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Thread: Limited liability in a free market society...

  1. #31

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    Quote Originally Posted by LibForestPaul View Post
    any good historical books for recommendation?
    Gangs of America: The Rise of Corporate Power and the Disabling of Democracy

    Geared more to appeal to the Occupy people, I think, but a very entertaining read nonetheless--factual and informative.


    For a bit more scholarly background history of how the corporate camel got its nose in the legal and political tent, read:

    The Corporate Reconstruction of American Capitalism, 1890-1916: The Market, The Law And Politics By Martin J. Sklar

    That's a good one because it covers the rise of economic liberalism during the Progressive Era, and how Roosevelt, Taft and Wilson factored into all of it. Just as the Fed gets defended by the political left and right, each for their own non-principled self-interested reasons, a similar story plays out with the rise of corporate powers. My take is that presumably, anything that concentrates and collectivizes wealth/power was also thought to be easier to socially and centrally engineer. That's the madness behind the method, at least, and there's something to that, in a "At least my dog is on a leash and has to obey me" kind of way. It's not nearly as easy to regulate and control a herd of individual Citizen cats with actual rights, but if you give corporations favored status and artificially empower them with greater advantages geared toward concentrating wealth, they are presumably much easier to tax and control ::: snicker :::, as creatures of the state acting as a matter of privilege, and not rights.
    Last edited by Steven Douglas; 12-01-2012 at 09:08 PM.



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  3. #32

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    I am just picturing running a multi-billion dollar organisation out of a personal account.

    All revenue is income, profit doesn't exist? So taxation is at the maximum personal rate on the whole revenue not on profits?

    Help me out, I use accounting books to prop up tables...
    Stop the Looting and Start Prosecuting! Gold plated Tungsten IS Money!
    We Must Dissent A colher n縊 existe.
    A government is just a body of people, notably, usually, ungoverned.

    "You mean this entire war started because The Empire dressed as the enemy? That's exactly what happened in the last major war! Our government is so stupid!"

  4. #33

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    Quote Originally Posted by Acala View Post
    Actually, the problem isn't solved by this doctrine. Courts RARELY pierce the corporate veil. In my thirty years of law practice, including a year as a law clerk for a Federal judge when I saw hundreds of lawsuits with corporate defendants, I can't recall a single instance when a court pierced the corporate veil. That would mean plaintiffs would actually get to seek out stock holders personally and that just doesn't happen.
    Do you recall the best example of a case where you believe the veil should be pierced? Is the problem the lack of a better doctrine? Or just the lack of courts using it?

    Also, can't the problem be solved by suing the owner/board directly? I mean, after all, companies cannot act without the string pullers, so what's wrong with suing string pullers? (Let's assume, you are the plaintiff and you've been wronged by a company's actions, and you either know or have no reason to believe to the contrary that the string pullers made the direct decisions)

    The government doesn't seem to have a problem peircing veils or prosecuting criminals if a company committed a crime in any way, is this problem only a problem when plaintiffs are seeking money?
    Last edited by Tpoints; 12-01-2012 at 10:44 PM.

  5. #34

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    Quote Originally Posted by Tpoints View Post
    Do you recall the best example of a case where you believe the veil should be pierced? Is the problem the lack of a better doctrine? Or just the lack of courts using it?

    Also, can't the problem be solved by suing the owner/board directly? I mean, after all, companies cannot act without the string pullers, so what's wrong with suing string pullers? (Let's assume, you are the plaintiff and you've been wronged by a company's actions, and you either know or have no reason to believe to the contrary that the string pullers made the direct decisions)

    The government doesn't seem to have a problem peircing veils or prosecuting criminals if a company committed a crime in any way, is this problem only a problem when plaintiffs are seeking money?
    Because since corporations are people, it's technically the corporate person pulling the strings. Just pay no attention to the man behind the curtain.


  6. #35

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    Quote Originally Posted by Bohner View Post
    Because since corporations are people, it's technically the corporate person pulling the strings. Just pay no attention to the man behind the curtain.

    Isn't personhood only for jurisdiction purposes?

    I mean, if corporations did NOT have personhood for jurisdiction designation, is that better or worse?

  7. #36

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    Quote Originally Posted by idiom View Post
    I am just picturing running a multi-billion dollar organisation out of a personal account.

    All revenue is income, profit doesn't exist? So taxation is at the maximum personal rate on the whole revenue not on profits?

    Help me out, I use accounting books to prop up tables...
    I'm no accountant, and I don't think tax policy should shape the market. In fact I don't think there should be an individual income tax at all. But when you own a business yourself, there is only one tax return - yours. Money that comes into the business is your income. You pay tax on that income after deducting various business expenses.

    Most non-corporate businesses have separate accounts. You can have as many bank accounts as you want, dedicating them to different purposes. Some very large organizations have operated as partnerships - Loyds of London, all the giant law firms and accounting firms (although most of them have corporate identities now).
    The proper concern of society is the preservation of individual freedom; the proper concern of the individual is the harmony of society.

    "Who would be free, themselves must strike the blow." - Byron

    "Who overcomes by force, hath overcome but half his foe." - Milton

  8. #37

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    Quote Originally Posted by Tpoints View Post
    Do you recall the best example of a case where you believe the veil should be pierced? Is the problem the lack of a better doctrine? Or just the lack of courts using it?

    Also, can't the problem be solved by suing the owner/board directly? I mean, after all, companies cannot act without the string pullers, so what's wrong with suing string pullers? (Let's assume, you are the plaintiff and you've been wronged by a company's actions, and you either know or have no reason to believe to the contrary that the string pullers made the direct decisions)

    The government doesn't seem to have a problem peircing veils or prosecuting criminals if a company committed a crime in any way, is this problem only a problem when plaintiffs are seeking money?
    The liability shield is the main PURPOSE of the corporate entity. It allows them to gather vast sums of money essentially anonymously. So courts rarely pierce it. And it applies to officers and directors as well. Of course they still have individual liability if they personally act criminally, but that's not the big problem.

    To me the big problems with the corporate business form are:
    1. Those who profit from the activity of the entity are shielded from responsibility
    2. The entity is immortal
    3. No human being has a public reputation intertwined with the activity of the entity
    4. Separating ownership, management, and legal responsibility into separate parts encourages reckless activity, short-term thinking, lack of loyalty to the customer and employee, lack of concern for the community, and insularity of the real owners.

    There are more . . .
    The proper concern of society is the preservation of individual freedom; the proper concern of the individual is the harmony of society.

    "Who would be free, themselves must strike the blow." - Byron

    "Who overcomes by force, hath overcome but half his foe." - Milton

  9. #38

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    Quote Originally Posted by Tpoints View Post
    Isn't personhood only for jurisdiction purposes?

    I mean, if corporations did NOT have personhood for jurisdiction designation, is that better or worse?
    Corporations own property and enter contracts just like a real human being. But they never die and the people who pull the strings are shielded from personal liability.
    The proper concern of society is the preservation of individual freedom; the proper concern of the individual is the harmony of society.

    "Who would be free, themselves must strike the blow." - Byron

    "Who overcomes by force, hath overcome but half his foe." - Milton

  10. #39

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    Quote Originally Posted by Bohner View Post
    I was looking on Mises and was surprised that there is even a debate as to whether limited liability should be legal. Limited liability (ie. corporate personhood) is completely incompatible with libertarian philosophy IMO.

    The idea that company's like Bain can buy a company, rip away and sell off all it's assets piece by piece, have the company take out loans in order and use that money to pay themselves and then bankrupt the company, rinse and repeat while taking no personal responsibility for the bankruptcies sounds like crony capitalism at it's finest.

    Most of the problems associated with unlimited liability could easily be negated through liability insurance anyways.

    Thoughts?
    First of all who is teaching you about private equity? Robert Reich? That isn't what Bain did/does. Think for a second about why the bolded isn't true. Banks have to loan Bain the money. They aren't going to loan Bain money if they don't expect to get paid back.

    And of course the part about buying a company and selling off the pieces is not unethical. Its creative destruction. The assets they sell will be distributed throughout the economy for more productive use.

  11. #40

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    Quote Originally Posted by Acala View Post
    Corporations own property and enter contracts just like a real human being. But they never die and the people who pull the strings are shielded from personal liability.
    so when you rob the shell of its assets, wouldn't you force the puller to come out in defense?

  12. #41

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    Quote Originally Posted by Acala View Post
    The liability shield is the main PURPOSE of the corporate entity. It allows them to gather vast sums of money essentially anonymously. So courts rarely pierce it. And it applies to officers and directors as well. Of course they still have individual liability if they personally act criminally, but that's not the big problem.

    To me the big problems with the corporate business form are:
    1. Those who profit from the activity of the entity are shielded from responsibility
    2. The entity is immortal
    3. No human being has a public reputation intertwined with the activity of the entity
    4. Separating ownership, management, and legal responsibility into separate parts encourages reckless activity, short-term thinking, lack of loyalty to the customer and employee, lack of concern for the community, and insularity of the real owners.

    There are more . . .
    It's not immortal, bankruptcy and solvancy is death.
    Those who profit from activity are shielded from responsibility, that is definitely a problem.
    Maybe shareholders would not have their reps tied to the entity's activity, but CEO and board usually are.
    Yes, separating responsibility from rights should never happen, this is no different regardless of what entity, group, or purpose of either are.

  13. #42

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    Quote Originally Posted by Acala View Post
    Depends on what you mean by a free market and in what form the church would exist. I think only human beings should be able to own property or enter contracts. Certainly groups of people could get together and own property jointly and call it a church. But can they create an artificial entity that can itself own property, sign contracts, etc? I don't know why that would exist in a free market.
    I can't imagine how it could not exist, unless the state forcibly banned it.

    There would be people who would want to have churches that owned property and had officers who could sign contracts on behalf of the body. There would be other people who would willingly engage in business with them. So voila! There's a corporation.
    I知 not a libertarian. I知 not advocating everyone run around with no clothes on and smoke pot.

  14. #43

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    Quote Originally Posted by erowe1 View Post
    I can't imagine how it could not exist, unless the state forcibly banned it.

    There would be people who would want to have churches that owned property and had officers who could sign contracts on behalf of the body. There would be other people who would willingly engage in business with them. So voila! There's a corporation.
    yes, the state should forcibly ban any person from using an entity to fraudulent escape responsibility. Yes, there are people who can willingly sign away their rights or allow another to be free of responsibility, that would be legal, though very stupid.

  15. #44

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    Quote Originally Posted by erowe1 View Post
    I can't imagine how it could not exist, unless the state forcibly banned it.

    There would be people who would want to have churches that owned property and had officers who could sign contracts on behalf of the body. There would be other people who would willingly engage in business with them. So voila! There's a corporation.
    It's not a corporation because any non-consenting 3rd party that gets harmed as a result of negligence can still go after the individual responsible. In the current climate, they can only go after the corporation while the people pulling the strings are shielded from liability.

  16. #45

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    Quote Originally Posted by Bohner View Post
    It's not a corporation because any non-consenting 3rd party that gets harmed as a result of negligence can still go after the individual responsible. In the current climate, they can only go after the corporation while the people pulling the strings are shielded from liability.
    If you can prove if it was the string puller's act or inaction caused the corporation's acts/harm, can't you go straight for the puller? In the criminal context, that's always the way.

  17. #46

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    Quote Originally Posted by misean View Post
    First of all who is teaching you about private equity? Robert Reich? That isn't what Bain did/does. Think for a second about why the bolded isn't true. Banks have to loan Bain the money. They aren't going to loan Bain money if they don't expect to get paid back.
    Yes, no shit, but should the situation arise where they don't get paid back, in an unlimited liability setting, they can go after the people pulling the strings. They can't do this when the people pulling the strings are shielded with limited liability. It's pretty simple, bank loans corporate person money, corporate person uses some of that money to pay the men pulling the strings. Corporate person goes bankrupt, even though some of that money went to the men behind pulling the strings, they can't be touched.

    Hell, it basically creates the incentive for a corporation to accumulate as much debt as possible before bankruptcy because the people pulling the strings are not liable for a penny of it.

    I really don't see how this is in any way consistent with free market principles.

    I'm not saying Bain did this all the time btw.

  18. #47

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    Quote Originally Posted by Bohner View Post
    It's not a corporation because any non-consenting 3rd party that gets harmed as a result of negligence can still go after the individual responsible. In the current climate, they can only go after the corporation while the people pulling the strings are shielded from liability.
    I don't think that means it's not a corporation.

    Saying that corporations wouldn't exist unless they were registered by the government and regulated by the same kinds of laws they are now is like saying that marriage wouldn't exist without marriage licenses.
    I知 not a libertarian. I知 not advocating everyone run around with no clothes on and smoke pot.

  19. #48

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    Quote Originally Posted by Bohner View Post
    It's pretty simple, bank loans corporate person money, corporate person uses some of that money to pay the men pulling the strings. Corporate person goes bankrupt, even though some of that money went to the men behind pulling the strings, they can't be touched.
    Why would the bank want to do that?
    I知 not a libertarian. I知 not advocating everyone run around with no clothes on and smoke pot.

  20. #49

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    Quote Originally Posted by Tpoints View Post
    If you can prove if it was the string puller's act or inaction caused the corporation's acts/harm, can't you go straight for the puller? In the criminal context, that's always the way.
    Not necessarily. Obviously a string puller can't shoot another person and say the corporation did it. Perhaps in a criminal context, but you have to prove that the string puller clearly broke the law, and even then, he may still not be liable.

    If you want to go after the string puller personally in civil court for damages, it's not happening.

  21. #50

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    Quote Originally Posted by erowe1 View Post
    Why would the bank want to do that?
    Do what? Lend out money?

    That's what banks do.

  22. #51

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    Quote Originally Posted by Bohner View Post
    Do what? Lend out money?

    That's what banks do.
    Lend out money under the circumstances you described.

    I don't know if you've ever gotten a loan. But you don't just walk into a bank, say you want a loan, and have a guy give you a bunch of money and say, "We're a bank, that's what we do."
    I知 not a libertarian. I知 not advocating everyone run around with no clothes on and smoke pot.

  23. #52

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    Quote Originally Posted by erowe1 View Post
    I don't think that means it's not a corporation.

    Saying that corporations wouldn't exist unless they were registered by the government and regulated by the same kinds of laws they are now is like saying that marriage wouldn't exist without marriage licenses.
    Doesn't really matter. A corporation protects string pullers from liability whether the ones that were harmed were willing participants or not. This couldn't possibly happen in a free market. I guess you could still call it a corporation but the liability protections could only be between consenting parties in the form of a contract.

  24. #53

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    Quote Originally Posted by Bohner View Post
    Doesn't really matter. A corporation protects string pullers from liability whether the ones that were harmed were willing participants or not. This couldn't possibly happen in a free market. I guess you could still call it a corporation but the liability protections could only be between consenting parties in the form of a contract.
    You seem to be saying that there could never be any such thing as corporations except for corporations that "protect string pullers from liability."

    I don't buy that.
    I知 not a libertarian. I知 not advocating everyone run around with no clothes on and smoke pot.

  25. #54

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    Quote Originally Posted by erowe1 View Post
    You seem to be saying that there could never be any such thing as corporations except for corporations that "protect string pullers from liability."

    I don't buy that.
    That's basically what a corporation is. If incorporating didn't protect string pullers from liability, there would be no point in incorporating to begin with.

    Whether you buy it or not is irrelevant.

  26. #55

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    Quote Originally Posted by Bohner View Post
    That's basically what a corporation is. If incorporating didn't protect string pullers from liability, there would be no point in incorporating to begin with.
    There would be lots of reasons people would want to form corporations apart from limiting liability. And I don't think it would be possible for people not to do that unless the state forcibly banned it, which would not be a free market.

    Saying that a corporation isn't a corporation unless it is regulated the same way our current laws regulate corporations is like saying that a marriage isn't a marriage unless there's a state marriage license.

    You've already seen free market economists at mises.org arguing this. And yet you still say that it's incompatible with a free market. Do you have any other sources that you think do a better job of presenting what you think the free market perspective is?
    Last edited by erowe1; 12-02-2012 at 04:42 PM.
    I知 not a libertarian. I知 not advocating everyone run around with no clothes on and smoke pot.

  27. #56

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    Quote Originally Posted by erowe1 View Post
    There would be lots of reasons people would want to form corporations apart from limiting liability. And I don't think it would be possible for people not to do that unless the state forcibly banned it, which would not be a free market.
    Such as?

    Quote Originally Posted by erowe1 View Post
    Saying that a corporation isn't a corporation unless it is regulated the same way our current laws regulate corporations is like saying that a marriage isn't a marriage unless there's a state marriage license.
    The argument for marriage in the free market is that is basically a contract between two consenting parties. The court only needs to recognize the contract between the two (or more) parties, and not necessarily the marriage itself.

    The difference with a corporation is that the courts recognize it as a legal person, regardless of whether or not a contract was in place with the people harmed. One of the key free-market principles is that you are responsible for your actions. A corporation is basically a state-sponsored entity that effectively removes this responsibility.

    Quote Originally Posted by erowe1 View Post
    You've already seen free market economists at mises.org arguing this. And yet you still say that it's incompatible with a free market. Do you have any other sources that you think do a better job of presenting what you think the free market perspective is?
    How is a state sponsored entity compatible with the free market? Marriage in it's current form certainly isn't.

  28. #57

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    Quote Originally Posted by erowe1 View Post
    Lend out money under the circumstances you described.

    I don't know if you've ever gotten a loan. But you don't just walk into a bank, say you want a loan, and have a guy give you a bunch of money and say, "We're a bank, that's what we do."
    No... They check your credit, and maybe require you to put down some assets as collateral. Maybe raise the interest rate if they view your loan as a risky one.

    Doesn't really change anything though. There's more of an incentive to bankrupt a company and squeeze every penny you can out of it before hand if

    1) You know you aren't personally liable for the debt.
    2) The creditors can't go after you personally for every penny you squeezed out of the company before the bankruptcy.

  29. #58

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    It is also a firewall against unlimited liability. Without some sort of limitation on liability you risk total destruction from minor offences under the current American arbitration system.
    Stop the Looting and Start Prosecuting! Gold plated Tungsten IS Money!
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  30. #59
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    Quote Originally Posted by Bohner View Post
    I was looking on Mises and was surprised that there is even a debate as to whether limited liability should be legal. Limited liability (ie. corporate personhood) is completely incompatible with libertarian philosophy IMO.
    Limited liability and personhood are not the same things. But let us work from the bottom up.

    I believe that corporations stand in complete violation of personal liberty and justice for several reasons, the strongest being that it relies on the force of the state to give implementation any substantive meaning. As such they ought not exist. The standard reasons given for allowing them are pure nonsense, the ostensible goals touted being as readily achievable using other means.

    But we do have them and they will not likely be going away in our lifetimes, barring a monumentally revolutionary event that would most likely have to involve a tremendous natural calamity or aliens landing in Central Park. Even then, in the latter case, I would not bet the farm because for all we know such aliens might be using a similar psycho-legal instrument. The depths of insanity to which we are sinking have reinforced my long-standing belief in not taking anything for granted.

    Give that we have them, and assuming that they are here to stay, I would recommend some changes in their conceptual structure and specific legal status. For example, limited liability is a nothing better than a bald-faced special dispensation for certain people to behave in ways that would put the individual behind bars. One of the standard arguments in favor of this lunacy is that were the officers of a corporation not shielded from liability, innovation would suffer and therefore business and the economies of nations because nobody would be willing to assume the risks of being held accountable. This is, of course, a great steaming pile. People want to make money and many are into whatever their game is for even more noble reasons. Liability is not going to ruin economies. It might slow them down a bit, but who is to say that this is a bad thing? Would it really have been that bad were we living in an early 19th century culture if it meant that we had not polluted the planet as we have? What we would not have known we would not miss. How many of us really pine for Star Trek style transporter technology? None of us who are sane and rational do.

    So I would eliminate limited liability yesterday. If it slows progress, that is just fine with me when the benefits are weighed against the liabilities. Ford with their exploding Pintos would not likely have ever come to pass had the corporate officers known that long prison terms were to be their reward, not to mention financial ruin for them and their families. Let them shiver and shake at the idea of their products bringing harm to others. Let them slow down. Let prices rise if they must. I'd rather pay more for food, knowing it is not poisoning me. YMMV, of course.

    Corporate personhood... a different matter. Personhood as today practiced in law is also pure crap, but if we are to have corporations then certain aspects of human rights should apply to them. Police should not be able to waltz into a corporate office and seize, say, documentation without due process. That sort of thing would likely damage an economy - set in chaos in fact. We know police cannot be trusted, and therefore this protection should remain... in part.

    The idea that company's like Bain can buy a company, rip away and sell off all it's assets piece by piece...
    ...is perfectly legitimate. They bought the assets, own them rightfully, and are entitled to dispose of them as they would.

    have the company take out loans in order and use that money to pay themselves and then bankrupt the company, rinse and repeat while taking no personal responsibility for the bankruptcies sounds like crony capitalism at it's finest.
    Here you appear to be talking about fraudulent acts, which should be punished with weighty prison terms.

    This is not really crony capitalism, it is rigged-market capitalism wherein cronyism almost certainly plays a part.

    Most of the problems associated with unlimited liability could easily be negated through liability insurance anyways.
    Not "unlimited" liability, but rather "unbounded". There is a difference, subtle as it may be. "Unlimited" carried with it a vague connotation that leaves a bad taste in one's mouth and that connotation is the basis for complaint against it. It implies that a company could go under if an error on their part is discovered, resulting in a legal spooge-fest with everyone getting on a bandwagon to slice off their pound of corporate flesh. This is a very real and legitimate concern by corporations, that judicial imprudence would lead to disaster for a corporation and perhaps economies as well.

    "Unbounded" liability connotes something slightly different, the more complete descriptive phrase being "limited but unbounded". It implies that there are limitations on one's ability to sue, but that in clear cases of actual liability for conduct, if the damages are sufficiently extensive the company could indeed be wiped out.

    So the difference here is one of proper v. improper justice. If a corporation has earned being wiped out by its decisions, then let it be so. But let no corporation be punished beyond its deserts as the mere distaste or even hatred one may hold for a given company or the notion of the corporation in general is no just basis for bringing it to harm.

    I would also add that if a corporation's damages outstrip its ability to pay, it should perhaps be preserved and allowed to continue to operate with the sole objective of restoring equity, at which time it is put down and its assets liquidated. I might go so far as to award to the plaintiffs some proportion of stock commensurate with their losses, to be surrendered once the corporation has satisfied judgments against it so that it can then be dissolved.

    The corporate deal has gone out of control. If we do not roll it back, it is going to roll us flat as pancakes into the asphalt.
    Last edited by osan; 12-02-2012 at 08:34 PM.
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    Shelley's thinly veiled warning to tyrants:

    The monster saw my determination in my face and gnashed his teeth in the impotence of anger. "Shall each man," cried he, "find a wife for his bosom, and each beast have his mate, and I be alone? I had feelings of affection, and they were requited by detestation and scorn. Man! You may hate, but beware! Your hours will pass in dread and misery, and soon the bolt will fall which must ravish from you your happiness forever. Are you to be happy while I grovel in the intensity of my wretchedness? You can blast my other passions, but revenge remains--revenge, henceforth dearer than light or food! I may die, but first you, my tyrant and tormentor, shall curse the sun that gazes on your misery. Beware, for I am fearless and therefore powerful. I will watch with the wiliness of a snake, that I may sting with its venom. Man, you shall repent of the injuries you inflict.

  31. #60
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    Quote Originally Posted by idiom View Post
    It is also a firewall against unlimited liability. Without some sort of limitation on liability you risk total destruction from minor offences under the current American arbitration system.
    If our so-called "judicial" system worked properly, limited liability would not be necessary for the reasons you state. If a corporation does so much damage, I see no reason that they should not go bankrupt and its officers to prison for decades of introspection from the comfort of a dank cell. There should be NO refuge from such liability. By the same token, anyone caught filing a fraudulent suit should also spend some time up river to contemplate the errors of their way. The blade cuts both ways and IMO we need to stop thinking like petty criminals and get back to some solid principles of individual conduct.
    --

    http://freedomisobvious.blogspot.com
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    ignominia et contemptum tyrannis

    Habeo excelsum artem; afflixerim cum crudelitate illis qui laedas me

    Shelley's thinly veiled warning to tyrants:

    The monster saw my determination in my face and gnashed his teeth in the impotence of anger. "Shall each man," cried he, "find a wife for his bosom, and each beast have his mate, and I be alone? I had feelings of affection, and they were requited by detestation and scorn. Man! You may hate, but beware! Your hours will pass in dread and misery, and soon the bolt will fall which must ravish from you your happiness forever. Are you to be happy while I grovel in the intensity of my wretchedness? You can blast my other passions, but revenge remains--revenge, henceforth dearer than light or food! I may die, but first you, my tyrant and tormentor, shall curse the sun that gazes on your misery. Beware, for I am fearless and therefore powerful. I will watch with the wiliness of a snake, that I may sting with its venom. Man, you shall repent of the injuries you inflict.

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