Corporate Personhood: Possibilities for Progressive, Trans-Doctrinal Legal Reform

By Saad, Aisha I. | Boston College Law Review, January 1, 2020 | Go to article overview

Corporate Personhood: Possibilities for Progressive, Trans-Doctrinal Legal Reform


Saad, Aisha I., Boston College Law Review


INTRODUCTION

The claim that "corporations are people" has incited fiery debate across the political spectrum. The conservative right brandishes corporate personhood as a victory for the free market whereas the progressive left attacks the notion as an affront to democratic accountability. In a compelling reformulation of this familiar narrative, Kent Greenfield's Corporations Are People Too claims corporate personhood as a progressive objective.1 He takes as his starting point the presumption that corporations should be good for society, and argues that embracing corporate personhood actually advances this agenda.

Greenfield has been a leading voice in progressive corporate law for over two decades.2 Long before critiques of shareholder primacy became mainstream,3 Greenfield was highlighting the failures of American corporate law and advocating for corporate decision making that is stakeholderfocused and that governs in the interests of a corporation's plural encies.4 Once his newest book takes a bold position, claiming the controversial notion of "corporate personhood" from conservatives and championing it for progressives.5 Corporate

personhood properly construed, Greenfield argues, advances progressive goals by limiting certain corporate powers,6 increasing corporate accountability,7 and enabling corporate management to govern in the of interests of all stakeholders.8 He advances a framework for determining which constitutional rights should be granted to corporations that is based on an analysis of the corporation's objectives and an evaluation of the right in question.9 He further elaborates a vision of corporate law reform that incorporates a stakeholder-focused model of corporate governance.10

Greenfield's rejection of shareholder primacy and embrace of stakeholder theory open up new opportunities for orienting corporate governance in line with a progressive agenda. His trailblazing work unpacks constitutional and corporate law questions and offers answers to them. A fully developed legal regime that realizes the possibilities of progressive corporate personhood, however, will require reforms that extend to other legal areas. Part I of this symposium response begins by examining how Greenfield has defined and defended personhood in constitutional law and in corporate law.11 Part II extends his pragmatic approach to corporate personhood beyond these two legal domains and considers its implications for securities law and tort law as additional examples for developing a progressive legal account of corporate personhood.12

I. Defending the Corporate "Person" in Constitutional and Corporate law

In Corporations Are People Too, Kent Greenfield deploys the notion of personhood to signify different, yet complementary, interpretations of the corporate entity.13 His elaboration of personhood in the corporate context is pragmatic, focusing on the functions and objectives of the corporation rather than beginning with a historical or philosophical genealogy of personhood. When discussing corporate personhood in constitutional law, Greenfield advances three key features of corporate persons: 1) they are legally separate entities who "can sue, be sued, enter into contracts, own property, buy stuff, and sell stuff," 2) they are "made up of people," and 3) they are "holders of constitutional rights."14 Personhood makes corporations more accountable to the public by preventing shareholders from attributing their religious beliefs to the companies they own,15 providing a limit on government power and granting corporations standing to assert their due process rights when those rights are relevant to their economic purpose,16 and providing the public a "deep pocket to sue" when harmed.17 Greenfield's framework for determining the limits of corporate personhood in constitutional law derives from the premise that "corporations should receive the rights necessarily incidental to serving [their] economic purpose and should not receive those that are not germane to that purpose. …

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