Academic journal article Harvard Journal of Law & Public Policy

Hobby Lobby, Corporate Law, and Unsustainable Liberalism

Academic journal article Harvard Journal of Law & Public Policy

Hobby Lobby, Corporate Law, and Unsustainable Liberalism

Article excerpt

INTRODUCTION I.   CHIEF JUSTICE STRINE'S ANALYSIS AND      ARGUMENT      A. Prolegomena      B. The Road to "Social Progress" and Employee         Autonomy      C. Healthcare in the Crosshairs of the         Reformers      D. Opting out: The Hobby Lobby Decision and         its Implications      E. The Issues Embedded in Strine's         Approach         1. Introduction         2. The Issues II.  UTILITARIANISM, PROGRESSIVE VALUES, AND THE      FATE OF THE MARGINALIZED?      A. Prologue      B. The Consequences of the Pursuit of "Social         Progress" III. RELIGIOUS LIBERTY CABINED BY THE GROWTH IN      THE "SECULAR STATE"? IV.  CORPORATE LAW PRINCIPLES AND      HOBBY LOBBY V.   UNSUSTAINABLE LIBERALISM IN THE MIRROR OF      CONTRADICTION CONCLUSION 

INTRODUCTION

It is likely that the dependence on, and the limits of, human cognition require us to adopt modes of analysis that make simplifying assumptions. (1) This insight has been richly applied to the domain of corporate governance and may prove equally true when applied to the sphere of rights. For instance, despite the presence of bounded rationality (2) in virtually all avenues of life, many proclaim that rights are universal. (3) Whether or not such claims spring forth from simplifying assumptions, they provoke debate over whether everyone possesses fundamental rights merely by virtue of being human or whether rights are simply historically-contingent--a Western invention (4)--with limited logical and rational force within the context of a diverse globe or nation. (5) Commentators have given divergent answers to this question. For instance, "Benjamin Constant, writing in the aftermath of the French Revolution, thought rights to be a modern innovation," (6) whereas Professor William Edmundson concluded that moral rights "are best understood as protected choices." (7) But even Edmundson's compressed claim is subject to dispute. Contemporary political philosophy, bounded by "public reason" as well as cascading and colliding claims of liberty, rights, and freedom, may be doomed to futility. (8) It is doomed for several reasons. First, many Westerners are captivated by the opportunity to invent, through the "exercise of the powers of choice[,] a diversity of natures, embodied in irreducibly distinct forms of life containing goods (and evils) that are sometimes incommensurable and... rationally incomparable...," (9) Second, there is an absence of any truly satisfactory way to reconcile modern hyper-pluralism with ambitious egalitarianism. (10)

While disputes over rights and their origin consume the Latin West, the focus of this Article is substantially narrower but similarly complicated: Do corporations--particularly religious corporations--have rights, either directly or derivatively, (11) when such rights delimit the nation's social safety net that progressives and liberals have constructed and sustained through novel interpretation of the law? (12) It is plausible that the construction of the social safety net, the linchpin of the pursuit of government-sponsored progress, has issued forth as a part of the insistent search for perfection despite the empirically verifiable observation that "[m]ankind's quest for perfection has always turned dark." (13) Hence, America's experimental, and perhaps utilitarian, quest for perfection--one that took on ravenous form during the Progressive Era and that was reified during the New Deal, Fair Deal, and the New Frontier--is not necessarily a blessing for civil liberties, (14) especially for the civil liberties and economic status of the marginalized among us. (15) Furthermore, it is possible that the liberal experiment and liberal society, taken together, have become inexorably "postliberal" and more authoritarian, (16) perhaps as a consequence of the fact that liberalism draws from its pre-liberal inheritance. (17)

In his recent article, A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications, (18) Delaware Supreme Court Chief Justice Leo Strine endeavors to fashion an unbreakable link between the U. …

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