality rights? Can a corporation be associated with a certain religion or race if most or all of its human members identify with one religion or race? Does it make sense to say that the corporation itself can possess and exercise religious beliefs, thereby entitling it to religious liberty rights? Is it possible for a corporation to have a racial identity, thereby affording it standing to claim it has been discriminated against on the basis of its race? Cases involving such questions have generated significant controversy in recent years. The Supreme Court has affirmed the statutory right of corporations to freely exercise religion, and federal courts have developed a body of law to allow corporations to assert racial discrimination claims.
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TL;DR: More recently, Tocqueville as mentioned in this paper argued that "nothing has changed and nothing has changed since Democracy in America was published in the 1830's" and that "everything has changed with each exposure to it".
Abstract: more impressive with each exposure to it. Everything has changed and nothing has changed since Democracy in America was published in the 1830’s. Its author grasped with remarkable perception both the mutable and the immutable qualities of man. There could be nothing more salutary for us today than to assimilate his fine sense of what was permanent in a world which, like ours, was undergoing deep convulsions. Committed to the classical economics of Adam Smith, Tocqueville did not share Smith’s illusions about the eternal nature of the market. On the contrary, as Albert Salomon has emphasized, his point of view
1,009 citations
TL;DR: A review of the book "A Social-Contract Theory of Organizations" by Michael Keeley can be found in this paper, where the authors describe the book as "a social-contract theory of organizations".
Abstract: The article reviews the book “A Social-Contract Theory of Organizations,” by Michael Keeley.
79 citations
TL;DR: The impact of Citizens United on the scope of permissible campaign finance regulation is far less substantial than commonly assumed as mentioned in this paper, arguing that even if Citizens United's incremental impact is mild, it nevertheless seems to have the feel of a final straw, with opponents invoking a broad vision of a dystopian political process overwhelmed by corporations.
Abstract: Perceived corporate power has spurred a recent populist backlash, on both political left and political right. In this atmosphere, the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, granting corporations the right to spend directly on express political advocacy, has become the target of particularly heated critique.This Essay confronts the impact of Citizens United in two respects. Part I first reviews Citizens United’s place in the campaign finance constellation. It argues that although the decision was a bold stroke in many ways, its impact on the scope of permissible campaign finance regulation is far less substantial than commonly assumed. Even if Citizens United’s incremental impact is mild, it nevertheless seems to have the feel of a final straw. The decision has provoked first furor, and then fear, with opponents invoking a broad vision of a dystopian political process overwhelmed by corporations. Yet rarely is the fear of corporate political spending articulated at a level of specificity conducive to assessing, or confronting, the perceived damage. Part II takes up the challenge, parsing the pragmatic concerns at the root of opposition to corporate political spending. It then offers responsive policy proposals - including an approach to protect against monopolization of media channels, an appealingly straightforward disclaimer label to mitigate voter misperception, and a novel application of a recusal obligation to combat the appearance of corruption - all well within the regulatory space undisturbed by Citizens United.
36 citations
Posted Content•
TL;DR: The authors argue that the Court, to date, has not granted constitutional rights to corporations in their own right, but has granted them to corporations either derivatively, when necessary to protect the rights of natural persons assumed to be represented by the corporation, or instrumentally, when needed to protect rights of parties outside the corporation.
Abstract: This Article engages the two hundred year history of corporate constitutional rights jurisprudence to show that the Supreme Court has long accorded rights to corporations based on the rationale that corporations represent associations of people from whom such rights are derived. The Article draws on the history of business corporations in America to argue that the Court’s characterization of corporations as associations made sense throughout most of the nineteenth century. By the late nineteenth century, however, when the Court was deciding several key cases involving corporate rights, this associational view was already becoming a poor fit for some corporations. The Court’s failure to account for the wide spectrum of organizations labeled “corporations” became increasingly problematic with the rise of modern business corporations that could no longer be fairly characterized as an identifiable group of people acting in association. Nonetheless, the Court continued to apply the associational rationale from early case law and expand corporate rights into the realm of speech and political spending without careful analysis of when the associational approach would be appropriate. We set forth a theoretical framework that we believe is consistent with the underlying logic of the Court’s jurisprudence, based on the concepts of derivative and instrumental rights. Specifically, we argue that the Court, to date, has not granted constitutional rights to corporations in their own right. Instead, it has granted rights to corporations either derivatively, when necessary to protect the rights of natural persons assumed to be represented by the corporation, or instrumentally, when necessary to protect the rights of parties outside the corporation. Further, we consider the implications that this framework, with a more nuanced view of the spectrum of corporations in existence, would have if applied to recent corporate rights cases, such as Citizens United. We believe this framework provides a principled path forward for the difficult line drawing between corporations that needs to be done.
18 citations
01 Jan 1987
TL;DR: The Dartmouth College decision defined the corporation for the American bar for much of the nineteenth century as discussed by the authors, which held that a corporation was an artificial person that owed its existence more to government than to its corporators and, as a creature of positive law, had only the rights and privileges that obtained from the government's grant.
Abstract: The personification of the corporation was once of central concern to American jurisprudence. Diverse political and economic views, phrased in the language of legal discourse, were essential to discussions of the corporation's design, form, function, and operation. After the Second World War, however, the place of the corporation in law had ceased to be controversial, and both theoreticians and practitioners concerned themselves instead with organizational theory and economic analysis of corporate behavior. The corporation as a legal institution ceased to be of interest. The historical and jurisprudential debates which had consumed the energies of some of the leading legal scholars were relegated to the introductory pages of corporation law textbooks, if they were discussed at all. As a result, a modern lawyer knows only that a corporation is considered a legal person but finds that terminology devoid of content. Nineteenth and early twentieth century lawyers, however, knew that when they called a corporation a person the reference meant something. The Dartmouth College decision defined the corporation for the American bar for much of the nineteenth century.1 Handed down in the period when corporations were first emerging as a regular vehicle for economic enterprise, the case held that a corporation was an artificial person that owed its existence more to government than to its corporators and, as a creature of positive law, had only the rights and privileges that obtained from the government's grant.2 By the late nineteenth century, however, the process for granting corporate charters had radically changed. Corporations had become, if not commonplace, then at least not unusual. While the artificial corporate person enjoyed favor among businessmen who sought the protections it offered, it had also become the object of
15 citations
References
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TL;DR: In this article, the authors draw on recent progress in the theory of property rights, agency, and finance to develop a theory of ownership structure for the firm, which casts new light on and has implications for a variety of issues in the professional and popular literature.
Abstract: In this paper we draw on recent progress in the theory of (1) property rights, (2) agency, and (3) finance to develop a theory of ownership structure for the firm.1 In addition to tying together elements of the theory of each of these three areas, our analysis casts new light on and has implications for a variety of issues in the professional and popular literature, such as the definition of the firm, the “separation of ownership and control,” the “social responsibility” of business, the definition of a “corporate objective function,” the determination of an optimal capital structure, the specification of the content of credit agreements, the theory of organizations, and the supply side of the completeness-of-markets problem.
49,666 citations
TL;DR: The authors argue that the separation of decision and risk-bearing functions observed in large corporations is common to other organizations such as large professional partnerships, financial mutuals, and nonprofits. But they do not consider the role of decision agents in these organizations.
Abstract: ABSENT fiat, the form of organization that survives in an activity is the one that delivers the product demanded by customers at the lowest price while covering costs.1 Our goal is to explain the survival of organizations characterized by separation of "ownership" and "control"-a problem that has bothered students of corporations from Adam Smith to Berle and Means and Jensen and Meckling.2 In more precise language, we are concerned with the survival of organizations in which important decision agents do not bear a substantial share of the wealth effects of their decisions. We argue that the separation of decision and risk-bearing functions observed in large corporations is common to other organizations such as large professional partnerships, financial mutuals, and nonprofits. We contend that separation of decision and risk-bearing functions survives in these organizations in part because of the benefits of specialization of
14,045 citations
8,910 citations
TL;DR: In this article, the authors explain how the separation of security ownership and control, typical of large corporations, can be an efficient form of economic organization, and set aside the presumption that a corporation has owners in any meaningful sense.
Abstract: This paper attempts to explain how the separation of security ownership and control, typical of large corporations, can be an efficient form of economic organization. We first set aside the presumption that a corporation has owners in any meaningful sense. The entrepreneur is also laid to rest, at least for the purposes of the large modern corporation. The two functions usually attributed to the entrepreneur--management and risk bearing--are treated as naturally separate factors within the set of contracts called a firm. The firm is disciplined by competition from other firms, which forces the evolution of devides for efficiently monitoring the performance of the entire team and of its individual members. Individual participants in the firm, and in particular its managers, face both the discipline and opportunities provided by the markets for their services, both within and outside the firm.
8,222 citations
Book•
01 Jan 1999
TL;DR: The Cognitive Science of Philosophy: A Cognitive Science Of Basic Philosophical Ideas as mentioned in this paper The Cognitive science of philosophy is a branch of the philosophy of early Greek metaphysics and philosophy of philosophy.
Abstract: * Introduction: Who Are We? How The Embodied Mind Challenges The Western Philosophical Tradition * The Cognitive Unconscious * The Embodied Mind * Primary Metaphor and Subjective Experience * The Anatomy of Complex Metaphor * Embodied Realism: Cognitive Science Versus A Priori Philosophy * Realism and Truth * Metaphor and Truth The Cognitive Science Of Basic Philosophical Ideas * The Cognitive Science of Philosophical Ideas * Time * Events and Causes * The Mind * The Self * Morality The Cognitive Science Of Philosophy * The Cognitive Science of Philosophy * The Pre-Socratics: The Cognitive Science of Early Greek Metaphysics * Plato * Aristotle * Descartes and the Enlightenment Mind * Kantian Morality * Analytic Philosophy * Chomskys Philosophy and Cognitive Linguistics * The Theory of Rational Action * How Philosophical Theories Work Embodied Philosophy * Philosophy in the Flesh
6,747 citations