Northwestern Pritzker School of Law Scholarly Commons
Abstract
The Supreme Court has been wrestling with the doctrinal premises of
corporate personhood on several occasions in recent years. The Court follows a
long history of jurisprudence that has been criticized as cryptic or nebulous at
best by many scholars. Especially since the recent economic crisis, the doctrine
of corporate personhood has had polarizing effects on the public debate about
the role of corporations in society. At a policy level, the debate revolves around
questions about the scope of regulatory reach of the state over business; at a sociological
level, the issue presents itself as an oxymoron, whether “corporations
have human rights,” as the Wall Street Journal postulated. The article provides
an important insight into what is wrong with the majority opinion in Citizens
United. The paper argues that corporate legal theory (about the nature of the
firm) should inform the debate on corporate constitutional rights in order to
avoid intra-corporate conflicts with competing interests of shareholders and—
depending on the prevailing corporate theory in a national context—its other
stakeholders. In essence, we should put the “corporate” back into corporate
personhood
