Discussion Point: the R&IM Program as Finishing School

By Mimi Dionne posted 07-12-2013 02:17


In its youth the American corporation struggled externally to redefine its scope of public responsibility and internally to define its corporateness and personhood. As corporate status became easier to achieve in America by the mid-19th century, company mission statements shifted away from strong interest in public responsibility – as expressed in the days of our colonial forebears - toward pursuit of individual gain. Continental precedent[1] and our burgeoning idea of the American dream nurtured the identity of the corporation as a legal person. In the simplest terms, legal persons had some sense of personhood: they had a will and a uniqueness; they signed contracts; they committed to these agreements; therefore, they were subject to the rules of the law. These agreements were expressed in paper.  All companies created records.

If the colonial era was the American corporation’s infancy, the 19th century was its teenage years. The internal struggle eventually reached the Supreme Court, which as you know ruled in 1886 that corporations were legal persons under the 14th amendment[2].  Ernst Freund summarized the external struggle between the American corporation and the interest of the US citizenry in 1917’s “Standards of American Legislation”:

In its various forms of ecclesiastical bodies and foundations, gilds, municipalities, trading companies, or business organizations, the corporation has always presented the same problem of how to check the tendency of group action to undermine the liberty of the individual or to rival the political power of the is hardly possible to overestimate the theory that corporate existence depends on positive sanction as a factor in public and legislative policy. It is natural that the charter or incorporation law should be made the vehicle of restraints or regulations which might not be readily imposed upon natural persons acting on their own initiative, and the course of legislative history bears this out.

In other words, these corporations were granted personhood by the will of the people. Kind of. Corporate personhood is a pretty but useful legal fiction. The concept simplified a set of potentially diverse voices into one made up of fewer real ones. At the very least, a company couldn’t be sued if it wasn’t a person and we the American public wanted the right to sue – we believed this would keep corporations in line with the law, much like parental guidelines provide bumper lanes for adolescent humor.

As the four major types of companies in the early 20th century (banking, insurance, railways and express) diversified and matured, Public Notaries as records keepers begat literal Records Managers.  Our job was to manage the evidence of our legal person’s commitments. But in the midst of this debate “the legal recognition of a distinctive historical person – at least in the public corporation – represented a historically critical acknowledgment that control over an enterprise and its property and affairs had solidified in the hands of directors and managers, not stockholders or other participants in some amorphous association.”[3]

In other words, the real stakeholders of a records and information management program.

Who defines the corporation’s corporateness? The Supreme Court wrestled with this question as recently as 2010 with the Citizens United[4] case. The majority stated that “the hierarchical governance structure of a corporation is such that a small group will decide for all others what the ‘corporation’ will say; various individuals—including shareholders—may be offered channels to speak ‘within’ the corporation, but they certainly have no authority to speak ‘for’ it.”[5] Yet Justice Stephens noted in his dissenting opinion in Citizens United, that corporations have strict separation of ownership of property and its control and they have no consciences, no beliefs, no feelings, no thoughts, and no desires. *If* they are persons, they are rough persons, hewn together by multiple beings still struggling to create an identity.

Aye, there’s the rub. Because of the constant ebb and flow of corporate success and failure, corporate personhood has struggled to mature. Indeed, for some corporations it is still as tough to pin down as it was 150 years ago when we were Public Notaries. Then, young men visited Europe on a “Grand Tour” and young ladies boarded away from their families for a year or two to learn the social graces. This finishing touch applied a level of sophistication to the natural (i.e., bipedal) person’s character.  What corporations require is a finishing school. That’s the service we information professionals provide. As the rights of corporate personhood grow, the records and information management program should grow too.

[1] To understand how long the concept of a “corporation as legal person” has existed, revisit the Roman idea of “will” as it pertains to legal transactions. For the purposes of this discussion, however, English statutory law from 1833 generalizes a “person” as extending “to a Body Politic, Corporate, Collegiate, as well as an Individual”. In 1889, it continued: “the expression ‘person’ shall, unless the contrary intention appears, include any body of persons corporate or unincorporate.” We Americans liked this a lot and borrowed the concept.

[2]Santa Clara Cnty. v. S. Pac. R.R. Co., 118 U.S. 394 (1886).

[3] Lyman P.Q. Johnson, Law and Legal Theory in the History of Corporate Responsibility: Corporate Personhood, 35 Seattle U.L. Rev. 1135 (2012).

[4] Citizens United v. FEC, 130 S. Ct. 876 (2010).

[5] Johnson.

#corporatehistory #Records-Management #ElectronicRecordsManagement