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How Law Schools Can Help the Planet:

Gerard Magliocca has an idea how law schools can help the environment.

Bpbatista (mail):
Go out of business. We have too many lawyers making life difficult for everyone else. We consume too many resources and produce 0 wealth.
9.12.2009 5:47pm
Gerard Magliocca (mail):
Hi Jonathan,

I appreciate the shout-out, but it's Gerard, not Gerald. I get that a lot, which explains my intense hatred of all things associated with the Ford Administration.

[My bad. Sorry about that. Fixed now. JHA]
9.12.2009 5:54pm
Jon Roland (mail) (www):
Law schools could help the planet most by turning out devoted constitutionalists who would help bring this and other countries back to strict constitutional compliance, according to the understanding of the founders. The solutions to most of our problems require some participation by government, but the effectiveness of government depends entirely on strict constitutional compliance. Otherwise, it is only special interests jockeying for power and losing the respect of the people that is needed for any governmental action to succeed.
9.12.2009 6:03pm
RPT (mail):
"JR:

Law schools could help the planet most by turning out devoted constitutionalists who would help bring this and other countries back to strict constitutional compliance, according to the understanding of the founders."

Taking away the concept of corporate personhood would be a good start in this direction.
9.12.2009 6:19pm
AccountingProf:
I am not steeped in legal libertarian theory, but deal a lot with the 'corporate personhood' issue. So here is a question, off topic on this post, but maybe a Conspirator will address it in another one:


What is the libertarian position on granting corporations most of the rights of individuals? While I can see that people should be free to form whatever associations they want (per libertarians), the rights of corporations are granted by (gasp) government. And corporations often restrict the rights of employees, customers, and even owners (via non disclosure agreements), again supported by government.


There might just be an authoritative link. I'd be grateful for some direction.
9.12.2009 6:29pm
troll_dc2 (mail):
AccountingProf, if you knew how corporate personhood came about, you would be even more agast. The Supreme Court ASSUMED the proposition in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886). The rule is stated in the Syllabus, but above the Opinion of the Court, which does not contain any discussion of this point, you will find this:

One of the points made and discussed at length in the brief of counsel for defendants in error was that "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." Before argument, MR. CHIEF JUSTICE WAITE said:

"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does."


The opinion was written by Justice Harlan, not by the Chief Justice.

It is all very curious. The Reporter of Decisions included this point in the Syllabus, even though the Court tells us over and over that the Syllabus constitutes no part of the Opinion of the Court.

If there is a libertarian defense for the situation (or any defense at all), I would love to read it.
9.12.2009 6:42pm
RPT (mail):
AP:

I join your request. One of J. Sotomayor's questions at SCOTUS hinted at this doctrine and its dubious beginnings.
9.12.2009 6:42pm
RPT (mail):
TDC2:

It appears that we have successfully redirected this thread.
9.12.2009 6:44pm
Oren:
Jon, what support do you have for the assertion that strict construction will decrease the influence of special interests? My gut feeling is that a strictly construed commerce clause would put much more power in the hands of the States, which have a considerably worse track record when it comes to special interests.

[ Not that the idea isn't good on other merits, of course. ]
9.12.2009 6:45pm
Jon Roland (mail) (www):
Corporate entities have almost always been regarded as "persons", that is, as roles, which are what can appear in a court to make a claim. They are collections of individual persons, and therefore carry most of the rights of individual persons insofar as they represent such individuals. The problem is not that corporations are regarded as persons, but that they are regarded as individuals.

Every corporation is a kind of trust, usually with a complex governing structure, and with replacable beneficiaries. The ancient law of trusts is actually older than the Constitution of government, and, indeed, the Constitution is a kind of trust. That is why Holmes devoted most of his treatise The Common Law to trusts. They arise from the social contract rather than under statutes made under a constitution of government.

A trust is a person distinct from the settlor, trustee, or beneficiary, and an individual can play all three roles in different trusts. A corporation sole is a kind of trust that recognizes the connection.

But while a trust enjoys most of the rights of the individuals that compose it, it is not an individual, and some rights do not apply to it.
9.12.2009 6:58pm
Jon Roland (mail) (www):
Oren:

Jon, what support do you have for the assertion that strict construction will decrease the influence of special interests? My gut feeling is that a strictly construed commerce clause would put much more power in the hands of the States, which have a considerably worse track record when it comes to special interests.

State constitutions also need strict compliance, not just federal, and strict compliance with state constitutions would do much to reduce the undue influence of special interests. However, the solution to the public choice problem will require amendments to constitutions at all levels. None of them have sufficient firewalls at this point.

It should be pointed out, however, that special interests generally favor centralization of government regulation at the federal level because it is easier to subvert one government regulatory body than 50 of them.
9.12.2009 7:02pm
Mark N. (www):
AccountingProf: There's not really a single authoritative libertarian position on the subject, or any subject related to corporations, really. Milton Friedman's views probably represent the most extended attempt to defend a libertarian view of corporations as sort of administrative proxies for their stockholders. In that view, they aren't technically persons themselves, but in practice they'd enjoy freedoms similar to those granted by corporate personhood, because any restriction on corporations would be seen as a restriction on the rights of the owners it serves as proxy for.

Other libertarians take considerably more negative views. A recent trend is a worry that large corporations are essentially quasi-governments. Especially in certain areas, the resemblance is uncanny: a homeowner's association looks a lot like a municipal government.
9.12.2009 7:05pm
Jon Roland (mail) (www):
Milton Friedman once said in a TV interview that "I support free markets but not large organizations." He didn't explain, but organizations in the marketplace can become so large that they threaten the free market, largely because they make decisions that are not constrained by the market, but are the result of internal politics, like governments.

People have the right to associate, but if they do so in a way that threatens the society, then some constraints may be needed, such as breaking up large organizations into many smaller ones, all compelled to negotiate their transactions with one another from day to day without collusion or central direction by common owners. And no adhesion contracts.
9.12.2009 7:28pm
Jon Roland (mail) (www):
Mark N.:

a homeowner's association looks a lot like a municipal government.

With all the potential for abuse without the legal constraints.
9.12.2009 7:29pm
Jon Roland (mail) (www):
One proposal that has been made is to time-limit for-profit corporations to, say, 20 years, requiring that they be dissolved and their assets sold at public auction at the end of their period. That would enable investors to make a profit but avoid letting corporations function as immortals.

It should be noted that in the early republic corporations were viewed with suspicion and generally allowed only for specific, medium-term projects, like canals.
9.12.2009 7:40pm
Jon Roland (mail) (www):
It is not enough, however, to break up large organizations, because swarms of small players in the market can all decide to adopt the same strategy at the same time, perhaps as the result of a fad or rumor, and their emergent behavior assume most of the same dangers as a large organization but without the theoretical ability of shareholders to supervise management. So it is necessary to develop methods to break up herd behavior as well.
9.12.2009 7:44pm
Oren:

It should be pointed out, however, that special interests generally favor centralization of government regulation at the federal level because it is easier to subvert one government regulatory body than 50 of them.

This is surely true in some cases but also sometimes quite false. Provincial interests can more easily capture a State legislature where they comprise a large fraction of the local power base than a Federal legislature. National-level politics can mitigate the influence of special interests simply by dilution and competition against other provincial interests.

In short, I don't see any particular anti-corruption advantage o either State or National level politics.
9.12.2009 8:02pm
Soronel Haetir (mail):
JR:

And in your public auction idea, what would keep a majority cabal from just distributing the booty amongst themselves then dissolving the corporation? Or set up a new venture, the way Lloyd's used(?) to do? Such a setup sounds like it would be extremely inefficient.

It also sounds like a major intrusion into the propety rights of those who are actually successful at producing something of value.
9.12.2009 8:02pm
Oren:
Also, as my friend here at the office pointed out, a special interest needs only to capture one State government to make a pretty good racket.
9.12.2009 8:03pm
Soronel Haetir (mail):
Also, the planet doesn't need anyone's 'help'. Whether humans live or not is only of concern to humans.
9.12.2009 8:04pm
Fub:
From TFA:
Quit sending me brochures about your law school.
I'll second that, although I don't get law school brochures. But law schools are a miniscule part of the problem. To truly save the planet, you'll have to nuke the DMA from orbit. Coordinates are 3324 Outer Kerner Way, Mos Eisley, Tatooine.
9.12.2009 8:08pm
Soronel Haetir (mail):
I suppose I should say that I see libertarian ideas as fairly dystopian, but that the resulting freedom is worth the price.
9.12.2009 8:08pm
Jon Roland (mail) (www):
Oren:

I don't see any particular anti-corruption advantage o either State or National level politics.

That requires other reforms designed to enable the selection of lawmakers and other decisionmakers in ways that cannot be substantially influenced by money. Most of the remedies of that kind that have worked historically are some kind of sortition.
9.12.2009 8:29pm
Jon Roland (mail) (www):
Soronel Haetir:

And in your public auction idea, what would keep a majority cabal from just distributing the booty amongst themselves then dissolving the corporation?

Many ways have been developed to insure the bidders be many small, mutually independent players.
9.12.2009 8:31pm
Off Kilter (mail):
JR: Mark N.:

a homeowner's association looks a lot like a municipal government.

With all the potential for abuse without the legal constraints.

----

Joking, of course. The exit right difference and ease of exit is not trivial.
9.12.2009 8:33pm
Jon Roland (mail) (www):
Oren:

Also, as my friend here at the office pointed out, a special interest needs only to capture one State government to make a pretty good racket.

Or sometimes only a local government. There need to be many ways that citizens can intervene using many different approaches to enable at least one of them to succeed in thwarting such schemes.
9.12.2009 8:34pm
Mark N. (www):

The exit right difference and ease of exit is not trivial.

How so? In Texas, at least, homeowner's associations are generally created through perpetual deed restrictions that cannot be rescinded, so the only way to escape their taxes and regulations is to sell the property and move out of their jurisdiction. But that's exactly the same way you can escape the jurisdiction of any municipal government!
9.12.2009 8:42pm
Jon Roland (mail) (www):
9.12.2009 8:54pm
Jon Roland (mail) (www):
Mark N.:

In Texas, at least, homeowner's associations are generally created through perpetual deed restrictions that cannot be rescinded

There is also a problem with neighborhood associations, which Texas and some other states allow people in a neighborhood to establish what function like homeowner's asociations, but that do not require the consent of all the neighbors, only a majority of them. They can make life miserable for unpopular neighbors.
9.12.2009 9:31pm
Teller:

the planet doesn't need anyone's 'help'. Whether humans live or not is only of concern to humans.


Huh? Where do humans live? We've been helping the planet benefit us for about an eon, now.
9.13.2009 8:06am
Boblipton:
I'm thinking "Mulch."


Bob
9.13.2009 11:19am
Daniel Chapman (mail):
JR: You might want to sit back and put all your thoughts into one entry before you hit the post button. There's really no need for one person to post that many times, especially when you're blatantly changing the subject. I see you have your own blog for that.
9.13.2009 11:28am
ChrisTS (mail):
Either put all journals online or impose a strict limit of 'no more than 10' on foot/end-notes. My guess is the latter would be a tremendous boon to the planet.
9.13.2009 11:55am
Jon Roland (mail) (www):
To get back to the original topic, one of the best ways for law schools to conserve resources would be to go to distance learning for much of the delivery and testing of written material, leaving practical training to internships. A tool like Moodle can enable that. I use it myself for some of my sites.
9.13.2009 10:11pm

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