...A University of Kansas law professor has authored an article arguing the court failed to consider the real power brokers—corporate
groups—and that the opinion illustrates how courts are often taking different views of what it means to be a corporation in the same area of the
law, or as in Citizens United, in the same opinion.
I am taking a risk here, since not every ATS member is attuned to - or much interested in - the idea of "Corporate person-hood."
We might recall the hallmark Supreme court case of old ... "Citizens United vs. Federal Elections Commission
" (130 S. Ct. 876, 887 2010) ....
but what never happened (which the source author contends) that should
have happened was the inclusion of another aspect of reality that seemed
to have entirely escaped the chief jurists of our nation....
...the court never clearly answered the basic questions of whose voice corporations represent.
The Supreme Court failed to acknowledge, or make any address of the difference between a corporation and a 'Corporate Group" ... which is what most
corporations at the national level are. In fact, in a subsequent case which DENIED the singular person-hood (or "enterprise level,") the courts ruled
completely differently essential stating that a corporation is not an "individual" in terms of liability for actions by a member of it's corporate
group (Janus Capital Group, Inc. v. First Derivative Traders
(131 S. Ct. 2296 2011.)
"I think the court took an extreme position on the campaign finance question in Citizens United because they were less concerned about the power
of corporate groups," Harper Ho said of the ruling. If they had, she notes, they might have been more concerned about corporations drowning out
individual voice. "But I wanted to take a closer look at what the case means from the perspective of corporate law."
In her paper "Theories of Corporate Groups: Corporate Identity
) she explores the idea that a 'corporate group' is not "a
corporation" and the difference manifests itself in a completely different manner in practice.
Corporations are not mentioned in the Constitution, and the court has held that only certain constitutional rights should be extended to them, she
notes. How the rights and duties of corporations extend to related entities is more complex. A year after the Citizens United ruling, the high court
ruled in Janus Capital Group Inc. vs. First Derivative Traders, a caste that also turned on the boundaries of the corporate group and the meaning of
corporate speech. In that case, the court ruled Janus Capital Group was not responsible for misleading information made by an affiliated fund in the
sale of securities—in other words, the court concluded that Janus Capital Group and its affiliate were not a single speaker, in contrast to the
enterprise-level view of corporate speech the court appeared to take in Citizens United.
The issue of corporate person-hood is appears to have become a matter of political or commercial expedience; from a cynic's perspective. And the net
effect of the clumsy judicial approach by the courts seems to be bubbling to the surface as more questions about corporate person-hood are
The Supreme Court is currently hearing the case Kiobel vs. Royal Dutch Petroleum Co., which raises similar questions about the role and identity
of multinational corporate groups under international law. The case centers on Nigerian forces that undertook a campaign of murder, rape and abuse
against local activists who demonstrated against oil exploration there, allegedly with the support of Royal Dutch Petroleum Company. There is not
currently a single definition of a multinational corporation, and this case will go far in determining how the identity of multinationals under
international law will be viewed by courts in the United States, Harper Ho said.
The linked paper may be a dry legalistic read for some,. but I assure you it's importance cannot be understated.
Eventually our collective identities are being massaged into something quite inferior to corporate identity. We might have expected this echo from
past love of mercantilism... after all even states, nations, and bodies of elected officials have all "incorporated" as a matter of practice.
When you couple the vague "whatever is best for the corporation" legislation and global law-making with the incredible power of the corporate groups
we already see controlling the world's finances, trade, agriculture and more... I predict this will be a major battleground to reestablish the
supremacy of the sovereign citizen over legal constructs of commercial or political convenience.
(visit the link for the full news article)
edit on 5-10-2012 by Maxmars because: (no reason given)