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Denying Corporate Rights and Punishing Corporate Wrongs

Published online by Cambridge University Press:  30 November 2015

Amy J. Sepinwall
Amy J. Sepinwall*
Affiliation:
University of Pennsylvania
Rights & Permissions [Opens in a new window]

Abstract:

Scholars addressing the moral status of corporations are motivated by a pair of conflicting anxieties: If corporations are not moral agents, we will be unable to blame them for their wrongs. But if corporations are moral agents, we will have to recognize corporate moral rights, and the legal rights that flow therefrom. In early and under-appreciated work, Tom Donaldson sought to allay both concerns at once: Corporations, he argued, are not moral persons, and so are not eligible for many of the rights that persons enjoy; but they are moral agents, and so ought to bear responsibility in many of the ways that persons do. This article offers a sympathetic critique of the Donaldsonian strategy. I argue that, as it has been elaborated, the strategy necessarily fails. Nonetheless the strategy embodies a worthy aim and so I seek to provide an alternative way to vindicate it.

Keywords

corporate personhoodcorporate moral responsibilitycorporate rightsmoral agencycorporate criminal liabilityTom Donaldson
Type
Articles
Information
Business Ethics Quarterly , Volume 25 , Issue 4 , October 2015 , pp. 517 - 534
Copyright
Copyright © Society for Business Ethics 2015 

The notion that corporations are moral persons evokes consternation and anxiety, but so too does the notion that they are not.Footnote 1 Recognizing corporate moral personhood would seem to commit us to granting corporations rights that few think corporations should enjoy—rights to marry,Footnote 2 or rights of political participation, for example.Footnote 3 Yet denying corporate personhood would seem to limit our ability to treat corporations as responsible actors—worthy of praise when they do good, and censure, and possibly also punishment, when they do evil. In important and under-appreciated work, Tom Donaldson articulated a way out of this dilemma: Corporations, he argued, are not moral persons, and so are not eligible for many of the rights that persons enjoy; but they are moral agents, and so ought to bear responsibility in many of the ways that persons do.Footnote 4 On Donaldson’s ingenious account, then, we need not choose between recognizing corporate rights and punishing corporate wrongs; we can instead have it both ways.

In this article, I draw inspiration from what I shall call the “Donaldsonian Strategy”—his worthy effort to thread the needle of moral personhood and moral agency by arriving at an account that denies corporations moral rights while preserving some notion of corporate moral responsibility. I nonetheless take issue with the execution of his account, as well as the accounts of others who attempt something like the Donaldsonian Strategy. In particular, I argue that the strategy is destined to fail, and I then propose an alternative way of evading the twin dangers of corporate supremacy and impunity.

The argument I shall advance proceeds in three steps. First, I consider accounts that seek to establish that corporations should not enjoy rights grounded in moral personhood, and I argue that the reasons theorists (including Donaldson) offer to deny corporations these rights can be overcome. For all that these theorists have established, then, it remains an open question whether the corporation is a moral person. The next step of the argument reveals a deeper problem with the Donaldsonian Strategy. I argue that if proponents of the Donaldsonian Strategy succeed in demonstrating that corporations are moral agents, they will have necessarily established that corporations are moral persons. For moral agency, I argue, is sufficient for moral personhood. As such, it looks like the proponent of the Donaldsonian Strategy cannot prevail on a set of arguments that seeks a principled distinction between moral personhood and moral agency. The last part of the article seeks to salvage the Donaldsonian ambition of forestalling corporate impunity and cabining corporate rights. To that end, I argue that the debate about corporate moral personhood or corporate moral agency is largely a distraction, for most of the issues that matter to us will not be resolved no matter whether the corporation is or is not a moral person, or is or is not a moral agent. In particular, I contend, we might recognize corporate rights even if corporations are not moral persons; alternatively, corporations might legitimately be denied certain rights that we take to be foundational in our constitutional regime even if it turned out that they were moral persons. Similarly, I argue, we may be licensed in holding corporations morally and even criminally responsible for their wrongful acts even if they are not moral agents; alternatively, we might have good reason to reject corporate criminal liability even if it turns out that they are. In short, moral and political reasons, rather than ontological arguments—the instrument of choice for proponents of the Donaldsonian Strategy—might provide us with all the considerations we need to have the Strategy succeed. Or so I endeavor to establish.

Before turning to the article’s main arguments it will be useful to clarify its terminology and central objectives. By “moral agent” I mean to refer to all those who are fit to be held morally responsible (i.e., praiseworthy or blameworthy) for their acts. I do not endeavor to articulate just what fitness for moral responsibility requires. Instead, I argue that a being that meets even a very minimalist conception of moral agency, which would be congenial for the Donaldsonian’s aim of assigning corporations moral responsibility, would necessarily qualify for moral rights on the grounds advanced by the standard philosophical accounts of rights.

Further, I use the term “moral persons” to refer to all and only those who qualify for a particular set of moral rights.Footnote 5 There is considerable philosophical debate about the set of necessary or sufficient conditions for moral personhood, and about the list of the rights that should be accorded to all and only moral persons.Footnote 6 It would be beyond the scope of this article to seek to resolve these debates. Here too, then, I follow the lead of the proponents of the Donaldsonian Strategy. When they seek to argue against corporate rights, they clearly have in mind rights that we uncontroversially assign to cognitively well-functioning adult human beingsFootnote 7—e.g., rights to freedom of religion, or the pursuit of happiness.Footnote 8 The proponents of the Donaldsonian strategy argue that it makes no sense—as a conceptual or a prudential matter—to assign these rights to corporations. Since moral persons just are those who are fit for moral rights, it follows, if their arguments are sound, that corporations are not moral persons.

I aim to establish that their arguments are not sound. If I am successful, my efforts will reveal that their arguments do not in fact establish that corporations are not moral persons.

Ought we then to conclude that corporations are moral persons? I do not aim to answer that question here. Instead, I seek to argue that the Donaldsonian’s arguments against corporate moral personhood fail and that, if anything, their arguments for corporate moral agency would seem to establish just the opposite: If they are right that the corporation is a moral agent then it is necessarily a moral person. While much of the argumentation here is then critical, I remain sympathetic to the Donaldsonian ambition and I end the article with an effort to rescue it, by demonstrating that moral and political arguments alone can provide grounds for denying corporate moral rights while also justifying our punishing corporate wrongs.

I. Donaldsonian Strategy Phase 1: Denying Corporate Moral Personhood

In this Section, I describe and critique three lines of argument theorists have advanced in an effort to show that corporations are not moral persons. There are, to be sure, other such arguments. In particular, it is relatively easy to seek to deny corporate moral personhood if one holds a reductionist view of the corporation, according to which the corporation is a mere aggregation of individuals and property,Footnote 9 or a nexus of contracts among various parties.Footnote 10 For one who holds such views, there is no thing over and above the individual members of the corporation that could hold rights in its own right.Footnote 11 By contrast, the notable feature of each of the arguments here is that it is proffered by a proponent of the Donaldsonian Strategy. Each of these theorists takes the corporation to be blameworthy in its own right, so each is committed to the claim that the corporation exists over and above its members. The challenge for each of these theorists, then, is to arrive at an account that would justify our denying corporations moral rights while nonetheless allowing us to hold corporations morally responsible. As such, it is useful to address their arguments since they focus specifically on what it takes to be a moral rights-bearer.

The arguments examined here aim to deny corporate moral personhood on conceptual, prudential, and ontological grounds, respectively: The first seeks to establish that many individual rights cannot coherently be enjoyed by corporations; the second that we would subject ourselves to corporate oppression if we were to recognize corporate rights; and the third that individuals’ interests deserve greater attention than corporations’. I address each in turn, beginning with Donaldson’s own arguments.

A. The (Supposed) Illogic of Conferring upon Corporations Individual Rights

Donaldson argues that if corporations were persons, we would need to grant them rights that they do not currently enjoy (e.g., rights to vote), that few would be eager to extend to them (e.g., rights to social security), and that logic would in any case prohibit (e.g., rights to pursue happiness or worship freely).Footnote 12 This argument is susceptible to the worry that corporate personhood need not involve the same set of rights—moral or legal—that individual personhood does, in which case the fact that corporations ought not to enjoy the same rights as individuals would not establish that corporations are not persons. By way of analogy, few would deny that children are persons but few also rail against the fact that children do not enjoy voting rights.

Perhaps, though, the analogy falters. After all, it makes sense to confer upon children some rights, even during their period of moral immaturity, especially where the absence of these rights might prevent children from reaching adulthood. In this way, we might ground children’s rights in the ultimate value they possess as proto-persons or in a prudential effort to protect them along their path to full personhood. Corporations, by contrast, will be ineligible for many of our most paradigmatic rights for the duration of their existence. The claim would then be that an entity that can never qualify for any of our most important or foundational rights cannot be a moral person. Since the corporation cannot so qualify, it would follow that the corporation is not a moral person.

While the argument would then succeed in distinguishing corporations from children, it would still fail to establish that corporations do not deserve moral rights. For one thing, corporations can and do qualify for other rights and some of these, it can be argued, look to be no less important or foundational than the rights Donaldson thinks corporations should be denied. For example, corporations have rights of property and contract, rights against undue government intrusion, rights to equal protection under the law, and so on.Footnote 13 To be sure, all of these are legal rights. But so too are some of the rights Donaldson lists—for example, rights to social security, or rights to vote. And other rights figuring in the debate (arguably) stem from pre-legal entitlements; they are rights humans deserve just in virtue of their moral status, and not simply as a matter of positive law.Footnote 14

Further, there may be corporate analogs of the rights Donaldson cites, or the corporation might harbor interests analogous to those underpinning the individual rights he cites, in which case one could argue that the corporation should enjoy those rights (or at least rights analogous to them), even if it currently does not. For example, one could understand the right to pursue happiness as a right to choose one’s ends and to enjoy the freedom necessary to achieve those ends. It may be metaphysically impossible for the corporation to pursue happiness on the foregoing definition of what pursuing happiness entails, but it is not, as Donaldson would argue, logically impossible for the corporation to do so. In short, the corporation need not enjoy the same rights that individuals enjoy to qualify for moral personhood and, at any rate, rights that are seemingly unique to individuals might well have counterparts for which corporations are well suited.

B. A Corporate Super-Power?

A second line of argument would deny corporations rights for fear of the immense power corporations would enjoy were we to recognize them as rights-bearers. One version of this argument originates with Pat Werhane.Footnote 15 She worries that if corporations are moral persons, then the individual moral persons comprising the corporation—in particular, the employees—will necessarily be of lesser moral status.Footnote 16 “By this reasoning,” she explains, “a corporation could interfere with the freedoms of individual moral persons without moral violation because . . . corporations would have more in the way of moral personhood and thus freedom than persons” would have.Footnote 17

In response, one might question the notion that an entity composed of many persons must have a greater moral status than that of its individual members. Consider, for example, the state, which some political theorists take to be a person.Footnote 18 The state consists of many individual persons and yet it does not have a moral status greater than that of its members.Footnote 19 Indeed, on traditional democratic theories, the nation-state derives its power and status from its individual members, so that they have ultimate power over it.Footnote 20 All of that to say that, pace Werhane, granting corporations the status of persons, and the rights attendant upon that status, need not entail subjecting ourselves to corporate supremacy.Footnote 21

C. Individual Supremacy

Christian List and Phillip Pettit offer a different set of arguments for thinking that we may treat corporations as if they have lesser moral standing than individuals, and indeed that it is precisely their lesser moral standing that allows us to hold them responsible “in an especially strict manner.”Footnote 22

To establish that corporations should not enjoy rights as extensive or as strong as those of individuals, List and Pettit appeal to a Rawlsian notion of choice for the basic structure of society, and they contend that even in a society with group agents (e.g., corporations), “it must still be individuals, not groups, who deliberate about how to organize society . . . [and] the parties to such deliberation . . . can certainly be expected to agree to less than equal status for the corporate bodies they construct.”Footnote 23

A few things to note in response: First, in Rawls’s articulation of the original position, the deliberators are heads of families, and each deliberates on behalf of his family.Footnote 24 In this way, groups are already represented in the initial choice situation.Footnote 25 Suppose, though, that there is reason to distinguish families from corporations—say, because families are fully reducible to their individual members (families certainly lack the hallmarks of collective agency as List and Pettit conceive of them), or because families do not threaten domination in the way that corporations do. List and Pettit’s Rawlsian argument still faces a couple of difficulties. Again, they claim that individuals “can be expected to agree to less than equal status for” corporations. Presumably, they intend for their claim to be about what it would make most sense for individuals to do. And, of course, they are right that it is most rational to afford less protection to beings or entities that are not included or represented in the original position. Why decide on a basic structure that treats these others as equal to individuals if one has the choice to select rules that will allow individuals to enjoy greater power over them? But the claim about what it is most rational for individuals to do where only individuals are deliberating in the original position unfairly begs the question against the corporation’s moral standing: If the corporation has a standing equal to ours then it should be represented in the original position. Nor is it fanciful, by the lights of List and Pettit’s account, to imagine that corporations could deliberate alongside us in the original position, for they argue at length that corporations can engage in complex deliberations. So we could only disqualify corporations because we had already decided that they have less moral standing than we do. But just how much moral standing one should have is precisely what the original position is supposed to allow us to determine. So, again, assuming that corporations are moral agents capable of deliberating, there is no principled reason to exclude them from the original position. And if they are represented in the original position, then presumably individual deliberators will have to imagine that they could be members of corporations in the society they form, such that they have reason to seek to advance not only their individual interests but the interests of corporations as well. As such, we would have reason to expect that the original position would yield a principle of justice according to which the moral status of corporations is equal to ours.

List and Pettit might well resist the foregoing line of argument in light of their second justification for according corporations lesser moral standing. They embrace what they call normative individualism, “the view that something is good only if it is good for individual human or, more generally, sentient beings.”Footnote 26

The comment is puzzling. First, it evinces utilitarian commitments that many of List and Pettit’s readers will not share. For these readers it is at least an open question whether objects that are valuable for their own sakes (e.g., great art, some plant species, etc.) have value only because there are sentient beings around to enjoy them. Moreover, utilitarians would not need a strategy as subtle as the Donaldsonian one to defend corporate moral responsibility and deny corporations moral rights. Deterrence alone counsels in favor of corporate punishment for the corporation’s wrongs. And, on a utilitarian account, we need not advert to the corporation’s moral status to decide on the rights it should enjoy; utility considerations can provide the only rationale we would need. All of that to say that normative individualism is unnecessary for convincing the utilitarian and unconvincing for the person who rejects utilitarianism.

At any rate, List and Pettit do not seek to defend normative individualism; instead they simply note their “working assumption that group persons do not have whatever functional characteristic it is that makes individual human beings distinctively valuable, such as sentience of the right kind or other distinctively human qualities.”Footnote 27 Again, the view will likely strike those who operate with Kantian commitments as unpersuasive. For those theorists, it is precisely the capacity for reason that undergirds moral agency and that makes one distinctively valuable.Footnote 28 Moreover even if sentience is necessary for moral personhood, its absence is not particularly illuminating, since many sentient animals do not qualify for personhood either. To gain clarity on the corporation’s moral status, or moral status more generally, we would do better to look at the features that distinguish those sentient creatures that count as persons from those that do not, for the features of the former will be more central to personhood than sentience is. The next section makes some progress in that direction.

II. Donaldsonian Strategy Phase 2: Establishing Corporate Moral Agency

There is a more fundamental reason for which the Donaldsonian Strategy of arguing that corporations are moral agents but not moral persons fails: Moral agents are necessarily moral persons. Thus, if the corporation did possess the capacities that proponents of corporate moral agency have claimed it possesses, it would qualify for moral rights on even the most stringent accounts of what it takes to be a moral person. Or so I shall now argue.

I cannot here survey all of the varieties of accounts of rights. But we can make good progress if we begin with the traditional distinction in the literature between interest and will theories of rights.Footnote 29 On an interest theory of rights, the purpose of rights is to protect the interests of the person holding the right.Footnote 30 Thus, on Joseph Raz’s paradigmatic statement of the view, ‘“X has a right’ if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.’”Footnote 31 Importantly, on an interest theory of rights, one can be a rights-bearers even if one does not satisfy the criteria for moral agency, whatever they are. Indeed, some interest theorists take the fact that their theories can provide grounds for the rights of beings that are not moral agents to be a signal virtue of their accounts.Footnote 32 Thus children, those who are mentally disabled, some non-human animals, and so on count as rights-bearers on a standard interest theory of rights.Footnote 33

Corporations too at least arguably have the right kinds of interests. Indeed, Raz thinks it so obvious that they do that he does not even bother to argue the point.Footnote 34 It seems clear then that proponents of the Donaldsonian Strategy should eschew an interest theory of rights.Footnote 35

The main rival of the interest theory is a will theory of rights. On a will theory, the right-holder is endowed with the choice of whether to enforce, or else waive, the duty that is correlative with the right.Footnote 36 In this way, (1) rights are fundamentally about choice, such that only those who can exercise choice are legitimate rights bearers,Footnote 37 and (2) the capacity to choose is taken to be part and parcel of what it is to be an autonomous being or a moral agent.Footnote 38 It follows then that those who are incapable of choice—in particular, children and incompetent adults—do not count as right holders on a will theory, at least when strictly construed. By contrast, those who are moral agents capable of choice qualify automatically.Footnote 39 As Hart writes, our general rights “are rights which all men capable of choice have in the absence of those special conditions that give rise to special rights.”Footnote 40 In other words, moral agency and a capacity for choice are both necessary and jointly sufficient for rights bearing on a will theory of rights.Footnote 41

Now, this element of will theories of rights—that moral agency along with a capacity for choice necessarily entails moral personhood—is devastating to the Donaldsonian Strategy.Footnote 42 Again, the Donaldsonian Strategy aims to establish that corporations are moral agents but not moral persons. As such, we can now see, the strategy is logically impossible, for if corporations are moral agents, as proponents of the Donaldsonian Strategy would have it, then corporations are necessarily moral persons. Far from furnishing an account that would allow us to hold corporations responsible for their wrongs while denying them rights, then, the proponent of the Donaldsonian Strategy, at least if his arguments for moral agency are convincing, succeeds in showing us that the corporation is an appropriate bearer of moral rights. In other words, the Donaldsonian can justify corporate moral responsibility only at the expense of grounding corporate moral rights. He can forestall corporate impunity only at the expense of threatening corporate supremacy. But this is just the outcome the Donaldsonian Strategy was meant to avoid.

III. The Donaldsonian Strategy, Reconstituted

How to rescue the Donaldsonian Strategy? In this last Part, I retreat from the ontological arguments that have captured the debate thus far and I turn instead to moral and political arguments. I suggest that both a successful denial of corporate moral personhood and a successful defense of corporate moral agency are, in the end, unnecessary because neither is in any case determinative when it comes to the questions about the moral and legal status of the corporation that matter most to us.Footnote 43

The claim to be defended here is not that moral personhood is irrelevant for all moral rights. There may be some extra-political rights (rights against torture or unjustified killing, for example) that moral personhood alone would guarantee. Nor is moral agency completely inconsequential. Castigation in the face of corporate wrongs might be called for just so long as the wrongdoer is a moral agent, as a way of demonstrating the kind of respect that moral agents deserve.Footnote 44 In these ways, determining whether the corporation is a moral person or a moral agent can be dispositive. But the issues that occupy much public debate will not be resolved by demonstrating or denying that the corporation enjoys a particular moral status. I restrict my attention here to cases that have most recently unleashed public outcry—assertions of corporate rights to political speech and conscience,Footnote 45 and cases of corporate wrongs gone unredressedFootnote 46—and suggest reasons for which none of these cases will be settled by resolving the question of corporate personhood or corporate moral agency.Footnote 47 I consider corporate rights, and responsibility for corporate wrongs, in turn.

A. Rights

Suppose that proponents of the Donaldsonian Strategy had succeeded in convincing us that corporations are not moral persons. That success would not in fact secure the outcome these proponents desire—viz., a license to deny the corporations the foundational rights that we believe all adult Americans (i.e., mature moral persons who are U.S. citizens) deserve, just in virtue of their nationality and moral status. For it might be the case that protecting the rights of the corporation’s individual members nonetheless requires that we treat the corporation as if it has at least some of these rights.Footnote 48 Take, for example, a non-profit corporation that functions as an advocacy organization, like the NAACP. Restricting the NAACP’s speech is tantamount to violating the free speech rights of its members, all the more so if individuals face risks when speaking publicly, as was true in the heyday of the civil rights movement. It is plausible, then, to claim that protecting individual rights to freedom of speech requires recognizing that both the individuals and the corporation they form enjoy the rights in question, though the corporation would enjoy these rights only derivatively. The idea here would be to unabashedly recognize the corporation’s rights as an artifice, grounded entirely in the real rights of the corporation’s members.Footnote 49 Further, the scope of these corporate rights would be constrained by their genesis in the rights of their members, such that corporate rights to, e.g., free speech or freedom of association, would be recognized only if, and to the extent that, the recognition served the rights of the corporation’s members.Footnote 50 And the extent of their recognition would also have to be sensitive to the rights of other individuals, namely those who are not members of the corporation, so that the exercise of the non-members’ rights would not be unduly constrained by protecting the rights of individual members through the corporation. Still, to ensure the full exercise of the individual members’ rights, it might be crucial to confer upon the group they form a presumption in favor of a group counterpart to the individual rights in question. This is of course just what the Supreme Court decided when the NAACP challenged Alabama’s demand that the group turn over it membership rolls.Footnote 51 Moreover, it is not just non-profit advocacy organizations that are made to enjoy constitutional rights as a way of protecting the rights of its members, but for-profit corporations too. In this vein, consider Hobby Lobby, which conferred upon a large, closely-held for-profit corporation rights of religious freedom for the sake of protecting the rights of free exercise of the corporation’s owners.Footnote 52 These cases demonstrate that we will sometimes have reason to recognize corporate constitutional rights independent of whether the corporation is a moral person.

On the other hand, suppose one were to arrive at a compelling account of corporate moral personhood, such that one could establish that the corporation is the kind of being that could qualify as a rights-holder. It still wouldn’t follow that the corporation had the same free speech or conscience-based rights that individuals enjoy. For example, one might argue that moral personhood is not sufficient for rights of political speech. Instead, one might contend, these should be the exclusive prerogative of those who are expected to participate in the project of shared governance by, for example, voting, sitting on juries, serving in the military, etc. Because the for-profit corporation is not expected to play a role in any of these foundational political institutions, it would follow that its political speech rights should be weaker in strength than those of individual citizens—so much so that we may, as I have argued elsewhere,Footnote 53 constrain the political speech rights of corporations if doing so is necessary to allow individuals genuine exercise of their political speech rights. Similarly, qualifying for conscience-based rights might require more than moral personhood too. On some accounts, possession of a soul might be necessary, and it would require further argumentation to establish that corporate moral persons possessed a soul. Alternatively, on a more secular account, we might require that the putative claimant of a conscience-based right demonstrate a sustained commitment to living in accordance with the value(s) allegedly threatened by the policy that the claimant protests. Thus, for example, corporate invocations of conscience-based rights to refrain from offering health insurance coverage for contraception would be compelling only if the corporation in question could demonstrate that it (and not just its members) had a longstanding commitment to the set of beliefs underpinning its opposition to contraception. Apparently, not all corporations opposing contraception do. (Hobby Lobby was charged with hypocrisy when news outlets revealed that it invested its employees’ retirement funds in the very pharmaceutical companies manufacturing the contraceptive devices the corporate owners claimed to deplore.)Footnote 54 Or again we might recognize conscience-based rights only for those who are capable of guilt, since it is the prospective guilt of violating a foundational conviction that prompts the believer to conscientiously object. The proponent of corporate conscience rights would then have to demonstrate that the corporation could experience guilt, and the capacities necessary for that experience might be additional to those required for moral personhood. So again knowing that the corporation was a moral person would not necessarily entail that it should enjoy conscience-based rights.

In sum, we might have reason to acknowledge corporate rights even if corporations are not persons, and we might have reason to deny corporate rights even if they are. These are matters to be decided on a case-by-case basis, and through analysis of the implications of corporate rights for the individuals whom recognition of these rights would affect. Importantly, however, questions about when and why corporations should enjoy moral or constitutional rights do not turn decisively on whether or not the corporation is a moral person.

B. Wrongs

As we have seen, one of the factors motivating support for corporate moral or criminal responsibility is a concern about impunity in the face of corporate wrongs. Given the corporate form, it can sometimes be difficult to ascertain which members of the corporation participated in a wrong and to then punish those individuals. In addition, the corporate form can also magnify the amount of harm that these individuals together produce. In this way, even if we can identify the individual perpetrators of the corporate wrong, the magnitude of the harm they have together inflicted may exceed the magnitude of responsibility these individuals bear, even in the aggregate. Or, even more distressingly for purposes of assigning moral responsibility, it will sometimes be the case that the corporation has committed a wrong and yet no individual has engaged in any wrongdoing.Footnote 55 In all of these cases, we are left with a remainder.Footnote 56 That remainder alone might justify our prosecuting and punishing the corporation, because the corporation itself is a moral agent deserving of punishment, or because punishing the corporation can be a way of sanctioning the corporation’s members, who are blameworthy just in virtue of their membership and independent of whether they personally contributed culpably to the corporate crime.Footnote 57 And even if there is no remainder, we might reasonably believe that responsibility for a wrong of the corporation should not be borne by the corporation’s individual perpetrators alone. High-level executives in particular—those who helmed the ship at the time of the transgression—might be seen as fitting targets of reproach, whether because of their failures of leadership, or perhaps just because they constitute the human faces of the corporation, and so they are justly on the hook, to absorb the indignation that the corporate wrong prompts. We might prosecute these executives individually (more on that below). But we might, in addition or instead, prosecute the corporation but recruit the executives to literally stand (or sit) in its placeFootnote 58—at the defendants’ table during the trial and, as Jayne Barnard has argued, before the presiding judge at the moment the verdict and sentencing are announced.Footnote 59 The idea here is that the wrong is a wrong of the corporation but its members are required to experience and display remorse on its behalf.Footnote 60

All of that to say that we might have good reasons to hold corporations responsible for their wrongs even if they do not satisfy the criteria for moral agency. But again, as with corporate rights, we should consider the implications for corporate responsibility should it turn out to be the case that the corporation could qualify as a moral agent. Here too we might have reasons to desist from treating corporations in just the way we treat individual offenders, and these reasons need have nothing to do with the corporation’s moral status. For one thing, the effects of corporate punishment on innocent members of the corporation might make the practice less tolerable than individual punishment. Thus, for example, wiping out Arthur Andersen had the effect of putting 28,000 people out of work, even though only a tiny fraction of that firm’s employees participated in the accounting fraud.Footnote 61 And even if it were possible to craft punishment such that it befell only the corporation’s culpable members, we still might have reason to challenge criminal liability for corporations, for criminal liability might require more than moral agency, just as robust political speech rights require more than personhood. For example, on some accounts of political obedience, we might think that the state may prosecute and punish only those who enjoy a certain status within our polity —e.g., those to whom we have granted the right to vote. The thought would be that only those who have a say in the content of our law should be subject to sanction for its violation.Footnote 62 If such an account were right, the defender of corporate criminal liability would need to establish not only that the corporation is a moral agent but also that it enjoys the status in question.

In any case, there may be less lofty ways of grounding corporate blame and punishment that also do not turn on whether the corporation is a moral agent. Thus, the justification for reproaching or even punishing the corporation where it has committed a wrong might lie in its deterrent effect (we want to dissuade the wrongdoing corporation, as well as others, from engaging in like conduct), or in its expressive implications (we want as a community to single out the corporation’s conduct as wrongful). As long as the sanctions attending blame on these rationales would be fair both if the corporation were and were not a moral agent, then it would not be undue to impose them. For example, debarment—the exclusion of a firm from government contracts in response to wrongdoing—can be justified independent of the moral status of the corporation: The government is at liberty to choose the parties with whom it will contract (at least so long as it makes its choice on rational, non-discriminatory grounds); it can decide that it does not want to deal with a corporation that has a history of wrongdoing, and the fairness of excluding such a corporation does not at all depend on whether the corporation is a moral agent.

Finally, it is worth returning to the motivation prompting the felt need for corporate criminal liability—viz., a fear about corporate impunity—and noting that blaming and punishing corporations is not the only way to combat it. Instead, we might embrace a conception of shared responsibility that allows us to hold individual members of the corporation responsible for the corporate wrong independent of their participation in it. Indeed, the best tactic for allowing the Donaldsonian Strategy to prevail might well involve shifting from a focus on corporations to a focus on the individuals constituting them. We might have a clearer and more compelling sense of when and why we should recognize corporate rights if we consider the interests of their individual members.Footnote 63 And we might more satisfyingly address and redress corporate wrongs if we think more expansively about which individuals we might legitimately blame and sanction for them. The Donaldsonian ambition deserves to be vindicated, and so it deserves not to be held hostage to the seeming intractability of debates around corporate metaphysics and ontology. Theories of shared rights and shared responsibility, I submit, pave the way for the Donaldsonian Strategy to live another day.

AcknowledgEments

I had the honor of presenting a very early version of this article at the “Normative Business Ethics in a Global Economy: New Directions in Donaldsonian Themes,” conference. I wish to thank John Hasnas, Kendy Hess, Bill Laufer, Eric Orts, and Andy Siegel, for very helpful exchanges on the issues discussed here, and Tom Donaldson for inspiring this project and contributing so prodigiously to the field. I am also grateful to three anonymous reviewers and Alan Strudler for detailed and insightful feedback.

References

NOTES

1. Unless otherwise indicated in the article, I use “person” or “personhood” to refer to “moral person” or “moral personhood,” respectively. The question of whether corporations are legal persons is a matter of convention and, in U.S. law, one that was settled long ago, in Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394, 397 (1886). But the question of whether the corporation is a moral person, and so eligible for the rights that all (adult) moral persons enjoy, has been the subject of vigorous debate, and receives much attention here.

2. Cf. Stephen Bainbridge, Citizens United and the Constitutional Rights of Corporations, Professorbainbridge.com (Jan. 18, 2011), http://www.professorbainbridge.com/professorbainbridgecom/2011/01/citizens-united-and-the- constitutional-rights-of-corporations.html (describing a publicity stunt in which a woman announced that, if corporations were persons for purposes of political rights, then they should have the right to marry human persons, and then announcing her quest for a corporate spouse).

3. See, e.g., Thomas Donaldson, Corporations & Morality 22 (1982). To be sure, moral personhood is necessary but not sufficient for the right to marry or vote; citizenship is also required for the latter, and having reached some level of maturity is required for both. Neither condition should detain us here, though, because corporations are citizens of the sociopolitical entity in which they are incorporated, and because no one, to my knowledge, thinks of corporations as immature (a claim that would seem to imply that corporations could become more mature than they are. Cf. Philip Pettit, Responsibility Incorporated, 117 Ethics 171, 176-77 (2007) (discussing a developmental conception of moral agency whereby we treat immature agents as if they were moral agents as a way of “responsibilizing” them)).

For evidence that individuals across the ideological spectrum oppose corporate voting rights, see Editorial, The Rights of Corporations, N.Y. Times, Sept. 22, 2009, at A30 (“corporations cannot and should not be allowed to vote.”); Pierre-Yves Néron and Wayne Norman, Citizenship, Inc.: Do We Really Want Businesses to Be Good Corporate Citizens?, 18 Bus. Ethics Q. 1, 8 (2006) (“Does it make sense to think of corporations in any of these ways? For example, as full and equal members of the state, with a right to vote, and to hold office? Presumably not: even the staunchest advocates of corporate citizenship do not propose going that far.”). Cf. Richard A. Epstein, Citizens United v. FEC: The Constitutional Right That Big Corporations Should Have but Do Not Want, 34 Harv. J.L. & Pub. Pol’y 639, 646 (2011) (“I certainly would not want to let corporations vote, given that individuals can set up multiple corporations at the drop of a hat.”).

4. Donaldson,supra note 3; Tom Donaldson, Moral Agency and Corporations, 10 Philosophy in Context 54 (1980).

5. Cf. Peter French, The Corporation As a Moral Person, 16 Am. Phil. Q. 207, 210 (1979) (“it is possession of the attributes of an administrator of rights … that are [sic] among the generally regarded conditions of moral personhood.”), Patricia H. Werhane, Persons, Rights, and Corporations 35 (1980) (“French suggests that a moral person might be a non-eliminatable subject of a right.”).

6. Cf. Roe v. Wade, 410 U.S. 113, 159 (1973) (“When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [on what personhood consists of], the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”).

7. See, e.g., Werhane,supra note 5 at 34 (“The analogy between corporations and persons under the law has raised the question of whether corporations are sufficiently like individual human beings that they can be considered to be moral … persons and thus have moral rights.”).

8. Donaldson,supra note 3 at 23.

9. See, e.g., Albert W. Alschuler, Two Ways to Think About the Punishment of Corporations, 46 Am. Crim. L. Rev. 1359 (2009); John Hasnas, Where Is Felix Cohen When We Need Him?: Transcendental Nonsense and the Moral Responsibility of Corporations, 19 Brook. J.L. & Pol’y 55 (2010); J. Angelo Corlett, Collective Punishment and Public Policy, 11.3 J. Bus. Ethics 207 (1992).

10. See, e.g., Daniel R. Fischel & Alan O. Sykes, Corporate Crime, 25 J. Legal Stud. 319, 323 (1996); V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 Harv. L. Rev. 1477, 1477–78 (1996).

11. This is not to say that corporate rights are incompatible with a reductionist view. But so-called corporate rights are fully reducible to the rights of individuals – they are assigned to the corporation because that assignment is necessary to protect the rights of the corporation’s individual members. See, e.g., Eric W. Orts and Amy J. Sepinwall, Privacy and Organizational Persons, 99 Minn. L. Rev. 2275, 2292-96 (2015) (describing “secondary corporate rights,” which are reducible in just this way).

12. Tom Donaldson, Moral Agency and Corporations, 10 Philosophy in Context 54 (1980). See also Donaldson,supra note 3 at 22-23.

13. See generally Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 4 Hastings L. J. 577, 666-667 (1990) (listing all of the rights corporations enjoy under the Constitution).

14. For one piece of evidence supporting the notion that the rights Donaldson cites are either natural rights or have counterparts in natural rights, see the U.N. Declaration of Human Rights, Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), especially Articles 18 (freedom of religion), 21 (right to vote) and 22 (social security). Cf. Louis Henkin, The Rights of Man Today (1978) (“Political forces have mooted the principal philosophical objections, bridging the chasm between natural and positive law by converting natural human rights into positive legal rights.”).

15. Werhane,supra note 5 at 40.

16. Manuel Velasquez offers an interesting variant of this concern. He worries that our elevated conception of the corporation (a mistaken conception, by his lights) will prompt us to sacrifice our own interests for the sake of the corporation’s, and he envisions a kind of corporate totalitarianism as a result. Manuel Velasquez, Why Corporations Are Not Responsible for Anything They Do, 2 Bus. & Prof’l Ethics J. 1, 15-16 (1983). Unlike Werhane (and Donaldson and French), however, Velasquez denies that corporations are moral agents. His argument about corporate supremacy is then intended to add a prudential reason to the metaphysical and conceptual reasons he already offers for rejecting corporate moral agency.

17. Patricia H. Werhane and R. Edward Freeman, Corporate Responsibility, in The Oxford Handbook of Practical Ethics 520 (2003). See also Werhane, Persons,supra note 5 at 40. Werhane first raises the concern about corporate supremacy in her critique of Peter French’s contention that corporations are moral persons. In her fullest articulation of her view, she ultimately argues in favor of corporate secondary rights—rights derivative of, and weaker than, the rights of individuals. See id. at 62 (“the rights of organizations are distinguished from individual rights because, being derived from them, they do not take precedence over, but rather should be secondary to, individual rights.”); id. at 60-64. But in a piece co-authored with Ed Freeman, supra, there is a return to the worry about corporations lording it over individuals if corporations are granted rights, and this worry appears to be advanced on its own merits, and not merely as a response to someone else’s proposal. Werhane and Freeman, supra, at 520.

18. See, e.g., Alexander Wendt, The State As a Person in International Theory, 30 Rev. Int’l Studies 289 (2004). Wenar, Analysis, supra note 29 at 253.

19. Cf. Christian List and Philip Pettit, Group Agency: The Possibility, Design and Status of Group Agents 180-81 (2011) (“The state is the most salient group agent of all, and from the days of classical Athens and the Roman republic, …. the need to contain its power has been widely recognized.”). But cf. Velasquez, supra note 16 at 15 (noting that we do sometimes think it appropriate for individuals to sacrifice their own welfare for the sake of the state’s).

20. In Ben Franklin’s words, “[i]n free governments, the rulers are the servants and the people their superiors and sovereigns.” Benjamin Franklin,The Political Thought of Benjamin Franklin 398 (Ralph Ketchum ed., 2003). The more general idea is that of popular sovereignty, wherein the people relinquish their power to the government only provisionally; they may withdraw their consent whenever the government threatens to exceed the power it has been granted. See, e.g., John Locke, Two Treatises of Government, Section 149 (Peter Laslett ed., 1988) (“For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it”) (italics in original); John Stuart Mill, On Liberty 1.3 (1869), available at http://www.econlib.org/library/Mill/mlLbty1.html.

21. Werhane and Freeman offer an additional argument for the claim that corporations are moral agents but not moral persons:

corporations exhibit intentional behavior, engage in reciprocal accountability relationships, are subjects of rights, and are said to act. But their so-called intentions, their accountability relationships, and their ‘actions’ are the collective result of decisions made by individual persons. Their rights are assigned to an artificial entity, not to any individual person. The corporation is an eliminable subject, because, without persons, corporate ‘actions’ literally could not occur. Thus corporations are moral agents but not moral persons.

Supra note 17 at 522. It is not altogether clear from this argument why the fact that corporations cannot act except through individual persons disqualifies corporations from moral personhood but not from moral agency. The distinction seems to relate to Werhane and Freeman’s subsequent remarks about collective moral agency. They note that an individual’s acts on behalf of the corporation, although blameless on their own, sometimes combine with other individuals’ acts, also blameless, to produce a wrong. Id. at 52-54. Thus “there could be questionable outcome of corporate decision making that is the result of a series of blameless individual actions.” Id. at 54. I take it that the worry here is that we will be left with a responsibility remainder, or “deficit,” List and Pettit, supra note 19 at 194, if we cannot hold the corporation morally responsible for the “questionable outcome.” But the worry, though compelling, cannot itself secure corporate moral agency. The fact that we might wish that the corporation were a moral agent will not make it so. Nor can we locate corporate moral agency in the fact that some corporate actions are not fully reducible to their individual inputs. This irreducibility suggests that there are actions best described as corporate actions. But even if it then makes sense to contend that the corporation can act, moral agency requires more than a capacity for action. For all these reasons, I fail to see why we should endorse Werhane and Freeman’s contention that the corporation is a moral agent but not a moral person.

22. List and Pettit, supra note 19 at 179-80.

23. Id. at 181.

24. John Rawls, A Theory of Justice (1971). See also Jane English, Justice Between Generations, 31 Phil. Stud. 91, 95 (1977) (identifying this feature of Rawls’s account and decrying it for “making the family opaque to claims of justice”); Susan Moller Okin, Gender, Justice and Gender: An Unfinished Debate, 72 Fordham L. Rev. 1537, 1547-54 (2004).

25. Cf. Okin, supra note 24 at 1547 (noting that, on Rawls’s account, each of the parties to the original position is to treat the family he represents as a “single entit[y].”).

26. List and Pettit, supra note 19 at 182.

27. Id. at 227 n. 128.

28. See, e.g., Immanuel Kant, Groundwork for the Metaphysics of Morals 53-54 (Allen Wood ed., 2002); Christine M.Korsgaard, The Sources of Normativity (1984).

29. The debate between will and interest theorists of rights had for a long time dominated rights theory, producing ever more sophisticated accounts on each side. Cf. Leif Wenar, The Analysis of Rights, in The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy 254 (Matthew H. Kramer ed., 2008) (noting that the two positions are “deeply entrenched” and that the weaknesses of each are “by now well understood”). More recent interventions occupy a middle ground, advancing accounts that mix elements from both camps. See, e.g., Gopal Sreenivasan, A Hybrid Theory of Claim-Rights, 25 Oxford J. Legal Stud. 257 (2005); Rowan Cruft, Rights: Beyond Interest Theory and Will Theory?, 23 Law & Phil. 347 (2004).

30. See generally Joseph Raz, The Nature of Rights, 93 Mind 194 (1984); Joel Feinberg, The Rights of Animals and Unborn Generations, in Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy 159-84 (1980); Matthew H. Kramer, Refining the Interest Theory of Rights, 55 Amer. J. Juris. 31 (2010).

31. Joseph Raz, Morality As Freedom 166 (1986). The interests worthy of protection are interests in those “goods whose satisfaction is required for a recognizably human life, whatever a person’s particular plans, and distinctive conceptions of the good.”

32. See, e.g., Neil MacCormick, Children’s Rights: A Test-Case for Theories of Rights, 62 Archiv für Rechtsund Sozialphilosophie 311 (1976). Cf. Leif Wenar, The Nature of Rights 33 Phil. & Pub. Aff. 223, 240 (2005) (noting that few would deny that children have rights against being abused and that the presence of these rights speaks in favor of an interest, rather than a will, theory of rights).

33. Proponents of animal rights implicitly or explicitly rely on an interest theory of rights. See, e.g., Peter Singer, AnimalLiberation (1975); Tom Regan, The Case for Animal Rights (1983). Indeed, even non-sentient beings have been claimed by some to be appropriate holders of rights. See, e.g., Christopher D. Stone,Should Trees have Standing? And Other Essays on Law, Morals and the Environment (1996); Keith Graham,Practical Reasoning in a Social World: How We Act Together 89-91 (2002) (holding that groups can have rights of their own and denying that sentience is required for rights-bearing).

34. As Raz writes, “There is little that needs to be said here of the capacity of corporations and other ‘artificial’ persons to have rights. Whatever explains and accounts for the existence of such persons . . . also accounts for their capacity to have rights.” Raz,supra note 31 at 176.

35. But perhaps this moves too quickly. One might instead argue, pace Raz, that corporations do not in fact have interests of the kind contemplated by the interest theory—namely, interests we have reason to protect for the sake of the being whose interests they are. This is Joel Feinberg’s view of the kinds of interests necessary to ground moral rights. See The Rights of Animals and Future Generations, in Philosophy and Environmental Crisis 43 (William Blackstone ed., 1974). If Feinberg is right, and if the corporation’s interests are not for its own sake—if, say, they are derivative of the interests of (some of) its members and so we protect the corporation’s interests for the sake of the corporation’s members—then the corporation would not qualify for rights on an interest theory of rights.

Feinberg’s understanding of the kind of interests a rights-theory should contemplate has much to commend it. But notice that it too undermines the Donaldsonian Strategy: To be sure, it would establish that corporations do not warrant rights, which is the first half of the Donaldsonian position. But in so doing it would refute the second half, which seeks to establish that corporations are moral agents. For the features necessary to be the kind of being who has interests worthy of protection for the being’s own sake are also necessary for moral agency. These features, Feinberg maintains, include the possession of consciousness and conative states, as well as a natural teleology. Id. at 49. Feinberg concludes that beings without these capacities “have no interests. A fortiori, they have no interests to be protected through legal or moral rules.” Id. at 50. But so too, we may conclude, these beings would not be fit for moral agency, since moral agency requires at least that one be conscious. See, e.g., John Locke, Of Identity and Diversity, Chapter XXVII, pgphs 18-20, 28 of An Essay Concerning Human Understanding, available at http://www.gutenberg.org/cache/epub/10615/pg10615-images.html (noting that consciousness is a prerequisite for self-consciousness, and arguing that one can be blameworthy only if one owns one’s past acts as one’s own; in this sense, then, moral agency requires consciousness); Kenneth Einar Himma, Artificial Agency, Consciousness, and the Criteria for Moral Agency: What Properties Must an Artificial Agent Have to Be a Moral Agent? 11 Ethics and Information Technology 19 (2009) (“each of the various elements of the necessary conditions for moral agency presupposes consciousness”). Since corporations are not conscious, they would not qualify for moral agency on Feinberg’s account. As such, his view can be leveraged as the obverse way of showing the Donaldsonian Strategy to be untenable.

36. See, e.g., CarlWellman, Real Rights (1995); H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory 162-93 (1982).

37. H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Studies 175, 188 (1955) (italics added). See also Wenar, Analysis, supra note ____ at 253 (“Only those beings that have certain capacities—the capacities to exercise choice in controlling their own actions and the duties of others—are potential will theory right-holders.”).

38. See, e.g., Marlies Galenkamp, Individualism and Collectivism: The Concept of Collective Rights (1993).

39. See, e.g., Ian Carter, Introduction, in Hillel Steiner and the Anatomy of Justice: Themes and Challenges xviii (Stephen De Wijze. et al., 2009) (“On the will theory…, rights-bearers are necessarily moral agents with a capacity for choice.”).

40. Hart, supra note 36 at 188. Elsewhere, Hart seeks to extend rights to individuals not capable of choice—e.g., children—by arguing that a rights-holder could have a representative who chooses on her behalf whether to enforce or waive the duty in question. Bentham on Legal Rights, in Oxford Essays in Jurisprudence, 2nd Series, 171–201, 184 n. 6 (A. W. Simpson ed., 1973). This extension would show only that the capacity for choice is not, in the end, necessary to hold rights on Hart’s account. It leaves intact his earlier claim that moral agency is sufficient for enjoying “general” rights.

41. I follow the articulations in Carter, supra note 39 and in Hart, supra note 36, which represent moral agency as distinct from a capacity for choice. But it is fair to say that one who qualifies for moral agency possesses the requisite capacity for choice. On a will theory, the right-holder has discretion over whether or not to exercise his right. He will make that choice in light of his considered judgment about what it makes most sense for him to do. Forming that judgment requires self-awareness, a capacity for practical reason (i.e., capacities for belief and desire, an ability to form plans or goals, to evaluate and so rank order these, etc.), and an ability to conform his acts to his considered judgment. All of these (and more) are required for moral agency. So the individual who is a moral agent can choose in the way the will theory contemplates.

42. I note that some theorists offer accounts of corporate moral responsibility that do not require the capacities that the will theory contemplates. For example, Larry May argues that a corporation may be held morally responsible for a wrong of its employee on a theory of vicarious liability, where the corporation is at fault in virtue of the failure of other employees to fulfill their duty to put in place mechanisms that would have prevented the employee’s wrong. Larry May, Vicarious Agency and Corporate Responsibility, 43 Phil. Studies 69 (1983). The corporation has something to do with the employee’s wrong since it is the corporation’s organizing structure that creates a blameworthy causal link between the wrongdoing employee and the other employees who were charged with preventing wrongs of the kind the employee committed. At the same time, May denies that the corporation is either a full-fledged moral agent or a full-fledged moral person. As he says, “Gulf Oil Co. does act in some sense of that term, but its acts are vicarious ones, and its personhood is thus greatly restricted. But . . . this agency is not restricted to such an extent that moral appraisal of this action is ruled out. There are actions of the corporation which can be morally blameworthy even though the corporation’s agency status is much more restricted than full-fledged moral agents.” Id. at 74. What May’s account furnishes, then, is a theory that justifies our ascribing the employee’s act to the corporation. This is an important advance, for it allows us to conceive of wrongs as corporate wrongs not only where the corporation authorized them but also where it negligently failed to prevent them. But nothing in the account aims to establish that corporations are either fit to be blamed or eligible for rights.

43. Elsewhere, I argue that we have good reason to doubt that corporations are moral persons or moral agents. Amy Sepinwall, Monsters, Incorporated (2014) (unpublished manuscript) (on file with author). I nonetheless stand by the arguments in this Part, which cast questions about the corporation’s moral status as red herrings.

44. See, e.g., David E. Cooper, Hegel’s Theory of Punishment, in Hegel’s Political Philosophy 151, 153 (Z.A. Pelczynski ed., 1971).

45. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (holding that corporations have the same rights as individuals to spend money on independent political speech); Burwell v. Hobby Lobby, 573 U.S. ____ (2014) (holding that closely-held for-profit corporations can claim rights under the Religious Freedom and Restoration Act and thereby secure exemptions from generally applicable legal requirements that substantially burden the corporation’s religious exercise).

46. See, e.g., Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013) (holding that the Alien Tort Statute does not apply extra-territorially, so Shell could not be sued under it for its alleged complicity in human rights abuses); Mohamad v. Palestinian Authority, 132 S.Ct. 1702 (2012) (holding that the term “individual” in the Torture Victim Protection Act contemplates only natural persons and therefore does not impose liability on organizations). Cf. Chris Arnold, After Five Years, Why So Few Charges in Financial Crisis?, NPR.org, July 26, 2013, 4:55 PM EST, http://www.npr.org/2013/07/26/205866019/few-on-wall-street-have-been-prosecuted-for-financial-crisis (describing dissatisfaction with DOJ response to financial crisis given that so few individuals and firms have been prosecuted for the meltdown).

47. Others have questioned the fruitfulness of an inquiry into personhood for purposes of determining the corporation’s rights or responsibilities. See, e.g., William S. Laufer and Steven D. Walt, Why Personhood Does Not Matter: Corporate Criminal Liability and Sanctions, Amer. J. Crim. L. 263 (1991); Tom L. Beauchamp, The Failure of Theories of Personhood, 9 Kenn. Instit. Ethics 309 (1999) (arguing that satisfaction of the criteria necessary for metaphysical or moral personhood is neither necessary nor sufficient for being a rights-holder). But they have staked a far more modest position than the one I defend here: These other theorists maintain that we must first ascertain that the corporation possesses some set of features before recognizing it as an entity that can enjoy rights or bear responsibility, but they deny that these features need be necessary or sufficient for personhood. In other words, for these theorists, the question of whether the corporation is or is not a person is a red herring. Importantly, however, these theorists remain committed to the notion that the corporation’s metaphysical or ontological or moral status is decisive.

In contrast with these other theorists, a central claim of this article is that the corporation’s metaphysical or ontological or moral status is not in fact dispositive when it comes to determining whether the corporation may bear the rights and the kind of responsibility that vex us the most—in particular, free speech rights, rights of conscience, and the moral responsibility that underpins criminal liability.

48. I focus mostly on legal rights and legal cases here. One might then think that there is some slippage since, until this point, the focus has been on moral rights and moral personhood. In response, I note that the rights in question, as well as the legal subject’s liability to state punishment, are taken to emanate from his or her moral status. For example, rights to free speech and conscience arise because they are integral components of pre-legal rights to individual autonomy and self-determination that each of us enjoy in virtue of our moral status. See, e.g., Michael J. Perry, Freedom of Expression: An Essay on Theory and Doctrine, 78 Nw. U. L. Rev. 1137, 1142–43 (1984) (identifying, among our conceptions of the rationale for a right to free speech, an individualistic view focused on self-realization). Further, the emphasis on law arises simply because jurists have had more occasions to record their thinking about corporate rights. Finally, the lessons I draw from the cases represent principles that should guide our thinking about both the moral and legal rights of corporations.

49. An early case addressing the rights of corporations is instructive here: In Cnty. of Santa Clara v. S. Pac. R.R. Co., 18 F. 385 (D. Cal. 1883), aff’d sub nom Santa Clara County v. Southern Pacific R. Co.,118 U.S. 394 (1886), a lower court proclaimed that a corporation was nothing other than an association of individuals, who

do not, because of such association, lose their rights to protection, and equality of protection…. So, therefore, whenever a provision of the constitution or of a law guaranties to persons protection in their property, or affords to them the means for its protection, or prohibits injurious legislation affecting it, the benefits of the provision or law are extended to corporations; not to the name under which different persons are united, but to the individuals composing the union.

Id. at 402-403. In effect, then, the rights that the court found the corporation to enjoy were none other than those of the individuals who composed the corporation.

50. Cf. Orts and Sepinwall, supra note 11.

51. NAACP v. Alabama, 357 U.S. 449 (1958).

52. Burwell v. Hobby Lobby, 573 U.S. ____ (2014).

53. Amy J. Sepinwall, Citizens United and the Ineluctable Question of Corporate Citizenship, 44 Conn. L. Rev. 575 (2012).

54. See, e.g., Molly Redden, Hobby Lobby’s Hypocrisy: The Company’s Retirement Plan Invests in Contraception Manufacturers, Mother Jones (Apr. 1, 2014, 6:00 AM), http://www.motherjones.com/politics/2014/04/hobby-lobby-retirement-plan-invested-emergency-contraception-and-abortion-drug-makers (accusing Hobby Lobby of hypocrisy and noting the availability of faith-based investing plans that screen for companies manufacturing abortion drugs).

55. The famous (or, perhaps more accurately, infamous) legal example is United States v. Bank of New England, 821 F.2d 844, 856 (1st Cir. 1987), which held that a bank could be said to know that withdrawals had exceeded the level triggering a reporting requirement when tellers knew the amount of the withdrawals but did not know the reporting threshold, and other bank employees knew the reporting threshold but did not know the amount of the withdrawals.

List and Pettit offer convincing examples of a similar phenomenon in their discussion of discursive dilemmas, in which a group agent arrives at a decision to commit a wrong through an aggregating decision procedure where it is possible that none of the group’s individual members would have voted in favor of the wrong. List and Pettit, supra note 19 at 194.

56. See, e.g., James Dempsey, Corporations and Non-Agential Moral Responsibility, 30 J. Applied Phil. 334 (2013); List and Pettit, supra note 19 at 194 (calling this remainder a “responsibility deficit”); Amy J. Sepinwall, Guilty by Proxy: Expanding the Boundaries of Responsibility in the Face of Corporate Crime, 63 Hastings Law Journal 101 (2012).

57. I argue at length for the claim that membership can make one blameworthy for a crime of one’s corporation independent of one’s participation in that crime in Sepinwall, Guilty, supra note 56; Amy J. Sepinwall, Faultless Guilt: Toward a Relationship-Based Account of Criminal Liability (2015) (unpublished manuscript) (on file with author). Cf. Amy J. Sepinwall, Citizen Responsibility and the Reactive Attitudes: Blaming Americans for War Crimes in Iraq, in Accountability for Collective Wrongdoing 231 (Richard Vernon and Tracy Isaacs eds., 2011) (arguing that citizens share blame for war crimes of their nation-state even if they opposed the war).

58. See Sepinwall, Guilty, supra note 56.

59. Jayne W. Barnard, Reintegrative Shaming in Corporate Sentencing, 72 S. Cal. L. Rev. 959, 963-64 (1999).

60. This suggestion, along with the suggestion below about shared responsibility, see infra note 63 and accompanying text, would be anathema to the theorist who harbors an individualist conception of responsibility, according to which one may be held morally (and so criminally) responsible only for wrongs to which one has culpably contributed. See, e.g., Velasquez, supra note 16 at 12-13; John Hasnas, The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1329 (2009). I believe that the individualist position these authors stake is untenable when it comes to the acts of institutional groups for reasons I articulate elsewhere. See, e.g., Amy J. Sepinwall, Crossing the Fault Line in Corporate Criminal Law, 40 J. Corp. L. 439, 447-49 (2015).

61. See, e.g., Elizabeth K. Ainslie, Indicting Corporations Revisited: Lessons of the Arthur Andersen Prosecution, 43 Am. Crim. L. Rev. 107 (2006).

62. John Hasnas argues as much in Why Don’t Corporations Have the Right To Vote? (2014) (unpublished manuscript) (on file with author).

63. For a preliminary foray in this direction, see Orts and Sepinwall, supra note 11.