Corporate Personhood and Limited Sovereignty

31 Pages Posted: 4 Aug 2021

See all articles by Elizabeth Pollman

Elizabeth Pollman

University of Pennsylvania Carey Law School; Co-Director, University of Pennsylvania Carey Law School - Institute for Law and Economics; European Corporate Governance Institute

Date Written: July 29, 2021

Abstract

This Essay, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as right-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their constitutional treatment, the Court’s nineteenth-century rulings bolstered key features created by corporate law and simultaneously situated the corporation as subordinate to the state in a system of federalism. And, finally, the Essay suggests that the balance of power struck in the first century of Supreme Court jurisprudence on corporate rights has been eroded in the modern era. The Supreme Court’s failure to develop a consistent approach to corporate rights questions and its tendency to reason based on views of corporations as associations of persons have exposed a significant flaw in the Court’s evolving corporate personhood jurisprudence: it lacks a limiting principle.

Keywords: Corporation law, personhood, legal persons, asset partitioning, capital lock-in, corporate governance, Supreme Court, SCOTUS, Bank of the United States, Dartmouth College, Fourteenth Amendment

JEL Classification: G30, K20, K22, N81

Suggested Citation

Pollman, Elizabeth, Corporate Personhood and Limited Sovereignty (July 29, 2021). U of Penn, Inst for Law & Econ Research Paper No. 21-22, Vanderbilt Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3897831

Elizabeth Pollman (Contact Author)

University of Pennsylvania Carey Law School; Co-Director, University of Pennsylvania Carey Law School - Institute for Law and Economics; European Corporate Governance Institute ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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