If s.30 of the BC Business Corporations Act were to be eliminated and replaced by an inclusive list of rights, powers and privileges without invoking any form of personhood, it in some ways may provide some clarity. By doing so, we would more easily be able to identify and define permitted corporate action strictly in terms of what is permissible. Reading s.30 of the BCBCA as is, alone without consulting any case law, you have to qualm over whether a corporation can be treated as a “person”. This can be confusing with just a cursory reading.
Including an inclusive list of rights, powers and privileges could provide some more clarity; however, since it would be an inclusive list, it would most likely include broad and general things. This generality could create some fuzzy lines between what could be included in the list and what is not. The problem with including an exhaustive list is the worry about forgetting to include something that should have been included or business practices and activities may change so much in the future, you do not want to rule out that future activity by including an exhaustive list. Therefore, an inclusive list, in my opinion, would be better over an exhaustive list, but because of its generality it may not provide as much clarity as hoped.
I find the ongoing conversation concerning “corporate personhood”, somewhat surprising..
Although it is a fun and interesting discussion, it has, at least in my opinion, not led us anywhere.
All we do, for lack of other means, is to ascribe human form or behaviour to describe (and clarify) the actions of corporations, as we appear to have no other way to understand this aspect of corporate law (and other social phenomena) .
This anthropomorphism, although quite “seductive” does not, however, make corporations’ actions truly comparable to humans beings, nor to the Greek gods of yore, who indeed “acted” like (super)humans.
For us, it is or should be no more than a, generally useful, comparison based on the the, admittedly, imperfect legal system (be it common or statutory law) that we are being taught to understand, apply and live with.
I agree with your point that an overly detailed list of practices and activities would be impractical, to the point that I think the best option would be something more flexible. However, I worry that a more general list wouldn’t do all that much differently from how the BCBA is already used — businesses would still have to look to the courts and case law to clarify their rights, powers, and privileges, as they do now, and if the legislature decided to codify points of contention to clear things up, you would very quickly end up with that bloated and overly inclusive list.
I had similar misgivings about statutory reform to limit corporate powers to a pre-described list, exhaustive or inclusive. You can also loop the consideration of this type of reform into thinking about Unit 5’s discussion of the impact on limitations on corporate power. Roughly speaking, a limitation on corporate power will mean that, if a corporation endeavours to do something (create a contract, for example) that is outside of its power, the result is that the action is a nullity-the term used is Ultra Vires. The examples of UV actions by corporations in the book indicate that this occurring is not necessarily the best outcome, in terms of having the law do what we might naturally think of as just-in a couple cases, for example, a declaration of an action as UV meant that a corporation in bankruptcy got out of its contract obligations, which doesn’t seem the most equitable solution that could be thought of.
My opinion at this point, unsatisfying though it is, is that finessing the scope of corporate personhood is not where we should go in order to reform corporate actions. Instead, I am coming to the opinion that greater efficacy might be found in finessing the incentives the corporate person will respond to-i.e. changing tax laws, regulations, etc. This maybe is less satisfying in terms of the feeling of massive structural change, but my current opinion is that it is likely more efficacious, and less risky.
I agree – I’m not sure that a list of rights would provide as much clarity as we might initially believe, and, while perhaps inefficient, the current ability of judges to disregard separate corporate personhood does provide some recourse. In this regard, I found the short web article “Corporation not person in carpool lanes”, and the reasoning of the Judge, quite amusing – and reflective of a more pragmatic approach: “Common sense says carrying a sheath of papers in the front seat does not relieve traffic congestion,” Judge Drago said. “And so I’m finding you guilty.” Time will tell whether this type of reasoning becomes more prevalent!