Corporate Bill of Rights

Uriel Procaccia

Abstract: Corporate entities enjoy legal subjectivity in a variety of forms, but they are not human beings. This paper explores, from a normative point of view, one of the limits that ought to be imposed on the capacity of corporations to be treated "as if" they had a human nature, their recognition as legitimate bearers of basic human rights. The assertion that corporations, like living persons, are entitled to constitutional protection was famously brought to the fore by a number of recent Supreme Court cases, most notably the Citizens United and the Hobby Lobby cases. In the rational choice analysis that follows this paper reveals that the new jurisprudence emanating from Citizens United may be justified in the relatively insignificant cases of small companies with egalitarian distribution of shares, but ought to be rejected in the more meaningful cases of large public corporations with controlling stockholders. The ruling in Hobby Lobby, on the other hand, can be defended regardless of the size of the corporation or the composition of its owners. In both of these cases it is not the rights of the corporate entity which is truly at stake and the final outcome ought to hinge on the constitutional rights of real human beings.

March, 2016