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Vanderbilt Law Review

First Page

1645

Abstract

This Article is the first modern work of corporation law scholarship fully examining the Dartmouth College case as it was lived and understood at the time. Earlier scholars, the author of this Article included, have relied on the case to make doctrinal and theory-of-the firm arguments about Supreme Court precedents regarding the constitutional rights of corporations. Moreover, these earlier works have primarily focused on, and found talismanic meaning, in two sentences in Marshall’s opinion:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence."

With this prior focus, corporate law scholars typically have viewed the importance of the Dartmouth College case as early evidence of what the founders and the jurists in that case might have thought had they been presented with a question concerning a corporation’s First Amendment rights. Supreme Court Justices in modern corporate speech cases have used Marshall’s two sentences similarly.

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