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Hobby Lobby, Corporate Law, and Unsustainable Liberalism: A Reply to Judge Strine

67 Pages Posted: 18 Feb 2016 Last revised: 24 Jun 2016

Harry G. Hutchison

Centre for the Study of Law & Public Policy at Oxford; Regent University - School of Law

Date Written: February 16, 2016

Abstract

In his recent article, A Job is Not a Hobby: The Judicial Revival of Corporate Paternalism and its Problematic Implications, Judge Leo Strine endeavors to fashion an unbreakable link between the Supreme Court’s recent decision in Burwell v. Hobby Lobby in combination with the Court’s recent corporate law jurisprudence surfacing in Citizens United and the reappearance of “corporate paternalism.” This move ostensibly threaten employee autonomy and positive rights. Advancing a profuse panegyric on the New Deal and later Fair Deal reforms, Strine stoutly defends the quest for “social progress.” He is particularly animated to counter the efforts of employers, such as the respective corporations that participated in the Hobby Lobby decision to pursue a religious accommodation from generally applicable law. Properly appreciated his article raises the vexed question whether corporations — particularly religious corporations — have rights either directly or derivatively when such rights delimit the nation’s social safety net that progressives and liberals have constructed and sustained through novel interpretation of the law. This article also questions the Supreme Court’s understanding of corporate law, which on Strine’s account threatens the return of “wage slavery.”

This essay responds to Strine’s observations and analysis in several ways. After summarizing his argument, this essay ascertains whether Judge Strine’s largely utilitarian calculus eradicates debate or rather sparks it. This inspection is complemented by reconsidering Progressive Era currents, New Deal labor law and the ongoing plight of marginalized individuals and groups despite increasing levels of government intrusion in society grounded in the presumed benefits of reform initiatives. In addition, this response evaluates the possibility that the United States can be defined plausibly as a truly secular society and the implications arising from an answer to this question for purposes of sorting out whether religious exemptions ought to be available for for-profit corporations either within the meaning of the Religious Freedom Restoration Act or within the parameters of the First Amendment. Lastly, I consider whether Supreme Court jurisprudence has reinstituted “corporate paternalism” that somehow transforms corporate law or, alternatively strengthens it. Of particular interest is Strine’s claim that granting corporations statutory or constitutional rights is incompatible with the notion of corporate “separateness,” a claim that may be difficult to square with a robust conception of the theory of the firm grounded in contractarianism and law and economics scholarship. Taken as a whole, Judge Strine’s approach is refracted through a prism supplied by political theorists, constitutional scholars and corporate law scholars. Such an inspection exposes the doubtful provenance of his claims.

Keywords: constitutional law, corporate law, corporate paternalism, employee rights, free exercise, Hobby Lobby, labor law, liberalism, New Deal, Progressive Era, religious liberty, separateness, separation of ownership and control, social progress, utilitarianism

JEL Classification: K22, K31

Suggested Citation

Hutchison, Harry G., Hobby Lobby, Corporate Law, and Unsustainable Liberalism: A Reply to Judge Strine (February 16, 2016). Harvard Journal of Law and Public Policy, Vol. 39, pp. 703-768, 2016; George Mason Legal Studies Research Paper No. LS 16-06. Available at SSRN: https://ssrn.com/abstract=2733349

Harry Hutchison (Contact Author)

Centre for the Study of Law & Public Policy at Oxford

Belsyre Court, 57 Woodstock Road
Oxford 0X2 6HJ
United Kingdom

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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