Are corporations people? Are they entitled to the same “certain unalienable rights” as human beings – including free speech, as in the Supreme Court’s decision in Citizens United? These and similar questions struck me as pretty important and presumably interesting. So when I heard about “We the Corporations – How American Businesses Won Their Civil Rights”, I picked it up.
The good news is that the history of corporate civil rights is interesting, and Adam Winkler (a professor at UCLA Law School) does a decent job of telling it. The bad news is that his negative views regarding corporations infect the narrative and make me question the impartiality, if not the accuracy, of much of the book.
Early on, Professor Winkler discusses the monopolistic practices of Standard Oil and other late nineteenth- and early twentieth-century trusts. So far, so good. However, he then discusses the “migration” of Standard Oil from Ohio to New Jersey due to the increasingly pro-corporate laws of the Garden State. He characterizes this development as a “race to the bottom” in corporate law. Again, so far, so good – maybe. But then he goes on to state that Delaware has become the jurisdiction of choice for so many corporations because it favors corporations, presumably to the detriment of their constituencies – possibly including society at large. To be fair, that may have been an accurate characterization in the past. However, to really be fair, Professor Winkler should have acknowledged that in recent decades Delaware has become far more judicious (all puns intended) as to the exercise of corporate rights than most states. And he also should have acknowledged that a (the?) major reason so many corporations organize under Delaware law is the existence and wisdom of and predictability afforded by its corporate judicial system – i.e., its Court of Chancery and Supreme Court – rather than its lax laws. (Ironically, the book ends with a lengthy discussion and citation of Delaware Supreme Court Chief Justice and former Chancellor Leo Strine, who strongly disagrees with the Citizens United decision. One wonders if Chancellor Strine was aware of Professor Winkler’s views of his state’s laws.)
And so it goes. Professor Winkler discusses case after case after case in which corporations’ civil rights (as distinguished from property rights) expanded. One of the first such cases arose out of the efforts of Louisiana Governor and demagogue Huey Long to impose higher taxes on newspapers that were critical of him. Admittedly, this case created corporate rights where few or none previously existed. However, Professor Winkler focuses on the expansion of corporate civil rights and seems to ignore the importance of this case in establishing freedom of the press. He doesn’t even acknowledge that hard cases make bad (or at least problematic) law. And if he thinks that the Supreme Court could have extended freedom of the press without expanding corporate civil rights, he doesn’t bother to explain how it might have done so. (Interestingly, Chief Justice Strine does a great job dissecting Citizens United; it would have been nice if Professor Winkler had done as thorough a job with any of the cases he dissects, but he’s so focused on his mission that he can’t – or won’t – go there.) This approach is replicated throughout the book.
I am not suggesting that corporations are angelic or even good; like the humans who create them, they are all over the lot. However, by focusing solely and binomially on the negative, Professor Winkler’s book turns out to be more of a screed than the valuable contribution to legal scholarship it might have been.