Who Speaks the Culture of the Corporation? Dissent in the Close Corporation after Hobby Lobby and Citizens United

Michigan Business & Entrepreneurial Law Review, Forthcoming

32 Pages Posted: 21 May 2016

See all articles by Gwendolyn Gordon

Gwendolyn Gordon

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

Date Written: May 18, 2016

Abstract

Recent cases – Burwell v Hobby Lobby Stores and Citizens United chief among them – evince a new understanding of the nature of the corporation and its place in society. The nature of corporate rights such as those of religious exercise is not, however, just a question of legal interpretation. To answer this question requires a theory of group or cultural identity, that is, a theory of how a group may have “culture” separate and apart from those of the individuals that comprise it. And such a theory must address how to understand the meaning of culture when the beliefs of people within the group diverge. However, the Supreme Court’s analysis has fallen short by glossing over this step in the analysis. In Hobby Lobby, the Supreme Court indicated that the question of the religious identity of the corporation might easily be resolved by the semi-democracy of state corporate law: those shareholders and managers controlling the corporation, that is, decide the identity of the corporation. As Justice Ginsburg noted in her dissent, however, in the case of religious belief, things can get fairly gnarly. This Article critiques the Supreme Court’s oversimplified view of how group identity is formed using anthropology as its guide. This anthropological approach argues that the question of corporate “culture” is far more complex than Court’s jurisprudence acknowledges. This approach requires rethinking the corporate rights doctrine and its assumptions about shareholder democracy. One or the other must fall – either the notion that corporations have cultural rights such as those of a “religion,” or the processes of majority shareholder voting that do not track an ingrained cultural identity.

Keywords: Corporations, Culture, Closely Held, Hobby Lobby, Citizens United

Suggested Citation

Gordon, Gwendolyn, Who Speaks the Culture of the Corporation? Dissent in the Close Corporation after Hobby Lobby and Citizens United (May 18, 2016). Michigan Business & Entrepreneurial Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2781703

Gwendolyn Gordon (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

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