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Full-Text Articles in Law
Corporate Governance Beyond Economics, Elizabeth Pollman
Corporate Governance Beyond Economics, Elizabeth Pollman
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In recent years, changes to state and federal law have increased pressure on corporate law to serve as an ordering mechanism for interests and values beyond economics. On the federal front, two U.S. Supreme Court cases have put existing corporate law in a new quasi-constitutional light. In the landmark decisions of Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has pointed to state corporate law as the mechanism for ordering political and religious activity. In addition, Congress, the SEC, and federal courts have been embroiled in battles about the scope and appropriateness of regulating …
Quasi Governments And Inchoate Law: Berle's Vision Of Limits On Corporate Power, Elizabeth Pollman
Quasi Governments And Inchoate Law: Berle's Vision Of Limits On Corporate Power, Elizabeth Pollman
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In honor of the Berle X Symposium, this essay gives prominence to key writings of the distinguished corporate law scholar Adolf A. Berle, Jr. from the 1950s and 60s. By the early 1950s, Berle had rejoined academic life after years in government service. When he returned to scholarly writing, Berle repeatedly highlighted the problem of economic power in corporations. He wrote about this as both an issue of “bigness” as an absolute matter and relative to particular industries in terms of concentration. He conceded that history had vindicated the late Professor E. Merrick Dodd’s view that directors of large corporations …
Corporate Disobedience, Elizabeth Pollman
Corporate Disobedience, Elizabeth Pollman
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Corporate law has long taken a dim view of corporate lawbreaking. Corporations can be chartered only for lawful activity. Contemporary case law characterizes intentional violations of law as a breach of the fiduciary duties of good faith and loyalty. While recognizing that rule breaking raises significant social and moral concerns, this Article suggests that corporate law and academic debate have overlooked important aspects of corporate disobedience. This Article provides an overview of corporate disobedience and illuminates the role that it has played in entrepreneurship and legal change. Corporations violate laws for a variety of reasons, including as part of efforts …
The Rise Of Corporate Religious Liberty, Micah Schwartzman, Chad Flanders, Zoe Robinson
The Rise Of Corporate Religious Liberty, Micah Schwartzman, Chad Flanders, Zoe Robinson
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This Introduction to our edited book, The Rise of Corporate Religious Liberty (Oxford University Press, 2016), offers an account of the “corporate turn” in law and religion. Here the term “corporate” refers to any organized body of people - groups, associations, organizations, and institutions - and, more specifically, to for-profit corporations. Our contention is that the relationship between law and religion has shifted dramatically in the last decade, moving from a conception of religious freedom focused mainly on individual liberty toward one that privileges the rights of religious organizations. We trace this development in two stages, describing the initial movement …
Constitutionalizing Corporate Law, Elizabeth Pollman
Constitutionalizing Corporate Law, Elizabeth Pollman
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The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity …
Corporate Law And Theory In Hobby Lobby, Elizabeth Pollman
Corporate Law And Theory In Hobby Lobby, Elizabeth Pollman
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Does a business corporation constitute a “person” that can “exercise religion” under the Religious Freedom Restoration Act of 1993? In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court answered this novel question in the affirmative, but this chapter shows that its anemic treatment of corporate law and theory provided little guidance on how to implement and limit the landmark ruling. This chapter critically examines the issues of corporate law and theory driving the Court’s analysis: (1) the theory of the corporation as a right holder; (2) corporate purpose; (3) the “closely held” category; and (4) state corporate law as …
The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair, Elizabeth Pollman
The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair, Elizabeth Pollman
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This Article engages the two hundred year history of corporate constitutional rights jurisprudence to show that the Supreme Court has long accorded rights to corporations based on the rationale that corporations represent associations of people from whom such rights are derived. The Article draws on the history of business corporations in America to argue that the Court’s characterization of corporations as associations made sense throughout most of the nineteenth century. By the late nineteenth century, however, when the Court was deciding several key cases involving corporate rights, this associational view was already becoming a poor fit for some corporations. The …
Reconceiving Corporate Personhood, Elizabeth Pollman
Reconceiving Corporate Personhood, Elizabeth Pollman
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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. …