Patricia J. Williams: Corpus Ex Machina
[Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column "Diary of a Mad Law Professor." Her books include The Rooster's Egg (1995), Seeing a Color-Blind Future: The Paradox of Race (1997) and, most recently, Open House: On Family Food, Friends, Piano Lessons and The Search for a Room of My Own (Farrar Straus and Giroux, 2004.]
In 1976 the Supreme Court held in Buckley v. Valeo that the expenditure of money is a form of speech protected by the First Amendment. The implications of that case came to an absurd and unfortunate head with the January 21, 2010, decision in Citizens United v. Federal Election Commission. While the Buckley case allowed individuals unlimited spending in pursuit of political ends, Citizens United allows corporations that very same grace, and then some....
...[A] word about the history of legal "persons": for more than a hundred years, certain inanimate entities have been granted the status of fictive personhood for limited purposes. The concept grew out of the necessity for businesses to negotiate as well as to be accountable in the marketplace. When, for example, a company manufactures a defective product and sells it to you, you sue the company--not the individual executives or employees (unless there has been some act of extreme wrongdoing on their part). In other words, the company is a kind of juridical stand-in for a person, with that status rooted in the efficiency interests of contract and property law....
In 1935 the great legal realist philosopher Felix S. Cohen wrote a wonderfully illuminating article called "Transcendental Nonsense," in which he debunked (at least for that generation) the notion of corporations as persons. Cohen challenged the reasoning of the Court of Appeals of New York when it asked "Where is the corporation?" in a decision about the proper venue for a suit lodged in the State of New York against the Susquehanna Coal Company, a Pennsylvania corporation. "Nobody has ever seen a corporation," Cohen pointed out. "What right have we to believe in corporations if we don't believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the right...to assume that it travels about from State to State as mortal men travel."
Cohen denounced such thinking as essentially "supernatural." He reminded jurists that a corporation does not really have a body with only one fixed head--that it may have a corps of employees in multiple states simultaneously. "When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged," he wrote....
Read entire article at The Nation
In 1976 the Supreme Court held in Buckley v. Valeo that the expenditure of money is a form of speech protected by the First Amendment. The implications of that case came to an absurd and unfortunate head with the January 21, 2010, decision in Citizens United v. Federal Election Commission. While the Buckley case allowed individuals unlimited spending in pursuit of political ends, Citizens United allows corporations that very same grace, and then some....
...[A] word about the history of legal "persons": for more than a hundred years, certain inanimate entities have been granted the status of fictive personhood for limited purposes. The concept grew out of the necessity for businesses to negotiate as well as to be accountable in the marketplace. When, for example, a company manufactures a defective product and sells it to you, you sue the company--not the individual executives or employees (unless there has been some act of extreme wrongdoing on their part). In other words, the company is a kind of juridical stand-in for a person, with that status rooted in the efficiency interests of contract and property law....
In 1935 the great legal realist philosopher Felix S. Cohen wrote a wonderfully illuminating article called "Transcendental Nonsense," in which he debunked (at least for that generation) the notion of corporations as persons. Cohen challenged the reasoning of the Court of Appeals of New York when it asked "Where is the corporation?" in a decision about the proper venue for a suit lodged in the State of New York against the Susquehanna Coal Company, a Pennsylvania corporation. "Nobody has ever seen a corporation," Cohen pointed out. "What right have we to believe in corporations if we don't believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the right...to assume that it travels about from State to State as mortal men travel."
Cohen denounced such thinking as essentially "supernatural." He reminded jurists that a corporation does not really have a body with only one fixed head--that it may have a corps of employees in multiple states simultaneously. "When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged," he wrote....