Caroline Kaeb


The Supreme Court has been wrestling with the doctrinal premises of

corporate personhood on several occasions in recent years. The Court follows a

long history of jurisprudence that has been criticized as cryptic or nebulous at

best by many scholars. Especially since the recent economic crisis, the doctrine

of corporate personhood has had polarizing effects on the public debate about

the role of corporations in society. At a policy level, the debate revolves around

questions about the scope of regulatory reach of the state over business; at a sociological

level, the issue presents itself as an oxymoron, whether “corporations

have human rights,” as the Wall Street Journal postulated. The article provides

an important insight into what is wrong with the majority opinion in Citizens

United. The paper argues that corporate legal theory (about the nature of the

firm) should inform the debate on corporate constitutional rights in order to

avoid intra-corporate conflicts with competing interests of shareholders and—

depending on the prevailing corporate theory in a national context—its other

stakeholders. In essence, we should put the “corporate” back into corporate