Instapundit makes the point that the officers and directors of a corporation have a fiduciary duty to the corporation’s shareholders, that is, they have a duty to act in the best interests of the shareholders. It’s a point that I have brought up before.
Businesses entities (which is what corporations are) exist to create value for their owners (i.e., the shareholders) by delivering goods and services. It’s that simple. They have no other purpose.
I’m not going to link directly to the item linked in that Instapundit post, because the item is, frankly, tripe. Publicly-owned corporations have no “political responsibility.” They have a legal responsibility to maximize return on investment to their shareholders. Corporate sensitivity to social concerns can be justified legally only if it results in a better return on investment to the shareholders.
What in the World
What in the world- my question following the Kavanaugh hearings, but in an attempt to put a finer point on it, asked otherwise- can I sue for say defamation of character, on behalf of another, as I guess one citizen for another? Thinking, Justice Kavanaugh certainly can’t sue on his own behalf, from the bench.
The answer to my question turns out to be, no, and in very clear terms. As will be evident, I’ve gone so far as to seek this clarification in extant law: 206 Ariz. 520, Arizona Supreme Court. Dec. 4, 2003. “This court has, as a matter of sound judicial policy, required persons seeking redress in the courts first to establish standing, especially in actions in which constitutional relief is sought against the government . . . In Sears [v. Hull], we denied standing to citizens seeking relief against the governor because they failed to plead and prove palpable injury to themselves.” Federal case law in the Ninth Circuit Court of Appeals takes an almost identical approach. (I had help with this information).
Clear enough? Yes, I think so. What I might extrapolate from it is that mere embarrassment for the actions of our senators in the confirmation hearings, will not qualify any citizen for “standing.” Embarrassment would not be considered palpable, personal injury; which makes a kind of unassailable sense. Embarrassment will not even attract judicial notice. Nor should it, I suppose. The court goes on to say in the above citation, “A contrary approach would inevitably open the door to multiple actions asserting all manner of claims against the government.” I won’t argue with that.
But I remain troubled. Whether any of our sitting senators would willingly subject themselves to an interrogation of the sort Justice Kavanaugh has had to endure, is very much in doubt, reaching as it did into adolescent experience. Would the ranking minority member, for example, want to tell us about her first experience in the back seat of a car? No, at least I hope not, nor would any other members of the senate judiciary committee. Because it’s personal, very old stuff, and while some of our own reflections of this period of our lives may make us wince, we go on, most of us, to lead productive lives. We grow, up.
Some senators will still resist, want to re-explore adolescence as if it were really legitimate investigative ground, at least for senatorial blessing’s sake. Our own senator Flake insisted on one more investigation into the adolescent behavior of our newest justice, which redirected our FBI on yet another panty raid mission.
Most of us have come to understand that American government has become politics, and that politics, particularly in recent years, have gravitated to no holds barred war. Someone in government said as much, not long ago. I forget who. Well even war has a few rules which pertain to decency; a Geneva Convention, other moral considerations regarding civilian populations. Decency, perhaps where decency might be loosely defined as some level of appropriateness supporting at least some consideration for others.
The senate purports to have rules, rules of order certainly, but not so certainly rules of decency. A senator from somewhere might be given five minutes to try to destroy someone’s reputation by reference to vague adolescent incidents beyond clear, complete memory, and by filling in blanks with innuendo. And then that same senator might yield some of his time to someone who’s got some more artfully dirty questions, to which there can be no convincingly clean or dignified answers.
A hearsay rule is a provision of decency for both sides of dispute, but particularly, I think, for people who find themselves in circumstances of their own defense. When hearsay is permitted, and the accuser, absent any factual basis or corroborating evidence, is urged on in her remarks and commended again and again for courage, any prevailing atmosphere of decency evaporates. Hearsay in the Kavanaugh hearings took the form of testimony, testimony so blurred by youthful assessment, alcohol, and by the passage of time that the name ‘testimony’ hardly applies to what amounts to little more than self- assembled hearsay. I’m not sure there are any hard rules for inadmissibility in the senate chambers, but if there were, there would have been no substance or reason for a hearing of this sort. It couldn’t have taken place. No chance for a partisan grilling.
Apparently anything goes in the senate. How is it that our senators are allowed to operate below the law, below the belt, and beyond redress? What in the world? Well, somehow we picked them, oh for their political views yes, but trusting perhaps in an underlying presumption of their judgment, and in this instance their judgment as to what kinds of things are appropriate for their official consideration, especially as a senate judiciary committee. And shame on us I suppose, for supporting their offices in these pursuits.
The camera and the microphone were on, revealing as it was of America’s top tier representative house in action. Maybe the nation needs to call some of these senators home for a little old fashioned upbringing, a little schooling in what many of us would want to call common decency or respect for our fellow man. I don’t want people around the world to think democracy has lost its helm, or that in September we lost our minds, our moral compass, and our dignity in one senatorial swoop.
What can I do? No courtroom remedy, is there, for just a red face. And I’m certainly not going to be invited to testify before the senate. (Maybe I’m not so certain of this). The answer though has been right in front of me all the time, hasn’t it; this next month coming, is November.
It’s the fault of the company’s board of directors, for not having adequate systems in place to prevent inappropriate workplace conduct? That’s what an investor in the Papa John’s pizza enterprise said in a lawsuit claiming that because the value of their investment declined after the CEO said something stupid, the enterprise should pay them damages.
What system would prevent the CEO from saying anything stupid? Have someone follow the CEO around to tell him or her to shut up whenever he or she starts to say something that sounds stupid?
I have a better idea: if the CEO is going around saying stupid stuff, the board of directors should fire that CEO and hire a smarter one. That should improve the share price of the company, shouldn’t it?
You’ve probably already heard about it, and it is off topic, but I can’t resist commenting on the biggest news of the week: Dunkin’ Donuts is officially dropping “Donuts” from its name. Their press release reassures fans like me, however, that Dunkin’ will “remain sweet on donuts.”
Wait, you thought the biggest news of the week was something else?
Constitution Day was September 17. It marks the day that the U. S Constitution was completed. As always, the Cato Institute is a good source of information on this event. Here’s a link to their blog post, which has links to other informative materials.
BAR APPLICANT SEZ: I HAVE A DISABILITY THAT PREVENTS ME FROM BEING TRUTHFUL, BUT THAT SHOULDN’T PREVENT ME FROM BEING ADMITTED TO THE PRACTICE OF LAW
The parodies write themselves, don’t they?
Actually, I can’t say it any better than the Supreme Court of Georgia did (their decision is linked in the ABA Journal article linked above):
“[The applicant] essentially asks for a waiver of certification, or an accommodation from being subjected to an examination of his character and fitness, based on an alleged inability to be truthful, accurate, and forthcoming in his bar application disclosures and his professional dealings.”
Via TaxProf Blog.
If you are interested in how businesses work, then you should be interested in how corporations work (no, that's not redundant).
On the subject of how corporations work, I have read several articles about Senator Warren’s proposed Accountable Capitalism Act. I think the best commentary I have read is the series by Professor Bainbridge, in which he explains several measures by which this proposed legislation would (1) radically change, and (2) profoundly harm, large American corporations. Highly recommended.
RANDOM THOUGHTS ON THE SUGGESTION BY THE MAYOR OF LANCASTER THAT HIS TOWN PROHIBIT EMPLOYERS FROM REQUIRING MALE EMPLOYEES TO WEAR TIES
Mind your own business.
Don’t you have anything better to do?
I doubt there are many businesses in Lancaster that require male employees to wear ties.
I’m probably playing into this mayor’s hands with this post, because he's getting attention.
He managed to get the Los Angeles Times to not only publish a story about this lame idea, but even publish his photo with it.
He’s not just a lawyer, he’s “well-known litigator.”
The United States Supreme Court has been made up of nine justices since 1869. The law that makes it so is in “an Act to amend the Judicial System of the United States,” adopted by the United States Congress on April 10, 1869. The citation is 16 Stat. 44, which contains Chapter 22 of laws of the Forty-First Congress.
It took me about fifteen minutes to find a copy of the actual government record.
Authoritative information is readily available, so don’t believe what anyone says just because it sounds like they know what they’re talking about.
REALLY, DON’T THREATEN YOUR CITIZENS WITH LEGAL ACTION BECAUSE THEY MADE NEGATIVE COMMENTS ABOUT YOUR TOWN
I have written a couple of posts recently about a smackdown administered to a town in Iowa that had its attorney threaten a citizen with legal action because the citizen wrote disparaging comments about the town. If you want to read the town’s abject surrender after it was sued by the ACLU on behalf of the citizen, Lowering the Bar has posted the injunction that was agreed to by the town, as well as the complaint.
The contents of this blog, this web site, and any writings by me that are linked here, are all my personal commentary. None of it is intended to be legal advice for your situation.