The Supreme Court Hates You

In case it’s unclear to you, reader, the world, despite its massive complexity, is simple when it comes to us humans. That this is so, is aphoristically rendered (for our simple minds): ‘money talks, bullshit walks.’ Money is self-evident, whereas bullshit is pejorative for all those things which excede the human to achieve the humane: faith, love, humour, sincerity, honesty, loyalty. Taking a look at the world today, considering the history of the last- oh- 600 years, this truth is clear, and evidenced by the current pervasiveness of the construct of the corporation.

Some very clever people have uttered incisive invective on the topic of corporations. Ambrose Bierce, in his delightful Devil’s Dictionary, observed that a corporation is “an ingenius device for obtaining individual wealth without individual responsibility,” and further defines ‘wealth’ as “impunity.” Eighteenth century Tory politician, and Lord Chancellor, Baron (Edward) Thurlow is reputed to have put the question, ‘did you ever expect a corporation to have a conscience, when it has no soul to damn and no body to kick?’ Without going too far into the history of corporations, I’ll let the venerable Noam Chomsky summarise:

“Corporations were given the rights of immortal persons. But then special kinds of persons, persons who had no moral conscience. These are a special kind of persons, which are designed by law, to be concerned only for their stockholders. And not, say, what are sometimes called their stakeholders, like the community or the work force or whatever.”

The construct of the corporation, however, is incidental to the subject at hand. For a brilliant introduction- and easy, too, as it’s a film- see ‘The Corporation’ (directed by Mark Achbar and Jennifer Abbott). A few salient points can be distilled. A corporation, as suggested by the above quotations, has the legal rights of a person: they can buy, own, sell, sue, etc. A corporation is under specific obligations: they are required to make a profit. Most importantly, a corporation is free of the liabilities of a corporeal person: they are impossible to incarcerate.

While homicides are all around them, corporations are nevertheless incapable of murder, because murder requires a specific state of mind- in the States, where there are degrees of murder, there are different states of mind which are applicable- and corporations do not have minds. They have directors and CEOs, company secretaries (whose job it is to be a ‘body’ for the company), but none of these, whatever their intentions or states of mind, are capable of expressing the intention, often called the mens rea, of a corporation itself. They may be capable of manslaughter, as manslaughter allows for reckless homicide, but no country has yet had the gall to lay down such law explicitly as it would be ‘unfriendly to business,’ where ‘business’ is ludicrously-large-and-lucrative-business.

So how do you punish a company? A considerate person will undoubtedly wince in contemplating the possibility of punishing a large company, only one part of which is responsible for a callous policy, or reckless or negligent act, which has lead to the death of a person. Why, this considerate person might ask, should a salesperson or delivery-person be effectively held liable for the acts or omissions of a corporate boss whose salary is fully on hundred times that of their own? A ‘corporate death penalty,’ much though that appeals to me for reasons I may get to below, would impact the least influential employees unfairly. But there is a way, and it’s called ‘punitive damages.’

If you sue a company for some wrong-doing (called ‘tort’ in legalese) you are entitled to two different kinds of damage: compensatory damage, for your personal pains, and punitive damage, to punish the reprehensible behaviour and discourage any repetition of the offence. Before I go on, note that punitive damages are awarded in very very very few cases, but can be huge- hundreds of millions of dollars sometimes.

The Supreme Court in a recent decision (Philip Morris USA v. Williams (No. 05-1256)), has held, by 5 votes to 4, that punitive damages can only be awarded to persons who have been directly harmed by the tort in question. That seems normal enough- why should just anyone be able to sue the pants off a company?

In this case, a long-time Marlboro smoker from Oregon kicked the bucket after 45 years of smoking, unable to give up. For at least two decades, Philip Morris had been well aware of the addictive and poisonous effects of their product, but continued in their aggressive and fraudulent marketing. It is clear that this is criminal, but it is not clear how it might be punished. As the victim is dead, he is incapable of bringing the lawsuit for punitive damages, but he is not the only Oregonian who was subjected to the wrongs of Philip Morris, although they may not have all died. The Oregon court awarded almost a million dollars to the widow of the deceased in compensatory damages and almost $80 million in punitive damages (the latter of which, under Oregon law, go to the state, and not to an individual). The Supreme Court held that, whereas a jury could consider harm done in assessing the reprehensibility of the wrong, the jury was not allowed to award punitive damages based on this as it would be a violation of due process.

That, of course, makes no sense in terms of the purpose of punitive damages in the first place! Justice Stevens, in his dissenting opinion, quipped

“To award compensatory damages to remedy such third-party harm might well constitute a taking of property from the defendant without due process… But a punitive damages award, instead of serving a compensatory purpose, serves the entirely different purposes of retribution and deterrence that underlie every criminal sanction.”

Surely where there is no possibility for actual criminal prosecution, a jury from the affected community must be allowed to assess the punitive sanction which they deem appropriate, and which- it should be noted- is then subject to alteration by the court anyway. There is no doubt that this ruling is a massive victory for wealth without liability.

Bob Dylan wrote, “You gotta serve somebody,” and it’s a question of pressing importance to figure out who on earth the highest court in the land is actually serving- one thing is clear ‘it ain’t me babe.’