Hobby Lobby, corporate law, and unsustainable liberalism.

• Author: Hutchison, Harry G.
• Position: Response to Leo E. Strine, Jr., Journal of Corporation Law, vol. 41, p. 71, 2015 - Introduction through II. Utilitarianism, Progressive values, and the Fate of Marginalized? p. 703-733

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.S. Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., (19) in combination with the Court's recent corporate law jurisprudence in Citizens United v. FEC, (20) and the reappearance of "corporate paternalism." (21) Additionally, Strine stoutly defends the pursuit of "social progress" legislation. (22) This quest may include efforts by self-interested political actors to seize government power in order to drive the majoritarian, if not the authoritarian, (23) pursuit of utilitarianism. Seizure by self-interested actors claiming the mantle of the public interest raises the specter of rent seeking. (24) Constructing an analytical frame of reference that functions reliably with what Richard Epstein calls the "Progressive view of social progress," one which "equate[s] active government with good government," (25) Strine reasons that the instantiation of the nation's social safety net during the Progressive Era and the New Deal rendered "corporate paternalism" less menacing to workers. (26) Nonetheless, he is disturbed by contemporary trends that ostensibly countenance third-party harms (27) as some employers seek shelter from the regulatory state's voracious appetite via statutory or constitutional relief that is unwarranted, presumably because, in hefty reliance on his understanding of Cantwell v. Connecticut, (28) an employer's "[c]onduct remains subject to regulation for the protection of society." (29)

This Article responds to Strine's observations and analysis in several ways. Part I summarizes Chief Justice Strine's argument and outlines the issues arising from it. Part II examines whether Chief Justice Strine's somewhat utilitarian calculus eradicates debate or rather sparks it by reconsidering Progressive Era currents, New Deal labor law, and the ongoing--if not increasingly dire--plight of marginalized individuals and groups, despite increasing levels of government intrusion in society grounded in the presumed benefits of reform initiatives. Part III responds to Strine's hypothesis that the United States can be defined plausibly as a truly secular society and the implications of this heavily contested claim for the question of whether religious exemptions ought to be available to for-profit corporations. Part IV questions whether Supreme Court jurisprudence has reinstituted corporate paternalism that somehow transforms corporate law, or alternatively strengthens corporate law by vindicating entrepreneurial choices that are made by natural persons. Of particular interest is Strine's claim that granting corporations statutory or constitutional rights is incompatible with the notion of corporate "separateness," a contention that may be difficult to square with a robust conception of the theory of the firm grounded in contractarianism and law and economics scholarship. (30) Part V summarizes the contradictions that compromise Chief Justice Strine's analysis. Taken as a whole, Chief Justice 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 Strine's claims.

1. CHIEF JUSTICE STRINE'S ANALYSIS AND ARGUMENT

   1. Prolegomena

      Brandishing doubtful evidence of the history of employer efforts to restrict workers' freedom during the late nineteenth and early twentieth centuries, (31) Strine brands employer hostility toward employee autonomy (economic and otherwise) as an attempt to enforce corporate paternalism (32) or, alternatively, as a brazen effort to reinstitute feudalism. (33) Inflamed by employers' purported eagerness to offer a "gilded case as a substitute for personal liberty," labor advocates in the latter part of the nineteenth century, ostensibly, gave voice to employee grievances as part of the construction of a pathway leading to freedom for workers. (34) Strine is impressed by the early efforts of labor advocates, which were designed to address this situation, but concedes that the efficacy of their efforts was limited as "legal guarantees of freedom for workers evolved slowly" despite the growth of unions. (35) He also admits that material improvements resulting from these efforts were scattered among the several states and hardly national in scope. (36) Evidently, more enduring change within the domain of social progress would await the institution of President Roosevelt's New Deal program, which ushered in fundamental changes to the pre-existing paradigm in labor-management relations. (37) The courts largely upheld these changes. (38)

      Then came Hobby Lobby, which on Strine's reading, vests corporate employers (putatively as part of a larger proto-corporate move) with authority to exploit the least-restrictive-means test embedded in the Religious Freedom Restoration Act (39) (RFRA) as a means of taxing the rest of us. (40) Before fleshing out Strine's examination of Hobby Lobby and Citizens United and their combined implications for corporate law jurisprudence, I offer a fuller account of his defense of the pursuit of "social progress" and employee autonomy in a world of scarcity.

   2. The Road to "Social Progress" and Employee Autonomy

      Strine launches his submission by asserting that a job is not a hobby because most employees in a market economy must work in order to feed, house, and otherwise provide for themselves and their families. (41) Strine's approach ferments with distaste for such commonplace motivations--motivations that have consumed the history of labor. Quotidian ambitions are deeply scorned in comparison with motivations of individuals who are stirred to "work solely because [their] jobs fulfill all of [their] emotional, aesthetic, spiritual, avocational, or hedonic needs." (42) Strine reasons that work is principally understood as an imposition; most workers must take jobs, perhaps even a particular job, which thereby exposes them to the risk that they will spend a majority of their waking hours in a domain where others...