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- Title
THE FORGOTTEN VISITORIAL POWER: THE ORIGINS OF ADMINISTRATIVE SUBPOENAS AND MODERN REGULATION.
- Authors
GLOCK, JUDGE
- Abstract
While the concept of government "visitorial" power is absent in modern law and legal history, this article shows that the idea once had a profound impact on the ability of federal and state governments to regulate and inspect corporations. The belief that the government should act as a "visitor" of private corporations, analogous to the King as a supposed "visitor" of certain corporations in England, with expansive authority to inspect and correct corporate malfeasance, became widespread in the early United States. This visitorial theory justified the powers of the earliest business regulatory commissions, which could inspect corporations without court review using new summary methods, including what became known as the administrative subpoena. By the twentieth century, expanded conceptions of visitorial powers, as well as expanded conceptions of the power of legislative investigation, allowed the government to inspect almost all corporate activities with little judicial review, despite increasing judicial protection of Fourth and Fifth Amendment rights elsewhere, and despite the increasing importance of corporate personhood. This article shows that much of the federal government's modern regulatory and inspection power, including in national security investigations, emerged from the now forgotten idea of visitorial authority. The article also shows how reengaging with this history could help control such powers in the future.
- Subjects
SUBPOENA; CORPORATE personhood; NATIONAL security; FEDERAL laws; CORPORATION law
- Publication
Review of Banking & Financial Law, 2017, Vol 37, Issue 1, p205
- ISSN
1544-4627
- Publication type
Article