Re: Hobby Lobby

1

For a second I thought you meant the people making the case for hobbies in the halls of Congress.


Posted by: Sifu Tweety | Link to this comment | 11-25-13 7:32 AM
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Wild guess, I'd imagine that employees of other religions don't get non-Christian holidays off to worship.
(Retort- that's probably because employees of other religions aren't allowed to work there.)


Posted by: SP | Link to this comment | 11-25-13 7:45 AM
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2: What about Seventh-day Adventists?


Posted by: Moby Hick | Link to this comment | 11-25-13 7:47 AM
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They need a Seventh-day goy to cover for them.


Posted by: SP | Link to this comment | 11-25-13 7:49 AM
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From my FB feed: If I create a Mormon corporation, can it baptize the other corporations?


Posted by: CharleyCarp | Link to this comment | 11-25-13 7:51 AM
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Hobby Lobby's ACA argument is terrible and the owners sound like horrible people. OTOH stores should, generally, close on Sunday, and we'd all be better off it that were the case.

Also I can't even really begin to engage with the OP so ... OK.


Posted by: Robert Halford | Link to this comment | 11-25-13 7:56 AM
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stores should, generally, close on Sunday
Theist.

On a personal level, I hate that Sunday is special in any official way. The fact that parking rules don't apply on Sunday peeves me.

On a practical level, the idea that I would only be able to, say, buy groceries on Saturday would be a major hassle, compounded by the fact that everyone else would be doing it as well.


Posted by: Nathan Williams | Link to this comment | 11-25-13 8:02 AM
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Does corporate personhood have a counterpart in Europe and Canada? Or are there other mechanisms for enforcing laws and recognizing that corporations have legal interests?


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:03 AM
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OTOH stores should, generally, close on Sunday, and we'd all be better off it that were the case.

No. Why would this be.


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:04 AM
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Anyway, I was expecting the legal arm of Unfogged to explain that this is a super-reasonable argument and regretfully explain that Hobby Lobby was obviously in the right.


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:06 AM
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A lot of stores around here close Monday or Tuesday instead. Particularly liquor stores since the law was changed a couple years ago to allow them to open Sunday.


Posted by: SP | Link to this comment | 11-25-13 8:10 AM
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The fact that parking rules don't apply on Sunday peeves me.

If it makes you feel better, you could park by a fire hydrant or in a spot reserved for people with handicaps and see how those rules probably do still apply.


Posted by: Moby Hick | Link to this comment | 11-25-13 8:10 AM
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I'm in the camp that says that the problem is not that corporations are people, but that they get all kinds of rights from being a person and none of the responsibilities.

I'm not enough of a lawyer to know how this should play out legally, so I'm just going to ask one question:

"Hey Hobby Lobby, the corporate person, if you are so damn Christian, why don't you give all you have to the poor, and then you will have your treasure in heaven?"


Posted by: rob helpy-chalk | Link to this comment | 11-25-13 8:12 AM
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9 gets it right.


Posted by: Sifu Tweety | Link to this comment | 11-25-13 8:14 AM
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I'm not wedded to making it Sunday but having one week day when most commerce shuts down is unambiguously a good thing. Yes it's more inconvenient for you yuppie assholes but that's the price you pay to live in a decent society -- there's a day when the wheels of commerce slow.

"Europe" (aka civil law) and Canada both have a concept of corporate personhood. Both would reject Hobby Lobby's particular ACA arguments as ridiculous, which they are, and neither have the particular weirdness of the US First Amendment.


Posted by: Robert Halford | Link to this comment | 11-25-13 8:18 AM
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The Greens told the justices in their brief that some drugs and devices that can prevent embryos from implanting in the womb are tantamount to abortion and that providing insurance coverage for those forms of contraception would make the company and its owners complicit in the practice.

FFS, are they talking about Plan B? Why not just say that paying federal income tax is scientifically the same action as aborting a fetus and object religiously?


Posted by: Minivet | Link to this comment | 11-25-13 8:19 AM
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10: Hobby Lobby is completely wrong, and I'd be surprised if any of the lawyers around here would defend it. But the case isn't really about corporate personhood (neither was Citizens United). I get the sense that a lot of people think that these cases basically just say "well, corporations are persons, so they have to have each and every right that (natural) persons have" and that's that. That is sometimes sort of true in statutory cases (where the statute defines "person" in a particular way that either clearly or possibly extends to corporate persons)* but not for constitutional ones.

*That's pretty much what the Hobby Lobby case comes down to: the Religious Freedom Restoration Act doesn't itself define "persons", but the U.S. Code elsewhere provides a default definition of persons that does include corporations. Then there's a related question of how the free exercise right of the First Amendment plays into that statutory question, since that's what RFRA is supposed to be protection.


Posted by: potchkeh | Link to this comment | 11-25-13 8:22 AM
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"Personhood" is ambiguous in context. There are obvious reasons why a corporation has to be a "legal person", in that it has to be the sort of thing that can own things, or enter into and enforce contracts.

On the other hand, I'm totally with you in that there's no good reason that corporations should be assumed to have exactly the same civil rights as natural persons. The argument that gets made on this sort of thing is a pass-through argument -- that the natural persons who own the corporation are using it at a tool for their freedom of expression/religious worship and so on. And while there are contexts in which that's a good argument (that is, I think "freedom of the press" in the First Amendment makes it clear that literally publishing information or opinions is protected to the same extent no matter what sort of legal entity pays for it), I think in a lot of contexts it's bullshit. If the financial assets and liabilities of a corporation aren't yours for tax purposes or for purposes of personal liability, then they aren't yours for purposes of your individual religious expression.


Posted by: LizardBreath | Link to this comment | 11-25-13 8:26 AM
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Retail's closed on Sunday in Germany (think it is throughout most of continental Europe). It was a pain in the ass for a long while after I moved here, but now that I've finally gotten used to it, the idea of never-ending commerce seems crass and barbaric.


Posted by: real ffeJ annaH | Link to this comment | 11-25-13 8:27 AM
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They're using the bullshit right wing religious claim that the standard Pill can prevent implantation, despite no evidence suggesting it does so. Of course standard contraception can be taken in combinations to have an effect similar to plan B but if you're going to claim anything that could be misused to cause an abortion is problematic, I hope they don't provide wire coat hangers in their employee coat closets.


Posted by: SP | Link to this comment | 11-25-13 8:27 AM
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Crossed with, and agreeing with, potchkeh. And Halford except for the Sunday thing, which I have some sympathy with but considering everything, no.


Posted by: LizardBreath | Link to this comment | 11-25-13 8:28 AM
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I think shutting down retail on Sunday seems reasonable as long as bars and restaurants stay open.


Posted by: Moby Hick | Link to this comment | 11-25-13 8:29 AM
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You people are insane. What if all the beer in the house gets drunk up on Saturday night? THERE'S TWELVE HOURS OF FOOTBALL ON SUNDAY.


Posted by: apostropher | Link to this comment | 11-25-13 8:30 AM
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I of course agree 100% with 17 and 18, but experience in arguing the issue has led me to believe that somehow there's no way of making a non-lawyer understand the distinction. And I guess most of the folks who fail to understand it are well intentioned and sort of generally on the right side, so go on with your CORPORATIONS ARE NOT PEOPLE!!!!


Posted by: Robert Halford | Link to this comment | 11-25-13 8:30 AM
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22 to 23.


Posted by: Moby Hick | Link to this comment | 11-25-13 8:31 AM
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I would be on board with the idea that no business can be open seven days a week, but not with the idea that it should be the same day for everybody.


Posted by: Sifu Tweety | Link to this comment | 11-25-13 8:31 AM
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Why is closing one day a week preferable to just shoring up workers' right? You don't want to go to the movies or eat at a restaurant or do anything leisurely? Because Shabbos?


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:31 AM
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23 posted before seeing 22, but if I'm going to drink from noon to midnight, I really need to be at home already.


Posted by: apostropher | Link to this comment | 11-25-13 8:32 AM
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20: To make it even stronger, my understanding is that there's no evidence that even Plan B disrupts implantation -- the documented mechanism is that it blocks post-intercourse ovulation (which is generally (if I recall correctly from the last time I looked into this) when ovulation that gets you pregnant is going to happen -- sperm hangs around for days. The normal, or at least a normal, course of events is intercourse, then ovulation, then fertilization.)


Posted by: LizardBreath | Link to this comment | 11-25-13 8:33 AM
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Ok, I only skimmed the linked article, but my two-bit impression was that Hobby Lobby had an easy case. Is that mega-poor reporting or why are the legal crew here so forcefully otherwise?


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:33 AM
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28: It's not like there's some kind of magic store that sells beer and is open all the time and has lots of locations. You either have to go to the beer distributor or buy six packs from a bar. At least around here.


Posted by: Moby Hick | Link to this comment | 11-25-13 8:34 AM
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but experience in arguing the issue has led me to believe that somehow there's no way of making a non-lawyer understand the distinction.

Maybe you should print out 18 and keep it in your wallet. It's pretty easy to follow.


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:35 AM
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Heck, someone's got to take the other side.

Churches are, generally speaking, corporate entities, and some of them are even incorporated. It's pretty well accepted that churches have a right to freedom of religion, like the Muslim group that had to sue for a building permit in Tennesee because the Christians on the town council didn't want them there. Once you accept that corporate entities as well as individuals have a right to free exercise of religion, It's hard to argue why Hobby Lobby doesn't.

I cannot believe there is a thoughtful stance against contraception

It's not a thoughtful stance, it's a faithful stance, and not susceptible to rational argument but still deserving of some kinds of protection under current law. It is the official position of some of the most mainstream churches, including Roman Catholic.


Posted by: unimaginative | Link to this comment | 11-25-13 8:35 AM
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24: I've got some posts in the archives suffering from the same confusion even though I knew better at the time -- complaining about corporate 'personhood' when I meant the legal assumption that corporate persons were being extended civil rights that were only appropriate for natural persons.


Posted by: LizardBreath | Link to this comment | 11-25-13 8:35 AM
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Well yeah, everything being closed would indeed suck. In Germany it's just retail, offices, and grocery stores that are closed. Restaurants, bars, cinemas, kiosks (bodegas), public transport, and a limited number of pharmacies remain open. It's a tolerable compromise.


Posted by: real ffeJ annaH | Link to this comment | 11-25-13 8:36 AM
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30: Because we're all out of step with the Supreme Court. I'm expecting them to win, I just disagree that they should.


Posted by: LizardBreath | Link to this comment | 11-25-13 8:36 AM
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multi-pwned. Too many lawyers here.


Posted by: unimaginative | Link to this comment | 11-25-13 8:37 AM
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30: Because "Hobby Lobby has an easy case" is a much different proposition than "Hobby Lobby is right". There's a decent chance they'll win, but it'll be a stupid decision.


Posted by: potchkeh | Link to this comment | 11-25-13 8:37 AM
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It's not a thoughtful stance, it's a faithful stance, and not susceptible to rational argument but still deserving of some kinds of protection under current law. It is the official position of some of the most mainstream churches, including Roman Catholic.

Official Church doctrine has, at times, been so utterly abusive that it's hard to feel like it should be free from regular scrutiny of thoughtfulness.


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:38 AM
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Once you accept that corporate entities as well as individuals have a right to free exercise of religion, It's hard to argue why Hobby Lobby doesn't.

We don't have any problem at all distinguishing between churches and not-churches for tax purposes (or, there are problems at the boundaries, but we do it). Once that distinction is something that can be made, which it can be, then saying that a church/mosque/temple/coven/whatever is a corporate tool for the religious expression of its members, but Hobby Lobby isn't, seems to me to be an easy bright-line to draw.


Posted by: LizardBreath | Link to this comment | 11-25-13 8:39 AM
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They will win at the Supreme Court because the only way for corporate personhood expression to be feasible is if the corporation is closely held by a small number of wealthy people who can extend their beliefs to the corporation and if there's one guiding principle SCOTUS believes in it's that rich people can do whatever the fuck they want.


Posted by: SP | Link to this comment | 11-25-13 8:42 AM
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32 -- sure, but we always get to this point, where people claim to understand the distinction and that corporate personhood in the law is a limited and ambiguous concept, that is largely uncontroversial in its common form (own things, sue and be sued, etc.) and I guarantee you that the next time the issue comes up on this site (not to mention the other liberal blogs, which have the stupid readers) we will have a chorus of "Corporations are not people!! How can they have any rights!!" and the cycle will start all over again. I mean, prove me wrong, but we're now on what, like year 5 of this? Lawyers should just call legal personhood "shmersonhood" and be done with it.


Posted by: Robert Halford | Link to this comment | 11-25-13 8:42 AM
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(or, there are problems at the boundaries, but we do it)

There's a local lawsuit on an issue similar the Hobby Lobby thing that hinges on whether Catholic Social Services counts as a part of the church or not.


Posted by: Moby Hick | Link to this comment | 11-25-13 8:43 AM
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I generally think I understand the distinction, but then an article like this makes it look like the line keeps getting shoved more and more problematically. So while it's reductionist to get a bumper-sticker that says CORPORATIONS ARE SOYLENT GREEN, it's not like it's a stale issue that has no current relevance.


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:45 AM
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some kind of magic store that sells beer and is open all the time and has lots of locations

We call them grocery stores. And gas stations.


Posted by: apostropher | Link to this comment | 11-25-13 8:46 AM
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Stupid Pennsylvania liquor laws.


Posted by: Moby Hick | Link to this comment | 11-25-13 8:49 AM
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||

Building secretary threw her back out last Monday. She went to the doctor and told him she absolutely didn't want any pain-killers, because she'd heard too many stories.

He sent her back to work (which was probably a dick move). By Tuesday she was in tears and could barely get home. On Thursday she went to her own doctor and he prescribed some muscle relaxants.

When she tells the story, she says, "I said no painkillers. But that asshole didn't offer me anti-inflammatories, or muscle-relaxants, or anything! Just sent me back to work!"

(Oh dear, I just nodded in sympathy.)

|>


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:50 AM
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A tag that might make it easier to communicate what's being understood across the lawyer/non-lawyer gap is "natural persons", which is the legal term of art for the sort of person with a pulse. "Corporations shouldn't have the civil rights of natural persons" is the sort of thing that will make lawyers think you're all clued-in and sophisticated.

(I am so sad to find that my favorite line about the difference between corporate and natural persons "Neither a soul to damn nor a body to kick," is apparently a misquotation.)


Posted by: LizardBreath | Link to this comment | 11-25-13 8:50 AM
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When I visited Zurich, I learned that most commerce is closed on Sunday, but there's a giant-transport-vehicle-sized loophole that allows the airport and train station to be open for retail commerce on Sunday (because travelers aren't synchronized with local customs, or something). The result is that both of those things are effectively huge shopping malls and are where many locals go to shop in the first place. Convenient for me, certainly.


Posted by: Nathan Williams | Link to this comment | 11-25-13 8:51 AM
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40 -- right, there's a whole line of not only tax law but also First Amendment law (the ministerial exception) that distinguishes between religious and non religious organizations. No one could reasonably argue that Hobby Lobby employees are ministers.

As I understand it, the Hobby Lobby/RFRA argument is that the owners are effectively being compelled to "speak" (by purchasing insurance that covers contraception, supposedly a grave sin) in a way that's contrary to their beliefs. That's a bad argument for a number of reasons, but also one that's only pretty tangentially related to corporate personhood or the rights of religious organizations qua organizations.


Posted by: Robert Halford | Link to this comment | 11-25-13 8:54 AM
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44: I only skimmed the linked article but framing it as "do corporations have individual rights?" is not helpful

Maybe think of it this way: The relevant question isn't "does this category of entity have the right to freely exercise religion?" It's, "does this entity in fact exercise religion?" and if the answer is yes the First Amendment protects it. Churches etc. unquestionably exercise religion. But the only way you get to "Hobby Lobby exercises religion" is if you basically take its owners' word for it. There's a good chance the Supreme Court will do that, but that's nuts.


Posted by: potchkeh | Link to this comment | 11-25-13 8:54 AM
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||

I mean, the first doc really was a tremendous asshole. She just asked him for a note so that she could be excused from work, and he refused to give it to her. I'm absolutely not blaming her for how things unfolded, but it might have eased her week if she were clearer on what pain-killers are.

|>


Posted by: heebie-geebie | Link to this comment | 11-25-13 8:55 AM
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My uncle to a script for Vicodin that he doesn't want to use but won't share. I guess because he didn't get enough for everybody.


Posted by: Moby Hick | Link to this comment | 11-25-13 8:57 AM
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In other countries which have the concept of corporate personhood, they usually also have stringent limits on political donations because not only do they not have the First Amendment, nor do they consider bribery to constitute free speech.


Posted by: chris y | Link to this comment | 11-25-13 8:58 AM
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50.last: I think that's more what the D.C. Circuit Gilardi case is about--that one (correctly) held that the corporation itself didn't have any RFRA/Free Exercise rights at issue, but that the people who owned the company were being substantially burdened by having to violate their beliefs. But the 10th Circuit said that Hobby Lobby itself has rights under RFRA.

(And of course as insane as it is to think that free exercise is implicated in any of this in the first place, it's even more insane to conclude that there's a substantial burden in having to purchase a certain type of insurance coverage.)


Posted by: potchkeh | Link to this comment | 11-25-13 9:02 AM
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I don't even have an Hobby Lobby. Does it sell the same kinds of stuff as Michael's?


Posted by: Moby Hick | Link to this comment | 11-25-13 9:04 AM
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I discovered to my dismay that Paris pretty much shuts down on Sundays. It was my first big adventurous trip off on my own and I was sorely disappointed that my one day in the city of dogshit was limited to walking around outside. Also I discovered that Paris has a lot of dogshit.


Posted by: togolosh | Link to this comment | 11-25-13 9:07 AM
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I think it's worse than Michaels: more of that horrible interior decorating that people use when they're staging a home for sale. Like big iron letters that spell out "LOVE" for your kitchen, with the O cocked on its side, and metal roosters, and fake-aged-mini-trunks to sit on your shelves, etc.


Posted by: heebie-geebie | Link to this comment | 11-25-13 9:07 AM
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Those don't sound like hobbies, except the metal roosters.


Posted by: Moby Hick | Link to this comment | 11-25-13 9:08 AM
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Only very vaguely on topic:
||
Well, hell. Maybe it's time to stop having sex.
http://www.motherjones.com/environment/2013/11/plan-b-morning-after-pill-weight-limit-pounds
(plan B is the hormonal backup to our usual barrier method, and... this issue is relevant)
|>


Posted by: W.H. Harrisson | Link to this comment | 11-25-13 9:09 AM
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All right, I've figured it out. Corporations can have a religion, but you need to figure out what the corporation believes independently of what the owners believe. How else could you say the corporate person has embraced religion freely, rather than having religion imposed on it?

Also, I think if you determined the religion of corporations directly, you would find they all worship Elder Gods.


Posted by: rob helpy-chalk | Link to this comment | 11-25-13 9:12 AM
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Also I discovered ... dogshit.

Five dollars just isn't what it used to be.


Posted by: Awl | Link to this comment | 11-25-13 9:17 AM
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I am so sad to find that my favorite line about the difference between corporate and natural persons "Neither a soul to damn nor a body to kick," is apparently a misquotation.

May I suggest a new favorite for you:

"La personne morale n'est pas une personne ; ni souffrante ; ni aimante, sans chair et sans os, la personne morale est un être artificiel. Et Casanova le savait bien, qui poursuivit nonnes et nonnettes, mais ne tenta jamais de séduire une congrégation."


Posted by: knecht ruprecht | Link to this comment | 11-25-13 9:20 AM
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"the drug is completely ineffective for women who weigh more than 176 pounds and begins to lose effectiveness in women who weigh more than 165 pounds."
That's an awfully steep PD curve, I'd expect to see a much more gradual dropoff. Typically drugs have some maximum concentration that must be reached and maintained for a certain amount of time to be effective and that concentration is diluted by total body mass, but there are other factors that can change the Cmax besides just body weight so it's surprising that just a 10 pound window (6% overall change) takes you from effective to "completely ineffective."


Posted by: SP | Link to this comment | 11-25-13 9:22 AM
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40, 50: It seems like, definitions aside, the question is whether natural persons have the right to organize a corporate "person" that behaves consistently with their religious practice, other than a church. (I don't know whether it would be legal to set up Hobby Lobby as a church that just sells stuff and pays dividends to its owners, but I would guess not.)

The fight over whether corporations are "persons" in certain respects is really just a proxy for the fight over what kinds of corporations we allow natural people to organize.

Am I missing something important here?


Posted by: Benquo | Link to this comment | 11-25-13 9:24 AM
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I don't know whether it would be legal to set up Hobby Lobby as a church that just sells stuff and pays dividends to its owners, but I would guess not.

It would probably be OK as long as they didn't make a profit.


Posted by: chris y | Link to this comment | 11-25-13 9:29 AM
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have the right to organize a corporate "person" that behaves consistently with their has the right to break the law in service of the owners' religious practice, other than a church.

This is more like it. Hobby Lobby can give to the poor, it can practice loving-kindness to its employees and customers, it can decorate with religious iconography -- there's all sorts of religious practice that no one gives a damn whether its management decides to make it engage in.


Posted by: LizardBreath | Link to this comment | 11-25-13 9:29 AM
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... So either the dividends would be right out or they'd have to operate at a loss.


Posted by: chris y | Link to this comment | 11-25-13 9:31 AM
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67: That begs the question. If they have the legal right to do a thing, then a law against it is invalid. If the law against it is valid for them, then they don't have the right to do it.

66, 68 - and that's why this is contentious, right? Because people want to organize their assets into ordinary for-profit corporations but retain the same legal religious immunity from certain kinds of regulation.


Posted by: Benquo | Link to this comment | 11-25-13 9:37 AM
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61, corporations are Minds, right? Do they worship anything? They didn't seem to respect the Excession very much.


Posted by: CRyptic bned | Link to this comment | 11-25-13 9:43 AM
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It narrows the question. The way you phrased it, it sounded as if the secularism police were going to take down Hobby Lobby's nativity scene. The only question here is whether the narrow exemption from laws of general application under RFRA where they substantially burden a person's religious expression should apply to Hobby Lobby.

And I really do think that's appropriately addressed by thinking about exactly who the expression belongs to, and whether it's the sort of thing that has a religion. The whole point of a corporation is to put up a legal wall between the financial rights and responsibilities of the corporation and that of its owners. At that point, I think there's a real problem with the owners saying "If Hobby Lobby incurs a debt it can't pay, that's not my problem -- we're financially separate entities. But if Hobby Lobby is required by law to pay for insurance for its employees, that's my money and can't be used in a way that I find religiously distasteful."


Posted by: LizardBreath | Link to this comment | 11-25-13 9:48 AM
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Hobby Lobby is bound by minimum wage laws, regardless of the fact that some people might use that wage to buy Plan B.


Posted by: politicalfootball | Link to this comment | 11-25-13 9:48 AM
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Well it's only contentious if you're prepared to take seriously people whose argument consists of "I want to be able to break the law with impunity." As far as I can see, the problem in the US is that, in the interests of not being rude to idiots, well meaning people have backed themselves into a corner where they do take this seriously.


Posted by: chris y | Link to this comment | 11-25-13 9:49 AM
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Related news interesting to lawyers: A District Court has ruled that a tax exemption for a "minister of the gospel,"* Which has been in the Tax Code since the income tax was created, is unconstitutional.

http://ia600304.us.archive.org/19/items/gov.uscourts.wiwd.30835/gov.uscourts.wiwd.30835.56.0.pdf

*Not the basis of the ruling, but rabbis, imams, etc. may be ministers, but they can't possibly be ministers of the gospel. Nonetheless they use this exemption.


Posted by: unimaginative | Link to this comment | 11-25-13 10:13 AM
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Something I like about Japanese is that they have a generic word for "corporation" that is the character for "law" followed by the character for "person": 法人. Presumably from the late 19C when they were churning out new words for everything Western. Not used as a synonym for "company" or "business", though.


Posted by: Minivet | Link to this comment | 11-25-13 10:16 AM
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74: Haven't finished reading it yet, but this jumped out:

Some might view a rule against preferential treatment as exhibiting hostility toward religion, but equality should never be mistaken for hostility.

I'm liking Judge Crabb here.


Posted by: LizardBreath | Link to this comment | 11-25-13 10:23 AM
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75: Google tells me that Knecht's personne morale in 63 translates directly as "corporation."


Posted by: politicalfootball | Link to this comment | 11-25-13 10:35 AM
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55 -- you're absolutely right, I'd conflated the DC Circuit case with the Hobby Lobby.

I think there's probably some sense in which a for-profit, non-religious organization corporation has rights protected under the free exercise clause. A law banning Hobby Lobby from putting up a nativity scene, or from closing on Sunday for religious reasons, would IMO be unconstitutional under the Free Exercise clause; though I think that's better conceived of as a right belonging to the corporation's owners and managers than to the corporate entity, there's not much difference in practice.

The key distinction here is that a mandatory provision of insurance which allows employees the option of purchasing contraception, for use in non-work hours, cannot reasonably be conceived of as imposing a free exercise burden on the owner's right to practice their religion.


Posted by: Robert Halford | Link to this comment | 11-25-13 10:39 AM
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Or, in 78, I should say "unconstitutional under RFRA" which is not quite the same thing.


Posted by: Robert Halford | Link to this comment | 11-25-13 10:43 AM
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I think there's probably some sense in which a for-profit, non-religious organization corporation has rights protected under the free exercise clause. A law banning Hobby Lobby from putting up a nativity scene, or from closing on Sunday for religious reasons, would IMO be unconstitutional under the Free Exercise clause; though I think that's better conceived of as a right belonging to the corporation's owners and managers than to the corporate entity, there's not much difference in practice.

I think you could get to such a law being unconstitutional without needing the corporation specifically to have rights under the free exercise clause -- that is, it would be a law intentionally targeting and disadvantaging a particular religion. Figuring out standing would depend on the specifics, but the unconstitutionality would be obvious if there were anyone with standing.


Posted by: LizardBreath | Link to this comment | 11-25-13 10:45 AM
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Sure, it depends on the law and a lot of other factors. There are also conceivably laws from which a corporation would get an exemption under RFRA that wouldn't be unconstitutional under Smith.. But the broader point is the even under a generous interpretation of the free exercise clause (which I support) and even under the theory that corporations (or at least their owners) can have some free exercise rights (which I think is also probably true), this particularly ability to opt out of providing insurance that covers choices made outside of the workplace by employees, as to which the employer is in no ways responsible, doesn't call within any plausible free exercise right.


Posted by: Robert Halford | Link to this comment | 11-25-13 10:53 AM
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Fall


Posted by: Robert Halford | Link to this comment | 11-25-13 10:54 AM
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Oh, yeah. I'd think Hobby Lobby should lose even if it were a sole proprietorship, with no questions about the corporate form. (I'm not wild about RFRA, honestly. I mean, there should be room for reasonable religious exemptions to things like dress codes, but once you get into real laws, I'm not really in favor.)


Posted by: LizardBreath | Link to this comment | 11-25-13 10:56 AM
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Google tells me that Knecht's personne morale in 63 translates directly as "corporation."

It means "legal person". It could be a corporation, but the meaning is much broader, encompassing various kinds of private associations and certain public entities.


Posted by: knecht ruprecht | Link to this comment | 11-25-13 11:12 AM
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Literally it's "moral person", no? I wonder how that came about.


Posted by: Minivet | Link to this comment | 11-25-13 11:15 AM
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42: Lawyers should just call legal personhood "shmersonhood" and be done with it.

Yes. Something like the discussion on game theory/economics use of "rationality." The "natural persons" serves this in part, but I suggest that the onus should be coming up with a term that would explicitly denote the persons (i.e natural persons) plus corporations category, and be understood to only apply in legal contexts. I don't have a good candidate.


Posted by: JP Stormcrow | Link to this comment | 11-25-13 11:17 AM
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If I create a Mormon corporation, can it baptize the other corporations?

There are a couple of Mormon corporations, I think. The church's financial structure is pretty tight from a corporate law standpoint. And they can only baptize other corporations if they're dead.

I went to Michael's on Saturday evening for some sewing notions. (Hey, I needed some sewing notions. And I went early enough in the evening that it wasn't totally sad in there, and I actually went out later in the evening.) Not only did they not have a single bike rack, they also only had like half an aisle of sewing notions -- and no machine needles at all! -- compared to like five aisles of butterfly glitter stamps. I am going to try not to go there again. There is probably a Wiccan sewing store up in Berkeley that I should be going to, but I didn't want to ride that far.


Posted by: Bave | Link to this comment | 11-25-13 11:21 AM
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60/64, I just looked at the full paper, because that kind of thing fascinates me. They didn't plot the dropoff, but the difference between effective and ineffective is pretty small. They figure the max chance of getting pregnant to be about 30% for single intercourse at the most fertile day, with overall odds of 4-6% on a random day. Plan B normally reduces odds of pregnancy by about 50%, so you're looking at a drop from ~5% to ~2.5% for that 6% weight change. In addition to the small difference between effective and not effective (so "steep drop" is maybe not a great descriptor), body composition (fat vs muscle) tends to be more important for hormones than for most drugs (they're lipophilic, so their biodistribution will change, which can make serum levels nonlinear with respect to weight).

The study was coauthored by folks from a company making a competitor drug to Plan B, called Ulipristal acetate (UPA) which is approved in the US but prescription-only as emergency contraception. This study does a head-to-head comparison of the two methods and finds that UPA is 50% more effective across all weight ranges and doesn't lose effectiveness until 194 lbs. It also has a longer (120 h vs 72 h) window. Shame the linked article didn't mention that as an (inconvenient) alternative.


Posted by: ydnew | Link to this comment | 11-25-13 11:22 AM
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86: Well, "legal person" (which is used in 42) does meet those criteria. Good luck getting people to use it consistently, though.


Posted by: widget | Link to this comment | 11-25-13 11:24 AM
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Good luck getting people to use it consistently, though to birth control.


Posted by: Moby Hick | Link to this comment | 11-25-13 11:25 AM
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And they can only baptize other corporations if they're dead.

Look out, Linens 'n Things.


Posted by: Sifu Tweety | Link to this comment | 11-25-13 11:26 AM
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87: dude, of course there's going to be some amazing fabric/sewing store near you someplace.


Posted by: Sifu Tweety | Link to this comment | 11-25-13 11:28 AM
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92 cont'd: ... and of course they have a blog.


Posted by: Sifu Tweety | Link to this comment | 11-25-13 11:30 AM
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The term "sewing notions" is new to me.


Posted by: Moby Hick | Link to this comment | 11-25-13 11:30 AM
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Wow, I am shocked by my google-fu failure to find the place linked in 92.


Posted by: Bave | Link to this comment | 11-25-13 11:34 AM
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I've purchased machine needles at Michael's, you just have to know where to look. Just like you should know that there's always a coupon you can use. Except if you're buying rainbow loom accessories where they have a sign above them that explicitly says no coupons or discounts apply.


Posted by: SP | Link to this comment | 11-25-13 11:35 AM
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I had missed this part of the story:

They said they had no objection to 16 other forms of contraception approved by the Food and Drug Administration, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery.

And apparently that was a deciding factor for the court:
the 10th Circuit went on to say that the company's sincere religious beliefs had been compromised without good reason, noting the limited number of contraception methods at issue and the many employers exempt from the law's requirements.

So would SCOTUS really go so small bore as to say methods X and Y that HL objects to are unconsitutional impositions and the rest of the mandate is fine? Or can they go all the way to declaring the coverage mandate unconstitutional even though the 10th circuit said requiring "abortifacients" is an undue burden but that if HL objected to all contraception that might not justify them opting out since contraception has an obvious public health justification?
And the thing I hate about appeals courts is that reconsidering of facts is right out so they can't just go ask a scientist if the "abortifacient" thing is just a bunch of crap and therefore the whole religious objection is a pretext.


Posted by: SP | Link to this comment | 11-25-13 11:40 AM
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Also, (too lazy to look up but IIRC) the Hobby Lobby health insurance did cover birth control pre-Obamacare, when it wasn't a thing that they were supposed to froth over. Then they dropped the contraception coverage in order to squawk about it.


Posted by: heebie-geebie | Link to this comment | 11-25-13 11:42 AM
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||

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HELP!

Ok, so I went to HR to ask for an ADA accommodation, annd the shit hit the fan.

The HR guy was nice, and he thought that my requests weren't so unreasonable. I asked for an hour of uninterrupted time to go through charts, write notes and plan out my day or a laptop with some flexibility to do notes off-site. I said that if that was unworkable, I would consider a transfer. I want the transfer. My boss has been humiliating me in front of other people a lot. I forwarded her a copy of the e-mail I sent him before going to talk to him as a professional courtesy.

She hit the roof and said that I wasn't a team player, that I needed to stop bullshitting her and that I was throwing her under the bus. She has then started to retaliate.

I met with the HR guy who seemed nice and thought that my requests were reasonable. He has a copy of some notes that I took. If the HR guy can transfer me, I think that I can last long enough to get out of the organization. If not, I think I will get fired or lose my mind.

I looked up enforcement guidelines on the EEOC website, and there was a very similar case with a Starbucks barista who got an award of about 75k.

I have good notes now. My question is whether I should go to the EEOC if they do fire me. It's not so much about the money as making their lives miserable. It would look kind of bad for an organization looking to get contracts from the Department of Mental Health to be investigated for violating the ADA.

I feel like that threat could force through a transfer. Unfortunately, the word would probably spread, and I might find it hard to get another job in the industry. I want out of that industry, but I also wanted to get a new job.

There are times when I think about quitting without unemployment, because it is such a toxic and abusive situation. Unfortunately, not having any income would really suck.

Advice, please?

If I could even get a part-time admi job or something --especially a short-term 6-9 month gig, that would be good. I'm not in a good place to be job hunting. She keeps a tight watch over days off. And I'm not sure that I can present all that well right now.

I really do think I could have a nervous breakdown.

MINESHAFT, What do you think?

|>


Posted by: [redacted] | Link to this comment | 11-25-13 11:45 AM
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Something I like about Japanese is that they have a generic word for "corporation" that is the character for "law" followed by the character for "person": 法人. Presumably from the late 19C when they were churning out new words for everything Western.

Meiji-era Japanese commercial law was basically copied from Prussian law, so the phrase might owe something to the German juristische Person.


Posted by: knecht ruprecht | Link to this comment | 11-25-13 11:47 AM
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I think the decision in 74 is piss-poor and stupid, but that's going to derail the entire conversation.


Posted by: Robert Halford | Link to this comment | 11-25-13 11:51 AM
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[redacted], you should find an employment discrimination lawyer in MA, even if you are not at the stage of filing an EEOC or MCAD complaint. You are navigating tricky territory and need some individualized advice from an expert.


Posted by: Bave | Link to this comment | 11-25-13 11:57 AM
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102: Is it worth that? We're not talking about a lot of money. I don't have the money to spend on legal fees.

All I really want is to get away from her and get a new job without going crazy.


Posted by: [redacted] | Link to this comment | 11-25-13 12:02 PM
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What Bave said. Generally, though, keep copious dated notes, particularly of any conduct that seems retaliatory.


Posted by: LizardBreath | Link to this comment | 11-25-13 12:02 PM
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I am taking notes every night.

1.) How do I find an employment lawyer?
2.) Should I just walk away?

I mean, she said "You are throwing me under the bus." I didn't want to, but at this point I wouldn't mind. I'm not sure that that is healthy.

And I don't want to fuck up future employment prospects.

Today is my regularly scheduled day off. I am thinking about calling in sick tomorrow but worry that that will be a big problem. But you know, sanity.

The quality of my work is totally going down the tubes right now.


Posted by: [redacted] | Link to this comment | 11-25-13 12:10 PM
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I would sit tight, try and make it into work tomorrow if you can, and see if a transfer or an accommodation comes through -- don't do anything irrevocable until you know if HR is going to resolve the situation in a livable way.


Posted by: LizardBreath | Link to this comment | 11-25-13 12:15 PM
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LB is right. The HR manager has a strong incentive to act correctly and make the problem go away, and it sounds like there's an easy way for them to do it, like by transferring you to a different location or supervisor. Go to work, do your job as best you can, and document things.


Posted by: Bave | Link to this comment | 11-25-13 12:21 PM
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[redacted], I sent you an email at your pseudonymous account.

[Geez Bave, for someone who is counseling that [redacted] should go anonymous, you sure are making me change a lot of instances of their name. -Heebz]


Posted by: Bave | Link to this comment | 11-25-13 12:30 PM
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Maybe I'm being paranoid but I would also change over to being presidential if you're really considering doing something in court since pseudonymous on public blog is still public. Specifically the comment, "It's not so much about the money as making their lives miserable" might not look good.


Posted by: SP | Link to this comment | 11-25-13 12:36 PM
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109: Good point. Can someone anonymize those comments?


Posted by: Anon for Now | Link to this comment | 11-25-13 12:41 PM
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71, 83: There's the question of how big the religious exemption should be at all, and then the question of how much a corporation is entitled to that exemption. Those are separate questions and they seem to be mashed together here.

What would be an example of a religious practice that should be protected for an individual or sole proprietorship with unlimited liability, but should not be protected for a corporation?


Posted by: Benquo | Link to this comment | 11-25-13 12:47 PM
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Thank you, Bave.


Posted by: ANon for Now | Link to this comment | 11-25-13 12:49 PM
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What would be an example of a religious practice that should be protected for an individual or sole proprietorship with unlimited liability, but should not be protected for a corporation?

Well, in the US, businesses with a certain number (I think 15?) of employees are not allowed to hire or fire on the basis of religion, have to reasonably accommodate employees religious practices, etc. Just as an example. It's not really the corporate form there that is determinative (a six person corporation would be exempt, and a 1000 person sole proprietorship would not be) but the size of the organization, as seems proper, but that's an example of the kind of issue that arises.


Posted by: Robert Halford | Link to this comment | 11-25-13 1:25 PM
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I was thinking religious expressions that require you having a corporeal form like taking communion or getting circumcised. No cutting the corporation!


Posted by: SP | Link to this comment | 11-25-13 1:28 PM
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113: Thanks, that's interesting, but not really evidence that the "person-ness" of the corporation is the issue.

It seems like "corporations aren't people" is an argument people just layer on when they already think something shouldn't be a right, if a corporation happens to be the one exercising the right, not something that's ever the real reason. I was looking for evidence against this - a protection people think corporations shouldn't have JUST because they're not natural persons.

114: That would make sense, though again presumably sole proprietorships don't themselves have bodies either.


Posted by: Benquo | Link to this comment | 11-25-13 1:43 PM
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sole proprietorships don't themselves have bodies either.

Well, they don't have anything -- they don't have a legal existence separate from that of their owners.


Posted by: LizardBreath | Link to this comment | 11-25-13 1:47 PM
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You know what, no, I'm actually not sure whether 113 is what I'm looking for or not, it could be that bigger firms are thought to have less person-ness, though it could also be that the regulatory burden is larger in relative terms for small businesses, or it could be just our special solicitude for small business, neither of which necessarily has to do with personhood.

116: thanks for the clarification. So it doesn't mean anything to restrict a business run as a sole proprietorship from a certain action, aside from restricting a natural person from that action?


Posted by: Benquo | Link to this comment | 11-25-13 1:48 PM
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Like, per 113, if I personally hired more people than the threshold, for unrelated jobs, would that subject me to those non-small business regulations? Because again if so, it has nothing to do with personhood.


Posted by: Benquo | Link to this comment | 11-25-13 1:50 PM
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I don't think I really understand the distinction your making. Corporate form and corporate personhood (shmersonhood) is a limited legal doctrine that serves particular organizational and regulatory ends.


Posted by: Robert Halford | Link to this comment | 11-25-13 1:53 PM
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117: Doesn't mean anything is a little hard to pin down. Like, does it mean something different to restrict me from doing certain things as a human woman or as a lawyer? There are things that I can only do by virtue of my membership of the bar and so that I can only be restricted from in that role -- it wouldn't make any sense to regulate the manner in which I practice law other than in my role as a lawyer. But there isn't a separate entity that is "LizardBreath, Esq."

Similarly, there are things that only businesses do -- comply with commercial health codes, that sort of thing. So there are going to be regulations that apply to sole proprietors as businesspeople that wouldn't apply to humans generally. But there's not a separable entity that is the business.


Posted by: LizardBreath | Link to this comment | 11-25-13 1:57 PM
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they don't have a legal existence separate from that of their owners.

Good grief, really!? Remind me never to do business in America.


Posted by: chris y | Link to this comment | 11-25-13 2:05 PM
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But there isn't a separate entity that is "LizardBreath, Esq."

Sez you.


Posted by: Sovereign Citizen | Link to this comment | 11-25-13 2:06 PM
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119: Basically I think that a lot of the arguments that corporations shouldn't have certain rights because they're not "real" people are bullshit (except in cases like 114). Usually the people making the argument don't think people should have those rights either.

For example, in 71 LizardBreath thinks that corporations shouldn't have the right to selectively deny contraceptive coverage to employees on account of their religious affiliation, and mentions limited liability as an argument that ordinary "personhood" considerations shouldn't apply - but then in 83 she says that individuals with businesses run as sole proprietorships of a comparable size shouldn't have that right either.

My hypothesis is that the "corporations aren't people" argument is always and only bullshit. I am trying to falsify that hypothesis, by looking for a case where the fact that corporate "personhood" is tenuous is the decisive factor in making a right inapplicable.

120: Thanks again for clearing that up.


Posted by: Benquo | Link to this comment | 11-25-13 2:07 PM
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121: I think most owners of small businesses create something called an S corp to create a separate legal existence.


Posted by: Moby Hick | Link to this comment | 11-25-13 2:07 PM
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124: Those are actually so common that in the more small-business-friendly parts of America, it's common to check one's shoes in the morning in case a small, charged S corp got into them.


Posted by: Benquo | Link to this comment | 11-25-13 2:11 PM
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121: I'd bet that that's the same in the UK -- that if you want there to be a separate legal entity for your business, you have to actually create one formally.


Posted by: LizardBreath | Link to this comment | 11-25-13 2:11 PM
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125: Once you've removed the S corp ion from your shoes you are said to have regained sole proprietorship.


Posted by: Benquo | Link to this comment | 11-25-13 2:13 PM
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Legal puns. Hooray.


Posted by: Moby Hick | Link to this comment | 11-25-13 2:14 PM
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I still don't understand. Of course there are distinctions between corporate and individual rights. For one (extremely obvious) example among many, an individual has a right not to be dissolved for failure to pay her debts. A corporation, broadly speaking, does not.


Posted by: Robert Halford | Link to this comment | 11-25-13 2:15 PM
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123: A corporation can't invoke the Fifth Amendment privilege against self-incrimination. (And, yes, there are certain ways in which a corporation can be forced to testify against itself.) Any individual officer or employee can plead the Fifth -- which may lead in some instances to preventing testimony that would incriminate the corporation -- but, where the testifying witness is not facing personal liability, the corporation has no privilege to assert. I'm pretty comfortable with that rule, as it happens. Is that the falsifying example you're looking for?


Posted by: widget | Link to this comment | 11-25-13 2:18 PM
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an individual has a right not to be dissolved for failure to pay her debts

The "Maybe These Acid Pits Are A Little Mean-Spirited" Act of 1910 was the beginning of the end of personal responsibility in this country.


Posted by: Sifu Tweety | Link to this comment | 11-25-13 2:19 PM
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129: Thanks, that's a great example of something where it really is just a totally different kind of personhood and that matters. I'm not sure why that didn't occur to me before.


Posted by: Benquo | Link to this comment | 11-25-13 2:20 PM
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130: Thanks!


Posted by: Benquo | Link to this comment | 11-25-13 2:20 PM
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121: Sole proprietor is just one possible type of business entity - the UK seems to have it too, "sole trader".


Posted by: Minivet | Link to this comment | 11-25-13 2:21 PM
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As distinct from the corporation sole, which is a fun little piece of archaic law.


Posted by: widget | Link to this comment | 11-25-13 4:56 PM
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There is probably a Wiccan sewing store up in Berkeley that I should be going to, but I didn't want to ride that far.

Stonemountain and Daughters isn't Wiccan particularly, despite the name, but they're very good.


Posted by: clew | Link to this comment | 11-25-13 10:45 PM
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135: I thought corporations were supposed to be soleless.


Posted by: Benquo | Link to this comment | 11-25-13 10:47 PM
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http://www.youtube.com/watch?v=Kem9FBJjZ3I


Posted by: CharleyCarp | Link to this comment | 11-25-13 11:47 PM
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124 is right. I read 116 as suggesting you couldn't do that, which would be a nightmare.


Posted by: chris y | Link to this comment | 11-26-13 2:25 AM
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||

Illustrated Unfoggetariat.

|>


Posted by: chris y | Link to this comment | 11-26-13 2:27 AM
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