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Volume 23, Number 3 (1999) reprinted by permission Legal Studies Forum A NEW NARRATIVE FOR CORPORATE LAW JEFFREY NESTERUK* INTRODUCTION Something analogous occurs within the law. The truth of a judicial opinion is indeterminate at the time of its writing, because it too has an embedded character. It is situated in a common law tradition with settled precedents and future interpretive possibilities. The meaning of a judicial opinion depends on the future stories lawyers and judges choose to tell about it as they interweave precedent and possibility. In both science and law, stories provide moral frameworks for the truths they reveal. “It is from the ‘is,’ from the story told a certain way,” writes James Boyd White, “that we get our most important ‘oughts’: our sense that a particular story is incomplete without a certain ending, which we can supply.”2 In this essay, I wish to explore a particular intermingling of a story of science and a story of law. I am aiming for what White would describe as an “integration”—“a kind of composition, and that in a literal and literary sense: a putting together of two things to make out of them a third, a new whole, with a meaning of its own.”3 Integrations of this kind are, to my mind, fundamental to the value of this special issue exploring “Law, Literature, and Science Fiction.” Bringing together “law,” “literature,” and “science fiction” should allow us to perceive both an as yet unseen whole with new meanings in each of the whole’s constitutive parts.4 The integration I have in mind will focus on the moral frameworks of two stories, and focus on them in a particular way: my interest is in how one story can reveal to us what the other story leaves out. All stories have this exclusionary feature (“all languages are limited”5) that gives rise to “the most profound obligation of each of us in using his or her language...to try and recognize what it leaves out, to point to the silence that surrounds it.”6 By looking at one story to see what another story leaves out, I hope to show how the moral framework of the former can be used to reframe the latter, exposing new normative possibilities. As a former corporate law attorney, I have an interest in what corporate law “leaves out,” in the “silence that surrounds it.” Such silence may be broken by bringing together the law’s story of corporate personhood with its science fictional counterpart:7 the story of the android, Lieutenant Commander Data, from “Star Trek: The Next Generation.” Both the modern corporation and Data are cases of artifactual agency—actors created by artificial means. As such, their claims to personhood—that is, to being moral agents with the same rights and duties as their human counterparts—are problematic. But the story science fiction tells of Data’s claim to personhood is markedly different from the story the law tells about the corporation. Data’s story reveals the “silences” in the narrative of corporate law, replacing them with dialogue. In revealing such “silences,” Data’s story brings into view an alternative moral framework for the law’s struggles with corporate personhood, a new “ending, which we can supply.” The distinction, roughly put, is one between that which “acts” and that which is “acted upon.” The essentially active nature of the person is evident from the law’s conception of the person as the subject of rights and duties. Rights and duties, after all, imply an active subject, one who may exercise privileges and fulfill obligations. Similarly, the notion of property as an entity “acted upon” or essentially passive is also readily apparent. Central to the law’s definition of property is its susceptibility to ownership. The traditional notion of ownership entails control. As a controlled entity, property is acted upon by those who exercise control, i.e., its owners.9Within this dichotomous legal universe, the narrative of the corporation has a certain necessary structure. Given such a framework, the corporation can only narratively appear as an anomaly. To continue the story: The large, modern corporation does not fit neatly into this conceptual scheme. This is because the person/property dichotomy offers no conceptual framework for understanding property which has been artificially activated, that is, has become an actor. But that is precisely what occurs though the legal mechanism of incorporation. The corporation retains its status as property, is owned by the sharehold-ers, and in theory is controlled by its owners. However, the corporation also has an independent legal existence which permits it to act in many significant ways, such as entering into contracts, suing those who have wronged it, and even exercising its free speech rights in political referenda.10Situated in a dichotomous legal universe and appearing as an anomaly, the modern corporation is enmeshed in a narrative structure that fosters a particular terminus. It is a terminus marked by “silences.” With surprisingly little analysis, the law simply declares the corporation’s status as a person. Chief Justice Waite’s famous announcement regarding the applicability of the Fourteenth Amendment to corporations in Santa Clara Co. v. Southern Pacific Railroad11 provides the quintessential example here: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.12Such a bald assertion of the corporation’s status as a person is striking because of what it leaves out. Why, for instance, assert the corporation’s status as person rather than as property? Certainly, the corporation’s susceptibility to ownership would have allowed a contrary assertion. More fundamentally, why not begin by calling into question the basic dichotomous framework that forces such a choice? The Next Generation series highlights Data’s story of aspiration and dialogue in the episode, “The Measure of a Man.”13 In this episode, Data’s status is the subject of a legal hearing. In order to avoid being disassembled for scientific study, Data resigns from Starfleet. Starfleet Commander Bruce Maddox challenges Data’s freedom to resign, claiming that Data is the property of Starfleet and thus subject to its control. At the hearing before Judge Advocate General Phillipa Louvois, Captain Jean Luc Picard argues Data should be accorded a person’s freedom to choose. Appointed by the Judge Advocate General, Commander William Riker argues that as property of Starfleet, Data does not have the right to such personal freedoms. The first scene in which Data appears in “The Measure of a Man” centers on a poker game among Data and other members of the Enterprise crew. The scene foreshadows the episode’s focus on Data’s status by showing him trying to master this human game. He comments that the game appears remarkably simple given the limited number of possible numeric variations among the cards. He is also disparaging of a fellow crew member’s need to sit at a particular chair at the poker table for good luck. Despite his initial confidence, Data loses the hand, fooled by Commander Riker’s bluff. When Data remarks it made little sense for Riker to keep raising his bids given his poor poker hand, Riker smiles. The other crew members explain that success at poker requires more than rational calculation; it requires human instinct. From the start, we are introduced to Data’s aspirations to personhood and the dialogue such aspirations engender with his fellow crew members. But even more fundamentally, we encounter in this early scene a community of individuals at ease with Data’s aspirational relation to personhood. He is not yet a person, but his potential to be so is assumed. Accustomed to encountering myriad actors in nonhuman forms, the world of the Enterprise crew is one in which nonhuman actors may be persons. In such a world, the crew must be open to the distinctiveness of new entities they encounter, resisting the impulse for immediate evaluation and assignment to existing categories. Condi-tioned by the world they inhabit, Data’s fellow crew members readily accept a being such as Data aspiring to personhood. The episode’s central conflict begins with the arrival of Commander Bruce Maddox on the bridge of the Enterprise. He often does not address Data directly, preferring to speak to Captain Picard and Commander Riker. He refers to Data as “this.” Without analysis, Maddox assumes Data’s status as property much as Chief Justice Waite assumed the corporation’s status as a person. But unlike in the corporate law narrative, such silences are untenable here. Picard immediately seeks an explanation of Maddox’s purpose. Unable to convince Picard of the wisdom of disassembling Data for scientific study, Maddox produces a Starfleet order overriding Picard’s wishes. Faced with Maddox’s Starfleet order, Picard summons Data. Picard tells Data, “[W]e have a problem.” Picard’s recognition of the problematic nature of the Starfleet order reveals something of the world in which they live. Justice Waite saw no problem in corporate personhood and thus imposed silence. But having regularly encountered novel creatures, Picard recognizes the need for dialogue on the issue. The uncertainties of his world generate in him the need for continual conversation. Reflecting the multiplicity of the universe in which he lives, Picard makes an effort to refer to Data in a carefully nuanced way, speaking of “beings like yourself.” Working from a richer perspective than the person/property dichotomy of our legal system, Picard begins not with an attempt to classify Data as person or property, but rather trying to gain a deeper appreciation of Data’s distinctive status. Data is also careful in the way he refers to himself, saying only, “[I] am not human.” Outside our law’s person/property dichotomy, Data’s statement has a precision unmuddled by what would otherwise be its implication: that his nonhuman status means he is property. In a world filled with myraid life forms, Data’s self-reference only initiates the analysis and conversation about his status. When Maddox confronts him directly, Data attempts such a dialogue by emphasizing his distinctive status. Data claims his existence has “added to the substance of the universe.” He can not allow himself to be disassembled because then “something unique, something wonderful will be lost.” In this dialogue with a hostile interlocutor, Data reveals another important aspect of the role dialogue plays in his aspirations to personhood status. Data’s dialogue is not only an aid to his own development, as we saw in his attempts to master the game of poker. Such dialogue also contains the possibility of developing his interlocutor’s perspective. (Something Justice Waite’s stance does not allow.) While he is not immediately successful, the dialogue Data initiates with Maddox ultimately prevails. As the dialogue over Data’s status develops, Captain Picard turns to the language of rights. In a prehearing appeal to Judge Advocate General Phillipa Louvois, Picard asserts of Data, “He has rights.” Picard also emphasizes the connection between personhood and rights in a later confrontation with Maddox. Maddox points to the utilitarian benefits of disassembling Data, citing the potential gains of scientific knowledge. He stresses that Starfleet might even be able to make large numbers of Data-like androids to serve Starfleet’s goals. Challenging the utilitarian perspective of Maddox, Picard states, “Data is a Starfleet officer. He still has certain rights.” In this way, the dialogue over Data’s status develops a particular focus that will ultimately allow its legal resolution. At the core of personhood is the bestowal of rights. A being who is a person acquires a dignity able to trump utilitarian considerations. At the legal hearing, Commander William Riker offers dramatic demonstrations of Data’s property status, first removing Data’s fore-arm, and then even shutting him off. Riker picks up on the utilitarian argument Maddox made earlier. Data’s purpose, Riker declares, is to serve human interests. Worried by the effectiveness of Riker’s presentation, Picard asks for a recess. Puzzling over his next legal move, Picard enters into a conversation with another member of the Enterprise crew, Guinan. Noting the multiplicity of life forms in the universe in which they live, Guinan emphasizes the ever-present danger such differences among species pose. The danger is that some come to be regarded as “disposable creatures” who do “the dirty work.” With such creatures, Guinan continues, we need not think of “their welfare” or “how they feel.” In the episode’s revelatory moment, Picard sees the larger issue posed by Data’s status. The issue, he says, is slavery “obscured behind the comfortable, easy euphemism: property.” The danger of slavery is the fundamental reason to maintain an openness in the evaluation of newly-encountered forms of life. An unreflective application of familiar preconceptions to other kinds of beings creates the risk of missing their dignity as life forms and assigning them a secondary status. Failing to recognize them as persons leads to a denial of rights and ultimately their enslavement in one form or another. Returning to the legal hearing, Picard begins his response to Riker’s presentation. He does not deny many of Riker’s claims, allowing that Data is a machine created by a human being. But then Picard calls Commander Maddox to the stand as a hostile witness. With Maddox on the stand, Picard continues the dialogue with Maddox begun earlier by Data. Reminding Maddox of the need to attend carefully to “all life forms,” Picard asks Maddox to state the requirements for qualifying as a sentient being. Maddox appears unsure but mentions the qualities of intelligence, self-awareness, and consciousness. Pressed as to whether Data possesses all of such qualities, Maddox again indicates his uncertainty. Having illustrated the uncertainty arising in a multifarious universe, Picard raises the danger of slavery, of “thousands of Datas,” “a race” serving the bidding of others. This case, Picard claims, “could significantly redefine the boundaries of personal liberty and freedom.” Picard notes the founding purpose of Starfleet—“to seek out new life.” Seeking new life requires a willingness to reconsider old conceptions, to know what we do not know. In this way, Picard’s argument reinforces not only the need to allow for the aspirations of entities to personhood, but the need for dialogue in evaluating their progress. In rendering her decision, the Judge Advocate General states Picard and Riker have in their presentations skirted the main issue. The central issue is: Does Data have a soul? But, she knows, they have skirted it with good reason. Such an issue is one of “metaphysics,” something “best left to saints and philosophers.” The truth is, the Judge Advocate General concedes, that she does not know the answer to the question of Data’s status. Therefore, the law should embody the openness appropriate to this uncertainty. There must be a legal space for Data’s aspirations to become a person. “I have got to give him,” she concludes, “the freedom to explore that question himself.” She, therefore, rules in Data’s favor. Thus, in a significant sense, the Judge Advocate General decides not to decide. Such an approach acknowledges how the multiplicity of Data’s world—a multiplicity of diverse life forms and myriad actors—allows for an aspirational model of personhood. In a community of individuals willing to acknowledge their own uncertainty, a being such as Data can seek the status of person through dialogue with others. Along with reframing the narrative of corporate law, Data’s story helps make the crucial connection between personhood status and the bestowal of rights. This occurs dramatically in the dialogue between Picard and Maddox regarding the utilitarian benefits of disassembling Data. Even more fundamentally, it arises in the revelatory Picard-Guinan dialogue on slavery. During this dialogue, Picard realizes that what is at stake in Data’s case is a new slavery “obscured behind the comfortable, easy euphemism: property.”14 In a legally concrete way, what lies at the core of the question of personhood is the issue of rights. The emphasis in Data’s story on rights is significant for two reasons. First, it reorients the question of Data’s status: from the stubbornly metaphysical question of personhood to the more legally manageable question of rights. Second, in the context of rights, the question of personhood becomes subject to gradation. Instead of the all-or-nothing character of the philosophic debate, a particular right may be approached, case by case, on an individual basis, with one right being affirmed and another denied. Entities thus may have more or fewer rights depending on where they are situated on a person/property continuum.15 A legal universe that recognized a fundamental multiplicity of actors would not experience the modern corporation as an anomaly in the way current law does. The distinctive character of the corporate entity would have a different salience in a world of many actors of differing characters. In a universe in which all are in some sense anomalous, no one is distinctively so. If the modern corporation did not present to our legal system such a distinctive anomaly, there would be less systemic need for law’s silence. We might replace silence with choice and aspiration. Just as Data has made choices in aspiring to become more human, the choices of corporations could have a significance in the law’s characterization of such entities. Within such a framework, the law could set certain minimal standards that corporate entities must meet to be accorded the legal status of person, granting to corporations that met certain standards the rights appropriate to the status they have achieved.16 Instead of responding to the anomaly presented by the contemporary corporation in silence, the law could consider the aspirations of corporations to personhood. Open to corporations in this way, the law could engage in a dialogue with individual corporations aspiring to this legal status. Before such a dialogue can take place, law must first articulate the norms of personhood appropriate to the corporate entity. Thus, while we can not expect corporations to exhibit human emotions,17 we can, for example, expect their conduct to be respectful of the worth and dignity of other community members. Like their human counter-parts, corporations might be prompted to better consider the effect of their actions upon others.18 Presented with legally-articulated norms of personhood, the onus would shift to individual corporations to show how their corporate organizations embody such norms. Much as Data continually converses with those around him in attempting to master such human attributes as humor, dance, music, romance, and artistic creativity, corporate managers could consult legal authorities as to the kinds of development needed by a corporation to realize the corporate aspiration to person-hood.19 Corporate aspirations and dialogue to personhood would provide a much richer framework than the rigid dichotomy of current law. Instead of having only the two ill-fitting choices of “person” and “property” available,20 corporate law, taking its cue from Data’s world, might reflect corporate potential along a graduated continuum with the concepts of person and property representing the two extremes. Corporations would then be legally characterized as more person-like or more property-like depending on their aspirations and achievements regarding norms of corporate personhood. Reconceptualizing the question of personhood as an issue of the bestowal21 of rights allows for a finer, more textured legal treatment of corporations. It allows the law to bestow selective corporate rights, granting some and refusing others, rather than tacitly assigning rights in toto through the characterization of “person.” It also makes possible a more subtle evaluation of individual corporations, with a fuller range of rights being given to those corporate entities that have more fully achieved the legally-articulated and socially approved norms of personhood. But most importantly, this approach would provide a corporate law regime that institutionalized dialogue to replace silence. Just as Data and his fellow crew members gain a deeper understanding of themselves and their humanity through their dialogue regarding Data’s aspirations, so the law can gain a richer comprehension of corporate entities and their proper regulation through promoting exchange regarding the nature of corporate personhood. Such a dialogue would go beyond legal concepts and principles; it would include investigations into the actual day-to-day behavior of particular corporations. Such a mixture of theoretical inquiry and empirical investigation would foster the development of a richer legal system and a more humane corporate law regime. Given the increasing reach of corporate power, the conversation proposed here is long overdue. In this way, a dialogue enters the picture that is strikingly absent from the current scheme of corporate law. The dialogue arises as decision makers in the legal community seek a more developed notion of legal personhood and its implications, and as corporate actors seek the granting of personhood status for the rights accompanying such status.22 {Editorial note: "The Measure of a Man", STTNG, episode 35, is available on Paramount Home Video) |
