A brace of recent Supreme Court decisions has granted certain privileges once reserved only for flesh-and-blood citizens — the right to be free from government limitation of political speech, for example, or to exercise religious convictions — to corporations. The decisions have been dissected by legal and political scholars, but comparatively little thought has been given to how this new definition of corporate civic identity interacts with social theories of culture. Such a study would help scholars understand the rights, norms, behaviors and duties of the corporations that have become, like Pinocchio, real “people.”
That’s what Gwendolyn Gordon, professor of legal studies and business ethics at Wharton, advocates for in her recent research, “Culture in Corporate Law, or: A Black Corporation, a Christian Corporation, and a Maori Corporation Walk into a Bar ….” The paper, published in the Seattle University Law Review, examines the cases that, together, brought this new idea of corporate personhood into existence — Citizens United v. Federal Election Commission and Burwell v. Hobby Lobby Stores — and argues that they need to be looked at with a new lens.
“This newly gained ‘maturity’ of the corporate persons in our midst requires corporate law scholars to take seriously a concept they have long held at arm’s length, namely, culture,” Gordon writes. “Without some theory of how these entities can or ought to interact with social norms, patterns of conduct, implicit constraints on the exercise of power, or societal wells of meaning, corporate law will cease to be connected to social reality.”
In other words, Gordon said in an interview: “We have these decisions. They are wacky, but what are we going to do with them?”
In her research, Gordon lays out the case for a cultural study of corporate personhood by comparing the concept of culture in legal scholarship and anthropology, and then uses the anthropological idea of culture to analyze Citizens United and Hobby Lobby. She then turns to the implications and challenges involved in such a study and brings in her own long-term fieldwork with a New Zealand corporation owned by Maori people, the study of which provided “surprising parallels” to the issues at hand.
The analysis Gordon advocates for is fraught from the beginning because, she writes, of the troubles inherent in applying culture’s “fuzzy” nature to scholarship that, like law and economics, likes bright-line tests and incontrovertible formulas. That has historically made cultural analysis a challenge to use in the study of corporate law.
“Compared to the streamlined elegance of law and economics, sophisticated cultural analysis — with all its unwieldiness and tendency to resist schematization — has had seemingly little to contribute,” she writes.
Further complicating the examination is that there is no singular concept of culture. Classic studies have “considered culture to be manifested through a society’s ceremonial clothing, its ‘timeless’ traditions and practices, and/or its seemingly homogenous traditions of thought,” Gordon writes, but more modern studies are concerned with “the tensions and frictions” between essential pieces of the culture, the relationships between them and the forces that pull them apart and keep them together.
On a more practical level, the very nature of corporate law complicates the study because, although the cases Gordon cites are federal, the bulk of corporate identity is not formed at the national level.
“Even as you’re examining these opinions and imagining what corporations might need religious or cultural exemptions, the question goes to state law.”
“Even as you’re examining these opinions and imagining what corporations might need religious or cultural exemptions, the question goes to state law,” she says. “We’re already starting from something super squishy and difficult to define. Now particulate it out to 50 states, all of which have different stances on what corporations should be doing and how.”
Outside vs. Inside
Ultimately, Gordon writes, there may be infinite ways to consider corporate culture in the wake of Citizens United and Hobby Lobby. But the pursuit of the “secret sauce” to determine which corporations have which personalities and rights is vital, she argues, if these new corporate persons are going to find their place in the greater fabric of society.
“Corporations are only limited on the outside. Don’t do ‘X, Y and Z,’ and to the extent they can get away with ‘X’ minus one, they will do that. It’s rational, and it would not make sense for the way business is done to limit themselves in that way,” she said. “My hope, my daydream, is to get around somehow this notion of the law as limits to bad actors … and figuring out what it is, whatever that might be, that moves us to a world that has corporations within themselves being concerned with the social weal.”