CALPERS, the giant California public-sector pension fund, is among the nation’s leading scolds of corporate governance. So as Ira Stoll points out, it’s kind of newsworthy that its CEO over most of the 2000s just pled guilty to taking $200,000 in bribes from a contractor, the money handed over in paper bags and a shoebox. [New York Sun]
Commenter Eric Rasmusen at Prof. Bainbridge, via Maitland, quotes Sir Frederick Pollock, Principles of Contract, originally published in 1876:
…the Roman invention, adopted and largely developed in modern systems of law, of constituting the official character of the holders for the time being of the same office, or the common interest of the persons who for the time being are adventurers in the same undertaking, into an artificial person or ideal subject of legal capacities and duties.
To put it differently, the law’s handling of enterprises as people was old news in Roman times. More on the misguided attack on rights-bearing by business organizations: Josiah Neeley, Matt Yglesias (“5 mistakes liberals make about corporate personhood and Hobby Lobby”).
“Delaware’s Supreme Court has ruled that corporations can adopt bylaws requiring an investor who sues and loses to pay the company’s legal costs, potentially upending the economics of a booming type of shareholder litigation.” [Tom Hals, Reuters via Federalist Society Blog]
The Cato Institute has submitted an amicus brief in the Hobby Lobby and Conestoga cases, which test the extent to which the Religious Freedom Restoration Act (RFRA) and the First Amendment restrain the federal government from requiring employers to participate in employee benefit arrangements that violate the conscience of the individuals who own and run the company. More on the other amicus briefs from Rick Garnett at PrawfsBlawg and commenters. Prof. Bainbridge takes issue with a brief signed by a group of law professors on whether a corporate enterprise can be treated as an alter ego for its owners for purposes of imputing to it their rights (“reverse veil piercing”), and has some further thoughts on the legal principle — sometimes ideologically contested, but seldom in a consistent way — of corporate personhood. Related earlier here.
Gender governance quotas [Darren Rosenblum, Prawfs]
On a practical level, corporate and organizational “personhood” has worked coherently for more than a century. Will this? [Reuters, Science; earlier on corporate personhood ("established and relatively uncontroversial," and progressive in its legal implications)] A Twitter reaction: “If they get the right to air political ads they can only improve the discourse.” [@jacobgrier]
More seriously, Prof. Bainbridge provided an answer to the question both on Twitter (“We treat corporations as people because it is a useful fiction. Animals as persons is not useful.”) and then in a longer blog post, which concludes:
The problem, I believe, is that attempts to define the debate in moral or philosophical terms ignores the basic fact that the rationale for corporate personhood sounds in neither. Instead, it is based on practicality and utility. Put another way, we treat the corporation as a legal person because doing so has proven to be a highly efficient way for real people to organize their business activities and to vindicate their rights. Put yet another way, we treat the corporation as a legal person because it is a nexus of contracts between real persons. Which is something no animal can ever be.
Marc Hodak: “The golden parachute became popular after passage of the Williams Act [of 1968, which insulated managements against "hostile" takeover offers] because the Act effectively gave CEOs a veto over the acquisition of their firm. … Note that this ‘rent extraction,’ as it’s termed by economists, was not the result of managerial power granted by a lazy or corrupt board to a greedy CEO. This was managerial power created by law.”
Law professor Kaimipono David Wenger, who’s ordinarily found on the opposite side of issues from us, explains why “Corporations aren’t people!” is a vacant slogan and when rightly understood not even a progressive one. [Concurring Opinions]