(Mis)Conceptions of the Corporation
University of San Francisco - School of Law
June 5, 2012
29 Georgia State University Law Review 731 (2013)
Univ. of San Francisco Law Research Paper No. 2013-29
Common conceptions of the corporation are wrong. Contrary to contemporary jurisprudence, a corporation - a piece of paper that is given legal legitimacy by a state - is not a person worthy of constitutional rights. A corporation, as a legislative creature, should only enjoy those rights bestowed upon it by its creator.
The Article is structured into three principal sections. Part I tries to argue that the only appropriate theoretical construct with which to conceptualize a corporation is one which posits the corporation is an artificial creation of the state. First, it outlines three competing theories - artificial, associational, and real entity - as well as the apparently increasingly popular notion that theory simply doesn’t matter. It argues that as Supreme Court precedent evolved, it became sadly muddled and that today the Court has essentially given up on theorizing the corporation. Second, it argues for the artificial entity theory on the basis on common sense, constitutional history, and the continuing role of the state in chartering corporations.
Why has the artificial entity theory fallen deeply out of favor? Part II, which explores the political economy of corporate theory, argues that instrumental reasons explain the decline of artificial entity theory: anti-regulatory fervor and a desire to privilege a managerial class. Next, it tries to address some concerns that might emerge to my conceptualization; notably, that not offering constitutional rights to corporations is too stark and reductionist an approach, as well as the notion that such as restrictive conception of corporate personhood might jeopardize attempts to find corporations liable under criminal or international law.
Finally, Part III wonders whether the law has been headed in precisely the wrong direction: rather than asking whether corporations deserve constitutional rights, should the real question be whether constitutional rights should be asserted against corporations?
Number of Pages in PDF File: 53Accepted Paper Series
Date posted: June 5, 2012 ; Last revised: October 23, 2013
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