Thursday, October 26, 2017
"Corporations and the U.S.Constitution: Origin of Rights and Recent Trends" [白轲：公司与美国宪法：权利的起源及其近来的趋势]: Seminar at the East China University of Politics and Law, Shanghai China
It was my great delight to present a seminar at the East China University of Politics and Law in Shanghai this past Monday 23 October 2017. Entitled "Corporations and the U.S. Constitution: Origin of Rights and Recent Trends," we explored the now quite dynamic and controversial development of a constitutional law of bodies corporate--especially corporations. The seminar provided an opportunity to discuss the sometimes great gulf between the approaches of civil law states (including China) to the issue of rights bearing by bodies corporate (corporations in this case but the implications are much broader) and those of the U.S. Most intriguing for the Chinese participants was the fluidity of the normative framework that Americans tend to take for granted--that corporations can at times be deemed to be the repository of rights and at others merely serve as the repository through which the rights of others (principally shareholders) are protected.
My great thanks to Zhiwei Tong and Sun Ping of East China University for organizing this event, as well as for their quite insightful interventions and critiques. They provided a very useful comparative element that is rarely heard in Western circles--those from principles of Chinese constitutional law. In an age in which the West will see Chinese enterprises operating in broader stretches of Western economies, that inter-systemic dialogue is quite important. And the fundamental complication remains--should legal constructs (including perhaps the state as well) serve as the holders of fundamental rights in themselves or as agent of natural persons in the service of which they have been created? Yet even that question might be better relegated to the 20th century. In an age in which legal constructs are themselves parts of larger production chains, in which governance, property and policy are integrated among enterprises whose relationships are bounded by treaty (BITS, etc.), contract (production contracts, supplier codes of conduct, etc.), and ownership (controlling or influential), and when those patterns of ownership and control may integrate public and private actors, both the issue of constitutional rights and of its location become a much more complex matter.