Archive for the ‘limited liability’ Category

Part 4 Dialogue on Moral Hazard, fixing the financial sector and certainty of knowledge:

September 25th, 2013 No comments

Cross-posted from “we build our society” Facebook group:!/groups/webuildoursociety/permalink/426598337444055/

Terry, 2007-09 flow from various government interventions, not limited to those I just outlined, that served the purpose of blowing a bubble and freeing those playing with money from personal responsibility. This meant that smart men focussed on how they could game the system for their own profit. It happened continually and is still underway, though 1994 in Boca may be a good example.

Doug, [Jekyll Island 1913] was just the creation of the Fed (and just part of my item(3) above); the roots go much deeper to other state interventions I noted. The pre-Fed booms/panics also flowed from the state-level creation of banks as corporations and monopolies, and interventions to save banks that essentially broke promises to depositors by creating un-backed paper money. See Rothbard’s History of Money and Banking in the United States,

Categories: banks, limited liability, moral hazard Tags:

Part 3: Dialogue on Moral Hazard, fixing the financial sector and certainty of knowledge

September 25th, 2013 No comments
Cross-posted from the “we build our society” Facebook group:
Terry, yes the entire financial sector is rotten/corrupt and rife with moral hazard. And things are now WORSE, as the banks are now TWICE as large as they were previously, and banking reform has served to squeeze smaller banks out of business…. Most of the approaches you suggest would be worthwhile (as would heads on pikes), but none of them actually address the roots of the moral hazard–
(1) the centralizing/federalizing Deposit Insurance by which Govt pretends to “protect” us, but instead builds a regulatory house of cards that puts the robbers in charge of the larger banks, and ultimately leads to taxpayers holding the bag when the bank fails or the “unexpected” but entirely natural/predictable “crisis” occurs and forces “responsible” pols/bureaucrats in DC to bail out the firms whose employees/managers/execs have done all the looting,
 (2) the federal effort (on behalf of favored elites) to take control of the money supply,
(3) the state/federal replacement of paper money as redeemable warehouse receipts for physical currency with just IOUs (and now backed by nothing), as long as the bank maintains “reserves” of cash or “secure assets” like federal bonds (so that the govt can loot the banks to fund pet “public infrastructure” projects; and
(4) the state creation of banks as limited liability local monopolies in the first place (in exchange for money to the state treasury/pols hands), and the then subsequent protection of bankers (by banking “holidays” etc) when they found it convenient to rob their customers by issuing more IOUs than could be redeemed in physical currency. Limited liability has always been the core intervention.
 The Big Boys now have entirely too much power to effectively regulate on a large scale, but we MIGHT be able to pare back deposit insurance, which would restore to some savers (rather than taxpayers) responsibility for figuring out where to put their money (and would create a REAL market for bank analysis). What we also need is to offer much lighter regulation to new banks that are exempt from any federal or state deposit scheme–and let depositors and shareholders manage their own risks, as they are now doing in private companies that are avoiding the public securities markets.

How do government actions enable pollution and other social problems?

September 25th, 2013 No comments

[from a comment at the “we build our society” Facebook group]

[A]s a factual matter, the greatest Industrial Revolution pollution occurred AFTER governments started to create #LimitedLiability corporations whose effect (and aim) was to protect INVESTORS from the downside risks of doing sh*t that hurt OTHER PEOPLE.

Even today, most of our largest social problems flow from risk socialization and lack of accountability, proximately resulting from wonderful LAWS that serve the powerful, while pretending to “protect” the poor and dumped upon.

Fukushima happened because NO ONE had any personal skin in the game. What happened was no “surprise” or “Act of God”, but an expected result where NO ONE was f*cking responsible for the downsides of poor decisions that benefitted themselves or their organizations, favored corporations with monopolies, whose shareholders and lenders are protected from liability, the banks that are protected by government, the executives and regulators who often retire to the regulated company, the mega-construction firms who built the reactors, the legislators who imposed taxes on all users to bribe the local communities into accepting them ….

Where no one is accountable, bad sh*t is no surprise, but more LIKELY to occur. The same story can be written of the BP/Gulf of Mexico disaster, the ongoing oil sands disaster, coal/oil pollution, the god-damned War Machine/Prison/Industry/Drug War complex, and the “unexpected” financial crisis resulting from monetary gaming by the Fed and a gazillion regs that left depositors and shareholders powerless in the face of looting by bankster elite-wolves.

The answer is NOT “more govt!” or “more regulation!”, but SMARTER regulation that RESTORES RESPONSIBILITY and stops the lie of govt “protecting” people. Keep regulating the old/big cos, but LET THE SMALL and ACCOUNTABLE BUSINESSES FREE. Firms run by managers who are members of the communities in which they operate, and whose owners have no government-granted #LimitedLiability be kept in check by their communities and the risk of losing their personal assets, and will, via the process of #CreativeDestruction, supplant the corrupt dinosaurs.

Finally an LvMI commentator who sees the elephant in the room: effective reform to rein in rampant moral hazard at banks means removing limited liability!

April 22nd, 2010 No comments

[It looks like I’m having formatting problems; sorry, readers!]

I left the following comment on Kevin Dowd’s excellent April 9 Mises Daily piece, “The Current Financial Crisis – and After”, a transcript of a talk he apparently made at the Paris Freedom Fest on September 13, 2009 (emphasis added):

TokyoTom April 22, 2010 at 8:27 am

Kevin, many thanks for this lucid, spot-on and frightening piece.

No one else has mentioned it, so allow me to focus on a piece of your essay that I think has very wide implications that our leading lights at LvMI have been doing their best to ignore: the moral hazard and risk-shifting generation that is INHERENT in the state grant of LIMITED LIABILITY to corporate shareholders, and that has helped to encourage irresponsible behavior and increasing (and ultimately unsuccessful) regulation in the banking sector. It has also fuelled the cycles of corporate regulation, rent-seeking and political corruption.

I couldn’t agree more strongly with what you said here:

“the financial-services industry needs serious reform. Hard to believe as it might be, there was once a time when the industry was conservative and respected, when it focused on providing straightforward financial “products” to its customers and did so well. We have got to get back to that. No more financial hydrogen bombs blowing up the financial system.

The key to this is corporate-governance reform. I am talking, not about tinkering with the number of nonexecutive directors or a new Sarbanes-Oxley, but radical reform to make the banks accountable and to rein in the moral hazards that have run rampant. And the key to good corporate governance is to remove limited liability: we should abolish the limited-liability statutes and give the bankers the strongest possible incentives to look after our money properly.”

I believe that, as argued by James Glassman and William Nolan in a Wall Street Journal op-ed last February that referred to von Hayek, unless and until owners and executives have “more skin in the game” – like the conservatively managed private partnership Brown Brothers Harriman, we will continue to ride a tiger of selfish risk-shifting, moral hazard, and ever more disruptive government regulation.

I have argued in a series of posts, starting with my review of Huebert and Block’s criticisms of Long, the state grant of limited liability to shareholders (in particular the grant vis-a-vis those injured by corporate acts and involuntary creditors, which is a pure grant from the state and cannot be contracted for) has led to a number of perverse results, which can be fairly clearly seen in the financial crisis.

I hope your post will contribute to a much more serious examination by Austrians of the role played by the state grant of limited liability to corporate shareholders in facilitating flawed and irresponsible risk-taking by executives and traders, as well as in perversely fuelling a vicious cycle of rent-seeking and further counterproductive regulation, both within and outside the financial sector.

[But I’m not holding my breath.]



Categories: limited liability Tags:

Problems with "Presidents Day" by Tom Eddlem at; but let’s not just "restore Congress," but amend Constitution to limit the federal government

February 15th, 2010 No comments

I encourage readers to take a look at the excellent essay by Thomas R. Eddlem, Down With the Presidency! A President’s Day Message, now up at

I quote first a few key portions, and then note my further thoughts.

But the role of the president under the U.S. Constitution is not to make laws. It is simply to execute the laws passed by Congress. Article I, Section 1 of the U.S. Constitution begins: “All legislative powers herein granted shall be vested in a Congress of the United States.” Since the Constitution mandates that “all” law-making powers reside in the Congress, none are left for the president. The president’s job is that “he shall take care that the laws be faithfully executed” under Article II, Section 3 of the U.S. Constitution. Constitutionally speaking, the president was designed by the founders to be nothing more than the errand-boy of Congress.

Obama won’t be the first to take us from the “rule of law” to “rule by one man.” The Bush and Clinton administrations paved the way for unconstitutional executive orders. Clinton advisor Paul Begala told the New York Times of Clinton’s executive orders: “Stroke of the pen. Law of the Land. Kinda cool.”

President Bush and his neo-conservative theoreticians were even worse, as they posited the idea that the president was above all law. Former Bush Assistant Attorney General John Yoo’s recent book Crisis and Command contends presidential powers are unlimited by any law: “The executive was, rather, the servant of necessity, bound to act in accordance with, in the absence of, or in extraordinary emergencies, in defense of the republic, even contrary to regularly constituted law.”

This is the authoritarian personality long championed by both much of the Democratic leadership on the “left” and all of the neo-conservative Republicans on the “right.” Neo-conservatives like John Yoo explicitly endorse the idea of an omnipotent presidency that erases all the rights of the people. In his wordy and overpriced book, Crisis and Command, John Yoo claims the Constitution created a president with unlimited powers. The Constitution of the founders, Yoo wrote, “did not carefully limit the executive power, as [it] did with the legislative, because they understood that they could not see the future.”  …

This is what the modern presidency has become, a new Caesar whose powers are without limit.

Unfortunately the national leadership of the Republican Party has bought wholly into Yoo’s argument that government gives out rights instead of God, and that government ought not to “give” rights to people we don’t like. … 

It’s true that the average American Fox-servative remains ignorant of these facts, because we won’t hear the details of tortured innocents like Maher Arar, Khalid el-Masri, Omar Deghayes or the Tipton Three on the Fox News Channel. Nor will the Fox News Network tell its audience that the Obama administration has openly ratified all of these Bush-era attacks on the Bill of Rights except for the torture. Fox-servatives love the dictatorial state; they just wish it were run by the party of Pompey instead of the party of Caesar.


All of the really bad ideas that the federal government initiated throughout our nation’s history originated with the office of president: This includes most of the wars as well as warrantless surveillance, detention without trial, torture and all of the socialist legislation since the New Deal. Each was only adopted by the president pushing Congress, or more recently, by a president ignoring Congress altogether.

The presidency itself needs to be knocked down from its perch. The only thing that will save the American republic is a renewed focus upon the Congress and cutting down the presidency to size. The founding fathers designed the legislature – Congress – to be the dominant branch of a very small federal government.

My additional thoughts? I copy them from an email that I sent to Tom Eddlem (links added and typos fixed, nacherly):

Tom, great, perceptive piece at LewRockwell.
However, you missed that officially it’s still “Washington’s Birthday”, a focus that would help further illustrate how the Unitary President/CIC role has run out of control. Washington – who could have had much more power and refused – would certainly shudder at the “liberties taken” by later presidents (double entendre intended).
Also, why no mention of the obvious need to breathe more life into our federal system? One way to limit the power of the President (and Congress & Supreme Court) is to restore it to the states.

Those now pushing for a Constitutional Convention – from Larry Lessig seeking to limit corporate influence on elections and on legislation, to those who want to ensure that only people (not corporations) have Constitutional rights [and fix the glaring legislative error by the Supreme Court in granting Constitutional “free speech” rights to corporation (which are THINGS, not people)], and to those seeking to limit Commerce Clause and restore the 9th and 10th Amendments – could use more cheerleaders!

Not criticism, but food for thought.

Speech and Sociopaths: Does it make sense to collapse, for Constitutional and legal purposes, the distinctions between human beings and corporate "persons"?

February 11th, 2010 No comments

Further to my preceding posts on corporate “free speech”, let me copy here for those interested some parts of a post by legal blogger/law prof Kimberly Hauser, and excerpts of the comment thread (emphasis added).

Says Hauser:

Justice Kennedy stated in the majority opinion: “If the First
Amendment has any force, it prohibits Congress from fining or jailing
citizens, or associations of citizens, for simply engaging in free
speech.”  Hold on, Emily Litella, since when is a corporation an
“association of citizens.”  The last time I checked, they were
state-chartered entities organized for the purpose of operating a
business, making a profit, and sheltering the organizers of the
business from personal liability.  I don’t think anyone would mistake
one for an “associations of citizens.” 
This decision is a travesty on
a number of levels, but as I discussed with my classes today,
corporations are not humansThomas Jefferson stated: “A bill of
rights is what the people are entitled to against
every government on earth, .  .  .”  These rights are human rights,
essential to our type of government.  They should not be cheapened by
their extension to corporations. 
(I do understand that corporations
have been given “rights” over the years by the Supreme Court, starting
with Santa Clara County v. Southern Pacific Railroad Company.  I just don’t agree with that line of decisions.  And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.)

From the comment thread:

… The root of the problem is that corporations are divorced from their
owners, who have been given a grant of limited liability for the risks
they shift to society, a cloak of anonymity by which they can behave
irresponsibility and seek favors from government, as well as unlimited
lives and deep pockets to make persistent efforts to corrupt.

on February 7, 2010 at 4:27 am | Lampie The Clown

… You mentioned the Santa Clara case as the start of
corporate personhood, without mentioning that it was sleight of hand
and not a real ruling on the subject. That’s exactly what the clerk was
counting on, and why it worked. Just thought I’d tell the rest of the

Actually, long before the Santa Clara case, the legal fiction of
corporations as people was established to include five legal rights—the
right to a common treasury or chest (including the right to own
property), the right to a corporate seal (i.e., the right to make and
sign contracts), the right to sue and be sued (to enforce contracts),
the right to hire agents (employees) and the right to make by-laws
(self-governance). They were given the rights they needed to do the
only thing they were designed to do. Conduct business.

They are amoral, profits and self interest as highest priority are
mandated by law to be part of their design, and they have limited
liability. This gives them the “personality” of a sociopath, and makes
them unsuited by design to using free speech responsibly.

With the current design, the only solution I can think of is to have
Asimov’s “three laws of robotics” made part of all corporate charters. ….


One commenter defended the Court with a straight face:

Corporation IS an “association of citizens”– those citizens are the
shareholders, i.e., owners of said corporation, who associate ever so
often (annual meetings, and other special occasions)

And as for objections to “corporate personhood”, as a person is
created by human parents and grows in a mother’s womb, so too is a
corporation. It is created by the (human) people who sign its original
charter, and the “womb” that allows the corporation to be ‘born’ is
that of the [government] agency that grants corporate charters. The difference
between the two different types of “births” are, in my opinion,

(Eventually, human embryos won’t have to be implanted into a person
in order to be born– so the “birth from a human” objection will cease
to have merit.)

As for Lampie’s argument that corporations have “the personality of
a ’sociopath’, (which) makes them unsuited by design to using free
speech responsibly”, this argument that discriminates against REAL
sociopaths (who as far as I know, STILL have their free speech rights
unencumbered by the SCOTUS decision or any comments you’d make to the
contrary). Sociopaths have rights, too!

My sense of humor is a bit underdeveloped, so at first I ignored the “sociopath” assertion and penned a straight response regarding the “association” assertion:

Shawn, several points:

while real people do associate to form a corporation, a corporation
remains a legal fiction created by governments, not the people
“associating” with it. It is legally separate and distinct from them and their
ownership right is considered property.

– Since a corporation is peoples’ property, those [people who own it] have
Constitutional rights to make sure their property is not unjustly or
without due process taken by government.

Other forms of property, like human slaves, were not considered
citizens and did not have Constitutional rights, including a right to
If slaves and inanimate things couldn’t/can’t speak for Constitutional
purposes, neither does it make any sense to argue that corporations – as
opposed to the people in them – can “speak” under the First Amendment.

– Further, it is crystal-clear that the Founding Fathers hated
corporations, and the ability of states to closely restrict them and to
impose conditions on the privileges and rights they received was
uncontested. It is a radical and profoundly non-originalistic step to
conclude, as the Roberts/Scalia court did, that the Founding Fathers
intended [in the Bill of Rights] to provide Constitutional speech rights to corporations.

Then, getting the joke about sociopaths, I couldn’t resist making a didactic point:

presumably your comment is wholly tongue-in-cheek, but let me note that
we hunt down and lock away (and even execute) sociopaths – thus
depriving them not merely of their speech, but of their ability to harm
us and even their existence in some cases.

If corporations are by nature sociopathic, then we by all means ought to do the same.

Note that we don’t need to lock up corporations; we can find various
ways to change their nature, control their bad behavior and limit their
ability to hurt us – the simplest way, of course, would be to simply
eliminate the limited liability of their shareholders, who would then
have every incentive to control what their [not-so-]little Frankensteins do.

Historic Times: A libertarian view on what liberal Larry Lessig has missed regarding our broken, corrupt government

February 10th, 2010 No comments

I won’t reprise the essay referred to in my preceding post, by which Lawrence Lessig presents his view of our current problems (much of which I agree with, including his conclusion that the “conservative” Roberts Supreme Court five-Justice bloc has acted with considerable activism in overturning centuries of law-making, in a manner that cannot be seen as consistent with any “originalist” interpretation of the Constitution, and that fruits and prospects of such activism are likely to frustrate further legislative attempts at fixes).

While I agree with Lessig’s call for a movement for the Several States to convene a Constitutional Convention, let me note that his analysis certainly has some serious short-comings and blind spots. In my view:

(1) Lessig completely
misses the real root of corruption, which is the grant by states to corporation owners of legal entity status in which owners had no liability for acts of the corporation (unless they specifically directed such acts), which grant was initially jealously guarded and carefully
The trickle from this hole in the dike became a flood,
as wealthy investors – eager to fund risky businesses that might give
them great profits while shifting risks to unconsenting third parties –
pressured state lawmakers for a snowballing liberalization – which saw the removal of limits on corporate purposes, corporate life, and corporate ability to own other corporations. As I have discussed repeatedly, the result of the multiplication of
activities, power and negative impacts of limited liability corporations (including their
successful pressuring of courts to eliminate common law tort doctrines that once strongly
protected the rights of property owners, in favor of a social utility balancing) has been a corresponding rise
in demands by citizens that law-makers act to constrain corporate activities, which in turn has produced a steadily escalation in the fight over the wheel of government.

(2) As a
result of this oversight, Lessig fails to consider (i) whether the
states can provide any check on corporate influence via their power to
condition the grant of incorporation/foreign corporation status
of a Constitutional Amendment eliminating corporate “personhood” for
civi rights purposes), instead suggesting that Congress might insist
that corporations engaged in interstate commerce be federally
incorporated and limited and (ii) whether states and federal
governments might regulate BETTER by easing the regulation of
partnerships, similar associations and corporation that have unlimited
, and whose owners have direct incentives to make sure
their executives do not engage the business in activities that generate
a significant risk of liaibilty to others

Lessig ignores that the reason corporations and labor pour money into buying
favor in Washington is because the federal government is too busy
selling favors
, and such investments pay off – particularly where a
single party gains monopoly control over the pork spigots. Lessig seems blind to considerations of federalism and limited
government, in favor of the premise that anything the people in Congress assembled want to do is okay
, as long wealthy corporations aren’t able to spend money on swaying the election of Congresscritters or buying votes, and if retired Congresscritters are not allowed to pasture too close to Congress..

(4)  As a result, Lessig
fails whether rent-seeking can be checked in part by restoring the once vital
check and balance provided by a vibrant role of states under the
originally envisioned federal system
. For the purposes of restoring power to states, various conservatives have recently been suggesting (i) a reinvigoration of the moribund Tenth Amendment,
which states that non-delegated powers are reserved to the states and
the people (the Supreme Court assisted the federal government in
killing this part of the Bill of Rights via expansive interpretations
of the authority of Congress under the general welfare clause, the
Commerce Clause and the 14th Amendment) and (ii) repeal the requirement of direct elections of Senators under the 17th Amendment, which is argued to have better enabled election pandering and influence by corporations and by national parties.

(5) Finally, Lessig misses that the real reason why the conservative block on the
Roberts Court struck down limits on direct corporate spending
political campaigns
(speech is wide open; direct donations to campaigns remain limited, but
will eventually fall on the corporations=persons doctrine) is that the Supreme Court had gradually allowed a two-part corporate speech structure to grow, with speech by “media” corporations being unlimited
(“freedom of the press” getting a separate mention in the First
Amendment), but political speech by other corporations being heavily
by Congress.

This very imbalanced structure was long resented
by the right, due to the perception that the dull, corporate,
conglomerate”MSM” had been “captured” by ideological enemies on the
left. Resentments began to run the other way with the establishment of
FOX and various corporate-funded “thinktank” groups by the right (which seems heavily invested in the idea #CorpSpeak without, apparently, making any examination of the premises that inanimate legal fictions much different from other human associations have rights to speak and influence to government), but the Roberts court felt that the influence of the “liberal” corporate media was still too strong, and decided simply to do its best to bring down the entire edifice of “media speech” versus #CorpSpeak distinctions.
The Roberts Court appears to have been too timid or incurious to
address the fundamental problems relating to speech by inanimate
institutions with far greater power and far less community check than
individuals, and so blinked at that opportunity, instead opting for
the far lesser but still extremely activist step of taking a demolition
ball to legal restrictions on competition in the flow of ideas from corporations

For the curious reader, I note again my preceding posts on  corporate “free speech”.

Those who want to get further stirred up might want to give another
listen to the new music video Anthem of what our Founding Fathers said
to King George:  It’s Too Late to Apologize.

Historic Times: Larry Lessig calls for Constitutional Convention to fix our corrupt, broken government

February 10th, 2010 No comments

Lessig doesn’ expressly say it, but we also need to rein in the “self-evident”, “unalienable rights” of all corporations

Actually, the last quip in the title are my words, not Lessig’s.

Last week, I noted Harvard law prof Lawrence Lessig’s earlier rebuttal to Glenn Greenwald regarding the Supreme Court’s decision in Citizens United to overthrow centuries of American law and jurisprudence on the rights of corporations and to enshrine corporations – legal fictions created by states and with powers very severely restricted at the time the Constitution was negotiated and ratified by Americans who had recently rebelled against British company-structured colonies and monopolies – as entitled to “speech” under the Bill of Rights on the same basis as men, and made the following observation:

As an aside, other, non-corporation forms of property that had real human bodies – such as slaves – were clearly NOT afforded Constitutional rights of any sort at the time of the Revolution/Bill of Rights; freed slaves as they became citizens and non-citizen Chinese coolies received Constitutional protection ONLY when the Fourteenth Amendment was expressly adopted to extend “privileges and immunities” to citizens and “due process” and “equal protection” to “persons”.

It was this reference to “persons” that smart/prevaricating lawyers for extremely influential railroad corporations were able to persuade a sympathetic Supreme Court – in unargued dicta by a Justice and recorded in headnotes by a Court’s Reporter who were both former railroad lawyers – to the effect that either (i) the 14th Amendment-adopting states had all intended to mean that it would be the federal government, and not the states creating corporations or giving them permission to do business in-state, who would determine whether domestic or out-of-state corporations received “equal” protection of state laws as did citizens or (ii) that such was the hidden purpose of some railroad-friendly drafters of the Amendment, and that such hidden purpose should govern in interpreting the Amendment.

Is there any surprise that most of the subsequent 14th amendment case law is about how monied corporations vigorously pursued and advanced their interests, while blacks and foreign residents continued to get short shrift (“separate but equal”) from unconcerned federal judges?

Now, the thoughtful and highly regarded  Lawrence Lessig has written a must-read article in The Nation; “How to Get Our Democracy Back; If You Want Change, You Have to Change Congress” (February 3; February 22 print edition).

I won’t reprise the essay here — I have a few comments on what I see as serious shortcomings and blind spots in Lessig’s analysis, but the draft of these grows long (like my aside above) – rent-seeking; corporations; religion; limited liability; Constitution, speech, states, federalism – so I will post them separately.

Lessig’s article is a key starting point and long enough, though I will advise/remind the curious reader of my preceding posts on  corporate “free speech”..

In calling for amendments to the Constitution, Lessig joins others that have come to the same conclusion years ago, such as “whacko”, snivelling local communities/enviro-commie fascists (snark!) seeking to control the impacts of large multinational corporations on local communities and resources, and some state-righters seeking to breathe some meaning back into the Tenth Amendment and the moribound body of federalism. More on this later.

Those who want to get further stirred up might want to give another listen to the new music video Anthem of what our Founding Fathers said to King George:  It’s Too Late to Apologize.

#PoliticsInc: More on WHY #CorpSpeak is radical, nonsensical & dangerous judicial activism

February 5th, 2010 No comments

Below is another handy summary of my Constitutional arguments against #CorpSpeak and #politicsInc (Twiter hashtags, for those of you who may be unfamiliar with them), copied from another comment thread at Volokh Conspiracy.

Readers should not forget that it is the state grant of limited liability that – as I have discussed in many posts – lies at the root of our burgeoning fights over government and public distrust (extending even to my quaint pet enviro concerns), Corporations are divorced from their owners, who have been given a grant of limited liability for the risks they shift to society, a cloak of anonymity by which they can behave irresponsibility (with little concerns greater than what provides the largest profits and bonuses) and can seek favors from government, as well as unlimited lives and deep pockets to make persistent efforts to corrupt.

Yes, I may be repeating myself, but core libertarian concerns are at stake. Here are my comments, with a few slight tweaks:

TokyoTom says:

I missed this conversation, while continuing to argue on Jon‘s
initial thread that CU is radical, nonsensical and dangerous judicial

Let me note a few thoughts:

– the First Amendment was not amended to extend “speech” from humans to nonhumans of any kind;

– as corporations are creatures of the state — with special benefits
extended to shareholders in them that are unavailable otherwise via
contract or common law — the state has every ability to limit the
powers of corporations;

– in the same way, governments routinely condition extensions of
benefits on acceptance of limits on speech; prominent examples include gag rules on churches and other nonprofits, and on
doctors in hospitals that receive federal funding;

– the equation of corporations — which have a legal status distinct
from their owners — with individuals and other forms of voluntary
organizations that retain unlimited liability is invidious, and blurs
the very real distinctions between them. When corporations “speak”, WHO
is talking? (The growth of corporations and the lack of shareholder
liability has led to a continued attenuation of SH control, for the
benefit of managers.)

– if corporations were held to have NO Constitutional speech rights,
the real human beings who work at, manage or own them would retain all
of their Const rights of speech and redress — but at their own direct
expense. All that would be lost would be the ability of some to mask
their identity, to claim that they represent all, and to pay for their
speech by picking the pockets others (a point one wishes Kagan had
better understood and made).


Alice in Free Speech Wonderland: "Personal Corporatehood" as response to latest victory of corporations

February 3rd, 2010 No comments

Further to my preceding posts on corporations and free speech, I invite others to read this semi-serious piece in Truthout that examines the implications of the United Citizens vs. FEC decision:

Personal Corporatehood: Coping With the Reason Divided of Citizens United

The author, Randall Amster suggests that in the wake of the latest Supreme Court case, ALL citizens ought to abandon personal responsibility and liability and incorporate themselves. Amster is a J.D., Ph.D., teaches peace studies at Prescott College, and is executive director of the Peace & Justice Studies

I quote liberally (emphasis added):

There’s great consternation brewing over the recent Supreme Court
decision that cements and extends the misbegotten logic of “corporate
personhood,” and rightly so. Surely, one of the most farcical and
tortuous doctrines ever established in our system of jurisprudence,
this conflated concept has drawn the ire of (small-d) democrats at
least as far back as Thomas Jefferson, who wrote in 1816, “I hope we
shall … crush in its birth the aristocracy of our moneyed
corporations which dare already to challenge our government in a trial
of strength, and bid defiance to the laws of our country.” …

Still, the notion of “corporate personhood” remains
something of a misnomer. In our system, as now expanded by the Supreme
Court, corporations actually enjoy more rights than individuals do in
many ways. To wit: liability shields, rights of transfer, political
access and influence, subsidies, laissez-faire regulation, freedom of
movement, self-determination, self-governance, tax breaks etc. In
particular, when it comes to political speech, corporations are now
essentially unfettered in their freedom, something that we mere mortals
have yet to fully secure.
Consider the language of the court’s recent
ruling: “If the First Amendment has any force, it prohibits Congress
from fining or jailing citizens, or associations of citizens, for
simply engaging in political speech.” …

President Obama called the decision “a major victory
for big oil, Wall Street banks, health insurance companies and the
other powerful interests that marshal their power every day in
Washington to drown out the voices of everyday Americans.” What wasn’t
immediately clear is whether he intended this as a lamentation or a
mere observation of political reality. Either way, he was in essence
stating a working fact, namely that whatever shards of democracy and
the “will of the people” had existed up to now, the pretense is all but
gone and corporations will openly run the show. I suppose this has the
virtue, in any event, of being a more honest representation of how
things actually transpire.
The question is where things will go now
that this critical threshold has been crossed.

Most likely, this ruling is a harbinger of further
extensions of corporate rights and powers. A broad mandate and a
willing court will impel corporations to take on even more of the
qualities ordinarily associated with individuals
, as noted in the
SCOTUS blog’s analysis of the decision: “It is not too much to expect
that lawyers for corporate America may well be looking to explore the
outer possibilities of their clients’ ‘personhood’ and new-found
constitutional equality.”
[link added] There previously had existed a founding
principle that “natural persons” and “artificial persons” were separate
and distinct entities under the law, with the former holding historical
priority in our constitutional framework. By now, that distinction has
been blurred to such an extent as to be effectively meaningless,
evidenced by a 2008 Federal District Court ruling in which it was
proclaimed by the judge that “Blackwater is a person….”

If Blackwater is a person, I want out. Indeed, this
suggests a strategy that “natural persons” might take in embracing the
implications of this unrestricted corporate world. If a corporation can
become a person, then by implication a person can become a corporation.
I am thus advocating a new doctrine of “personal corporatehood,” in
which we should all avail ourselves of the enhanced rights granted to
“artificial persons” in our system.
People should begin taking steps to
incorporate themselves immediately. …

Just imagine the benefits. When someone asks you for
a favor, you can off-puttingly reply, “I have to check with my board of
directors at next month’s meeting; someone will get back to you then.”
When you want to meet with your Congressperson on matters you feel
strongly about, the receptionist will announce, “Senator, a corporation
is here to see you,” which will likely get you instant access. If you
go public, you can sell shares in yourself and make a tidy sum (just be
sure to retain a controlling interest). If someone irritates you or has
something you want, you can likely get the Marines sent in to deal with
them. You can avoid having to appear personally at court hearings,
sending your hired-gun attorney instead. And you can’t be thrown in
jail, since a corporation itself cannot be imprisoned. See?

At the end of the day, we “natural persons” can try
and fight city hall on this one, or we can get in the game and embrace
the benefits of artificiality. In a world of surfaces, where
profiteering masks as politics and gerrymandering as justice, this may
well be the best of all strategies for survival.

Amster is pretty much right in his discussion of the now rather superior rights that corporations have over individuals. While we can`t really abandon our individual identities, by incorporating we can shield assets by limiting liability and maybe, even double or triple our vote, if courts follow their logic and acknowledge that voting is simply a form of speech.

Or we could find ways to step back from the Alice in Wonderland nonsense that creeping corporatism and “conservative” Supreme Court justices have led us to.