Wednesday, October 26, 2011
Lipton on the Criminal Liability and Property Rights of the Corporate Person in the Wake of Citizens United
Daniel Lipton has posted Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century (Virginia Law Review, Vol. 96, 2010) on SSRN. Here is the abstract:
Traditional historical accounts of corporate personhood in the early twentieth century portray corporate law as the extension of a doctrinal conflict between the real entity and artificial entity theories of the corporation. Artificial entity theory posited that the corporation was a creature of the state, and could therefore be regulated with impunity. Real entity theory maintained that corporations existed independently of the state, and therefore possessed rights, duties, and morality, as would any natural person. In the traditional narrative, corporate power expanded because real entity theory triumphed over artificial entity theory. This Note rejects that either real entity or artificial entity theory were foundational doctrines in early twentieth century corporate law as applied by American courts, and uses corporate crime and politics as a platform for debunking that myth.
After 1905, Congress and state legislatures passed laws banning corporate political expenditures. Around the same time, lawmakers enacted groundbreaking statutes subjecting entire corporations to criminal liability. The American judiciary reacted favorably to both legislative movements, contemporaneously citing elements of artificial entity theory to justify bans against political contributions, and real entity theory to rationalize corporate criminal liability. This suggests that the real entity and artificial entity theories were more instrumental than foundational concepts in the courts.
The judiciary, however, was not without doctrinal ballast. It defined corporate personhood and constitutional rights through the property interests entangled in the corporation. Corporate personhood thus emerged in the decades preceding and following the turn of the twentieth century through the substantive due process analysis that characterized much of the Lochner Era jurisprudence. This concept of corporations as repositories of property interests ultimately explains why courts were willing to uphold bans on corporate political contributions and recognize corporate criminal liability.
The Note concludes by examining the continued relevance of property interests with regard to corporate personhood in the recent and controversial Citizens United decision. In particular, without directly challenging the First Amendment policies of the present Court, this Note seeks to add historical depth to the debate in Citizens United and demonstrate that affording corporations the right to political expenditures was neither doctrinally mandated nor historically inevitable.