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The Challenges Of Conscience In A World Of Compromise, Amy J. Sepinwall Jan 2018

The Challenges Of Conscience In A World Of Compromise, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

The process of crafting and passing legislation might be thought to be the locus of compromise par excellence.1 Yet, where the law that results impinges upon moral or religious belief or practice, the issue of compromise arises anew, in both senses of the word: Individuals who oppose the law on moral or religious grounds believe that their political obedeience will compromise them in a fundamental way. Their plea for an exemption from the objectionable legal requirement is, then, a bid for further compromise.2 Compromise in the first sense concerns an undercutting of the self, while compromise in the ...


Bearing "Substantial Burdens", Amy J. Sepinwall May 2016

Bearing "Substantial Burdens", Amy J. Sepinwall

Legal Studies and Business Ethics Papers

In Hobby Lobby v. Burwell, the Supreme Court held that religious believers could establish that their free exercise was substantially burdened just so long as they—or the corporation they had formed—believed that it was.

This highly deferential stance paved the way for yet another challenge to the contraceptive mandate. In Zubik, religious organizations (ROs) contend that it is not just subsidization of contraception that can make an employer complicit in contraception use. Instead, even filling out a form registering one’s objection to the mandate can do so. The government has responded by vigorously arguing that filling out ...


Crossing The Fault Line In Corporate Criminal Law, Amy J. Sepinwall Jan 2015

Crossing The Fault Line In Corporate Criminal Law, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

Why have there been so few prosecutions in the wake of the financial crisis? Official inquiries have found that rampany mandacity and fraud contributed to the meltdown.2 Yet, if anything, the government has adopted a "gentler" response to financial wrongdoing in the last five years.3 Why is this?


Corporate Piety And Impropriety: Hobby Lobby'S Extension Of Rfra Rights To The For-Profit Corporation, Amy J. Sepinwall Jan 2015

Corporate Piety And Impropriety: Hobby Lobby'S Extension Of Rfra Rights To The For-Profit Corporation, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

In Burwell v. Hobby Lobby, Inc., the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through ...


Conscience And Complicity: Assessing Pleas Of Religious Exemptions In Hobby Lobby'S Wake, Amy J. Sepinwall Jan 2015

Conscience And Complicity: Assessing Pleas Of Religious Exemptions In Hobby Lobby'S Wake, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act's employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that ...


The Unemotional Corporation, Amy J. Sepinwall Mar 2014

The Unemotional Corporation, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

Because corporations are not capable of experiencing emotions, we should stop thinking of them as persons.

Corporations are monsters – not in the sense that they are hell-bent on evil but in the sense that they lack certain capacities that are the hallmarks of our humanity. In particular, and like most supernatural creatures populating both mythology and the movieplex, corporations lack the ability to appreciate what it might feel like to be the victim of a wrong and, not unrelatedly, the ability to feel bad when they do wrong. To put it in our folk terminology, the corporation lacks a heart.


History And The Anthropology Of Firms: A Legal Perspective, Gwendolyn Gordon, Eric W. Orts Jan 2014

History And The Anthropology Of Firms: A Legal Perspective, Gwendolyn Gordon, Eric W. Orts

Legal Studies and Business Ethics Papers

Many years ago, social theorists noted the wary, dawning recognition on the part of both historians and anthropologists of the possibility that "history itself was inherently cultural, and culture, inherently historical" (Dirks, Eley, and Ortner, 1994:6). There was some hesitation at the start of anthropology's version of a "historic turn" (McDonald 1996), a shift in the field that, as Sherry Ortner observed, might have been characterized equally validly as "a move from structures and systems to persons and practices" as the more obvious "shift from static, synchronic analyses to diachronic, processual ones" (1994:402). Anthropologists' wariness of the ...


Responsible Shares And Shared Responsibility: In Defense Of Responsible Corporate Officer Liability, Amy J. Sepinwall Jan 2014

Responsible Shares And Shared Responsibility: In Defense Of Responsible Corporate Officer Liability, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

When a corporation commits a crime, whom may we hold criminally liable? One obvious set of defendants consists of the individuals who perpetrated the crime on the corporation's behalf. But according to the responsible corporate officer ("RCO") doctrine, the government may also prosecute and punish those corporate executives who, although perhaps lacking "consciousness of wrongdoing," nonetheless have "a responsible share in the furtherance of the transaction which the statute outlaws>" In other words, under the RCO doctrine, a corporate executive can come to bear criminal responsibility for an offense of her corporation that she neither participated in nor culpably ...


Foundations Of The Firm I: Business Entities And Legal Persons, Eric W. Orts Jan 2013

Foundations Of The Firm I: Business Entities And Legal Persons, Eric W. Orts

Legal Studies and Business Ethics Papers

Whether and how to recognize business enterprises as organizational "entities" and legal "persons" that bear enforceable rights, privileges, and responsibilities has been one of the most vexing issues in the history of legal thought. These issues, though often raised with respect specifically to corporations, are relevant to business firms in general.1 Debates about whether business firms are simply "legal fictions" created by the state or "real entities" that exist independently as institutions trace at least to classical Roman times.2 These debates mirror an historical tension between "topdown" and "bottom-up" perspectives on business enterprises. An appreciation of these two ...


Punishing Penn State, Amy J. Sepinwall, Scott Rosner Jul 2012

Punishing Penn State, Amy J. Sepinwall, Scott Rosner

Legal Studies and Business Ethics Papers

The NCAA has imposed upon Penn State’s football program a series of punitive sanctions some deem worse than the (so-called) death penalty. The sanctions respond to Penn State’s failure to report and prevent Jerry Sandusky’s sex abuse crimes. We believe that Penn State deserves to be sanctioned, and we agree with the corrective sanctions the NCAA has imposed. But we fear that at least some of the punitive sanctions Penn State has received may be inappropriate.


Citizens United And The Ineluctable Question Of Corporate Citizenship, Amy J. Sepinwall Feb 2012

Citizens United And The Ineluctable Question Of Corporate Citizenship, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

As a result of the Supreme Court's decision in Citizens United, corporations and individuals now enjoy the same rights to spend money on advertisements supporting or opposing candidates for office. Those concerned about the role of money in politics have much to decry about the decision. But the threat to democracy posed by allowing wealthy corporations to function as political speakers arises under the same regime that allows wealthy individuals to do so. If we are not prepared to limit individuals' expenditures on political speech, we will have to find a way to distinguish individuals' and corporations 'free speech ...


Penn State And The Blame Game, Amy J. Sepinwall, Scott Rosner Jan 2012

Penn State And The Blame Game, Amy J. Sepinwall, Scott Rosner

Legal Studies and Business Ethics Papers

It has now been two months since scandal rolled into the Happy Valley, with the news that Jerry Sandusky has been charged with 52 counts of child molestation. Much is still uncertain and yet the university, the surrounding community, and the nation as a whole remains fixated on the question of responsibility. In particular, does Penn State bear responsibility for any of the alleged acts of abuse and, if so, on what grounds? If the institution does bear responsibility, ought we to transmit that responsibility to members of the Penn State community? To which members? And what measures should Penn ...


Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall Jan 2012

Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

The BP oil spill and financial crisis share in common more than just profound tragedy and massive clean-up costs. In both cases, governmental commissions have revealed widespread wrongdoing by individuals and the entities for which they work. The public has demanded justice, yet the law enforcement response in both cases has been underwhelming. In particular, no criminal indictments have been sought for any of the corporations responsible for the Macondo oil-rig explosion or for the Wall Street banks involved in the financial meltdown.

This governmental restraint reflects a deep-seated ambivalence about corporate criminal liability. Though scholars have been debating the ...


Regulation Of The Global Marketplace For The Sake Of Health, Marion Danis, Amy J. Sepinwall Dec 2002

Regulation Of The Global Marketplace For The Sake Of Health, Marion Danis, Amy J. Sepinwall

Legal Studies and Business Ethics Papers

Mounting evidence suggests that socioeconomic status is a determinant of health. As nations around the globe increasingly rely on market-based economies, the corporate sector has come to have a powerful influence on the socioeconomic gradient in most nations and hence upon the health status of their populations. At the same time, it has become more difficult for any one nation to influence corporate activities, given the increasing ease with which corporations relocate their operations from country to country. As a result of all of these factors, nations wishing to assure the health of their populations will need to both involve ...


An American Perspective On Belgian And British Environmental Law Within Europe, Eric W. Orts Jan 1999

An American Perspective On Belgian And British Environmental Law Within Europe, Eric W. Orts

Legal Studies and Business Ethics Papers

It is unusual these days for an American to offer an outsider's view of a comparative topic that does not involve the United States either as one side of the comparison or an interested party. One does not need to look to disagreements over policies regarding NATO, Bosnia, or Iraq to find this tendency. As Europeans know only too well, we Americans are often parochial in our views, if not isolationist. The recent success of the U.S. economy as compared to Europe and Asia has not helped us to lose an unjustified sense of our own primacy. A ...


The Global Corporation, Thomas Donaldson Jan 1989

The Global Corporation, Thomas Donaldson

Legal Studies and Business Ethics Papers

This chapter will offer an introductory sketch of the theory and practice of the multinational firm. Of necessity it will be a still image of a moving, elusive phenomenon. The sketch will be drawn, moreover, from a moral angle; it highlights the vast powers of multinationals, the existing codes and laws influencing their activities, and the rare theoretical attempts that have been made to understand their ethical responsibilities. Yet it attempts almost no moral analysis. Its aim is descriptive; it is to serve as a preliminary for the moral analysis that will follow.