How Should a Corporation be: The Personification of the Corporation in American Law, 1850-1930

In the wake of recent Supreme Court cases of Citizens United and Hobby Lobby, the legal doctrine of “corporate personhood” has once again become an object of public debate. The standard account of corporate personhood in legal historiography is that the designation of a corporation as “a person” by the Supreme Court in 1886 created a precedent that determined the subsequent expansion of corporate social and political rights over the 20^th century. The goal of this paper is to explain why “corporate personhood” was an appealing legal doctrine to American jurists at the turn of the century and how corporate personhood diffused across distinct legal arenas to become a tool that abetted the expansion of corporate rights. I discuss three key features of the development of legal debate on corporate personhood that suggest a different account of the rise of corporate person than that found in extant legal historiography. First, I observe that in the late 19^th century, corporate personhood worked not as only as an explicit legal doctrine, but rather as an implicit legal schema – a culturally situated metaphor that aided jurists in theorizing corporate regulation by highlighting corporations’ similarities to individuals for certain limited purposes. Second, I demonstrate that the legal schema of corporate personhood was put to use for different purposes across distinct legal arenas, including tax, torts, and criminal law. Specifically, corporate personhood in crime and torts was typically used to justify the expansion of liability and culpability to corporations, thereby reigning in corporate power. Finally, I show that where discussion of corporate personhood as a legal theory was most explicit, personhood was most likely to be used to justify the expansion of corporate rights. However, where corporate personhood as a legal schema was more implicit, personhood was most likely to be used for progressive purposes.