Culture in Corporate Law, or: A Black Corporation, a Christian Corporation, and a Maori Corporation Walk into a Bar...
44 Pages Posted: 9 May 2015 Last revised: 19 May 2016
Date Written: September 13, 2015
Recent Supreme Court cases have entrenched a new image of corporate civic identity, assigning to the corporate person rights and abilities based upon the cultural characteristics, social ties, civic commitments, and internal lives of the human beings involved in it. This vision of the corporation is exemplified in recent cases implicating a corporate right to engage in political speech (Citizens United v Federal Election Commission) and a right of corporations to be free of government interference regarding religious convictions (Burwell v Hobby Lobby Stores, Inc.). Although much is being written about the soundness of the results in these cases and potential inconsistencies of the legal analysis that led to these results, this article uses them to introduce a normatively potent theoretical perspective on corporate law that has for too long been exiled to the periphery of legal theorizing. When persons interact within a social system, social theories of culture – not just microeconomic theories of individual incentives or ethical theories of individual duty – are required to fully understand the rights, norms, behaviors, and duties of such persons. The law’s transformation of the corporation into a unique civic person capable of holding and expressing opinions and beliefs to other members of its social community thus urgently demands that corporate law scholars take cultural theory seriously if they are to fully understand the rights, norms, behaviors, and duties of modern corporations. This article makes the case for this increased centrality of cultural theory within corporate law and lays out some of the major challenges and implications that lie ahead as this development takes hold.
Suggested Citation: Suggested Citation