Monday, December 12, 2011

The Corporations Complaint

I have a final in a couple of days on business law, so, I'm posting here. Makes sense, right?

I've seen a number of people post things on Facebook regarding companies and corporations, etc. Most of these friends are OWS proponents and rather intelligent people; people for whom I generally have a good deal of respect. But the posts tend toward - how to say this politely - the naive. The two that I can think of are the photo that has circulated stating "I will believe corporations are people when Texas executes one" and the sentiment that, if a corporation is legally a person, the corporation should face criminal penalties for its acts. The second is in the context of a West Virginia mining company and the death of 29 miners.

My response is twofold: First, how can you criminally punish a company? Jail it? And second, stating that a company is legally a person is not analogous to the way a human being is a legal person. Saying that it is the same shows a gross misunderstanding of the law, at best, or deliberate manipulation of the language, at worst.

Now, to the first point. Saying that a corporation even can be criminally punished is laughable. There are several reasons I say this. First, the corporate officers are the ones who took any illegal action. Sure, they took the action on behalf of the company and in the role as corporate agents, but the corporation is legally only able to take lawful actions. So, any action by a corporate agent that is unlawful is the unlawful (and unauthorized) act of that specific person. That just means that, while you may not be able to hold the company criminally liable, there is no reason that you can't criminally prosecute the corporate officers. Second, what punishment can be assessed to a company? You can't throw it in jail and you can't throw all the employees in jail without it being a gross violation of civil rights. All you can really do is fine the company, and that is a civil punishment, not criminal.

And the second point. The legal fiction of corporate personhood. I know a number of people who would be happy to do away with that particular fiction. I say, "That's a really bad idea." There is a business form that does dispense with the corporate person, the partnership (ok, and the sole proprietorship... but close enough for government work). Without that fiction, the partners (or the owner) are personally liable for all business debts.

Ok, so you might say "Personal liability is a good thing. It'll keep those nasty business owners in line." Umm, you do realize that "business owner" would mean anyone who has invested in a company, right? So those 401k accounts, IRAs, any money market savings account you have mean you have money invested in companies. If you take away the limited liability of the corporate form, remember the form that has the legal fiction of personhood, then you are a partner in that company. So, that company does something wrong and you could be liable for the entire debt. Just for being smart about your retirement funds.

Wait, what? These evil business structures that allow companies to not be criminally liable are the same ones that allow our economy to thrive by reducing the risk of investing. So, go ahead, take away the legal corporate protections. Just be prepared to not have retirement because all investments are too risky to participate in due to your personal liability.

Monday, October 24, 2011

Complete Non Sequitur

This has nothing to do with law, politics, or philosophical thought in any way. This is about movie protagonists.

As some of you know, I enjoy really bad action movies, also other really bad movies in other genres. But, I had the time to (re)watch Man on Fire the other day. It made me wonder: who are the movie protagonists I think would be the worst to have mad at me? So, in no particular order, here are my top five.

John Creasy, Man on Fire - Rayburn (Christopher Walken) says of Creasy, "A man can be an artist at anything. Food, whatever. It depends on how good at it he is. Creasy's art is death, and he's about to paint his masterpiece." That sums it up. Do not kidnap some one a professional, ex-special forces, bodyguard cares about. Simple.

James Bond, Quantum of Solace - Of all the Bonds, Daniel Craig comes closest to how I envision the Fleming original. Resourceful, tenacious, and downright vindictive, even MI-6 can't stop him. Umm, I'll be hiding over here.

Bryan Mills,  Taken - Combine the two descriptions above, and you get Bryan Mills, minus the massive MI-6 budget. Anyone who will shoot a friend's wife to get information is not someone easily deterred.

Léon, Léon - A professional killer who takes in his orphaned neighbor; what's not to like? Teaching the kid to be just as competent as an assassin as he is... that's a little scary.

Rooster Cogburn, True Grit - John Wayne. Enough said.

Honorable mention goes out to the following: Most Marvel superheroes, Batman, and Humphrey Bogart - in anything.

Monday, April 4, 2011

A Little Comparative Legal History

This afternoon I had the pleasure of attending talks by two German Academic Exchange Service (DAAD) Fellows. The first was a very engaging discussion about theories of criminal punishment and the use of preventative detention in the German penal system. The second was an historical perspective on the development of abortion law, with a comparison between the US development leading up to and surrounding Roe v. Wade and German jurisprudence around the same time.

The speaker, Felix Lange, remarked that it was a striking contrast in the jurisprudence of otherwise similar Western democracies. Obviously, in Roe the Supreme Court ruled that, as a matter of right to privacy, women in America have the right to an abortion. The German Constitutional Court took a different view, it ruled that the right to life in the German constitution extended to protect the unborn.

Why the dichotomy? The proposal that the Courts were merely responding to the social conscience of the people was held up as a major reason for the opposing rulings. The German people still had the memory of the policies and horrors of the National Socialist movement fresh in the collective conscience. The desire to distance themselves from that history may have influenced the Court toward a ruling that came down firmly on the side making a clear statement for the sanctity of life.

An interesting proposition, don't you think?

Saturday, January 29, 2011


So, this post really has no point other than just to point out how complex international business can get and to serve as my outlet for random thoughts involving some of my work. Enjoy.

If any of you know what ITAR, then you probably know how much of a mess the regulations can become. For those of you who don't know, ITAR is the abbreviation for International Traffic in Arms Regulations. The name of it is pretty self-explanatory and I doubt I need to go into detail on the various aspects of it for you to get the picture. Basically, it is a regulatory system for controlling the manufacture and distribution, internationally, of munitions and technology with predominately military applications. It regulates who may develop, export (and to whom), and who may even oversee the work of any item that falls within its parameters. Overall, it is not a regulation that I have much to complain about, other than it may cause awkward work environments, but that's another story.

Why am I wondering about this? I was working on a short paper involving regulatory reform and its impact on a corporation when I looked over the Joint Strike Fighter (JSF) program as a quick case study. I got to wondering about how much paperwork and hassle ITAR can cause when a civilian project for the military is being jointly worked on by international corporations and for multiple nations' militaries. The JSF program is certainly in that camp. The list of countries involved is small, but diverse, and various components are being developed by international teams (e.g. the engine is a joint project between General Electric and Rolls Royce).

To keep this in the terms of looking at international relations, has anyone else taken a look at the Chinese development of a 5th Generation fighter? Take a look at a variety of articles and posts about the Chengdu J-20.