States' Rights Against Corporate Rights

62 Pages Posted: 18 May 2016 Last revised: 21 Feb 2017

See all articles by Vincent S. J. Buccola

Vincent S. J. Buccola

University of Pennsylvania - The Wharton School - Legal Studies & Business Ethics Department

Date Written: May 18, 2016

Abstract

Most of the many critics who denounce the Supreme Court’s corporate-rights cases ground their complaint in consequentialist terms, at least in part. They see decisions such as Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., as entrenching corporate power, by constitutional or quasi-constitutional means, against what ought to be a supervening public will. This article argues that such a view of federal corporate rights is profoundly mistaken. Far from entrenching corporate power, the rights cases effectively delegate choices about corporate activities to a politically sensitive, if surprising, instrument: ordinary state legislation. In particular, this article advances two claims about the nature of states’ rights against corporate rights: first, under existing law the states can subvert the federal rights of their own corporations; second, and more speculatively, the states can also frustrate the federal rights of foreign corporations that do local business. The analysis suggests that reformers would do well to look to the state capitols rather than the halls of Washington. It also yields implications for the theory of interstate corporate regulation more generally.

Keywords: corporate rights, internal affairs, Citizens United, Hobby Lobby

Suggested Citation

Buccola, Vincent S. J., States' Rights Against Corporate Rights (May 18, 2016). 2016 Columbia Business Law Review 595 (2017). Available at SSRN: https://ssrn.com/abstract=2781514

Vincent S. J. Buccola (Contact Author)

University of Pennsylvania - The Wharton School - Legal Studies & Business Ethics Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

HOME PAGE: http://https://lgst.wharton.upenn.edu/profile/27349/

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