Reconciling Corporate Personhood, Former Employees, and the Corporate Right Against Self-Incrimination

The notion of “corporate personhood” is a hot topic in contemporary legal scholarship, as well as in public discourse. Throughout its case law, the Supreme Court has struggled to conceptualize corporate entities and afford corporations rights under the United States Constitution. However, never has it been able to clearly articulate one unifying principle to explain corporate existence: “[The Supreme Court] has not grounded these expansions in a coherent concept of corporate personhood,” writes one prominent scholar. Indeed, “the doctrine of corporate personhood merely stands for the principle that a corporation can be accorded protections in order to protect the rights of the individuals associated through the corporate form.” One corporate right that the Court has firmly held its ground on, though, is the Fifth Amendment Right Against Self-Incrimination: Protection under the Self-Incrimination Clause has never been afforded to corporations. The Supreme Court has categorically denied incorporated entities and their agents Fifth Amendment immunity, and in doing so, it has largely expressed public policy concerns that holding otherwise would undermine the government’s interest in regulating, investigating, and prosecuting violations of white-collar crime. However, in 1999, the Second Circuit Court of Appeals ruled that a group of former employees of a corporation could invoke Fifth Amendment protection under the Self-Incrimination Clause when subpoenaed to hand over corporate documents. The Second Circuit ruling directly contravened a similar case in the Eleventh Circuit, where that Court of Appeals came to the opposite conclusion in holding that former employees could not invoke Fifth Amendment protection when subpoenaed for corporate records. This Note seeks to advance a novel approach by which the Supreme Court may consider a coherent and consistent framework to resolve issues of “The Corporate Fifth Amendment” — in effect, this Note draws upon recent contemporary scholarship and offers a starting point for further academic literature on “corporate personhood” within the context of regulating white-collar crime. Part II will provide a brief overview of the approaches the Supreme Court has taken when considering corporate personhood and corporate civil rights. It will then describe the underlying nature and purpose of the Right Against Self-Incrimination, and outline major cases that have defined Corporate Fifth Amendment rights — or lack thereof — throughout the last century in constitutional jurisprudence. Next, Part III will analyze each of the three corporate theories historically employed by the Supreme Court, while offering a fourth, more functional approach to considering corporate civil rights, formulated by scholars Elizabeth Pollman and Martin Petrin. Part IV of this Note agrees with these scholars that constructions of corporate personhood are archaic and trivial, inhibiting substantive discussion on the merits of corporate civil rights; it will instead recommend that this new-age utility model be one consideration in determining whether former employees of a corporation should be allowed to claim Fifth Amendment protection against self-incrimination. Ultimately, this Note will implement this functional approach through a two-part test outlined by Pollman, concluding that affording former employees protection under the Fifth Amendment Self-Incrimination Clause does advance the historical nature and purpose of the Right Against Self-Incrimination. Although this is just one factor the Supreme Court may consider if it takes up the Corporate Fifth Amendment, there are many others that are not the subject of this Note. The scope of this Note is thus limited to applying the utility model and considering whether former corporate employees fulfill the nature and purpose of the Right Against Self-Incrimination — it does not examine other substantive issues that will affect the constitutional analysis of the Self-Incrimination Clause.