22 May 2004

Professor Ribstein, in response to my recent Frankenstein moment, notes that

So the African-American owners of this SBA-certified minority-owned contractor shouldn't lose their civil rights because they chose to do business in the corporate form. They might be required to sue as a corporation, as in this case, because that's a convenient way to handle litigation, but that doesn't determine their individual rights.

The first sentence finds no disagreement here. As Professor Ribstein notes, the business form that will appear on the contract if a business arrangement is agreed to is not relevant to the civil rights of the individuals who might assert discrimination claims. So far, so good. I cannot agree with the second sentence, though; corporations, at least economically, are not supposed to be "a convenient way to handle litigation." That makes the corporations into persons for purposes of discrimination claims. The corporate context is merely that as to individual claims: the factual circumstances that describe the alleged discrimination. If the group of plaintiffs in question is large, then a class action is an equally "convenient" method of "handling litigation" that does not result in granting rights to an unnatural person that begin to awaken the monster.

This may sound very much like a resort to hypertechnical rules of procedure. In a sense, it is; but it is a hypertechnical attempt to limit the effect of other hypertechnical rules. Consider, for example, the limited parnership, which has "less" personhood than does a corporation. (This is beginning to get truly surreal…) At the extreme, consider the unincorporated association of independent business entities that act as a group. Would, perhaps, the Corleone "crime family" have a proper discrimination claim (not necessarily one it could win, mind you, but merely one over which there would be procedural jurisdiction) on the basis of national origin and ethnicity? Again, I think that the class action provides a vastly superior means of dealing with the situation, particularly since the reality is that many of the natural-person victims are best treated as class members, unless each of them had significant and individual participation in the subject transaction. But, in that instance, they also each have an appropriate individual cause of action—which would make the corporate actor a particularly inconvenient focus for litigation management.

So, in the end, I remain troubled by the anthropomorphism of treating a corporation as if it has human aspects not related to its economic purpose. It is one thing entirely to allow an economic entity to obtain redress—or be the source of redress—for economic harms. It is another thing to bootstrap that economic existence into noneconomic contexts—and, as I noted earlier, one that has been explored much more thoroughly in speculative fiction than in legal theory.