Papers presented by Jared Berkowitz since 2019

2024 Providence, Rhode Island

""A matter of discretion": Corporations and Personhood in Progressive Legal thought, 1890-1929"

Abstract:

This paper examines the intellectual history of corporate personhood during the Progressive Era to shed light on the connection between legal personality and corporate social responsibility (CSR). In the late nineteenth century, the writings of Germany’s Otto Von Gierke and England’s Frederic Maitland inspired American scholars to reconceptualize the central figure of modern capitalism—the corporation. Richard T. Ely, Ernst Freund, and John Dewey each produced monographs wrestling with the nature, scope, and purpose of corporations. These theorists were struck by the puzzle of legal personhood. Corporations, they argued, were “rights and duty” baring institutions infused with “economic” and “moral” personhood. Economic personhood—the ability to buy, sell, and sue—facilitated market participation and styled the corporation as a self-governing, moneymaking institution responsible for shareholder wealth. Alternatively, “moral” personhood—an abstract legal status that imposed a set of conditions on corporate existence—concerned the corporation’s duties to society and responsibilities to stakeholders. By focusing on the “duties” incident to legal personhood, economists, legal scholars, and philosophers at the turn of the twentieth century provided a conceptual framework for economic regulation. Legal personhood, they argued, had the potential to restore the balance of power between public and private institutions in a moment when private corporations rapidly became far more powerful than the state. Corporate “personhood,” Freund concluded, was ultimately a “matter of discretion.” Where laws and regulations referred to “persons,” courts and custom determined whether firms would be included. This paper recovers the regulatory roots embedded within the history of corporate personhood and offers an alternative to prevailing legal thought that remains narrowly focused on expanding the “rights” of corporations without regard to corresponding duties. Ultimately, my paper argues that legal personhood, when deployed as a regulatory instrument, establishes the early contours of CSR.

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