2016] CORPORATE RIGHTS & ORGANIZATIONAL NEUTRALITY 501
Corporate ontology is back in vogue. The Supreme Court’s recent
decisions in Citizens United v. Federal Elections Commission (“FEC”)1 and Burwell
v. Hobby Lobby Stores, Inc.,2 have reinvigorated a century-old academic debate
about the nature of the firm.3 At the same time, public reaction to the cases
has underscored the practical importance of perennial questions about the
attribution of rights to corporations, including the source as well as the
content and limits of such rights.4
The Court’s pronouncements have done little to resolve doubts about
the extent of the corporation’s legal entitlements, much less its enduring
essence. Over the course of 200 years, the Court has articulated inconsistent
theories of the corporation—theories which seem to yield predictably
unpredictable judgments about the existence of a corporate right.5 When the
Justices conclude that a regulation burdening incorporated firms is valid, they
tend to emphasize the “artificial” nature of corporations. Because
corporations come into being only by virtue of the State’s affirmative charter,
the State may regulate them in a way it could not regulate natural persons.
The power to create implies the power to regulate. When, on the other hand,
the Justices conclude that a corporation is entitled to object to government
1. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
2. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
3. Speculation about the nature of the corporation, as well as its implications for the potency
of reformist regulatory efforts, was at the center of much academic scholarship early in the 20th
century. For a history of this literature, see ERIC W. ORTS, BUSINESS PERSONS: A LEGAL THEORY OF
THE FIRM 21–51 (2013); William W. Bratton, Jr., The New Economic Theory of the Firm: Critical
Perspectives from History, 41 STAN. L. REV. 1471, 1517–27 (1989); Morton J. Horwitz, Santa Clara
Revisited: The Development of Corporate Theory, 88 W. VA. L. REV. 173, 179–83, 203–07, 216–22 (1985);
and Gregory A. Mark, Comment, The Personification of the Business Corporation in American Law, 54 U.
CHI. L. REV. 1441, 1467–78 (1987). See generally John Dewey, The Historic Background of Corpora te Legal
Personality, 35 YALE L.J. 655, 667–69 (1926) (describing the debate and arguing its fruitlessness).
4. By “right” I mean a power to object to government regulation, including indirect
regulation through the creation of private rights of action, on constitutional or statutory grounds.
For reasons of economy, this Article sets aside correlative questions of corporate obligation,
except in passing. As the reader might anticipate, the analysis here suggests a symmetric approach
there, but one which this Article will not seek to demonstrate.
5. See, e.g., Brandon L. Garrett, The Constitutional Standing of Corporations, 163 U. PA. L. REV.
95, 98 (2014) (“What theory explains why corporations have some constitutional rights and not
others? The Supreme Court has not offered a general theory.”); Elizabeth Pollman, A Corporate
Right to Privacy, 99 MINN. L. REV. 27, 32 (2014) (arguing that “the Court has not developed a
coherent method or test for” determining which rights corporations hold); see also Margaret M.
Blair & Elizabeth Pollman, The Derivative Nature of Corporate Constitutional Rig hts, 56 WM. & MARY
L. REV. 1673, 1679 (2015) (“[T]he Court has not carefully analyzed its legal theory of corporate
rights, nor has it expressly articulated a framework for thinking about corporations that could
guide its decision making in a consistent way.”); Bratton, supra note 3, at 1503 (describing the
Court’s approach to recognizing corporate constitutional rights as a “situational practice”);
Darrell A.H. Miller, Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional
Rights, 86 N.Y.U. L. REV. 887, 908 (2011) (describing the Court’s corporate-rights jurisprudence