Glover on Isiksel, “A Corporate Right to Have Rights?”

For the final gathering of the Seminar on Corporations and International Law on April 4, 2018, Professor Turkuler Isiksel, the James P. Shenton Assistant Professor of the Core Curriculum at Columbia University, joined students, faculty and guests to discuss her recent book proposal – a work-in-progress on corporate personhood and a new purposive theory of corporate rights.

Professor Isiksel began the discussion with an overview of her theory and analysis, proposing a new purposive approach to limit the bounds of corporate autonomy. She discussed that the first part of her book will be a detour through corporate personhood theory, taking on and criticizing the three leading theories for analyzing the rights of corporations.  Professor Isiksel noted and rejected the “transcendental nonsense” critique developed by Felix Cohen, recognizing that corporations are more than merely legal concepts and function as vehicles of individual rights, developing an independent sense of corporate personhood. She asserted that there is no reason that corporations should not be granted the same rights as individuals, but should instead be granted no more and no less than the rights required to pursue the purposes to which the corporation owes its existence.

At the conclusion of her presentation, questions were posed to Professor Isiksel, primarily around the notion of further defining this ‘purposive’ model. Seminar attendees were eager to hear more about the practical applications of the theory, curious about the interaction between the purposive approach and the power of the state as well as the level of aggregation at which ‘purpose’ would be defined. Professor Isiksel clarified that the theory is not intended to be a doctrinal test and should not be expected to replace generally applicable tools of proportionality and balancing. Rather, her goal is to shift the focus to incorporate greater consideration of the role of corporate purpose in determining normative values and attributable rights.

In identifying a ‘purpose’, Professor Isiksel reminded the group that it is important to consider more than just the company’s charter and to also take into account the myriad of ways that a corporation may intend to manipulate their rights and the applicable regulatory approach. In particular, she noted that it is key to consider whether the corporate actor has assumed additional responsibilities in asserting the purported purpose. She recognized that there is a potential for perverse incentives, but envisions a back-and-forth process wherein the corporation gets the first attempt to define its own purpose before the state steps in to clarify and correct the validity of those claims. Ultimately, Professor Isiksel’s vision of corporate purpose rests on the interplay between three parties: the corporation, the state or regulatory body, and the individual rights to be protected.

Professor Isiksel’s theory remains an incomplete foundation upon which to build new regulatory frameworks, but it raises interesting questions about how we perceive and respect corporate identity. Further analysis on questions about who defines the ‘purpose’ of the corporation and how it may be applied in practice, particularly in a time when corporate lobbying puts immense pressure against state accountability, will serve to move it beyond a mere theoretical framework.

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