Reconceiving Corporate Personhood

2011 Utah L. Rev. 1629

47 Pages Posted: 31 Dec 2010 Last revised: 3 Nov 2012

See all articles by Elizabeth Pollman

Elizabeth Pollman

Professor of Law; Co-Director, University of Pennsylvania Law School – Institute for Law and Economics

Date Written: November 2, 2012

Abstract

Why is a corporation a “person” for purposes of the Constitution? This old question has become new again with public outrage over Citizens United, the recent campaign finance case which expanded corporate constitutional speech rights. This Article traces the historical and jurisprudential developments of corporate personhood and concludes that the doctrine’s origins had the limited purview of protecting individuals’ property and contract interests. Over time, the Supreme Court expanded the doctrine without a coherent explanation or consistent approach. The Court has relied on the older cases that were decided in different contexts and on various flawed conceptions of the corporation. This Article argues that the doctrine of corporate personhood should be understood as only the recognition of a corporation’s ability to hold rights in order to protect the individuals behind it. Properly understood, corporate personhood is only a starting point for analysis and not a justification for granting or denying rights to corporations. Further, the Article suggests an alternative approach for determining the scope of corporate rights. Corporations should hold a constitutional right only when the objective behind the particular right is furthered by providing the corporation, and thereby the people underlying the corporation, with such right.

Keywords: corporate personhood, corporate person, corporate rights, personhood, Citizens United, Dartmouth College, Santa Clara

Suggested Citation

Pollman, Elizabeth, Reconceiving Corporate Personhood (November 2, 2012). 2011 Utah L. Rev. 1629, Available at SSRN: https://ssrn.com/abstract=1732910 or http://dx.doi.org/10.2139/ssrn.1732910

Elizabeth Pollman (Contact Author)

Professor of Law; Co-Director, University of Pennsylvania Law School – Institute for Law and Economics ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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