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Corporate Personhood(S): the Incorporation of Novel Persons in American Law, Society, and Literature, 1870-1914

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Corporate Personhood(S): the Incorporation of Novel Persons in American Law, Society, and Literature, 1870-1914 Corporate Personhood(s): The Incorporation of Novel Persons in American Law, Society, and Literature, 1870-1914 By Eugene Francis McCarthy A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Rhetoric in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Marianne Constable, Chair Professor Samera Esmeir Professor Bryan Wagner Spring 2016 © Copyright 2016 Eugene Francis McCarthy All rights reserved Abstract Corporate Personhood(s): The Incorporation of Novel Persons in American Law, Society, and Literature, 1870-1914 by Eugene Francis McCarthy Doctor of Philosophy in Rhetoric University of California, Berkeley Professor Marianne Constable, Chair Recent U.S. Supreme Court decisions in Citizens United (2010) and Hobby Lobby (2014) have brought the concept of corporate personhood into mainstream discourse. By and large, the public reaction to corporate personhood has ranged from confused disapproval to partially informed outrage. The general suspicion focuses on the belief that individual persons are using the corporate form to cover up their own misdeeds and to shield themselves from personal liability. My investigation into the origin and nature of corporate personhood in the United States supports these suspicions. This study reveals that the legal fiction of corporate personhood has functioned as a prosthesis for natural persons from its inception in American law and society. This legal fiction’s foundations, history, and social impact are more complex and controversial than many contemporary critics suspect. In this dissertation, I explain corporate personhood’s origins in U.S. law and society so that we may better understand how this paradoxical person functions in American culture. My dissertation examines the nineteenth- century foundations of corporate personhood and the socio-cultural ramifications of its emergence through the lenses of corporate law, legal history, modern rhetorical theory, and the American naturalist novel. Corporate personhood’s paradoxical nature lies in the fact that the corporation is simultaneously a legal fiction and a social reality; it is an artificial and invisible person, yet is composed of natural persons and tangible objects. This person enjoys perpetual life, an internal structure designed to aggregate wealth, limited liability for its deeds and debts, and a fictional body that at once enjoys legal rights and legal impunity. The corporate person, I argue, creates a rupture in nineteenth-century personhood more generally, whereby the Gilded Age corporate form produces additional “corporate persons” in its wake. These various nineteenth-century corporate persons (consolidation companies, financiers, married women, and labor unions) are the subject of this study. I examine these persons – these legal fictions – through the lens of nineteenth-century literary fiction (in particular, American naturalist novels). The naturalist novel’s fictive space represents, portrays, and characterizes these emergent corporate personalities and goes beyond the basic categories of black-letter law. My chapter-long case studies of legal fictions in literary fiction reveal that corporate persons like the Southern Pacific Railroad Corporation were able to dominate law, society, and the economy due to the seemingly fictional powers they derived through the legal act of incorporation. Natural persons who learned to navigate these networked bodies – like the robber baron financiers – 1 emerged rich and powerful. Other persons, like married women subject to coverture’s erasure of personhood, could reclaim their legal personhood simply by imitating new corporate forms that emerged throughout the course of the nineteenth century. However, labor unions, the one group who could not access of emulate the corporate personality, faced socio-economic marginalization and constant defeat at the hands of the law and its corporate progeny. Legal history alone is an insufficient site for fully grasping the corporate person. Together with various theoretical and critical sources, the imagination space of the naturalist novel allows legal fictions to come to life before the mind’s eye, which gives the reader a chance to study corporate persons in all their complexity. The corporate person is a powerful legal fiction, and literary fiction helps reveal just how real the power of incorporation was in nineteenth-century America and beyond. 2 To My Girls: Mary, Shara, Orla, and Olwen i Table of Contents Abstract ......................................................................................................................................................... 1 Table of Contents .......................................................................................................................................... ii Acknowledgments ........................................................................................................................................ iii Introduction .................................................................................................................................................. iv Chapter 1 - Tracking the Rise of Corporate Personhood in Frank Norris’s The Octopus ............................ 1 Chapter 2 - Nineteenth-Century Corporate Law’s “Race to the Bottom” and the Rise of the Financier .... 24 Chapter 3 - Marital Coverture and the Literary Reincorporation of Female Personhood ........................... 48 Chapter 4 - The Twilight Zone of Nineteenth-Century Labor Law and Science Fictional Personhood ..... 76 Conclusion: The Incorporated Actor Network, Today ............................................................................... 99 Bibliography ............................................................................................................................................. 106 ii Acknowledgments I owe many thanks and on many levels to those who helped me get to this point in my career. To my parents, Mary and Hilary, you put up with an awful lot from me; thank you for everything. Richard Doyle, the example you set at the Pennsylvania State University always kept the notion of returning to graduate school alive in the very back of my mind. Thank you, Mark Grady, from the UCLA School of Law, for helping me return to academia and showing me that legal research could be imaginative, creative, and fun. Thank you to the corporate lawyers that I practiced with for showing me that practicing corporate law was anything but imaginative, creative, and fun. At the University of California, Berkeley, thank you to the Center for the Study of Law and Society for graciously awarding me the Berkeley Empirical Legal Studies (BELS) Fellowship. Thank you to my dissertation committee, Marianne Constable, Samera Esmeir, and Bryan Wagner. Samera and Bryan, you both went above and beyond the call of duty in providing invaluable input, commentary, and ideas for this dissertation. You both helped me to become a better writer, thinker, and scholar. Marianne, you have been the greatest possible advisor. Your knowledge, support, guidance, advice, and patience are truly unprecedented. You helped me every step of the way these last five years, and I will be forever indebted to you. Finally, Shara, thank you for supporting me (in every sense of the word) during this period of life. You married a rich corporate lawyer and ended up with an over-aged graduate student, and you’ve been smiling the whole time. You are the best person (corporate or otherwise) that I know. And you’re a really good editor, too. iii Introduction The concept of corporate personhood has come under increased scrutiny in the United States following recent Supreme Court decisions in Citizens United v. Federal Election Commission (2010) and Burwell v. Hobby Lobby Stores, Inc. (2014). Relying on precedent that a corporation is a person in the eyes of the law, the Court held in Citizens United that a corporation is entitled to First Amendment protections for its political speech, even if that speech comes in the form of campaign finance expenditures. In Hobby Lobby, the Court found that based on a closely held corporation’s religious beliefs it could be exempt from government mandates (in this case, providing its employees with insurance coverage for certain methods of contraception). Critics of corporate personhood have been passionate and vocal in their opposition to these decisions, which were a result of the age-old doctrine of corporate personhood. The late Ronald Dworkin described the decision that corporations are legal persons in Citizens United as “preposterous.”1 New York Times contributor Timothy Egan wrote that the Hobby Lobby decision arose from the “Republican fever nests” and that in the Citizens United decision, five activist judges “created the notion of corporate personhood.”2 President Barack Obama even entered the fray, tautologizing that “Corporations aren’t people. People are people.”3 These criticisms and claims, respectively, are overblown, incorrect, and not particularly useful. Indeed, former Governor of Massachusetts Mitt Romney probably put it best – certainly from a legal standpoint, and probably also from an historical, anthropological, and cultural perspective, too – when he responded to a heckler with the oft-mocked claim: “Corporations are people, my friend.”4 Corporations are legally people and have been recognized as such in the United States without interruption since 1819, when the
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