Tip Sheet: U.Va. Faculty Experts Available to Discuss Law of Corporate Personhood in View of 'Occupy Wall Street,' Struggling Economy

October 20, 2011 — The spread of the "Occupy Wall Street" movement to cities across the country has led to a national discussion on the role of corporations and brought the term "corporate personhood" to the fore in recent weeks.

Several University of Virginia School of Law professors are available for comment on the issue, which likely will continue to be a part of the national dialogue in the midst of a struggling economy and throughout the presidential election.

A detailed Q&A with these professors is available online.

• Edmund Kitch
434-924-7047      

Kitch's scholarly and teaching interests include agency, corporations, securities, antitrust, industrial and intellectual property, economic regulation and legal and economic history. Kitch can discuss the legal justifications for corporate personhood as well as its role in the public debate.

"Corporate personhood has no constitutional implications across the board," Kitch said. "Courts decide on an issue-by-issue basis as to what provisions of a constitution affect corporations. Corporations, for instance, can't vote, while people can. But corporations can assert a constitutional claim for compensation when their property is taken by the government, just as people can."

• Paul G. Mahoney
434-924-7343

Mahoney's teaching and research areas are securities regulation, law and economic development, corporate finance, financial derivatives and contracts. The dean of the Law School, he previously practiced corporate law in New York City and clerked for U.S. Supreme Court Justice Thurgood Marshall. Mahoney is a member of the Council on Foreign Relations and has served as an associate editor of the Journal of Economic Perspectives and as a director of the American Law and Economics Association.

"Corporate personhood actually benefits creditors and customers of corporations," he said. "Without personhood, they wouldn't be able to sue 'the corporation' but would have to sue individual shareholders, from whom it would be much more difficult to recover."

In the Media
•    "The Bankers Who Cried Wolf: Wall Street's History Of Hyperbole About Regulation"
•    "Law Jobs Will Be Harder to Come By" (U.S. News & World Report, 06/25/2010)
•    "Goldman's Top Lawyer Lays Low but Packs Punch" (Reuters, 04/19/2010)
•    "Does Supreme Court's Harvard-Yale Dominance Bother Obama?" (McClatchy Newspapers, 04/16/2010)
•    "Making Bankers Pay: It's Happened Before" (SmartMoney, 01/13/2010)

• Frederick Schauer
434-924-6777

Schauer, a David and Mary Harrison Distinguished Professor of Law, is one of the nation's leading experts in constitutional law and theory. He is a fellow of the American Academy of Arts and Sciences, has held a Guggenheim Fellowship, has been vice president of the American Society for Political and Legal Philosophy and chair of the Committee on Philosophy and Law of the American Philosophical Association, and was a founding co-editor of the journal Legal Theory. He can discuss corporate personhood in the context of First Amendment and other constitutional law issues.

"In the context of the First Amendment, and in particular freedom of speech and freedom of the press, revisiting the capacity of corporations to exercise First Amendment rights is implausible," Schauer said. "Virtually all newspapers, magazines, motion pictures and books, among other message-deliverers, are corporations, and to suggest that these entities do not possess First Amendment rights would undercut the information- and idea-providing function of the First Amendment, and would, in addition, be the occasion for a dramatic alteration in longstanding First Amendment doctrine and theory.

"But to say this is not to foreclose careful thinking about the extent to which elections, like other First Amendment settings and institutions, are or should be subject to distinctive and institution-specific First Amendment rules, doctrines, tests and principles. Thus, some election-specific regulations of corporate contributions and expenditures in the electoral process would be consistent with the increasing institution-specific nature of First Amendment doctrine, and would do far less violence to the general principles of freedom of speech and press than would the broad acceptance of the implausible proposition that corporations cannot be the holders or claimants of First Amendment rights.

"In a world in which many of our messages and information are created and transmitted by corporations and similar large organizations, limiting generally the constitutional right to transmit messages and information to natural persons only would be highly unfortunate."

In the Media:
•    "Can Amazon Be Prosecuted for Hosting WikiLeaks?" (AOL News, 12/02/2010)
•    "Bipartisanship at Last: Condemnations of WikiLeaks from Both Political Parties" (Vanity Fair, 11/29/2010)
•    "Q&A at the 'Free Press for a Global Society' Forum" (New Asia Republic, 11/08/2010)
•    "Can the Quran Burning Be Stopped Before It Starts?" (AOL News, 09/08/2010)
•    "WikiLeaks Rolled Dice to Raise Its Profile" (Wall Street Journal, 07/26/2010)

• Richard Schragger
434-924-3641

Schragger's scholarship focuses on constitutional law, local government law, federalism, urban policy and the constitutional and economic status of cities. He has been quoted extensively in the media and his op-eds have appeared in Slate, the Washington Post and the Los Angeles Times. Schragger can provide historical and philosophical context for the concept of corporate personhood, including commentary on how Supreme Court justices viewed the doctrine.

"For as long as there have been corporate bodies, their exercise of power has generated concern," Schragger said. "Whether it is good or bad for the law to personify corporations depends upon one's goals. Certainly it is useful to treat the corporation as an entity that can sue and be sued, that can own property, and that can enter into contracts and commit torts. These are all things that make corporations look like individuals for legal purposes. But it would be strange to permit corporations to vote in elections or to claim violations of their 'human rights' or their political rights more generally.

"The corporate form of organization is just that – a form of organization. Corporations are useful organizations – they help coordinate large numbers of natural persons and encourage investment and give room for individuals to engage in productive enterprise. But there are lots of different ways to organize natural persons in the world. Families, churches, clubs, towns, cities and other governments are all institutions that engage in productive activity. We do not have to treat any of them as persons for them to fulfill their missions."

In the Media:
•    "S.F.'s Fight With Cellphone Industry Tests Compelled Speech" (The Recorder, 10/07/2011)
•    "Foreclosures Helping Change Color of Some Suburbs" (Associated Press, 02/28/2011)
•    "Cape Cod's Locals Keep the Chain Stores Out" (New York Times, 06/08/2010)
•    "Jefferson v. Cuccinelli" (co-author) (Slate, 06/01/2010)
•    "Virginia Attorney General Demands Scientist's E-Mails" (NPR, 05/28/2010)