Coda as Brief

“A corporation has convictions as a person has mechanical parts.” Jena Osman, “The Beautiful Life of Persona Ficta” (2014)1 Appeal No. 17-1001-CR IN THE UNITED STATES COURT OF APPEALS FOR THE UNIVERSITY CIRCUIT Contemporary LITERATURE Appellant v. Burwell v. HOBBY LOBBY STORES, INC. 573 US (2014)...

Limited Poetic Liability

Of all the corporate person’s vital qualities, the most powerful and contentious was limited liability: the rule that a corporation’s shareholders cannot be held responsible for more than the value of the shares they own. This chapter examines challenges to that rule and its effects in the world by analyzing the responses of three very different writers: law professor Maurice Wormser, novelist Theodore Dreiser, and poet and lawyer Charles Reznikoff. Should corporations be understood as veils for individuals or as fully formed entities inextricably meshed with their managers, owners, and environment? Each writer struggled to know a corporate person behind its “entity veil” (as Wormser terms it), coming to see that limited liability functioned to minimize the essential duties of managers, employees, and owners. While Wormser recommends “veil piercing” when corporations are taken over by nefarious individuals, Dreiser’s The Financier (1912) uncovers problems with this strategy, and Reznikoff’s epic poem Testimony (1965–78), maps out systemic injuries that limited liability generated. Dreiser and Reznikoff deploy literary form to think about this corporate person precisely when it did not acknowledge all of its attributes as a legal person. When the corporate person devolved and acted more like a tool or machine, how was society supposed to treat it? This chapter’s three conceptual explorations of corporate limited liability shine light on the legal system’s deficiencies when contending with the corporation’s social role. Each writer begins, in his own way, to envision solutions other than strictly legal remedies.

Emergent Corporate Mind

A lively debate over “corporate mind” materialized in legal, philosophical, and political scientific guises throughout the first decades of the twentieth century. Legal theorists such as Harold Laski, Jethro Brown, and Frederic Maitland sought to ascribe intentions to mindful corporations to understand why corporations acted as they did and to treat them accordingly; theorists like Morris Cohen, John Salmond, and Oliver Wendell Holmes, Jr. thought this tactic made no sense. This chapter examines their dispute to argue that Gertrude Stein’s conceptualizing of groups of artists proposed representational solutions both similar to and ultimately divergent from these conceptions of corporate minds. A radical reading of Stein’s revolutionary prose poem, G.M.P. (1912), is offered, supported by archival manuscript evidence. That text ponders the difference between a publicly traded corporation, with its repetitive daily “life” exposed to anyone with a ticker-tape machine, and the creations of a group of painters and poets. Abstracting the art collectivity and giving the movement a name (“G.M.P.”) more typical of publicly traded companies on a stock exchange, Stein registers its divergence from a crowd, a corporate collective, or an individual. Like business entities, aesthetic movements possess emergent properties that are more than the sum of their artist parts; yet art’s immortality differs from a corporation’s life in perpetuity. Offering context for the period’s corporate ideas from various disciplines—political science, jurisprudence, philosophy, psychology—this chapter catches writers thinking through how a corporate group imagines and creates.

Introduction

The Introduction contextualizes the book’s broader legal and philosophical debates about corporate personhood, collective agency, and modernism. The book’s methodology and structure are explained using accessible modernist poems, political cartoons, and legal case studies to present to non-experts the key ideas and historical background of corporate personhood in the U.S., with its first life not after the U.S. Supreme Court case Citizens United (2010), but after Santa Clara v. Southern Pacific Railroad (1886). Beginning with an extended example from Muriel Rukeyser’s long poem, The Book of the Dead, the Introduction canvasses American literature from the nineteenth through the twentieth century to show how the book renders the field of modernist studies radically different, as modernism’s formal speculations emerge as deeply entangled with a range of social and political developments. Asking the question “Has a corporation a soul?” becomes a means to explore the aims of collective social agents, and to think through how collective forms produce meaning by their acts. Not until the postwar era did philosophy synthesize these ideas (on the possibility of corporate intention) being teased out in mostly prewar novels, poetry, and short stories. The third section situates this analysis within modernist literary studies as a field, culminating with a reading of an Archibald MacLeish poem in light of this focus on collective action and literary form and descriptions of each subsequent chapter.

Incoherent Corporate Speech

F. Scott Fitzgerald imagines corporate marriage proposals as a promising thought experiment to think through the fundamental incoherence of what was eventually to be known as corporate speech after the U.S. Supreme Court case Citizens United (2010). His autobiographical and underappreciated meditations on the film industry, The Love of the Last Tycoon (1940) and The Pat Hobby Stories (1940–1), tease out corporate expression’s difficulties and possibilities—complications that are typically overlooked in contemporary discussions of corporate speech. In Tycoon, Fitzgerald’s Hollywood executive producer imagines that he can “buy” what is in his screenwriter’s “mind.” His understanding of speech articulates Oliver Wendell Holmes, Jr.’s theory of contractual meaning and economist Ronald Coase’s literalization of “the marketplace of ideas,” anticipating the Supreme Court’s reasoning in Citizens United. But when that tycoon’s lover treats her multiple Dear John letters to him in the same literal manner—as automatic, repetitive, and commodified—the tycoon senses the flaws in his account of language. After examining Citizens United and related precedents struggling to conceptualize corporate speech, this chapter argues that Fitzgerald’s focus on the problem of repeated action reveals a basic incoherence in theories of corporate speech. Conceiving of ideas as brain content that can be bought and sold, Tycoon’s corporate executive unwittingly stumbles on the essentially impoverished nature of corporate speech as repetitive but not meaningful. Decades before corporate speech had First Amendment protections, Fitzgerald’s late fiction imagined and represented its potential problems.

Contracting without Meaning

How do you know what a corporate person is really intending, whoever exactly that person is? This chapter explores a set of initial answers to this question in philosophies of intention like Elizabeth Anscombe’s, in historical political cartoons of the corporation, in legal theories of contracts, and in Frank Norris’s The Octopus, the influential novel about the railroad colossus known as the Southern Pacific. Together, they fill out the problem of collective social intention both as it was understood around the turn of the twentieth century and how it developed subsequently. Although older accounts of contract appeal to intention (“a meeting of minds”), the corporate form’s lack of inner life and composite quality made such a mind-meeting odd to envision. The difficulty of knowing a corporate person’s meaning raised knotty issues of interpretation, and political cartoons provided a popular attempt to work through these issues. Other thinkers, including law professor Ernst Freund and Justice Oliver Wendell Holmes, Jr., resolved these problems in their theories of corporate contracts, which introduced a larger concern of how to interpret any of a corporation’s signs. This issue occupied philosophers like Charles Sanders Peirce, and later scholars of contracts such as Arthur Corbin. Ultimately, an attempt to resolve a particular problem of corporate contracts led to a semiological theory committed to the simple literality of signs, in order to negotiate how to live with collective beings without obvious or singular minds.

Invisible Corporate Man

The Reconstruction era Fourteenth Amendment (1868) has long been the primary U.S. statutory source for corporate personhood. But for nearly fifty years the story of the rise of corporate personhood rights entwined with the fraught story of legal personhood for African Americans was effectively ignored. This chapter fills a gap in legal and cultural scholarship to begin to address this blind spot, first by analyzing the period’s jurisprudence of the “corporation sole” (a corporation of one person) in contrast to that of African American persons. Drawing together case analysis, discussions of legal formalism, and interpretations of two major novels—George Schuyler’s satirical Black No More (1931) and Ralph Ellison’s acclaimed Invisible Man (1952)—this chapter depicts the legal and literary effects of a half-century’s misconstruing of the Fourteenth Amendment, in which “any person” was defined not to mean any married woman, child, and/or African American person, but, rather, any corporate or white male person. To imagine a less racist world, Schuyler hypothesizes African American rights and freedoms secured by the abstract corporate form and a new scientific technology protected by the laws of intellectual property. Later, Ellison provides a powerful and very different critique of state-sanctioned personhood as irretrievably debased because it is abstract. Both authors expose and challenge through satire and fantasy the obscene, unmentionable inequality between reduced rights for African Americans and human rights for corporate persons.