Comment by chemotaxis

Comment by chemotaxis a day ago

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Wouldn't personal property in the US fall under the same criteria, in the sense that the government can sue the property itself (civil forfeiture)?

But I think the boring answer here is that we sometimes need legal abstractions. If they don't exist, Microsoft is no longer a distinct entity; it's 200,000 people who for some reason talk to each other, and you can't really audit their finances, punish them collectively, or set any ground rules that apply specifically to their joint activities.

This obviously has negative externalities, because while a corporation is easy to fine, it's hard to put in prison... but trying to approach it differently would be about as fun as modeling a CPU as a bunch of transistors.

mrandish 17 hours ago

> while a corporation is easy to fine, it's hard to put in prison...

IANAL, but I believe in at least some scenarios, officer(s) of U.S. corporations can go to jail if they are responsible for the directing the corporation to commit certain offending actions (despite not physically doing it themselves). To be clear, I'm not just talking about personal liability for fraud, insider trading, etc they may have committed themselves.

A recent example might be when Adobe was fucking around repeatedly making it virtually impossible for users to cancel Creative Cloud subscriptions - despite having already agreed to do so. IIRC the Justice Department issued a warning if it wasn't fixed immediately, they'd prosecute the Executive Vice President responsible for the business unit. Their press release named the guy and emphasized the consequences for continued non-compliance could include that guy going to jail.

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  • zrail 16 hours ago

    Another pertinent example: (in the US) corporate officers are personally liable unpaid wages and can serve time for willfully neglecting to pay their workers.

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    • ajdlinux 13 hours ago

      In Australia, if a company fails to pay its Goods and Services Tax, or its withholding payments for its employees' income tax, or Superannuation Guarantee (retirement fund contributions), each and every director is personally liable - unless they can prove (and the onus of proof is on them, not the Tax Office) that they had a reasonable excuse for why they weren't active in managing the company, or took all reasonable steps to get the company to either pay the debt or go into bankruptcy the lawful way.

      Importantly, there is no "wilful" requirement and it applies to all directors, not just those who actively participated in misconduct. If you weren't involved, you have to prove that you actively tried to stop it, or that you weren't managing the company for a specific reason such as being sick. You were the director who mostly turned up to board meetings to help them meet quorum, you trusted the other directors on the board had things under control and you were completely unaware of the debts? Too bad, liable. You hired external advisers, delegated to them, and they didn't do it? Too bad! You decided to wash your hands of the whole thing, and resigned from the board, but didn't actively try to rectify the situation first? Yep, they're still coming for you.

      (I believe the criminal convictions with prison time only really kick in for those who actively participated in tax fraud or who refuse to pay their director penalties.)

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nzeid 18 hours ago

> But I think the boring answer here is that we sometimes need legal abstractions.

Absolutely - the legal abstraction is that corporations are corporations, not people. The article went with a lighter hearted quip but here's my own tired old one:

If corporations are people, then owning shares is unconstitutional as that would be a form of slavery.

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  • shawndrost 17 hours ago

    I don't understand this POV, can you explain what I'm missing?

    Usually when people say "corporations aren't people" I think they are confused about the need for an abstraction. But you acknowledged the need for an abstraction.

    I don't imagine you are confused about the status quo of the legal terminology? AFAIK, the current facts are: the legal term "person" encompasses "natural person" (ie the common meaning of "person") and "legal person" (ie the common usage of "corporation"). In legalese, owning shares of legal persons is not slavery; owning shares of natural persons is; owning shares of "people" is ambiguous.

    I don't imagine you are advocating for a change in legal terminology. It seems like it would be an outrageously painful find-and-replace in the largest codebase ever? And for what upside? It's like some non-programmer advocating to abandon the use of the word "master" in git, but literally a billion times worse.

    Are you are just gesturing at a broader political agenda about reducing corporate power? Or something else I am not picking up on?

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    • foolswisdom 17 hours ago

      The argument is that the need for abstraction doesn't mean we must reuse an existing concept. We should be able to talk about corporations as entities and talk about what laws or rights should apply, without needing to call them people.

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      • thfuran 16 hours ago

        But the existing concept by and large has the properties we want. The ability to form contracts, to be held civilly or criminally liable for misconduct, to own property, etc. That we say something is a juridical person isn't some kind of moral claim that it's equivalent in importance to a human, it's just a legal classification.

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    • ghtbircshotbe 2 hours ago

      Or you could just take the obvious and literally meaning of the phrase "corporations are not people" and not say that everyone who says it is confused. Corporations have different incentives, legal requirements, rights and responsibilities.

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  • mcv 4 hours ago

    Yeah, there's a difference between being a legal entity with limited rights, and being a person with full personhood. Citiziens United ignores that distinction. Just because people have certain rights, does not mean corporations should have the same rights.

    It's an artificial legal construct, and its rights and obligations should be entirely subject to whatever society finds beneficial to the real people of that society.

    Your slavery argument is an excellent argument. If corporations supposedly have the right to the same free speech as a person, shouldn't they also be free from the bondage of owners, i.e. shareholders?

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  • xg15 18 hours ago

    Well, then share buybacks are just the corporation reclaiming its freedom. Everything makes sense now...

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  • monocularvision 17 hours ago

    And if corporations aren’t people, then the New York Times has no right to the First Amendment.

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    • redwall_hp 14 hours ago

      The Constitution doesn't grant rights, it binds the government. The first amendment is a law that disallows the government from taking actions to infringe on any human's inherent rights, be they individuals or in a group.

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      • AnthonyMouse 10 hours ago

        It's about the dichotomy. If the NY Times has First Amendment rights then Pfizer does.

        That annoys people because Pfizer is going to advocate for things some people might not like. But that's the cost of a rule that makes it so the NY Times can advocate for things other people might not like.

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        • mcv 4 hours ago

          It's still possible to grant press organisations rights that other corporations don't get without having to make both of them people.

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    • nzeid 17 hours ago

      But their employees collectively do. I know this is not the approach the US court system decided to humor, but there's no way around journalists' rights.

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    • jmye 17 hours ago

      I'm curious what you think "Congress shall make no law [...] abridging the freedom of [...] the press" means, in this case. Did you just not know what the actual text is, or ... ?

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      • monocularvision 11 hours ago

        You see the reading “the press” as meaning some organization of people. You take it for granted that the freedom of the press applies to a business entity like the NYT and also to an individual blogger or any other person creating a publication.

        The idea that people can come together to form cooperative groups and can use those to exercise rights through the idea of personhood is such a normal and legally settled idea.

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      • ashdksnndck 15 hours ago

        The New York Times (the corporation, as a legal person) has the right to freedom of the press, not just individual humans who work there. This is good, because it means the entire institution is protected. Not only is the government forbidden from arresting the humans for operating the printing press, it’s also forbidden from sanctioning the corporation for hiring humans to operate the press. In other words, freedom of the press applies to corporations (eg. the Times) as well as human persons. I think you and the commenter you responded to both agree on the fundamental claim here, although you might disagree about the semantics of whether “corporate personhood” is a good way of describing this concept.

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      • bjt 17 hours ago

        A restriction on government (as the First Amendment language is phrased) is not the same thing as an individual right. There are plenty of cases where a restriction is in the law, but only a very limited set of entities has standing to sue to enforce it. You could imagine such a case with regard to the First Amendment if we didn't have the corporate personhood doctrine.

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        • jmye 17 hours ago

          I have no idea what that has to do with my comment or the one I responded to. The freedom of the press is guaranteed by the first amendment. The NYT doesn’t suddenly lose “rights to it” if it’s not seen as a person.

          “Corporate personhood” is irrelevant, in this comment chain, and is just a way to take a swipe at an ostensibly left-leaning org in order to turn this into a team sport.

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  • cess11 3 hours ago

    Corporations commonly are persons, legally. Fictive persons, but still treated as persons. It's as if you could get a bank account for Tolkien's Gandalf.

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  • ZitchDog 16 hours ago

    Not correct: A share is a contract issued by the corporation entitling its owner to a share of future profits. So you're not buying a corporation, just engaging in a contract with it.

    I hate Citizens United as much as the next guy, but this isn't a good argument against it.

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    • nzeid 16 hours ago

      No, the established language is very precise and you can run this by any source. Shareholders collectively own corporations by way of equity.

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      • usrusr 15 hours ago

        What about non-voting shares? Can it be ownership if you are not included in decisions? I've never really thought about it, but now I believe that what GP was describing is exactly how those are made (or should be made). So at least not entirely wrong (no wait, they would also include a share of assets on dissolution, but that too can be done through a contract with the entity owned by regular shareholders)

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    • Tabular-Iceberg 6 hours ago

      Why does the next guy hate Citizens United? I’m not American, so this is the first time I’m hearing about them.

      I read https://en.wikipedia.org/wiki/Citizens_United_v._FEC and it seems to me like a plain reading of the first amendment supports CU’s position.

      Wouldn’t the opposing view imply that you are allowed to have political opinions, but only as long as you go at it alone and don’t organize too much with others?

      For all I know that might indeed be a better way of running society, but that’s definitely going to take a big constitutional amendment.

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      • mcv 3 hours ago

        The real issue is not so much the speech, but that money is considered speech in the US, so Citizens United apparently gives corporations the right to donate to political campaigns. A lot of people would like to stop that channel for corruption.

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    • lmm 14 hours ago

      > A share is a contract issued by the corporation entitling its owner to a share of future profits. So you're not buying a corporation, just engaging in a contract with it.

      A contract of indentured servitude (if you consider it a person), which we consider a form of slavery and therefore illegal.

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arrosenberg 21 hours ago

> This obviously has negative externalities, because while a corporation is easy to fine, it's hard to put in prison... but trying to approach it differently would be about as fun as modeling a CPU as a bunch of transistors.

There's nothing stopping the legislature (other than their own self-interest) from passing a law that executives and board members are criminally liable for the malfeasance of their entity. We already apply that logic to positions like a medical lab director.

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  • jojomodding 21 hours ago

    This is already the case. Or rather, a corporation can not (e.g.) commit murder or theft because that usually requires some physical action. That physical action will be performed by a human, who can then be found guilty. If he was ordered to do so by (e.g.) the board, the board will be held as accessory to the crime and cam also be found guilty.

    The problem is just that the board can usually claim they did not know, and that they have deep pockets to afford good attorneys. To get around the first thing, you have strict liability laws.

    Strict liability laws, though, are how you end up with the situation where barkeepers are criminally liable for selling alcohol to underage people, even if they could not have known the buyer was underage (and that's about the only instance of strict liability in criminal law). I personally find this very unjust and would rather that strict liability was not part of criminal law.

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    • PopAlongKid 19 hours ago

      > a corporation can not (e.g.) commit murder or theft because that usually requires some physical action.

      Not true. Consider investor-owned utility PG&E in northern California.

      "While on probation [for previous felonies], PG&E pleaded guilty to 84 felony counts of involuntary manslaughter for a 2018 wildfire that wiped out the town of Paradise, about 170 miles (275 kilometers) northeast of San Francisco."

      https://www.npr.org/2022/01/24/1075267222/californias-embatt...

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    • arrosenberg 20 hours ago

      If they know about malfeasance and don't stop it, they are complicit; if they don't know about it, they are grossly negligent. In either case, they should be held accountable for the crimes. Maybe in an ideal world it would not be that way, but since we are seeing corruption run amok in corporate board rooms, it's clear they need a greater incentive to police their organizations.

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      • thewebguyd 19 hours ago

        What we have is a severe lack of enforcement of the laws we do have.

        We do have legal mechanisms to hold the individual people criminally liable for criminal offenses the corporation commits, the problem is we don't enforce it.

        Boeing just got off scott free for killing 338 people. DOJ told the judge to dismiss the case.

        We've also neglected to enforce our own anti-monopoly laws for far too long, and most recently when there could have been actual, real change, we let Google go with nothing more than a slap on the wrist.

        The laws aren't the problem, the corrupt and paid for DoJ is the problem.

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      • rcxdude 19 hours ago

        There is already a standard of evidence for this: "Knew or should have known". Which covers needing to exercise a certain standard of care, but without the overly rigid definition of strict liability (something that tends to result in very stupid and unfair situations).

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      • Y_Y 16 hours ago

        What if every board must include a party commissar?

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  • usrusr 15 hours ago

    And yet the owners for the benefit of whom those high ranking employees have committed their crimes run free, keeping the spoils. Not even "spoils except for some monetary punishment" is they sold at the right time. Imprisoning CEOs solves depressingly little.

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  • anon291 19 hours ago

    The are already liable and have always been liable if it can be shown they had knowledge of it. The logic is already applied. Corporations are not people, but they are legal persons. For some reason, using language that sounds the same makes people confused and causes a large section of society to get irrationally angry.

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  • wahnfrieden 21 hours ago

    It's always possible to think up new rules that solve social issues. The challenge is seeing how such rules would ever robustly come into place. In your example, medical lab directors have no lobbying power and less dramatically profitable upside to their activities.

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    • arrosenberg 21 hours ago

      That's exactly my point. It's not hard to figure out how to "put a corporation into prison", the issue is that we've been trained to accept corruption as a normal facet of corporate personhood.

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pjc50 3 hours ago

> it's 200,000 people

I think a lot of objections are really about scale. Corporate structure solves a lot of coordination problems; the other widely used structure, partnership, scales much less well. Partnership structured businesses tend to be small (exception: John Lewis and Partners, a UK retailer with over 80,000 partners).

Most of the objections to corporations are really the same as objections to the hyper-wealthy, where the corporation effectively acts as a sock puppet for the personal views of its management. Citizens United is just a symptom of that. The use of the WaPo as a personal mouthpiece for Bezos is another, but not really affected by the ruling.

There are lots of ways out of that if America wanted, but there's significant factions which don't because they want the status quo or a more regressive version. See all the Voting Rights Act litigation.

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thfuran 16 hours ago

Without corporate personhood, you can't even really do business with a business, only with individuals. So if you want your warranty upheld, I guess you have to find Steve who sold you the fridge, because it's certainly not GE's or Home Depot's problem.

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roywiggins 21 hours ago

Property can't enter into contracts or own bank accounts, which is probably the big marker for traditional corporate personhood. It might be possible to sue property but property can't itself sue, so it's not the same type of thing as a corporate person, which can.

You wouldn't need "in rem" jurisdiction if there was a legal person to sue, you'd just call it "in personam" like normal.

https://en.wikipedia.org/wiki/In_rem_jurisdiction

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  • AlotOfReading 21 hours ago

    Estates do most of that without any notion of personhood. Suing an estate is in rem. When the estate sues someone else, the executor sues on its behalf. The executor can also enter the estate into new contracts and administer the bank accounts it owns, and so on. The estate can even own a corporation.

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    • degamad 18 hours ago

      The estate "inherits" (pun intended) its abilities from the personhood of the deceased. It is in effect a legal "Weekend at Bernie's", keeping the deceased party legally alive in order to continue their interests until those interests can be appropriately disposed of.

      The estate doesn't have independent interests distinct from those of the deceased. (In particular, the estate is not owned by, and does not serve, the beneficiaries.)

      A corporation has independent goals and interests from any of its owners or officers.

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TexanFeller 15 hours ago

> or set any ground rules that apply specifically to their joint activities.

I suspect we can, and I know we should make corporations not have ALL of the same rights as a citizen. The first thing that comes to mind is barring them from political donations. It would also be great if their “free speech” didn’t extend to being able to censor legal content they don’t like or to payment and Internet infrastructure providers being able to cut off service to sites with legal content they don’t like(porn, certain politics, hateful content, etc.).

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ar_lan 19 hours ago

> while a corporation is easy to fine, it's hard to put in prison...

It would be interesting if there were some tangible way to prevent the company from performing operations for some period of time.

I don't think this is viable or even necessarily a good idea, but the concept that "Meta illegally collected user data in this way" means they cannot operate for 5 years. It would probably involve large deconstruction of megacorps into "independent" entities so when one does something bad, it only affects a small portion of the overall business. Almost introducing a concept of "families" to the corporate world.

But the rabbit hole is odd. Should (share)holders be complicit too, as they are partial owners? I think not.

Corporate entities and laws governing them are definitely weird.

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  • Y_Y 16 hours ago

    Could the shareholders have caused or prevented the action? If not then I think it'll be a dofficult prosecution.

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    • pjc50 3 hours ago

      The whole point of a limited liability corporation is exactly this: that the liability of the shareholders is limited to the value of their investment, and they are not liable for debts or other failings of the company.

      Without that, investment becomes incredibly risky and you get much less of it.

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xg15 a day ago

I think there is a difference between having some sort of legal entity to classify organized groups as - and that legal entity being equivalent of a person.

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notarobot123 18 hours ago

Inheriting and extending existing abstractions out of convenience has a lot of unintended consequences and makes for a messy and complicated system in the long-run. Yet a full rewrite at this stage is out of the question.

I guess the legal system discovered the "worse is better" philosophy before we did.

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otterdude 19 hours ago

The answer if for congress to make a legal definition of corporation, instead we get the justice system coming up with a handwavy explanation that helps out their golfing buddies.

The answer is to get rid of the common law justice system and codify laws in congress like a civil law system. That way you dont get rich people trying to buy favors or "tip" judges.

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  • twelvechairs 19 hours ago

    I dont think youd get less rich-people-friendly decisions from ccongress. It may well be the opposite. Certainly it removes some of the separation of powers.

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    • otterdude 18 hours ago

      No but i think you get more accountability and visibility. Right now we could never do this but in a functioning democracy I think it would be prudent.

      In civil law when there is no clear precedent congress gets involved preventing the kind of critisisms we get in our legal system of activist judges ect.

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  • anon291 19 hours ago

    The treating of a corporation as a 'person' (which is a widely held misconception that doesn't really exist) rests in English common law, not any statute. Corporate personhood does not mean anything of what most people think it does. Corporations are obviously not people and are not treated as such.

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    • otterdude 18 hours ago

      My point is the benefit greatly from the distinction, never codified in law. They have more rights and fewer responsibilities than actual people!

      They way it "should" be is that congress creates a legal framework for coporations, then justices enforce that. Instead we are living with a nearly two centuries old common law that makes peoples lives worse.

      My argument that if corporations are people, then they cannot be bought or sold is the kind of argument you can use to create legal precedent by suing some company over a merger or buyout to test the law and the strength of the original case law.

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