SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 2, WINTER 2016
Culture in Corporate Law or: A Black Corporation, a Christian Corporation, and a Ma[BAR]ori Corporation Walk into a Bar...
Gwendolyn Gordon(fn*)
ABSTRACT
Recent Supreme Court cases have entrenched a new image of corporate civic identity, assigning to the corporate person rights and abilities based upon the cultural characteristics, social ties, civic commitments, and internal lives of the human beings involved in it. This vision of the corporation is exemplified in recent cases implicating a corporate right to engage in political speech (Citizens United v. Federal Election Commission) and a right of corporations to be free of government interference regarding religious convictions (Burwell v. Hobby Lobby Stores, Inc.). Although much is being written about the soundness of the results in these cases and potential inconsistencies of the legal analysis that led to these results, this Article uses these cases to introduce a normatively potent theoretical perspective on corporate law that has for too long been exiled to the periphery of legal theorizing. When persons, whether corporate or human, interact within a social system, social theories of culture-not just microeconomic theories of individual incentives or ethical theories of individual duty-are required to fully understand the rights, norms, behaviors, and duties of such persons. The law has transformed the corporation into a unique civic person capable of holding and expressing opinions and beliefs to other members of its social community. This development urgently demands that corporate law scholars take cultural theory seriously if they are to fully understand the rights, norms, behaviors, and duties of modern corporations. This Article makes the case for the increased centrality of cultural theory within corporate law and lays out some of the major challenges and implications that lie ahead as this development takes hold.
CONTENTS
INTRODUCTION ..................................................................................... 354
I. WHY RETHINKING CULTURE MATTERS ............................................ 359
II. THE CONTINGENT CORPORATION .................................................... 366
A.Conceptions of the Corporation ............................................... 369
B. Solidarity and Disintegration in the Nature of the Corporation
............................................................................................... 377
III. A MA[BAR]ORI-OWNED CORPORATION AND A MA[BAR]ORI CORPORATION ... 384
A. The Indigenously Owned Corporation and the Indigenous
Corporation ........................................................................... 385
B. The Indigenous Corporation and the Contingent Corporation 390
CONCLUSION: THE LIVING CORPORATION ........................................... 394
INTRODUCTION
Many Americans only casually informed about the workings of the law were surprised to learn in early 2010 that corporations had suddenly grown inner lives. The Supreme Court, with its ruling in Citizens United v. Federal Election Commission, seemingly endowed firms with the ability to possess political opinions.(fn1) In truth, American legal doctrine has long held that corporations have the potential for political speech.(fn2) Relying heavily upon a characterization of the purpose of First Amendment political speech protections to be the safeguard of the right of listeners to hear as many different viewpoints as possible, the Court rendered protections for corporate political speech rights practically indistinguishable from those for human persons.(fn3) Citizens United garnered immediate and dramatic backlash for its blurring in law of socially important distinctions between human beings and corporations.
The courts, however, have continued to move in this direction. Four years after Citizens United, the Fourth Circuit decided that corporations could claim racial identities.(fn4) The court's opinion in Carnell Construction v. Danville replicated the High Court's blurring of the distinctions between human and corporate rights.(fn5) The Fourth Circuit mimicked the High Court in taking as settled the nature and extent of rights for corporations based in personal attributes-personal rights, let us call them(fn6)- and added a slight but important turn. In Carnell, an "imputed right" of a corporation to pursue an action on behalf of shareholders who had been discriminated against-established in the Eighth, Ninth, and Tenth Cir-cuits(fn7)-became an ability to be the "direct object" of discrimination.(fn8) Then, with the June 2014 Hobby Lobby decision, the Supreme Court informed the nation that corporations have the ability to practice religion.(fn9)
These decisions seem to be peculiarly culturally inflected: they describe interior lives emergent-and inextricable-from social contexts. One might even call this an anthropological moment in corporate law jurisprudence. Legal anthropologists (myself among them) have found themselves caught between feelings of dismay over how corporate power has been conceptualized in the absence of a social theory for how these emergent persons should be free to behave vis-à-vis their surrounding communities, and excitement about the potential for a newly energized synergy between anthropological and legal takes on the corporation.
This Article advances the following thesis: The newly gained "maturity" of the corporate persons in our midst requires corporate law scholars to take seriously a concept they have long held at arm's length, namely, culture. Legal scholars have tended to prefer to elide cultural considerations because culture is so deeply complex, contingent, and resistant to the legal method of neat doctrinal analysis. Yet this phenomenon is precisely what must be considered if the law is to conceptualize corporations in a way that adequately respects important human interests and social values. And it is precisely the phenomenon that the discipline of cultural anthropology takes as its field of study.
The cases outlined in this Article evidence the courts' increasing willingness to conflate corporate rights and the rights of human beings, as well as their failure to articulate any clear picture of the contexts or the characteristics of corporations that might trigger or limit such rights. Without some theory of how these entities can or ought to interact with social norms, patterns of conduct, implicit constraints on the exercise of power, or societal wells of meaning, corporate law will cease to be connected to social reality. The recent financial crisis served as a confirmation of the notion that the world is messy and complex in ways that confound traditional, economically-focused perspectives. In response, economists and legal scholars are taking up new methods to preserve this messiness in their analysis in order to better understand what is happening in the world around them. The dominance of law-and-economics stances in corporate law has begun to yield to a diverse set of approaches that recognize the importance of culture. Cases like Citizens United, Carnell, and Hobby Lobby are producing novel questions to consider with these new techniques. The effort to incorporate anthropological theories of culture into our understanding of the corporation is now a matter of urgent interest.
As this Article will show, there are two primary reasons for this urgency. First, whether corporations are viewed as entities or as collections of individuals, their rights cannot be understood without a careful analysis of the corporation's social and contextual particulars. Scholars have tended to focus more on the connections between, and characteristics of, people within the corporation-hence the large literatures on corporate culture as a management and productivity variable.(fn10) But corporations also spring from, and necessarily act upon, the cultural and legal norms that surround them. Second, once the study of the interaction between corporate persons and their cultural underpinnings comes into focus, a set of normatively important and challenging questions can be asked. For example, what influence should these cultural milieux have on the law? What limitations and exhortations should the law place upon them? How should the cultural person of the corporation be related to its legal per-sonhood?
An anthropological approach offers two tools that we might employ in answering such questions-one theoretical and the other methodological. Anthropology employs the concept of culture as a theoretical tool: as one lens through which to understand the world. Other approaches have other theoretical tools, their own lenses; economists, for example, may privilege efficiency or the maximization of human welfare as a norm- efficiency becomes their lens, something that matters in a way that can tell us something interesting about the world. Understanding the world through the lens of culture allows anthropologists to analyze complexities of human communal behavior otherwise hidden from view. Cultural anthropology gets at these complexities by means of a second tool-a distinct empirical method, that of ethnographic analysis.(fn11) My work uses what the anthropologist Clifford Geertz called "thick description" to investigate relational aspects of corporate behavior.(fn12) Thick description requires an...
