That stockholders “own” the corporation and are its “members,” are assumptions deeply embedded in Anglo-American treatments of the business corporation. They are also principal supports of the policy of “shareholder primacy” and, in the United States, of the corporate claim to constitutional rights. This article critiques these assumptions, while also explaining why they took hold. Among several reasons for this, the primary explanation is to be found in the peculiar parentage of England's first major business corporation, the English East India Company (EIC). The EIC did not begin its life as a true business corporation, but as a cross between a guild (a form of member corporation) and a joint stock company (a form of partnership). In the transition to a unified business corporation, its stockholders inherited the monikers of “member” and “owner” from their guild and partner forebears. This mis-description set the legal mold for all subsequent Anglo-American treatments of stockholders.

Since the dawn of capitalism, corporations have been regarded by the law as separate legal “persons.” Corporate “personhood” has nonetheless remained controversial, and our understanding of corporate personhood often influences our thinking about the social responsibilities of corporations. This essay, written in honor of Prof. Thomas Donaldson, explores the tension in recent decisions by the U.S. Supreme Court and the Delaware Chancery Court about what corporations are, whose interests they serve, and who gets to make decisions about what they do. These decisions suggest that the law does not unequivocally support Donaldson’s vision of corporations as “moral” persons.