Constitutional Dimensions of the Corporate Person: Corporate Free Speech
01 Aug 2019-pp 129-178
TL;DR: For example, the United States Supreme Court has held that corporations are entitled to claim an extensive array of constitutional rights as discussed by the authors, and the justifications for these rights have developed from the many different conceptions of the corporation as a legal, moral, economic, social, and political actor.
Abstract: The term “corporation” does not appear anywhere in the United States Constitution, yet the United States Supreme Court has held that corporations are entitled to claim an extensive array of constitutional rights. The justifications for these rights have developed from the many different conceptions of the corporation as a legal, moral, economic, social, and political actor. In particular, the constitutional dimension of the corporation’s personhood is an extension of its legal personhood. Therefore, the fundamental legal theories of the corporate person, i.e., the artificial person, aggregate, and real entity theories, have had a role in supporting the extension of constitutional rights to corporations. The moral and sociological dimensions of the corporate person have also been important. In determining the scope of corporate constitutional rights, the Supreme Court has considered the actual and normative roles and purposes of corporations in our pluralistic and democratic society. Considerations of corporate power, both economic and political, have contributed as well to the debate over which constitutional rights appropriately apply to corporations.
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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
Posted Content•
TL;DR: Laufer as mentioned in this paper argues that even with recent legal reforms, corporate criminal law continues to be ineffective and analyzes the games that corporations play to deflect criminal responsibility, and also demonstrates how the exchange of cooperation for prosecutorial leniency and amnesty belies true law enforcement.
Abstract: We live in an era defined by corporate greed and malfeasance—one in which unprecedented accounting frauds and failures of compliance run rampant. In order to calm investor fears, revive perceptions of legitimacy in markets, and demonstrate the resolve of state and federal regulators, a host of reforms, high-profile investigations, and symbolic prosecutions have been conducted in response. But are they enough? In this timely work, William S. Laufer argues that even with recent legal reforms, corporate criminal law continues to be ineffective. As evidence, Laufer considers the failure of courts and legislatures to fashion liability rules that fairly attribute blame for organizations. He analyzes the games that corporations play to deflect criminal responsibility. And he also demonstrates how the exchange of cooperation for prosecutorial leniency and amnesty belies true law enforcement. But none of these factors, according to Laufer, trumps the fact that there is no single constituency or interest group that strongly and consistently advocates the importance and priority of corporate criminal liability. In the absence of a new standard of corporate liability, the power of regulators to keep corporate abuses in check will remain insufficient. A necessary corrective to our current climate of graft and greed, Corporate Bodies and Guilty Minds will be essential to policymakers and legal minds alike. “[This] timely work offers a dispassionate analysis of problems relating to corporate crime.”— Harvard Law Review
37 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
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