Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century

Daniel Lipton

University of Virginia - School of Law, Alumnus or Degree Candidate Author; Covington & Burling

December 1, 2010

Virginia Law Review, Vol. 96, 2010

Traditional historical accounts of corporate personhood in the early twentieth century portray corporate law as the extension of a doctrinal conflict between the real entity and artificial entity theories of the corporation. Artificial entity theory posited that the corporation was a creature of the state, and could therefore be regulated with impunity. Real entity theory maintained that corporations existed independently of the state, and therefore possessed rights, duties, and morality, as would any natural person. In the traditional narrative, corporate power expanded because real entity theory triumphed over artificial entity theory. This Note rejects that either real entity or artificial entity theory were foundational doctrines in early twentieth century corporate law as applied by American courts, and uses corporate crime and politics as a platform for debunking that myth.

After 1905, Congress and state legislatures passed laws banning corporate political expenditures. Around the same time, lawmakers enacted groundbreaking statutes subjecting entire corporations to criminal liability. The American judiciary reacted favorably to both legislative movements, contemporaneously citing elements of artificial entity theory to justify bans against political contributions, and real entity theory to rationalize corporate criminal liability. This suggests that the real entity and artificial entity theories were more instrumental than foundational concepts in the courts.

The judiciary, however, was not without doctrinal ballast. It defined corporate personhood and constitutional rights through the property interests entangled in the corporation. Corporate personhood thus emerged in the decades preceding and following the turn of the twentieth century through the substantive due process analysis that characterized much of the Lochner Era jurisprudence. This concept of corporations as repositories of property interests ultimately explains why courts were willing to uphold bans on corporate political contributions and recognize corporate criminal liability.

The Note concludes by examining the continued relevance of property interests with regard to corporate personhood in the recent and controversial Citizens United decision. In particular, without directly challenging the First Amendment policies of the present Court, this Note seeks to add historical depth to the debate in Citizens United and demonstrate that affording corporations the right to political expenditures was neither doctrinally mandated nor historically inevitable.

Number of Pages in PDF File: 54

Keywords: Citizens United, Corporations, Campaign Finance, Corporate Crime, Political Contributions, Lochner Era

Open PDF in Browser Download This Paper

Date posted: October 9, 2011  

Suggested Citation

Lipton, Daniel, Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century (December 1, 2010). Virginia Law Review, Vol. 96, 2010. Available at SSRN: https://ssrn.com/abstract=1766081

Contact Information

Daniel Lipton (Contact Author)
University of Virginia - School of Law, Alumnus or Degree Candidate Author ( email )
580 Massie Road
Charlottesville, VA 22903
United States
Covington & Burling ( email )
1330 Avenue of the Americas
New York, NY 10019
United States
Feedback to SSRN

Paper statistics
Abstract Views: 1,204
Downloads: 178
Download Rank: 133,831