Skip to:

Volumes

A Critique of the Corporate Law Professors' Amicus Brief in Hobby Lobby and Conestoga Wood

by Stephen M. Bainbridge
100 Va. L. Rev. Online 1 (2014)

The Patient Protection and Affordable Care Act (ACA) effected numerous changes in the legal regime governing health care and health insurance. Among the ACA's more controversial provisions is the so-called contraceptive mandate, which requires employer-provided health care insurance plans to provide coverage of all FDA approved contraceptive methods.

On March 25, 2014, the Supreme Court will hear oral argument in the Hobby Lobby and Conestoga Wood cases, in which the shareholders of two for-profit, family-owned corporations argue that requiring them to comply with the contraception mandate violates the Religious Freedom Restoration Act.

Forty-four corporate law professors filed an amicus brief in these cases, arguing that the essence of a corporation is its "separateness" from its shareholders and that, on the facts of these cases, there is no reason to disregard the separateness between the shareholders and the corporations they control. The Brief is replete with errors, overstated claims, or red herrings, and misdirection.

Contrary to the Brief's arguments, basic corporate law principles strongly support the position of Hobby Lobby and Conestoga Wood. In particular, the doctrine known as reverse veil piercing provides a clear and practical vehicle for disregarding the legal separateness of those corporations from their shareholders, and thus granting those shareholders standing to assert their free exercise rights.

Click on the link below to access the full text of this article.
Archive