Thursday, July 29, 2004
I am entirely unqualified to speak on corporate law issues, but since Rick threw out the invitation (below), I'll chime in on a broader point. I'm not sure whether corporations should be able to sue for discrimination, but I'd be very hesitant to categorically characterize corporations as "pieces of paper sitting in a secretary of state's office" (as Larry Ribstein does) for purposes of framing their legal standing.
Richard John Neuhaus and Peter Berger famously characterized the dilemma of modern life as emanating from the interplay between the public sphere -- where alienating "megastructures" hold sway -- and the private sphere -- where meaning, fulfillment, and personal identity are to be realized. According to Neuhaus and Berger, this public/private split:
poses a double crisis. It is a crisis for the individual who must carry on a balancing act between the demands of the two spheres. It is a political crisis because the megastructures (notably the state) come to be devoid of personal meaning and are therefore viewed as unreal or even malignant. Not everyone experiences the crisis in the same way. Many who handle it more successfully than most have access to institutions that mediate between the two spheres. Such institutions have a private face, giving private life a measure of stability, and they have a public face, transferring meaning and value to the megastructures. Thus, mediating structures alleviate each facet of the double crisis of modern society. Their strategic position derives from their reducing both the anomic precariousness of individual existence in isolation from society and the threat of alienation to the public order. [To Empower People at 215]
Corporations may function as mediating structures. Smaller, non-profit corporations are especially likely to bring folks together in pursuit of a bonding, identity-shaping objective -- i.e., provide a vehicle for participants to define themselves in a way that sets them apart from the surrounding, impersonal society. Large corporations focused on the bottom-line are less likely to meet that need. Microsoft, for example, is an obvious megastructure.
But to the extent that particular corporations do serve a mediating function, it is important to acknowledge that function and protect it where possible, just as it's important to protect the mediating functions of voluntary associations. (That's why Dale was such an important case for the Boy Scouts to win, regardless of whether one approves of their policy toward gays.) My concern with the "piece of paper" rhetoric is that it encourages our society's tendency to view legal issues through the one-dimensional lens of individual rights versus collective will. If we want to bring about a society with a robust system of bulwarks against alienating and coercive megastructures, we may need to think seriously before poking holes in corporations' claims to be something more than the sum of their parts.