Archive for the ‘personhood’ Category
Contrary to what many claim to believe, the union representing workers at Zellers stores in Calgary, Alberta, believe that corporations (or businesses more generally) are in fact persons, morally and legally. At least, that’s what seems to be implied by the position they are taking.
Here’s the background, for those who don’t already know. Zellers is Canada’s second-largest chain of discout stores. The well-known American chain, Target, has acquired the leases on 189 Zellers locations (about 3/4 of the total). So, over the next couple of years, Zellers signs will be taken down, and Zellers merchandise will disappear, to be replaced by Target signs and merchandise.
But what about the employees? Not surprisingly, they will be laid off by Zellers. Target, apparently, will welcome applications from the former Zellers employees, but with no guarantee, for example, that their years of service for Zellers will count for anything. They will, in other words, be brand new employees as far as Target is concerned.
But wait, says the union representing those employees. You mean that a worker with 20 years experience could conceivably leave Zellers one day, return (to the same building) the next morning to her new job at Target, and find she’s being paid like she’s got zero experience? So much for being loyal to loyal employees!
But notice what this line of reasoning assumes. It assumes that a store — indeed, a physical location — is something that can have responsibilities. The sign can change; the merchandise can change; even the ownership can change. But the store where you’ve worked the last 20 years is still, on some level, the same store. Or so the theory goes.
And the theory is not without some basis in law. In at least some jurisdictions, union representation, for example, carries over to the new owners when a business is sold. You can’t sell your business and thereby simply void the contract with the union representing your employees. (You can imagine the alternative: two brothers could “sell” their company back and forth to each other every 6 months just to neuter the union. It’s probably in the public interest to keep that loophole closed.)
But the present case isn’t quite like that. Target isn’t buying the Zellers stores lock, stock, and barrel. They’re simply taking over the buildings. So the transfer is unlikely to fall under the principle that a pre-existing collective agreement “goes with the business.” So for the union to assert that Target has responsibilities to the employees-formerly-known-as-Zellers-employees requires an especially strong version of the corporate “personhood” thesis, according to which corporations are to be treated as individual entities, under the law, for purposes of contracting, land ownership, and so on.
I doubt the union’s argument here can be made to hold water, though I would be interested to hear if readers think differently.
My main point, here, is just to point out the presuppositions of the union’s position, especially given that it presupposes a point of view that is rejected (albeit wrong-headedly) by so many.
Corporate personhood is one of the most badly misunderstood concepts in discussions of corporate behaviour and responsibility. It is also one of the most essential tools for promoting human wellbeing and protecting individual human liberties.
People get angry — understandably and often justifiably angry — when they see instances in which corporations have too much power. But the response, the way such anger is directed, is not always constructive. Indeed, sometimes it’s downright counterproductive.
Witness, for example, the recent move in the US to propose a “People’s Rights Amendment.” (It’s a project of citizens group “Free Speech for People”, and the bill was introduced in congress by Congressman Jim McGovern of Massachusetts.) This is a hail-Mary attempt to amend the US Constitution, largely in response to the US Supreme Courth’s controversial Citizens United decision. That decision, rooted in constitutional arguments about free speech, removed certain limits on corporate political donations. Like many people, I worry about the effects of that decision; but I worry even more about the potentially disastrous effects of the proposed remedies.
Now, a lot of people believe that the US Supreme Court, in the Citizens United decision, invented the notion of Corporate Personhood. That belief is both false and wildly US-centric. But aside from getting history wrong, this belief has resulted in a backlash that has included some wrong-headed proposals for shifting the balance of power back to The People. And the People’s Rights Amendment is one of those.
Here are the 3 sections of the proposed “People’s Rights Amendment”:
Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.
Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.
Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.
There are two problems here, and they are rooted in Sections 2 and 3 respectively.
Note that Section 2 says that incorporated entities don’t get constitutional rights at all. So that means, for example, no 4th Amendment limits on search and seizure of corporate property. So, under this proposed Amendment, no one’s investments — not your stock portfolio, not your RRSP, not your pension plan — is immune from arbitrary seizure by the state. It also means that a corporation would have no right to due process when charged with a crime. The implications for shareholders and employees, here, are potentially disastrous. Under the People’s Rights Amendment, any corporation you’ve invested in, or where you work, could effectively be seized and shut down without cause, without trial, without explanation. This surely limits corporate power, but at enormous cost — namely an enormous increase in the power of the state. Not the people; the state.
I should also add that this Amendment seems also to apply also to unions, nonprofits, and churches. None of them would, under the People’s Rights Amendment, retain these rights against the state, and all would be enormously vulnerable.
But all of that only matters if Section 3 doesn’t exist, because Section 3, if taken seriously, guts the whole thing. Section 3 reasserts that people, human beings, do have rights, and that nothing in Section 2 can be construed as limiting those rights. So as the owner of a corporation, or as a shareholder in one, Section 3 assures you that your property — including presumably the property of the corporation you own, or the property of the corporation from which you derive dividends — cannot be subject to unreasonable search and seizure, and cannot be confiscated without due process. Whew!
The point here is that people, real flesh-and-blood people, rely on business corporations and other ‘corporate entities’ in a huge number of ways. They are how we make our living. They are the instruments of our collective success. Where the power of those instruments needs to be limited, as it surely sometimes does, it cannot be done by pulling the rug out from under individual, human liberties. And so if corporate power is to be reined in, it will have to be done through a mechanism considerably less clumsy than the People’s Rights Amendment.
There are two ways to think about corporations. One is as a mechanism for letting a bunch of individual people interact. Seen this way, General Motors is just a mechanism for letting employees, customers, shareholders, suppliers, and managers interact in mutually-beneficial ways. The other way is to think of the corporation as an entity in its own right. Seen this way, GM is an entity that owns property, hires employees, is a party to contracts, and has obligations (e.g., via warrantees) to millions of customers. The people involved come and go, but the 103-year-old institution remains. These two views aren’t incompatible. Each illuminates one important characteristic while obscuring another. We need to be able to see corporations both ways, depending on the circumstance.
But it is important not to confuse the two. One is about people. The other is about legal personhood.
Here’s an important case of that confusion. As was widely reported at the time, US presidential hopeful Mitt Romney said, in a speaking engagement, that “corporations are people.” (You can see it for yourself on YouTube: Mitt Romney- Corporations Are People!) This happened over six weeks ago, but it is still causing confusion, and muddying the waters of the debate over the role of corporations in modern society.
What did Romney mean by what he said? I think the point Romney was clearly making is very different from the one he is often thought to have been making. In fact, he was making the exact opposite point. In clarifying what he meant, Romney said, in reference to corporate profits:
“Everything corporations earn ultimately goes to people. Where do you think it goes?”
In other words, he’s pointing to the first of the two viewpoints mentioned above, the one according to which what really matters is the people, the individual stakeholders, behind the corporation. And yet I keep seeing Romney’s “Corporations are people” claim bandied about sarcastically as if it’s yet another example of the much-hated (and much-understood) notion that corporations are legal persons.
(Greg Sargent at the Washington Post did try to explain this, but the point has generally been missed.)
If you don’t like Romney, fine. And if you don’t agree with the point he was making — that corporate profits end up in the pockets of human beings — that’s fine too. But please don’t confuse his point with the exact opposite point, namely the fact that corporations are (and need to be) legally regarded as persons.
Readers may already be familiar with documentary that came out a few years ago, called The Corporation. The film has many flaws; I can’t show it to my students without pausing frequently to correct misleading assertions and half-truths. But the key problem with the film lies in its attempt to arrive at a single, simple diagnosis for the many problems we see in the corporate world. The central conceit of the film is that the corporation fits the diagnostic criteria for psychopathy — that corporations, quite generally, act in destructive ways that demonstrate an utter lack of empathy or remorse. The problem is, the claim is utter bunk, and is utterly unsupported by what the film shows to viewers. But it’s also an idea that has struck a chord with a lot of people, seemingly summing up their darkest fears about corporations.
Part of the problem is that the film is sloppy with language. The film is called The Corporation, and the makers of the film clearly intend to refer to ‘the corporation’ in the abstract, corporations as a group, the very idea of them. It’s not referring to any particular corporation — like, that one over there. But in building its case, it cites diverse behaviours by various particular companies, and uses those to check off, one by one, the diagnostic criteria that psychologists associate with psychopathy in humans.
Here’s the list of diagnostic criteria that the film uses:
1) callous unconcern for the feelings of others;
2) incapacity to maintain enduring relationships;
3) recklessness with others’ health & safety;
5) inability to feel guilt;
6) failure to follow social norms.
The problem is that in order to use this list as a diagnostic tool, you need to apply it to a single ‘patient.’ But the film doesn’t do that, not ever; instead, it cherry-picks examples of heinous behaviour from across dozens of corporations over dozens of decades. It finds an example of Callous Unconcern on the part of one company, Recklessness on the part of another, and Deceitfulness on the part of others still. And so on.
The result is a kind of sleight of hand, and not very subtle sleight of hand at that. You can do the same trick with any ‘patient,’ of course, when your ‘patient’ is an entire category. If you cherry-pick examples from across many many particular cases, you can easily arrive at a diagnosis of psychopathy not just for The Corporation, but also fo The Government, The University, The Church, The Union, The Charity, The Newspaper, or even — *shudder!* — The Highschool Volleyball Team.
Now it is crucial to note that by pointing out this flaw in the argument put forward by the film, I’m not defending any of the companies that it mentions. Many of those companies have done terrible things, including things that are outright criminal. The point is that the film fails utterly in its attempt to prove that the corporation as a whole is a “psychopath,” or anything like it. And the result is much more than a documentary that fails to make its point. The result is a distraction, as viewers duped by the film are told to write off the very notion of profit-seeking corporations, a prescription that ignores the enormous amount of human wellbeing that has resulted directly from the activities of corporations, and also diverts attention from a more focused critique of the very real flaws that exist in the way particular corporations are governed and regulated.
I’m returning home today after spending the weekend at the Annual Meeting of the Society for Business Ethics, the world’s foremost association for academics engaged in the study and teaching of issues related to business ethics, corporate social responsibility, and so on. (It was a fantastic meeting and anyone with a professional interest in these issues should consider joining SBE.)
One of the dominant themes of this year’s meeting was the role of the corporation in the political realm. It’s an old topic, one revitalized by the US Supreme Court’s decision last year in the Citizens United case. Corporate involvement in the political sphere takes many forms (from lobbying to campaign donations to participation in collaborative approaches to regulation). Such involvement is probably inevitable, but definitely controversial, and so there’s lots to sort out regarding how we should understand corporations in the political realm, and what rights and responsibilities they should have in that world. Among several dozen scholars presenting their research at the SBE meeting, a striking proportion of them presented work related to this set of topics.
David Ronnegard and Craig Smith, for example, presented work that elucidated the connection between competing theories of business ethics, on one hand, and competing theories from political philosophy, on the other.
Anselm Schneider and Andreas Scherer presented their work on the changes in corporate governance necessitated by (what I would call) the quasi-governmental responsibilities that corporations sometimes take on in the international sphere.
Pierre-Yves Néron presented work arguing that the way we think of corporations in the public sphere ought to be strongly influenced by thinking about the kinds of corporate behaviours (including regulatory lobbying, for example) that can either improve or frustrate market efficiency.
Waheed Hussain presented his work on what it might look like to “civilize” the corporation to make its participation in the political realm less worrisome — essentially, by fostering among corporations a “public interest” ethos, and insisting that lobbying etc be framed in terms of the public good.
Wayne Norman encouraged his fellow business ethicists to pay more attention to regulation, rather than focusing (as the typically do) on the corporate ethical obligations that go “beyond mere compliance”.
I myself presented some of my current thinking on the various ways we might think of corporations in their interactions with government. In particular, I argued that while, in some cases, it makes sense to conceptualize the corporation as an agent in its own right, there are other cases (perhaps many more cases) in which it makes sense to think of the corporation as a tool or technology used by citizens to advance their goals. (This is something I’ve touched on before, informally, in a blog entry.)
Although I don’t want to speak for my colleagues, it seems safe to say that the scholars whose work is noted above share an interest in better understanding what it means, and what it should mean, for corporations to be political agents. They are part of a trend — I don’t yet want to say movement — that sees scholars attempting to take seriously the complexity of the practical and philosophical problems raised by having limited-liability, joint-stock corporations participate in a realm that is generally thought of as being rightfully the place of flesh-and-blood citizens.
The rights of corporations are back in the news this week, as the US Supreme Court decided that a California law restricting sale of violent video games to minors constituted an infringement of the constitutional right to free speech.
Far from being shocking, the notion that corporations should be protected by certain rights ought to be utterly commonplace. Here’s why.
Do you believe that human individuals should have a right against unreasonable search and seizure?
Do you believe that human individuals should have strong rights to free speech?
If so, then you must, logically, be in favour of according such rights to corporations. Why? Not because corporations are legally persons, and not because corporations are “like” human individuals in any particular way. We don’t necessarily need to appeal to any checklist of characteristics that a thing must have in order to be accorded rights.
The reason you must logically be in favour of granting such rights to corporations is that granting them to corporations is — in at least some cases — an essential part of protecting such rights for individual humans.
Consider the right against unreasonable search and seizure. Such a right (for individuals) is a central tenet of all civilized societies. It is crucial for our wellbeing that the government not be allowed simply to show up, search our homes, and take our stuff. What about a corporation’s “stuff”? It must be protected as well. Why? Not because corporations feel fear or have interests of their own to protect. No, corporations’ property must be protected because the interests of real, flesh-and-blood people depend on the protection of such property.
Roughly the same argument goes with regard to free speech. It is literally impossible to shut up a corporation without thereby shutting up human persons. If a human being has the right to speak freely, then she also has the right to speak freely about her commercial interests, including about the products and services and viewpoints of the entities (corporations, partnerships, unions, etc.) that advance those interests.
None of this suggests that the rights accorded to corporations must be exactly the same in kind and in character as those accorded to humans. Rights for corporations are largely instrumental, and need only be accorded where doing so protects important human interests. Nor must such rights be unlimited: there are limits on free speech for humans, and those limits generally should also apply to non-human persons such as corporations and unions and clubs and churches. What is essential, here, is to see that corporate rights are not the bogeyman. Just like human rights, they are a tool for helping us get along, and thrive, as a community.
The buzz over the appearance by IBM’s computer, Watson, on Jeopardy last week has me thinking about the capacities of computers.
Could a computer run a company, and if so what would we want to say about the ethical constraints on such a company? Well, one obvious worry is that ethics requires exercising judgment. Stanley Fish, in an editorial in the NY Times a couple of days ago (“What Did Watson the Computer Do?“) argues that while computers (from laptops on up through to Watson) are very good at is following rules. What they’re bad at, Fish points out, is adapting to new situations and figuring out whether the current situation is a valid exception to the rule.
So, let’s imagine a corporation without humans. It’s not science fiction, and it’s not far-fetched. I don’t know of any in operation today, but they’re certainly possible. There are some corporations today that, while they currently do have significant human personnel, could likely survive and continue to generate revenue for at least several days without human intervention. For example, basically any company that sells a product that can be bought and shipped via the Internet, such as ebooks or music files, can operate for at least a while without humans. (If you’re skeptical about that, please accept it for now, for the sake of argument.)
So imagine a guy named Dave sets up a company selling audio books. He builds a website, which allows customers to search, find the books they want, pay online, and receive the audio book as a download. Maybe he has a web-roaming software ‘bot looking around the web to find out which print books are popular enough for his online store to feature, and maybe even a decent piece of text-to-voice software to generate the voice files, without the need for human input.
Now, as long as Dave is around, monitoring the system, we’re likely to say that Daves “is” the company, and the computer is a tool he uses. And any ethical questions about the company’s conduct should be addressed to Dave. But what if Dave dies? The computer system would keep on chugging along, making money (barring failures of hardware or software). What ethical questions does such an autonomous electronic corporation pose? If the computer harms no one, and violates no rights, is it acting “ethically”, or does that notion require the kind of judgment that Fish says is impossible for computers? Would this robo-corporation have ethical obligations, or is the very idea of a non-human construct having ethical obligations nonsense? And if it’s nonsense, then does it make sense for corporations to have obligations, or are a corporation’s obligations merely the obligations of the persons that make it work?
…Taco Bell’s “meat mixture”, which it dubs “seasoned beef” contained less than 35 % beef. If these figures are correct, the product would fail to meet minimum requirements, set by the U.S. Department of Agriculture, to be labeled as “beef”. The other 65% of the “meat” is made up of water, soy lecithin, maltodextrin, silicon dioxide, anti-dusting agent and modified corn starch
Today comes news that Taco Bell is fighting back. See this story from ABC News: Taco Bell Fights ‘Where’s the Beef’ Lawsuit
According to the ABC story, Taco Bell President Greg Creed says the allegations are simply false.
Well, sorting that out shouldn’t be too hard, for some unbiased food scientists.
More interesting is Creed’s moralized counter-attack:
“Attacking a brand is like attacking a person. It’s just unacceptable when there aren’t any facts to support it….”
Attacking a brand is like attacking a person? How so? Creed doesn’t expand on the question, but he make just mean that attacking a brand is “like” attacking a person in that both are wrong when they involve falsehoods — perhaps simply because lying is generally wrong.
But setting aside that line of argument, is it possible that a stronger thesis is justified, namely that a brand is something that deserves protection the way that a person deserves protection? Now, I’ve argued before that corporations need to be considered persons. And I’ve also blogged about whether corporations should have the right to sue for libel to protect their interests. But a brand isn’t the same as a corporation, so the arguments I’ve given about those don’t quite hold, here.
The most obvious way to think of the ethical justification (or requirement?) for defending a brand against attack is to think of the brand as a piece of property. If you damage the brand, you damage the interests of those who own it. Sometimes that will be justified (perhaps because the good done by damaging the brand outweighs the interests and/or rights of the brand’s owners), and sometimes it won’t. But I wonder if a still-stronger thesis is possible: is there any reasonable sense in which the brand could be thought of as an entity in its own right, with interests separable from those of its owners? Consider the world’s most valuable brand, Coca Cola. If all of the owners of stock in Coca Cola repudiated their ownership rights, and if all the employees of the company all quit en masse (eliminating another key stakeholder), what would we say about the Coca Cola brand? It would no longer, per hypothesis, have any “owners.” Would it cease to have any ethical significance at all? Would there be nothing either right or wrong that you could do “to” it? What about other brands, like the Red Cross or Greenpeace?
I don’t have good answers, but I think it’s an intriguing question, given the significance of brands in the early 21st century.
The U.S. Supreme Court is once again diving into the waters of corporate personhood.
See this story, by Adam Liptak, for the NYT: Supreme Court Takes Cases on Rights of Corporations.
The Supreme Court added 14 cases to its docket on Tuesday, including three concerning the rights of corporations in unusual settings….
The story notes that two of the cases have to do with the use of the ‘state secrete privilege’ — the legal mechanism that allows the government not to submit evidence that would jeopardize national security. Both are cases to which both a corporation and the federal government are parties, and there is question about whether the state secret privilege can be used in ways that either hurt, or benefit, the corporation.
The other case is about privacy:
The privacy case, Federal Communications Commission v. AT&T Inc., No. 09-1279, will consider whether a provision of the Freedom of Information Act concerning “personal privacy” applies to corporations.
AT&T seeks to block the release of documents it provided to the F.C.C., which conducted an investigation into claims of overcharges by the company in a program to provide equipment and services to schools. The documents were sought under the freedom of information law by a trade association representing some of AT&T’s competitors.
AT&T relied on an exemption to the law for law enforcement records that could “constitute an unwarranted invasion of personal privacy.”
Yes, you read that right. In a previous ruling:
The United States Court of Appeals for the Third Circuit, in Philadelphia, ruled for the company, relying in part on a definition of “person” in the law that included corporations.
“Corporations, like human beings, face public embarrassment, harassment and stigma” because of their involvement in law enforcement investigations, Judge Michael A. Chagares wrote for a unanimous three-judge panel.
I’ve blogged before about why it is (sometimes) essential to think of corporations as persons, at least for legal purposes. But (as I’ve also argued) personhood is a complex notion, and deciding to think about corporations as persons doesn’t immediately imply attributing to them every characteristic of human persons.
Now, I don’t know precisely what Judge Chagares (quoted above) meant when he refers to the possibility of corporations facing “embarrassment, harassment and stigma.” But what he ought to have meant, I think, is that corporations (created by humans for human purposes) can suffer attacks on their reputation that can have a serious negative impact on the legitimate interests of their human creators. Roughly: if you (let’s say) unfairly impugn the behaviour or intentions of a corporation (or a non-profit for that matter) you wrongly harm the interests of the people who rely on it. What Judge Chagares needn’t have meant is that corporations possess the kind of dignity, or intrinsic worth, that we attribute to human persons, and that is the basis not just of the instrumental rights of legal personhood, but of human rights.
What sorts of things are corporations — and charities and associations and churches and unions and so on? Should we think of such organizations as things that are themselves capable of taking action, or should we think of them as tools that people use when they want to take action?
Case in point: the controversial organizations discussed in this recent NYT editorial, The Secret Election:
…the most disturbing story of this year’s election is embodied in an odd combination of numbers and letters: 501(c)(4). That is the legal designation for the advocacy committees that are sucking in many millions of anonymous corporate dollars, making this the most secretive election cycle since the Watergate years….
Now, recall that, in the wake of the U.S. Supreme Court’s Citizens United decision, all the talk was about the notion of corporate personhood — despite the fact that the majority decision made only passing reference to the concept. (See my blog entry here.) But notice that there’s no reference to corporate or organizational personhood in the NYT editorial. It’s simply not at issue. What’s at issue is the use of organizations as a certain kind mechanism, or tool. Note that, according to the NYT, interested corporations are using 501(c)(4) organizations as a conduit, with a court-sanctioned secrecy shield. The question here isn’t so much what the 501(c)(4)’s are doing, but what they are being used for.
I think that difference in perspective — between thinking of organizations as agents and thinking of organizations as tools — is worth taking seriously. Now, to be clear, I don’t think it makes sense to say that one or the other of those perspectives is the right one, for all cases. I strongly suspect there are cases where each makes sense. Clearly there are differences, and each will highlight certain aspects of a situation at the expense of others.
For example: focusing on the organization’s capacities as an agent (or quasi-agent, if you like) allows us to consider the possibility that the organization, as a whole, is deserving of punishment for wrongs that result from its actions; but it can obscure the interests and motives of the people behind the organization. (In the present case, if we focus on the personhood and/or rights of the 501(c)(4)’s, we might be distracted from crucial questions about the political motives of the people making use of them. On the other hand, focusing on the organization’s instrumental nature can obscure the complicated ways in which organizations transform and sometimes mistranslate the intentions of the individuals behind them. But it can also facilitate an engineering perspective on organizations, one that allows us to think about how the organization — as a complex mechanism — can be taken apart, re-engineered, and put back together again. So, in the present case, thinking about the 501(c)(4)’s as mechanisms allows us more readily to consider which of the legally-constituted features of 501(c)(4)’s are serving useful functions, and which (if any) ought to be re-engineered.
Now, I’ve argued before that there are certain purposes for which we simply must regard corporations as persons — as particular kinds of agents (“must” because important goals that we all endorse would be impossible to achieve otherwise). But when it comes to particular instances of ethical assessment of a corporation or other kind of organization, we should ask ourselves: is this one of the cases where it’s useful to think of the corporation as an agent, or is this one of the cases where it’s useful to think of the corporation as an instrument? Or are there other ways of framing the issues that serve us better still?