[Newspoetry] Collaring Unlawful Business Competitors: Profligate Cases of Wrongful External Diseconomy

[Donald L Emerick]

Friday, April 12, 2002 1:30 PM
NYTimes.com Article: Hawaii Halts Use of Cameras to Catch Speeders
http://www.nytimes.com/2002/04/11/national/11HAWA.html?ex=1019636223&ei=1&en
=09ad37c30c72967c

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Opinion:
Collaring Unlawful Business Competitors:
Profligate Cases of Wrongful External Diseconomy

Personally, I love the idea that the law of limiting speed ought to be
enforced.  Nothing angers me more than to be driving along, at the top legal
speed, and to have some felonious law-breaking yahoo come zipping by at a
speed far in excess of the legal limit.

Why am I angry?  First, I am angry because the highly visible example of a
wrongful other reminds me that there are no certain and sure consequences
for breaking the law.

Oh, sure, there are laws on the books that are wrong -- sometimes, even
greatly wrong.  But, the proper remedial course for that is to remove the
wrongfulness from the law, not to think that and to act as if breaking any
law that you happen to find odious is acceptable.

Second, government itself does us no favor when the laws that it enacts are
underenforced.  What government is allowed to do, when it has inadequate
resources to enforce the set of laws that are upon the books, is quite
simple.  Namely, the government necessarily then enforces the law
selectively -- arbitrarily, randomly, capriciously, and, in many cases, with
that form of overt discrimination that hides under the dignified label of
official discretion.

What resources would it take to enforce the law, consistently, uniformly,
generally, fairly?  You might think that such law enforcement would be too
expensive and that we then might have to settle for being satisfied with
wholly inadequate law enforcement.  Well, don't even try to tell me that it
would cost too much to be fair and just!

Instead, you ought to ask yourself the more important question: should the
government ever pass any law that it does not intend to enforce fairly and
justly?  Rather than let you answer this question "yes", may I suggest that
no medicine cures anyone by just sitting in a bottle on the shelf?  If a law
is to be like a cure for some social ill (or a preventative good health
practice), then less law may be all the law that we can afford.  A frivolous
rule of law will end when legislatures take seriously the idea of "necessary
and proper law".  [Note, our Constitution delcares that laws shall be
necessary and proper, but the Supreme Court has said that "necessary" and
"proper" are largely adjectives that intended to characterize legislative
political wisdom.  Whatever the legislature does, then, would be -- almost
by force of definition, according to the Supreme Court's thinking -- both
necessary and proper.  However, the Court has also been heard to say that
Marbury v. Madison stands for the idea that the constitutionality of any law
under the Constitution ultimately requires determination by a judicial
opinion.]

Therefore, let us drop the angelic assumption of law (AAL) that supposes
that laws are mostly self-enforcing.  That kind of naivete only vaguely
covers a few of the laws on the books.  The  AAL claim should be treated as
an exception to the more general demonic presumption (DPL).  Namely, DPL
assumes the worst case, that understanding the law requires one to think
like a bad guy.  DPL says that people naturally disobey any law that
interferes with their own ideas about what constitutes personal and
individual freedom.

The demonic assumption would advise us to say: "Look, if you are going to
have a law against industrial pollution, then you also must hire enough EPA
regulators to catch (almost) all of the wrongdoers, (almost) all of the
time, and have a mandatory sentence for each and every single offensive act
of polluting."  Some present laws just treat offending polluters as if they
had unknowingly broken some piece of equipment, even though it has been
fouling the air, the soil, the waters for days, months and years.

How large should be the penalty against a wrongdoer?  Well, if this were a
business -- and in the case of environmental crimes, that is just exactly
the class of offender that we are dealing with -- dumping considerable
quantities of toxic wastes into the environment ought to be treated at least
as serious as any other kind of terrorism.

We ought to arrest, try and imprison the executive leadership and directing
boards of such companies, then hunt down their vast network of al-qaeda
foot-soldier stockholders, down to the .1 % level of ownership, involvement
and participation.  (Such persons should be glad that I happen to think that
the use of death as a so-called penalty is morally wrong.)

What legal charge of wrongdoing could be brought against shareholders?  We
might design our charge along the lines of an accusation against a form of
participation in an unlawful conspiracy.  We could charge shareholdes with
the act of "wanton, willful and reckless ownership of stock in a company
that intentionally causes harm to others by polluting."  Now, the element of
intentionality should be easy to prove.  Remember, business always says that
it is the premier hyper-rational entity.  In the law, this kind of statement
could be taken as a truthful, voluntary, out-of-court confession that will
satisfy, as a confession of intent, almost any criminal trial jury!

Actually, its truthfulness, in fact, does not matter, as long as the accused
has uttered such words, intending or believing them to be true.  Indeed, if
such statements were taken as confessional in the sense that I propose, then
I do not imagine to hear too many Association of Manufacturers and other big
business organizations claim -- fraudently , in my opinion -- that business
is the most rational agent of  the (capitalist) economic enterprise.  (And,
economists have long ago shown that businesses, in actual "internal"
operations, do not behave rationally, at all.)

What shall the punishment be for the accused and convicted stock-owner?
Well, if we intend to continue to respect the market axiom of the corporate
veil (investing is good for promoting business growth because that leads to
a better life for all), then our only recourse is against the shares (and
not the person and personal wealth) of the owner.  That is, we shall have to
preserve the same limited liability for the shareholder and stock-owner.
However, as in the possession of any other instrumentality of crime, the
shares of stock could be made subject to an immediate in rem confiscation,
without any right of direct appeal.

After all, says the Supreme Court, it is only property that is being used in
connection with the commission of a serious crime (polluting); such wrongful
acts extinguish ownership rights or never let them vest, absolutely.    They
say, in effect, "Forget what you read in that silly Constitution that says
Government may not take private property without just compensation!"
Instead, the Supremes say that their trick word works legal magic.  Because
they do not recognize a right to private property in anything that the law
deems to be contraband, the Court says, by a nice word game: "No property,
No compensation requirement."

Moreover, the Supremes say that it is only just that the seized
property/assets of any criminal business ought to be made to pay for the law
enforcement programs of society!  Seizing shares of stocks would give the
government ownership of all of the assets of the wrongful business, which it
could then dismantle and sell off.  (Perhaps, a latter-day Carl Icahn could
be found to chop up these businesses that are bad for us and bad to us?)

Have I been too hasty in criticizing the Supremes for their total disregard
for substantive reason?  By their reasoning, I would be encouraged to vent
my disgust upon the overtly political arm of the government -- its
legislature.  Maybe, we just have elected the wrong political majority in
the legislature!  Imagine what laws we would have when legislatures write
the kinds of laws that I like!  We would have laws, indeed, against careless
profit-makers, exploitative profit-takers and other idiot coupon-clippers
(as in 401-K, IRA and pension plans).

In my world or any other world, afterall, every aspect of ownership ought to
be a morally serious, highly responsible act.  That is, the right to
exercise some aspect of ownership is never supposed to be absolute, but is
always conditioned upon the expectation of its reasonable use.  A reasonable
use of any right always relates to the benefit that is to be conferred upon
society by permitting and encouraging people to exercise that right.  A
reasonable use of any right must not only annoouce, doctrinarily, that it
intends to make life better for others, it must also demonstrate (at least
modestly) that it does, in fact, confer such benefits upon such others.
Mere lip service to some principle is never enough to satisfy the reason
that society expacts and demands of anyone.

However, before I go too far (as if I had not gone too far long ago), let's
see if we all understand, correctly, the kind of legal reasoning that the
Supremes use.  If the Constitution forbids "slavery of persons", and if the
Supremes decides that some beings are not persons (consider, for instance, a
latter-day Dred Scott case), then the Constitution does not forbid the use
of those beings as, well, as slaves.  However, in the twisted logic of the
Supreme Court, we would note that such beings may not be called slaves,
because slavery applies only to persons and such is also forbidden.  So,
this kind of Supreme reasoning would lead us to the conclusion that we shall
have to call such slavery by something other than the term slavery.  We
shall have to choose a term that is verbally, at the very least (and that
would also be at the very most) different.  I leave Orwellian terminological
choices to you.

Well, I hope that I have horrified you enough with this meandering essay on
the necessity for laws that mean what they say.  I am  angry at and weary of
political hypocrisy, which pretends that legal words need have no meaning.
I say, hack-neighingly, politicians should no longer have our cake and eat
it, too.  Polticians ought not to pass any law unless they fund the mandate
that adequate and fair enforcement of such a law reasonably entails.
Otherwise, the law is mocked and the law becomes a swill for pigs, a feeding
lot reeking of the excrescent.  (And, in case you have not noticed, the air
has seemed to be rather foul for many years -- and the stench seems to be
growing.)

Let us, then, fairly and justly seek to fund the mandate of the laws against
pollution, rather than plead limitations of the budget.  Let us remember
that we may fairly and justly recover the costs of enforcing good business
law by taking seriously the criminality of the bad businesses, their
leaders, and their owners.

It is said that lust is the premier moral issue in any criminality.  It is
also said that such wrongful lust then takes the form of wrongful conduct,
taking things from others that it neother deserves nor merits.  I take this
to say, also, that seeking profits from acts that are reckless and
deliberate misconduct is also wrongful.  If so, I say that we ought to
punish disincentivize any profit motive that overpowers the reason that
seeks the good of society.  I say that only then shall we deter lust enough,
so that it shall vanish from the earth like a bad dream.  Let it appear
again!

Let's get into the serious business of putting bad businesses out of
business forever in the "for profit" sector.  And, I must confess, a bad
business means one that is "at my expense and to my loss," as one that
profits me, truly, naught.  The presumption of the law might even be that
any sign of profits is almost always a sign of some wrongdoing.  Serious,
hardworking people never are nearly clever enough to be both fairly just and
profitable, too.

Thanks for listening,
Donald L Emerick

*---------------


emerick at chorus.net

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Hawaii Halts Use of Cameras to Catch Speeders

April 11, 2002

By THE ASSOCIATED PRESS




HONOLULU, April 10 - Gov. Benjamin J. Cayetano ordered a
halt today to the use of cameras to catch speeders, a
system that many Hawaii motorists considered so underhanded
that they tried to subvert it.

Governor Cayetano said he acted because the Legislature was
about to repeal the program anyway. "The traffic van cam
law is the creation of the Legislature, and if they want to
now cancel the program it will be canceled," the governor
said.

The van-mounted cameras, introduced on Oahu two months ago
and operated by a private company, were coupled with radar
and automatically photographed a speeder's license plate. A
ticket was then mailed to the vehicle's owner.

Drivers mockingly called the vans "talivans." Several
thousand motorists bought license covers that illegally
obscured plates, and cellphone users called morning radio
shows to reveal the vans' locations.

Late on Tuesday, the House tentatively decided to abandon
the system, and though Governor Cayetano acceded, he
maintained that the program's purpose was good.

"Driving at faster speeds has become a habit for many
drivers and explains, at least in part, why there was so
much opposition to the traffic van cam," he said.

The devices were supposed to catch violators the way
red-light cameras have been doing for years, without the
danger of a police chase. Proponents said the system would
help slow traffic and thereby save lives.

Drivers and civil liberties lawyers complained that the
system was an invasion of privacy and unfairly assumed that
the owner of the vehicle was the person driving.

While many states use cameras to catch people running red
lights, Hawaii was the first to pass a law allowing
photograph-enforced radar along state roads.




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