My proposal is not abolishing corporate tax – that’s a much longer post and one I am not sure I’d agree with. Instead, the proposal is to have entities choose from options that are linked the Internal Revenue Code, and not to a particular entity. Thus, we would have (1) entity taxation, called C Tax, where an entity chooses to pay tax at the entity level, which would be typical C Corp taxation; (2) pass-through taxation, called K Tax, which is what we usually think of as partnership tax; and (3) we get rid of S corps, which can now be LLCs, anyway, which would allow an entity to choose S Tax.
This post deals with the tax code, which means I am in over my head, and because this is tax related, it means the solution is a lot more complicated than this proposal. But now that the code provisions are not really linked to the state law entity, I think we should try refer to state entities as state entities, and federal tax status with regard to federal tax status. Under such a code, it would be a little easier for people to understand the concept behind state entity status, and it would make more sense to people that a “C Corp” does mean “publicly traded corporation” (a far-too common misunderstanding). Thus, we could have C Tax corporations, S Tax LLCs, K Tax LLCs, for example. We'd know tax status and state-entity status quite simply and we'd separate the concepts.
We discussed this issue on Saturday at the 2019 AALS Section on Agency, Partnership, LLCs & Unincorporated Associations Program on LLCs. As I taught my first Business Organizations class of the semester, I talked about this and it occurred to me that maybe the better way to think about this is to simply acknowledge that there are no federal entities.
State law is the origin of all entity types (barring, perhaps, a few minor exceptions), and references to "C Corps" and "S Corps" are not really on target. I concede that the IRS does so, which is a challenge, but it's really unnecessary under today's tax code. That is, with check-the-box options, most entity types can choose whatever tax treatment they wish. An LLC can choose to be taxed under subchapter S, for example, though it has to meet certain requirements (e.g., can only have one class of "stock"), but the LLC can file Form 2553 an make an S election.
As such, as I have argued before, I think we should work to keep entity type and tax treatment separate. Thus, for example, we can have an S-taxed LLC (an LLC that made the S election) and a K-taxed LLC (an LLC that made a K election for pass-through taxation). The tax treatment does not "convert" the LLC to a corporation -- or S corp. It simply provides for certain tax treatment. I really think we'd see some doctrinal improvements if we could get more people to use language that makes clear tax treatment and entity type are separate issues, at least in today's word.
Entities are creatures of state law. How the federal or state government tax such entities does not change that reality. It's time we start using more precise language to make that clear.
Is Fair Trade Really Fair?
Fairtrade is about better prices, decent working conditions, local sustainability, and fair terms of trade for farmers and workers in the developing world. By requiring companies to pay sustainable prices (which must never fall lower than the market price), Fairtrade addresses the injustices of conventional trade, which traditionally discriminates against the poorest, weakest producers. It enables them to improve their position and have more control over their lives..
In 2016, farmers received 158 million euros in Fairtrade premiums.
This sounds great in theory, but according to a cacao farmer I spent time with in Panama, fair trade is not fair to the farmers. He and others in his indigenous tribe earn so little from the cacao exported to Switzerland for fine Swiss chocolate that he must resort to giving tours of his plantation in order to maintain the village school and pay for medical expenses for his tribe. His farm earns only 85 cents per half kilo of cacao (or 12 pods). This .85 cents is only for the exceptional cacao. Sometimes they earn even less. The Swiss tout the organic, non-GMO product and inspect the farms annually, which means that the farmers cannot use any fertilizers to combat the fungus that kills 85% of the crop every year. This also means that the farmers do everything by hand, including cutting, fermenting, roasting, and shelling the beans. The farmer/tour guide explained that they treat the cacao plants like a woman-- they love, cherish, and protect them every day. They use the same harvesting process that they have used for over 1,000 years.
Just like coffee farmers I met in Guatemala, the cacao farmer I met in Panama calls "fair trade" a marketing scheme for the Americans and Europeans. I assume the farmers I met represent the view of some portion of the 1.65 million farmers involved in the Fairtrade program. For more on the Fair Trade debate, see here.
I will have more on this and other sustainability issues next week. I'll be at UN Forum on Business and Human Rights with 2500 companies, NGOs, academics, and state representative in Geneva. In the meantime, if you're buying someone Fairtrade chocolate for the holidays, do it for the taste because you're not really doing much to help the farmer.
I was going to move on to other topics after two recent posts about Nike's Kaepernick Ad, but I decided I had a little more to say on the topic. My prior posts, Nike's Kaepernick Ad Is the Most Business Judgmenty Thing Ever and Delegation of Board Authority: Nike's Kaepernick Ad Remains the Most Business Judgmenty Thing Ever explain my view that Nike's decision to run a controversial ad is the essence of the exercise of business judgment. Some people seem to believe that by merely making a controversial decision, the board should subject to review and required to justify its actions. I don't agree. I need more.
The plaintiffs have pleaded no facts to undermine the presumption that the outside directors of the board . . . failed to fully inform itself in deciding how best to proceed . . . . Instead, the complaint essentially states that the plaintiffs would have run things differently. The business judgment rule, however, is not rebutted by Monday morning quarterbacking. In the absence of well pleaded allegations of director interest or self-dealing, failure to inform themselves, or lack of good faith, the business decisions of the board are not subject to challenge because in hindsight other choices might have been made instead.
In re Affliated Computer Servs., Inc. Shareholders Litig., No. CIV.A. 2821-VCL, 2009 WL 296078, at *10 (Del. Ch. Feb. 6, 2009) (unreported).
Things are judgmenty. People are judgmental. At least, that’s my story, and I’m sticking to it. Plus, if I have learned anything in my 47 years, it’s that, in American English, if people say something enough, it becomes a word. That and the #OxfordComma is essential.
Should Corporate Lawyers and Business Law Professors Be Talking About DAOs?
Did I lose you with the title to this post? Do you have no idea what a DAO is? In its simplest terms, a DAO is a decentralized autonomous organization, whose decisions are made electronically by a written computer code or through the vote of its members. In theory, it eliminates the need for traditional documentation and people for governance. This post won't explain any more about DAOs or the infamous hack of the Slock.it DAO in 2016. I chose this provocative title to inspire you to read an article entitled Legal Education in the Blockchain Revolution.
The authors Mark Fenwick, Wulf A. Kaal, and Erik P. M. Vermeulen discuss how technological innovations, including artificial intelligence and blockchain will change how we teach and practice law related to real property, IP, privacy, contracts, and employment law. If you're a practicing lawyer, you have a duty of competence. You need to know what you don't know so that you avoid advising on areas outside of your level of expertise. It may be exciting to advise a company on tax, IP, securities law or other legal issues related to cryptocurrency or blockchain, but you could subject yourself to discipline for doing so without the requisite background. If you teach law, you will have students clamoring for information on innovative technology and how the law applies. Cornell University now offers 28 courses on blockchain, and a professor at NYU's Stern School of Business has 235 people in his class. Other schools are scrambling to find professors qualified to teach on the subject.
The legal profession is one of the most disrupted sectors of the consulting industry today. The rise of Legal Tech, artificial intelligence, big data, machine learning, and, most importantly, blockchain technology is changing the practice of law. The sharing economy and platform companies challenge many of the traditional assumptions, doctrines, and concepts of law and governance, requiring litigators, judges, and regulators to adapt. Lawyers need to be equipped with the necessary skillsets to operate effectively in the new world of disruptive innovation in law. A more creative and innovative approach to educating lawyers for the 21st century is needed.
Many corporate statutes expressly provide that directors in discharging their duties may rely in good faith upon information, opinions, reports, or statements from officers, board committees, employees, or other experts (such as accountants or lawyers). Such statutes often come into play when directors have been charged with breaching their procedural duty of care by making an inadequately informed decision, but they can be applicable in other contexts as well. In effect, the statutes provide a defense to directors charged with breach of fiduciary duty when their allegedly uninformed or wrongful decisions were based on credible information provided by others with appropriate expertise. Professor Douglas Moll will examine these “reliance on experts” statutes and explore a number of questions associated with them.
Private fraud actions brought under Section 10(b) of the Securities Exchange Act require courts to make a variety of determinations regarding market functioning and the economic effects of the alleged misconduct. Over the years, courts have developed a variety of doctrines to guide how these inquiries are to be conducted. For example, courts look to a series of specific, pre-defined factors to determine whether a market is “efficient” and thus responsive to new information. Courts also rely on a variety of doctrines to determine whether and for how long publicly-available information has exerted an influence on security prices. Courts’ judgments on these matters dictate whether cases will proceed to summary judgment and trial, whether classes will be certified and the scope of such classes, and the damages that investors are entitled to collect. Professor Ann M. Lipton will discuss how these doctrines operate in such an artificial manner that they no longer shed light on the underlying factual inquiry, namely, the actual effect of the alleged fraud on investors.
Professor Joan Heminway will focus on salient components of professional responsibility operative in delivering advisory legal services to social enterprises. Social enterprises—businesses that exist to generate financial and social or environmental benefits—have received significant positive public attention in recent years. However, social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Professor Heminway will discuss how these legal uncertainties have the capacity to generate transaction costs around entity formation and management decision making and the pertinent professional responsibilities implicated in an attorney’s representation of such social enterprises.
Although many people equate blockchain with bitcoin, cryptocurrency, and smart contracts, Professor Marcia Narine Weldon will discuss how the technology also has the potential to transform the way companies look at governance and enterprise risk management. Companies and stock exchanges are using blockchain for shareholder communications, managing supply chains, internal audit, and cybersecurity. Professor Weldon will focus on eliminating barriers to transparency in the human rights arena. Professor Weldon’s discussion will provide an overview of blockchain technology and how state and nonstate actors use the technology outside of the realm of cryptocurrency.
Professor Benjamin Edwards will discuss how states can implement changes in state corporate law with an eye toward putting in place provisions and measures to make it easier for policymakers to retrospectively review changes to state law to discern whether legislation accomplished its stated goals. State legislatures often enact and amend their business corporation laws without considering how to review and evaluate their effectiveness and impact. This inattention means that state legislatures quickly lose sight of whether the changes actually generate the benefits desired at the time off passage. It also means that state legislatures may not observe stock price reactions or other market reactions to legislation. Our federal system allows states to serve as the laboratories of democracy. The controversy over fee-shifting bylaws and corporate charter provisions offers an opportunity for state legislatures to intelligently design changes in corporate law to achieve multiple state and regulatory objectives. Professor Edwards will discuss how well-crafted legislation would: (i) allow states to compete effectively in the market for corporate charters; and (ii) generate useful information for evaluating whether particular bylaws or charter provisions enhance shareholder wealth.
When Delaware law allowed parties to eliminate the duty of loyalty for LLCs, more than a few people were appalled. Concerns about eliminating the duty of loyalty are not surprising given traditional business law fiduciary duty doctrine. However, as business agreements evolved, and became more sophisticated, freedom of contract has become more common, and attractive. How to reconcile this tradition with the emerging trend? Professor Joshua Fershée will discuss why we need to bring a partnership principle to LLCs to help. In partnerships, the default rule is that changes to the partnership agreement or acts outside the ordinary course of business require a unanimous vote. See UPA § 18(h) & RUPA § 401(j). As such, the duty of loyalty should have the same requirement, and perhaps that even the rule should be mandatory, not just default. The duty of loyalty norm is sufficiently ingrained that more active notice (and more explicit consent) is necessary, and eliminating the duty of loyalty is sufficiently unique that it warrants unique treatment if it is to be eliminated.
Professor Stefan Padfield will discuss a book written by UCLA Law Professor Adam Winkler, “We the Corporations: How American Businesses Won Their Civil Rights.” The highly-praised book “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’ – the centuries-long struggle for equal rights for corporations.” However, the book is not without its controversial assertions, particularly when it comes to its characterizations of some of the key components of corporate personhood and corporate personality theory. This discussion will unpack some of these assertions, hopefully ensuring that advocates who rely on the book will be informed as to alternative approaches to key issues.
Two weeks ago, I blogged about why lawyers, law professors, and judges should care about blockchain. I'll be speaking about blockchain, corporate governance, and enterprise risk management on September 14th at our second annual BLPB symposium at UT. To prepare, I'm reading as many articles as I can on blockchain, but it can be a bit mind numbing with all of the complexity. After hearing Carla Reyes speak at SEALS, I knew I had to read hers, if only because of the title If Rockefeller Were A Coder.
I recommend this article in general, but especially for those who teach business organizations and want to find a way to enliven your entity selection discussions. The abstract is below.
The Ethereum Decentralized Autonomous Organization (“The DAO”), a decentralized, smart contract-based, investment fund with assets of $168 million, spectacularly crashed when one of its members exploited a flaw in the computer code and stole $55 million. In the wake of the exploit, many argued that participants in the DAO could be jointly and severally liable for the loss as partners in a general partnership. Others claimed that the DAO evidenced an entirely new form of business entity, one that current laws do not contemplate. Ultimately, the technologists cleaned up the exploit via technological means, and without engaging in any further legal analysis, many simply concluded that the DAO, other decentralized autonomous organizations, and the Ethereum protocol itself signify opportunities to do away with legal business organizational forms as they presently exist. In this Article, I argue that precisely the opposite is true. Instead of creating a new type of corporate entity through computer code, The DAO and other smart contract-based organizations may resurrect a very old, frequently forgotten, business entity—the business trust, which Rockefeller first used to solve the technology-business organization law divide of his time.
This Article offers the first analysis of blockchain-based business ventures under business organization law at three separate levels of the technology: protocols, smart contracts and decentralized autonomous organizations. The Article first reveals the practical and theoretical deficits of using partnership as the only default entity option for blockchain-based business ventures. The Article then demonstrates that incorporation and LLC formation will also pose both practical and doctrinal difficulties for some such businesses. When faced with a similar conundrum in the nineteenth century, Rockefeller turned to the common law business trust as a substitute business entity. This Article argues that if Rockefeller were a coder building a blockchain-based business, he would again turn to the business trust as an additional choice of entity. The Article concludes by considering, in light of Rockefeller’s history, whether the law should anticipate any challenges with the rise of blockchain-based business trusts.
Senator Elizabeth Warren last week released her Accountable Capitalism Act. My co-blogger Haskell Murray wrote about that here, as have a number of others, including Professor Bainbridge, who has written at least seven posts on his blog. Countless others have weighed in, as well.
There are fans of the idea, others who are agnostic, and still other who thinks it’s a terrible idea. I am not taking a position on any of that, because I am too busy working through all the flaws with regard to entity law itself to even think about the overall Act.
(iii) in a taxable year, according to in- formation provided by the entity to the Internal Revenue Service, has more than $1,000,000,000 in gross receipts.
Okay, so it does list LLCs, correctly, but it does not list partnerships. This would seem to exclude Master Limited Partnerships (MLPs). The Alerian MLP Indexlist about 40 MLPs with at least a $1 billion market cap. It also leaves our publicly traded partnerships(PTPs). So, that’s a miss, to say the least.
(6) UNITED STATES CORPORATION.—The term “United States corporation’’ means a large entity with respect to which the Office has granted a charter under section 3.
The bill also creates an “Office of United States Corporations,” in Section 3, even though the definitions section clear says a “large entity” includes more than just corporations.
So, again, the definition does not include MLPs (or any other partnership forms, or coops for that matter) as large entities. I am not at all clear why the Act would refer to and define “Large Entities,” then go back to using “corporations.” Odd.
An entity to which paragraph (1) applies and that fails to obtain a charter from the Office as required under that paragraph shall not be treated as a corporation, body corporate, body politic, joint-stock company, or limited liability company, as applicable, for the purposes of Federal law during the period beginning on the date on which the entity is required to obtain a charter under that paragraph and ending on the date on which the entity obtains the charter.
Here, the section chooses not to use the large entity definition or the corporation definition and instead repeats the entity list from the definitions section. As a side note, does this section mean that, for “purposes of Federal law,” any statutory “large entity” without a charter is a general partnership or sole proprietorship? I would hope not for the LLC, which isn’t a corporation, anyway.
(1) RULE OF CONSTRUCTION REGARDING GENERAL CORPORATE LAW.—Nothing in this section may be construed to affect any provision of law that is applicable to a corporation, body corporate, body politic, joint stock company, or limited liability company, as applicable, that is not a United States corporation.
Again, I will note that “general corporate law” should not apply to anything but corporations, anyway. LLCs, in particular.
The Act further contemplates a standard of conduct for directors and officers. LLCs do not have to have either, at least not in the way corporations do, nor do MLPs/PTPs, which admittedly do not appear covered, anyway. The Act also contemplates shareholders and shareholder suits, which are not a thing for LLCs/MLPs/PTPs because they don’t have shareholders.
This is not an exhaustive list, but I think it’s a pretty good start. I will concede that some of my critiques could be argued another way. Obviously, I'd disagree, but maybe some of this is not as egregious as I see it. Still, there are flaws, and if this thing is going to move beyond even the release, I sure hope they take the time to get the entity issues figured out. I’d be happy to help.
The following comes to us from Sergio Alberto Gramitto Ricci, Visiting Assistant Professor of Law and Assistant Director, Clarke Program on Corporations & Society, Cornell Law School. I had the pleasure of listening to Sergio discuss this project at our recent SEALS discussion group on Masterpiece Cakeshop, and I found particularly interesting his conclusion that "Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans." The concept of robo-directors is also fascinating, and adds another layer to my ongoing dystopian (utopian?) novel plot wherein corporations are allowed to run for seats in Congress directly (as opposed to what some would argue is the current system wherein we get: "The Senator from [X], sponsored by Big Pharma Corp."). You can download the full draft via SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232816.
In an era where legal persons hold wealth and power comparable to those of nation states, shedding light on the nature of the corporate form and on the rights of business corporations is crucial for defining the relations between the latter and humans. Recent decisions of the U.S. Supreme Court, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Burwell v. Hobby Lobby Stores, Inc., have called for a closer investigation of the role that corporate separateness plays in the business corporation formula. Moreover, legal personhood is a sophisticated legal technology, which employment can revolutionize the strategies to protect cultural heritage or natural features and can address emerging phenomena, including artificial intelligence and learning machines. This paper adopts archeology of corporate law to analyze three intertwining legal and organizational technologies based on legal personhood. Archeology of corporate law excavates ancient laws and language in order to solve salient issues in contemporary and future corporate debates. First, this paper sheds light on the origins and nature of legal personhood and on the rights of business corporations by analyzing laws and language that the Romans adopted when they invented the corporation. For example, excavating roman law shows how Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans. In sum, the Romans drew a line between the legal capacities of their corporations and the rights and liberties that persons possessed by virtue of being human. Second, this paper discusses the separation of ownership and control. It explains how the separation of ownership and control, together with legal personhood, constitutes the essential formula of the business corporation model. Last, this paper explores artificial intelligence in boardrooms to assist, integrate or replace human directors drawing a parallelism between robo-directors and Roman slaves appointed to run joint-enterprises. Barring the statutory restrictions that require for board directors to be natural persons and overcoming the moral concerns related to appointing robo-directors, the remaining issue that AI in boardrooms raises is that of accountability.
On Saturday evening, I returned from the 2018 Southeastern Association of Law Schools (SEALS) annual conference (program here). My week-long tour of duty as a conference registrant spanned three different areas of engagement: (1) volunteerism in the portion of the conference dedicated to helping prepare prospective law faculty for the law school appointments process; (2) attendance at programs of interest on substantive law, law schools, and law teaching; and (3) participation (through presentation and commentary) in business law discussion groups. Although I was exhausted by the time I left (especially because I also attended portions of two meetings of the SEALS Board of Trustees), I also was rewarded by each of the three types of involvement in the conference.
The prospective law teachers component of the conference offers the opportunity for a select group of future teacher-scholars to present a sample job talk, receive comments on their draft CVs, and engage in mock interviews. This year, I participated as a mentor in all three components. Some folks needed more support with pieces of the process than others, as you might imagine. But all were amply qualified and deserving of appointments. Several sent me nice "thank you" messages. I hope that we will stay in touch.
I was able to attend a few sessions (or parts of sessions) of various kinds that did not focus on business law directly. Some featured my UT Law colleagues; others represented areas of interest wholly outside or only indirectly related to business law. For example, I attended an international panel on "Fake News" in a Digital Era, a discussion session on Strategies for Bar Preparation and Success, a New Scholars Workshop panel focusing on works-in-process relating to regulatory questions in various areas of law, a program entitled Workshop on Teaching to Engage, and a healthcare and bioethics discussion session. All had something relevant to offer to my scholarship, teaching, or service. As a result of the teaching session, I plan to move one day of office hours a week to our law school commons c=area, so that students can just drop in individually or in groups. I will try to remember to report out on that experiment.
The 2019 conference is scheduled to start at the end of July (July 29-August 4) in Boca Raton, Florida. Look for news on it here, or sign up for the SEALS blog, through which SEALS makes major announcements of interest to subscribing faculty. If you would like to organize a business law program for next year's conference, please feel free to contact me for advice. I helped originate the SEALS Business Law Workshop years ago and can provide assistance with the proposal submission process.
At SEALS Saturday, 8/11? Stop by 9-11 AM for: "Discussion Group: The Role of Corporate Personhood in Masterpiece Cakeshop"
The Southeastern Association of Law Schools (SEALS) Annual Meeting is upon us. If you are free from 9-11 AM this coming Saturday, Aug. 11, please stop by our discussion group on The Role of Corporate Personhood in Masterpiece Cakeshop. Don't worry about the fact that SCOTUS ignored the personhood issue -- we'll have plenty to talk about.
In the United States Supreme Court case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the issue presented is: “Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.” A group of corporate law professors has filed an amicus brief in support of the CCRC. One of the arguments in that brief is: “Because Of The Separate Legal Personality Of Corporations And Shareholders, The Constitutional Interests Of Shareholders Should Not Be Projected Onto The Corporation.” This discussion group features a dialogue on the pros and cons of this argument, together with related analysis and observations.
Professor Eric Chaffee, University of Toledo College of Law; Professor Sergio Gramitto, Cornell Law School; Professor Joan Heminway, The University of Tennessee College of Law; Professor Arnold Loewy, Texas Tech University School of Law; Professor Brett McDonnell, University of Minnesota Law School; Professor George Mocsary, Southern Illinois University School of Law; Professor James Nelson, University of Houston Law Center; Professor Thomas Rutledge, Stoll, Kennon & Ogden; Professor Ciara Torres-Spelliscy, Stetson University College of Law.
Music star/clothing designer Kanye West stirred up controversy on Wednesday when he began tweeting about his support of Donald Trump, calling him his “brother,” discussing their shared “dragon energy,” and showing off his MAGA hat, autographed by President Trump himself. The President thanked West for the support, and some level of outrage ensued among liberal pundits and many in the black community about West’s actions. A number of marketing experts opined that West’s vocal support had the potential to adversely affect sales of his Yeezy line of clothing and sneakers, which had already suffered a decline of late, even though earlier releases of his product sold out in minutes online. In the past, Yeezy sneakers’ assoication with Adidas helped that company double its stock price.
As fans threatened to get rid of their Yeezy gear, news outlets wondered if West had killed his brand. But a funny thing happened. GQ Magazine reported today that Yeezy sales are actually up and West has even more Twitter followers than ever. The article described the backlash and boycott threats that other sneaker companies faced after their executives supported President Trump. Even Kim Kardashian, West’s wife and marketing, urged him to cease his public support.
Yeezy shoppers tend to be millennial with a lot of disposable income. A recent study indicated that 60% of millennials buy on the basis of their beliefs. The West/Trump saga provides an example to challenge some of those statistics. As I have written in the past, people often claim that ethical consumerism drives them (not that supporting Trump is unethical), but in practice, most consumers actually purchase what they want. Perhaps West’s consumer base is just more transparent. Will other CEOs follow West’s example and voice their support of President Trump? It’s doubtful, especially if they run public companies, but I will be watching.
Within the next few weeks, the Supreme Court will decide a trio of cases about class action waivers, which I wrote about here. The Court will decide whether these waivers in mandatory arbitration agreements violate the National Labor Relations Act (which also applies in the nonunion context) or are permissible under the Federal Arbitration Act.
I wonder if the Supreme Court clerks helping to draft the Court's opinion(s) are reading today's report by the Economic Policy Institute about the growing use of mandatory arbitration. The author of the report reviewed survey responses from 627 private sector employers with 50 employees or more. The report explained that over fifty-six percent of private sector, nonunion employees or sixty million Americans must go to arbitration to address their workplace rights. Sixty-five percent of employers with more than one thousand employees use arbitration provisions. One-third of employers that require mandatory arbitration include the kind of class action waivers that the Court is looking at now. Significantly, women, low-wage workers, and African-Americans are more likely to work for employers that require arbitration. Businesses in Texas, North Carolina, and California (a pro-worker state) are especially fond of the provisions. In most of the highly populated states, over forty percent of the employers have mandatory arbitration policies.
The number of claims being filed in employment arbitration has increased in recent years. In an earlier study, Colvin and Gough (2015) found an average of 940 mandatory employment arbitration cases per year being filed between 2003 and 2013 with the American Arbitration Association (AAA), the nation’s largest employment arbitration service provider. By 2016, the annual number of employment arbitration case filings with the AAA had increased to 2,879 (Estlund 2018). Other research indicates that about 50 percent of mandatory employment arbitration cases are administered by the AAA (Stone and Colvin 2015). This means that there are still only about 5,758 mandatory employment arbitration cases filed per year nationally. Given the finding that 60.1 million American workers are now subject to these procedures, this means that only 1 in 10,400 employees subject to these procedures actually files a claim under them each year. Professor Cynthia Estlund of New York University Law School has compared these claim filing rates to employment case filing rates in the federal and state courts. She estimates that if employees covered by mandatory arbitration were filing claims at the same rate as in court, there would be between 206,000 and 468,000 claims filed annually, i.e., 35 to 80 times the rate we currently observe (Estlund 2018). These findings indicate that employers adopting mandatory employment arbitration have been successful in coming up with a mechanism that effectively reduces their chance of being subject to any liability for employment law violations to very low levels.
This data makes the Court's upcoming ruling even more critical for American workers- many of whom remain unaware that they are even subject to these provisions.
Within the past 24 hours, I've seen at least three news article that led me to reflect on my past blog posts. Rather than write a full post on each article, I've decided to note some observations.
I've been skeptical in the past about whether boycotts work. Perhaps times are changing. This week, Parkland shooting survivor David Hogg tweeted that advertisers on Laura Ingraham's cable show should pull out after she tweeted, "David Hogg Rejected By Four Colleges To Which He Applied and whines about it. (Dinged by UCLA with a 4.1 GPA...totally predictable given acceptance rates.) https://www.dailywire.com/news/28770/gun-rights-provocateur-david-hogg-rejected-four-joseph-curl …" On March 28th, the 17-year old activist responded with "Soooo @IngrahamAngle what are your biggest advertisers ... Asking for a friend. #BoycottIngramAdverts." He then provided a list of her top twelve sponsors.
The companies that have pulled their advertising include Nutrish, Office Depot, Jenny Craig, Hulu, TripAdvisor, Expedia, Wayfair, Stitch Fix, Nestlé, Johnson & Johnson, Jos A Bank, Miracle Ear, Liberty Mutual and Principal. But will they ever return to the show after the attention moves to something else? Will the sponsors face a "buycott," where Ingraham's fans boycott the boycotters or increase their support of the advertisers that Hogg specifically named but have chosen to stay with Ingraham? Time will tell.
Last year, I posted about various CEOs choosing to distance themselves from President Trump by resigning from advisory councils because they disagreed with his actions or positions on everything from immigration to his reaction to the events in Charlottesville. Today, the New York Times reported that some of the same CEOs that bemoaned Trump's election and/or publicly condemned him have now had a change of heart. Apparently, they have more common ground than they thought on areas of tax reform, infrastructure, and looser regulation. I look forward to seeing whether any of these companies or CEOs refrain from criticizing him in the future or, more tellingly, whether they choose to use PAC money or personal funds to support his re-election.
H & M has lots of problems from underperforming designs (billions in unsold clothes) to continued fallout from its "coolest monkey in the jungle" hoodie. As you may recall, in January, a number of consumers, public figures, and other called for a boycott of the company after a young black boy advertised a green hoodie with the word "monkey." H & M even had to close its store in South Africa. The fast fashion company has now turned to one of its in-house lawyers to lead a 4-person team to focus on diversity and inclusiveness. The lawyer will report directly to the CEO in Stockholm. Notably, the board is all white. Should the board diversify as well? It's hard to say. While I support diversity in the executive ranks and the boardroom, there is no evidence that the monkey hoodie led to the 62% drop in operating profit in Q1. Instead, experts note that consumers just didn't like the selections, even at steep discounts. Further, the average H & M customer probably has no idea about this new diversity initiative and even if the customer knew, it'sdoubtful that would change buying habits. Even so, I applaud H & M for taking concrete steps. The company already produces a compelling Sustainability Report. I look forward to seeing if the company can return to profitabiity while keeping its commitment to diversity.
Friend and colleague Jena Martin has posted her new paper, Easing "the Burden of the Brutalized": Applying Bystander Intervention Training to Corporate Conduct. And when I say new, I mean new. It went on SSRN within the last hour.
Prof. Martin is an expert in business and human rights, and her new paper offers a new framework for corporations that are seeking to reduce or eliminate human rights violations. Her paper is designed to help corporation beyond due diligence and reporting to allow them to "engage with either the oppressor or the oppressed in a way that directly minimizes human rights abuses." It is a timely piece with some interesting and innovative suggestions. I look forward to seeing where the final version ends up.
The last few years have borne witness to a shift regarding how to address issues of oppression and social injustice. Across many different advocacy points - from police brutality to sexual violence - there seems to be a consensus that simply engaging the oppressor or the victim is not enough to affect real social change. The consensus itself is not new: it has been at the heart of many social justice movements over the years. However, what is new is the explicit evocation of the bystander within this framework. Too often, in conversations on conflicts generally (and negative human rights impact specifically), bystanders have been relegated to the sidelines, with no defined, specific role to play and no discussion within the larger narrative. Now, however, -- through the use of bystander intervention training -- these actors are taking on a more prominent role.
In previous articles, I have stated that the rhetoric and posture that transnational corporations (TNCs) maintain vis-à-vis human rights impacts is that of a bystander. Frequently, when human rights abuses occur, TNCs find themselves in the position of having to acknowledge their presence in the area of the underlying conflict, while profusely maintaining that none of their actions caused the harm against the community. Building off this prior work, this article seeks to answer the following question: are there lessons that can be learned from bystander intervention training in other contexts, that can be used for the benefits of TNCs within the field of business and human rights? I conclude that what is lacking in the current discourse on corporate policies regarding addressing negative human rights impacts is an articulation regarding when, and under what circumstances, it is appropriate for corporations to intervene in negative human rights disputes. This goes beyond the current proposals for human rights due diligence frameworks in that, rather than merely undergoing an assessment and then reporting this information out (as is required by most current legal frameworks that address business and human rights reporting) this would help corporations – informed by a bystander intervention framework – to engage with either the oppressor or the oppressed in a way that directly minimizes human rights abuses.
I live in South Florida and have friends who live in Parkland, Florida, the site of the most recent school shooting. Like many, I've found solace and inspiration in the young survivors and their families who have taken to the streets and visited Washington, D.C. to demand action to prevent the next tragedy. Who knows whether they will succeed where others have failed. I certainly hope so.
I'm more surprised though, with the reactions of major companies such as WalMart, Dicks, REI, United Airlines, Hertz, Symantec and others that have cut ties with the National Rifle Association or have changed their sales practices. Skeptics have observed that corporations take "controversial" stances only when it's cheap or easy and that this stance against the NRA isn't even that controversial. But, it certainly hasn't been "cheap" for Delta Airlines. Notwithstanding the fact that the airline employs 33,000 people in the state, Georgia has passed a bill to eliminate a proposed $50 million tax break because Delta announced plans to end its discount for NRA members.
The gun control issue is the latest in a string of public policy debates that have divided corporations over the past year. CEOs have taken positions on the travel ban, Charlottesville, the NFL protests, the Paris Climate Accord, transgender bathroom laws, and immigration. Some of these positions are more closely tied to their core business than others, and some have been driven by social media activism.
Cautious companies have guidance and momentum on their side when deciding whether to weigh in on social issues. According to the Conscious Capitalism credo, “.. business is good because it creates value, it is ethical because it is based on voluntary exchange, it is noble because it can elevate our existence and it is heroic because it lifts people out of poverty and creates prosperity. Free enterprise capitalism is the most powerful system for social cooperation and human progress ever conceived. It is one of the most compelling ideas we humans have ever had. But we can aspire to even more.” This movement focuses on a higher purpose than generating profits; a stakeholder orientation; leaders that cultivate a culture of care and consciousness; and a conscious culture that permeates the people, purpose, and process.
Companies must ask themselves: What role do we play in the community? How are we managing our impact on the environment? Are we working to create a diverse workforce? Are we adapting to technological change? Are we providing the retraining and opportunities that our employees and our business will need to adjust to an increasingly automated world? Are we using behavioral finance and other tools to prepare workers for retirement, so that they invest in a way that will help them achieve their goals?
What does this mean for the future? Is corporate social responsibility more of a business imperative than ever? Boards are now entering proxy season. Will shareholders demand more? Will state and federal governments use their power, as Georgia has, to send a message to the C-Suite? Will consumers engage in boycotts or buycotts? (See here, here, here, here) for my views on boycotts). I look forward to seeing how whether the corporations sustain this conscious capitalism over the long term even when it is no longer "cheap" and "easy."
I love the Kardashians. I don't watch the reality show, but I do keep up with them because I use them in hypotheticals in class and in exams for entity selection questions. The students roll their eyes, but invariably most of them admit to knowing everything about them. When the students can relate to the topic, it makes my job easier. That's why I used the SNAP IPO last year as our case study on basic securities law. Every year I pick a "hot" offering to go through some of the key principles and documents, and Snap was the logical choice because the vast majority of the students love(d) the Snapchat app. The company explained as its first risk factor "... the majority of our users are 18-34 years old. This demographic may be less brand loyal and more likely to follow trends than other demographics. These factors may lead users to switch to another product, which would negatively affect our user retention, growth, and engagement." I used myself as an example to explain that risk factor in class. I have over 100 apps on my smartphone, and I have a son in the target demographic, but I never open Snapchat unless my six-year-old goddaughter sends me something. I just don't get the appeal even though millions of celebrities and even mainline companies use it for marketing. My students were aghast when I told them that I wouldn't invest in any stock that depended on the vagaries of their ever-changing taste.
Enter Kylie Kardashian. She's the youngest Kardashian (20 years old), is worth at least $50 million, runs a cosmetics empire on track to earn a billion dollars, has 95 million followers on Instagram, and has 24 million followers on Twitter.
After she offhandedly tweeted that she doesn't really open Snapchat anymore yesterday, Snap lost $1.3 billion (6%) in value. This plunge added to an already bad week for Snap after Citi issued a sell rating and the company confirmed to 1.2 million change.org petition signers that its new redesign was here to stay. But it was Kylie's tweet that caused the real damage. Perhaps one of Kylie's lawyers or business managers alerted her to the fallout because she later tweeted out, "still love you tho snap... my first love." Kylie probably forgot how much power she really has. When she released a video about her pregnancy and childbirth, 24 million people watched in less than 24 hours because she had refused to allow any of her followers to see pictures of her belly. She knows marketing.
Meanwhile, after seeing Kylie's first tweet, cosmetics competitor Maybelline went on Twitter to ask its users if it should stay on Snapchat, noting that its Snapchat views had dropped dramatically. The company later deleted the tweet, but users had already voted 81% to 19% to leave on the Twitter poll.
Snap appears determined to stick to its unpopular redesign, and its CEO received a $637 million bonus last year after the IPO. Perhaps the CEO should use some of that money to pay for a new Kylie tweet. In 2016, when Kylie earned only $18 million, 20% of that haul came from social media endorsements. It looks like the President isn't the only one who can move markets with a tweet.
With Republicans controlling Congress, a Republican CEO as President, a “czar” appointed to oversee deregulation, and billionaires leading key Cabinet posts, corporate America had reason for optimism following President Trump’s unexpected election in 2016. However, the first year of the Trump Administration has not yielded the kinds of results that many business people had originally anticipated. This Essay will thus outline how general counsel, boards, compliance officers, and institutional investors should think about risk during this increasingly volatile administration.
Specifically, I will discuss key corporate governance, compliance, and social responsibility issues facing U.S. public companies, although some of the remarks will also apply to the smaller companies that serve as their vendors, suppliers, and customers. In Part I, I will discuss the importance of enterprise risk management and some of the prevailing standards that govern it. In Part II, I will focus on the changing role of counsel and compliance officers as risk managers and will discuss recent surveys on the key risk factors that companies face under any political administration, but particularly under President Trump. Part III will outline some of the substantive issues related to compliance, specifically the enforcement priorities of various regulatory agencies. Part IV will discuss an issue that may pose a dilemma for companies under Trump— environmental issues, and specifically shareholder proposals and climate change disclosures in light of the conflict between the current EPA’s position regarding climate change, the U.S. withdrawal from the Paris Climate Accord, and corporate commitments to sustainability. Part V will conclude by posing questions and proposing recommendations using the COSO ERM framework and adopting a stakeholder rather than a shareholder maximization perspective. I submit that companies that choose to pull back on CSR or sustainability programs in response to the President’s purported pro-business agenda will actually hurt both shareholders and stakeholders.
I suspect click-bait headline tactics don't work for business law topics, but I guess now we will see. This post is really just to announce that I have a new paper out in Transactions: The Tennessee Journal of Business Law related to our First Annual (I hope) Business Law Prof Blog Conference co-blogger Joan Heminway discussed here. The paper, The End of Responsible Growth and Governance?: The Risks Posed by Social Enterprise Enabling Statutes and the Demise of Director Primacy, is now available here.
Social benefit entities, such as benefit corporations and low-profit limited liability companies (or L3Cs) were designed to support and encourage socially responsible business. Unfortunately, instead of helping, the emergence of social enterprise enabling statutes and the demise of director primacy run the risk of derailing large-scale socially responsible business decisions. This could have the parallel impacts of limiting business leader creativity and risk taking. In addition to reducing socially responsible business activities, this could also serve to limit economic growth. Now that many states have alternative social enterprise entity structures, there is an increased risk that traditional entities will be viewed (by both courts and directors) as pure profit vehicles, eliminating directors’ ability to make choices with the public benefit in mind, even where the public benefit is also good for business (at least in the long term). Narrowing directors’ decision making in this way limits the options for innovation, building goodwill, and maintaining an engaged workforce, all to the detriment of employees, society, and, yes, shareholders.
The potential harm from social benefit entities and eroding director primacy is not inevitable, and the challenges are not insurmountable. This essay is designed to highlight and explain these risks with the hope that identifying and explaining the risks will help courts avoid them. This essay first discusses the role and purpose of limited liability entities and explains the foundational concept of director primacy and the risks associated with eroding that norm. Next, the essay describes the emergence of social benefit entities and describes how the mere existence of such entities can serve to further erode director primacy and limit business leader discretion, leading to lost social benefit and reduced profit making. Finally, the essay makes a recommendation about how courts can help avoid these harms.
Plaintiff alleges that Sinsky violated 15 U.S.C. § 1125(a)(1)(A) and engaged in unfair and deceptive trade practices, in violation of Maryland common law. ECF 1, ¶¶ 17-22, 23-26. At its core, plaintiff's contention is that “Sinsky is the resident agent and incorporator” of Farm Fresh Home (ECF 1, ¶¶ 12-13), and in that capacity she “filed” the articles of organization for Farm Fresh Home, creating a name for the “competing company” that is “intentionally confusing” because of its similarity to Farm Fresh Direct. ECF 1, ¶ 12.
*4 Farm Fresh Home is a limited liability company. As a threshold matter, I must determine whether Sinsky is subject to suit in light of Farm Fresh Home's status as a limited liability company.
That is not quite right. The complaint alleges that Sinsky, by helping to form the LLC, violated the Lanham Act and Maryland common law (the court repeats the complaint's "incorporator" language, but presumably this is meant to refer to the formation of the LLC). The question, at least initially, should not be whether Sinksy is subject to suit as a member of the LLC. The question, then, is whether there is a direct claim against Sinsky for creating the competing entity.
The question here is not whether plaintiff will ultimately prevail. Its allegations as to Sinsky border on thin. But, for purposes of the Motion, plaintiff adequately alleges sufficient facts and inferences that Sinsky participated in the creation of Farm Fresh Home for the purpose of using a confusingly similar name to compete with Farm Fresh Direct. See A Society Without a Name, 655 F.3d at 346. Therefore, plaintiff is not entitled to the protection of the corporate shield at this juncture.
Id. at *7 (emphasis added). No and no. First, LLCs do not have corporate shields. They have LLC or limited liability shields, but You Can’t Pierce the Corporate Veil of an LLC Because It Doesn't Have One! Second, there is no need to consider veil piercing at this point. The court has found sufficient claims as to Sinsky's participation to support direct liability. The inquiry should end there. And even if there were value in discussing both direct liability and veil piercing (there is not), the court's own citation to Allen v. Dackman should indicate that this section is not solely related to entity-derived liability.
I don't mean to be too hard on anyone here. This is not personal -- it simply about identifying and trying to correct errors related to entity status. I know that not all courts or practicing attorneys spend the amount of time I do with entities and their nuances. And this case involves a pro se party, which can make things even more challenging.
I just still maintain that this is something we can correct. Apparently, one blog post at a time.
I am putting together a panel or discussion group (depending on how many folks respond positively) for the SEALS conference for next summer, which is scheduled to be held August 5-11, 2018, at the Marriott Harbor Beach Resort & Spa in Fort Lauderdale, Florida (details here).
The United States Supreme Court is scheduled to hear arguments in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on Dec. 5, 2017 (SCOTUSblog summary here). The issue presented in that case is: “Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.” A group of corporate law professors have filed an amicus brief in support to the CCRC (available here). One of the two arguments in that brief is: “Because Of The Separate Legal Personality Of Corporations And Shareholders, The Constitutional Interests Of Shareholders Should Not Be Projected Onto The Corporation.” This [panel] [discussion group] features [paper presentations] [a dialogue] on the pros and cons of this argument, together with related analysis and observations. Please note that the Supreme Court will likely have issued its opinion in the case by the time of the panel/discussion.
Please email me at spadfie@uakron.edu if you would like to participate in this program, letting me know if you are interested in presenting a paper, participating in a discussion, or both. Also, let me know if you know of anyone else who may want to participate—or just pass this on to others. I must file the proposal soon in order to ensure its consideration (the “best practices” deadline for submissions has already passed).
Every year, the United Nations holds a symbolic but important vote on a resolution condemning the U.S. embargo against Cuba and every year the United States and Israel are the only two countries to vote against it. Last year, the United States abstained in accordance with the rapprochement that the Obama administration began in 2014. A few hours ago, the U.S. and Israel stood alone and voted once again against the UN resolution, while 192 other nations voted for it. Ambassador Haley explained that the vote demonstrated, “continued solidarity with the Cuban people and in the hope that they will one day be free to choose their own destiny.” Prior to the vote she announced to the General Assembly that "today, the crime is the Cuban government's continued repression of its people and failure to meet even the minimum requirements of a free and just society… The United States does not fear isolation in this chamber or anywhere else. Our principles are not up for a vote … We will stand for respect for human rights and fundamental freedoms that the member states of this body have pledged to protect, even if we have to stand alone." The United States is indeed isolated in its thinking. Furthermore, the vote and the embargo inflame tensions with allies in Latin America that the U.S. needs for the war on terror and drug smuggling.
I feel strongly about this issue having visited the island three times in the past two years to research business and human rights issues. I’ve sat on a panel with Cuban lawyers and judges in Havana to discuss the embargo. I’ve attended countless seminars and meetings with lawyers and businesses who want to trade with Cuba. At the American Bar Association International Law Section meeting last week there were at least 6 sessions on Cuba. The world wonders why the United States places so much attention on this tiny island nation.
[P]rior to lifting the embargo, the United States needs to examine its own record on human rights and how it treats other violators, otherwise it will have no credibility with the Cuban government. The U.S. Congress demands human rights reform in Cuba but has not been consistent in its own business dealings with other authoritarian or socialist regimes. For example, although the U.S. Department of State has criticized Cuba’s human rights record, China, another communist country with a poor human rights record, is the United States’ third largest trading partner. The United States lifted its trade embargo with Communist Vietnam twenty years ago and major U.S. companies now operate there today even though the U.S. government has leveled some of the same human rights criticism against Vietnam as it has against Cuba. The communist government of Laos did not fare much better than Cuba in human rights states department reports, but the U.S. government actively promotes potential investment opportunities there. This inconsistency in approach to human rights violators diminishes the U.S. government’s integrity in negotiating with Cuba. Tellingly, in its 2017 World Report, Human Rights Watch, a respected NGO, warned of the dangers of the Trump Administration from a human rights perspective. This hardly puts the U.S. in a strong bargaining position with Cuba when discussing the conditions on lifting the embargo.
The Trump Administration still has not released its official changes to the trade rules that it announced in June. In the meantime, although it’s hardly easy to do business in Cuba or with the Cuban government, U.S. businesses now remain in limbo until the implementing rules come into force. To be clear, I do not condone the human rights violations that the Cuban government commits against its people. In my upcoming article, I propose mechanisms to prevent foreign investors from perpetuating violations themselves. However, these same businesses that cannot do business with Cuba have no problem doing business with Russia, China, or other regimes with oppressive human rights records. Perhaps the Trump administration has not read State Department and NGO reports on those countries, but I have. Today, the hypocrisy was once again on full display for the world community to see.


text:
In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.
24,25, 26, 29, 30 Jan. 1940 . 9. Feb. 1940 .
Constitution - Bill passed by both Houses of Oireachtas - Validity - Repugnancy to Constitution - Detention without trial - Preventive justice - Right tohabeas corpus.
1. That s. 4 of the Bill, which provides, inter alia, that "whenever a Minister of State is of opinion that any particular person in engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section," does not confer upon the Minister power to administer justice, and is not repugnant to Art. 34 of the Constitution, which provides that justice shall be administered in public Courts.
2. That the detention of persons provided for in the Bill is not in the nature of punishment but of preventive justice, being a precautionary measure taken for the purpose of preserving the public peace and order and the security of the state, and did not contravene the provision of Art. 38 of the Constitution providing that no person be tried on any criminal charge save in due course of law.
R. (Zadig) v. Halliday ,  A. C. 260; and The King (O'Connell) v. The Military Governor of Hare Park Camp ,  2 I. R. 104, on appeal  I. R. 247, applied.
3. That the provisions of the Bill are not repugnant to the provisions of Art. 40, clause 3, of the Constitution by which the State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
4. That the Bill does not take away the right to habeas corpus.
5. That the provisions of s. 5 of the Bill, as to the interrogation and searching of persons, and of s. 7, authorising the making of regulations as to the place and mode of detention of persons arrested under the Bill, and other matters incidental thereto, and as to the punishment of persons so detained who contravene the regulations, were made necessary by reason of the provisions of s. 4, and that there is nothing in these sections to suggest that any regulation made thereunder would contravene any Article of the Constitution.
The Court accordingly advised the President that the said Bill was not repugnant to the Constitution or to any provision thereof.
Reference of a Bill, passed by both Houses of the Oireachtas, to the Supreme Court for a decision on the question as to whether the Bill or any specified provision thereof was repugnant to the Constitution.
"To the Hon. Timothy Sullivan, Chief Justice.
(1) Before Sullivan C.J., Maguire P., Murnaghan, Geoghegan andO'Byrne JJ.
Constitution, I, Douglas Hyde, President of Ireland, after consultation with the Council of State,. do hereby refer the annexed Bill: Offences Against the State (Amendment) Bill , 1940, to the Supreme Court for a decision on the question as to whether the said Bill is repugnant to the Constitution or to any provision thereof.
Given under my hand and seal this 8th day of January, 1940."
The terms of reference were signed by the President.
The Court, in accordance with Art. 26, clause 2, par. 1, of the Constitution, heard arguments on behalf of the Attorney-General and by counsel assigned by the Court.
civilians. [He referred to Sandes' Criminal Practice, Procedure and Evidence in Eire , 2nd edn., p. 32.] The Income Tax Act, 1918, s. 165, authorises the detention in certain cases of persons failing to pay income tax. Other examples are s. 58 of the Children's Act, 1908, and s. 17 of the School Attendance Act, 1926. The right to detain enemy subjects and prisoners of war was affirmed in R. v. Vine Street Police Station Superintendent, Ex parte Liebmann (1). Analogous to the powers contained in the present Bill are those contained in the Defence of the Realm (Consolidation) Regulations, 1914, made under the Defence of the Realm Consolidation Act, 1914, providing for the detention of naturalized British subjects of German birth, which were held to be valid in The King (Zadig) v. Halliday (2). It was there pointed out that such detention was in the nature of preventive, and not punitive, justice. "Preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done is no new thing in the laws of England": per Lord Atkinson, at p. 273. [He referred also to The King (O'Connell) v. Military Governor of Hare Park Camp (3); The State (Ryan) v. Lennon (4).
The cases cited on behalf of the Attorney-General on the question of presumption of constitutionality are all concerned with statutes. There is no presumption one way or another in the case of this Bill. The terms of reference, following Art. 26, clause 1, par. 1, are to consider whether"the Bill is repugnant to the Constitution or to any provision thereof." A provision may be repugnant to the whole spirit of the Constitution although it might be difficult to point to any Article to which it was plainly contrary It is, however, only necessary to satisfy the Court that there is some repugnancy in the Bill to the Constitution.
(1)  1 K. B. 268.
(3)  2 I. R. 104; on appeal,  I. R. 247.
(6) 11 Commonwealth L. R. 689.
(7) 28 Commonwealth L. R. 209.
The Constitution provides by Art. 38 that no person may be tried on a criminal charge save in accordance with law, this being expressed to mean trial by a Judge and jury except in the case of the exceptions set out expressly in that Article: Art. 38, clauses 2, 3, 4. The Constitution clearly does not contemplate a person being detained without trial on a criminal matter. This Bill is of the nature of a criminal jurisdiction. Art. 34 provides that justice shall be administered in public Courts. The protection of the personal and fundamental rights of individuals as between themselves and in relation to the State involves the idea of justice. It involves also that any person thought guilty of an infringement of the law should be charged and tried by the public Courts. These provisions would be a mockery if the Executive could refuse to charge and try such persons, and could arbitrarily imprison them instead.
With two exceptions, the examples of detention without trial given on behalf of the Attorney-General fall within the terms of Art. 40, clause 1, being persons such as lunatics, children, etc., who are being protected and cared for by the State (2).
(1) This Act is not numbered like other Acts. It is an amendment of the Constitution made in pursuance of Art. 51.
1. All citizens shall, as human persons, be held equal before the law.
This shall not be hold to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."
Constitution, which is a rigid Constitution, having an Oireachtas with limited powers of legislation, such an Act would not be valid, save in a time of war or armed rebellion, as provided by Art. 28, clause 3, par. 3.
The second example of detention without trial, not falling within Art. 40, clause 1, relates to the power of detention conferred by the Income Tax Act, 1918, but it may be doubted whether this power of detention is valid under our Constitution. In any event, the person liable to detention in that case has had an opportunity of being heard and of defending himself, by means of the provisions for appeal against assessment. Preventive justice is of the nature of justice, and Art. 34 provides that "justice shall be administered in public Courts established by law by Judges appointed in the manner provided by this Constitution." The maintenance of public peace is inherently a function of the Courts, exercised by means of its powers of taking sureties and directing persons to enter into recognizances to be of good behaviour. But in all such cases there must have been a judicial determination that a state of facts existed which justified the prisoner's imprisonment and punishment: The King (Boylan) v. Justices of Londonderry (1), per Palles C.B. at p. 380. The necessity of arriving at any judicial determination is removed by this Bill. Art. 40, clause 4, par. 1 provides that no person may be deprived of his liberty"save in accordance with law." The expression, "in accordance with law," means in accordance with law which is not repugnant to the Constitution. Can it be suggested that if this Bill be enacted, detention under it will be "in accordance with law?" [They referred to Story on the Constitution of the United States of America, Vol. II, 5th edn., ss. 1338, 1778-9, 1858, 1860-66, 1938, 1941, on the subjects of habeas corpus, trial by jury, and the meaning of the phrase, "due process of law"; and to Marbury v.Maddison (2).] Art. 38 provides for the trial of persons on a criminal charge. This Bill proposes to punish without trial for breach of regulations made under it, and s. 5 of the Bill creates four specific offences. It cannot be held that because the word "contravention" is used in place of"offence" that the provisions of Art. 38 can be nullified.
The remaining arguments of counsel are referred to in the course of the opinion of the Court.
(1)  2 I. R. 374.
In pursuance of the provisions of Art. 26 of the Constitution, the President of Ireland, on the 8th January, 1940, after consultation with the Council of State, referred to this Court a Bill, entitled "Offences Against the State (Amendment) Bill, 1940," for a decision on the question whether the said Bill is repugnant to the Constitution or to any provision thereof.
The said Article admittedly refers to a Bill such as this, which had been duly passed by both Houses of the Oireachtas. Under the Article it is provided that the Court, consisting of not less than five Judges, shall consider every question referred to it by the President and, having heard arguments by or on behalf of the Attorney-General and by counsel assigned by the Court, shall pronounce its decision in open Court as soon as may be, and in any case not later than sixty days after the date of reference.
The Article further provides that the decision of the majority of the Judges of this Court shall, for the purposes of this Article, be the decision of the Court (clause 2, par. 2).
It is further provided that, in every case in which this Court decides that any provision of a Bill, so referred to the Court, is repugnant to the Constitution or to any provision thereof, the President shall decline to sign such Bill, and that, in every other case, the President shall sign the Bill as soon as may be after the date on which the decision of this Court shall have been pronounced.
In accordance with the provisions of the Article the Court assigned counsel and, subsequently, the Court heard arguments by counsel on behalf of the Attorney-General and by counsel so assigned by the Court, and at the conclusion of the said arguments reserved its decision.
The decision now announced is the decision of the majority of the Judges and is, within the meaning of clause 2, par. 2 of the said Article, the decision of the Court.
The long title of the Bill, so referred to this Court is "An Act to repeal Part VI of the Offences against the State Act, 1939, and to make other provisions in relation to the detention of certain persons."
Sect. 2, which is contained in Part I of the Act, repeals Part VI of the Offences Against the State Act, 1939. The Part of the Act of 1939 so repealed is substantially to the same effect as Part II of the Bill now before this Court.
Part II of the Bill consists of seven sections.
by the said Part of the Act are necessary to secure the preservation of public peace and order, and that, if the Government makes and publishes a Proclamation declaring that the said Part of the Act shall cease to be in force, same shall forthwith cease to be in force. It further provides that it shall be lawful for Dail Eireann, at any time while the said Part of the Act is in force, to pass a resolution annulling such first-mentioned Proclamation and thereupon such Proclamation shall be annulled and the said Part of the Act shall cease to be in force, but without prejudice to the validity of anything done after the making of the Proclamation and before the passing of the resolution.
"4—(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section.
(2) Any member of the Garda Siochana may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section.
(3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens.
(4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act.
(5) Every warrant issued by a Minister of State under this section shall be in the form set out in the Schedule to this Act or in a form to the like effect."
Garda Siochana in the exercise of the said powers, or who refuses to give to a member of the Garda Siochana his correct name and address, shall be guilty of a contravention of the regulations to be made under this Part of the Act and shall be dealt with accordingly.
Sect. 6 provides that a Minister of State may, by writing under his hand, order the release of any person who is being detained and such person shall forthwith be released.
(e) prescribing or providing for any other matter or thing incidental or ancillary to the efficient detention of persons detained under this Part of this Act.
"Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it, such regulation shall be annulled accordingly, but without prejudice to the validity of any thing previously done under such regulation."
Sect. 8 provides for the setting-up of a Commission to which any person detained under this Part of the Act may apply in writing to consider the continuation of his detention, and requires the Minister for Justice to furnish to the Commission such relevant information and documents, in the possession or procurement of the Government or of any Minister of State, as shall be called for by the Commission, and further provides that, if the Commission reports that no reasonable grounds exist for the continued detention of such person, he shall, with all convenient speed, be released.
Sect. 9 provides that the Government shall, once at least in every six months, furnish to each House of the Oireachtas certain particulars therein specified with reference to persons detained.
Counsel, so assigned by the Court, contended that the Bill was repugnant to the Constitution and, in particular, they relied upon the Preamble and on Article 34, clause 1, and Articles 38 and 40.
We propose to deal specifically with the aforesaid Articles, but in arriving at our conclusion we have had regard not only to those Articles but also to all such other Articles as seemed to us material to the question which we have to determine.
Before dealing, however, with the said Articles, we desire to point out that several Acts authorising the detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment of the Constitution which we are now considering. The existence and effect of these Acts must have been within the knowledge of the framers of the Constitution and, nevertheless, there is no express prohibition in the Constitution against such legislation. This is a matter to which we are bound to attach considerable weight in view of the fact that many Articles of the Constitution prohibit the Oireachtas, in plain and unambiguous language, from passing certain laws therein specified.
Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.
"Seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations."
order is maintained in that State. There is nothing in this clause of the Preamble which could be invoked to necessitate the sacrifice of the common good in the interests of the freedom of the individual.
Article 34 deals with the establishment of Courts and the administration of justice therein, and the particular Clause on which reliance was placed, is Clause 1, which provides that justice shall be administered in public Courts established by law by Judges appointed in the manner provided by the Constitution. In order to rely upon this Article it would be necessary to establish that the Minister, in exercising the powers conferred upon him by the Bill, is administering justice within the meaning of the Article. This proposition seems to us to be wholly unsustainable.
Article 38 deals with the trial of offences and provides, in clause 1, that no person shall be tried on any criminal charge save in due course of law. The remaining clauses of the Article prescribe the methods in which criminal charges may be tried and specify various Courts for this purpose. The argument necessarily proceeds upon the basis that the Minister, in performing his functions under the Bill, is engaged in the trial of a criminal charge and that the detention contemplated by the Bill is punishment in respect of a criminal offence.
In the opinion of this Court neither s. 4 nor s. 5 of the Bill creates or purports to create a criminal offence. The only essential preliminary to the exercise by a Minister of the powers contained in s. 4 is that he should have formed opinions on the matters specifically mentioned in the section. The validity of such opinions is not a matter that could be questioned in any Court. Having formed such opinions, the Minister is entitled to make an order for detention; but this Court is of opinion that the detention is not in the nature of punishment, but is a precautionary measure taken for the purpose of preserving the public peace and order and the security of the State. This distinction has been recognised in several cases.
provisions of two kinds—for prevention and for punishment. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State."
"One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. It is to this that regulation 14B is directed. The measure is not punitive but precautionary. It was strongly urged that no such restraint should be imposed except as the result of a judicial inquiry, and, indeed, counsel for the appellant went so far as to contend that no regulation could be made forbidding access to the seashore by suspected persons. It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a Court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person may be disposed to help the enemy. The duty of deciding this question is by the order thrown upon the Secretary of State, and an advisory Committee, presided over by a Judge of the High Court, is provided to bring before him any grounds for thinking that the order may properly be revoked or varied."
"Preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done, is no new thing in the laws of England."
"One of the most effective ways of preventing a man from communicating with the enemy or doing things such as are mentioned in s. 1, sub-s. 1 (a) and (c), of the statute is to imprison or intern him. In that as in almost every case where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person. That is inevitable. But the suffering is, under this statute, inflicted for something much more important than his liberty or convenience, namely, for securing the public safety and defence of the realm."
acted upon and applied in this country in the case of The King (O'Connell) v. Military Governor of Hare Park Camp (1).In that case the applicant was detained in custody under an order of an Executive Minister made under s. 4 of the Public Safety (Powers of Arrest and Detention) Temporary Act, 1924, which authorised such Minister to make such an order where he was of opinion that the public safety would be endangered by such person being set at liberty. It was contended that the section was repugnant to the Constitution of the Irish Free State, which, in our opinion, was, in this respect, substantially to the same effect as the Constitution of Ireland. That contention was rejected and an application for habeas corpus was refused.
Article 40 deals with personal rights. Clause 3 thereof provides that the State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen, and to protect from unjust attack and, in case of injustice done, to vindicate, the life, person, good name, and property rights of every citizen.
It is alleged that the provisions of the Bill are repugnant to the guarantee contained in this clause. It seems to us impossible to accede to this argument. The guarantee in the clause is not in respect of any particular citizen, or class of citizens, but extends to all the citizens of the State, and the duty of determining the extent to which the rights of any particular citizen, or class of citizens, can properly be harmonised with the rights of the citizens as a whole seems to us to be a matter which is peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of this function, would, in our opinion, be a usurpation of its authority.
The People, by the Constitution, have provided for the setting-up of three great Departments of State—the Oireachtas, the Executive, and the Judiciary—and it is essential for the harmonious working of the machinery of State that each Department should confine itself to its own constitutional functions. If the Oireachtas enacts a law within the scope of its legal and constitutional powers, it is for the Courts to construe and apply such law. Any criticism by the Courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a Court, within the scope of its authority, was not in accordance with law.
(1)  2 I. R. 104; on appeal,  I. R. 247.
Clause 4 of the said Article provides that no citizen shall be deprived of his liberty save in accordance with law, and makes provision for the release of any person who is being detained otherwise than in accordance with law.
The phrase "in accordance with law" is used in several Articles of the Constitution, and we are of opinion that it means in accordance with the law as it exists at the time when the particular Article is invoked and sought to be applied. In this Article, it means the law as it exists at the time when the legality of the-detention arises for determination. A person in custody is detained in accordance with law if he is detained in accordance with the provisions of a statute duly passed by the Oireachtas; subject always to the qualification that such provisions are not repugnant to the Constitution or to any provision thereof.
Accordingly, in our opinion, this Article cannot be relied upon for the purpose of establishing the proposition that the Bill is repugnant to the Constitution—such repugnancy must be established by reference to some other provision of the Constitution.
It was contended that the effect of the Bill is to take away the right to habeas corpus. There is no foundation for this contention. Notwithstanding the provisions of the Bill, a person who is detained is entitled under Article 40, clause 4, par. 2, to have the legality of his detention enquired into and to obtain an order for his release, unless the Court or Judge, enquiring into the matter, is satisfied that all the provisions of the Bill have been complied with and that the detention is legal.
No doubt the Bill, when enacted, will have the effect of altering the law and, to that extent, will justify a detention which might otherwise be unlawful. This, however, cannot rightly be described as taking away the right to habeas corpus.
and, should he do so, it seems to us that the regulations would, to that extent, be ultra vires and invalid.
It was contended before us that the Bill is unnecessary and oppressive. This is not a matter for our consideration and we express no opinion upon it. The only question before us is whether it is within the power of the Oireachtas, consistently with the Constitution, to enact such legislation. In the opinion of this Court it is, and we shall advise the President accordingly.
Solicitor for the Attorney-General: The Chief State Solicitor.
Solicitors instructing counsel assigned by the Court:James O'Connor & Co.

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