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

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

Frackin’ Keystone

Gotcha. There, I did it. Used two of the hottest current keywords to draw you in, and here you are. Thanks for visiting, I’ll make it worth your while.

They’re but two buzz words in a long line — longer than the trains stretching to the horizon, carrying crude (very crude) oil, frack sand, and yes, still a lot of coal.

Hydraulic fracturing, Keystone XL Pipeline, two buzz phrases in a long line of practices and projects that should have been prevented, or stopped, or at the very least scaled way down to something plausibly sustainable, or regulated down to something whose consequences would be truly minimal.

But instead, FRACKING and KEYSTONE are just the latest episodes in the long-running and on-going soap opera called Regulatory Agency Failure whose subtitle could be something like, No-Your-Community-Does-NOT-Have-the-Right-to-Protect-Itself-from-Obvious-Harms. Why do we keep banging our heads against the wall in the regulatory agency theme park — exactly where corporate strategists want us to be?

Is it because we can’t think of any other approach? That won’t work as an excuse for anyone who knows the history of regulatory agencies in the US, or the history of corporations in our states.

I’ve been trying to get people to question the whole regulatory agency framework for decades. Not to replace it with transparently self-serving “corporate social responsibility,” faux-green techno-fixes, or so-called “market forces” to further fatten the 1% — but with something that we could, with a straight face, call small-d democracy.

So, I’m handing you off.

If you think regulatory agencies were designed to actually regulate corporations, go HERE. If after reading those five pages you still believe in regulatory agencies, I’ll buy you a beverage of your choice. (I’ve been making that offer for fifteen years now, and have never had a taker.)

If you can’t imagine anything to do other than plead — and I mean plead — with bureaucrats in regulatory agencies, go HERE.

If you are ready for a comparison of activists’ ineffective, circularly addictive busy-work tactics with the straightforward, effective, corporate strategies that deal with fundamental law instead of frou-frou regulatory minutiae, go HERE.

By the time you’ve considered all that, I’ll be ready to dish out another installment of commentary.

Right now I’ve got snow to shovel.

Help, I’ve Been Colonized and I Can’t Get Up (1998) (Take a lawyer and an expert to a hearing and call me in a decade…)

by Jane Anne Morris

CentrifForColonizedA third of your friends are locked down in an old growth grove or at a corporate headquarters, with law enforcement officers rubbing pepper spray in their eyes. Another third are preparing testimony so you can be persuasive at a generic regulatory agency while you’re begging them to enforce a tiny portion of our laws. The third third are trying to raise money to pay lawyers to get your friends out of jail (after they’ve been released from the hospital) or take the regulatory agency to court (after it declines to enforce the law).

Continue reading “Help, I’ve Been Colonized and I Can’t Get Up (1998) (Take a lawyer and an expert to a hearing and call me in a decade…)”

Sheep in Wolf’s Clothing (1998)

By Jane Anne Morris

A rusty bicycle bell with the top off, obviously non-functional.If you’re having trouble getting to sleep, you can count sheep, or read a book about the history of regulatory agencies. It may turn out to be the same thing.

The nation’s first federal regulatory agency, the Interstate Commerce Commission (ICC), was established in 1887. Concerned citizens, having failed to solve their difficulties in more traditional ways, sought the intervention and assistance of the federal government. Over the next three decades, these mavericks worked to defend the ICC’s existence and increase its powers to regulate the railroad corporations.

Who were these pioneers who dared to go where no one had gone before, to urge the formation of and expand the powers of the first federal regulatory agency? Continue reading “Sheep in Wolf’s Clothing (1998)”

Regulatory Agencies Have Failed Us–Let’s Fail Them: Out of the Agencies and Into the Legislatures (2010)

By Jane Anne Morris

Too Big to Fail?

Billowing smokestackRegulatory agencies are not, and never were, the Great Protectors of the public interest that hazy origin myths suggest.1 Understanding regulatory failure entails accepting this inconvenient truth and then moving on.
Continue reading “Regulatory Agencies Have Failed Us–Let’s Fail Them: Out of the Agencies and Into the Legislatures (2010)”

Fukushima: A “Normal Accident” (2012)

By Jane Anne Morris1

 

In retrospect (that is, after an accident has occurred), it is often easy to look back at a situation and describe it as an accident waiting to happen. Too often we just leave it at that, perhaps hoping that someone else will figure out how we could have foreseen it.

Somebody has. Charles Perrow has reviewed a range of technologies—including petrochemical and nuclear facilities, dams, mines, weapons and space research, aircraft and airways, DNA research, and shipping—and written an insightful and persuasive analysis of the kinds of systems in which accidents are inevitable, or “normal” in his terminology.2 Nuclear power plants are excellent examples of such systems.

According to Perrow, normal accidents occur in systems that share a few key characteristics. First, the system has many components (parts, procedures, and operators) arranged in a complex way. (That is, it’s not one long linear process where all that happens is that A leads to B leads to C, etc., and that can be stopped easily at any time.)

In such a system (with many components arranged complexly), it is obvious that many small failures—things like faulty switches, burned-out light bulbs, minor operator errors—will occur. Such failures are not expected to be catastrophic because numerous back-up and emergency response systems—also complex—are in place.

The second characteristic of a system that will, according to Perrow’s analysis, experience normal accidents, is that two or more failures (of parts, procedures, or operator judgment)—failures that may be trivial in themselves—can interact in unexpected ways. For example, part P (a light bulb on a gauge) might fail at the same time that part Q (part of a back-up system) is off-line for maintenance. The failure of part P might leave operators unaware that a problem was developing; the inactive status of part Q might deactivate the emergency system that would have (probably) either alerted operators to the problem, or shut down now-dangerous components.

By the time they see a problem, they will be unable to act appropriately…
But the problem is just beginning. For one thing, the operators may not know that anything unusual is happening. There is so much going on, that in a system with literally billions of components, they may not know that part Q is not on-line. They have no way of knowing that the light bulb in a particular gauge should be blinking “danger.” The complex system, with all of its gauges, back-up systems, and interdependent processes (for example, certain pumps automatically go on when temperature in a given area—or the gauges that show temperature—reach a pre-established threshold) continues to function and react. Until other things go “wrong,” the operators will be unaware that there is a problem. By the time they see a problem, they will be unable to act appropriately because they have no way of knowing what else has happened.

In the case of Three Mile Island, it took many months of sifting through computer data, numerous interviews, and much technical analysis before a reasonable scenario of “what happened” could be constructed. This circumstance leads to an inherent contradiction in high-risk systems: the very procedures that are necessary during normal operations are hopelessly inadequate during emergencies.

During normal operations, a centralized control team must know exactly what each operator is doing, so that one person does not do something that would interact with another component to endanger the whole system. Therefore, operator procedures must be fixed and exact. However, accidents tend to happen when events for which there are no clear procedures occur. The lack of procedures, combined with operators’ ignorance of the exact state of affairs, means that operators must take independent action based on their best guess as to what is happening.

Without suggesting that back-up systems and redundant safety features should be eliminated, Perrow notes that these measures add to the complexity of a system and decrease the likelihood of timely comprehension of a problem.

For instance, suppose that to ensure the accuracy of control panel information about a very important measurement, there are not one but two gauges measuring the amount of water in a tank. Now suppose that one shows that the tank is empty and the other that it is full. Is one gauge broken? If so, which one? Is the tank either empty or full? Perhaps it is half full, and both gauges are malfunctioning or disconnected.

Assume that a partly full tank could account for observed leakage, and that an empty tank would explain overheating. What if other gauges suggest neither leakage nor overheating? Are both of these gauges accurate, or is one or both faulty, and if so, which? And so on. Even in this oversimplified hypothetical case, the possibilities multiply rapidly when a possible doubt is introduced regarding each piece of information.

In some technologies, normal accidents are relatively frequent but limited in catastrophic potential. Wind turbines can be dangerous and have caused horrible injuries to maintenance personnel, but they are not going to spin off and decapitate thousands of people. In nuclear technologies, the catastrophic potential is immense, as we are seeing again at Fukushima. Nuclear accidents, viewed through historical or systems analysis, are a certainty. It is hubris to think otherwise.

Notes:

Try This At Home (2004)

by Jane Anne Morris

1: The Ambassador

Frame and outer shell, during construction, of a stringed instrument, perhaps a viola.The ambassador’s entourage — two edgy men with ear wires down their backs, and a few hangers-on — formed an irregular security perimeter. Handlers steered her around to avoid ambassadorial stumbles over uneven footing in the cramped space. It was Colómbian Independence Day, so I suppose I should have expected to bump into the U.S. ambassador in the mummy room of the National Museum in Bógota. What better way for the ambassador to demonstrate her deep concern for the people of Cólombia and bone up on Colómbian history? Like the fact that the National Museum building was originally designed to be the perfect prison — an application of the principles of Utilitarian Jeremy Bentham’s 1787 Panópiton. From a single vantage point, one unseen overseer could monitor all activities of all prisoners, 24/7. Significantly, Bentham noted that the plan would work just as well for factories, schools, poorhouses, and hospitals.

From 1905 until after World War II, “El Panópico” was Colómbia’s most fearsome prison. The central surveillance point was a round guard tower (now an airy rotunda sponsored by Siemens Corporation) with lines of sight radiating out toward eyelid-shaped windows on three floors of tiny prison cells. Those who survived detention there emerged looking little different from the mummies that riveted the ambassador’s attention.

The Panopticon is to space what a mummy is to time: an effort to extend and preserve the power of a few. Mummification — a precursor of cryogenics and cloning — is about memory and control. The Panopticon &mdash like the junior high school intercom left on when the teacher is out, like the invisible “cookie” behind your computer screen — is about hierarchy and control. The system requires fewer overseers with whips, because inmates do the heavy mental lifting. Shrouded in a wrap-around one-way mirror, the prisoner (student, teacher, consumer, citizen) is shaped more by the possibility of sanction than by its actual presence. Physical force stands down and waits on-call for special occasions, while self-censorship takes over daily operations. Because it derives its power from the inmates’ internalization of the work of the watcher, the Panopticon succeeds whether or not there’s anyone in the guard tower. The museum goes one better: it works even without a guard tower.

Conversion of El Panóptico to the National Museum required substantial renovation, but the overall design was eminently appropriate. Outstretched museum wings preserved the Panopticon’s radiant structure, while inner walls were removed to make space for artifacts and photographs. Today the voluntary museum visitor can scan the dominant culture’s shorthand for thousands of years of cultural diversity — stone knives, clay pots, textiles that cry out for human touch — efficiently labeled and laid out in rows of busted-out cell blocks. Leaving behind the grit and dust and reek and blood and guts, a museum coaxes and shapes the past into a runway for the future. For the future that is a perfect backdrop for a corporatized world.

In the U.S., this corporatized world is an open-air Democracy Theme Park where people go to hearings and pull voting levers, while decisions are being made elsewhere. Just as the Panopticon functions without the prison’s guards, and the museum functions without the Panopticon’s guard tower, the democracy theme park functions without the museum’s walls. Ideas that in the museum were safely caged, then tamed, are let out and encouraged to mingle and “pass” as natives.

In Colómbia, almost-daily massacres and assassinations are necessary to maintain corporate power, but in the U.S. it is more often the little man in the head who makes people enthusiastic foot soldiers in the war against themselves. In this darkness at noon, inconvenient facts are taken apart and reassembled in the theme park scaffolding. Popular rides include the Regulatory Agency Roller Coaster and the Voluntary Code of Conduct Mule Train. The Reform Gallery features Welfare Reform and Campaign Finance Reform. In the Constitutional Rights Hall of Fame, people can take part in regular re-enactments of famous battles. The democracy theme park even has its own museum, where other corporate power grabs are reinterpreted as “people’s victories.”

Ambassador Patterson has a role to play in the U.S. democracy theme park. So on Independence Day, the ambassador goes not to inspect helicopters used in the “War on Drugs,” but through downtown Bógota with its “Plan Colómbia = guerra” graffiti to the national museum to check out the props for the “War on Democracy.” When not mummy-gazing, Anne Patterson, the U.S. ambassador, is the on-site point person for stage-managing the Colómbia campaign, a critical testing ground for global corporatization. Her job is to transform a corporate resource-grab of mind-boggling proportions and unsurpassed brutality into a fairy tale with a “War on Drugs” theme song. There will be lots of heroic action against giant mutant coca plants and cartoon-like bad guy “drug lords.”

Patterson has lots to do. She has to deny that U.S. aid supports right-wing paramilitary death squads. She has to deny that U.S.-sponsored “coca fumigations” are killing subsistence crops, domestic animals, and people. She has to deny a U.S. role in the provision of a Colómbian army escort for a U.S. corporation’s illegal drilling on indigenous lands. She has to deny U.S. complicity in the methodical assassination of Colómbian labor leaders by U.S. soft drink corporation thugs. She also has to advertise and promote numerous U.S.-backed social, health and educational programs whose primary existence is on billboards. To their supposed beneficiaries they are convenient scams that fill the feeding troughs for a corrupt elite. And she has to read and sometimes respond to letters, faxes, and emails from pesky activists in the U.S.

2: The Activist

Patterson is no busier than Grendel, from Anytown, U.S.A. Grendel — she’s “one of us” — keeps a diary of her activism. Here is the last week’s worth.

On the first day, on Monday, she stuffs envelopes for Save the Dolphins campaign, and goes to a neighborhood meeting to discuss organic, sustainable food.

On Tuesday, she does research for her regulatory agency testimony to fight a local corporation’s pollution permit; she leaflets at a demonstration to support boycotting a brand of gasoline.

By Wednesday it’s time to work on Voluntary Code of Conduct provisions for corporations, then have a meeting to decide which “socially responsible” investments to recommend. (Here there’s a note that the meeting broke up after an argument between two factions. One favored the corporation that hires people of color and women to build nuclear power plants; the other favored the corporation that’s famous for union-busting but builds fuel-efficient cars).

Come Thursday, she sits down to write letters to state legislators and Congress, urging broader disclosure laws for chemicals. Then there’s that fax to Colómbia urging the U.S. ambassador to begin an investigation of the latest government-assisted civilian massacre. In the evening she “persons” a literature table at a panel discussion of unions and globalization.

On Friday there’s a strategy meeting on helping the Community Health Clinic stay open two days per week. After that her group tries to decide what to do about sweatshops and de-regulation.

Saturday is money day. In the morning there’s a bake sale to pay lawyers to pursue regulatory agency and court appeals. In the afternoon there’s a 5K Run fundraiser to pay fees, fines, and lawyers to bail out banner-hangers from their last demonstration.

It’s Sunday as she looks over her diary, the day that she must set priorities for the next week. She can’t possibly contribute to all the causes that she cares about. Should she skip the dolphins and add social security? Should she forget Colómbia and switch to Nigeria or East Timor? Should she work on radioactive waste storage and worker safety instead of campaign finance reform and groundwater contamination? Should she skip the demos so she can spend more time in the library reading about others going to demos? Should she dress up as a mutant to publicize pesticide use in public schools?

By this time it is late Sunday night. Grendel drifts off to sleep, and has a dream.

The Dream (As told by Grendel)

At the Mega company picnic, two teams were playing in something like a generic soccer game.

One team was us, the neighborhood, citizens, activists — and the other team seemed to be Mega, or something very much like it. We were getting close to scoring, but then Mega tilted the field so that we were heading uphill, them downhill. Then we were about to score again, and they stopped the game and said, You, You, You — are disqualified and can’t play. Then they told us that we couldn’t use certain plays. But we kept playing harder and almost scored again. This time they said that our team would have to play blindfolded. Then Mega narrowed our goal posts, and widened theirs. Then they bought off the referees. We finally scored anyway but they said that our score didn’t count. The referee blew the whistle and it was my alarm clock going off.

The next morning over coffee Grendel tells her dream to a neighbor, who says it’s transparent and proceeds to translate.

(The Neighbor’s Translation of the Dream)

The soccer game is how we’re always fighting against Mega Corporation. When they tilt the field, that means that they have a built-in advantage with more resources to use against us, and tax-deductible expenses. Disqualifying our players is like when they sue us for writing letters to the editor, or tell us that we don’t have standing. Banning certain plays is like when they say we aren’t allowed to bring up certain topics or issues at hearings. Or when our testimony is limited to two minutes. By withholding information — like about what chemicals they’re using — corporations force us to play blindfolded. Widening their goal posts is when all of the possible options are favorable to Mega. Even if we seem to win on something they can appeal it until the sun burns out. Buying off the referees is like when they grant favors to politicians, make campaign contributions, and use their political power to influence regulatory agencies and courts. Or, it could be when they can choose what court a case is heard in. When we score a goal but it doesn’t count, that’s like when suddenly a corporation is granted exemptions and variances from existing law. Or when a federal court throws out as unconstitutional a local law that we’ve worked for years to pass. And the referee blowing his whistle, that’s your alarm clock.

3: Knock, Knock

Contrasting the two dream teams reveals a fundamental asymmetry between activist strategy and corporate strategy. Activists dress up as corporate executives to get into meetings and buildings, and as animals to get media coverage. When is the last time a corporate executive dressed up as an Earth First!er or a turtle or an U’wa to get attention? While we are stuffing envelopes, writing letters to our “representatives,” and talking to twelve people at a time in living rooms, corporate executives are writing laws and buying television stations.

While the community response is to play harder — to try for bigger demonstrations at the Capitol, more letters to elected officials, more experts at the hearings, maybe add a banner — the corporate response is to CHANGE THE GROUND RULES. Under increasingly unfair ground rules, no matter how hard we play, we won’t ever score, or won’t score enough to matter. Corporate ground rules are not intended so much to affect a particular issue — though they do that — as to frustrate and dilute people’s efforts over a broad range of issues.

Corporate strategy is to change the ground rules for ALL games — labor organizers, human rights workers, toxics campaigners, everybody. But people’s efforts usually only work for ONE GAME AT A TIME. Even if we share common values and care about many of the same issues, we are inevitably rivals STRUCTURALLY. Like Grendel who faced this issue on Sundays, we find that If we have spent our efforts trying to save the dolphins or promote sustainable agriculture, we have fewer resources and less time left to work on toxic cleanups or prisoners’ rights.

This same fragmentation is evident at conferences, where after an opening keynote speech, attendees fan off into an almost endless array of particularized workshops and panel discussions. How to stop one corporation from using one chemical. How to get communities to recycle one type of container. How to get one framed political prisoner out of jail. This is not what corporate strategy looks like. A corporation does not have a separate team of lawyers, experts, lobbyists and public relations persons for each of the thousands of chemicals dumped into the environment. Or for each separate labor law violation. Or for each state, or each voluntary code of conduct, or each chamber of commerce, or each article of clothing, widget, or brand. Most of what corporate strategists do works across the board: it helps the particular corporation in many areas, and, it makes corporations in general more powerful. This is what working on ground rules does for you.

As a result of this difference in strategy, where people’s efforts are subtractive and divisive, corporation efforts are cumulative and synergistic. A score or victory for one corporation helps all corporations, but our work on one issue or campaign takes resources from others. In the soccer game analogy, we’re exhausting ourselves struggling uphill trying to score a goal, and they’re tilting the field. What we have termed ground rules amounts to no less than the political process, the assumptions and understandings that in a democracy are supposed to result in self-governance by the people. The democracy theme park has obscured both the current ground rules and “who” is using and writing them.

This “who” is not “The Corporation” because the corporation is not a who at all. People say “Monsanto did this” and “Philip Morris did that” with the casualness and familiarity you’d expect when describing an errant uncle with a hip flask. The more accurate term for the abstract legal fiction is Monsanto Corporation or Philip Morris Corporation. But corporations don’t really DO anything. The things that get done in the name of the corporation are done by people. Corporate executives make corporate policy, award each other golden parachutes, and hire lawyers to manage lawsuits and regulatory agency matters. They extract wealth from the work of others, call this the corporation’s wealth, then use it to externalize costs onto society and the earth while funneling profits to a tiny group.

Business corporations in their current form1 — as vehicles for the concentration of wealth and power in the hands of an elite — are incompatible with democracy. That’s why they are so popular with an elite whose status depends on insuring that democratic processes don’t happen. A corporation is the most recent and most successful effort to do all the things that elites hoped mummification, the Panopticon, and museums would do: preserve elite power. Corporate executives make decisions and manage the money, while workers follow orders (on pain of losing their livelihoods) and add value.

The “corporation” is a legal fiction to hold money and power for a few; it gives them access to “corporate” resources and shields them from responsibility for their actions. But, finally, a corporation is not a sentient being, not a conscious actor, not a target, not a “citizen.” It cannot be “punished” or negotiated with, or elope or go insane. It can’t be “socially responsible,” or have an opinion on global warming. It can’t have “rights.” If people believe it can do any of these things, then the corporation succeeds as a decoy to confuse issues and take the flak for an elite. But the corporation can still be de-constructed, and not a moment too soon.

4: The Stowaways

In a world where “corporations” can break laws, they can also get permits. Most corporate harms to democracy (like other corporate harms &mash; to human rights, the environment, and so on) are perfectly legal, because corporations have “permits” to conceal, oppress, and pollute, all courtesy of our supposedly democratic government. This is because many corporate powers, privileges, and even “rights” rode into town as drivers and stowaways on the “reform” bandwagon. Often, the “reform” is just another chip off the block of people’s sovereignty shoveled into the corporate bag.

For instance, the biggest boost corporate campaign contributions ever got came from the so-called campaign reform bills of the post-Nixon era, which invented and legalized political action committees (PACs). This legalization of corporate interference with democracy replaced laws like this 1905 Wisconsin law:2 “No corporation doing business in this state shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.” State legislators in Wisconsin, under constant pressure from corporate lawyers, weakened this law, and then national legislators preempted it by legalizing PACs. Yet, when in the 1970s legislators tossed this shovelful of sovereignty into the corporate slag heap, the event was commemorated in the democracy theme park’s “Reform” Gallery.

Regulatory agencies have always been part of the corporate elite’s “War on Democracy,” masquerading as reform. State legislatures were never models for direct democracy, but for a long time they remembered that corporations were only their creations, to remain subordinate and follow precise operating instructions. If corporate officers disobeyed, state legislatures simply voted to eject the corporation (if it was from another state) or dismantle it and take over the assets (if it was from the home state). Historically, regulatory agencies were designed by corporate lawyers to protect large corporations against public uproar, upstart competitors, and too-democratic state legislatures. They still do all that, plus provide years of character-building experience for those entrapped in their procedural mazes. After more than a century of failing to “rein in” corporations, they are still among the biggest attractions in the democracy theme park.

Antitrust laws provide another example of the “reforms” that shelved indirect democratic control of corporations and replaced it with feeble regulations. Until the 1880s, all states prohibited “corporations” from owning stock in other corporations. Most discussions of antitrust are superfluous and unnecessary when such prohibitions are in place. Under pressure from powerful corporate executives, state legislators removed these laws from the books, so that by the early twentieth century none remained.

Demanding transparency from government and its agencies is basic to self-governing. If you don’t know what your government is doing, you don’t live in a democracy. Current law requires corporate officers to reveal very little about their operations to the public, despite the fact that corporations are brought into existence through corporate charters granted by state legislatures. Disclosure laws that fall short of transparency are not “reforms,” they are obfuscations. From its first year of statehood, Wisconsin required that all vaults, books, safes, books, papers, keys, and documents that pertained to a corporation’s affairs and condition be open for inspection by the state that created it. Laws like this were typical and stayed on the books well into the twentieth century when people started believing that the abstract legal fiction of the corporation had “rights.” Today, no proposed “reform” comes even close to the degree of disclosure once taken for granted.3

The idea that a corporation can be “bad” leads quickly to the “reform” idea that it must be “punished.” The mirage that corporations can be punished works against democracy by deflecting sanctions away from a controlling elite. The recent tobacco settlement is a case in point. For decades tobacco corporation executives and their predecessors made billions of dollars in profits by knowingly marketing an addictive carcinogen as a fashion accessory. Not a penny of the over $200 billion in fines will be paid by corporate executives, the decision-makers of the corporation. Instead, that money will come from the usual places: workers (through lower wages and benefits), stockholders (lower dividends and stock prices), the general public (through health care and other externalized costs) and consumers — people still purchasing “nicotine delivery systems.” Tobacco corporations even got legal immunity from some future liability in the agreement. The executives admitted no wrongdoing. Taking the product off the market is nowhere in sight. Life is good for corporation executives. They got a little bad publicity for a while, but nothing that a few name changes, some shifting of assets among corporate parents and subsidiaries, and slick advertisements can’t fix.

The Corporate Social Responsibility (CSR) concept was invented by corporate executives in the 1930s to offer up as a “reform” to head off calls for democratic control. It has enabled corporate executives to frame the public debate around a few voluntary, temporary pacification measures instead of fundamental democratic change. The recent Enron Corporation collapse and subsequent high-profile accounting scandals inspired many prominent CEOs to go on tour ululating over the joys of “corporate citizenship.” Even the CEO of CEOs, President Bush, stood in front of “Corporate Responsibility” wallpaper and positively swooned about corporate ethics. Democratic control of corporations is not mentioned in these performances.

Voluntary codes of conduct — a subset of CSR — mirror the Panopticon system, with citizens in the cell blocks. Corporate executives who have persistently failed to follow mandatory codes of conduct (i.e., laws) promise to try to follow voluntary standards. Shielded by the guard tower (the legal fiction of the corporation), their actions are disclosed only when they choose. Voluntary codes of conduct are like laws, but without enforceable disclosure, monitoring, or performance provisions. As with other CSR measures, any corporate costs are tax deductible, either as business expenses or as donations.

While reducing the corporation’s tax bill (if there is one) and the government’s tax revenues, CSR bypasses the public process that in a democracy would determine how taxes are spent. CSR gives “the corporation” a good reputation, garners praise from communities, reduces corporate taxes, depletes the government’s resources, bypasses the democratic process, and puts a handful of corporate executives in the position of making what are essentially policy decisions for the general public. After every labor struggle, depression, and social upheaval (like the “chain store wars” of the 1930s), there’s an injection of “corporate social responsibility” — the 1970s, post-World War II, the Depression, back to the late nineteenth century rise of corporate power. At the end of the twentieth century, the brouhaha surrounding the World Trade Organization (WTO) precipitated another round of CSR pronouncements.

Each of these “reforms” made society less democratic and moved the locus of control further away from the people.

5: The Hijacking

Corporate lawyers working on behalf of the legal fiction of The Corporation use human constitutional rights EVERY DAY to frustrate the people’s will and further degrade our democracy. What better staging area from which to direct a “War on Democracy” than the hallowed grounds of the U.S. Constitution? In a nutshell, the fruits of people’s struggles are hijacked by corporate lawyers and used to protect corporations against the will of the people. Like the “War on Drugs” camouflages the corporate resource grab in Colómbia, the rhetoric of “rights” masks the corporate takeover of the Constitution. Abolitionists struggled to end slavery and pass the Fourteenth Amendment, including the equal protection clause. But since 1886, corporate lawyers have successfully claimed — through “corporate personhood” — that laws that “discriminate” against their corporations are unconstitutional under this clause. Laws specifically intended to discriminate against harms (chain stores, toxic garbage, sweatshop-made clothing) are routinely declared unconstitutional. Historically, the equal protection clause has most often been used to protect corporations against laws, and not to protect human beings against discrimination. At best, African-Americans and women have benefited from equal protection “lite.” Corporations, however, continue to benefit from full-strength equal protection.

Corporate lawyers use the due process clause of the 14th Amendment on behalf of “corporate persons” to support numerous appeals of laws and regulations. Claiming that a corporation’s due process rights have been abridged, they demand appeals and rehearings and other procedures that were intended to protect the human and civil rights of human beings. Fourteenth Amendment “personhood” has functioned as a constitutional gateway for the granting of other “rights” to corporate persons. The Civil Rights Act of 1964, passed after much struggle and loss of life, was used by a transnational telecommunications corporation to sue a local government for monetary damages after it denied the corporation a desired cell tower site. Corporate lawyers argued that government action had violated the corporation’s civil rights. Yet instances of racial profiling, police brutality, DWB (”Driving While Black”) and other forms of discrimination provide daily reminders that civil rights for human beings are far from guaranteed.

The First Amendment doesn’t work so well for human beings wanting to exercise free speech rights to talk about unions at their workplaces, or leaflet at a shopping mall. But it has worked very well for corporations seeking to escape product labeling laws (like the Vermont rBGH case) and evade already weak campaign finance laws. Fourth Amendment protections against unreasonable searches and seizures often fail to keep the authorities out of your apartment, your car, or your personal records. But corporate lawyers have used that same Fourth Amendment on behalf of corporate “persons” to keep OSHA (the Occupational Safety and Health Administration) and the EPA (the Environmental Protection Agency) from making meaningful inspections of corporate facilities, and to prevent other government agencies from seeing corporate records. This betrayal of centuries of people’s struggles is deep in the fabric of U.S. law. It is the ground rules.

In the corporate view, to ban chain stores is to deny corporate rights to equal protection before the law. To hold corporations to legislative standards is to deny them due process. To require labels on food is to violate corporate First Amendment rights. Meaningful inspection of factories is a violation of corporate Fourth Amendment rights. If all this is really unconstitutional, then we need to take another look at the constitution. If it’s judges bending over backwards to justify pro-corporate decisions, then we need to see about the judges. But either way, if it’s unquestioned, it will continue to run the underground machinery behind the democracy theme park, while people outside wait in line for the rides. We don’t hear much about any of this, in these terms, because news media corporations report it as “reform” and “defense of constitutional rights.” Then it fits effortlessly into the democracy theme park. Every minute we don’t challenge it, we reinforce it.

6: Try This At Home

I would like to invite Ambassador Patterson out from among the mummies in the renovated Panopticon to the rolling hills of Pennsylvania. We should invite Grendel and her neighbor, too. In Pennsylvania, people decided to fight against the “War on Democracy” on their own turf by doing the most basic thing a self-governing people can do: protect their communities against poisons and assassins. People in a number of townships decided that corporate hog farms are a threat to their well-being and passed laws banning them. Working with Tom Linzey of CELDF (Community Environmental Legal Defense Fund), they passed a series of ordinances that is driving corporate lawyers hog wild.

Walk into a roomful of lawyers and say you want to pass a law banning corporate hog farms, and before you draw your next breath they will have ticked off half a dozen reasons why that would be “unconstitutional.” Current corporate ground rules, if followed, frustrate efforts at democratic local control. But instead of backing down when corporate lawyers say their laws are “unconstitutional,” the Pennsylvanians are insisting on their democratic rights. They’re basing their resistance on the earthshaking notion that they are a self-governing people, that corporations don’t have the constitutional “right” to force them to allow their communities to be destroyed. By not backing down, by this seemingly simple act — passing a local law that addresses a community concern — these Pennsylvanians are challenging the whole pantheon of corporate law that the ground rules are based on. Any straightforward, commonsensical measure will have the same effect. Ban Walmarts. Ban radioactive waste shipments. Require that all waste be recycled. Ban genetically modified organisms. All set up challenges to the same handful of ground rules that keep us from controlling the most basic aspects of our daily lives.

The sameness of these ground rules presents an opportunity. Once we get past the parts-per-million or cents-per-hour of our particular issues, we’re up against the same lame corporate ground rules. If Grendel fights the ground rules that she comes up against on her issues, and the Pennsylvanians fight the ground rules that corporate lawyers throw at them — sooner or later it becomes apparent that, while each is working on local issues and corporations, we’re all organizing to oppose the same half a dozen or so ground rules. Even without going to meetings, our efforts will be cumulative and synergistic. Ambassador Patterson’s job description would change, too. Right now, our states are chartering the corporations that are pillaging Colómbia. U.S. consumers are buying products that come from Colómbia. U.S. taxpayers are paying for the military occupation of Colómbia. The roots of corporate power outside of the U.S., and the U.S. government’s massive and often violent support of it, lie in the lack of direct local democracy at home. If we end the “War on Democracy” here in the U.S., we won’t be exporting it to our neighbors.

The Berlin Wall was taken down in 1989 by ordinary people, not by a specialized task force. It did not come down because of fancy legal arguments or because people were yelling at it. It came down because no one at any position in the hierarchy on either side of the wall could take it seriously. It was the last ride in a theme park that no one believed in any more. It was taken apart with joy, by people who were suddenly asking themselves, why did we wait this long? When we feel that way about the democracy theme park and corporate power, and can all cackle together at the silliness of a “corporation” having constitutional rights, they will come down too.

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“Try This At Home” was first published in Globalize Liberation, David Solnit, editor. San Francisco: City Light Books, 2004.

Notes