By kent Greenfield
Why we’re better off treating corporations as people under the law—and making them behave like citizens
Are corporations people? The U.S. Supreme Court launched a heated debate when it ruled in Citizens United that corporations can claim the same free speech rights as humans. Should they be able to claim rights of free speech, religious conscience, and due process? Kent Greenfield provides an answer in Corporations Are People Too: Sometimes.
With an analysis sure to challenge the assumptions of both progressives and conservatives, Greenfield explores corporations’ claims to constitutional rights and the foundational conflicts about their obligations in society and concludes that a blanket opposition to corporate personhood is misguided, since it is consistent with both the purpose of corporations and the Constitution itself that corporations can claim rights at least some of the time. The problem with Citizens United is not that corporations have a right to speak, but for whom they speak. The solution is not to end corporate personhood but to require corporations to act more like citizens.
About Kent Greenfield
Kent Greenfield is a law professor at Boston College, a former Supreme Court clerk, and an expert in constitutional and corporate law. He has published numerous scholarly articles in leading legal journals including the Yale Law Journal and the Virginia Law Review. His work has been featured in the New York Times, the Washington Post, the Atlantic, and on CNN. Greenfield has lectured at 120 institutions in 40 states and ten countries, and has been the recipient of four teaching awards while at Boston College. He is also an active participant in various litigation matters pertaining to civil rights and corporate accountability.
Eric Segall on DORF on Law wrote:
"In this dense but worthy analysis, law professor and media commentator Greenfield prescribes a new paradigm for applying constitutional law to corporations, which rejects both the left’s movement to strip corporations’ constitutional protections and the right’s aversion to more rigorous governmental regulation of their activities. In short: if individual citizens can be both protected and regulated by the Constitution, why should corporations, said to have personhood too, have the protections without obligation? Greenfield’s analysis is novel and includes a discussion of controversial Supreme Court decisions related to corporate rights, specifically Burwell v. Hobby Lobby, which concerned the religious rights of corporate shareholders, and Citizens United v. FEC, which applied the First Amendment to corporate political contributions. Greenfield argues that the current legal framework applied to corporate governance meaningfully threatens democracy because it “devalues the contributions of most Americans” and limits their political influence. He proposes abandoning corporate governance theories in which only shareholders’ economic gain matters and including other entities, such as employees and the communities in which corporations operate, in the group of stakeholders whose interests need to be considered in corporate decision-making. Some readers may find Greenfield’s proposals radical, but his attempt to balance the economic well-being of corporations and the interests of society at large is worth reading."
"For anyone interested in what constitutional rights corporations should possess, or in corporate rights and responsibilities generally, this book is a must read. Greenfield is one of the very few law professors in America with a serious background in both constitutional and corporate law, and his double expertise is reflected in almost every chapter of the book. [...] What makes this book so significant and interesting is that the author presents the legal questions, such as how much forced disclosure can the government require of companies like cigarette manufacturers (152-52), or whether corporations like Hobby Lobby should be allowed to assert religious claims under state and federal RFRA's (95-100) against the backdrop of his corporate law expertise. [...] as a matter of corporate law, the religious claim must belong to the company, not the people who run or own the company. This conclusion seems counter-intuitive (how can a company exercise religion?), but Greenfield backs it up persuasively with his deep knowledge of corporate law. [...] This is one of those rare books that would help litigators and judges enormously because the constitutional and statutory analysis is always supported by corporate law realities that should, but usually don't, inform the analysis of such claims and rights.
The final two chapters contain an impassioned plea that the law change to allow corporate directors a much freer hand in taking into account diverse interests (such as employees and community-based concerns) than the current regime which requires a focus on shareholder value. I am no corporate law expert so all I can say about those chapters is they were were fascinating and seemed persuasive to me. Greenfield's book repeatedly argues that both the law and our community should expect corporations to act more like people which would justify many of the rights he says they should be allowed to assert. For that to happen, corporate law and corporate culture need to change. To this constitutional law expert, and corporate law novice, that thesis seemed undoubtedly correct."
Debate with Greenfield about the Book
A debate about the topic of the book with Kent Greenfield and Adam Winkler, author of We the Corporations; How American Businesses Won Their Civil Rights (2018):
- "Complexity and Class: A Review of Kent Greenfield’s Corporations Are People Too (And They Should Act Like It)", long article by H. Justin Pace posted on SSRN, 22 August 2019
- "Corporations are People Too (And They Should Act Like It)" - post by Greenfield on the Harvard Law School Forum on Public Governance, 30 January 2019
- "In Defense of Corporate Persons", article by Greenfield in Constitutional Commentary, Vol. 30, p. 309, 2015 (which according to Greenfield presents a good overarching summary of the book
- "If Corporations Are People, They Should Act Like It" - OpEd by Greenfield in The Atlantic, 1 February 2015
Table of Contents of Corporations Are People Too
- In Defense of Corporate Persons
- Corporations and the "Damned Public"
- Should Corporations Have Rights?
- Corporations and Fundamental Rights, Equality and Religion
- Corporations and Speech Theory
- Speech and Corporate Purpose
- More Personhood, Please
- Six Bad Arguments for Shareholder Primacy
- The Promise of Corporate Personhood
- Making Corporations Citizens