In Citizens United v. FEC, a 5-4 majority of the Supreme Court ruled that “the Government cannot restrict political speech based on the speaker's corporate identity.” The decision remains controversial, with many arguing that the Court effectively overturned more than 100 years of precedent. I have previously argued that this decision turned on competing conceptions of the corporation, with the majority adopting a contractarian view while the dissent advanced a state concession view. However, the majority opinion was silent on the issue of corporate theory, and the dissent went so far as to expressly disavow any role for corporate theory at all. At least as far as the dissent is concerned, this avoidance of corporate theory may have been motivated at least in part by the marginalization of concession theory. In fact, concession theory’s marginalization has become so extreme that advocating for it exposes one to mockery by some of the most esteemed experts in corporate law. For example, one highly regarded commentator criticized the dissent by saying: “It has been over half-a-century since corporate legal theory, of any political or economic stripe, took the concession theory seriously.” In this Essay I consider whether this marginalization of concession theory is justified. I conclude that the reports of concession theory’s demise have been greatly exaggerated and that there remains a serious role for the theory in discussions concerning the place of corporations in society. This is important because without a vibrant concession theory we are left primarily with aggregate theory and real entity theory, two theories of the corporation that both defer to private ordering over government regulation.
Rehabilitating Concession Theory,
Okla. L. Rev.