Kevin Drum poses the titular question, noting that:
We all learned recently that sandwich shop Jimmy John's forces its workers to sign a noncompete agreement before they're hired. This has prompted a lengthy round of blogospheric mockery, and rightfully so. But here's the most interesting question about this whole affair: What's the point?
Laws vary from state to state, but generally speaking a noncompete agreement can't be required just for the hell of it. It has to protect trade secrets or critical business interests. The former makes them common in the software business, and the latter makes them common in businesses where clients become attached to specific employees (doctors, lawyers, agents) who are likely to take them with them if they move to a new practice. But none of this seems to apply to a sandwich shop.
Indeed. There is general agreement that "when you seek to enforce [a] boilerplate noncompete, will a Virginia court uphold the agreement? Probably not." Hillary J. Collyer, FAIRFAX COURT ISSUES SPLIT DECISION ON EMPLOYMENT CONTRACT, 22 No. 10 Va. Emp. L. Letter 2 (2010). Indeed, that can be true even in industries like IT where noncompetes can make sense.
As a result, the usual advice is that one "should not use the same 'boilerplate' noncompete agreement for everyone. For example, with respect to key employees, the agreement should be drafted to reflect that employee's individual job duties and circumstances." William G. Porter II & Michael C. Griffaton, Using Noncompete Agreements to Protect Legitimate Business Interests, 69 Def. Couns. J. 194, 199 (2002).
So why bother? Cynthia Estlund explains that:
Even a manifestly invalid non-compete may have in terrorem value against an employee without counsel. Some employers insert non-compete covenants as near-boilerplate in employment agreements for a wide variety of positions, with little regard to the particulars of the position or to whether employees are privy to protectible information. As far as the law is concerned, employers risk nothing with that sort of overreaching (though the market might sometimes exact a price), and they might succeed in keeping employees from leaving and moving to competitors when they are entitled to do so.
Cynthia L. Estlund, Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants As A Hybrid Form of Employment Law, 155 U. Pa. L. Rev. 379, 423 (2006). She also notes (fn. 32) that "I recently heard of two law students who were required to sign non-compete agreements in pre-law-school jobs (not as high-level executives!). They did so either reluctantly or with little thought because they wanted the jobs, and then later felt compelled to reject attractive job opportunities that they feared might violate the terms of the non-compete agreement."
In sum, my guess is that somebody at Jimmy Johns figured "it can't hurt, it won't cost anything, and there might be some cases where it'll deter employees for leaving for a better paying job." Whether that is desirable and/or sensible is a question I'll leave for the reader.
Elite law faculties are overwhelmingly liberal. Jim Lindgren has proven the point empirically. I will just add my impressions from Georgetown Law School to reinforce the point. We are a faculty of 120, and, to my knowledge, the number of professors who are openly conservative, or libertarian, or Republican or, in any sense, to the right of the American center, is three—three out of 120. There are more conservatives on the nine-member United States Supreme Court than there are on this 120-member faculty. Moreover, the ideological median of the other 117 seems to lie not just left of center, but closer to the left edge of the Democratic Party. Many are further left than that.
But at least there are three. And the good news is that this number has tripled in the last decade. The bad news, though, is that, at Georgetown, the consensus seems to be that three is plenty—and perhaps even one or two too many.
These numbers are stark, but they are not unusual; this ratio actually seems fairly typical of most elite law schools. This lop-sidedness would be a shame in any academic department. But it is a particularly ironic sort of shame at a law school. After all, it is a fundamental axiom of American law that the best way to get to truth is through the clash of zealous advocates on both sides. All of these law professors have, in theory, dedicated their lives to the study of this axiomatically adversarial system. And yet, at most of these schools, on most of the important issues of the day, one side of the debate is dramatically underrepresented, or not represented at all.
One result, unfortunately, is a certain lack of rigor. To be blunt, a kind of intellectual laziness can set in when everyone agrees. Faculty workshops fail to challenge basic premises. Scholarship becomes unreflective and imprecise.
Worse yet, this intellectual homogeneity impairs analysis of law in progress—law as it unfolds out in the world. Analyzing and predicting actual American law would seem to be an important aspect of the job. After all, the country would like to be able to turn to these elite faculties for wisdom and insight about contemporary legal controversies. But because elite American faculties are so far to the left of the American judiciary, these faculties can be startlingly poor at analyzing the actual practice of American law.
You really need to go read the whole thing to understand why law schools desperately need reform in this area.
In his very important and provocative article, Why Did Law Professors Misunderestimate the Lawsuits Against PPACA, 2014 U. ILL. L. REV. 805, Professor David Hyman argued that:
Almost without exception, elite law professors dismissed the possibility that the Patient Protection and Affordable Care Act (variously called “PPACA,” “Obamacare,” and the “Affordable Care Act,”) might be unconstitutional—but something went wrong on the way to the courthouse. What explains the epic failure of elite law professors to accurately predict how Article III judges would handle the case? ...
[1.] Most law professors have little practical experience. ... Thus, law professors unduly discounted the practical difficulties associated with defending PPACA, in no small part because they failed to notice that a majority of the Supreme Court no longer shared their views on the Commerce Clause. ...
 Did constitutional law professors have a strong emotional stake in the outcome of the litigation over PPACA, sufficient to trigger motivated reasoning on the part of those opining? There is good reason to think so. The law represented the signature domestic policy achievement of the Obama Administration—and the culmination of decades of effort by the Democratic Party. Previous research has demonstrated that law professors skew heavily Democratic, with massive underrepresentation of Republicans, conservatives, and evangelical or fundamentalist Christians. ...
 Law professors are not known for their modesty. But even among this group, those who teach and write about constitutional law stand out. ...
 Making predictions is hard. ...
 The preceding factors may help explain how elite constitutional law professors got it so wrong prior to oral argument before the Supreme Court. But, what explains their conduct after oral argument, when it became clear that the constitutionality of PPACA was in serious jeopardy? Rather than admit error, or rethink their original assessment of the probabilities, many of the nation’s elite law professors participated in an extraordinary campaign threatening the Supreme Court (more specifically, threatening Justices Kennedy and Roberts, the plausible swing justices), with de-legitimization if they didn’t rule the “right” way. ...
This strategy substantially raised the political stakes of the dispute, which were high to begin with. For elite constitutional law professors, already inclined to view the Supreme Court as both a political and legal institution, and, as a group, generally committed to an expansive view of federal power, such measures were perfectly reasonable. This was an explicitly bare-knuckles political campaign, waged by a group of elite law professors convinced that they were right and the Supreme Court was about to be wrong. By pursuing politics through other means, the campaign was effectively a declaration of war on those who did not share the academic consensus on the scope of federal power.
To summarize, our nation’s elite law professors organized the aca- demic equivalent of a vigilance committee to enforce what they had defined for themselves as the range of acceptable, mainstream views when it came to the Constitution—just as they had done several decades previously when Robert Bork was nominated to the Supreme Court.
Personally, I've always thought Hyman's second and fifth points were the most plausible explanations. Indeed, if you a sixth factor-aggressive secularism and, in particular, anti-Catholicism among the legal academy--they also explain the legal academy's remarkable harsh reaction to the Hobby Lobby decision. (See, e.g., the over- the-top corporate law professors brief in that case.)
In any case, my friend and co-author Mark Ramseyer has a response piece out that is very much worth reading, because it is written with Mark's typical verve and intelligence:
Is dear reader shocked that our colleagues could so uniformly “misunderestimate” the constitutional problems in the Act? Is he shocked that the 130 signers of an amicus brief supporting this hyperpartisan Democratic statute included no one who had donated to a Republican campaign? Is he shocked that the twenty-two constitutional law scholars surveyed gave ninety-eight percent of their political contributions to Democratic campaigns?
Is dear reader shocked? Captain Renault may have been “shocked, shocked to find that gambling is going on” at the Cafe Americain, but the politics of the constitutional law guild is no secret. One need not down many drinks to learn Ilsa Lund’s politics, and one need not eat many faculty-club sandwiches to learn the politics of the constitutional law crowd. Of intellectual diversity, only feminist jurisprudence and critical race theory have less.
Mark goes on to demonstrate in exquisite detail the left-liberal and secular bias of the academy. He concludes:
Hyman brilliantly details the way constitutional law scholars missed the unconstitutionality of the PPACA. They missed it because they so badly wanted the Act—because they so badly wanted to believe a national health insurance program was possible. They missed it because they let political loyalties trump their judgment—because they let their “moral engagement” block analysis.
And so, once again, the take home lesson is that law schools desperately need intellectual diversity, because right now they are a Democrat /secular humanist monoculture. Time for some affirmative action for "Republicans, conservatives, and evangelical or fundamentalist Christians," not to mention Catholic conservatives.
I like Temple law prof Tom Lin's work a lot. He's an imaginative and creative scholar. So I read with great interest his new essay National Pastime(s) (September 29, 2014). Boston College Law Review, Vol. 55, No. 1197, 2014. Available at SSRN: http://ssrn.com/abstract=2502950. Here's the abstract:
In his new book, Baseball as a Road to God, New York University President and Professor of Law John Sexton submits that baseball can serve as a vehicle for living a more conscious life that elevates the human experience for lawyers and non-lawyers. This Essay examines the credibility of the book’s thesis in a world where human intelligence, human deliberation, and human action is being replaced by artificial intelligence, mathematical models, and mechanical automation. It uses the preeminent national pastime of baseball, and the less eminent pastimes of law and finance as case studies for the book’s thesis. It concludes that a more conscious and meaningful life is much harder to foster, but also much more important to cultivate in light of modern advances. This Essay ultimately offers a different narrative for lawyers and non-lawyers to think anew about modern law and society in light of ongoing changes in baseball, law, finance, and beyond.
I'm not a fan of the writing style Lin uses in this essay. Consider for example, these phrases:
You can prove you're smart without being impenetrable. It's one reason I have always preferred Ronald Coase--who wrote with what one critic calls "the beautiful simple prose of the accomplished English essayist--to Oliver Williamson, whose writing style is jargon-filled and difficult to penetrate. In too many places, Lin's essay is closer to Williamson than Coase in style.
Having said that, there are some very interesting insights here. The treatment of parallels--but, more important, differences--between how technology and quantitative analytical methods have influenced baseball, finance, and law is very well done. And the conclusion he draws from them makes sense (albeit that some of us may need to read it with a dictionary in hand):
As science and technology reduce more of our lives into bits and bytes of data and code, the ineffable and irreducible components of the human experience have been made much harder to sustain, but also much more important to living a meaningful, spiritual, and balanced life for lawyers and non-lawyers.
Rather than surrender our doubts, our curiosities, and our humanity in whole or in part, we should leverage modern conveniences in ways that permit us to rededicate more of ourselves to experiencing the timeless, ineffable joys and wonders of learning and living.
In sum, recommended. But I also recommend some books likely to help a searcher find God (or, at least, the God in whom I believe).
In re Omnicare, Inc. Sec. Litig., 13-5597, 2014 WL 5066826 (6th Cir. Oct. 10, 2014):
The purpose of “the materiality requirement is not to ‘attribute to investors a child-like simplicity, an inability to grasp the probabilistic significance of [opinion statements],’ but to filter out essentially useless information that a reasonable investor would not consider significant, even as part of a larger ‘mix’ of factors to consider in making his investment decision.” Basic, Inc. v. Levinson, 485 U.S. 224, 234 (1988) (quoting Flamm v. Eberstadt, 814 F.2d 1169, 1175 (7th Cir.1987)). To this end, we have said before that “[m]isrepresented or omitted facts are material only if a reasonable investor would have viewed the misrepresentation or omission as ‘having significantly altered the total mix of information made available.’ “ Sofamor Danek, 123 F.3d 394, 400 (6th Cir.1997) (quoting Basic, Inc., 485 U.S. at 232). Put another way, a “ ‘fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.’ “ Basic, Inc., 485 U.S. at 231 (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)). “ ‘Immaterial statements include vague, soft, puffing statements or obvious hyperbole’ upon which a reasonable investor would not rely.” Public Sch. Teachers' Pension & Ret. Fund of Chi. v. Ford Motor Co. (In re Ford Motor Co. Sec. Litig.), 381 F.3d 563, 570 (6th Cir.2004) (quoting In re K-tel Int'l, Inc. Sec. Litig., 300 F.3d 881, 897 (8th Cir.2002)).
This standard and these examples, however, are vague and provide little guidance in close cases. At first glance, this doctrine might appear “both clever and intuitively sensible,” but it has the potential to “look more like a heuristic rather than an entirely legitimate doctrine” when used too often “at the motion to dismiss stage (where materiality, being a fact question, typically should not be decided)....” Stephen M. Bainbridge & G. Mitu Gulati, How Do Judges Maximize? (The Same Way Everybody Else Does—Boundedly): Rules of Thumb in Securities Fraud Opinions, 51 Emory L.J. 83, 115 (2002). In general, the federal judiciary has a limited understanding of investor behavior and the actual economic consequences of certain statements. Thus, we must tread lightly at the motion-to-dismiss stage, engaging carefully with the facts of a given case and considering them in their full context. See Jennifer O'Hare, The Resurrection of the Dodo: The Unfortunate Re-emergence of the Puffery Defense in Private Securities Fraud Actions, 59 Ohio St. L.J. 1697, 1727–1731 (1998) (illuminating the importance of context to materiality determinations). Otherwise, we risk prematurely dismissing suits on the basis of our intuition.
A report by the Tulane University Payson center for International development reports that:
On October 1, 2014, The Payson Center for International Development of Tulane University Law School released a study analyzing the results of a June 2014 survey of issuers who filed the required Form SD with the SEC in the form of an online presentation, entitled “Dodd-Frank Section 1502: Post-Filing Survey 2014”.
This study investigates the market impact of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which applies public disclosure law to Tin, Tantalum, Tungsten and Gold (3TG) – so-called conflict minerals. ...
The study’s findings reveal that issuers mobilized substantial in-house and external resources, an aggregate total of 709.7 million, to set up conflict mineral programs in order to furnish the required information by June 2, 2014, as per the disclosure law and rule. Issuers each invested an average of $545,962 worth of time and effort to comply with the law, the value of each company’s conflict mineral program largely comprised of in-house corporate time, external human resources, an IT evaluation and IT system expenses. Small issuers, with less than $100 million in revenue, spent $190,330 worth of resources on average – roughly 1/3rd as much as their large issuer counterparts.
That's a huge expense. To what discernible effect, one must ask.
UCLA News reports that:
Members of the UCLA College faculty are scheduled to vote between Oct. 24 and Oct. 31 on a proposal to require all College undergraduates to complete a course focused on diversity.
The proposal was prompted by the growing recognition that universities have a responsibility to teach undergraduates to better understand the perspectives of others whose experiences, views and backgrounds differ from their own. ...
Consistent with most of UCLA’s peer institutions both in and outside of California, the proposal calls for College undergraduates to complete a course that substantially addresses racial, ethnic, gender, socioeconomic, sexual orientation, religious or other types of diversity. Students would be required to pass the course with a minimum of a C grade.
Predictably, the report is entirely one-sided in favor of the proposal. Others, however, have criticized such programs as little more than political indoctrination. IBD editorialized, for example, that:
Higher education should be about teaching young Americans how to think, not what to think.
Yet campus life is becoming more about re-educating than educating. Presidents and chancellors and deans and faculty increasingly see themselves as shapers of thought, not conduits of knowledge. ...
This pseudo-schooling isn't limited to the Left Coast or a school in Barack Obama's hometown. Nor is it confined to students. Teachers at Virginia Polytechnic Institute were told a few years ago that promotions and tenure were going to be based on their participation in diversity initiatives, while the University of Louisville has held a "White Privilege Forum," which delved into the matter of "white persons" running and/or owning "nearly half of the United States."
Parents spend hundreds of thousands of dollars — more than $45,000 year for undergraduates at Northwestern — to school their kids in our finest institutions. Indoctrination into leftist politics should not be a part of the instruction.
Back in 2007, the University of Delaware's program came under so much fire that it had to be cancelled (at least until the heat wore off):
Amid growing public scrutiny, the University of Delaware last week halted a controversial residence hall program that critics say tried to force students to accept university-approved ideologies on moral and social issues. ...
The Foundation for Individual Rights in Education alleged last week that the program amounted to an “Orwellian” attempt at thought control that violates students’ rights to freedom of conscience and freedom from compelled speech. The group described the program as a “systematic assault upon individual liberty, dignity, privacy and autonomy of university students” and called for it to be dismantled. ...
According to FIRE, the university saw the program as a “treatment” for incorrect student beliefs on issues ranging from politics to race, sexuality and the environment. Among other things, the group cited a training session document that defines “racist” as a term synonymous with White supremacist, and one that applies to “all White people”’ in the United States “regardless of class, gender, religion, culture or sexuality.”
On the other hand, “people of color cannot be racists,” and there is no such thing in the United States as “reverse racism,” a term “created and used by White people to deny their White privilege.” ...
The ostensible goal of the residence hall education program was to help students attain “citizenship.” The “competencies” that students were expected to achieve include recognizing that “systemic oppression exists in our society.”
The full FIRE report is well worth reading, especially if you're a parent preparing to pay for your child's UCLA education. I'd advise you to keep a very close eye on this program.
I was reminded of Reagan's famous quip that "The nine most terrifying words in the English language are, 'I'm from the government and I'm here to help'" when I read Daniel Henninger's column in today's WSJ:
Ebola, the Secret Service, Veterans Affairs, ObamaCare’s rollout, the Centers for Disease Control, the World Health Organization, the Federal Emergency Management Agency.
Behind all these names are federal bureaucracies that are supposed to protect people or help them. Instead they have been putting individuals at risk, or worse.
Ebola’s spread in West Africa was predicted. Government agencies responded late. Now it’s here. The Secret Service is so disorganized it can’t protect, of all things, the White House. Veterans died waiting for admission to VA hospitals. The CDC lost track of anthrax, smallpox and H5N1 bird-flu samples. At the State Department, no one seems to quite know why a U.S. ambassador died in Benghazi. The 9/11 Commission explained in detail how the attackers evaded the bureaucracies. Add to this list the Internal Revenue Service, an agency of extraordinary power that has forfeited the public’s trust.
Will liberals ever lose their faith in big government bureaucracies?
I really like Bill Carney's new article, Larry Ribstein's Federalism Scholarship and the Unfinished Agenda, available at SSRN: http://ssrn.com/abstract=2497707:
Larry Ribstein and his co-authors broke new ground in examining jurisdictional competition and private choice of law. Going beyond corporate law bounds, they examined jurisdictional competition for other forms of entities, and found competition driving efficient uniformity. The more challenging area they addressed was private choice of law in contracts. While much of their work is enlightening, there is much left to be done in examining the mechanisms of efficiency in private agreements. Law are complex bundles of rights and obligations, often heterogeneous, in a market without explicit prices. While the mechanisms of adoption of business laws are well documented, difficult questions of bounded rationality remain in the area of private choice of law.
The latest edition of The Economist is once again beating the drums for shareholder activism. (As I've said before, I love them despite their ineducability on this issue):
Martin Lipton, a lawyer who has long helped protect incumbent management, not least by inventing the “poison pill”, a potent defence against takeovers, argues that activists encourage firms to do things that boost their share price in the short run but harm their long-term performance. This critique has plenty of adherents, in academia, business and government.
Yet empirical proof that activists exacerbate short-termism is strangely elusive. Indeed, such evidence as there is suggests the opposite. “The Long-Term Effects of Hedge-Fund Activism”, a recent paper by Lucian Bebchuk of Harvard Law School and others, examined the roughly 2,000 interventions at companies by activist funds from 1994 to 2007. Over the five years following an intervention both the share price and the operating performance of the target company improved, on average. The operating performance got stronger towards the end of the five-year period, not weaker.
This is the sort of evidence that has convinced Mary Jo White, the chairman of America’s Securities and Exchange Commission, to argue in a recent speech that activist shareholders should no longer be automatically viewed negatively. These days, she said, “There is widespread acceptance of many of the policy changes that so-called ‘activists’ are seeking to effect.”
But consider the possibility that not all shareholder interventions are created equally, as I argued in Preserving Director Primacy by Managing Shareholder Interventions (August 27, 2013), available at SSRN: http://ssrn.com/abstract=2298415:
This is a draft chapter for a forthcoming research handbook on shareholder power and activism. This chapter provides an analysis of shareholder activism based on the so-called director primacy model of corporate governance, which argues for a board-centric, rather than a shareholder-centric, understanding of corporate governance.
Even though the primacy of the board of director primacy is deeply embedded in state corporate law, shareholder activism nevertheless has become an increasingly important feature of corporate governance in the United States. The financial crisis of 2008 and the ascendancy of the Democratic Party in Washington created an environment in which activists were able to considerably advance their agenda via the political process. At the same time, changes in managerial compensation, shareholder concentration, and board composition, outlook, and ideology, have also empowered activist shareholders.
There are strong normative arguments for disempowering shareholders and, accordingly, for rolling back the gains shareholder activists have made. Whether that will prove possible in the long run or not, however, in the near term attention must be paid to the problem of managing shareholder interventions.
This problem arises because not all shareholder interventions are created equally. Some are legitimately designed to improve corporate efficiency and performance, especially by holding poorly performing boards of directors and top management teams to account. But others are motivated by an activist’s belief that he or she has better ideas about how to run the company than the incumbents, which may be true sometimes but often seems dubious. Worse yet, some interventions are intended to advance an activist’s agenda that is not shared by other investors.
This chapter proposes managing shareholder interventions through changes to the federal proxy rules designed to make it more difficult for activists to effect operational changes, while encouraging shareholder efforts to hold directors and managers accountable.
In any case, I was deeply amused by the headline of The Economist article: "Anything you can do, Icahn do better."
As the kids say, OMG! (they do still say that, don't they?)
I have had numerous occasions over the years to document my utter disdain for Carl Icahn and his track record:
Dec 30, 2013 ... Perrenial corporate raider Carl Icahn reportedly is trying to bully Wachtell Lipton for representing his targets: Wachtell thinks it knows exactly ...
Sep 19, 2013 ... Carl Icahn's asinine screed in favor of shareholder activism from today's WSJ included this knee slapper: Is it fair that CEOs make 700 times ...
Sep 19, 2013 ... Carl Icahn got rich out of ruining companies by extorting greenmail from spineless targets and running companies like TWA into the ground.
Dec 10, 2013 ... David Benoit reports that Carl Icahn has had a good run this year: Carl Icahn, long seen as the archenemy of chief executives, is finding the ...
Sep 19, 2013 ... In the asinine screed by Carl Icahn in today's WSJ, in which he makes a dubious case for shareholder activism, Carl nearly breaks his arm ...
Mar 25, 2013 ... When I first heard that Carl Icahn was considering bidding for Dell, I was quite surprised. Icahn's not a private equity guy who buys and ...
Jan 8, 2014 ... Carney writes: You may have heard that Ralph Nader has called on Carl Icahnto help him resist the plan by Liberty Media to acquire the rest of ...
Over at Marginal Revolution, Alex Tabarrok writes that:
A new and interesting entry into this field comes from LinkedIn which uses data on its 300 million members to define desirable employers and then rank universities based on getting their graduates jobs with those employers. The methodology is somewhat opaque and a bit sketchy but the idea is to define desirable employers by industry based on the revealed preference of employees in LinkedIn. In particular, firm A is raised relative to firm B if more people move from B to A than from A to B and similarly if firm A retains its employees longer than firm B. The percentage of a college’s recent graduates who obtain employment from the desirable employers is then used to rank the universities. No cost factors are included.
There's no obvious reason they could not apply a similar methodology to ranking law schools and the results might be very interesting.
Joe Patrice has a slightly breathless post about the interesting argument being made by an outfit called PublicResource.org that the copyright on the 10th edition of the Blue Book has lapsed and that PublicResource.org therefore can put a copy of the 10th edition on the web where it will be available to all for free. Patrice therefore asks: Is The Bluebook About To Be Killed Off?
I doubt it. After all, as Christine Hurt observes:
I would hazard a hypothesis that law graduates turn to the modern edition for the hard questions, the esoteric sources, which the Tenth Edition doesn't cover. Another reason I pick up the Nineteenth Edition is to check the appendices -- what's the form of the statutes in [insert state here]? The Tenth Edition doesn't have those appendices, listing every reporter and statutory publication in every jurisdiction ever. That is why the Tenth Edition is only 124 pages long. I also pick up the modern edition to see if I need to abbreviate words in my case name, etc. according to T.6.
The kerfuffle does raise an interesting question, however; namely, when does the copyright on the first edition to provide internet citation forms expire?
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.