Corporate Personhood

Actually it is possible to form partnerships and include a liability shield. For example LLP's have a liability shield. Many law form a special type of business entity in which partners are shielded from liability from the malpractice of their peers, but by state law, no lawyer can be shielded from his own malpractice.

This is a false dichotomy. There is no reason why states could not enact legislation to allow a corporation to sued without granting the corporation personhood.In fact there is nothing special about the corporate form in this regard. LLCs, LLPs, and Corporations are all entities that are treated as persons under the law for some purposes (e.g. first amendment law, suing or being sued, holding real and intellectual property) but not for others.Generally speaking most laws that apply to persons do not automatically apply to business entities. Belaboring the obvious, business entities do not collect social security or unemployment. They cannot vote or get married.The basis for the legal fiction of giving a business entity personhood is that failing to do so infringes on the free speech or other rights of the business owner. We don't grant business entities rights so that we can sue them.

You are misinforming me.The term corporate personhood refers to any of the rights normally granted to humans that are granted to corporations, including the right to hold property, enter into contracts, and appear in court (as defendant or plaintiff). You are using the term to apply specifically to the right to appear in court. I think the more expansive definition is the more common usage.See Corporate personhood - WikipediaHistorically, corporations were first allowed to appear in court and hold property. These things were essential in order for corporations to be able to exist and do business. It was only later that the fourteenth and other amendments were applied to corporations granting them additional rights.My point is that "personhood" of this type is a legal fiction that is not necessarily tied to any other of the rights that real humans have. We are not forced to grant corporations first amendment protections just because we allow the corporation to appear in court or to hold property. I think you are letting the tail wag the dog. More correctly, business entities have certain abilities/responsibilities granted to them that we collectively refer to as personhood.The difference may seem rather nitpicky, but if the discussion is whether it is inevitable that corporations must be allowed to have certain rights other than those that are absolutely required allow the corporation to conduct business, I think the difference is a nit that needs picking.Edited by NoNukes, : Reverse tail and dog. Sigh.Edited by NoNukes, : No reason given.

I don't believe corporations have any rights which can be removed only by removing legal personhood.I'd like to see the first amendment rights given to corporations weakened to the extent that limits on campaign financing such as those included in the laws invalidated by the Supreme Court last year would stand. The above is a mere tautology. Corporations have been right to hold property and enter into contracts, etc., and we call that state of the law legal personhood.You are using the term personhood as if it were a quality we granted to or recognized for business entities so that we could allow the entitites to have human like rights. That's simply not the case. What rights are there that real humans have only as legal persons? Not many in my estimation, and certainly none that anyone realistically talks about limiting for corporations. All natural persons are legal persons. With the possible exception of the rights granted specifically to certain groups of people (e.g. women's suffrage and possibly the rights granted in amendments 13-15), it is impossible to parse out which rights humans have only as legal persons except on an adhoc basis; we can of course simply note those rights that non-persons are never given.But that said, corporations don't enjoy all of the protections in the Bill of Rights. Corporations do not enjoy the Fifth Amendment right to avoid self incrimination. I doubt that the second amendment applies to corporations although I haven't looked into it.

I don't think very many people oppose corporate personhood in the way you want to discuss it even if the words they say or post seem to imply that position.What people oppose is granting corporations rights that are not essential to operating a corporation. For example, people who are opposed to the undue political influence of corporations, probably aren't opposed to corporations being parties to contracts or being parties in law suits.There are actually a few cases where corporations have been granted rights by statute than exceed those of natural persons. For example a copyright in a work for hire held a corporations has a longer duration that would the copyright in the same work held by an author who is a natural person.

Removed a duplicate postEdited by NoNukes, : Removed a duplicate post

Not so fast.Even without corporate liability, if an employee makes a boo-boo in the course of his duties, other principles can be invoked to get at the company assets.For example, if the family breadwinner gets hit by a gasoline truck driven by an Exxon mobile employee, the principle of respndeat superior makes the employer vicariously liable for the driver's damages. The family gets full restitution from Exxon, who can in turn then seek compensation from the driver.Vicarious liability is difficult to apply in cases where the injured party must find the employee or employees responsible before suing. It's even possible that no employee can be found to have committed an act that would make him personally liable. In that case, without ability to sue the corporation, injured parties cannot be compensated.

If the ultimate liable person is the head boss, then you only get to the head boss' assets and not to the assets of the corporation. In the case of small, privately owned companies you might find that to be satisfactory, because you can get at the company assets. But what about cases where the company is public, the CEO owns only some shares in the company, and the injury is on the level of the Bhopal disaster. The CEO may have tens/hundreds of millions in assets, but the injuries may be valued in the tens of billions.I guess I'm arguing crashfrog's case. Why do you really want to remove the ability to sue Union Carbide (who ended up paying a trivial amount to the Bhopal gas victims)? Does doing so really addressing the particular problems that you are really concerned about?

So for the huge, publicly owned company in my example, you would sue the shareholders, since they are the owners. But the shareholders aren't involved in the day to day operation of the company unless they also happen to be mangers/executives.I don't think your plan works. What is it about the current procedure of suing the corporation that you find objectionable? What is accomplished by making corporations unable to be sued?

I take issue with your characterization.At the risk of being seen as cynical, the quote in question might well be an accurate summary of some of Kennedy's reasoning, but I don't believe his words can be taken at face value.When corporations use their general funds to participate in the political process, the individuals who actually own the company (perhaps through investments by whoever manages their retirement funds) are not consulted about whether they agree with such participation. Instead, a relatively small group of people, namely the managers of the company, get to decide that for the real owners.In other words, the effect of Citizens United is to preserve the free speech rights of the corporation and not the free speech rights of the owners whose opinions are given no weight.Further, the four dissenting Justices expressed themselves in this way:

quote:

---

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its identity as a corporation.

​

While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

---

Here is some of that language that the dissenters point to from the majority as signalling that the actual issue is the corporation's free speech.

quote:

---

By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.

---

While Kennedy might have said some words about protecting the right of associations of people, a strong argument, with which four Justices would agree, can be made that the decision actually recognizes and protects a first amendment right for a corporation.

You are mistaken. What I described is exactly how large, publicly owned corporations work. Publicly owned corporations are not obligated to even determine the wishes of stockholders about their day to day operations. The stockholders recourse is to get rid of leadership (most likely at the next corporate election) if they don't like the directors' decisions. As long as the actions are rational and do not harm the corporation, the stockholder's have no recourse to sue the CEO or any other director for actions taken.Did stockholder's get consulted when HP decided to get out of the tablet market by dumping their inventory of tablets at fire sale prices? Of course not! (Am I bitter because I did not get a cheap tablet? Yes!) Generally speaking, stockholders have no say in how a large corporation is run on a day to day basis. HP's CEO may well be looking for work soon if he isn't already, but almost certainly the shareholder's won't be able to sue him. If Corp Xdiddy wants to run a swift-boat campaign with corporate funds, they generally don't ask for shareholder permission.Can you cite law or statute that backs up your impression regarding those legal penalties for not obeying the shareholders? That's not at all what I said. The paragraph in question isn't the sum total of everything that Kennedy said. Corporate people existed prior to the decision in Citizen's United. Citizen's United overturned a prior decision (Austin) which allowed limits on corporate speech that did not address the corporation's business operations.And even if the paragraph in question were the sum total of Kennedy's written opinion, I don't think it is insane or paranoid to ask whether the reasoning in any judge or Justice's opinion is adhoc rationalization. Cynical perhaps, but not insane.For example one might note that a number of Justices in Bush v. Gore used reasoning that while being sound jurisprudence, differed markedly from reasoning that the Justice favored in other cases. It is not insane to speculate that politics may have played a role in the decision.And in a 5-4 decision, which is what Citizen's United was, I think we can consider and even adopt the reasoning of the dissent without being considered clinical. That isn't a problem for me. You should never have to apologize for asking someone to pony up the proof. That should be how all debates progress here. I'm not enamored of being described as clinical, but I can live with it.Before I cite from the opinion, I want to point out that the point I discussed above, namely that corporations can operate politically without determining the wishes of the shareholder's is an important part of my argument. I've described how corporations actually work, and both the majority and the dissent acknowledge that in the opinion. The majority simply does not think that the compulsion on unwilling shareholders is a winning argument.From the majority opinion.

quote:

---

The Government contends further that corporate inde-
pendent expenditures can be limited because of its interest
in protecting dissenting shareholders from being compelled to fund corporate political speech. This asserted interest, like Austin’s antidistortion rationale, would allow the Government to ban the political speech even of media corporations. See supra, at 35—37. Assume, for example, that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. See Austin, 494 U. S., at 687 (SCALIA, J., dissenting). Under the Government’s view, that potential dis-
agreement could give the Government the authority to restrict the media corporation’s political speech. The First Amendment does not allow that power. There is, furthermore, little evidence of abuse that cannot be corrected by shareholders through the procedures of corporate democracy.

---

From Wikipedia on Derivative Suits

quote:

---

While, under traditional corporate law, shareholders are the owners of a corporation, they are not empowered to control the day-to-day operations of the corporation. Instead, shareholders appoint directors, and the directors in turn appoint officers or executives.

​

Derivative suits permit a shareholder to bring an action in the name of the corporation against the parties allegedly causing harm to the corporation. If the directors, officers, or employees of the corporation are not willing to file an action, a shareholder may first petition them to proceed. If such petition fails, the shareholder may take it upon himself to bring an action on behalf of the corporation. Any proceeds of a successful action are awarded to the corporation and not to the individual shareholders that initiate the action.

---

Additionally, other than a few mentions of associations of speakers, the opinions of the majority Justice is littered with statements about the First Amendment rights of corporations as speakers. I'll discuss Robert's concurring opinion a bit.Roberts:

quote:

---

The text and purpose of the First Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union. What makes this case difficult is the need to confront our prior decision in Austin

---

Roberts also cites First National Bank v Bellotti which unequivocably held that corporations do have First Amendment Rights using the following language.

quote:

---

Nor do our recent commercial speech cases lend support to appellee's business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to the seller's business as because it furthers the societal interest in the "free flow of commercial information." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 425 U. S. 764 (1976); see Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 431 U. S. 95 (1977). [Footnote 20]

​

We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property.

---

Nowhere in Bellotti can be found the theory that corporations have rights because they are associations of persons.

Perhaps I was obscure about the reasoning. I'll outline my argument.1. Corporations engage in speech that is not the speech of the shareholders. The shareholders are never consulted on what the corporation is going to do.2. That speech is protected under the First Amendment despite the fact that it is not the speech of the owners.Because of the above, I suggest that best way to interpret the court decisions in Citizens United and in Belloti is that the court was protecting free speech for corporations without regard to whether the corporation was the speech of an association of owners. If you want instead to insist that the court was protecting free speech by management as the association of humans, I could not argue much with that, but in my mind that is equivalent to protection of the corporation.Using your definition that corporate personhood only includes things like forming contracts, appearing in court, and the like, the I would agree that corporate personhood was not the basis of the decisions. But I've already acknowledged that. I said that I don't believe that such rights can be or should be removed by removing corporate personhood as you define it.But I (and others) define personhood more broadly to include all ways in which corporations are treated under the law in the same way as are natural persons. I would say that when the Court decided the Fourteenth Amendment extended first amendment law to corporations, they expanded the definition of personhood.And even then it would not make sense to say that the first amendment applies to corporations because of their personhood. But it would not be inappropriate to claim that corporations were being treated too much like people.

I'm definitely not saying that the right is because the corporation is a person. But I'm saying that the first amendment rights are part of what I would call corporate personhood regardless of the rationale the Supreme Court uses or purports to use.You call the notion that the Supreme Court has granted a new right for corporations flawed, but I don't that you can point to any differences between such a right and the one you think the Supreme Court actually did affirm. Employees don't speak for the corporation unless they are authorized to do so. I don't think this discussion is about some loose cannon mouthing off without authority. Please correct me if my understanding is wrong. There are no rights at all granted to coroprations because of personhood. Personhood is the state of having those rights. People can legitimately object to more aspects of corporate personhood. But the solution is not to take away personhood. It is a flawed approach to think that taking away the right for corporations to appear in court would allow removing corporations right to free speech.

Not only that, but the Supreme Court refused to allow Braswell to use his personal Fifth Amendment right against self-incrimination because the result would be to give the corporation the same protection.

quote:

---

Recognizing a Fifth Amendment privilege on behalf of records custodians of collective entities would have a detrimental impact on the Government's efforts to prosecute "white-collar crime." Such impact cannot be satisfactorily minimized by either granting the custodian statutory immunity as to the act of production or addressing the subpoena to the corporation and allowing it to choose an agent to produce the records who can do so without incriminating himself. However, since the custodian acts as the corporation's representative, the act of production is deemed one of the corporation, not the individual, and the Government may make no evidentiary use of the "individual act" of production against the individual.

---

Notice the distinction between the way the Fifth Amendment right is treated vs. the First Amendment right. In the Fifth Amendment case, the Court weakens the individual's Fifth Amendment right in order to avoid extending a Fifth Amendment right to the corporation. In Citizens, if we use the association of persons rationale, we find that the Court refuses to limit the corporate right because it would infringe upon the right of an association of people.

Holy cow dude. Does anyone believe anything like that? Why can't I just believe that in a 5-4 Supreme Court decision that the dissent had the better argument? Generally what they are complaining about is corporate lobbying of the legislative and executive branches and influencing elections by corporations.If you don't believe that corporations have undue access to government policy makers,then you won't really care about that stuff.And it isn't just a liberal thing. Many conservatives believe that corporations have undue influence of immigration policy.