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Full-Text Articles in Law
Business As Usual: Hobby Lobby And The Purpose Of Corporate Rights, Dalia Tsuk Mitchell
Business As Usual: Hobby Lobby And The Purpose Of Corporate Rights, Dalia Tsuk Mitchell
GW Law Faculty Publications & Other Works
This article explores the interdependence of the discourse of corporate rights and the law of corporate purpose. I argue that the history of corporate rights reflects changing reactions of the U.S. Supreme Court to social, political, and cultural concerns, each reaction offering a different purpose for corporations in our modern society. At the turn of the twentieth century, in response to fears about the advance of socialism, the Court used liberal assumptions to justify protecting the publicly held corporation’s property rights as derived from the rights of individual shareholders. In so doing, the Court helped turn the corporation, with its …
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
All Faculty Scholarship
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
All Faculty Scholarship
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 Corporate Personhood Two-Step, Carliss N. Chatman
The Corporate Personhood Two-Step, Carliss N. Chatman
Scholarly Articles
The corporation cannot exist without its founders complying explicitly with the requirements for incorporation provided by state statutes. The artificial entity theory acknowledges that the corporation cannot and will not exist until its founders comply explicitly with the requirements for corporate formation and in-corporation imposed by the state. A corporation is also, by design, a new and distinct entity divorced from its people. The real entity theory acknowledges that once a corporation is formed, it has rights that belong only to the corporation it-self, wholly separate from its founders. By merging the artificial entity and real entity theories, the Court …
Corporate Rights As Subplot, Larry Yackle
Corporate Rights As Subplot, Larry Yackle
Faculty Scholarship
Adam Winkler makes an important contribution to the great body of academic work on corporations in American life. He concentrates on a small corner of the larger topic. He traces only the development of corporate “rights,” and he describes, but does not critique, what he uncovers. There is much to learn from this fine book. I want to applaud Winkler’s primary revelation—namely, that corporate rights are a creation of the courts, especially the Supreme Court.1 Then I want to flag what Winkler (I think) would readily acknowledge: corporate rights are not the whole of the corporate story.
The Rise Of Corporate Religious Liberty, Micah Schwartzman, Chad Flanders, Zoe Robinson
The Rise Of Corporate Religious Liberty, Micah Schwartzman, Chad Flanders, Zoe Robinson
All Faculty Scholarship
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
All Faculty Scholarship
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 …
The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair, Elizabeth Pollman
The Derivative Nature Of Corporate Constitutional Rights, Margaret M. Blair, Elizabeth Pollman
All Faculty Scholarship
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
All Faculty Scholarship
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. …