At Scotusblog, Kent Greenfield notes that the decision has the effect of reversing centuries of separation between corporations and their owners:
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But here is where corporate law assumptions should have led the Court to reach the opposite outcome in Hobby Lobby itself. Whether choosing the corporate form is a burden on the rights of business people’s rights cannot be determined in a vacuum. Rather, the best way to answer the question is whether the nature of the government benefit – the corporate form – is best seen as closely connected to the exercise of shareholders’ religious beliefs.
As a number of corporate law scholars and I argued in an amicus brief in the case, the very purpose of the corporate form is to separate the shareholders from the corporate entity. A distinction between shareholders and the company lies at the very foundation of corporate law. The condition that there be such a distinction is not an add-on; it goes to the definitional nature of the government benefit itself. Hobby Lobby’s presumption that shareholders can be seen as distinct from the company for purposes of, say, limited liability, but identified with the company for purposes of religious freedom changes the nature of the government benefit itself.
In other words, the Court has changed, definitionally, what it means to be a corporation under the state laws in question.
The existential condition of separateness is true even with closely held companies. The largest such companies – Cargill, Koch Industries, Dell, Bechtel, and Aramark, to name just a handful – have tens of thousands of employees and billions of dollars of revenue. (In 2008, Forbes reported that the 441 largest closely held companies employed more than 6 million people and enjoyed $1.8 trillion in revenue.) They are created under the same understanding of a wall existing between shareholders and the company. They could indeed not exist otherwise – the potential liability to individual investors would simply be too great.
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So, could the precedent of Hobby Lobby be used, for example, to sue the Koch Brothers
PERSONALLY for pollution created by Koch industries, or for industrial accidents, or for hazardous waste spills, or for human rights violations under the Alien Torts Statute?
It certainly seems to me that for a closely held corporation, like Koch industries, an argument can now be made that the Brothers Koch can now be held personally liable for the misdeeds of their business.
I'd love to see this one make it to the courts.