Corporate Legal Personhood in the Kiobel Case

In Kiobel v. Royal Dutch Petroleum, the U.S. Supreme Court waded into the murky waters of corporate legal personhood, at least potentially, in hearing oral arguments in late February 2012. The issue in the case is whether corporations can be held liable to the extent that they are complicit in a foreign government’s human rights abuses. Legal personhood would say that they could be. This would represent an obligation that goes with legal personhood. The question is whether the justices who conferred in the Citizens United decision the right of corporations, based on their legal personhood, to make unlimited political donations would also be willing to view obligations as “part and parcel” with such personhood. If not, then legal persons, unlike human persons, would have the benefits of personhood without any of the obligations—an oxymoron to corporations to be sure. In other words, such an asymmetry would render the legal personhood doctrine itself as akin to a one-sided coin—which cannot exist, let alone stand.

The full essay is at "Corporate Legal Personhood."

Prognosis for the Chinese Economy

At the end of February 2012, the World Bank released its “China 2030” report in Beijing. The bank’s president, Robert Zoellick, said that China’s economic growth model is unsustainable, so significant reforms are needed. The report projects growth down to five or six percent annually by 2030, down from the ten percent annual growth in the thirty years up to the issuance of the report. Given the nature of the reforms, the Chinese government officials have their work cut out for them.

The full essay is at "Prognosis for the Chinese Economy."

Ailing the E.U.: Unbalanced Federalism and the Euro

Lest it be thought that the economic safety net for the neediest led some of the E.U. states into excessive public debt toward the end of the first decade of the twenty-first century and beyond, the existence of some counter-examples suggest that the actual culprit was misapplied modern federalism. In early 2012, Sweden still had a very generous welfare state and yet had the fastest economic growth of any E.U. state. Leaving Malta and Cyprus aside, ranking the 15 E.U. states that were using the euro at the time by the percentage of GDP that they were spending on social programs before the debt crisis shows that of Greece, Ireland, Portugal, Spain and Italy, only the latter was in the top five—and with a welfare state smaller than that of Germany. In other words, an economic safety net for the poor does not necessarily translate into unsustainable government debt.

The complete essay is at Essays on Two Federal Empires.

Moral Hazard in Mortgages

“The cherished American ideal of self-reliance has a flip side”[1]  Before getting to the implications, or flip side, I want to fill out what informs this ideal. One could add to it the ideological stance that came into its own in 1980 with the election of Ronald Reagan, who declared that government is the problem. This implies that government should be minimized, and otherwise corrected as much as possible. Government is hardly to be viewed as the solution. This is the legacy of the Kennedy assassinations of the 1960s, the Vietnam War, and Watergate as well as Ford’s pathetic “WIN” buttons and Carter’s micromanagement and failure in regard to the hostages in Iran. I was not old enough for the Kennedys’ truncated optimism (and that of Martin Luther King) to resonate; I knew the political (and economic) pessimism of the 1970s and the energizing “fix it” mentality of the early 1980s. Of course, Reagan’s “new federalism” failed, as did his aim to balance the federal budget, and the jury is still out on whether “peace through strength” pushed the USSR off the cliff.

The full essay is at "Moral Hazard in Mortgages."

1. Shaila Dewan, “Moral Hazard: A Tempest-Tossed Idea,” The New York Times, February 26, 2012. 

American Regional English: Vestiges of an Empire

In 2012, a mere fifty years after the project had begun, the fifth volume of the Dictionary of American Regional English (DARE) was finally done. Sadly, the project’s director, Frederic Cassidy, had died in 2000 at the ripe old age 90. “On to Z” had been his typical way of ending phone conversations. Visiting the dictionary’s offices some years ago—ironically to use their French dictionary—I had no idea of the size of the project. Instead, I engaged a few of the staff on my thesis that regional “Englishes” in the U.S. are only natural, given the empire-scale of the republic of republics. In fact, I would argue that it is unnatural that there are not more linguistic differences from Maine across the continent and up to Alaska and over to Hawaii.

The full essay is at Essays on Two Federal Empires.

Germany’s Wulff Toppled While Wisconsin’s Walker Fights On

At the beginning of 2012, Wisconsin and Germany were both suffering from the plight of compromised figureheads. In the case of Wisconsin, the figurehead is also the chief executive, whereas in Germany they are distinct offices, so the situation in Wisconsin was more intractable. Germany’s figurehead office has much less political power, so any occupant is more dependent on maintaining credibility and stature.

The full essay is at "Germany's Wulff and Wisconsin's Walker."

E.U. Presses Italy to Tax Church Businesses

One of the chief benefits of federalism is the ability of one system of government to check another within the overall federal system. In the European Union, the state governments have so much power at the federal level—in the E.U. institutions—that it is difficult for the E.U. Government to check excesses and abuses in the state governments. E.U. law, regulation and directives rely on the state governments, albeit to varying extents. In the United States, the case is the reverse. The U.S. Government holds so many of the cards that the state governments cannot act to check abuses in the federal government. Actually, for all of the power that the U.S. Government has amassed, it does a horrible job in aiding citizens against abuses in their own state governments. Fortunately, we can look to Europe for a bright spot: the E.U. Commission and Italy, á grace de Mario Monti who is both governor of the state of Italy and a former commissioner in the E.U. Commission (the E.U.’s executive branch).

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

Sarkozy’s Electoral Campaign in the E.U.: Not for the U.S. Presidency

On February 15, 2012, France’s President Nicolas Sarkozy formally announced his intent to file as a candidate for the office in what would be his second term. The announcement took place just over two months from the election (April22nd). If no candidate wins an absolute majority, the two top candidates would be on the ballot in a runoff held on May 6, 2012.[1] The European sense of a decent length for a campaign “season” could be taken to heart by Americans.

The full essay is at "Sarkozy's Electoral Campaign."

1. Gabriele Parussini and David Gauthier-Villars, “Sarkozy Launches His Bid for New Term,” The Wall Street Journal, February 17, 2012. 

Gay Marriage in New Jersey

Just after New Jersey’s legislature passed a law legalizing gay marriage, Gov. Chris Christie followed through on his promise to reject the bill by quickly vetoing it and renewing his call for a ballot question to decide the issue. In returning the bill to the Legislature, Christie reaffirmed his view that voters should decide whether to change the definition of marriage in New Jersey. "I am adhering to what I've said since this bill was first introduced – an issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide," Christie said in a statement; "I continue to encourage the Legislature to trust the people of New Jersey and seek their input by allowing our citizens to vote on a question that represents a profoundly significant societal change. This is the only path to amend our State Constitution and the best way to resolve the issue of same-sex marriage in our state.”[1] Why stop at issues requiring a constitutional amendment? Although technical legislation requires representatives to wade through and discern specific ramifications pro and con, broad policy questions could also be subject to binding referendums. That is to say, representatives could be seen as doing only what the electorate cannot viably do.

The full essay is at "Gay Marriage in New Jersey."

1. Angela Santi, “New Jersey Gay Marriage Bill Vetoed By Chris Christie,” The Huffington Post, February 17, 2012. 

Democracy and State Governments at the E.U. Level

In mid-February 2012, Mario Monti of the E.U. state of Italy addressed the European Parliament. In his speech, he advocated increasing the legislative body's power. The Parliament's 754 representatives represent E.U. citizens just as the members of House of Representatives represent U.S. citizens. The representatives in both of the legislative chambers are democratically elected to represent the people in local or regional districts rather than states more generally. The chambers are “national” in that they bypass the state governments. The latter are represented in the European Council of Ministers and in the U.S. Senate, both of which are legislative in nature and thus can be stylized as the “upper chamber” in federal lawmaking.

The complete essay is at Essays on Two Federal Empires.

Sanctity of Contract Breached on Mortgages

An audit in 2012 by San Francisco county officials of about 400 foreclosures “determined that almost all involved either legal violations or suspicious documentation. . . .  The improprieties range from the basic — a failure to warn borrowers that they were in default on their loans as required by law — to the arcane. For example, transfers of many loans in the foreclosure files were made by entities that had no right to assign them and institutions took back properties in auctions even though they had not proved ownership. . . . About 84 percent of the files contained what appear to be clear violations of law, it said, and fully two-thirds had at least four violations or irregularities.”[1] The problem seems to be systemic, suggesting that judges should be able to modify mortgages on the basis of nullified contract.

The full essay is in Cases of Unethical Business, available in print and as an ebook at Amazon.com.  

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1. Gretchen Morgenson, “Audit Uncovers Extensive Flaws in Foreclosures,” The New York Times, February 16, 2012.

The Profitable Aristocracy: On the Conditionality of the Managerial Elite

Downton Abbey, a television series that began in 2011 on PBS’s Masterpiece Classics, depicts through narrative life in a British manor beginning with the sinking of the Titanic in 1912. For European viewers and more generally for the rest of us, the program proffers a glimpse of the world a century back. The advent of the telephone and phonograph seem to pierce through the manor’s socio-economic hierarchy that had undoubtedly been in place for centuries. It is the sheer social distance between the servants, almost regardless of their particular rank within their hierarchy, and the nobility in the house that is so striking to me. Moreover, the “Your Lordship” and “Your Ladyship” are not contingent on the manor’s owner employing or even paying the servants.

The full essay is at "The Profitable Aristocracy."

Russian Private Property: Based on Fairness or Legality?

In a move to shore up popular support before the presidential election in 2012, Vladimir Putin called for a windfall levy on the dishonest privatisations of the 1990s. “We need to close the problems of the 1990s, of what, speaking honestly, was dishonest privatisation,” he told tycoons meeting at a congress of Russia’s big business lobby. He went on to say, “We need to establish the social legitimacy of private property itself and social confidence in business.”[1] The implication is that just acquisition is requisite to private property being recognized as legitimate, societally.

The full essay is at "Russian Private Property."

1. Catherine Belton, “Putin Calls ForWindfall Levy on “Dishonest” Privatisations,” Financial Times, February 10, 2012. 

Distinguishing Entitlements from the Safety Net

In 2012, Congress lost sight of the fundamental purpose of a safety net, extending it beyond the difference between life and death. By zeroing in on the purpose of a safety net, Congress can both save money and better provide for the survival of those who are not providing it for themselves. Of such people, where survival itself is at stake, questions of being deserving pale in comparison to society’s obligation to fend off starvation, sickness and homelessness. Ironically, by extending the safety net beyond survival, Congress has undercut its role in providing for its citizens’ survival.

The full essay is at "Distringuishing Entitlements."

Obama’s Educational Waivers: Toward the Political Consolidation of an Empire

A decade after the No Child Left Behind federal law was enacted, “President Obama freed 10 states from some of its crucial provisions.”[1] The states’ freedom from a deadline for bringing all students to proficiency in reading and math by 2014 came with strings—accepting Obama’s own educational agenda, which focuses on accountability and teacher effectiveness and includes higher standards than the ones set in NCLB. Many state education officials have criticized the 2014 deadline as “an impossibly high bar” that “did not take into account the needs of some of the most disadvantaged children.” In announcing the waivers from the deadline, Obama said that the goals of NCLB should be met “in a way that doesn’t force teachers to teach to the test, or encourage schools to lower their standards to avoid being labeled as failures.”[2] However, if the standards are to be even higher, might even fewer schools wind up passing—even if the deadline is extended?

The full essay is at "Obama's Educational Waivers."

1. Winnie Hu, “10 States Are Given Waivers from Education Law,” The New York Times, February 10, 2012. 
2. Ibid.
3. Personal Correspondance.