The Past Speaks

AS: A reader who is a lawyer had these comments in response to my blog post about the Hobby Lobby decision. They are very thoughtful so I am reposting them here.

Predicting the future is certainly hard, Andrew. But I think your more restrained take is correct. There is ample precedent for endowing corporations with mental facilities, and without distinguishing religious belief from other kinds of mental structures, a Court would find it difficult to say that a corporation cannot practice religion.

Imposing liability on corporations can require determining the corporation’s “intention”. Since “Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd”, [1915] AC 705 or so, the corporation’s intent is found by examining its “directing mind(s)” — the person(s) whose actions are those of the company itself. The presumption is that the director is that directing mind, but it can be shown that someone else is actually the directing mind.

Mostly, this has been used in situations where a corporation is to be convicted of criminal acts (requiring mens rea) or sued on grounds which require evidence of malice or other purposes (conspiracy, eg.)

It’s hard to accept that one can grant a body corporate intent for punitive or retributive purposes but deny it the same for beneficial purposes. You could decide to eliminate corporate liability for crimes/torts of intent if you wanted to reform the issue. That would not affect the liability of employees/directors/agents who used the corporation as the instrument of criminal or tortious acts, so someone would still be left holding the bag. Presumably the corporation would insure them against such liability on the same terms it does now, so there wouldn’t necessarily be cause for concern over the loss of available funds for compensatory or restitutionary judgments.

I’m also not certain that the decision goes so far as to create separate categories of corporations. It recognizes that the determination of such beliefs may be difficult, but refuses to distinguish corporations on that basis.