The Body, Incorporated

Listen to Professor Matambanadzo discuss The Body, Incorporated. Legal personhood has become a contested issue for individuals of all political persuasions. Some activists seek to expand the boundaries of legal personhood to include fetuses, human tissue, or even animals. Other activists, however, have sought to limit the community of legal persons by expelling one long-recognized group: corporations. Since the United States Supreme Court decided Citizens United v. Federal Election Commission in 2010, a variety of activists, artists, entertainers, and political commentators have claimed that corporate personhood should be severely limited or completely eliminated.This Article addresses the current controversy surrounding legal personhood by focusing on how legal personhood for corporations has been constructed by jurists and scholars in historical and contemporary contexts. This Article does so through an examination of the metaphorical use of the human body as an anchor for determining the status of corporations as legal persons. This analysis shows that even for corporations—disembodied, legally constructed entities lacking many of the rights and privileges of personhood—the human body serves as an important framework for shaping the legal community of persons and resolving theoretical disputes concerning those legal persons.

This Article also presents a novel theoretical justification of corporate personhood embedded in the legal tradition of the United States: the embodiment theory of the corporation. The embodiment theory of the corporation—deployed by courts, scholars, and lawyers—reveals how the embodied human being serves as the paradigmatic person of law. In the embodiment theory, human beings provide a model for determining how legal recognition functions for entities, collectives, and individuals—even those that are disembodied and legally constructed. For this reason, this Article argues that future efforts to determine the boundaries of legal personhood should incorporate human embodiment as a guiding framework for thinking about who “counts” in the community of persons.

A Bibliography of Executive Branch War Powers Opinions Since 1950

Listen to Professor Griffin discuss A Bibliography of Executive Branch War Powers Opinions Since 1950. While there is extensive literature on presidential war powers,[1. See, e.g., John Hart Ely, War and Responsibility:  Constitutional Lessons of Vietnam and Its Aftermath (1993); Louis Fisher, Presidential War Power (2d ed., rev. 2004); Michael J. Glennon, Constitutional Diplomacy (1990); H. Jefferson Powell, The President’s Authority over Foreign Affairs (2002); Michael D. Ramsey, The Constitution’s Text in Foreign Affairs (2007); W. Taylor Reveley III, War Powers of the President and Congress:  Who Holds the Arrows and Olive Branch? (1981); Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power:  The Origins (1976); The Constitution and the Conduct of American Foreign Policy (David Gray Adler & Larry N. George eds., 1996); Donald L. Westerfield, War Powers:  The President, the Congress, and the Question of War (1996); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War:  The War Power of Congress in History and Law (2d ed. 1989); John Yoo, The Powers of War and Peace:  The Constitution and Foreign Affairs After 9/11 (2005).  Two other upcoming books on war powers worthy of note are Stephen M. Griffin, Long Wars and the Constitution (forthcoming 2013), and Mariah A. Zeisberg, War Powers:  The Politics of Constitutional Authority (forthcoming 2013).] to my knowledge there has never been a comprehensive listing of the relevant legal opinions provided by the executive branch.  This bibliography of executive branch legal opinions on war powers since the beginning of the Korean War in 1950 is therefore intended as an aid to future scholarship.  The opinions are listed in chronological order.  Most have been published as public documents, although some were confidential at the time they were written.  The once-confidential documents are available from presidential libraries, and I have provided the information necessary for the library archivists to retrieve them.  This bibliography is limited to opinions that are related to the initiation of war, including the interpretation of the 1973 War Powers Resolution (WPR).[2. Pub. L. No. 93-148, 87 Stat. 555 (1973) (current version at 50 U.S.C. §§ 1541-1548 (2006)).]  Eight opinions that I believe were previously unknown or not easily accessible have been included as appendices to this Bibliography.  I provide a commentary on the various items in the bibliography at the end.  I welcome suggestions for additions to this list.

Bibliography

1. Memorandum from the U.S. Dep’t of State to President Harry S. Truman (July 3, 1950), in H.R. Rep. No. 81-2495, pt. IV, at 61 (1950), quoted in 23 Dep’t St. Bull. 173 (1950).
2. Staff of Joint Comm. Made Up of the Comm. on Foreign Relations and the Comm. on Armed Services of the Senate, 82d Cong., 1st Sess., Powers of the President To Send the Armed Forces Outside the United States (Comm. Print 1951).
3. Memorandum from Dean Rusk, U.S. Sec’y of State, U.S. Dep’t of State, to President Lyndon Baines Johnson (June 29, 1964) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix A.
4. Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (Feb. 11, 1965) (on file with LBJ Presidential Library, National Security Files, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix B.
5. Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (Apr. 6, 1965) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix C.
6. Memorandum from Nicholas deB Katzenbach, U.S. Att’y Gen., U.S. Dep’t of Justice, to President Lyndon Baines Johnson (June 10, 1965), in 2 Foreign Relations of the United States, 1964-1968: Vietnam, January-June 1965, at 751-54 (David C. Humphrey, Ronald D. Landa, Louis J. Smith & Glenn W. La Fantasie eds., 1996).
7. Memorandum from Leonard C. Meeker, Legal Adviser to the President, to President Lyndon Baines Johnson (June 11, 1965) (on file with LBJ Presidential Library, National Security File, Country File, Vietnam, 7B, 1965-1968, Legality Considerations), infra Appendix D.
8. Memorandum from Leonard C. Meeker, Legal Advisor to the President, to the Senate Committee on Foreign Relations (Mar. 4, 1966), in 54 Dep’t State Bull. 474 (1966).
9. Memorandum from William H. Rehnquist, U.S. Assistant Att’y Gen., Office of Legal Counsel, U.S. Dep’t of Justice, to Charles W. Colson, Special Counsel to the President (May 22, 1970) (on file with Nixon Presidential Library and Museum, White House Special Files, Staff Member and Office Files, Charles W. Colson, Box 42, Cambodia, Accordion Folder II, Cambodia Legal Briefs, 1 of 2), infra Appendix E.[3. Special thanks to Nathan A. Forrester, Attorney-Adviser/Editor of the Office of Legal Counsel in the U.S. Department of Justice, for his assistance.]
10. Memorandum from Elliot Richardson, U.S. Att’y Gen., U.S. Dep’t of Justice, to Roy L. Ash, Dir., Office of Mgmt. & Budget (Oct. 18, 1973) (on file with Nixon Presidential Library and Museum, White House Central Files, Subject Files, FE (Federal Government) 4-1, 10/1/73-11/30/73, Box 6), infra Appendix F.
11. Veto of the War Powers Resolution, Pub. Papers 893 (Oct. 24, 1973).
12. A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon and the Mayaguez Incident: Hearings Before the Subcomm. on Int’l Sec. & Scientific Affairs of the H. Comm. on Int’l Relations, 94th Cong. 95 (1975) (statements of Monroe Leigh, Legal Adviser, U.S. Dep’t of State).
13. Presidential Power To Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185 (1980).
14. Overview of the War Powers Resolution, 8 Op. O.L.C. 271 (1984).
15. Memorandum from C. Boyden Gray, White House Counsel, to President George H.W. Bush (Aug. 7, 1990) (on file with George Bush Presidential Library and Museum, John Sununu Files, OA/ID 29166-008, Persian Gulf War 1991, 6), infra Appendix G.
16. Memorandum from C. Boyden Gray, White House Counsel, to Governor John H. Sununu, White House Chief of Staff (Dec. 6, 1990) (on file with George Bush Presidential Library and Museum, John Sununu Files, OA/ID CF 00472, Persian Gulf War 1991, 11), infra Appendix H.
17. Authority To Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).
18. Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173 (1994).
19. Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327 (1995).
20. Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327 (2000).
21. John C. Yoo, The President’s Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them, U.S. Dep’t of Justice (Sept. 25, 2001), http://www. justice.gov/olc/warpowers925.htm.
22. Jay S. Bybee, Authority of the President Under Domestic and International Law To Use Military Force Against Iraq, U.S. Dep’t of Justice (Oct. 23, 2002), http://www.justice.gov/olc/2002/iraq-opinion-final.pdf.
23. Caroline D. Krass, Authority To Use Military Force in Libya, U.S. Dep’t of Justice (Apr. 1, 2011), http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf.

For the complete article, including appendices with eight previously unpublished memoranda, please see the links to Westlaw, LexisNexis, HeinOnline, and Amazon below.

Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores

“Locavores” aim to source their food locally. Many locavores are also more broadly concerned with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food—for personal use and for sale—and municipal zoning ordinances that seek to separate agriculture from residential uses. In this Article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods—food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions—all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law.

Fisher v. University of Texas at Austin: The Fifth Circuit Questions Judicial Deference to Race-Conscious Admissions Policies in Higher Education

The Fifth Circuit held that as long as Grutter remained good law, UT's use of race-conscious measures in admissions decisions complied with the Equal Protection Clause of the Fourteenth Amendment because it was narrowly tailored to achieve a critical mass of minorities despite its simultaneous use of the Ten Percent Law. Fisher v. University of Texas at Austin, 631 F.3d 213, 246-47 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (2012).

Capitalism, Liberalism, and the Right to Privacy

The constitutional right to privacy is a doctrinal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or--more likely--is simply unwilling to do so. And yet there is an obvious candidate for that job: the philosophy of liberalism. But liberalism is a notoriously complicated and contested philosophy. Thus, this Article proposes a succinct and functional articulation of liberalism, which it then applies to Supreme Court cases dealing with the right to privacy. As we shall see, the Court's failure to follow liberal principles lies at the heart of its inconsistencies. Greater understanding of liberalism, and greater willingness to respect this political theory so deeply rooted in American history and tradition, could bring much needed coherence to this body of constitutional law.

Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions

Per curiam—literally translated from Latin to “by the court”—is defined by Black's Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts's tenure, almost nine percent of the Court's full opinions were per curiams. The prevalence of issuing unattributed opinions raises questions of its impact on judicial accountability and the development of the law. This Article argues that the per curiam is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law. Thus, the use of the per curiam in courts of last resort, including de facto courts of last resort, should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality. Opinions containing language that is more expansive must be attributed in order to serve as a check on judges' fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.

Gulf Coast v. Newlin: Reaffirming the Fundamental Notions of Admiralty Jurisdiction

The Fifth Circuit held that the district court did not have admiralty jurisdiction over this action, because Gulf Coast lacked a legal claim to title or possession of the dredge, and its contract and tort claims did not constitute maritime claims, which would have afforded a basis for admiralty jurisdiction. Gulf Coast Shell & Aggregate LP v. Newlin, 623 F.3d 235, 237, 2011 AMC 421, 422 (5th Cir. 2010).

Advisory Adjudication

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring and violating the Article III jurisdictional limitation on advisory opinions at the same time. The Camreta paradox illustrates a problem that makes our current conception of judicial review incoherent. We insist that the Supreme Court avoid separation of powers problems by confining itself to the retrospective adjudicatory activities envisioned by the Marbury v. Madison dispute-resolution model of judicial review. But what we really want the Court to do is participate in the prospective formulation of governmental policy, as if it were part of a tricameral legislative process. These dual conceptions of judicial review reflect a tension inherent in liberalism itself. We want both to advance our own self-interests in an unflattering pluralist political process, but simultaneously we wish to think of ourselves as other-regarding adherents to loftier civic republican virtue. We ask the Supreme Court to mediate this tension for us by making our liberal political victories look as if they are rooted in deeper communitarian principles. But this mediation can be successful only to the extent that the Court can mask for us the underlying incoherence of the judicial review function that we ask the Court to perform. In Camreta, this incoherence is so close to the surface that, hopefully, we will be forced to confront it. Without the camouflage that we ask judicial review to provide for our baser instincts, perhaps we will come to treat each other less harshly, and with more empathy.

In re Katrina Canal Breaches Litigation: Upholding Freedom of Contract

In answering the certified question, the Louisiana Supreme Court held that public policy in Louisiana does not bar the application of an antiassignment clause to postloss assignments where the language of the antiassignment clause “clearly and unambiguously express[es]” the parties' intention that the clause will apply to postloss assignments. In re Katrina Canal Breaches Litigation, 2010-1823, pp. 7, 12 (La. 5/10/11); 63 So. 3d 955, 960, 963.

Bailouts and the Potential for Distortion of Federal Criminal Law: Industrial Espionage and Beyond

This Article reveals previously neglected and disconcerting consequences that government participation in corporate ownership can have on American criminal law, and it illustrates these problems by establishing how the recent bailout could influence criminal enforcement. The Article shows how the model of cost allocation developed by Guido Calabresi and based on Ronald Coase's work can apply in the context of the criminal law and specifically economic crimes. The argument in this Article then demonstrates how the government's purchase of corporate shares through the implementation of the Troubled Asset Relief Program (TARP) causes inefficiencies and inequalities in the criminal law, including by shifting prosecutorial and other enforcement resources toward “preferred” companies and allowing for the imposition of higher statutory penalties against economic criminals that offend against those entities. As a consequence, some corporations may underinvest in private precautionary measures while others will be forced to overinvest and pass on the costs to their customers through artificially inflated prices. The potential end result is a misuse of government power to reward unsuccessful companies like General Motors at the expense of successful ones like Ford. Having established a general framework for using a cost allocation analysis to address economic crimes optimally and having shown that TARP leads to inefficient outcomes under that type of analysis, this Article concludes with recommendations to avoid these problems in the future.