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Abstract

In the past two hundred years, sovereignty devolved from the monarch to the people in many countries; in our lifetimes, it has devolved in several significant ways from the people to the corporation. We are witnesses to the erosion of traditional Westphalian concepts of sovereignty, where the chess game of international politics is played out by nation-states, each governing a certain geographic area and group of people. Eulogies for the nation-state often cite globalization as the cause of death. The causa mortis is characterized by the increase in the power and normative influence of supranational organizations, such as the United Nations, World Bank, European Union, International Monetary Fund, and non-governmental organizations. Today, geography lacks the political significance it once had, as valuable commodities instantly pass over, through, and under geographic borders in the world’s most common language, binary code. Telecommunications, when combined with mobile capital and technology, “is viewed as obliterating spatial lines.” All of these changes have made the nation-state, as a geopolitical entity, far less significant than it has been in the past several decades. Corporations have stepped into this power vacuum with a reach and economic influence so broad that some of the duties of sovereign nations have fallen under their aegis. The power and influence of the world’s major corporations continue to grow, and with this growth their similarities to sovereign states increase. As the nation-state is prematurely eulogized, scholars are writing about the privatization of governance and commerce. Many scholars tend to focus on international relations and the extent to which relationships among nations have been transcended or superseded by private actors. For example, the concept of nations acting as private entities has been recognized in the Foreign Sovereign Immunities Act, which provides that “a foreign state shall not be immune . . . in any case in which the action is based upon a commercial activity carried on in the United States by a foreign state.” This Article focuses, instead, on how the distinction between corporations and the state is blurring, not only internationally, but also domestically, as corporations act in ways that make them similar to nation-states.

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