Susanna Kim Ripken, ‘Multiple Personalities Incorporated: Accepting the Multi-Dimensional Personhood of the Modern Corporation’

One of the most intriguing debates in corporate law is over the personhood of corporations. For years, corporate theorists have tried to construct a complete and coherent theory of the corporate person. Some have argued that the corporation is merely a fictional, artificial person that exists only as a concession of state law. Others have asserted that the corporation is a real, independent person that has an ontological existence and identity of its own. Many adopt a contractual model that suggests the corporation is neither an artificial nor a real person, but merely the center of numerous contracts among the entity’s various individual participants. Proponents of this view argue that it constitutes the single best definition of the corporate person. This article argues that the constant preoccupation with the contractual elements of the corporation obscures the complex reality of the multiple personas and functions of the modern corporation.

This article takes an inter-disciplinary approach to the conundrum of corporate personhood, demonstrating that the corporation can be viewed independently through the lenses of philosophy, moral theory, political science, sociology, psychology, organizational theory, theology, and economics, all of which highlight separate but essential features of the corporate person. Adopting a multi-dimensional view of corporations produces balanced legal results that mediate between legitimate alternatives. The article rejects the idea that there is a single best theory of the corporation and instead recommends a more complex, nuanced view of the many dimensions of the corporate person.

Ripken, Susanna Kim, Multiple Personalities Incorporated: Accepting the Multi-Dimensional Personhood of the Modern Corporation. Posted to SSRN 28 May 2024.

Mark Ortega, ‘Finding a Core of Sustainability in Directors’ and Officers’ Fiduciary Duties’

Directors and officers have a fiduciary duty to act in the best interests of a corporation and its shareholders. Yet corporations may be employing unsustainable, short-term business models that fail to properly account for financial and systemic risks that could harm the corporation in the long term. This paper asks whether there is, embedded within directors’ fiduciary duties, a greater duty to consider ‘sustainability’ (as this paper defines it). Specifically, this duty would require directors and officers to return corporations to the established shareholder wealth maximization (‘SWM’) norm of creating long-term shareholder value under Delaware law.

This paper argues that directors’ and officers’ fiduciary duties under Delaware corporation law include a duty to implement a minimum ‘core’ of sustainability – a ‘Sustainability Core’. The Sustainability Core requires a fair and impartial consideration of all shareholders’ investment horizons, including long-term investment horizons. The Sustainability Core also requires directors to implement and oversee a system for monitoring environmental, social, and governance (‘ESG’)-related risks and opportunities, as identified, monitored, and managed via thoughtful materiality assessments. These include ESG-related risks and opportunities which may foreseeably become financially material on long-term investment horizons. Moreover, failure to implement the Sustainability Core may give rise to liability for breaches of fiduciary duty.

In these efforts, directors and officers retain significant discretion in how they choose to implement sustainability practices: many actions, decisions, and best practices enacted to implement or “mainstream” sustainability would fall within a ‘Sustainability Periphery’. The Sustainability Periphery contains a wealth of best practices which interested activists and stakeholders may draw on to push sustainability further, by working to shape the Sustainability Core in a manner which improves transparency and accountability.

Ortega, Mark, Finding a Core of Sustainability in Directors’ and Officers’ Fiduciary Duties (April 5, 2024), 34(1) Duke Environmental Law & Policy Forum 49-89 (2024).

van Laarhoven and Claerhoudt, ‘A New Leaf: Is It Time to De-objectify Plants in Private Law?’

In civil law jurisdictions, plants have traditionally been classified as ‘objects’ (or ‘things’) under private law, reflecting an age-old tendency, certainly in the Western world, to underestimate and undervalue plants. Recent legal debates increasingly acknowledge the special nature of plants. Perhaps the most eye-catching debate in this context is the one on Rights of Nature, which have much potential but pose some practical and conceptual challenges. We propose an additional way of acknowledging the special nature of plants in a legal context: de-objectifying plants in private law and thereby explicating that they are not mere objects. Numerous civil codes already separate animals from objects, often – though not exclusively – based on the sentience of animals. Recent scientific research suggests that plants may be sentient, too. We aim to open the debate on the de-objectification of plants, based on their sentience, in civil codes as a feasible and unobtrusive way to acknowledge in law that plants are living beings, and more than mere things.

Joris van Laarhoven and Rens Claerhoudt, A New Leaf: Is It Time to De-objectify Plants in Private Law?, Transnational Environmental Law. Published online by Cambridge University Press: 27 May 2024.

Claudio Trovato ‘A shift from contractarianism to “characterisation”: Assessing the ideal Australian approach for determining fiduciary duties in a commercial context’

In the wake of excessive judicial reliance on a contractarian approach to the assessment of fiduciary duties in commercial contexts, both judicial and academic concern has been voiced as to whether such an approach is the most appropriate to ensure fair dealing. What’s more, the emergence of novel commercial relationships facilitated by changing values in business and exponential leaps in the capabilities and use of technology warrant a reassessment of whether contractarianism is fit for the purpose of ushering in appropriate legal analysis so that such new developments can be appropriately facilitated. This article argues that contractarianism is not fit for that purpose and that the ‘characterisation’ of the relationship between parties is a superior and more equitable approach to determining the extent of fiduciary duties in commercial contexts.

Claudio Trovato, A shift from contractarianism to ‘characterisation’: Assessing the ideal Australian approach for determining fiduciary duties in a commercial context, Common Law World Review. First published online 28 May 2024.

‘A Cornish compensation claim’

“Here is another snippet on that vexed question: how did medieval law regard the foetus (something I have blogged about a bit. Much of the attention in this regard – including mine – has been on the law of homicide. That’s understandable, since we tend to think of the big question being ‘was it regarded as homicide, to end the life of a foetus?’. But here, in KB 27/590 m 15d, is a Cornish case in which the aim is not to convict a person who had caused foetal death, but to obtain compensation for a ‘tort’ …” (more)

[Gwen Seabourne, Bracton’s Sister, 28 May]

Rachael Walsh, ‘Deliberative Property – Managing Complexity in Property Systems’

The chapter demonstrates how ‘deliberative property’ offers a pathway for mediating between the complexity-management concerns of two competing schools of thought in property theory, loosely termed ‘progressive’ and ‘information’ perspectives. Deliberative property does so by facilitating information-intensive contextualisation of property disputes and direct stakeholder engagement, while at the same time containing the broader systemic impacts of such engagement. Deliberative property also provides additional points within property systems wherein public concerns about the use and distribution of property can be reflected in the legal ordering of private relations.

Walsh, Rachael, Deliberative Property – Managing Complexity in Property Systems (April 19, 2024). Forthcoming, P Miller and J Oberdiek, Oxford Studies in Private Law Theory Vol III (Oxford: OUP, 2024).

Luigi Moccia, ‘Basic Ways of Defining Property’

Anyone who engages in a discourse about ‘property’ legally understood is faced at the outset with the need to clarify the variety of uses (or abuses) and meanings of the word. The essay is not about ‘definitions of property’ in the sense that it does not try to search for clear-cut definitions of the term. It assumes however that definitional aspects and problems about property stand as a crucial point from where to approach the property discourse. Thus making the issue of ‘how to define’ property a core subject. This may be a rather boring subject, yet one that can hardly be avoided in speaking of property rights, especially in a comparative law context.

Moccia, Luigi, Basic Ways of Defining Property (January 1, 2007) in Colloqui in ricordo di Michele Giorgianni, Napoli, ESI, 2007, p. 761ff.

Carol Rose, ‘Property Law’

Both detractors and proponents often describe property in individualistic terms, ignoring property’s character as a social institution that depends critically on participants’ respect of others’ claims. Informal property regimes are pervasive among small or specialized social groups, but neither informal property nor property law emerges unless resources become scarce. However, property law differs in important respects from informal property, generally being a formal system that aims at universal applicability. In defining rights, property law generates fixed categories so that strangers can understand the rules; similarly, property law deploys public record systems to make transactions transparent. These simpler and more formal characteristics of property law encourage transfer. To address externalities, property law limits private uses, sometimes relatively loosely and ex post, as in nuisance law, but sometimes by creating ex ante categories to stave off disputes. Public demands on private property can lead to contentious legal disputes, as in the complexities of ‘takings’ jurisprudence. Property law can also create innovative categories largely unknown to informal property, such as intellectual property and tradable environmental rights. Finally, both informal and formal property can contribute indirectly to democratic governance by modelling the recognition of rights and by encouraging compromise through trade, with the important caveat that property institutions sometimes fail in these respects.

Rose, Carol Marguerite, Property Law (April 18, 2024), Handbook of New Institutional Economics.

Joshua Kelsall, ‘Towards a Non-Reliance Commitment Account of Trust’

Trust is commonly taken by philosophers to be a metaphysically-hybrid notion involving an attitude and an action (Faulkner 2015; Hawley 2012). The action component of trust is typically defined as a special form of reliance in which the trustor has: (1) heightened expectations of their trustee; and (2) a disposition to justifiably feel betrayed if their trust is broken by their trustee (Baier 1986; Jones 2004; Hawley 2012; McLeod 2015). The first aim of this paper is to reject this trust-as-reliance intuition. The second aim of this paper is to develop a non-reliance account of trust …

Joshua Kelsall, Towards a Non-Reliance Commitment Account of Trust, Journal of Value Inquiry (2024). Published: 28 May 2024.

‘The Surprising Predictability Of Patent Eligibility’

Nikola Datzov and Jason Rantanen, ‘Predictable Unpredictability’, Iowa Law Review (forthcoming 2024), available at SSRN (26 February 2024. It is hard to think of a patent doctrine – or indeed any doctrine in IP law as a whole – that has received more critical attention over the past decade than patentable subject matter. In a series of four cases from 2010 to 2014, the Supreme Court sparked an ongoing controversy by imposing sharp limits on patenting inventions such as medical diagnostics, human genes, software, and business methods. In the wake of these decisions, an invention may be ground-breaking and important, but nonetheless unpatentable if it falls into the Court’s implicit exceptions to patent eligibility for ‘laws of nature’, ‘natural phenomena’, and ‘abstract ideas’ … (more)

[Lisa Larrimore Ouellette, JOTWELL, 29 April 2024]