Food for Thought

For any of you with e-readers of some kind (insert unsolicited plug for B&N's Nook here), you should go peruse the archives at Project Gutenberg. It has all sorts of wonderful works that have made their way into the public domain of copyright. Works such as St. Thomas Aquinas's Summa Theologica and Sir Arthur Conan Doyle's The White Company. It also has, to my delight, a number of works by G.K. Chesterton. This gives me the opportunity to read Orthodoxy and Eugenics and Other Evils. The latter piece starts with the following paragraph:

The wisest thing in the world is to cry out before you are hurt. It is no good to cry out after you are hurt; especially after you are mortally hurt. People talk about the impatience of the populace; but sound historians know that most tyrannies have been possible because men moved too late. It is often essential to resist tyranny before it exists. It is no answer to say, with a distant optimism, that the scheme is only in the air. A blow from a hatchet can only be parried while it is in the air.

That opening paragraph illustrates, far better than I could, why arguments consisting of what may be characterized as "scare tactics" have some merit. It is a statement that is at the core of my reasons for arguing for limitations of government, and why I typically am not in favor of extensions of government power.

I know that I have friends who simply cannot understand my willingness to "prevent people from receiving adequate medical care because they can't afford it" and other such stances to curb social welfare projects. I believe those friends have the best of intentions. Nor am I unsympathetic to the needs of the, for lack of a better word, needy. I simply think that our government is one of strictly confined powers and those bounds should not be exceeded, no matter how good the intentions. (Good Intentions: sponsored by Hell Paving & Asphalt Co.)

Perhaps I could have more fully formed this post before writing, but if I tried to do that, I never would get anything done. That said, as I read more of Eugenics, I will pass on more political/ethical thoughts from the Chesterton/Cramer distillation project. (Ha, evidence of the supreme arrogance of a law student to make that comparison.)

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.

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.

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?

ITAR

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.

Exercising Freedoms

Not to be confused with "Exorcising Freedoms." Sorry, it is Halloween time, so a slight reference was necessary. (No matter how bad the pun.)

Two things combined to bring you, my faithful readers, this post. First, I had the pleasure of attending a symposium on the First Amendment right to freedom of speech last weekend at the University of Virginia Law School. The symposium featured some of the great legal minds, such as Dean Post of Yale Law School, Fred Schauer of UVA Law, Vincent Blasi from Columbia Law, and Eugene Volokh of UCLA Law. The highlight of the day was the keynote speech delivered by Chief Judge Alex Kozinski of the 9th Circuit.

Judge Kozinski revealed to the crowd of students and professors a little secret about the freedom of speech. In the internet age, he believes, speech protects itself. He spoke about the viral nature of information on the internet, how attempts to enforce copyrights and remove web content that infringes on individual privacy sparks a backlash in the throngs of largely anonymous readers leading to the wider dissemination of information than the original act of passively allowing websites to host the content ever would have.

Obviously, Kozinski still believes in the validity of constitutional protections afforded by the First Amendment, but his point is that constitutional restrictions on the written word hosted on the nebulous world wide web of computers are fruitless.

In a(n unintentional) corollary to that speech, Hack a Day just posted an interesting hacker backlash to courts attempts at regulating internet peer to peer file sharing.

http://hackaday.com/2010/10/30/this-is-a-peer-to-peer-filesharing-network/

Hard wired file share ports. This is the sort of thing that Kozinski meant about the self protecting nature of the modern methods of "speech."

Alles Ist Wunderbar

I got an article in my email today that I found remarkable. At first blush, the idea of denying the success of multiculturalism seems alien to us as Americans. Even in light of Teddy Roosevelt's famous quote denouncing the place of "hyphenated Americanism," Americans seem to believe in multiculturalism as part and parcel of what being American actually means as a culture. We cling to the idea of America as a melting-pot of other cultures and pride ourselves in our inclusiveness. This view of multiculturalism reflects the formation of America and our colonial heritage. This is not the view of multiculturalism held in Europe.

I mention this as a prelude to drawing your attention to the article I mentioned already. Germany has declared its multicultural efforts a failure and is, surprisingly, becoming vocal in its efforts to promote a German national identity.

This excerpt from Germany and the Failure of Multiculturalism is republished with permission of STRATFOR.

Anyone could become an American, so long as they accepted the language and dominant culture of the nation. This left a lot of room for uniqueness, but some values had to be shared. Citizenship became a legal concept. It required a process, an oath and shared values. Nationality could be acquired; it had a price.

To be French, Polish or Greek meant not only that you learned their respective language or adopted their values — it meant that you were French, Polish or Greek because your parents were, as were their parents. It meant a shared history of suffering and triumph. One couldn’t acquire that.

For the Europeans, multiculturalism was not the liberal and humane respect for other cultures that it pretended to be. It was a way to deal with the reality that a large pool of migrants had been invited as workers into the country. The offer of multiculturalism was a grand bargain meant to lock in migrant loyalty in exchange for allowing them to keep their culture — and to protect European culture from foreign influences by sequestering the immigrants.

Read more: Germany and the Failure of Multiculturalism | STRATFOR

Oh, by the way, I hope to post a little more frequently again. Then again, law school may leave me with little in the way of extra time.