Updating my earlier post on Robert F Kennedy Jr.'s absurd proposal to impose the corporate death penalty on companies that disagree with his extreme climate views, Keith Paul Bishop examines the relevant California principles and concludes:
I agree with the professor, none of these authorizes the killing of a corporation merely because it has put its profit motive above the “general welfare”.
Meanwhile, Andrew Stuttaford argues that:
Kennedy also argues that “corporations which deliberately, purposefully, maliciously and systematically sponsor climate lies should be given the death penalty. This can be accomplished through an existing legal proceeding known as “charter revocation.” State Attorneys General can invoke this remedy whenever corporations put their profit-making before the “public welfare.”
As a precedent, Kennedy cites this:
In 1998, New York State’s Republican Attorney General, Dennis Vacco successfully invoked the “corporate death penalty” to revoke the charters of two non-profit tax-exempt tobacco industry front groups, The Tobacco Institute and the Council for Tobacco Research (CTR)… Attorney General Vacco seized their assets and distributed them to public institutions.
Hmmm, whatever you think about the rights and wrongs of that particular decision, it’s worth noting that it was directed against groups with charitable status, a status that rests on a presumption of some sort of public good. What Kennedy is contemplating is action against ‘regular’ corporations (such as ExxonMobil and Koch Industries) that support a political and scientific agenda with which he disagrees, corporations that, incidentally, he believes to be “enemies of mankind”. That hysterical and demagogic description tells you everything that you need to know. Kennedy’s is the language of a tyrant-in-the-making, prowling around America’s constitutional protections and looking for a way in.
We should, I suppose, thank Kennedy for highlighting the fact that State attorneys-general have this power, and we should take steps to ensure—by law—that it cannot be abused by those who cannot stomach the awkwardness of free speech.
Stuttaford concludes by bashing Bobby's hyperbolic attacks on vaccine scientists.
Steven Hayward at Powerline does a nice job of summarizing the teapot tempest:
Robert F. “Little Bobby” Kennedy Jr is trying to backtrack from his latest foam-flecked calls for jailing climate skeptics. He’s taken the pages of EcoWatch.com (what—was Salon.com out of pixels that day?) to affect a denialist pose (heh) of his own previous very clear words:
Hysterics at the right wing think tanks and their acolytes at The Washington Times, talk radio and the blogosphere, are foaming in apoplexy because I supposedly suggested that “all climate deniers should be jailed.” . . . Of course I never said that. I support the First Amendment which makes room for any citizen to, even knowingly, spew far more vile lies without legal consequence.
Nice try. But Little Bobby essentially doubles down on stupid right away:
I do, however, believe that corporations which deliberately, purposefully, maliciously and systematically sponsor climate lies should be given the death penalty. This can be accomplished through an existing legal proceeding known as “charter revocation.” State Attorneys General can invoke this remedy whenever corporations put their profit-making before the “public welfare.”
Not content with delivering lethal injections to corporations, he thinks the idea should extend to non-profit advocacy organizations, too:
An attorney general with particularly potent glands could revoke the charters not just oil industry surrogates like AEI and CEI. . .
What was that about the First Amendment again, Little Bobby? Also, I wonder how Little Bobby would react if a state attorney general turned the same doctrine on his anti-vaccine advocacy, which has immediate real world consequences for children whose stupid parents follow his advice.
Turns out Little Bobby is skilled at backtracking, because he has to do it so much. Just Google “RFK Jr backtracking,” and sit back and enjoy the results....
Let's focus on Bobby's proposal to kill corporations via "charter revocation." First, in almost all states, there is no procedure called "charter revocation."
In Model Business Corporation Act states, there are three ways in which a charter may be nullified. First, voluntary dissolution approved by the shareholders and the board of directors, which is obviously not relevant here.
Second, there is a process of administrative dissolution, which may be carried out by the secretary of state--not Bobby's attorney general--but only for a very limited set of reasons none of which remotely relate to climate denial:
§ 14.20 Grounds for Administrative Dissolution. The secretary of state may commence a proceeding under section 14.21 to administratively dissolve a corporation if:
(1) the corporation does not pay within 60 days after they are due any franchise taxes or penalties imposed by this Act or other law;
(2) the corporation does not deliver its annual report to the secretary of state within 60 days after it is due;
(3) the corporation is without a registered agent or registered office in this state for 60 days or more;
(4) the corporation does not notify the secretary of state within 60 days that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued; or
(5) the corporation’s period of duration stated in its articles of incorporation expires.
Do you see anything in there about forced dissolution of corporations that "put their profit-making before the 'public welfare.'" Nope? Me neither.
Finally, there is a process by which the state attorney general can request judicial dissolution of a corporation, but only on very limited grounds:
§ 14.30 Grounds for Judicial Dissolution
(a) The [name or describe court or courts] may dissolve a corporation:
(1) in a proceeding by the attorney general if it is established that:
(i) the corporation obtained its articles of incorporation through fraud; or
(ii) the corporation has continued to exceed or abuse the authority conferred upon it by law ....
The first prong is obviously irrelevant. So for Bobby's proposal to execute corporations to have any legal validity, you have to believe that climate denial constitutes "exceed[ing] or abus[ing] the authority conferred upon it by law."
Bobby apparently believes that exercising free speech rights constitutes such an abuse, but despite his "support" for the First Amendment (for which I suppose we should all be grateful), presumably his education omitted much of the law of free speech under the First Amendment. If corporations have free speech rights (as they do), after all, speaking on issues of public policy must be covered and protected by the First Amendment.
Bobby also apparently believes that "profit-making before the 'public welfare,'" whatever the heck that welfare may be (apparently he gets to define what constitutes such welfare), constitutes "exceed[ing] or abus[ing] the authority conferred upon it by law." Wrong again.
What is the authority conferred upon a corporation by law? Very simply, to make money within the bounds of law:
A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end. The discretion of directors is to be exercised in the choice of means to attain that end, and does not extend to a change in the end itself, to the reduction of profits, or to the nondistribution of profits among stockholders in order to devote them to other purposes. ...
As we have pointed out, [...] it is not within the lawful powers of a board of directors to shape and conduct the affairs of a corporation for the merely incidental benefit of shareholders and for the primary purpose of benefiting others, and no one will contend that, if the avowed purpose of the defendant directors was to sacrifice the interests of shareholders, it would not be the duty of the courts to interfere.
In other words, Bobby has it exactly backwards. It would be an effort by "directors was to sacrifice the interests of shareholders" that truly would constitute "exceed[ing] or abus[ing] the authority conferred upon it by law ...."
Look, I'm not a climate denialist. Climate change is happening, albeit to debatable extents, and human activity is relevant. But stupid arguments against climate denialists don't help. And, once again, Bobby has been very, very stupid.
Update: Bobby opines in his article that:
New York, for example, prescribes corporate death whenever a company fails to “serve the common good” and “to cause no harm.”
I have searched the relevant New York statute and case databases on Westlaw for those phrases, as well as the secondary literature, and came up with nothing relevant. So I call BS. I think he made it up or got it from somebody who made it up.
There is a significant lobby for limiting corporate political contributions and requiring disclosures of any contributions (seemingly not matter how small). Part of the premise for this campaign is that corporate political contributions are bad for investors. Well, here's an interesting fact from a recent speech by SEC Commissioner Daniel Gallagher:
... a portfolio invested in companies with the largest lobbying expenditures would have doubled the performance of the S&P 500 over the past year. See Motif Investing, “Kings of K Street” at https://www.motifinvesting.com/motifs/kings-of-k-street. According to this site, from September 2013 to August 2014, this portfolio returned approximately 35%, while the S&P 500 returned approximately 17%.
So if corporate political contributions pay off for investors, why oppose them? Maybe because the opponents of corporate political contributions also oppose policies that are good for investors?
The webcast is open to everyone. Webcasts to the various addresses and panels can be accessed directly from the registration page: http://www.fed-soc.org/events/detail/second-annual-executive-branch-review-conference
or the Federalist Society YouTube channel: http://www.youtube.com/user/TheFederalistSociety
Surveying the fall in support for the governments of Barack Obama, New York City's progressive Mayor Bill de Blasio and France's Socialist President François Hollande, a diagnosis of the current crisis begins to emerge: The political left can win elections but it's unable to govern. ...
Rather than resolve the complexities of public policy in the world we inhabit, the left's default is to simply acquire power, then cram down what they want to do with one-party votes or by fiat, figuring they can muddle through the wreckage later. Thus the ObamaCare mandates. Thus candidate de Blasio's determination, cheered on by the city's left-wing establishment, to jam all its kids through an antique public-school system. The ObamaCare mandates are a mess, and the war on charter schools is an embarrassment.
Making the unworkable work by executive decree or court-ordered obedience is one way to rule, and maybe they like it that way. But it isn't governing.
Business Insider is very pleased to announce former New York City mayoral candidate and Congressman Anthony Weiner will be contributing a new monthly column to our politics page.
The new column, which will be titled "Weiner!," will run on the last Friday of each month beginning this week.
I had to check and make sure that it wasn't April 1st, but apparently banned from the securities amrkets for life securities fraudster turned "journalist" henry Blodget decided to give penis boy a job.
The Economist is justly skeptical of the democratic bona fides of Hindu nationalist Narendra Modi, who heads the state of Gujurat and is likely to be the next Prime Minister of India:
Mr Modi has devoted much of his life to the pursuit of an extreme form of Hindu nationalism. His state party included no Muslim candidates in last year’s election and he has refused to wear a Muslim skull-cap. Other BJP leaders have worn them. He failed to condemn riots in Uttar Pradesh in September in which most of the victims were Muslim.
All sins of omission perhaps, but in India symbols like skull-caps matter—as Mr Modi well knows. India’s great strength is its inclusiveness. In the next five months Mr Modi needs to show that his idea of a pure India is no longer a wholly Hindu one. How he does that is his own affair, but an unambiguous public demonstration that he abhors violence and discrimination against Muslims is a bare minimum. Otherwise, this newspaper will not back him.
Predictably, however, The Economist ignores oppression of Christians by Hindu nationalists in Gujurat (and elsewhere in India):
The Christians of Gujarat raise their aim and openly protest against the government of Narendra Modi, Prime Minister of the state of Gujarat (western India) and leader of the Hindu nationalist "Bharatiya Janata Party" (BJP). The party and the radical movements that it supports are suspected of being directly responsible for recent anti-Christian incidents in the state, such as the desecration of a Christian cemetery in Ahmedabad (see Fides 01/02/2012). (Link)
Christians in the western state of Gujarat, India, are worried about the recent enactment of an anti-conversion law that threatens to imprison missionaries if they are convicted of “forcibly converting” someone to Christianity. (Link)
The government of Gujarat "has conveniently forgotten that Article 25 of the Constitutions guarantees freedom of worship, and it does everything in its power to continue, and to justify, ruthless persecution against Christians and Muslims living in the state". (Link)
This is not to excuse Modi's persecution of Muslims. Far from it. My point is simply that The Economist only seems to care about religious persecution when it doesn't involve Christians.
As it has done in the past, [the Obama administration] late yesterday took the opportunity to include in a late afternoon news dump on a day when many people are already beginning to tune out in preparation for Christmas the news that they were creating yet another exception to the requirements of the Affordable Care Act:
WASHINGTON — Millions of people facing the cancellation of health insurance policies will be allowed to buy catastrophic coverage and will be exempt from penalties if they go without insurance next year, the White House said Thursday night. ...
There are provisions in the PPACA that permit the President, acting through the HHS Secretary to create exemptions based on “hardship,” but it’s unclear that that the circumstances at play here — people who have lost their health insurance because of the PPACA’s minimum coverage rules — is anything close to what Congress had in mind when it created the “hardship rule. Indeed, it seems clear from the language in the statute that the exemption for “hardship” is meant to be something that people who having to making application for eligibility based on individual circumstances, not something that applies to a large group of people because of the requirements of the law. In that respect, Seth Chandler wonders what Obamacare defenders will think about all this, especially as it applies to broader principles like the Rule of Law:
I look forward to hearing from others, and in particular from people with a commitment to the rule of law who previously have supported the ideas behind the ACA, but it is not clear to me that any of the pre-existing bases contained in this regulation for claiming a hardship exemption would apply to having a predicted cancellation in one’s individual insurance policy. ...
Do yourself a favor and go read the whole thing.
Cleveland Plain Dealer discusses the argument advanced by by friend and fantasy football mate Jonathan Adler:
If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.
Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law. ...
Adler, a Case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.
But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges. ...
Without the tax subsidies, the ACA cannot work. Its central tenet is insuring nearly every American, but health insurance would be too expensive for many people without the subsidies.
Adler, commenting via Twitter this afternoon, said that "our argument is that the law should be enforced as written." He also tweeted, "It's the IRS and Administration that are trying to 'overturn' the law with creative re-interpretations."
Three years and 9,000 pages of legislation later, our economy has yet to see any benefits from the passing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank). ...
So how exactly did this massive bill come to be law? Robert Kaiser, a 50-year veteran of the Washington Post, has the answer in his new book: An Act of Congress. The problem, he says, is Washington.
Although some have viewed Kaiser’s reporting as congratulating Washington for “doing something,” in fact, Kaiser's good reporting paints a picture of the Dodd-Frank legislation as a prime example of what happens when you mix an economic crisis with political ambition and lobby power: bad policy. The mixture of what he describes as “politics-obsessed mediocrities who know little about the policy they're purportedly crafting and voting on,” and outcry for action in Washington following the subprime mortgage crisis, created the perfect storm for Dodd-Frank to blossom; an immaculate “policy window” ripe for Congress to seize upon.
Kaiser is also not the first in his field to insinuate such a notion. In 2010, the same year Dodd-Frank was enacted, Professor Stephen Bainbridge (UCLA School of Law), suggested a similar hypothesis. In his research he compared Dodd-Frank to the Sarbanes Oxley Act of 2002, which was quickly enacted following the burst of the IT crisis in 1997.
Bainbridge defines both Dodd-Frank and Sarbanes Oxley as “Bubble Acts,” characterized by the following attributes: (1) enacted in response to a major negative economic event; (2) enacted in a crisis environment; (3) a response to a populist backlash against corporations and/or markets; (4) adopted at the federal rather than state level; (5) transfers power from the states to the federal government; (6) interest groups that are strong at the federal level but weak at the Delaware [corporation mecca] level support it; (7) typically, not a novel proposal, but rather a longstanding agenda item of some powerful interest group; (8) and the empirical evidence cited in support of the proposal is, at best, mixed and often shows the proposal to be unwise.
The academic work of Stephen Bainbridge and the compelling new book by Robert Kaiser make an unwittingly strong case for the repeal of Dodd-Frank and a drastic change in Washington’s legislative process away from “not letting a crises go to waste,” and moving toward the deliberative process of what used to be known as “regular order.” Voters, consumers, and the millions of Americans seeking jobs should demand that Washington scrap the massive Dodd-Frank regulatory scheme before it does any more damage to the recovery, and instead focus on the real problems facing the American economy.
If that's of interest, you may wish to consider the book in which I elaborate on the idea of quack corporate governance, Corporate Governance after the Financial Crisis:
The first decade of the new millennium was bookended by two major economic crises. The bursting of the dotcom bubble and the extended bear market of 2000 to 2002 prompted Congress to pass the Sarbanes-Oxley Act, which was directed at core aspects of corporate governance. At the end of the decade came the bursting of the housing bubble, followed by a severe credit crunch, and the worst economic downturn in decades. In response, Congress passed the Dodd-Frank Act, which changed vast swathes of financial regulation. Among these changes were a number of significant corporate governance reforms.
Corporate Governance after the Financial Crisis asks two questions about these changes. First, are they a good idea that will improve corporate governance? Second, what do they tell us about the relative merits of the federal government and the states as sources of corporate governance regulation? Traditionally, corporate law was the province of the states. Today, however, the federal government is increasingly engaged in corporate governance regulation. The changes examined in this work provide a series of case studies in which to explore the question of whether federalization will lead to better outcomes. The author analyzes these changes in the context of corporate governance, executive compensation, corporate fraud and disclosure, shareholder activism, corporate democracy, and declining US capital market competitiveness.
And you probably should also read Frank Buckley's The American Illness: Essays on the Rule of Law:
This provocative book brings together twenty-plus contributors from the fields of law, economics, and international relations to look at whether the U.S. legal system is contributing to the country’s long postwar decline. The book provides a comprehensive overview of the interactions between economics and the law—in such areas as corruption, business regulation, and federalism—and explains how our system works differently from the one in most countries, with contradictory and hard to understand business regulations, tort laws that vary from state to state, and surprising judicial interpretations of clearly written contracts. This imposes far heavier litigation costs on American companies and hampers economic growth.
There were new questions Saturday night concerning if anyone in the White House was aware of the IRS' targeting of conservative groups.
Inspector General Russell George said he informed a deputy at the Treasury Department in June of 2012 about the probe into the IRS.
The Treasury Department confirmed the timeline but said they did not know the details of the investigation until last week.
It's the first evidence that someone within the Obama administration knew about the practice during the presidential campaign.
From PPP, with my thoughts interspersed in blue.
On our national poll this week we took the opportunity to poll 20 widespread and/or infamous conspiracy theories. Many of these theories are well known to the public, others perhaps to just the darker corners of the internet. Here’s what we found:
37% of voters believe global warming is a hoax, 51% do not. Republicans say global warming is a hoax by a 58-25 margin, Democrats disagree 11-77, and Independents are more split at 41-51. 61% of Romney voters believe global warming is a hoax
Hoax? No. But the question is how to address it without tanking the economy.
6% of voters believe Osama bin Laden is still alive
He'd be on TV, people
21% of voters say a UFO crashed in Roswell, NM in 1947 and the US government covered it up. More Romney voters (27%) than Obama voters (16%) believe in a UFO coverup
The truth is out there.
28% of voters believe secretive power elite with a globalist agenda is conspiring to eventually rule the world through an authoritarian world government, or New World Order. A plurality of Romney voters (38%) believe in the New World Order compared to 35% who don’t
Where do I go to sign up as a member of the NWO?
28% of voters believe Saddam Hussein was involved in the 9/11 attacks. 36% of Romney voters believe Saddam Hussein was involved in 9/11, 41% do not
20% of voters believe there is a link between childhood vaccines and autism, 51% do not
The 20% are dangerous luddites, who could lead to a resurgence in childhood disease epidemics if they don't vaccinate their kids.
7% of voters think the moon landing was faked
Only 7% of voters are complete morons it seems
13% of voters think Barack Obama is the anti-Christ, including 22% of Romney voters
I thought the antichrist was supposed to be a EU bureaucrat. Or Gorbachev. Or the Pope. In any event, if I understand the prevailing eschatology, the antichrist is going to have a lot higher polling numbers than Obama.
Voters are split 44%-45% on whether Bush intentionally misled about weapons of mass destruction in Iraq. 72% of Democrats think Bush lied about WMDs, Independents agree 48-45, just 13% of Republicans think so
I think Bush deluded himself into believing it, so as to justify the war in his own mind
29% of voters believe aliens exist
If by exist you mean that somewhere in the immense universe there is at least one other planet with intelligent life, then this is a virtually certainty. If by exist you mean they're coming to earth and abducting rednecks for extended anal probing sessions, that's nutbag territory.
14% of voters say the CIA was instrumental in creating the crack cocaine epidemic in America’s inner cities in the 1980’s
A deliberate CIA plot? No. At least in part, an unintended consequences of stupid government policies? Yes.
9% of voters think the government adds fluoride to our water supply for sinister reasons (not just dental health)
Isn't dental health sinister enough?
4% of voters say they believe “lizard people” control our societies by gaining political power
Democrats are not lizards. (I think.)
51% of voters say a larger conspiracy was at work in the JFK assassination, just 25% say Oswald acted alone
I'm prepared to believe that the full truth has never come out.
14% of voters believe in Bigfoot
What's the correlation between believing in Bigfoot and Nessie?
15% of voters say the government or the media adds mind-controlling technology to TV broadcast signals (the so-called Tinfoil Hat crowd)
No mind controlling technology. Just left-liberal propaganda.
5% believe exhaust seen in the sky behind airplanes is actually chemicals sprayed by the government for sinister reasons
I worry more about blue ice
15% of voters think the medical industry and the pharmaceutical industry “invent” new diseases to make money
Invent new diseases? No. But have you noticed how they keep changing their advice. Salt's bad, but then it's okay. Eggs are evil, but then they're good for you.
Just 5% of voters believe that Paul McCartney actually died in 1966
Just his creative abilities
11% of voters believe the US government allowed 9/11 to happen, 78% do not agree
Define allowed. If by it you mean stupid policies that encouraged Islamic extremism, that kept intelligence agencies from cooperating, that made false asssumptions, that eliminated human intel capabilities, you've got a point. If by allowed, you mean to imply intentionality, go get your tin hat.