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Sotomayor Issues Challenge to a Century of Corporate Law

• alain94040 17y ago
  Let's go with the current situation of corporations having similar rights to people. I'd like to make this proposal: when a corporation dies (goes bankrupt), it should be treated as murder. If the CEO is responsible for killing that corporation, shouldn't he go to jail? That would put an interesting twist on corporate responbilibity.
  • timdellinger 17y ago
    I always wondered if corporate personhood meant that corporations would lose some of their their rights if convicted of a felony. And are corporations eligible for tougher sentencing under "three strikes you're out" legislation? If a corporation kills someone, is the death penalty a possibility? It seems like corporate personhood gives the benefits of being a real person, but without all of the responsibilities or negative consequences.
    • wglb 17y ago
      If the corporation is convicted of a felony, it should lose the right to vote, right?
      • whye 17y ago
        Just because a corporation is a person doesn't necessarily mean it's a US citizen. Maybe it should get deported? :)
  • m_eiman 17y ago
    I'd like to see a corporation put in jail, or equivalent. Maybe prevent it from doing any business for the duration of the sentece.
    • 8plot 17y ago
      Or put under government control, and profits go to the people for the length of the sentence.
      • m_eiman 17y ago
        That'd be better for the employees and customers, for sure. If it's a big corporation (maybe Microsoft), then it'd cause a fair bit of turbulence if they're deactivated for a few years.
  • logic 17y ago
    The entire concept of "criminal liability" as pertains to corporations has always confused me. You can't effectively sentence a corporation to anything, you can only sanction it by enforcing (typically monetary) reparations, or by dissolving the corporation in extreme circumstances. There's a reason that, when it comes to criminal acts committed on behalf of a company, individuals are the ones that go to jail: THEY committed a crime, whether they did it to help their organization or not. The idea of corporate person-hood a perfect example of a (very) leaky abstraction
  • njharman 17y ago
    This gets to the root of the issue. Corporations have the rights of people but none of the responsibilities and few and weaker penalties for doing wrong. They "buy" politicians and their money and power provide huge voices with which to drown out views they do not like. Can't die, don't go to jail, hard to regulate, suing them just gets rid of some of the employees/executives the corp goes back to doing whatever it can get away with. Bankruptcy is rarely fatal
• wsprague 17y ago
  This makes me very happy! A lot corporate nastiness has remained unregulated due to arguments based on the tenet (ridiculous, in my view) that corporations should be afforded the same rights as human beings.
  • chasingsparks 17y ago
    I don't follow law very much. What nastiness has been perpetuated by corporations as the result of corporate personhood?
    • mynameishere 17y ago
      I second this question. As soon as corporations stop having 1st amendment protections, Fox News is going to have trouble putting Glenn Beck (or the bogeyman du jour) on the air. I can't conceive of any other (real) reason for this...
      • vannevar 17y ago
        No, because Glenn Beck will still have the right to be on the air. There are a couple of 'real' reasons for denying corporations free speech: the government may want to more tightly regulate truthfulness in corporate speech, since the immunity we give corporate officers prevents us from suing a spokesperson if they lie outright about their product. Another instance where it's important is the subjet of the case at hand: election law. Corporations want to double dip, allowing their officers to give to the legal individual limit and then give again anonymously under the corporate banner. And of course, the immunity doctrine helps shield the officers in the event of campaign finance chicanery.
• hristov 17y ago
  I have to agree with Sotomayor here. And mind you, I am not anti-business at all. I think corporations should have the same "business" rights as people. They should be able to enter into contracts, sue for non-performance, and generally have all the economic rights and protections of a person. But rights like freedom of speech just do not make sense for corporations. They are based on purely human considerations which are just non-existent for fictitious entities. We know that a human being feels oppressed if he/she cannot speak his/her mind. But does a fictitious entity? Of course not. Note that all the actual human beings that are part of the corporation (i.e., stockholders, employees, directors, etc.) have their own free speech rights and can exercise free speech as long as they make it clear they are not speaking on behalf of the corporation.
  • sp332 17y ago
    If corporations are only afforded business rights, what sort of organization could acquire freedom of speech? If a group of people would like to make a joint statement, do you think they should each have to sign the document? Do governments have the right to say what they like, or would every citizen have to sign each law, treaty, and declaration of war?
    • roc 17y ago
      What groups? None. The whole point is that people are people, whereas their organizations are not them, nor are they free willed individuals on their own. There's no need for an organization to be immune from censure or regulation when its constituents are all themselves immune. If the government decides corporations shouldn't be able to pay for political advertising or host fund-raisers, then the corporation's constituents are free to speak out such measures, vote against them, run against the incumbent politicians, etc. The rights of sovereign governments is a red herring. They have an implicit ability to do whatever they like, either because:they are democratically elected and their actions subject to review and reversal by their citizens' votes; or they rule by force and the will of their citizens is irrelevant.
      • sp332 17y ago
• jcdreads 17y ago
  That people have the same legal rights as people is known as the "doctrine of corporate personhood." An indie film from a few years ago explored what _kind_ of person a corporation would be is here: http://www.thecorporation.com/ http://www.thecorporation.com/ (spoiler: a sociopath)
  • vannevar 17y ago
    I'd say putting corporations on the level of a sociopath is giving them undue credit. Their level of intellectual sophistication is probably more on the level of an insect. It makes no more sense to apply human rights to corporations than to honeybees. Both are indispensable to modern society, but we don't talk about the free speech rights of honeybees. The reason is that people confuse the corporation with its component members, ie its personnel because the corporation can't be visualized the way a bee can. As such visualizations become more common, I think people will see more clearly that giving corporations human rights is ludicrous. That isn't to say that we shouldn't give them certain privileges, but the power to regulate a for-profit corporation should be absolute, since it owes its existence to a government charter in the first place.
• tptacek 17y ago
  See, here's an article that is clearly about the politics of corporate law, and not about corporate law. It spends more time reading tea leaves about what one question could mean for the balance of the court re corporate standing than it does talking about the impact of that re-balancing one way or the other. Flagged.
• hughprime 17y ago
  Does anyone know the law with respect to free speech rights of other non-corporation groups of individuals? For instance: labor unions, churches, charities, "community organizing" organizations... hell, political parties? Are these groups presumed to have free speech rights that extend from the free speech rights of their members, or is the government allowed to restrict them?
• bokonist 17y ago
  In my humble opinion, everyone is wrong in this article - Sotomayor, Butler, Marshall. A corporation should not be considered a person in and of itself. A corporation is a contractual agreement between people over the ownership of property. This was the original understanding of a corporation, until the courts started creating this weird, and wrong, personhood doctrine. A corporation should not have rights - a corporation is a contract - the idea of a contract having rights is non-nonsensical. But Sotomayor is also wrong. The people running the corporation, and the people owning the property do have rights. Just as Arthur Sulzberger has first amendment right to hire people to speak for him, shareholders of a corporation have a first amendment right to hire people to speak for them. The government has no right to restrict the freedom of speech of employees or shareholders of a corporation.
  • asdfqwersdf 17y ago
    The idea that a corporation should be reduced to a contractual agreement strikes me as problematic. Since corporations necessarily have contracts with other entities and a contract as an entity can't be a party to another contract, then your corporation would have to somehow specify a process for employees to hold contracts in proxy. Also, a corporation that's just a contract between individuals can't provide any protection from lawsuits by people who aren't employees or shareholders. Certainly there's a place for the kind of construct you're talking about, but it seems to be fundamentally incompatible with anything remotely similar to the way business is structured today.
    • misuba 17y ago
      Corporations as they're structured today may not be contract-like, but they certainly aren't person-like either. I hope a high court or two finds the cojones to admit this and stop trying to do legal code by analogy.
    • bokonist 17y ago
      Since corporations necessarily have contracts with other entities and a contract as an entity can't be a party to another contract, then your corporation would have to somehow specify a process for employees to hold contracts in proxy. That's exactly what a corporate charter is. It's the shareholders delegating the management and contracts associated with a piece of property to a process determined by the corporate charter. Also, a corporation that's just a contract between individuals can't provide any protection from lawsuits by people who aren't employees or shareholders. The contract can protect from lawsuits by creditors. When a creditor loans to a limited liability company, the creditor knows that he only has recourse to the funds pledged to the corporation. He can not claw back into the shareholders personal funds. Again, it's a matter of voluntary contracts. If the creditor wants that right, he can explicitly demand that the shareholders pledge their own assets as part of the terms of the contract. ( in fact, that's exactly what banks do when lending to very small businesses). But an LLC designation should not protect from criminal liability. Shareholders should be held to the normal standards of criminal culpability for the actions of the management. A shareholder who knowingly profits from the management committing criminal acts should be held to the same level of guilt as anyone who knowingly profits from criminal acts.
• sp332 17y ago
  OK, I've talked with some people and it seems to me that the issue here is primarily ownership of money. One of the major advantages to having a corporation is separate bank accounts. Basically, the corporation, as a "person," can own money and property that is legally separated from its owners'. This means, among other things, that if a corporation is sued, the owners don't lose money out of their own bank accounts. But it also means that they can;t give that money to a campaign in their own name. If they want to use that money, it has to be given in the name of the corporation. If corporations lose their right to free speech, campaigns could never be given any of the money in corporations' bank accounts.
  • btilly 17y ago
    Lose their right to free speech? What right to free speech? Centuries of jurisprudence have never recognized a right to free speech for corporations. Corporations stand to GAIN a right here, not lose one. Here is my biased view of the issue. If corporations gain the right to unlimited direct political advertising, then they will have a much more powerful lobbying option than any they have already. This will give incumbent corporate powers increased influence. It is the nature of incumbents to try to maintain their dominant position by fair means or foul. Therefore we'll see companies asking the government to erect more powerful barriers to competition. These barriers will often be bad for startups and innovation. Obvious examples of barriers are expanded patent and copyright laws. However that is just the start. Suppose that the oil industry decided that the right president pursuing the right foreign policy would improve their profit margin by 5%. If they had invested 1% of their 2008 profits into the last election, that would have been more than both presidential campaigns spent together. Is this really how we want US policy decided?