American University Journal of Gender, Social Policy & the Law
As a result of the U.S. Supreme Court’s 2014 case Burwell v. Hobby Lobby, and the seemingly expanding notion of the corporation as a person within the traditional autonomous rights paradigm, a tension has developed between corporation as subject and corporation as institution. This evolution of corporation as person also highlights the problem of providing resilience to vulnerable subjects whose competing vulnerabilities are situated in the same corporate environment. Addressing this issue is of critical importance where employment has become the conduit for the responsive state to provide resilience to so many subjects, as well as the site of social institution building because the nature of our workplace has changed so dramatically. What level of personification of the corporate form is necessary for it to function properly and provide optimal resilience and where does that personification cross the line into an area that leaves employees, the corporation, and the state too vulnerable? Is there a way to resolve these conflicts or to negotiate these fault lines in and among competing vulnerabilities in a way that makes sense?
This article will seek to take a first step into the midst of these intersecting fault lines, identifying their cause and considering solutions. To do so, the corporation as person will be viewed through a vulnerability lens in the context of the United States Supreme Court’s recent decision in Hobby Lobby. Part II of this Article will provide the vulnerability theory framework relevant to this discussion and Part III will explore different theories of the corporation as legal subject and address the concept of legal personhood. Having provided both the framework for context, and the competing theories of corporation as legal subject, Part IV will review and consider the Hobby Lobby decision as well as the religious freedom jurisprudence underpinning that decision. Part V will then consider what the role of a responsive state should or could be in light of the current state of corporate personhood post-Hobby Lobby.
Situating the Corporation within the Vulnerability Paradigm: What Impact Does Corporate Personhood Have on Vulnerability, Dependency, and Resilience, 25 Am. U. J. Gender Soc. Pol'y & L. 51 (2017).