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Citizen's United is typically billed as a case about the First Amendment and campaign finance law. But, as Larry Ribstein has previously emphasized, the case certainly has its more corporate elements also. In yesterday's oral argument, we saw a few of those interesting morsels, which may serve as something of a preview for questions in Jones v. Harris and future corporate cases. Here, for example, is an exchange between Chief Justice Roberts and Solicitor General Kagan:

CHIEF JUSTICE ROBERTS: But it is extraordinary -- I mean, the -- the idea and as I understand the rationale, we -- we the government, big brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation and they don't know that the corporation is taking out radio ads. The government has to keep an eye on their interests.

SOLICITOR GENERAL KAGAN: I appreciate that. It's not that I have a busy job, it's that I, like most Americans, own shares through mutual funds. If you don't know where your mutual funds are investing, so you don't know where you are --

CHIEF JUSTICE ROBERTS: So it is -- I mean, I understand. So it is a paternalistic interest, we the government have to protect you naive shareholders.

SOLICITOR GENERAL KAGAN: In a world in which most people own stock through mutual funds, in a world where people own stock through retirement plans in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of the --

If we assume that Chief Justice Roberts is asking these questions ingenuously, rather than theoretically, a few items stand out: first, it seems unusual for the Court to think of itself as part of "we the government" rather than as, say, merely a disinterested umpire (though perhaps Roberts is ventriloquising the FEC); second, the petitioners in Jones may have to overcome the anti-paternalistic position of Roberts to win his vote. (Perhaps Todd Henderson's work on the market for corporate paternalism will help.)

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Citizen's United is typically billed as a case about the First Amendment and campaign finance law. But, as Larry Ribstein has previously emphasized, the case certainly has its more corporate elements also. In yesterday's oral argument, we saw a few of those interesting morsels, which may serve as something of a preview for questions in Jones v. Harris and future corporate cases. Here, for example, is an exchange between Chief Justice Roberts and Solicitor General Kagan:

CHIEF JUSTICE ROBERTS: But it is extraordinary -- I mean, the -- the idea and as I understand the rationale, we -- we the government, big brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation and they don't know that the corporation is taking out radio ads. The government has to keep an eye on their interests.

SOLICITOR GENERAL KAGAN: I appreciate that. It's not that I have a busy job, it's that I, like most Americans, own shares through mutual funds. If you don't know where your mutual funds are investing, so you don't know where you are --

CHIEF JUSTICE ROBERTS: So it is -- I mean, I understand. So it is a paternalistic interest, we the government have to protect you naive shareholders.

SOLICITOR GENERAL KAGAN: In a world in which most people own stock through mutual funds, in a world where people own stock through retirement plans in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of the --

If we assume that Chief Justice Roberts is asking these questions ingenuously, rather than theoretically, a few items stand out: first, it seems unusual for the Court to think of itself as part of "we the government" rather than as, say, merely a disinterested umpire (though perhaps Roberts is ventriloquising the FEC); second, the petitioners in Jones may have to overcome the anti-paternalistic position of Roberts to win his vote. (Perhaps Todd Henderson's work on the market for corporate paternalism will help.)

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