if a corporation either suffers discrimination harm cognizable under § 1981, or has acquired an imputed racial identity, it is sufficiently within the statutory zone of interest to have prudential standing to bring an action under § 1981.
Id., slip op. at 6343 (emphasis added).
Why is this a Frankenstein moment? Because by implication it means that the corporation, an unnatural person, has taken on yet more aspects from natural (real) persons: race, religion, ethnicity, and gender. This leads to some very, very interesting (and difficult) questions of constitutional and statutory interpretation; and of the relationship among law, policy, and reality; and of speculative fiction.
To begin with, I'm going to object that stare decisisobedience to precedentis not always a good thing, particularly when the precedent doesn't say what it has been assumed to say. Corporations in this country are treated as "persons" for Fourteenth Amendment purposes on the basis of remarks made by the Reporter of Decisions in the syllabus of a couple of related nineteenth-century Supreme Court cases. Santa Clara County Rwy. is not, in any event, a model of clear prose or good logic; the key, though, is that almost without question since then corporations have been treated as "persons" that have due process and equal protection rights. In logical terms, then, if the corporation can be said to have a characteristic that is protected by civil rights statutes based upon the Fourteenth Amendmentsuch as § 1981it is not unreasonable to extend those civil rights statutes to corporations in both directions. That is, the corporations have both the obligation to respect those civil rights in natural persons, and have the right to have those civil rights respected as to themselves.
I'm sure that the Perfesser, in particular, will have something much more profound to say about this than do I. I am troubled, though, by the obvious disjuncture between the theory that a corporation acts/has function/has existence only through the actions of its officersone of the shared tenets of virtually all competing theories of corporate lawand the reification of the corporation as an alter ego of its officers in the sense of sharing its officers' "protected" or "suspect" classifications. It seems to me that one cannot have it both ways: Pierce the veil for purposes of granting rights, and deny it for purposes of enforcing them. At least, one cannot have it both ways absent statutory or constitutional authorization for the distinction.
The difficulty with this, of course, is that such authorization seems wanting. One can, I suppose, "broadly read" the Constitutional language to include unnatural persons; that's the whole point of Santa Clara's dictum. Whether that meaning was a plausible interpretation at the time of the Fourteenth Amendment is open to some dispute; however, it is not open to dispute for the Constitutional Convention. I may have missed something, but I've found nothing in the records of the convention indicating that corporate "personhood" was even contemplated; and there are plenty of linguistic clues in the Constitution as adopted indicating otherwise. Similarly, § 1981 could broadly be read to allow a corporation to assume the classifications of its owners; but it would be much better if the statute explicitly did so.
All of which comes back to the question of "prudential standing." I think the conclusionthat, if corporations do indeed have the characteristics of a suspect/protected class, they should be allowed to assert antidiscrimination causes of action related to those characteristicsis pretty sound policy and logic. What I question is the premise: that (to use the specifics of this case) an African-American-owned close-hold corporation can also be itself an "African-American unnatural person." It seems to me that this requires an osmosis of personal characteristics that is not consistent with the concept of limited liability and the distinction between corporate and personal assets. Perhaps the "right" approach is to on the one hand, allow a corporation to choose such recognition, but conversely weaken its corporate veil as a price for asserting that recognition.
What this really points out, perhaps more than anything elseand of particular relevance in the publishing and entertainment industriesis that the formalism distinguishing shareholders from officers is perhaps thinner and less defensible than "standard" corporate theory might indicate. For example, Judge Thomas rightly notes that corporations have long been held capable of forming criminal intent. Thinket Ink, slip op. at 6350 n.2. This is all well and good; but it implies, too, that there is an inherent conspiracy among corporate officers, corporate shareholders (if only by willful blindness) and the corporation "itself" in such circumstances. It is extraordinarily rare for a corporation to be held criminally liable without any action (even in another proceeding) being taken against the natural persons who directed/authorized the criminal activity. IMNSHO, it is too common whenever it does happen; but that is beside the point.
In a theoretical sense, it seems to me that Thinket Ink has some interesting implications for the debate between the "director primacy" and "shareholder primacy" theories of corporate governance, but also leaves a number of questions unanswered. Consider, for example, a conglomerate controlled by African-Americans, but with a mostly non-African-American workforce (I'm thinking of Beatrice); and consider, too, the converse. Consider a corporation in which ownership and directorship are of different § 1981 classes. How should such a corporation be treated? Or is this a fact-specific inquiry? And, if so, what is the standard for evaluating those facts? Are we stuck with considering only whether a given corporation qualifies for the "minority contractor" rules of the relevant governmental context (and they do vary from state to state), or is there a "reality inquiry" to be completed, too?
Damn. This all sounds like good material for a business organizations final exam. And just wait until we bring in hybrid business organizations, like LLCs and LLPs, and partnerships! Then there's the whole "dominant personality" theory; for example, is Nightfall, Inc. (the late Isaac Asimov's holding company for his literary assets and estate) a "Jewish" company? And, if so, what does that imply for treatment of its royalty statements? Of course, this probably sounds like material from a Philip K. Dick or William Gibson novel; and it should. I don't even want to think about what this implies about artificial intelligences, and whether a mass of integrated circuits with electrons running around inside it might be Hispanic.