Can Pluto Help Us Understand “Free Trade”?

If we used Pluto’s new celebrity status as an opportunity to see Earth—from afar–as part of the solar system and part of a Galactic Trade Organization, would we gain any new insights?

Pluto is a trip-and-a-half. The word pluto means both wealth (plutocracy) and hell (Pluto as god of Hades), so, already economics, myth, and religion are implicated. The word attached itself not only to an erratic planet, but also a cartoon dog and a radioactive element that does not occur naturally. The dog was named after the sometime planet, now celebrity ex-planet, in hopes that the yellowish (like oxidized plutonium at room temperature) canine would bring profits to a growing entertainment empire. So, pop culture and capitalism are involved. In addition, the spacecraft sending back all those paparazzi-quality images from Pluto is powered by plutonium, the element not only named after the planet it carried the cameras to, but also all tied up with Iran and Karen Silkwood. So add in global politics, occupational health, toxic waste, and the environment.

Perhaps despite its ongoing coming-out party, Pluto is just another overrated dwarf planet. I mean minor planet. Oops, maybe former planet. Ex-planet? The class of ex-planets is small, but even smaller is the set of celestial bodies that has been called dwarf, minor, former, and ex. Now we can add that it is craterless, has unexplained trenches, boasts gigantic ice mountains, and is “geologically active,” to boot. It’s gotten our attention.

All eyes are on Pluto. Let’s truly put our eyes on Pluto, and look back towards the third rock from the sun for a galactic take on our home world. Think future, politics, and investment.

How would Earthling “free traders” respond if Galactic Trade Organization ministers determined that a tiny planet called Earth was the best source of raw oxygen and a perfect location for the galaxy’s toxic waste?

“Free trade” proponents would then for once find themselves on the receiving end of what they have been dishing out for centuries. They could look forward to being told that their claims to “need” the oxygen were based on “junk science.” And that should they want any oxygen down the line, they would be free to pay the going rate to import it. They would be assured that hazardous waste infill would improve Pacific Basin ecology, and that previously “underdeveloped” economies would get a shot in the arm as sno-cone stands, video game arcades, and other new “development” sprung up around the toxic waste import facilities ringing the Pacific Ocean. Any Earth laws that slowed the oxygen harvest or impeded incoming galactic garbage would be labeled “trade barriers,” and the Galactic Trade Organization would toss them out.

Change Galactic Trade Organization to World Trade Organization and you have described the global situation today. Change World Trade Organization to U.S. Supreme Court, and you have described the situation within the U.S.There’s not a square inch of United States territory that is outside the domestic “free trade” zone.

The excerpt above is taken from page three of my book Gaveling Down the Rabble. There and elsewhere I have explained why I insist on putting “free trade” in quotation marks. (Short version: because it’s about neither trade nor freedom, but a denial of basic democratic rights.)

If the long view (about four billion miles) from Pluto is what it takes to get people to understand the US domestic “free trade” zone, then so be it.

About that “Seat at the Table”…

You want a Seat at the Table. You fight for it. You get it. Yippee. Let’s consider it.1

(Welcome back to the DTP Blog. I’ve been absent from this table because, among other things, May is a huge month for gardening in Wisconsin and mine needed lots of TLC so I could put food on my table. But back to your Seat.)

“Wanting a Seat at the Table” is one way citizen activists express their desire to be part of the decision-making process, instead of being merely audience, cheerleaders, dues-payers, observers, onlookers, demonstrators, or the blubbering supplicants role that we play in regulatory agencies.
Continue reading “About that “Seat at the Table”…”

Corporate Law Secrets Exposed By Anthropologist (1998/2015)

A Short Preface: The View from 2015…

The piece below, once available as a pamphlet, was written in 1998 to try to induce “activists” to pierce the invisible force field that seems to keep them from reading the history of corporate law. Whether or not it succeeds in that sense, it offers a perspective on current democratic efforts that I thought then and still think is essential before any real progress will be made in turning around national and world trends.

This pamphlet is an effort to help people do their own research on the history of corporate law in their own states. (And this is not the same thing as the history of corporations, the history of labor uprisings, or the history of ecological depredations.)

It sounds intimidating, but in fact it is liberating, because you realize how self-censoring and limited most “activism” is today. This was written while I was working with a group called POCLAD (my time there was 1995-2005), and I have retained references to that group and its work at the time.

In 1998 when this was written, most libraries were still mid-stream in their conversion to largely online materials, and this piece reflects that. But whether you’re doing it online, or turning the crumbly pages of your state’s first corporate charter, the principles of research and search remain largely the same.

This is pamphlet-length, longer than most articles you will read, but it covers not only a lot of history that is not fashionable now, but also, the basics of navigating around a law library. Even if you never intend to cross that threshold, you will learn a lot about how the legal-industrial complex operates.

And, no, I am not a lawyer. Three times I considered it, and I’m still not sorry I decided against it. That didn’t stop me from writing a well-reviewed book on the history of a constitutional clause, and it shouldn’t stop you from barging into the nearest law library. jam

HOW TO RESEARCH THE LEGAL HISTORY OF CORPORATIONS IN YOUR STATE

Introduction

This pamphlet is about how to use the dusty tomes in a law library to reconstruct part of the story of how corporations came to run this country.

This reconstruction will not be a rehash of tales of robber barons, swindlers, and the usual roster of ruthless greed mongers. It will be more like hearing about Adam and Eve, Isaac Newton, or apple pie — but from the apple’s point of view.

The story you are researching is the story of the dismantling of democracy by corporations. Environmental lawyers don’t know this story because they are busy with administrative law, chasing parts per million back and forth between the regulatory agencies and the courts. Corporate lawyers don’t know this story because they work with current corporation law to increase profits further and tighten corporations’ already vise-like grip on the political process. Activists up to their eyeballs in crises find themselves rushing around trying to do what needs to be done, leaving little time to explore why we limit our activism to arenas defined and designed by the corporate opposition.

Your efforts to reconstitute the story of the dismantling of democracy will be easier if you know what you’re looking for, and have some idea of how to use a law library. This guide provides some of both.

It is intended to be used in conjunction with other materials from the Program on Corporations, Law and Democracy (POCLAD). Taken together, they represent an effort to revitalize a perspective on the history of corporations in the U.S. that will help guide your research. (jam note: Today, I would urge you to explore the variety of articles in this Democracy Theme Park blog.)

POCLAD is a group of persons instigating democratic conversations and actions that contest the authority of corporations to define our culture, govern our nations, and plunder the Earth. We work in the tradition of people’s struggles to replace illegitimate and tyrannical institutions with democratic ones that disperse, rather than concentrate, wealth and power. (POCLAD signature statement, 1998.)

* * * * * * * *

When people say that corporations are running the country (and the world), they mean that corporations have used their power to take over the role of governing that in a democracy belongs to the people.

But much current activism involves efforts to adjust corporate behavior without having to reduce corporate power. That’s worth a repeat: Much current activism involves efforts to adjust corporate behavior without having to reduce corporate power. That’s a major flaw in most leftish activism.

Adding a chemical to a list, taking a bird off a list, writing more letters to the Forest Service, putting a labor representative on a task force, or asking a corporation to employ more minorities in its quest to plunder the planet and enslave its inhabitants while enriching the fortunes of a few — will not alter the dominant governance role of corporations. Even if we had time to address each harm one at a time, we would be no closer to having a democracy because we would still not be in control.

The free flow of information and the ferment of public debate are prerequisites for democratic self-governance. Self-governing people do not dump toxic chemicals into their water supply. They do not destroy the resources that their future depends on. They do not blame this or that minority for conditions arising from and sustaining the greed of a few. Corporations do all of these things and more.

If we the people are to live in a sane and just world, we must do more than slow or stop particular corporate harms: we must assume the power of governance that in the United States corporations have usurped over the last century and a half.

The story of how corporations accomplished this usurpation has been hidden but not obliterated. It lives in the traditions of Native Americans, in the songs of labor struggles, and in the lore of immigrant families. Fragments are scattered among footnotes in history books. Much of it is outlined in black and white in the constitutions, laws, and court cases that fill the shelves of law libraries.

Most people who use law libraries today do so in order to preserve, defend, and expand corporate “rights,” corporate property, and corporate profits. Most current legal documents reflect the world view that it is “natural” that corporate “persons” have constitutional rights, that they play a governance role, and that they can and do make or break whole economies and topple governments.

But fifty years ago opinion wasn’t nearly so harmonious. A century ago there was still real debate. And before that, the corporate view was a decidedly minority opinion.

For instance, the Founding Fathers of this nation deserve Hall of Shame membership for failing to recognize Native Americans, Blacks, women and unpropertied white males as possessing the rights of natural persons and citizens. But to their credit, it never occurred to the framers of the Constitution that corporations have the right to due process and equal protection, or First Amendment rights, such rights belonging exclusively to “natural” (i.e., human) persons and having no sensible application to the legal fiction that is the corporation.

Similarly, it was once taken for granted that corporations exist only at the pleasure of the people, that their purpose is to fulfill a public need, and that if they exceed their specific purpose, or fail to adequately perform it, they are to be banished or dissolved by having their corporate charters revoked.

That these ideas seem so shocking today only underlines how much ideological authority we have ceded to corporations.

In your research you will uncover laws that defined corporations as subordinate entities with limited powers, always subject to further amendment to better fit the public interest. Then you will see how corporations responded.

Over a period of many generations, corporate lawyers, in drawing rooms, cloak rooms and courtrooms, worked over our imperfect but promising democracy clause by clause. In all too many instances, when a law got in the way of corporate power, the corporations either got rid of it, weakened it, prevented it from being enforced, got it declared unconstitutional, or influenced the judicial interpretation of it so as to render it inconsequential.

While the rights of most human persons were denied or diminished, corporations acquired by sleight-of-hand constitutional rights of “natural” persons. These newly anointed corporate “persons” claimed and gained constitutional protections for their “property,” which was first construed to be something tangible, expanded to include the intangible and now includes the imaginary.

And, just as the rights of “corporate” persons grew at the expense of the rights of “natural” persons, they grew also at the expense of the rights of “natural” persons who happened to have “jobs.” Workers’ rights to freedom of speech and of assembly, freedom of association, due process, and equal protection before the law, among others, were twisted and suppressed as corporations wrote the laws that defined not only themselves, but the labor “opposition.”

Corporations, once strictly defined by people acting through their legislatures, have since the late 19th century been defining themselves and redefining us. They write the laws and shape the government that supposedly “regulates” them. Corporations essentially define our economy, our society, our jobs, our educational system, and our leisure time. Our state legislatures once defined corporations as subordinate entities, yet now we the people find every aspect of our lives subordinated to corporate “needs.”

Corporation representatives worked a phrase at a time to deconstruct legal doctrines that protected persons, and transmute them through the alchemy of power into doctrines to protect and empower corporations.

In so doing they left a trail of tears in the fabric of democracy. The pattern of the violence they did to the democratic process is like a map that we can read to understand the nature of the damage, and then either work to repair it, or replace it with a more democratic weave.

What you can do in a law library is to trace this process in the context of your own state’s history.

The Special Role of Regulatory Agencies

The three branches of government, as outlined in junior high school civics books, work as follows. The legislative branch makes the laws; the executive branch enforces them; the judicial branch interprets them and determines their constitutionality.

But today, much of the shaping and flexing of corporate power, and activists’ efforts to control it, takes place in what appears to be a fourth venue, regulatory or administrative agencies. Though such agencies (such as OSHA, EPA, the FCC, and the NLRB) are often considered a “fourth branch” of government, they are technically (mostly) part of the executive branch, and the individuals or boards that run them are appointed by the president.

Though there have been administrative agencies since the earliest days of the U.S., regulatory agencies began to appear only in the 1870s, mostly in Midwestern states, where the growing authority of railroad corporations was wreaking havoc on regional economies.

The first federal regulatory agency was the Interstate Commerce Commission in 1887. Increasingly since that time, especially since the New Deal era, citizen activism has been channeled into the regulatory agency arena.

The standard myth to explain why this is so goes something like this.

With technological advances and the filling in of the frontier, life became much more complicated. Big corporations began to combine, form trusts, and stifle competition so that they could control markets. They also did other bad things to human beings and the environment, killed workers who stood up for their rights, and manipulated the economies of whole regions in their quest for huge profits. So, the government set up Regulatory Agencies staffed by objective experts to curb corporate excesses and protect the public.

The story you will see as you reconstruct the history around corporations in your state differs significantly from this convenient myth.

During the last quarter of the 19th century, corporations succeeded in getting the upper hand. Laws that had defined corporations were abandoned and more “enabling” legislation took their place. One example of the defining kind of law, once on the books in many states, is a prohibition against corporations owning stock in other corporations. This simple provision prevented a world of harm. It worked so well that “trusts” were invented as an end-run around it. Common in 1870, such provisions had disappeared by the turn of the century.

The emergence of regulatory agencies heralded the end of the age of defining corporations, and the beginning of the modern era of permitting corporations to define themselves, not the reverse as is commonly believed.

Regulatory agencies were set up with the cooperation, if not at the direct behest, of the biggest corporations, in industry after industry. These agencies functioned to eliminate small pesky rival corporations, stabilize markets and prices, and shield both elected officials and corporations from the wrath of the public.

Today regulatory agencies continue to perform these functions for corporations. In addition, they absorb the energy and resources of countless activist groups in endless wrangling over millions of lines of regulations — regulations which, even if finalized, would never be enforced.

Regulatory agencies, then, are a critical element of the strategy through which corporations downsized the democratic process while taking over governance functions. We are so attuned to the regulatory agency arena that it is often difficult to imagine what other forms our activism might take.

Your legal research will reveal some of the successful legal measures and judicial doctrines that defined corporations for decades before restrictive state corporation laws were replaced by “regulation” efforts that did more to eliminate public input than affect corporate behavior.

The body of law that covers what happens in regulatory agencies is called Administrative Law.

Administrative law, dull as it may sound, is at the core of the system that restricts citizen participation, puts decisions in the hands of supposedly unbiased “experts,” ties up critical issues of the health and welfare of our society in procedural marathons, and favors corporations that possess nearly boundless resources to dominate and obfuscate the administrative process.

Though not popular, regulatory agencies are often accepted as inevitable, as necessary evils. One justification for this view is that our society is now just too complex to do without them. A second justification offered is that the only real alternative to regulation as we know it is the “free market” as some imagine it to be.

As you delve into the early history of corporations in your state, it will become evident that much of the so-called “complexity” we deal with is not so much a cause of the era of regulation as a result of abandoning a defining style of corporate legislation. It will also be apparent that a pattern of huge government subsidies of corporations was well established by 1870, and that the mythical “free market” never existed.

Regulatory agencies give the appearance of placing limits on corporations but function as clever mechanisms to obstruct the influence of ordinary citizens. They are controversial across the political spectrum because they have a tremendous amount of discretion in making decisions. They unquestioningly accept corporate legal definitions of property and contract that place human beings at a tremendous disadvantage. Avenues of appeal, though present, are expensive, time-consuming, resource-intensive, and seldom rewarding to the ordinary citizen. A “victory” often means starting a long process all over again, with slightly changed rules.

In carrying out their duties, regulatory agencies do some things that are a lot like making laws (a legislative function); they enforce their regulations through penalties and other sanctions (an executive function); and they judge compliance with regulations and rules (a judicial function). That they partake of functions of all three supposedly separate branches of government is a second source of controversy about regulatory agencies.

The expansive discretion granted to regulatory agencies, and the concentration of legislative, executive, and judicial powers in them, exacerbates their already anti-democratic bias. In your research, you can contrast this situation to the restrictive and defining language commonly found in early corporation law.

The Corporation Code

In the first half of the nineteenth century, state legislatures created corporations one at a time. Each corporation was established by means of a Special Act of the state legislature. The special acts, or corporate charters, were detailed descriptions of exactly what the corporation could and could not do, often even including a statement of what rates the corporation was permitted to charge.

Most states then went through a transitional period during which there were more general (optional) incorporation laws that applied to certain types of corporations, such as manufacturers, mining corporations, railroad corporations, insurers, and so on. By the end of the 1870s, most states had developed general incorporation statutes that applied to almost all corporations. (Banks were often an exception). These general incorporation statutes underwent periodic reformulations as corporate lawyers shaped them to serve the needs of corporate management; the most recent overhaul occurred during the 1950s.

Research into the history of your own state’s incorporation laws will enable you to compare your state to this general pattern. Early corporation law defined corporations, often one at a time. Twentieth century corporation law (the corporation code) permits corporations to more or less define themselves. People’s influence over corporations withered as states moved toward general incorporation laws, later coupled with regulatory agencies which functioned to entrench large corporations and keep out public influence.

Current corporation codes of all fifty states are much alike, though it is generally recognized that Delaware is the “big easy” state for incorporation. More than half of the Fortune 500 corporations are incorporated in Delaware (where they are “domestic” corporations) and operate in other states as “foreign” corporations after obtaining the requisite “certificate of authority” to do business in that state.

The corporation code is at first difficult for the layperson to understand. Various parts of it will appear to be tedious, boring, unreadable, or incomprehensible by turns. One way to help keep your interest focused is to remember that every single word of a corporation code is there for a reason, and that reason is invariably to concentrate power while diffusing responsibility, or put differently, to internalize power and profits, and externalize responsibility and costs.

To help you understand the current corporation code, you can turn to one of a few kinds of secondary sources. Business Law textbooks can give you a good general picture, but various corporation manuals are better for clause-by-clause analysis.

Your Mission: To Go Where No One Has Gone Before

To get the most out of your research into the legal history of corporations in your state, you must set aside current myths and prevailing wisdom about how things are, how they got this way, and what can be done about them. For this reason we urge you to base your work on primary materials. Secondary materials such as books and articles will be useful, but their perspectives are inevitably shaped by the writer’s biases.

In order to get a picture of the history of corporation law in your state, you will have to examine three basic sources: the state laws, the state constitution, and case law (court cases in which issues concerning corporations are decided).

To a lesser extent, you will have to be familiar with the federal situation as well. The same triumvirate — law, constitution, and court cases — will guide your research. Congressional legislation, the U.S. constitution, and federal court cases all play a role in setting up the background against which your own state’s corporate history stands in relief.

When you go into a law library, you can leave behind the usual self-imposed limitations of conventional activism. You will be using your experience as an activist to analyze the defining law of corporations. You will be stepping outside of the minutiae of regulatory law, into the realm of the law that defines the participants and assigns basic rights. You will see how a citizenry that both welcomes and demands democratic self-governance, views that subordinate legal fiction that is its creation — the corporation.

You will undoubtedly use many sources in your quest to construct the history of corporations in your state, but your core materials are found in a law library. This guide is designed to outline some basic perspectives and questions, and then show you how the resources of a law library can be especially useful.

Law libraries are different from other libraries. No matter how many libraries you have been in, a law library offers special challenges, not the least of which is to avoid being intimidated by THE LAW. But law libraries have things you just can’t get anywhere else, and some of these tidbits are juicy as can be.

The rest of this pamphlet offers a user’s guide to a law library, with special emphasis on reconstructing the legal history of corporations in your state.

Overview of a Law Library

Law libraries are exceedingly well-organized. For example, the references that are used most frequently will be easily accessible, and often duplicate sets are available. There will be plenty of tables to set heavy books on, and there are copy machines all over the place.

A law library is one of the most intensely indexed and cross-referenced places on the planet. Even the indexes are indexed. This is both good news and bad news for the neophyte.

The good news is that if you find material on even the tiniest aspect of your area of concern, following references will lead you to the rest. Once you have learned to use what the library has to offer, you’ll be able to trace something backwards and forwards in time; to the left and right to related topics; inward toward more details or outward towards broader issues; in laws themselves or through specific court cases; and across geographical, political, and jurisdictional boundaries, among other things.

The bad news is that the amount of material available is overwhelming, and even the references are written in code. Sometimes even a single sentence of a statute will be followed by a dozen pages of fine-print references. Once you figure out the system, however, this, too, is good news and you can use it to your advantage.

Geography of a Law Library

Once you recognize a few of the tools that a law library offers, you will see that they are arranged in a handy way, like a chef’s wooden spoons and spatulas.

A law library will be divided into sections. One large section will contain materials about your state: statutes and constitution, court reporters, West’s corresponding digests, and Shepard’s citations.

Another section of the law library will contain federal materials, corresponding to the same categories as the state materials just mentioned.

In a prominent easily accessible place, you will find the encyclopedias, always including Corpus Juris Secundum (CJS) and American Jurisprudence (Am. Jur.) . The reference section will also include dictionaries and other useful secondary materials.

The periodical section of the library will contain law reviews and other law journals.

A law library will contain sections about each state in the country, so even if you are using a law library in Arkansas you will be able to obtain much information about the state corporation laws of Wyoming, should they prove relevant.

Regional clusters will also be apparent. West’s Pacific Reporter volumes are next to the Pacific Digest (West) and Shepard’s Pacific Reporter Citations.

Bills, Laws, Codes, Statutes, and Constitutions

A bill is a proposed law. If that bill is passed by a legislature (a state legislature or the U.S. Congress), and not vetoed by a governor or president, it becomes a law (often called an Act). Laws are published chronologically, by year or by legislative session. Then someone comes along and organizes them by subject or topic into statutes or codes. So, what was first published as (State) Session Laws 1956-7 will be later organized into (State) Statutes 1957 or (State) Code 1957.

Bills become laws (or acts) become codes or statutes.

Every once in a while a state may reorganize its code or statutes into a more accessible form. The new improved form will be called the revised statutes, often abbreviated as

(State) Rev. Stat 1964 or
(State) R.S. 1964

In addition to the plain old version of a state’s code or statutes, there will be an annotated version. This version will be labeled and abbreviated something like (State) Stats. Ann. (You can find much additional information in the annotated version — we will go into this later.)

For example, in Wisconsin

Wis. 1864 G.L. = Wisconsin 1864 General Laws
W.S. 1934 = Wisconsin Statutes 1934
W.R.S. 1951 = Wisconsin Revised Statutes 1951
W.S.A. 1992 = Wisconsin Statutes Annotated 1992

To compile a history of the corporation code in your state, go through the statutes chronologically and note changes. The current annotated state statutes (or code) will provide information about major changes and when they occurred.

Explore the era before your state even had a general corporation code. Read individual corporate charters, and see how they were amended and revoked. Note the ways that state legislature kept corporations on a short leash.

Among the corporate charters you will find acts of the state legislature that revoked or repealed corporate charters. This was common until after the Civil War.

Since the annotated codes or annotated statutes of each state contain the text of and commentary on the state constitution, you can use them to do a similar analysis of changes in your constitution.

The federal system is analogous to the state system. What starts out as a bill, once passed, becomes a law, often called an Act of Congress. Such laws and acts are periodically reorganized into the United States Code, abbreviated U.S.C. The annotated version, an excellent source of references about constitutional questions, is abbreviated as U.S.C.A. Be sure you know where it is; you will use it often.

Courts and Case Law

The collected wisdom of judicial decisions in court cases through the ages is called common law. It stands alongside legislative law (formalized in codes or statutes) and constitutional law in forming the foundations of our society’s legal system.

The court in which a matter is first heard is called a trial court. If a party is not satisfied with the treatment in the trial court, it may in some cases (depending on matters of law not relevant here) appeal to a higher court, often called a court of appeals. If matters are still not settled, the highest court within a jurisdiction comes into play. This high court is often called a supreme court.

This hierarchical structure — court of original jurisdiction, court of appeals, and supreme court — applies to both state and federal courts.

A case may be heard in a federal court as its original jurisdiction, or as a result of an appeal from the highest state court.

Court Cases: How to Find a Case

Let’s start with an example.

This is the case where the U.S. Supreme Court recognized “personhood” of corporations and opened the door for corporations to claim rights under the “due process” and “equal protection” clauses of the 14th Amendment.

Santa Clara County v. Southern Pac. R.R.
118 U.S. 394 (1886) official citation
30 L.Ed. 118 (1886)
6 S.Ct. 1132 (1886)

Here we see an official citation, followed by two parallel citations. These are the three different places where you can find this case.

Cases are reported in volumes called reporters. Cases may be mentioned or discussed in many places, but they are reported in reporters.

The number preceding the abbreviation (that is, 118, 30 or 6) refers to the volume number, whereas the number following the abbreviation (that is, 394, 118 or 1132) refers to the page number where the case begins.

A court case usually has an official citation that reflects its jurisdiction (here, 118 U.S. 394—a United States Supreme Court case). It may also have one or more parallel citations, often referring to unofficial commercial reporters. In this example, 6 S.Ct. 1132 refers to West’s Supreme Court Reporter.

(Do not be misled by the adjective “unofficial.” The unofficial reporters contain more useful annotations, analysis, and references than do the official reporters. A few states use a commercial reporter as their official reporter.)

Other federal courts (the U.S. Court of Appeals, and the U.S. District Courts) have no official reporter, and usually appear as F.2d and F.Supp., respectively.

Famous precedent-setting cases of the past, especially those more than a century old, may have odder-looking citations. Just find the general area on the bookshelves and go back in time.

Here is another favorite from corporation history, even older than the Santa Clara decision, wherein the Supreme Court began “deeming” corporations “citizens” of the chartering state, thereby interpreting the “diversity clause” [U.S. Const., Art. III. Sec. 2] to allow most corporation cases to be heard in the more sympathetic federal courts instead of in the states.

Louisville, Cincinnati & Charleston R.R. v. Letson
2 How. 497 (U.S. 1844)
11 L.Ed. 353 (U.S. 1844)

Go to the section of the library where the U.S. Supreme Court reporters are kept, and go backwards in time on the shelves until you find Howard’s court reports, volume 2, page 497. Or, you could also find this case reported in volume 11 of Lawyer’s Edition, page 353.

State court decisions can also be found in more than one place. They are almost always reported in official state reporters; usually also in unofficial commercial state reporters (like West’s); and always in West’s National Reporter System, which uses a regional approach. The regional divisions are not obvious, so check what region your state belongs to.

(Just to prove the point, N.W. includes Michigan but Pacific includes Oklahoma; N.E. includes Illinois but Vermont is in Atlantic; S.W. includes Kentucky but West Virginia is in S.E.)

Now we’ll turn to a citation of a state court case.

A 1991 Wisconsin court case holding a corporate officer personally liable for violations of the solid and hazardous waste laws is referenced as:

State v. Rollfink (1991)
475 N.W.2d 575 (1991)
162 Wis. 2d 121 (1991)

You can locate this case by going to the state (Wisconsin) reporter, second series, volume 162, or to West’s N.W. reporters, second series, volume 475. In that regional reporter on page 575 you will find a summary of the case and a discussion of other similar cases and secondary sources.

In the case cited above, the state sued Rollfink, so the state name is first as the plaintiff, Rollfink second as defendant.

Secondary Sources

Though the legal history you construct will be based on primary sources (statutes, constitutions, and case law), your search will be faster and easier if you use secondary materials — books, articles, and other references that summarize, analyze, or comment on primary sources.

Dictionaries and textbooks can help you clarify points or better understand what you are reading.

Law review articles are an excellent secondary source. These are focused discussions of aspects or issues in law, found in the journals of law schools.

Law encyclopedias are another excellent secondary source. One such encyclopedia is the Corpus Juris Secundum (CJS) . The CJS contains over 100 volumes and bills itself as “a complete restatement of the entire American law as developed by all reported cases.” Under “Library References” after each section, it gives sources of information in books and law review articles, as well as West’s key numbers. It also cites numerous cases with parallel citations. CJS is not much help regarding statutes, but these are cited in other secondary sources and in reporters.

Starting From a Key Phrase

Sometimes your research starts with a kernel of just a few words.

The phrase “commerce clause” is often mumbled in response to suggestions that states return to the stricter corporation codes and charters of the past, and more vigorously use their “police power” to protect their economy and environment against obvious corporate harms.

How to figure out the significance of the “commerce clause” mantra? Here is one possible route.

1. Look up “commerce clause” in Black’s Law Dictionary. (Getting involved with CJS or other detailed secondary sources at this point will drag out your search.)

Black’s (1990) gets right to the point.

“The provision of U.S. Const. (Art. I. § 8 Cl. 3) which gives Congress exclusive powers over interstate commerce. This power is the basis for a considerable amount of federal legislation and regulation.”

An excellent start. Now you may want to see the clause itself.

2. To do so, go to the U.S.C.A. (U.S. Code Annotated) to the volumes at the end that contain the U.S. Constitution. The clause is there, and dozens of pages of notes as well. There are plenty of references for later research. Scan them and note a 1971 law review article, specific sections of CJS, and the West’s key numbers for a discussion of commerce. (We’ll get to West’s key numbers in a moment.)

You may feel overwhelmed by the wealth of material available. To avoid that sinking feeling, you can find temporary refuge in a less intimidating secondary source.

3. Look up “commerce clause” in a business law textbook. There you will find a thumbnail sketch and a summary of an early case about Robert Fulton’s efforts to secure a monopoly over steamboat traffic. The case is:

Gibbons v. Ogden (1824)
22 U.S.(9 Wheat)1

(In the early days of the U.S. Supreme Court, reports were named after the counselor-at-law who recorded them. In this case, it was Henry Wheaton.)

Suppose now that you want to know if points of law based on this case are still in effect, and/or still cited, or whether the case has just faded away.

4. To find the future life of a decision, one does what is called “shepardizing.” Go to Shepard’s U.S. Citations, in the set that covers vol. 22, and find the case, followed by a list of hundreds of citations. Since this very handy reference looks like several hundred pages of a logarithm table, you must know what you want out of it.

(jam note, 2015: Online resources have largely replaced “shepardizing,” though the term persists. Enter in a case name, and on-screen will appear subsequent “treatment” of the case. Whether it was affirmed, questioned, overturned, and so on.)

The first citation is 6LE23, a parallel citation, abbreviated elsewhere as 6 L.Ed 23. This means that you can find another account of the case in Lawyer’s Edition volume 6. Going to this reporter will give you an 1824 summary and text of the decision.

(Shepard’s uses different abbreviations than most other legal references, but as always, there is a list of abbreviations in the front of each volume.)

The rest of the citations are cases and publications such as law review articles that have cited this (Gibbons v. Ogden) case, from earliest to latest. A lower-case letter precedes some of the citations and indicates, for example, whether the more recent case represents one that follows the original (f) or cites the original case in a dissenting opinion (j).

For example, j175FS893 means that in volume 175 of F. Supp., at page 893, the Gibbons case is cited in a dissent. Going to the nearby F.Supp., you will find the whole case and learn that it was decided in 1959.

Now you know that the Gibbons case is still cited, sometimes in dissents. Suppose that you now want to see how the issue plays in your state, say, Wisconsin.

5. West’s Federal Practice Digest 3d is nearby, among the federal reporters, so use it to look up “commerce.” (You could use any West’s digest — state, regional, or federal — because they all use the same key numbers.) Or, use the West’s key numbers you jotted down from the U.S.C.A.

With the key numbers in hand, walk over to the Wisconsin section of the library. There, look up those same key numbers in West’s Wisconsin Digest, where you find summaries and references to Wisconsin cases concerning the commerce clause.

(Shameless plug: I later wrote a book on the commerce clause, and I highly recommend it. jam, 2015)

Enough of the “commerce clause” example. Some lessons from it.

General Way to Proceed

Lesson 1. First look up phrases, concepts, terms in Black’s Law Dictionary and/or a business law textbook, or even in a World Book Encyclopedia (many law libraries have these, too) before pursuing them in more depth. Most of the major concepts you’ll need are explained succinctly in secondary sources. Try these first to get the big picture.

Black’s or a business law textbook will give you a start on clauses like “commerce,” “due process,” “contracts,” “equal protection,” and “diversity;” terms like ex rel, in re, quo warranto, infra, supra, ex parte, arguendo; or concepts like “comity,” and “police power.” (If you want to later read thousands of pages about their history, you can always do so. They’ll be waiting for you.)

Lesson 2. Use the annotated version of statutes and codes (which will also include the annotated constitution, state or federal). This way you can see what references are available but you don’t have to read them all right away. Pick and choose.

Lesson 3. If you start with an early case and want to see “what happened” to it (has it been affirmed, overturned, ignored, what?) – you can shepardize. You can also use Shepard’s Citations to find recent cases that cite an older one that you know is central. Shepard’s is an invaluable aid to updating your research.

Lesson 4. If you start with a current statute or case, you can (through annotations and/or West key numbers) glean its antecedents. Once you get West’s key numbers for a certain topic, you can go to the West’s digest of your state, another state, or a federal digest, to find a summary of and references to important cases and other references.

Suggested Order of Research

If you are starting from scratch researching the history of corporations in your state, you might try this itinerary.

Read an encyclopedia article on corporations (in a layperson’s encyclopedia, not the CJS).

Look at the annotated version of your state’s current corporation code/statutes.

Look at the annotated version of your state’s current constitution, especially any parts on corporations.

Trace through time changes in your state’s constitution and statutes regarding corporations.

Find (in annotated state statutes/constitution) references to secondary materials about your state’s corporation history. There may be a law review article or even several books on the history of corporations in your state.

Choose a few cases to read over to see how issues are framed and argued.

Construct a roughly chronological summary of how your state’s corporation law granted increasing constitutional rights to corporations as it shifted from defining corporations to attempts to regulate them.

Shortcuts and Reminders

The ABCs. Digests and encyclopedias are arranged alphabetically by topic or subject. Codes and statutes are by topic but not alphabetical. Laws and reporters are arranged in order by year.

That Little Key. West’s digests and many other references utilizing West’s key number system have a drawing of a small gold or silver key on the spine of each volume. (CJS and U.S.C.A. also give West’s key numbers but do not have the little keys on the front.)

When You Need Parallel Citations. If you have only a single citation for a case, but you want parallel citations (especially a West reporter citation so you can use key numbers), you can always go to a Shepard’s, where the first things listed under a case name are parallel citations.

Starting from a Single Case. If you locate a single case of interest, follow this plan.

1. From the West’s report of the case, get West’s key numbers.
2. Use these key numbers in state or federal West’s digests to locate hundreds of comparable cases (and other references besides.)

Where do I find Federation v. Starship Enterprise? If you know only the name of a case, or the name of one party to the case (a corporation, for example), you can locate the case by using a special Shepard’s case index. (jam note: This is now easy to do online.) In order to determine which index to use, you will need to know (or guess at) the jurisdiction (which state or federal court heard the case.) You can use this same index to locate all of the reported cases in which a particularly nasty corporation was a party, should this prove interesting.

What is ALR Fed. ? Most legal references books have a list of abbreviations at the beginning. If this doesn’t work, go to Black’s Law Dictionary.

On Being Online. Most law libraries offer both online computer research services and the “classic” method using “hardcopy,” that is, books with pages. You can use either or both.

With online computer services, the same principles of cross-referencing apply. You will still be checking constitutions, statutes and case law, plus secondary sources like law review articles and encyclopedias. You may be typing instructions on a screen instead of looking up cross-references in a table, but they are just different paths to the light at the end of the tunnel.

Find a How-To Book. In addition to a number of handbooks on how to do legal research in general (in the KF 240 through KF 242 section of the shelves), there are usually also books on how to do legal research in your state.

Where to Go. Try looking for a state law library. Many government agencies have their own (usually smaller) law libraries. You may want to consult William P. Statsky’s Legal Research, Writing, and Analysis, Second Edition (West Publishing Co.,1982). This slim volume is the single best source I have found, and is chock full of useful charts and lists that will make your law research much less frustrating.

A Final Word

Never hesitate to ask for help from a librarian, whether you need general orientation or a specific case. But keep in mind that such assistance will be necessary less often if you have made some effort to familiarize yourself with legal research tools and the overall layout of the library. Try to avoid bursting in five minutes before the library closes looking for “something about corporations and pollution.”

Happy gathering.

—————————

List of abbreviations used in this piece

A. – Annotated
Am Jur. – American Jurisprudence
Ann. – Annotated
CJS – Corpus Juris Secundum
EPA – Environmental Protection Agency
FCC – Federal Communications Commission
G.L. – General Laws
Gen. L. – General Laws
L. Ed. – Lawyer’s Edition
NLRB – National Labor Relations Board
OSHA – Occupational Safety and Health Administration
R.S. – Revised Statutes
Rev. Stat. – Revised Statutes
S. Ct. – Supreme Court
U.S.C. – United States Code
U.S.C.A. – United States Code Annotated

Wrinkle in Ancient Corporate Code Reveals Democracy Remedy (Not for the faint of heart)

Crumbling pages in the rare books room of the Wisconsin State Law Library may hold the key to breaking the corporate stranglehold on the democratic promise so long dormant in the heartland.

I’ve read those pages in that cool, dim room. But you can find the same info in the well-thumbed regular stacks that are only medium-rare. What is rare is for anyone but a historian or lawyer to read them. (Hint).

(Rather than having you read this, I’d like you to go here, but you’re probably not ready yet.)

“Incorporate in minutes: CHEAP, EASY, FAST.” Have you seen those ads? Why is it easier to incorporate than to register to vote, get a driver’s license, or maybe even order a pizza?

Try your luck with this multiple-choice question.

Corporations get their vast power from
A. their brilliant, inventive, plucky, persistent, indefatigable founders’ work and insights
B. US military forces and domestic police protecting their property worldwide
C. a winking conspiracy among judges to invent extra powers for them in the margins of their decisions
D. the sheer popularity and market domination of their amazing products
E. state legislatures

E is the key. A-D all help, with A always overrated and C exaggerated, but state legislatures do the deed.

Those CHEAP, EASY, FAST steps that today allow you to incorporate have a profound impact. Incorporation carves out a handful of chips of power from the block of government sovereignty, and hands them over to corporations. Simply put, some of the power of government is transferred to a corporation. In other words, GOVERNMENT CREATES CORPORATIONS.

(If you’re still reading this, maybe now you’re ready to go here.)

Before incorporation, all you have is a bunch of people, ideas, and resources. AFTER INCORPORATION, you have a company clothed with powers and protections granted and enforced by the full force of government. Law enforcement, courts, agencies, the whole chalupa.

This changes everything. For example, if you’re upset about a corporation doing bad things, you should be even more upset with your government that has granted that corporation the power to do those things.

I heard that many times before I got it. And I only got it when I went to the law library and held in my hands the pages that wrought such transformation. (Ready to go here?)

In a law library, you can hold in your hands the law that a legislature passed to turn that bunch of people and ideas into a corporation with powers of government. They used to do it one at a time. As in, the Octothorp Corporation may raise this amount of money, construct such-and-such a facility, and mine dilithium crystals in these three counties.

That’s amazing enough, that you can literally read the document that breathed power into a corporation. Even more shocking for us today is that if that corporation messed up, didn’t follow legislative instructions, or exceeded powers granted, the same legislature could just pass another law (no judicial intervention needed, thank you very much) and repeal the charter, a process called charter revocation. (Are you ready to see the treasure map to finding a charter revocation?)

That charter revocation—you can also hold it in your hands. Something about seeing this “in the flesh,” as it were, changes the way you understand corporations. It is hypocritcal and inaccurate for lawmakers to intone the equivalent of, Gosh, those darn corporations are so powerful. When in fact every single one of their powers was granted by legislation, voted on by legislators. (And even if first granted by a court, those powers were later ratified in statutes).

So I want you to take two steps that aren’t on many agendas just now.

ONE—Get thee to a law library.

TWO—Realize that the target of citizen activism is not so much corporations (using powers overtly given to them by governments), but the governments themselves that have ratified such a wholesale transfer of power from the people to corporations.

That’s my pitch. I hope you’re ready to go here, to see a pamphlet-length layperson’s tour guide to a law library. Even if you never make it to the library, you’ll learn a thing or two by flipping through the tourist brochure. Perhaps, even enough to turn your attention from corporations to the governments that create and protect them.

Bon voyage, jam

KNOWLEDGE IS POWER! (THE STRATEGY-OPTIONAL APPROACH)

Wow, I feel more powerful already.

Because I know that toxin-laced microscopic plastic beads from toothpaste and other cosmetics have been sluiced into our waterways and ingested by fish and other marine animals in the lower Great Lakes.

I also know that frac sand mining and processing spews fine particulate silica sand into the air and blasts nasty chemicals into dismembered and mutilated aquifers in Wisconsin, where I live.

My power surges. I almost can’t contain it all.

(Insert your favorite examples here.)

What should we do with all this power? Write a letter to the FDA with its spectacular record of failure to regulate bad substances in a timely manner, coupled with attempts to prohibit or discourage the use of commonplace inexpensive remedies whose major flaw is that they do not massively increase the profits of big pharmaceutical corporations?

Or, maybe I should go to a fracking hearing at the DNR, the main point of which is to advertise that a) the DNR has no intention of seriously regulating such operations, and b) affected local communities lack power under state law to pass strict protective ordinances?

Our conferences, lectures, workshops, and study groups Describing the Problem are as numerous as the bison that once thundered the Plains. Our books, slide shows and folk songs Describing the Problem are as numberless as the passenger pigeons that once blackened the skies.

If there are limits to our drive to accumulate knowledge to Describe the Problem, we haven’t reached them yet. We leave no grain of sand unturned, no Antarctic ice crystal unanalyzed, no clitoridectomy unlamented, no habitat loss unmourned, no slain journalist unlisted, no refugee camp unenumerated, no polar bear hair unsectioned, no deformed frog undissected, no terawatt-hour of electricity unmeasured, no torture technique uncatalogued, no larva unprobed….Oops, I’ve fallen into Describing the Problem again.

Uh, does this mean that with all this knowledge we are like, really powerful?

Oh, all that knowledge we collect, collate, calculate, caress, characterize, calibrate, cross-reference. (Sigh). I know it leads many people to succumb to denial and depression, but how exactly does this translate into power?

* * *

Knowledge is power—if there are ways to apply that knowledge to make constructive changes. Knowledge is not power if the underlying political framework spins off grass roots activism into unproductive eddies of procedural minutiae and judicial dead ends.

We need knowledge to wield power well, but that doesn’t mean that we don’t need strategy. Yet we are obsessed with increasing knowledge via Describing the Problem, while strategy languishes. And the “problem” we have today stretches across the spectrum from zoophyte extinction to ageism.

Disclosure: In my background lurks academia, writing, and explaining this or that problem to a variety of audiences. I have done extensive research including writing a book about a single constitutional clause, so it’s not that I don’t appreciate research and description. Knowledge must be part of what we do, but it’s not the goal or the answer, and it’s certainly not the strategy.

* * *

Some things you can do…

1. Stop Describing the Problem to people who agree with you and start talking to those who don’t.

2. Try diagnosing the problem instead of describing it. (Like, is the problem the corporation that is polluting or the government that allows this—in fact, hands out permits for it?)

3. Use all the time you free up to strategize about making the necessary changes. And don’t bother with the sleepwalking methods (toeing the line at regulatory agencies, whining at demonstrations….) that have failed, for, oh, forty or a hundred years.

4. Strategize about how to challenge…well, here’s a statement of the problem that I wrote about twenty years ago, and it still stands.

“Over a period of many generations, corporate lawyers, in drawing rooms, cloak rooms and court rooms, worked over our imperfect but promising democracy clause by clause. In all too many instances, when a law got in the way of corporate power, the corporations either got rid of it, weakened it, prevented it from being enforced, got it declared unconstitutional, or influenced the judicial interpretation of it so as to render it inconsequential.

While the rights of most human persons were denied or diminished, corporations acquired by sleight-of-hand constitutional rights of “natural” persons. These newly anointed corporate “persons” claimed and gained constitutional protections for their “property,” which was first construed to be something tangible, expanded to include the intangible and now includes the imaginary.”

Is that quote just Describing the Problem again? I think not: Rather, it is diagnosing the problem. And if we diagnose the problem as our government and the power it gives to corporations, we need to take a break from counting parts-per-million and dollars-per-candidate and strategize how to alter our underlying legal framework.

People have been working on such strategies for at least two decades, yet that work somehow isn’t as sexy as Describing the Problem.

So, could you spend a week without Describing the Problem, and turn instead to planning strategy ? Or maybe a month?

Strategy isn’t optional. To plagiarize and paraphrase (plagiaphase?) a famous dead white guy: The point is not to describe the world, but to change it.

Snowy equinox. jam

WHY THERE AREN’T ANY JOKES ABOUT REGULATORY AGENCIES

OK, here’s a joke about a regulatory agency, as told by the corporate manager of a big polluting factory.

He says…So, I’m in my office one day and the Man from EPA comes in and slams down a huge stack of papers, saying — You’ve got 22,221 violations, and you better do something about them by next Friday.

So I says, Oh yeah, and what if I don’t do anything about them by next Friday?

Well, says the Man from EPA, then you’ll have twenty-two thousand, two hundred and twenty-TWO violations.

Hah, hah.

Not exactly hilarious, but that was my first time. I had to make it up myself because I’ve never heard a regulatory agency joke. Which struck me as strange, because in the US we have priest-minister-rabbi jokes, screw-in-a-light-bulb jokes, race jokes, blind guy jokes, physicist-mathematician-engineer jokes, and lots of lawyer jokes. (Like the one about the lawyer and the pope who died at exactly the same moment…I guess that’s a lawyer joke and a religion joke at the same time. Hmm, and Purgatory is sort of like a regulatory agency.)

The more I thought about it the odder it seemed. We have lifeboat jokes, viola jokes, man-walks-into-a-bar jokes, parachute jokes, toilet jokes — but no regulatory agency jokes. I’m not talking here about good jokes, or jokes in good taste, or politically correct jokes, or even funny jokes — just jokes.

I was looking for a fresh way to criticize regulatory agencies. Or, maybe to understand why so many people can’t imagine a world without them.

Folklorists and sociologists are always analyzing recipes, urban myths, jump-rope rhymes, and jokes for clues about a society. It follows that not having jokes about a certain topic might also tell us something. I’ve never heard a joke with the punchline, “And so the doctor says: You’ve got breast cancer!” and everybody laughs.

I’m not sure what it means if there aren’t jokes about regulatory agencies or cancer. This could be a red herring, but you can’t be sure till the fat lady sings.

Regulatory agencies have long public records of being colossal failures.That’s rich material to mine. Some of the reasons for failures:

1. Regulatory agencies are political, so sometimes the FDA chief is going to be a former pharmaceuticals company executive, or the DNR alpha is going to be a realtor. (Joke material?)

2. They’re way underfunded, so enforcement is a joke (did I say that?); leap years come more often than inspections; and the backlog of unevaluated chemicals numbers…let’s just say, much more than your annual income in dollars.

3. Historically, Reg Ags are always “captured” by the industries they are supposed to be regulating.

All that is well documented over more than a century in the US. But I won’t go into it here because I don’t have any jokes about it. Speaking of which…World’s shortest Regulatory Agency joke: Kid goes into the school guidance counselor’s office. Says, “I want to be a hearing examiner.”

OK, back to the list. Saving the worst for the last, two more reasons why Reg Ags are such failures.

4. By combining legislative, executive, and judicial functions in one place, they frustrate democracy. (Key: as they were meant to do). They regulate citizens, not corporations.

5. Reg Ags were actually invented by corporations as a way to avoid state legislatures and local laws. You don’t believe it, do you? It has a high truthiness index: go here for the facts.

After all that preaching you get one more joke.

A lobbyist, a hearing examiner, and an Earth First!er are in an elevator. The lobbyist is wearing Savile Row, the hearing examiner is wearing Thrift Shop retro, and the Earth First!er is dressed up as a Karner Blue butterfly. They’re at EPA headquarters, heading for a hearing on the top floor, way, way up there. Suddenly, there’s a thump and they get a sinking feeling in the pits of their stomachs.

The Earth First!er yells: The cable’s broken, we’re falling! Help me find the emergency button to stop this thing!

The hearing examiner says: Thank-you for taking the time to come here today to share your views on this matter with us.

The Earth First!er yells again: You just don’t get it, do you? Help me stop this elevator NOW or we’ll all die!

The hearing examiner says: Well, it’s not quite as easy as you think. First of all, there are people who have spent their whole lives studying elevators and running elevator companies, and it would be imprudent to do anything without hearing their testimony.

Second, there are constitutional issues here. We have to hear the elevator company’s views because the Supreme Court has ruled that corporations are constitutional persons with First Amendment speech rights, plus rights to due process and equal protection before the law.

Then, the lobbyist butts in: The elevator company’s experts have already submitted persuasive testimony to the effect that we’re not falling at all, you are an alarmist, and if we even try to stop the elevator now, we would damage it, thereby harming the elevator corporation’s constitutionally protected private property and becoming liable for damages.

I hate to leave that so up in the air, but I got sort of bogged down on that joke, if you know what I mean. The lobbyist and the hearing examiner became compost, and a blue butterfly was seen fluttering away from the scene.

What the butterfly knew that many citizens groups still don’t, is that there is life and activism outside of regulatory agencies. It’s called local government, ordinances, legislation, referendums—and much of it goes under the name “community rights.” Here is an introduction.

Fat lady’s song: To answer the implied title question, Why aren’t there any jokes about regulatory agencies? Um, because they ARE a Joke?

Actually, there are Reg Ag jokes. But the ruse that there aren’t got you to the end of this blog post, didn’t it? Thanks.

Until next time. jam

Groundhog Day for Obamacare: Back to the Supremes

Like small-town mayors across the nation on Groundhog Day, the Supreme Court will get to make the call on whether Obamacare casts a shadow.

The Affordable Care Act (ACA, aka Obamacare) is again on its way to the Court for further review, as they say in the NFL. Its future is on the line, but for completely different reasons than the first time in 2012. Continue readingGroundhog Day for Obamacare: Back to the Supremes”

Let’s Get Smart About ALEC

Gather a bundle of your inkiest exclamation points to put at the end of the next sentence. An outfit called ALEC, funded by wealthy right-wing ideologues, has put together a collection of model laws that they like, and is trying to get legislatures to pass them! ! ! ! !

So what exactly is so shocking about this? That they have actually written up laws they’d like to see passed? That they are promoting them to like-minded legislators? That they have money? Really? (For an analysis of what we’re missing, go here.)

(For those of you who have been playing online solitaire for the last four years, ALEC, described as a “corporate bill mill,” stands for American Legislative Exchange Council, founded in 1973 as the Conservative Caucus of State Legislators).

Hey, there are as many model laws out there as there are articles “exposing” ALEC. Glance over this fun sampling, and then tell me why ALEC is so outrageous.

Apes & Electrification
The Animal Legal Defense Fund has a “Model Ordinance for Great Apes” as part of its Model Animal Protection Laws Collection. The Energy and Mining Sector Board of the World Bank puts out model laws that promote electrification.

Shellfish & Carry-On Musical Instruments
The Food and Drug Administration puts out a Shellfish Sanitation Model Ordinance. The American Federation of Musicians sought to get provisions of a model law about carrying musical instruments on commercial airlines incorporated into a modernized Federal Aviation Administration Act.

Guns, Adoption, Anatomical Gifts & Organ Transplants
The Johns Hopkins Center for Gun Policy and Research put out a Model Handgun Safety Act. The US Uniform Law Commission puts out lots of model laws such as the Uniform Adoption Act and the Anatomical Gift Act, the latter supported by “many organ, eye, and tissue procurement organizations.” The Organ Procurement and Transplantation Network offered the National Organ Transplant Act.

Service Dogs & Solar Energy
Assistance Dogs International has an Assistance Dog Model State Law. Solar America Board has offered a Model Statute/Ordinance To Encourage Access to Solar Energy.

Work Zone Safety & Model Model Law
The National Committee on Uniform Traffic Laws and Ordinances puts out model laws on work zone safety. There is even a model law for models from the Model Alliance, an organization that focuses on fashion model rights. Concerns include child models dropping out of high school, and being pressured for sex by photographers.

Lots of groups and institutions are organized and focused enough to write up and put out model laws, at the local, state, federal, and international levels. (Go here for an example of how to do this “at home.”)

Some work quietly, while others launch major PR campaigns. These model law groups are likely to be funded by, if not started up by, people who stand to benefit or believe they will benefit from the laws they propose.

Many states, and the US, have passed outstanding “green” or “progressive” laws in the past. See my book Gaveling Down the Rabble, or an article about a “green” future, or an article about good state laws, or an article about laws to protect meat quality.

Unfortunately, many of these laws have been declared unconstitutional because of corporate constitutional protections. For an insight into this phenomenon, go here.

So, let’s get smart about ALEC.

1. Get over it. What is accomplished by protracted hand-wringing on how evil ALEC is? Describing the problem is only helpful if you’re talking to people who don’t think there’s a problem.

2. Acknowlege that ALEC has done a great job, especially by keeping a list of model laws on hand for when they may be able to pass them. ALEC is prepared.

3. Learn about ALEC. ALEC gets its power from the government. Specifically, the Illinois law under which ALEC incorporated in the mid-1970s, and the 501(c)(3) portion of the US statutes IRS code. Have you ever read or tried to change either one?

4. Write your own goddam model law. If you’ve got a problem with ALEC, rewrite the law under which it was incorporated to better suit democratic ideals. State laws are out there, and I don’t see a lot of left-of-center groups even reading them, much less rewriting them. Right now, state incorporation statutes are modified every session, as corporate lobbyists march in, hand in their “improvements,” and stand by while legislators pass them. The American Bar Association puts out a Model Business Incorporation Act. Do you have one? (Go here for an example of some great provisions that used to be part of corporate law.)

5. Some good model laws. Here are two recent ones that you might consider emulating, adapting them to your own local issues. It’s part of what is often called the “community rights” movement.

COLORADO COMMUNITY RIGHTS NETWORK
HISTORY OF ENVISION SPOKANE

Ever walk into a representative’s or council person’s office with a proposed law in hand? It’s a good feeling. Put it on your 2015 New Year’s Resolutions list.

See you around Ground Hog’s day. jam

Making a Federal Case Out of It

“Don’t make a federal case out of it.” I used the phrase countless times without understanding its origin. But it turns out it’s full right up to the post-hoc-ergo-propter-hoc with historical significance: lessons about corporations, democracy and local control–what you might call community rights.

Take the train-hits-cow cases. Railroads began a rapid expansion in the US in the 1830s and by 1870 spanned the continent. Farmers had livestock milling around before barbed wire was patented or common, and trains didn’t-wouldn’t-couldn’t always stop for the unfortunate domestic animal standing on the tracks.

Farmers wanted compensation for all the cows wasted by trains. They often got it, even from the big railroad corporations, if they went to state courts, which obviously understood the plight of farmers losing stock to the new Iron Horses.

Another big beef during the early railroad era was that glowing embers from wood-burning steam locomotives wafted off and set fire to farmers’ fields and barns. This barn burning was especially common before railroads began switching to coal in the 1860s. Again, farmers were often able to get compensation if they went to state courts.

Railroad corporations were not keen on paying for kilt cows or burnt barns if they could avoid it. They learned early on that they fared much better in federal courts. Ask a lawyer (Better Call Saul): federal court takes longer, costs more, is farther away, has more onerous procedures, and is harder to win in if you’re an amateur.

Make a federal case out of it: escape the locals and get into federal court. As opposed to traffic court, municipal court, county court or state court. The rules for getting into federal court have changed over time, and there’s no way to summarize them here. But one fairly sure way is to raise a constitutional question. Poring over the constitution looking for corporate handholds has long been a strategy for property seeking relief from local democracy. (My book Gaveling Down the Rabble is all about how it’s done with a single constitutional clause.)

Much of corporate law (and “rights,” and powers) comes out of cases about railroads because they were among the dominant corporations of the 19th century. The take-home message: corporations saw that local control was a threat to their power, but federal jurisdiction (courts, Congress, or the regulatory agencies) could be a ticket for privilege. (For some history, see this.)

A shallow or stylized sense of history can lead to misconceptions. Many people think that the Supreme Court (the feds) has been a stalwart defender of civil rights. Simply not true, and shamefully not true. (See the chapter on civil rights in Gaveling.) But the “federal case” idiom was common in the 1950s because of federal involvement (usually based on the constitution’s COMMERCE clause) in civil rights during those years.

The origin of the phrase seems to be somewhat earlier, in Jimmy Durante’s 1940s reference to the federal government’s use of tax evasion charges to justify going after bootleggers during the Depression. I don’t have any evidence that the phrase was used in the early railroad era, but it captures the essence of corporate efforts to escape protective state and local laws.

If I titled this post “Federalism is So Complex!” none of you would be reading this now. But it is complex, and critical to efforts to reinstate some semblance of local control in our communities. Here are another few relevant tidbits before I close this ramble.

* Federal courts had little to do in the early decades of this nation, but now hear cases on a huge spread of topics and issues. (Gaveling explores this in labor, civil rights, and environmental law, among others). Whether this is good or bad is not obvious.

* The US Congress—not the constitution—determines the powers of federal courts. See my “Look to Congress for Supreme Court Fix.”

* The question of the appropriate relationship between local and federal power involves, among many other things, whether a federal law should be a floor (a minimum standard that states may be stricter than), or a ceiling (a standard that must be met but cannot be exceeded by local laws).

Finally, let’s remember that “local control” is a double-edged sword. If we really believe in local control, we need to insure that it is DEMOCRATIC local control and not feudal party machines in action.

Next post will be about….let’s see, What the Phrase “From Here Till Next Tuesday” Can Tell Us About Corporations.

Happy 2015, jam

jam tip: A great source for train-hits-cow stories and other tales of early corporate constitutional predation is volume one of Morton Horwitz’s The Transformation of American Law (1977). NB: not for the faint of heart.

A Corporate Anthropologist Walks Into a Blog…

There are two kinds of corporate anthropologists. First, the kind that works for corporations and gets paid. I’m the other kind.

The first kind works for and with corporations to increase worker productivity, advise what color greeting card to send a Chinese executive, or figure out how to sell personal hygiene products to Mayan grandmothers. In school we used to call it how-to-sell-Coca-Cola-to-the-natives. A subset would be how to keep the natives from getting restless.

It often involves finding non-confrontational stealth “solutions” to management-defined problems. This would include designing lobby benches that can’t be slept on, or sandpaper-covered toilet seats to discourage secretaries with too much time on their hands from hiding in stalls reading bodice-rippers.

It would not include ways of preventing non-corporate geese from defecating around fountain-fed corporate ponds. (That would require a corporate ornithologist, I guess.)

The second kind of corporate anthropologist, the kind I am, uses anthropological methods to study corporations or corporate culture. The core anthropological research method is participant observation, which basically means living there, or if it’s a setting like a factory or school, working there or attending—hanging out in some way.

I’m a corporate anthropologist because my “tribe,” the one I studied, was a powerful quasi-public utility company. It was by following this utility through scores of permits and hearings, in nearly as many regulatory agencies and courts, that I got my training in regulatory agencies. My dissertation was over 700 pages long and contained thirteen appendices, partly because I feared a lawsuit.

This sort of thing is called “studying up” because unlike the historic anthropological project of sending someone from an empire to study oppressed people in the colonies (“studying down”), you have someone studying up at powerful people, groups, or institutions, often in their own society.

One of the reasons it’s not more popular is that there’s no money in it. In my own case, I was encouraged to study (down at) environmental groups or citizen activists instead of (up at) the Big Utility. Corporations and other powerful institutions have always been happy to fund studies that reveal the inner workings and weaknesses of groups that suffer from their practices.

Since the 1960s, UC-Berkeley anthropologist Laura Nader (yes, Ralph’s sister) has been encouraging students to “study up” at everything from regulatory commissions to dentist conventions. Her work was an inspiration and model for my own.

If you want to hear more about my utility tribe, you can read a sidebar on it here, or follow the links in “About JAM” to a biographical sketch on the Society of Midland Authors site.

So, a corporate anthropologist walks into a blog……says…. Happy Solstice, see you in 2015. jam