Mobile Press-Register~ Just let the lawyers decide

I found The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities by Kent Greenfield thanks to the Mobile Press-Register. It might be a touch off topic for my interest yet when I read its description, which I'll share below, I thought it relevant. On June 24, 2008, the MP-R opined Alabama needs to flee 'tort purgatory' where I'll admit they got it right to suggest our method for electing judges is flawed. I've mentioned the Missouri Plan long ago and continue to think it wise policy.

The MP-R didn't send me to the book I referenced but rather transmitted the positions of the U.S. Chamber of Commerce, their Institute for Legal Reform, and corporate defense counsel to their readers. In that I'd read this New York Times piece just a few days before I was under the impression big business was pretty much winning the "tort war".

The MP-R's logic in their concern follows ... "The short answer is that they [corporate counsel] can influence some of the key decisions of the businesses they represent, such as where those companies locate or choose to do business." Wouldn't the vast majority of the concerns of those about to set up shop in Alabama relate to workmen's compensation laws and thus completely distinct from "tort" troubles? And aren't we doing OK attracting some rather high end companies? As for choosing to do business, as far as goods in the stream of commerce, I'd suggest we hardly have a limited amount of choices for consumers. And if we didn't, isn't that according to the market MP-R? Don't you guys think the markets solve everything? So you want the markets to apply to public education but not to business?

The MP-R also opines

The state hasn't gone far enough in limiting punitive and non-economic damages. This isn't just an abstract observation based on the opinions of corporate lawyers. It's backed up by actual cases such as the wrongful death suit in Baldwin County that produced a staggering $50 million jury award last year.

Aren't all wrongful death cases about punitives in Alabama? That might be relevant to share to the readers I'd think. Since Dale Krantz lived for five days with severe burns over 90% of his body after a faulty water heater blew up and since his wife and kids were due something then I guess compensatory damages kicked in. Maybe they were moved by the nature of his injury and his family experiencing the tragedy? Perhaps the jury was frustrated or insulted by a defense that argues it was a gas leak that caused the harm and even if they thought it was the water heater then a million was all this husband and father was worth? If two other defendants settled for one million each, presumably their insurance limits, that might suggest this was a solid case.

I also note no mention was made of a verdict in Mobile later in 2007. That case involved businesses (Halliburton being one of the companies popped!) suing each other and was surely worthy of twice that of what the Krantz jury rendered. After all, this first case involved merely a human life. And the right in Alabama is all about a "culture of life" isn't it? Finally, I'd be willing to bet those business tort numbers eventually make into Chamber/IfLR propaganda!

Back to the book ... Here's a "product description":

When used in conjunction with corporations, the term “public” is misleading. Anyone can purchase shares of stock, but public corporations themselves are uninhibited by a sense of societal obligation or strict public oversight. In fact, managers of most large firms are prohibited by law from taking into account the interests of the public in decision making, if doing so hurts shareholders. But this has not always been the case, as until the beginning of the twentieth century, public corporations were deemed to have important civic responsibilities.

With The Failure of Corporate Law, Kent Greenfield hopes to return corporate law to a system in which the public has a greater say in how firms are governed. Greenfield maintains that the laws controlling firms should be much more protective of the public interest and of the corporation’s various stakeholders, such as employees. Only when the law of corporations is evaluated as a branch of public law—as with constitutional law or environmental law—will it be clear what types of changes can be made in corporate governance to improve the common good. Greenfield proposes changes in corporate governance that would enable corporations to meet the progressive goal of creating wealth for society as a whole rather than merely for shareholders and executives

The MP-R thinks corporate lawyers ought to influence how we structure our systems of justice in rather broad ways. It's shocking how radical an idea this is and yet they are willing to serve up with no shame. I, and hopefully others, cringe when I hear "corporate". Perhaps this is from reading and learning. I can also get a plug in for The Corporation here as well.

Finally, I find it interesting that the MP-R is so reliant on "corporate counsel" as I guarantee we'll soon have attacks from the right on the Democratic nominee for his lawyering. They've done it for pretty much every candidate in my memory as I think all but Jimmy Carter and Al Gore have been lawyers. Michelle Obama's ties to the corporate world as their "corporate counsel" will be noted in the most negative ways. "Those smarty pants lawyers ought not to be telling us how to ... "

The MP-R falls hook, line, and sinker for a clearly biased, methodologically flawed "study" from the Chamber of Commerce. John Gunn