Corporate Autonomy: Law, Constitutional Democracy, and the Rights of Big Business
Creators: Jackson, Katharine
Publisher: name: Columbia University
Year: 2019
Subjects: subject: Political science
subject: FOS: Political science
subject: Economics
subject: Law
subject: FOS: Law
subject: Corporations
subject: Autonomy
subject: Democracy
subject: Group rights

description: Corporate Autonomy: Law, Constitutional Democracy, and the Rights of Big Business is a normative, interdisciplinary and analytical examination of the rights and internal governance of business corporations in constitutional liberal democracies. Drawing from political theory, economics and law, it concludes that corporations should not merit legal protections unless they first exhibit some internal democratic credentials. In contrast to theories of collective moral personhood, I argue that the question of corporate ontology should not determine the kinds of legal rights it can claim. Rather, following Dewey (1926) and Habermas (1996), I maintain that the law, as a reflection of popular sovereignty, should respond flexibly to shifting social configurations by defending the principle of equal human worth (Arendt) regardless of whether or not corporations are properly understood as “real” entities with a will of their own, aggregations of individual rights-holders, or state-created legal fictions. I argue that corporations can make a prima facie case for legal autonomy rights based upon human beings’ associational freedoms. I then conclude that corporate legal autonomy rights are more likely to vindicate associational liberty if corporations first exhibit some internal democratic credentials. Permitting corporate members a voice in decision-making can ensure that corporate purposes align with the individual purposes upon which associational freedom derives. (Laborde, 2017) Nevertheless, after consideration of the literature on group agency (e.g., List and Pettit 2011) and group rights, (e.g., Benhabib 2002; Levy 2014) I also conclude that autonomy rights founded on associationalism must be tempered to protect the equal rights and liberties of those that might be harmed by corporate action. Given labor markets characterized by monopsony, financial markets characterized by the “forced capitalism,” (Strine, Jr., 2017) and the ongoing control exercised by corporate leadership under the constraints of product market competition, I find that ascribing associational rights to corporations is a tall order indeed. It may require that corporations assume further democratic institutions designed to protect those whose rights are vulnerable to corporate autonomy: e.g., intra-corporate individual autonomy rights, accountability mechanisms, internal counter-powers, and systems of discursive justification. I then argue that this theory of corporate autonomy rights incorporates the best, and jettisons the worst, of alternative theories of workplace democracy. In particular, it integrates and tempers the associationalist instincts of syndicalist, participatory democratic theories while building on the protective instincts of republican theories. The dissertation concludes by addressing a common objection to workplace democracy: that it is so inefficient that it would destroy the very good its members mean to pursue as they exercise their associational freedoms. It finds that accountable representation, delegation of decision-making functions, and market exit can help a corporation maintain its democratic credentials while permitting it to respond to market constraint.