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I'm not sure that shareholders have enough real power in terms of corporate business decisions to make that concern "stick.". It does seem like a real issue for public corporations though, especially if you get a religious CEO making decisions that adversely impact shareholder value.
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Apr 4, 2014 17:25
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falcon2424 posted:Normally, I'd expect anyone who tried this to get sued for a breach of fiduciary duty; they'd be overtly abusing their position as a corporate officer to advance a personal agenda at the expense of shareholders. But, depending on the outcomes of some of these cases, it's not clear that rabid republicanism (or whatever) would be a personal agenda.
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Apr 4, 2014 19:19
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twodot posted:What is an example of such a case? Do you mean under the current regime? Gantler's one of the ones that comes up. Officers have a duty of loyalty to their shareholders. http://www.theracetothebottom.org/shareholder-rights/fiduciary-duties-of-officers-and-directors-gantler-v-stephen-5.html http://courts.state.de.us/opinions/%28bfhuo2asokjqliaa4lbaghm5%29/download.aspx?ID=116710 Normally, the courts give some pretty broad deference to business decisions. This way they don't have to adjudicate every alleged-mistake by an officer anywhere. But, the scheme I'm talking about would be pretty overt. The argument I'm worried about would go like: 1. Officers have a duty of loyalty to the corporation [true now] 2. Corporations can have 'legitimate' ideological goals independent of shareholder interests [via a bad hobby lobby decision] 3. A Koch-Brother-Appointed CEO is acting appropriately when he liquidates a business and gives all the proceeds to the RNC. It's not disloyal because it furthered the corporation's interests.
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Apr 4, 2014 19:37
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UberJew posted:That's the power of having defined corruption as quid pro quo agreements and only quid pro agreements. God, I love* how John Roberts' mind works. It's only corruption if you agree that this million dollars from ExxonPAC is explicitly in exchange for this specific law. If you just give a politician a million dollars and tell you hope you can count on his support, nope no indue influence there! It's like how voting laws can't be racist even if they were to revoke the franchise of every single black person in the state, just as long as you never say straight out that's why you're doing it. *For certain definitions of love
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Apr 4, 2014 21:01
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So, could I now form a SuperPAC that explicitly threatens "if you don't vote this way on this bill we will run $x in political ads against you?"
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Apr 4, 2014 21:24
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CheesyDog posted:So, could I now form a SuperPAC that explicitly threatens "if you don't vote this way on this bill we will run $x in political ads against you?" No because that's a quid pro quo arrangement.
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Apr 4, 2014 21:30
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Yeah, you would have to name it the American Committee for Responsible Citizens Who Hope You'll Consider Where Your Funds Come From When You Vote On Environmental Laws
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Apr 4, 2014 21:41
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esquilax posted:No because that's a quid pro quo arrangement. I realized as I submitted I phrased that in a very stupid way. Can a SuperPAC now seek to compel a CANDIDATE to take a specific action not related to the actual duties of their office? For example - could a hypothetical Third Party PAC state "any candidate who refuses to debate at least one third party candidate will have $x in ads directed against them"?
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Apr 4, 2014 21:43
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As far as I can tell you can do anything you want so long as you do not communicate directly to the candidate that you desire certain actions as a result of your gift. You just have to leave it implicit.
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Apr 4, 2014 21:49
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esquilax posted:No because that's a quid pro quo arrangement. And yet groups like Norhquist's still exist, when they were made for such purposes.
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Apr 4, 2014 21:50
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CheesyDog posted:I realized as I submitted I phrased that in a very stupid way. Can a SuperPAC now seek to compel a CANDIDATE to take a specific action not related to the actual duties of their office? For example - could a hypothetical Third Party PAC state "any candidate who refuses to debate at least one third party candidate will have $x in ads directed against them"? You always could.
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Apr 4, 2014 22:06
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Duke Igthorn posted:The first rule of using acronyms is to first establish what the acronyms means. YYNBBGFRT I did in the first effort post. In the first sentence. /shrug ------ edit: Thanks hobbesmaster. McAlister fucked around with this message at 08:41 on Apr 6, 2014 |
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Apr 6, 2014 08:35
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SCOTUS opted not to take on a case involving direct contributions to political candidates by corporations today. Not sure if that will be the case in a few years though.
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Apr 7, 2014 19:08
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I have a sort of court history/conlaw question that I thought I would put here. I was reading up on the CRA of 1964 and the court case that said it was constitutional for Congress to ban racial discrimination (Heart of Atlanta Motel v. United States). The case was decided on interstate commerce grounds, saying that since the motel had a lot of out-of-state customers and was near two interstates, that interstate commerce was relevant. Now obviously racial discrimination is a thing that should be banned and the US Congress should have the power to do it. But is the reliance on the commerce clause for this and other similarly wide-reaching laws just a kind of kludge that SCOTUS uses to sanction these laws, or is it something they actually think is appropriate? Not that I would know how to give Congress similar powers anyway.
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Apr 14, 2014 02:57
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Badger of Basra posted:Now obviously racial discrimination is a thing that should be banned and the US Congress should have the power to do it. But is the reliance on the commerce clause for this and other similarly wide-reaching laws just a kind of kludge that SCOTUS uses to sanction these laws, or is it something they actually think is appropriate? Not that I would know how to give Congress similar powers anyway. Well, see, if I was trying to give Congress similar powers, I'd probably do it something like the following: quote:Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws; all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin. Everything but the underline is from the Fourteenth Amendment (the underline is more or less from the Civil Rights Act of 1964). In 1883 (thus, ripe for reconsideration), the Supreme Court decided that private discrimination didn't violate the Fourteenth Amendment (as not a "State"), and so Congress's power to enforce the provisions dropped out, leaving only the Commerce Clause to underpin the Civil Rights Act of 1964.
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Apr 14, 2014 03:10
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The commerce clause stuff was just a way to get around a number of post-reconstruction Supreme Court decisions gutting the Civil Rights Amendments rather than force the Supreme Court to overturn them. The Supreme Court basically gutted those amendments once the popular support for reconstruction was gone. While there's cases to argue over if the commerce clause is being stretched too far, in this case it shouldn't have even been needed.
evilweasel fucked around with this message at 14:24 on Apr 14, 2014 |
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Apr 14, 2014 14:22
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Badger of Basra posted:I have a sort of court history/conlaw question that I thought I would put here. I was reading up on the CRA of 1964 and the court case that said it was constitutional for Congress to ban racial discrimination (Heart of Atlanta Motel v. United States). The case was decided on interstate commerce grounds, saying that since the motel had a lot of out-of-state customers and was near two interstates, that interstate commerce was relevant. The United States Congress isn't like a state legislature, which can pass laws restricting private behavior however it wants (so long as such legislation does not affirmatively offend that state's constitution or the federal Constitution). In contrast, the federal government is a government of limited powers, and in the legislative realm that means that Congress can only pass laws that arise from its specifically enumerated powers in the Constitution (found at Article 1, Section 8). The only enumerated power that is recognized as supporting Congress's ability to pass a law banning private discrimination is the Commerce Clause. Whether that is a valid understanding of the Commerce Clause, and the exact scope of that Commerce Clause power, is up to debate and there's not a definitely right answer (which is what I think you're looking for?). Also, the Fourteenth Amendment does permit Congress to enact legislation to enforce that Amendment's substantive provisions, but as ulmont alluded to, the Fourteenth Amendment's substantive provisions prohibit state discrimination, and not private discrimination.
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Apr 14, 2014 15:38
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evilweasel posted:The commerce clause stuff was just a way to get around a number of post-reconstruction Supreme Court decisions gutting the Civil Rights Amendments rather than force the Supreme Court to overturn them. The Supreme Court basically gutted those amendments once the popular support for reconstruction was gone. While there's cases to argue over if the commerce clause is being stretched too far, in this case it shouldn't have even been needed.
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Apr 14, 2014 15:41
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Ghost of Reagan Past posted:While I know stare decisis is really important, why can't/won't the Supreme Court overturn those post-reconstruction decisions? That seems like a no-brainer to me. Doing so would likely have wide ranging effects throughout the legal system. Overturning the Slaughterhouse cases (as Thomas has said he wants to do) would deprecate the entirety of selective incorporation jurisprudence. Issues as mundane as whether Chicago's civil parking fine system is constitutional would have to be relitigated under the new precedent.
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Apr 14, 2014 16:02
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KernelSlanders posted:Doing so would likely have wide ranging effects throughout the legal system. Overturning the Slaughterhouse cases (as Thomas has said he wants to do) would deprecate the entirety of selective incorporation jurisprudence. Issues as mundane as whether Chicago's civil parking fine system is constitutional would have to be relitigated under the new precedent. Proper justice just isn't worth the effort, I guess.
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Apr 14, 2014 16:07
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LeJackal posted:Proper justice just isn't worth the effort, I guess. There's a bit of hubris involved as well. The court doesn't like to say that it was wrong if it can avoid it. They really stretched the amount of power congress has under the commerce clause post new deal, but it's been tapering off since the early 90s and United States v Lopez.
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Apr 14, 2014 16:25
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Ghost of Reagan Past posted:While I know stare decisis is really important, why can't/won't the Supreme Court overturn those post-reconstruction decisions? That seems like a no-brainer to me. It's never come up, really. When the Civil Rights Act was originally passed, naturally Congress stuffed in the commerce clause so they maximized the chance the Act was upheld: it was far more important to pass the Civil Rights Act and have it enforced than overturn those old decisions. Since then, what court cases would come up that would really challenge those old decisions on Congress's power to ban racial discrimination? Every so often there's a case that comes up that gives an opening to reconsider another one of those, the decision on the Privileges and Immunities Clause. However in those cases we've been pretending everything that should be protected under that clause is actually protected under the due process clause that there's no real reason to overturn all of that precedent. Plus, it would potentially open up new cans of worms on what else should be protected under the P&I clause that nobody's really eager to do it besides Justice Thomas. There's just no reason to rewrite all of those decisions to try to get the same results. This happens in other cases as well: Korematsu v. United States is still technically good precedent, even though everyone recognizes that it's a dead letter constitutionally. The Justice Department published a notice that the Solicitor General had lied to the Supreme Court in 2011 and filed a formal notice of error that effectively erases the decision as precedent, Korematsu's conviction itself was overturned on the same basis in 1983, and both Justice Scalia and Roberts have openly said it was an error. But nobody's actually given the Supreme Court an opening to declare the case a dead letter, so it remains. evilweasel fucked around with this message at 16:52 on Apr 14, 2014 |
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Apr 14, 2014 16:46
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evilweasel posted:This happens in other cases as well: Korematsu v. United States is still technically good precedent, even though everyone recognizes that it's a dead letter constitutionally. The Justice Department published a notice that the Solicitor General had lied to the Supreme Court in 2011 and filed a formal notice of error that effectively erases the decision as precedent, Korematsu's conviction itself was overturned on the same basis in 1983, and both Justice Scalia and Roberts have openly said it was an error. But nobody's actually given the Supreme Court an opening to declare the case a dead letter, so it remains. Are they allowed to mention that it is dead, for example, in a majority opinion for another case altogether? Would that erase the precedent, or does that kind of reference not bear the weight of law?
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Apr 14, 2014 16:58
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mdemone posted:Are they allowed to mention that it is dead, for example, in a majority opinion for another case altogether? Would that erase the precedent, or does that kind of reference not bear the weight of law? There's nothing that actually stops them, but the Supreme Court is not supposed to issue advisory opinions or decide matters not before the court. It would be a bad precedent to set because it could be abused in the future. There's been incidents like that though: a footnote in a case about milk included this footnote, basically a "here is how to present cases on racial discrimination to the Supreme Court and the rules you should ask us to apply": quote:There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . . . That's a footnote laying out that the Court was going to be subjecting racial discrimination to strict scrutiny... in a case that dealt with a federal law that prohibited filled milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. But even there they made no actual decision, just heavy hinting.
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Apr 14, 2014 17:08
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One explanation is that you have to be really careful about informal rejection of old cases under the common law system- if it becomes a norm of accepted practice, it could easily be abused.
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Apr 14, 2014 17:54
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mdemone posted:Are they allowed to mention that it is dead, for example, in a majority opinion for another case altogether? Would that erase the precedent, or does that kind of reference not bear the weight of law? So it can be pretty difficult to get a majority of Justices to sign onto a segment of an opinion that is clearly dicta. And I would imagine it might be 99.9% impossible to get 5 of the current Justices to sign onto such dicta that holds a whole line of jurisprudence, or even just a single but well-known case (e.g., Korematsu), as overruled.
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Apr 14, 2014 18:43
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Since Game of Thrones has started up, I kept trying to remember which Justice was Walder Frey, and couldn't name anyone but Thomas. Kudos again on the awesome OP. I want to print it as an informative poster. edit: As I'm sure you all know, it was Scalia
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Apr 14, 2014 19:34
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Green Crayons posted:I'm not quite sure what you mean by your question. It looks as if you're asking if the Commerce Clause is an objectively valid basis to justify Congress's power to prohibit private discrimination, or if at least 5 Justices are willing to basically fake it because the ends justify the means? I don't think you'll get any meaningful answer to that question -- which could go either way, depending upon one's personal understanding of what the Commerce Clause does/should mean, and how cynically they view the Court. This is basically what I was asking. I didn't even think about the Reconstruction Amendments when I posted that, thanks for the answers guys.
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Apr 14, 2014 20:30
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Has anyone read about Justice Stevens' upcoming book?
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Apr 14, 2014 21:20
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Kiwi Ghost Chips posted:Has anyone read about Justice Stevens' upcoming book? I've read an excerpt and I think he's on his speaking tour, but his open opposition to the death penalty now that he's off the Court is what seems to be getting most of the press, even though his opposition-only-insofar-as-he-doesn't-have-to-actually-change-anything-about-how-the-death-penalty-is-applied is unsurprising to anyone who read Baze v. Rees.
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Apr 14, 2014 21:26
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Kiwi Ghost Chips posted:Has anyone read about Justice Stevens' upcoming book? Scott Lemieux has written a bit about it as well.
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Apr 14, 2014 22:41
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Anyone know when the Aereo case starts?
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Apr 15, 2014 02:53
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FCKGW posted:Anyone know when the Aereo case starts? Oral argument is set for April 22nd, but I think a bunch of the amicus briefs are in. There should be a case page on SCOTUSBlog that has the docket.
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Apr 15, 2014 02:56
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The Warszawa posted:There should be a case page on SCOTUSBlog that has the docket. http://www.scotusblog.com/case-files/cases/american-broadcasting-companies-inc-v-aereo-inc/
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Apr 15, 2014 03:58
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Does anyone have good links to discussions about economic liberties in Constitutional law, and whether or not they count as civil liberties? I know its basically a semantics question but it could be a useful one.
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Apr 16, 2014 16:45
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Could you be more specific about what you're thinking of when you refer to economic liberties? The two rights concepts that immediately come to mind are freedom of contract and freedom of association, both of which are  in some political contexts.
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Apr 17, 2014 00:24
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Well, that's just the problem isn't it? Civil liberties is already kind of vague but economic liberties could refer to literally anything under the sun, especially if you're Aeon Skoble and you think any infringement upon the ability to transact is a violation of your glorious market freedoms.
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Apr 17, 2014 21:19
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Oh- well, yeah, in that sense, afaik there aren't any prominent theoretical frameworks in which economic liberties are categorically distinct from civil liberties- they're both rights constructs assigned to people, and the content differences don't rise to the level of structural separation of concept. That's a big way of saying that liberalism tends to treat rights as unambiguously generic- one of the classical, fundamental problems with strong liberal philosophies.
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Apr 18, 2014 05:52
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quote:Former lobbyist Jack Abramoff disagrees with the Supreme Court's April 2 ruling on campaign finance limits, which knocked down the limit donors can give to a political candidate. http://www.huffingtonpost.com/2014/04/17/jack-abramoff-supreme-court-campaign-finance_n_5169510.html?ncid=fcbklnkushpmg00000013&ir=Politics
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Apr 18, 2014 16:48
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What is his definition of a "special interest"?
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Apr 18, 2014 16:57
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