Corporate Citizenship: Goal or Fear?

Abstract

Presently, we are experiencing a churning in the intellectual history of corporate law theory and doctrine. There is now more openness to revisiting the core questions about what corporations are, to whom they owe obligations, and how best to conceptualize them and their regulation than at any time in a generation. On the corporate law (private) side, the trend is to challenge the corporation to broaden its role in society. The critics of corporations are, in effect, calling on corporations to act as if they were players not only in the private sphere but also in the public one as well — to act, one might say, as citizens. Meanwhile, on the constitutional law (public) side, the trend is to challenge the corporation to stay within a narrow economic sphere and to focus on the pecuniary implications of its activities. The thought of corporations acting as “citizens” — whether for progressive ends or not — is seen as nonsensical at best, and destructive to democracy at worst.

It has gone unnoticed until now that the work of the pro-corporate citizenship activists often directly conflicts with the work of the anti-corporate personhood activists, and vice versa. The arguments of “progressive” corporate law scholars advocating for expanded corporate duties are now being used to further the arguments of those wishing to expand corporations’ constitutional rights. The arguments of those opposing corporate constitutional rights contradict and undermine the efforts of those who call on corporations to take a more active role in society, which would protect the interests of all corporate stakeholders. This tension is not between ends of the ideological spectrum; it is primarily a tension between different components of the ideological left. This essay explores how these two positions are ultimately at odds with one another, despite their common critique of corporate law.