One of the most notable trends of the Roberts Court is expanding corporate rights and narrowing liability or access to justice against corporate defendants. This Comment examines recent Supreme Court cases to highlight this “pro-business” pattern as well as its contradictory relationship with counter trends in corporate law and governance. From Citizens United to Americans for Prosperity, the Roberts Court’s jurisprudence could ironically lead to a situation in which it has protected corporate political spending based on a view of the corporation as an “association of citizens,” but allows constitutional scrutiny to block actual participants from getting information about corporate social and political activity. Further, as the Court has downplayed or ignored corporate decisionmaking structures in recent human rights cases such as Nestlé, by contrast, state corporate law cases have heightened attention on the board’s role in providing oversight to ensure legal compliance throughout the corporation’s operations. Bringing these threads together leads to the larger observation that the Court’s “pro-business” jurisprudence contributes to a dynamic that ultimately increases pressure on internal law and governance to create stronger constraints and processes to sort the various interests of its participants and stakeholders, as evidenced by growing calls for reform and the rising ESG movement.
Corporations, corporate constitutional rights, business regulation, ESG, First Amendment, corporate speech, corporate disclosure, securities regulation, Alien Tort Statute, Ford Motor Co., personal jurisdiction, corporate oversight
Pollman, Elizabeth, "The Supreme Court and the Pro-Business Paradox" (2021). Faculty Scholarship at Penn Law. 2794.
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