Citation:
Harper Ho, Virginia E., Theories of Corporate Groups: Corporate Identity Reconceived (June 17, 2012).
Seton Hall Law Review, Vol. 42, 2012.
Other Sources:
http://ssrn.com/abstract=1915745
Key words:
Corporations, Theory of the Firm, Corporate Groups, MNEs, Multinational Enterprise, Hierarchies,
Network, Firm, Citizens United, Kiobel, Alien Tort Statute, Human Rights, Enterprise
Abstract:
Theoretical debates about the nature of the corporation have raged for over a century, with competing
visions of the corporation holding sway in different regulatory arenas and each making claims for
normative supremacy. Yet courts and commentators alike have persistently failed to consider the
application of these concepts to corporate groups. Beginning from theories of the firm, this Article
extends the standard understandings of corporate personhood to develop alternative theories of
corporate group identity. It then illustrates the utility of these approaches in different areas of law and
policy through the lens of the Supreme Court’s rulings in Citizens United, decided in January 2010, and
Janus Capital Group Inc. v. First Derivative Traders, decided in June 2011, as well as leading appellate
cases decided in the past year that examine the issue under international law. Acknowledging the
complexity of corporations as organizations and the need for contextualized analysis, this Article then
proposes a framework for identifying which theoretical perspective offers the best foundation in
different areas of the law where alternative visions of the corporate group may lead courts and
legislators to different legal rules and case outcomes.
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