Modernism and the Meaning of Corporate Persons by Lisa Siraganian

Abstract

When lawyers speak of legal fictions, they don’t mean novels like To Kill a Mockingbird or Bleak House but, rather, assumptions that they know are made-up—even untrue. One law school offers this crisp, if paradoxical, explanation: a legal fiction is “a fictitious fact that is treated as true under the law for purposes of legal, administrative or other expediency” (WashULaw 2012). The law, in other words, relies on fictions to do its work. One particular legal fiction, corporate personhood, has gotten considerable attention since 2010, when Citizens United v. Federal Election Commission extended the free speech rights of corporations, thereby allowing them to pour money into elections. While the decision outraged many (and understandably so), the Roberts Court did not bestow a constitutional right to corporations out of thin air. Well over a century earlier, Santa Clara v. Southern Pacific Railroad Company (1886) established that corporations are persons under the terms of the equal protection clause of the Fourteenth Amendment, and subsequent decisions have long since established various precedents for their speech rights.Corporate personhood is, of course, a metaphor as well as a legal fiction, and a highly consequential one. The implications of treating a corporation as if it were a person are incalculable. As both figure of speech and imaginative construct, corporate personhood provides literary scholars with a particularly inviting way to think through legal and economic questions.Lisa Siraganian’s elegant Modernism and the Meaning of Corporate Persons makes the case that corporate personhood is integral to American modernism. In five tightly written chapters, Siraganian ranges across canonical figures (such as F. Scott Fitzgerald, Gertrude Stein, and Ralph Ellison); other well-known writers rarely associated with modernism (such as Frank Norris, Theodore Dreiser, and George Schuyler); and a fascinating group of less familiar authors (including poet and lawyer Charles Reznikoff). A coda, presented in the form of a legal brief on behalf of American literature, touches on recent literary forays into corporate personhood by Richard Powers, Jena Osman, and George Saunders. While the readings of fiction and poetry are uniformly incisive, what makes Modernism and the Meaning of Corporate Personhood so rewarding is Siraganian’s deep knowledge of the law. (In fact, she earned a JD while working on this book.) She draws from no fewer than eighty court cases—giving some of them detailed and penetrating close readings of their own—and provides extended discussion of important legal writers such as Supreme Court justice Oliver Wendell Holmes, Jr., law professor Maurice Wormser, and pragmatist philosopher John Dewey, whose 1926 essay on corporate personhood remains a classic (Dewey 1926).Modernism and the Meaning of Corporate Personhood is a volume in Oxford University Press’s distinguished Law and Literature series. As an interdisciplinary project, the book is exemplary, though less concerned with capitalism than one might expect. That is, while Siraganian has plenty to say about the fraught question of what constitutes corporate speech and other legally granted corporate privileges such as limited liability, the book is less an intervention into what has been called the economic humanities (see, for example, Crosthwaite, Knight, and Marsh 2019) than a philosophical inquiry. Although the corporation has been for a century the most powerful and visible economic structure, the term corporation, it’s important to note, has not always signified the now ubiquitous for-profit business firm. Before such entities existed, early forms of corporations included hospitals and universities—and were expressly understood to serve the public good. It is particularly the philosophical conundra of aggregate identity and collective meaning that intrigue Siraganian, and she frames her book as an investigation into what debates about the corporation in the first half of the twentieth century can teach us about the nature of collective identities. In particular, she is interested in if, and how, an aggregate identity can be said to mean or intend anything. She contends that debates about corporate personhood in the first half of the century reflected a “crisis of intentionality and collective social agency” (12) that would come to define postwar philosophy of mind and particularly philosophy of action. For thinkers such as Donald Davidson and Elizabeth Anscombe (1976), intention does not correspond to an internal state of mind but rather is something realized in action. Importantly for Siraganian’s argument, Anscombe “obviates the need to locate intention in a single mind” (22), thus opening the door for theorizing the intention of an aggregate being. Modernist literature, Siraganian claims, “generated an early workshop of thought experiments on how seemingly authorless entities make meaning” (3), and anticipated insights that would later be formulated in philosophy of action and, later still, in deconstructionist theory. She contends that the discourse on “corporate personhood incited a revolution of thought on intention” (12) and that the “corporate form challenges basic assumptions about how meaning and action work” (13).Extending this original and productive way of thinking about corporate personhood, Siraganian redefines modernism as a parallel effort “to conceptualize collective intention” (34). Given the usual emphasis on modernist expressive individuality, this focus, too, is illuminating. For example, Siraganian’s supple reading of G.M.P. (1912) decodes Stein’s prose poem as “the phenomenology of an art movement” (128) that traces an evolving collective identity of three modernists. (Stein explicated the initials in a later title: Matisse Picasso and Gertrude Stein: With Two Shorter Stories [1933].) Crucially, in Siraganian’s account, G.M.P. delineates an aggregate identity in which the members remain, nonetheless, sharply individuated from each other. Drawing on extensive archival research, she uncovers what she calls “secret titles” (131) from manuscript notebooks to make sense of a notoriously difficult work. As well, she argues that Stein explores both similarities and differences between two types of aggregate entities: the aesthetic movement we call modernism and the business corporation. For this reader, the similarities were not entirely persuasive. Siraganian contends that the title G.M.P. mirrors the abbreviations of contemporary business corporations such as American Telephone and Telegraph (ATT) and Edison General Electric (GE), and that the book was “clearly evoking” (132) the stock-market ticker tapes that Stein would have been familiar with because her father was a broker. These suppositions are intriguing, to be sure, but deserve elaboration.Generally, though, the connections Siraganian establishes between literary texts and the corporate form are very persuasive. For instance, she explains the defeat of the wheat farmers in Norris’s The Octopus (1901)—ruined by rate hikes from the railroad they depend on to get their product to market—as a collective failure to understand what the most powerful corporation in late nineteenth-century America actually means. Concentrating on scenes that spotlight written or spoken declarations of the railroad’s aims as delivered by various agents, Siraganian shows the ranchers’ disastrously mistaken belief that they can understand the corporation’s intent and thus anticipate its future actions. And her superb reading of Dreiser’s The Financier (1912) examines the novel’s response to contemporaneous debates about limited liability, one of the defining features of corporations. (Owners of a corporation enjoy limited liability in that they can be held accountable only for the amount of their investment.) The Financier, according to Siraganian, discloses difficulties with the claims of legal writers who advocated what they called “piercing the corporate veil” (144) in order to hold owners responsible for a firm’s unethical actions. Specifically, she argues that the corporation formed by Dreiser’s protagonist—“Cowperwood & Co.”—is not simply deceptive but actually “alters reality, including the life of its creator, and thus must require other remedies [beyond piercing the corporate veil] to control it” (159).Impressive as Modernism and the Meaning of Corporate Personhood is, in two respects Siraganian’s individual readings do not always fit within the frame in which she places them. Her two primary keywords are modernism and corporate personhood, yet individual chapters do not uniformly bring those ideas to bear on each other. Some of the readings most centrally about corporate personhood (such as the sections on Norris and Dreiser) do not really address the authors’ relationships to modernism. While it is commendable how she sets aside the tired literary-historical narrative of old-fashioned naturalists being supplanted by daring modernists, a book centrally concerned with redefining modernism should explain how such authors inform her reconceptualization of literary history. (She passingly describes the naturalists as “ancestors” of modernist writers without expounding on what that entails [35].) Likewise, some sections particularly attentive to modernism drift rather far from the idea of corporate personhood, for instance (as noted above) the otherwise fine analysis of Stein. While modernity might have provided an easier connecting term, Siraganian is insistent that she’s writing about modernism. She asks in the introduction, “But why exactly was the crisis of corporate intention a particularly modernist concern, as opposed to simply modernity’s concern?” (30). Her answer that modernism, particularly American modernism, shares with debates over corporate personhood an interest in “how minimal could intention be and still be sufficient” (31) speaks more to philosophy than to literary history.A second snag concerns some of the transhistorical claims, which can be difficult to parse. There is nothing inherently objectionable in the common practice of a literary scholar claiming her chosen authors anticipate ideas that will come to be seen as typifying a later era. Sometimes, though, Siraganian draws connections across decades that can stretch credulity. For instance, she suggests that a single sentence written by Oliver Wendell Holmes Jr. in 1897 predicts Walter Benn Michaels’s theory of the materiality of signs in The Shape of the Signifier: 1967 to the End of History (2004). Admittedly, this is a minor point. A transhistorical claim more central to the argument concerns the relationship between debates over corporate personhood in the first half of the twentieth century and the postwar philosophy of action. For instance, Siraganian describes one of the key philosophical texts she relies on, Elizabeth Anscombe’s Intention (1957), as “offer[ing] a scaffold and logic that [early twentieth-century] corporate philosophers were searching for, even if it appeared too late to be of use to most of them” (48). It is difficult to know what to make of the suggestion that corporate theorists were in advance of later philosophers of intention even while the former could have benefited from the latter’s insights. In addition, the chapter on corporate speech contains excellent readings of both Citizens United (2010) and the version of Fitzgerald’s posthumously published The Last Tycoon (1941) titled The Love of the Last Tycoon (1993)—even while the relationship asserted between the Supreme Court decision and the novel seems convoluted. Tycoon, Siraganian persuasively argues, documents the “many failures that result from understanding ideas and language as literal, purchasable brain content” (83). Less convincingly, she extrapolates that, “Years early, Fitzgerald exposes a basic error in Citizens United’s notion of corporate speech as money, and the theory of degraded language that must accompany it.” As well: “Tycoon’s envisioning of corporate speech as literal commodity not only anticipates the Supreme Court’s reasoning in Citizens United, but works through the conceptual problems with this position that go unnoticed by the court” (105). To be clear, the connections she draws are always fascinating, but—to invoke another of Siraganian’s keywords—it is not entirely clear what she thinks these transhistorical parallels actually mean.Still, Modernism and the Meaning of Corporate Personhood is an erudite and impressive book. The final chapter on race and corporate personhood is particularly satisfying. Examining the strange history by which corporations achieved legal personhood by hijacking one of the Reconstruction amendments designed to protect former slaves, Siraganian documents how “the corporate person achieved its civil and legal rights at the same moment that African American citizens were being denied theirs under the Jim Crow regime” (178). She also documents how two Black authors mocked that absurdity and one real-life Black corporation surprisingly used the law to its advantage. In an engaging analysis of Schuyler’s Black No More (1931), Siraganian sets aside both the novel’s broad satire (which lampoons Black leaders as well as white supremacy) and its scathing commentary on the two major political parties in the United States, to focus instead on the significance of the fictitious skin-whitening firm being, specifically, a corporation. For a hefty fee, the Black owner of Black-No-More, Incorporated promises African American clients freedom from discrimination—not by challenging white supremacy but, rather, by implicitly endorsing the idea that it’s preferable to be white, and then transforming race into corporate capital. Siraganian deftly connects the novel with a 1908 Virginia court’s decision that upheld the right of a Black-owned business to incorporate, and concludes with a brief but engaging look at the struggle of Ralph Ellison’s protagonist against the “Monopolated Light and Power Company” in Invisible Man (1952). This chapter spotlights the absurdity and even hypocrisy of corporations enjoying legal rights denied to groups of actual persons. Tracing the history of the law’s “distorting of the Fourteenth Amendment” by perversely defining “‘any person’. . . not to mean any woman, child, and/or African American person, but, rather, any corporate or white male person” (179), Siraganian unveils a legal fiction more bizarre and convoluted than could be dreamed up by the most ingenious modernist. Reckoning with this dimension of corporate personhood may prove helpful for challenging America’s racial formations and for imagining antiracist alternatives.