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.

Many-to-Many Contracts

In classical contract law, the concept of one-to-one negotiations is familiar: contracts where one party negotiates with the other and, eventually, terms are offered and then accepted. More modern times have made us comfortable with the notion of one-to-many contracts: contracts typically drafted by large corporations and then distributed on a take-it-or-leave-it basis to the masses. This Article discusses a third kind of contract: a many-to-many contract, which may look like the standard one-to-many contract in that it is composed of nonnegotiable language. But when the arrangements between the parties are further considered, we will see that the point of the contract is not for one party to impose its terms on another without question, but for a series of parties to determine the best way to facilitate interchange. In such situations, imposing standard doctrines of contract interpretation may frustrate the purpose of the contract entirely, and for that reason, courts should approach the interpretation of these contracts with care.

"Unnecessary to Address"?: Tackling the Louisiana Supreme Court's Open Question of Whether a Continuing Tort Can Suspend the Louisiana Unfair Trade Practices Act's One-Year Peremptive Period

This Comment analyzes the open issue of whether a continuing tort can suspend the one-year peremptive period for bringing a claim under the Louisiana Unfair Trade Practices Act. It begins by tracking the development of the continuing tort doctrine in Louisiana jurisprudence as a suspension principle to both prescriptive and peremptive limitations periods. After looking at the application of continuing tort to statutory peremptive periods, such as those provided by the Louisiana Medical Malpractice Act and Louisiana Legal Malpractice Act, the Comment turns to the split in the Louisiana Courts of Appeal as to whether a continuing tort can suspend the Louisiana Unfair Trade Practice Act's one-year peremptive period. In response to the Louisiana Supreme Court's recent decision in Miller v. ConAgra, Inc., to leave the issue open, the Comment concludes that a continuing tort should not, in fact, suspend this statutory peremptive period.

Could You? Should You? Florida v. J.L.: Danger Dicta, Drunken Bombs, and the Universe of Anonymity

Recently, the United States Supreme Court passed on a chance to consider the legitimacy of investigatory stops based on uncorroborated anonymous tips of drunk driving, preferring this issue continue to ferment in the lower courts. When facing this issue, some lower courts seize the opportunity to carve out a drunk-driving exception to the Fourth Amendment based on “danger dicta” found in Florida v. J.L. Other courts hold fast to the corroboration requirement for anonymous informants in Alabama v. White. This Comment considers whether both approaches fail to take full advantage of existing Fourth Amendment jurisprudence so that police can effectively manage the dangers posed by drunk drivers without further eroding Fourth Amendment protections. Rather than polarize informants as either known or anonymous, there is a third classification of informants that are just distinct enough to provide reasonable suspicion for investigatory stops. As Justice Kennedy's concurring opinion in J.L. argued, these quasi-known/quasi-anonymous informants “might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.”

"Living Separate and Apart": Solving the Problem of Putative Community Property in Louisiana

This Article argues that Louisiana should instead adopt a modified form of the common law doctrine of “living separate and apart” to address the problems created by the current Louisiana law as to the apportionment of putative community property. Washington, California, and Arizona—all community property states—use the doctrine of living separate and apart in the context of classification of assets. Although the standard differs among the three states, the basic principle is that the spouses can conduct themselves in a manner that demonstrates that they are not only physically, but also emotionally living separate and apart, even if the marriage is legally still intact.If so, then all property acquired after the legal spouses exhibit such sufficient conduct is deemed to be each spouse's separate property. This Article argues that the same requisite conduct sufficient to terminate the community property regime under the common law doctrine of living separate and apart should be sufficient to terminate the legal community property regime between the legal spouse and the common spouse in the context of putative marriage. Such a solution addresses the problems and inequities caused by the current Louisiana law while at the same time addressing some of the issues raised by scholars who argue for putative divorce.  

Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Considered Earnings, Profits, Increases in Value, or Goodwill?

Virtual property, or that property which exists only in the intangible world of cyberspace, is of growing importance. Millions of people use virtual property every day, be it an e-mail account, a blog, or a Facebook profile; billions of dollars are spent to acquire virtual property. As the importance of virtual property continues to increase at light year speed, laws pertaining to virtual property must similarly develop. Among the legal issues yet unaddressed is how community property regimes will respond to virtual community (or virtual separate) property. Spouses are on the brink of litigating issues such as whether a Uniform Resource Locator (URL) is community or separate property, whether a website generates an increase in separate property, whether e-mail contacts are profits, and whether Facebook friends create goodwill. Community property jurisdictions must be prepared to quickly adapt to the reality of virtual property if they wish to avoid being lost in cyberspace. To aid courts in their impending task of considering virtual property in a community property setting, this Article examines how different forms of virtual property should be classified in community property regimes. After explaining the classification scheme within community property jurisdictions, the Article details examples of virtual property likely to be present in modern couples' lives, and considers how these identified examples of virtual property should be classified.

Clarity and Confusion: RICO's Recent Trips to the United States Supreme Court

The complicated structure of the Racketeer Influenced and Corrupt Organization Act has bedeviled courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must embody a set of structural attributes that would not ordinarily be present in a conspiracy. This Article analyzes these new cases, puts them in historical context, and discusses their likely ramifications for civil RICO litigation.

Did You Ever Hear of the Napoleonic Code, Stella? A Mixed Jurisdiction Impact Analysis From Louisiana's Law Laboratory

This Article develops the themes of history, language, and culture in the art of mixed jurisdiction impact analysis. It showcases a specific law (former article 177 of the Louisiana Civil Code) governing the liability of the building master for things thrown out of the house into the street or public road. Our case study gives real meaning to the Romanist mixité wrought into Louisiana's civilian core. The reader is not only invited to take a seat on the time machine for a journey through Louisiana's codal triad back to Roman law with stops in Medieval Spanish law and Pre-Napoleonic French law, but also encouraged to reflect on present-day alternatives for construing and applying the law.

Mixed Public-Private Speech and the Establishment Clause

Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they may articulate their message free from viewpoint restrictions. Private speech, moreover, is not subject to Establishment Clause limits. If the speech is government speech, the Free Speech Clause does not apply, and the government may articulate its message to the exclusion of all other speakers. If the government speech has religious content, it may run afoul of the Establishment Clause. This Article proposes an “effective control” framework to determine Establishment Clause responsibility in cases where public and private actors jointly engage in speech. Between the end-points of purely governmental and purely private speech, it places such speech on a mixed speech continuum. After introducing the framework, this Article demonstrates how the theory of “effective control” functions in a variety of contexts implicating the Establishment Clause, including permanent and temporary displays, prayer in public schools, access to public school property, and legislative prayer. In some instances, discussed as “truly hybrid speech” in this Article, the effective control inquiry fails to identify a unilaterally responsible party. In these limited cases, this Article argues that the speech is sufficiently private for forum access purposes--meaning that the speakers may claim a right to forum access--and at the same time sufficiently governmental for Establishment Clause purposes, potentially creating a secular forum in certain narrowly defined speech contexts.