15 Pages Posted: 4 Sep 2012
Date Written: September 2, 2012
The Occupy Wall Street Movement and the controversial Supreme Court decision in Citizens United have combined to bring back to public debate an issue long considered non-controversial: whether private corporations are legal persons. This paper argues that a complete understanding of the debate requires analysis of four distinct approaches to the characterization of the corporate form, including a reassessment of the Supreme Court’s 19th century Santa Clara decision. Liberal and left analysis of the personhood issue has been stymied by the assumption that the debate had long been settled, as suggested in the classic article on the Santa Clara case by the critical legal studies (CLS) figure, legal historian Morton Horwitz. This paper suggests that Horwitz’s analysis, while valuable, has critical flaws including a failure to recognize the impact of law and economics thinking on this topic. Any attempt to reassess personhood must take into account the underlying nature of capitalism, which the paper suggests has been problematic for the CLS school.
Keywords: Santa Clara, Corporate Personhood, Citizens United, Morton Horwitz, Occupy Wall Street
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