Challenging Corporate Personhood Theory: Reclaiming the Public

Abstract

The article aims is to show that the jurisprudence of corporate law, and specifically the theory of corporate personhood, lacks almost any explanatory power for legal doctrines and rules it is thought to inform. The article argues, first, as a matter of theory, that the different models of corporate personhood (the concession model, the aggregate theory and the real entity theory) do not carry normative weight to inform significant, concrete legal conclusions; and second, as a practical matter of legal doctrine, that the Supreme Court’s rulings on corporate rights deploy the theoretical models of corporate personhood interchangeably and inconsistently, to the effect that the same theoretical models are being used to suit contradictory purposes. As corporations are increasingly dominant in all aspects of social, political, and economic life, the article argues that reformulating the theoretical foundations that underlie corporate legal status has become especially urgent. The article therefore calls to develop a new discourse for corporate jurisprudence, and suggests that the central axis for this new discourse should be the substantive influence of corporate power on shaping the public sphere.