Making Corporate Law More Communitarian: A Proposed Response to the Roberts Court's Personification of Corporations

Authors

Robert M. Ackerman
Lance Cole

Abstract

Both Citizens United and Hobby Lobby are notable for the Roberts Court’s personification of the corporation. In Citizens United, the United States Supreme Court expanded corporate speech rights in a political context; in Hobby Lobby, it accorded religious rights to corporations in an unprecedented manner. This article explains how the Court’s expansion of corporate personification has ignored both traditional corporate law doctrine regarding shareholder primacy and the fundamental distinction in corporate law between the corporate entity and the shareholders who control it.

The article takes a communitarian approach to corporate law analysis, recognizing that corporations play useful roles as intermediate communities that can organize collective efforts and advance the common good. But the co-authors—one an expert in corporate law and the other a widely published communitarian scholar—regard both Citizens United and Hobby Lobby as anticommunitarian in at least two respects. First, both cases strike down carefully calibrated efforts (a portion of the McCain-Feingold campaign finance law in one instance and of the Affordable Care Act in the other) to advance the common good, in the name of newly minted corporate “rights.” Second, these rights are afforded to corporations without commensurate responsibilities and without concern for the interests of those (other than management) who might be adversely affected by the protected corporate conduct.

This article voices concern that the newly empowered and unrestrained corporate “monster” might engage in rent-seeking conduct unhindered by the normal constraints on human behavior. It suggests legislation conducive to restraining that conduct so that corporations might be obliged to behave in a more humane manner. The article therefore proposes two types of legislation at the state level: (1) mandatory corporate constituency statutes that require corporate directors to consider the effect of corporate conduct on employees, suppliers, communities, and other parties; (2) enhanced disclosure requirements, so that shareholders and others have a more complete understanding of how corporate funds are employed for political purposes. The authors hope that such measures will help redress an unhealthy imbalance between corporate rights and responsibilities.

Recommended Citation

Robert M. Ackerman & Lance Cole, Making Corporate Law More Communitarian: A Proposed Response to the Roberts Court's Personification of Corporations, 81 Brook. L. Rev. (2016).
Available at: https://brooklynworks.brooklaw.edu/blr/vol81/iss3/1