Killing Corporations to Save Humans: How Corporate Personhood, Human Rights, and the Corporate Death Penalty Intersect

Abstract

There is a growing sense of frustration among certain groups that the attribution of rights and responsibilities to corporations is evolving in a manner contrary to the best interests of natural persons. In the United States Supreme Court, for example, we have recently seen an expansion of corporate free speech rights (Citizens United, 2010) and religious free exercise rights (Hobby Lobby, 2014), while arguments for holding corporate actors accountable for complicity in human rights violations have been rejected (Kiobel, 2013; Jesner, 2018). One of the primary justifications for expanding corporate rights is the belief that corporate rights should essentially track the rights of the natural persons who own or manage them, which is a position often equated with the aggregate or real entity theory of corporate personhood. Meanwhile, one of the justifications for limiting corporate responsibility is a feared loss of the economic benefits that corporate status bestows on society as a whole in the form of job creation, innovation, etc. This fear of lost productivity is also prominent in discussions surrounding the “corporate death penalty.” This book chapter, forthcoming in The Hostile Takeover (U. of Toronto Press), will argue that the corporate death penalty and corporate personhood are connected in the context of corporate accountability for human rights violations because the fear of the negative consequences of corporate accountability embodied in the corporate death penalty strengthens arguments in favor of corporate personhood theories that support expanding corporate rights, while those same corporate personhood theories support limiting corporate accountability, including accountability via the corporate death penalty. Finally, a number of arguments that challenge both the pro-rights corporate personality theories and the anti-accountability fears triggered by threats of a corporate death penalty will be discussed, thus providing a reasonable starting point for activists seeking greater corporate accountability for human rights violations to challenge the current trend, at least as perceived by some, towards greater corporate rights and less corporate accountability.