20 March 2013

Reverse Veil Piercing and the Contraceptive Mandate

About a month ago I posted what I thought were some trenchant observations about the right of a "soulless" corporation to raise First Amendment "free exercise" defense to the Affordable Care Act's so-called "contraceptive mandate." Not bad for someone who doesn't practice or teach corporate law--so I thought--but certainly not comprehensive.

Even longer ago I criticized Stephen Bainbridge here on his understanding of the nature of corporate personhood. Now along comes Bainbridge to provide a clear and cogent framework for analyzing whether a corporation should be able to raise its shareholders' Free Exercise rights: reverse piercing of the corporate veil (RVP). Check the abstract of his newest piece,Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers, here.

The article is short and clear enough for non-lawyers to follow. And it comes from the pen (or keyboard) of one of the leading scholars of corporate law in America. (And Bainbridge doesn't muddle his argument with erroneous metaphysics; he sticks to standard corporate law.)

RVP is a limited but well-recognized legal doctrine that addresses the otherwise peculiar result that would follow were owners of closely-held corporations in effect penalized for incorporating. Bainbridge is careful to say that RVP does not necessarily work in the resistance to the contraceptive mandate. And there's no way RVP would work for a corporation whose shares were not closely held or were held by individuals with divergent views on the issue in question. But it does provide a neutral framework of analysis for this hot-button issue.

P.S. For a good constitutional law analysis of the contraceptive mandate question you can read another piece by Michael Helfand  here.

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