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Corporate Impersonation: the Possibilities of Personhood in American Literature, 1886-1917

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Corporate Impersonation: the Possibilities of Personhood in American Literature, 1886-1917 Corporate Impersonation: The Possibilities of Personhood in American Literature, 1886-1917 by Nicolette Isabel Bruner A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (English Language and Literature) in the University of Michigan 2015 Doctoral Committee Professor Gregg D. Crane, Chair Professor Susanna L. Blumenthal, University of Minnesota Professor Jonathan L. Freedman Associate Professor Scott R. Lyons “Everything…that the community chooses to regard as such can become a subject—a potential center—of rights, whether a plant or an animal, a human being or an imagined spirit; and nothing, if the community does not choose to regard it so, will become a subject of rights, whether human being or anything else.” -Alexander Nékám, 1938 © Nicolette Isabel Bruner Olson 2015 For my family – past, present, and future. ii Acknowledgements This dissertation could not have been completed without the support of my committee: Gregg Crane, Jonathan Freedman, Scott Lyons, and Susanna Blumenthal. Gregg Crane has been a constant source of advice and encouragement whose intimate knowledge of law and literature scholarship has been invaluable to my own development as a scholar. Jonathan Freedman’s class on “Fictions of Finance” inspired much of the work in this dissertation, as did Susanna Blumenthal’s seminar on “The Concept of the Person” during my time at the University of Michigan Law School. Jonathan’s good humor, grace, and sympathetic yet critical eye have profoundly shaped my work. As I have expanded my research into animal studies, Scott Lyons guided me to new intellectual domains. Finally, ever since I began working with her during my first year of law school, Susanna has been a source of wisdom, encouragement, and generosity. She has helped me keep in touch with my legal training while embracing a new interdisciplinary world. I am also deeply indebted to several other scholars at Michigan, including June Howard, Mary Kelley, James Boyd White, William Novak, Danny Hack, Anne Curzan, and Terri Tinkle. iii Table of Contents Dedication………………………………………………………………………………………....ii Acknowledgments…………………………………………………………………………..……iii Abstract………………………………………………………………………………………...….v Introduction: The Individual in a Corporate World……..………………….....…………………………………1 Chapters 1. Corporate Conceptions: Theories of Corporate Personhood…………………...………………….…………..20 2. The “Wild Beast” in the Slaughterhouse: Arbitrating Personhood in Upton Sinclair’s The Jungle (1906)……….…………..…62 3. “The Real Business of Life”: Gender, Sexuality, and Corporate Power in the Business Fiction of Theodore Dreiser and Edith Wharton…………………………………...…..….…...….............94 4. “The Chief Civilizer of Our Century”: Corporate Imperialism in Richard Harding Davis’s Soldiers of Fortune (1897)..…135 5. “A Force Born out of Certain Conditions”: Corporate Power and Limitations in The Octopus (1901)…………….…..…….….173 Conclusion: The Possibilities of Personhood………………………………………………………………...204 Bibliography………………………………………………………………………….………...208 iv Abstract This dissertation analyzes the ways in which certain U.S. novels of the late nineteenth and early twentieth century engaged with the problem of the corporation, a form of business organization that had become ascendant over nearly every aspect of modern life. In a moment when legal scholars were deepening and expanding the ancient doctrine of corporate personhood (which grants corporations the status of people under the law), novelists used literature to explore how the changing status of the corporation might generate new possibilities of personhood for other groups with tenuous legal status—most notably women, immigrants, and animals. Through close reading of novels by Upton Sinclair, Edith Wharton, Theodore Dreiser, Richard Harding Davis, and Frank Norris, this manuscript argues that popular novels in the turn of the twentieth century were as much a part of the debate over the nature of corporate personhood as more traditional legal texts such as law reviews and court opinions. For Sinclair, the Beef Trust’s grotesque exploitation of livestock and immigrant workers alike forces the protagonist to reclaim his humanity by joining a socialist collective—another form of group personhood. Likewise Norris’s The Octopus explores the problems and possibilities of direct action against corporate power. For other writers, however, the corporation was less a force of oppression than a vehicle for personal and political transformation. Dreiser’s Cowperwood, by creating his own corporate self, is able to achieve a different kind of financial and social potential, while in Wharton’s The Fruit of the Tree, the corporate structure enables the empowerment of its female shareholders—even as the corporation itself becomes naturalized into the familiar collectivities of the family and of “society” writ small. Indeed, Davis’s Soldiers of Fortune goes so far as to valorize the multinational corporation as integral to the financial and v social promises of the U.S. imperialist project. Although corporate personhood is often lampooned today as an absurd symbol of oligarchy, the authors in this dissertation grappled with the more complicated problem of how the corporation was changing the nature of personhood itself, for better or worse. vi INTRODUCTION The Individual in a Corporate World For much of U.S. legal history, the doctrine of corporate personhood—which states that a corporation is treated as a person under the law—lingered in obscurity. Although the principle pre-dates the formation of the United States, finding its antecedents in Roman law and medieval Germanic legal tradition, some modern writers completely miss its thousands of years of history, dating it instead to the 1885 case that extended the Fourteenth Amendment to corporate persons.1 Regardless of the history of the doctrine, what was once the domain of legal theory has become a target of popular outrage. Bumper stickers with the slogan “Abolish Corporate Personhood” pepper more progressive areas of the country, and the organization Move to Amend (which “call[s] for an amendment to the US Constitution to unequivocally state that inalienable rights belong to human beings only”) has local affiliates in thirty-one states, including conservative bastions such as Texas, Utah, and Arizona (Move to Amend). In September 2009, the Supreme Court heard re-argument in Citizens United v. Federal Election Commission, 2 a case that soon became shorthand for corporate personhood and power. Originally, Citizens United addressed a rather narrow issue—“whether the McCain-Feingold [campaign finance reform] law applied to a documentary, presented on video on demand, by a 1 See, e.g., the following statement from “ethicist and attorney-at-law” Linda MacDonald Glenn in a recent post on the popular news and entertainment site io9: “The idea of ‘corporations as persons’ though, all started because of a headnote mistake in the 1886 case of Santa Clara County v. Pacific Railroad Co, 113 U.S. 394 — a mistake that has been perpetuated with profound consequences” (Dvorsky). 2 558 U.S. 310 (2010). 1 nonprofit corporation” (Toobin). As Jeffrey Toobin tells it, the five conservative justices on the Supreme Court, led by Chief Justice John Roberts, saw the case as an opportunity to overturn McCain-Feingold, and scheduled the case for re-argument on a more expansive set of Questions Presented in order to avoid the appearance of overstepping the contours of the case as set by the attorneys representing the parties (Toobin).3 On January 21, 2010, the court released its ruling. In the words of Anthony Kennedy, writing for the majority, “[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”4 Overturning the court’s earlier ruling in Austin v. Michigan Chamber of Commerce5 that “political speech may be banned based on the speaker’s corporate identity,”6 the Court held by a 5-4 vote that “the corporation has a constitutional right to speak” on matters political,7 and cannot be restricted to only speaking through the “burdensome alternative[]” of a “separate association,” or Political Action Committee (PAC), formed for that purpose.8 In a line that would be paraphrased by many reporters as “money equals speech,” Kennedy wrote, “[the] prohibition on corporate independent expenditures is thus a ban on speech,”9 and, among 3 But see Tom Goldstein, writing in the nationally-respected SCOTUSblog, who cautions against what he sees as Toobin’s overstatement of the Chief Justice’s advocacy in this case: “It does seem fair to me to criticize the Chief Justice for voting to decide Citizens United on constitutional grounds. But that is a criticism that is just as applicable to the entire majority, as opposed to an indication of maneuvering by him. It also ignores that the alternative may have been no clear holding whatsoever – with dueling members of the majority articulating inconsistent rationales that left the law in flux. It is also a criticism that is deeply rooted in a belief that the Citizens United ruling is wrong on the merits, as opposed to an objective view that the Court should never issue broad constitutional rulings when it can avoid them. If you instead agree with the ruling, that criticism seems fairly empty. The majority’s view is that the statute imposed a significant restriction on a basic First Amendment right: participating in elections. More broadly, the majority
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