28 Yale Law Journal 523 (1919)
This is a most stimulating contribution to the literature of what has long been a nebulous branch of constitutional law. Few departments of the law exhibit more clearly the flexibility of the constitution, its adaptability to changing economic conditions and the resulting difficulty of forecasting constitutional decisions, than that of foreign corporations. But the greatest factor contributing to uncertainty and anomaly in this branch of the law has been the unfortunate confusion in the theory of the corporation. Curiously enough, by piling fiction upon fiction, some measure of justice has now been worked out by treating the corporation as a "person" or a "person within the jurisdiction" under the Fourteenth Amendment. Not even yet have the Supreme Court and the legal world generally accepted the view that incorporation is merely a device, a form or method adopted by real human beings for doing business and enjoying their property, just as a partnership is. The author clearly perceives the inaccuracy of the "fiction" and of the "real" theory of a corporation, into which we have been led principally by continental jurists. But his praiseworthy attempt to explain away the confusion would have derived much assistance from the able contribution to that end already made by the late Professor Hohfeld, particularly at pp. 288-291. It is to be doubted whether "modern jurisprudence" has "generally rejected" the theory that "only persons can be subjects of rights and duties.". On the contrary, it seems to the reviewer that recognition of that fact shows the superfluity of the "fiction" and "real" theory and enables the corporation to be seen as a mere device covering the transactions of a group of individuals.
Date of Authorship for this Version
Borchard, Edwin, "Book Review: Position of Foreign Corporations in American Constitutional Law" (1919). Faculty Scholarship Series. 3667.