Are Corporations People? Corporate Personhood Under the Constitution and International Law

38 Pages Posted: 4 Sep 2012 Last revised: 16 Feb 2014

Date Written: June 2013

Abstract

Is a corporation a person? If it is, what rights and duties go along with corporate personhood?

My interest in this topic began with a stark comparison: how is it possible that a corporation can have a constitutionally protected right to contribute unlimited sums of money to influence an election, but that same corporation cannot be sued for human rights violations such as genocide? That is the unlikely result of two cases: Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010), in which the United States Supreme Court held that the First Amendment protects a corporation’s right to make electoral expenditures, and the Second Circuit decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), which held that international human rights norms do not apply to corporations.

This stark comparison may seem to compare apples and oranges: Citizens United relied on U.S. constitutional law, while Kiobel applied international law. But there are important links between our domestic understanding of corporations and international law. First, international law looks to domestic law to define the legal relationship between a corporation and the human and legal persons that act on its behalf, including the question of whether corporations are liable for wrongs inflicted by their agents. Second, there is an unjustifiable difference in the way that courts analyze the nature of a corporation in constitutional cases and the Kiobel approach. That is, there is a basic difference in the way the cases address or ignore my opening question: Are corporations people?

Citizens United and other constitutional law cases portray the corporation as a robust, multi-dimensional entity: a person in (almost) all its glory. In Kiobel, however, the corporation is just a one-dimensional dot. “Corporation” is an empty label, an undefined term that either appears in an international document or not. No background, no exploration of function and role. The distinct approaches are not the product of differences between the ways that international and domestic law define corporations. The problem, instead, is that the Kiobel majority, and commentators endorsing its views, ignore the robust corporate identity that they recognize when considering a corporation’s constitutional rights.

To illustrate this contrast and explain its implications, I start by outlining the historical approach of U.S. courts to corporate personhood and corporate constitutional rights. Next, I analyze corporate-defendant human rights cases in U.S. courts, including the circuit court cases that, in contrast to Kiobel, have held that human rights norms do apply to corporations, and I explore the impact of the April 2013 Supreme Court decision in Kiobel v. Royal Dutch Shell. Finally, I discuss the implications of the discrepancy between the way that some U.S. courts have approached corporate personhood in constitutional and international law cases. The comparison may be good politics – a very good political sound bite – but it is also something much more.

Keywords: Citizens United, Kiobel, corporate personhood, alien tort, human rights, corporate accountability

Suggested Citation

Stephens, Beth, Are Corporations People? Corporate Personhood Under the Constitution and International Law (June 2013). 44 Rutgers L.J. 1 (2013), Available at SSRN: https://ssrn.com/abstract=2140916

Beth Stephens (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States
856-225-6384 (Phone)

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