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Some Realism about Corporate Rights

27 Pages Posted: 27 Nov 2013 Last revised: 28 Jul 2016

Richard Schragger

University of Virginia School of Law

Micah Schwartzman

University of Virginia School of Law

Date Written: November 1, 2013

Abstract

Can we meaningfully speak of a church’s right to conscience or a corporation’s right to religious liberty? One way to approach this question is by inquiring into the nature of churches and corporations, asking whether these are the kinds of entities that can or should have rights. We have recently seen this kind of reasoning in public debates over whether corporations have free speech rights, and, relatedly, in arguments about the religious free exercise rights of churches, non-profits, and for-profit corporations. Those in favor of such rights sometimes argue that corporations and churches are moral agents, capable of exercising rights separate and apart from the rights and interests of their members; whereas, those opposed tend to argue that churches, corporations or groups are mere aggregations of individuals, or else artificial persons created or recognized by the state to advance the interests of those who compose them.

In this paper, we argue that this form of argument is mistaken and that debates about the ontological status of group or corporate entities are largely irrelevant. One does not need a particular theory of a corporation, organization, or group’s metaphysical status in order to determine its legal rights. To defend this claim, we first consider and reject H.L.A. Hart's semantic critique of corporate personality theories. Instead we follow John Dewey's realist argument against corporate metaphysics. We develop that argument and apply it to current litigation over whether for-profit corporations can assert rights of religious free exercise against the requirement that they provide health insurance coverage for contraception.

Keywords: religious liberty, contraception mandate, corporations, churches, group rights, corporate personality, free exercise, legal realism, H.L.A. Hart, John Dewey

Suggested Citation

Schragger, Richard and Schwartzman, Micah, Some Realism about Corporate Rights (November 1, 2013). Virginia Public Law and Legal Theory Research Paper No. 2013-43. Available at SSRN: https://ssrn.com/abstract=2360309

Richard Schragger (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Micah Schwartzman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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