Pubs & Blogs

open
Elsewhere Online twitter Facebook SLS Blogs YouTube SLS Channel Linked In SLSNavigator SLS on Flickr

Reconceiving Corporate Personhood

Citation

Publication Date: 
December 31, 2010
Format: 
Working Paper
Bibliography: Elizabeth Pollman, Reconceiving Corporate Personhood, SSRN working paper series / Utah Law Review, forthcoming 2011.

More

Why is a corporation a “person” for purposes of the Constitution? This old question has become new again with public outrage over Citizens United, the recent campaign finance case which expanded corporate constitutional speech rights. This Article traces the historical and jurisprudential developments of corporate personhood and concludes that the doctrine’s origins had the limited purview of protecting individuals’ property and contract interests. Over time, the Supreme Court expanded the doctrine without a coherent explanation or consistent approach. The Court has relied on the older cases that were decided in different contexts and on various flawed conceptions of the corporation. This Article argues that the doctrine of corporate personhood should be understood as only the recognition of a corporation’s ability to hold rights in order to protect the individuals behind it. Properly understood, corporate personhood is only a starting point for analysis and not a justification for granting or denying rights to corporations. Further, the Article suggests an alternative approach for determining the scope of corporate rights. Corporations should hold a constitutional right only when the objective behind the particular right is furthered by providing the corporation, and thereby the people underlying the corporation, with such right.