Morning Ed: Money {2016.06.15.W}


Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

Related Post Roulette

118 Responses

  1. Avatar Christopher Carr says:

    Re: payday lenders:

    “But larger payday lenders have already concluded in recent days they will be able to withstand the regulatory onslaught…”

    I mean, of course they’ve concluded that.

    The most predictable response to any regulation – no matter what it is – is that smaller firms will collapse under the new cost-shifting, while larger firms will consolidate the market. The end result is an oligopoly, akin to what the beer industry was until recent deregulation and what the airline, pharmaceutical, and many other heavily-regulated industries are today. Certainly, in my experience, the larger pharmaceutical companies support almost any proposed regulations – no matter what they are – presumably because they know that they’ll be able to grab the assets fleeing the smaller companies that can’t afford to comply. So yes, of course the larger payday lenders have concluded that they’ll “withstand” the present regulatory “onslaught”.

    I think the payday loan industry is terrible and takes advantage of people in very tough places. The existence of payday lending is the kind of thing that makes socialism seem like a good idea, but every time we create such regulations we should ask ourselves if the end result of a world where we can choose between Bud, Coors, and Miller is really worth the more tangible goals of whatever regulations we’re trying to put in place.Report

    • Avatar Damon says:

      Not only do larger corps expect to survive, they often times actively assist in legislation being written knowing it will screw the smaller fry over more. That’s DEMOCRACY.Report

    • Avatar Kim says:

      Your ignorance astounds. The most predictable response to any regulation pushed by wall street is that wall street makes more money.

      Capitalism continues to innovate, and payday loans are old, old news.Report

    • Avatar DensityDuck says:

      “The end result is an oligopoly, akin to what the beer industry was until recent deregulation”

      actually most of those “not-Bud” beers you see on the shelf are owned by Anheuser-Busch. It’s not a craft-beer revolution, it’s just an exercise in branding.

      AB and Sam Adams are basically the only two national brewers operating in the USA.Report

      • Avatar Tod Kelly says:

        Where you live, maybe.Report

        • Avatar El Muneco says:

          He did say “national” brewers…

          Where I shop, there’s a 50-60 foot cold case for 6-packs and (a few) 12-packs plus another 10 feet for singles. All US major national brands combined get about 10 or so feet, and “disguised” national brands plus imports get another 10 or so(*). Take out 5-10 feet for hard cider, hard root beer, hard ginger ale, etc., and I’d say at minimum half the cold space is WA, OR, CA, AK, and HI brewers, and a few from the Mountain West.

          (*) Vast majority of Belgian beer they carry comes in single bottles. Biggest plurality of the import 6-packs are Mexican.Report

          • Avatar Mo says:

            Do you include Goose Island (AB Inbev) as a national brand? How about Bass, Boddingtons, Leffe or Hoegaarden (same)? Also, most of those Mexican Brands are either owned by AB Inbev or Heineken.Report

            • Avatar El Muneco says:

              Just from memory, Bass and Hoegaarden are with Sam Adams in the second rank, with Bud, Coors, and Miller in the first rank.

              A pretty decent first order approximation would be: left to right, in order of how many people in the US have heard of the brand. You could quibble with it – Sierra Nevada and Anchor probably have more name recognition than Boddington’s or Moretti around here, for example. But as a first cut it seems to scan.

              It’s a good point that a lot of import brands have been watered down (heh) through consolidation – I think the idea that just being from another country adds extra cachet has sailed to a great extent, though. Sad, in a way – I understand that Heineken and Guinness are excellent when not packaged and sent via cargo ship to foreign lands.Report

              • Avatar Christopher Carr says:

                Guinness-in-a-can is my go-to at home, actually.Report

              • Avatar El Muneco says:

                For what it’s worth, the store I’m talking about regularly stocks all three of: foie gras, caviar, and truffles – the existence of Whole Foods is the only thing that makes it seem relatively unpretentious by comparison.

                The beer and wine sections are consciously counter-programming against the Safeway across the street (which is where people go for staples and anything that isn’t overpriced).Report

              • Avatar Marchmaine says:

                foie gras, caviar, and truffles

                Or as I call it, Wednesday lunch.Report

              • Avatar El Muneco says:

                You Are Victoria Coren Mitchell And I Claim My Five Pounds.

                Although, on second thought, she would have added a joke about what hard liquor she drank along with lunch.Report

              • Avatar Marchmaine says:

                oh dear, then Ms. Mitchell and I must part ways… hard liquor with Foie Gras? Where are we, Russia?

                True story, I took a small group to the Inn at Little Washington to see what all the hullabaloo was about… before we even saw the menus they were shaving real (black) truffles over hot buttered pop-corn individually at our seats. Hulla meet baloo.Report

            • Avatar DensityDuck says:

              Mo: Yeah, that’s exactly it. It’s true that a lot of these fancy-looking brands started out independent, but AB Inbev has been quietly buying up any competition over the past decade.Report

      • Avatar Christopher Carr says:

        “It’s not a craft-beer revolution, it’s just an exercise in branding.”

        I would say it’s both, and that this is especially testament to the success of deregulation.Report

  2. Avatar j r says:

    The Gawker thing is so tough for me. I really hate Gawker. Their whole hot take-ey, snarkier than thou, react first think later may literally be ruining America (and I mean literally in the figurative sense that I mean it literally).

    I would love to see Gawker die a natural death as people simply lost interest in that sort of typing, but I don’t like seeing media outlets dying at the hands of government action.Report

    • Avatar Kazzy says:

      This. Even assuming Gawker was guilty (my layman’s sense is that they aren’t but let’s leave that aside), this should not be the penalty. For a host of reasons.Report

    • Avatar Doctor Jay says:

      I find it a bit odd that you would refer to a court judgement as “government action”. That phrase seems more associated with regulatory or legislative behavior. This isn’t some new law, either.

      They published a sex video without the consent of people pictured in it, and then defied a court takedown order. As far as I’m concerned, that does warrant the bankruptcy of the company.

      After all, this doesn’t stop Nick Denton from starting a new company.Report

      • Avatar Don Zeko says:

        But the court didn’t hand down a judgment of bankruptcy, nor was it legally empowered to do so. It gave a judgment for a specific amount if damages that don’t seem particularly reasonable to me.Report

      • Avatar Burt Likko says:

        Filing the lawsuit is a private action.

        Disposing of it is a governmental one.Report

    • I agree with Will that the problem isn’t that Gawker lost the suit — they completely deserved to. The problem is that the award was high by about two orders of magnitude. Can anyone explain why it was so outrageous? The only things I’ve seen are that the jurors already disliked Gawker (which points to really crappy jury selection) and that Gawker pissed them off further by acting arrogantly during the trial (which, if true, is also on Gawker.) I’ve seen no allegations, even crazy ones, that the government worked to destroy Gawker.Report

  3. Avatar Oscar Gordon says:

    I’ve never been to a barber that didn’t take cards. But then, given my hairstyle, it’s been a long time since I needed the services of a barber.Report

  4. At least Peter Thiel fully illustrates exactly how uncommitted to liberty many “libertarians” actually are. He wants power for the powerful, everybody else be damned. Gawker’s refusal to kiss his ring is enough to earn his enmity. He can rot.Report

    • Avatar Oscar Gordon says:

      I’m not sure how what Thiel did demonstrates a lack of commitment to liberty? Had he demanded the Justice department open an investigation, or had he pushed for anti-gawker legislation, I’d see your point. But he didn’t, and libertarians have long held that the courts are the proper venue for seeking satisfaction.Report

      • Avatar Brandon Berg says:

        My best guess is that leftists like to tell themselves that libertarians don’t really care about liberty so that they can feel better about how little they themselves care about it.Report

        • Avatar greginak says:

          Of course there are many libertarians and liberals and etc out in the world and sometimes some of them are terrible communicators for their beliefs leading to distorted views among others about what some (insert label here) believe.

          Or liberals care about liberty also, they just have different views/ways of balancing things then libertarians some of whom see themselves as the only people to understand the concept.Report

        • I’ve never doubted that libertarians believe in liberty measured by dollar of net worth.Report

      • Avatar Brit says:

        Ken White of popehat has an article out (can find it through popehat) about how this idea that use of the courts isnt liberty reducing is wrong. having a legal system set up which allows suing for speech is using the coercive power of the state (which enforces the penalty) just as directly regulating is.

        Now, some infringements of liberty are justified, but thats a different argument.Report

        • Avatar Oscar Gordon says:

          I’m the last person to think that our courts are bulwarks of liberty, but that is besides the point. Libertarians in general would rather that satisfaction be found via the courts. How far that is taken really depends on the flavor of libertarian you talk to.

          I don’t have a huge issue with what Thiel did, because he had enough of a case to pursue. I am more troubled by the size of the Gawker award (which I don’t think Thiel had any influence over), or a case like what was attempted against Mother Jones.Report

      • Avatar j r says:

        I used to wonder about those on the left who display more personal animosity for libertarians than they do for conservatives, then I remembered how the uncanny valley works.Report

    • Avatar Kolohe says:

      I’m old enough to remember when liberals wanted to make sure saying anything about Hillary Clinton within 30 days of a primary election would be illegal.Report

    • Avatar Jaybird says:

      Oooh! Oooh! Now reach conclusions about what the Orlando nightclub shooter fully illustrates about Muslims!Report

    • Avatar DensityDuck says:

      1) huge corporation outs a private citizen because they know it will get clicks and sell ads

      2) private citizen has enough money to actually do something about it

      3) people come to the defense of the huge corporation, saying that it’s a bad thing for private citizens to attack and damage huge corporations

      Given this description, would you say that the people in #3 are Republicans, Libertarians, or Democrats?Report

  5. Avatar Autolukos says:

    Thiel: How about some tort reform?Report

  6. Avatar Jaybird says:

    The Death Penalty for media organizations doesn’t exactly feel like the perfect analogy.

    All of the media people involved, for example, will very likely find themselves working similar jobs in similar fields writing about similar topics scrambling for similar advertising dollars.

    The article opens with a fairly dumb analogy… if we didn’t give the New York Times the death penalty for the Iraq War or CBS the death penalty for Rathergate, we shouldn’t give Gawker the death penalty for the Hulk Hogan sex tape.

    Instead, why not compare the money the website has to pay with life in prison? We’re not giving this person the death penalty, we’re merely imprisoning her for the next 120 years! And the fine can be the equivalent of days in jail? I guess? So 120 years is totally *NOT* the death penalty.

    And a fine is not the death penalty. Even a fine that the company cannot pay without selling parts of itself.

    So maybe it’s like a person who could avoid the death penalty if she could sell both kidneys, but she needs both kidneys? But both kidneys could get new jobs filtering blood?

    The death penalty is a horrid analogy for a business.

    Easier to avoid the analogy and just say “the corporation did a thing that was, technically, illegal. A court told the corporation to quit it. The corporation told the court to go screw itself. Someone sued the corporation in civil court about this thing. The court found in favor of the suer, and found in favor for a lot of money. The corporation had break up in order to pay the debt.”

    No death penalty.
    If we want to get into discussing the morality of what happened, we can discuss the morality of the thing that was technically illegal, the morality of telling courts to screw themselves, and whether civil suits have access to too much money when they start reaching judgments.

    One question that still seems up in the air for me is the whole “will there be a Gawker in 5 years?” thing. It’s not obvious to me that there won’t be. It seems as likely as not that we will still have a Gawker website and it will still be offering clickbait that you won’t believe.

    What it won’t be is in the hands of its current owner.

    Which makes the death penalty argument even dumber, if that’s the case.

    It then becomes something like “should ex-felons be allowed to own assault weapons?”Report

  7. Avatar Brandon Berg says:

    It’s never really been clear to me why punitive damages should be awarded in lawsuits against corporations. Unless the shareholders were personally responsible, it seems to me that it makes more sense for punitive damages to be paid by those personally responsible. Why punish shareholders and let the actual guilty party off the hook?

    Granted, only $25 million of the damages awarded in Hulk Hogan’s case were punitive, so it wouldn’t have made that much of a difference anyway.Report

    • Avatar Michael Cain says:

      “Corporations are people, my friend.”

      Unless the shareholders are personally speaking, why should a corporation have freedom of speech rights? Or religious rights? In all seriousness, if the corporation gets the benefits of personhood, it should have to suffer the consequences as well.Report

      • Avatar Brandon Berg says:

        Again, Citizens United had nothing to do with corporate personhood. Moreover, “corporate personhood” is a descriptive, not a prescriptive concept. That is, it refers collectively to a number of features of corporate law each justified independently on their own merits, not to a guiding principle used to justify those features of corporate law.

        For example, the law allow shareholders to own property jointly via a corporation, because that simplifies things. It allows people to sue corporations instead of suing the shareholders individually, because that simplifies things. “Corporate personhood” is just a term used to refer to the fact that in these specific ways, the law treats corporations like people. We didn’t start from the principle that corporations should always be treated like people and reason from there to allowing people to sue corporations rather than suing their shareholders individually. If we did, that would lead to all kinds of absurd conclusions, i.e. that it should be legal for corporations to get married (you can draw a very loose analogy between corporate mergers and marriage, but they’re really very different).

        All of which is to say, you can’t justify treating corporations like individuals in one way on the grounds that the law treats corporations like individuals in some other way (which isn’t really the case with Citizens United anyway).Report

        • The purpose of corporations is to give shareholders only benefits, not responsibilities.Report

          • Avatar Brandon Berg says:

            The quality of the counterarguments I’m getting is making me think I might actually be on to something.Report

            • Avatar Will Truman says:

              I think Schilling nails it. If you share in the profits I don’t know why you shouldn’t share in the liabilities, one of which is litigation.Report

              • Avatar Brandon Berg says:

                Note that I’m talking about punitive damages, not compensatory damages. As the name suggests, the purpose of punitive damages is not to compensate the victim of the tort (that’s what compensatory damages are for), but to punish and deter bad behavior. If it’s about punishment, why not punish the individuals who actually engaged in the bad behavior, rather than the shareholders, who may not even have known about it?

                That is, why should you be punished for the actions of an employee of a corporation whose stock you hold in your 401(k), rather than the employee?Report

              • Avatar Will Truman says:

                The shareholders invested in a company determined to have behaved poorly.Report

              • Avatar Brandon Berg says:

                But the company didn’t behave poorly. Specific employees did. The shareholders might not even have been aware of it. Almost certainly, most of the minor shareholders won’t have been. Some of the shareholders at the time of the verdict might not even have held the stock at the time the tort was committed.

                You’re going to have to walk me through this, because I don’t see how holding stock in a company whose employees did bad things translates to culpability for those things, or how punishing people for owning that stock constitutes a more effective deterrent to said bad behavior than punishing the people who actually committed it.

                Edit: By “specific employees,” I mean anyone who engaged in the misconduct deemed worthy of punishment. This might include rank-and-file employees, executives, or even individual shareholders who played an active part.Report

              • Avatar Will Truman says:

                For the company to be held liable, it should be demonstrated its leadership and/or culture played a role in the misconduct. if we accept the Hogan thing as misconduct, it wasn’t just the act of a particular journalist, or a particular editor. It was both, and more. The company hired them and created the environment in which the event that occurred. They may have had a lack of institutional control, or may have actually encouraged such behavior. I think these things apply to Gawker.

                A deterrence effect is that such liabilities make it more difficult for the company to attract future investors, and/or the the future endeavors of its chief (Denton, in this case). Nobody wants to be associated with an eight-figure punitive verdict.Report

              • Avatar Brandon Berg says:

                For the company to be held liable, it should be demonstrated its leadership and/or culture played a role in the misconduct.

                But then we’re still talking about employees—specifically the leadership—rather than the shareholders.

                I guess I can see a logistical argument in some cases—it’s just too hard to identify the specific individuals responsible—but that seems like a problem as well. I see punitive damages for corporations as problematic not just because they punish shareholders unfairly, but because they let the actual malfeasors off the hook too easily. If the corporation did something so bad that punitive damages are warranted, there should be specific individuals held responsible, if at all possible.Report

              • Avatar pillsy says:

                I really don’t get your objection at all.

                The shareholders’ “punishment” in this instance is simply that their shares are less valuable because the employees of their company made awful decisions. That’s… basically just part of being a shareholder, right?Report

              • Avatar Kolohe says:

                It seemed that some people on this sub-thread want to alter or abolish the concept of the limited liability corporation.

                So if you own shares in Disney, someone could go after you for all you got cause gators gonna gator.Report

              • Avatar Brandon Berg says:

                Not really, no. If employees of a corporation operate it in a way that makes it less profitable, thus resulting in lower share prices, shareholders lose money, but that’s a risk inherent in funding a corporation. There’s no system that looks anything remotely like capitalism where that’s not the case.

                Compensatory damages are a bit different, but conceptually similar. The actions of employees of the corporation harmed someone, and the victim has to be made whole. This is a real cost arising from the corporation’s operation, just one that is external and internalized by the court. This doesn’t necessarily even imply that anyone did anything wrong per se. As Francis points out, sometimes breach of contract is efficient. And sometimes accidents happen. Between that and the fact that individual employees often don’t have deep enough pockets to pay, it makes sense to have the corporation pay these.

                Punitive damages are completely different. They’re not an internal cost like, say, an employee accidentally damaging the firm’s own expensive equipment. And they’re not an external cost that’s been internalized. They’re an entirely artificial cost, imposed by the court as punishment for doing something bad, and as a deterrent to doing other bad things. But the shareholders didn’t do something bad—the employees did.

                Sure, we can pass laws that allow awarding punitive damages in lawsuits against corporations, and that becomes a risk of investing in a corporation. We can also pass a law that says that a corporation should pay a fine any time an employee sneezes, and that becomes a risk of investing in a corporation. But if we’re going to be imposing artificial costs on corporations, there should be a good reason for it, and it’s not clear to me that that’s the case here.

                It would make just as much sense to say that if voters elect politicians who make horrible decisions, the voters are punished by having the economy perform badly, and that therefore there’s no reason punitive damages shouldn’t be awarded in lawsuits against governments. But we don’t do that, and we shouldn’t.Report

              • Avatar Oscar Gordon says:

                I get Brandon’s point. Remember during the financial crisis, when the was all about, “Privatize profits, socialize costs/risks”, and how this was a bad thing? Same concept.

                The shareholders are already on the hook for the substantial compensatory damages, but the punitive ones, the ones that are supposed to deter bad behavior, will have a very limited effect if they are ‘socialized’ across the shareholder population, rather than ‘privatized’ against Nick Denton.Report

              • Avatar Stillwater says:

                I hear ya about that. If we’re talking strictly about punition here, then I think you and BB have a point. But I think – could be wrong – that the functional purpose of imposing punitive damages in cases like this isn’t to re-balance the scales of justice by punishing the perpetrators, but to act as a deterrent to expressions of similar corporate behaviors in the future. Which makes me wonder why the compensatory damages against Gawker aren’t viewed (by the courts, say) as sufficiently punitive (and therefore deterring (deterential?)) in their own right, and that an additional punitive damages judgment is superfluous?

                I’m taking a little different line on it here than BB, who’s wondering why punitive damages are born by the firm rather than the individuals who engaged in the incorrect behavior, in that I’m not sure I see where punitive damages even make any sense in this case. But to answer his more general point: I think don’t think punitive damages judgements against corporations are merely attempts to deter future actions of a specific wrong-doer, but to deter those actions from being expressed within broader corporate culture in the future.Report

              • Avatar Oscar Gordon says:

                That’s a fair question.Report

              • Avatar Tod Kelly says:

                Well, that puts you in a bit of a corner.

                I’ve written about this before, but when it comes to organizations committing gross and illegal corporate malfeasance, there are only three options:

                1. Let it continue in a Darwinian, third-wold fashion, with a “if you’re rich enough, you deserve to be able to do it” mindset.

                2. Have a system similar to the US, where companies that are caught in gross malfeasance are hit in the pocketbook as a deterrent against future malfeasance.

                3. Have a more European system, where if your company did what Gawker did you might be charged with a crime and go to jail.

                People here ted to hate out system for all the “we hate lawyers” reasons, but I think it’s actually a pretty damn good option compared to the alternatives.Report

              • Avatar Oscar Gordon says:

                I think @francis gets at it more, but I wonder why we only have those 3 options? Why can’t a punitive award target the persons responsible?

                The reason I ask is because there seems to be a profound disconnect between the person making the decision, and the ability of the person paying the price to make their pain felt upon the responsible party(s).Report

              • Avatar Jaybird says:

                Correct me if I’m wrong but both Denton and the guy who was editor had to pay out to Hogan as well, did they not?

                (Was that not part of the punitive part?)Report

              • Avatar Oscar Gordon says:

                I don’t honestly know. If that is the case, then I have no issue to discuss.Report

              • Avatar Jaybird says:

                Here’s from the google:

                A Florida jury has awarded Hulk Hogan just over $25 million in punitive damages in his sex tape lawsuit against Gawker Media. That’s $15 million from Gawker, $10 million from Gawker owner Nick Denton and $100,000 from former Gawker editor-inchief A.J. Daulerio.

                I don’t know if it’s accurate (but why wouldn’t it be?) and the owner is getting hit harder than the editor-in-chief… but not as hard as the site itself.Report

              • Avatar DensityDuck says:

                The breakout, as I understand it, is:

                From Gawker Inc.
                $60mil for emotional distress
                $55mil for economic damage
                $10mil for punitive damage

                From Nick Denton personally:
                $15mil for punitive damageReport

              • Avatar dragonfrog says:

                That is, why should you be punished for the actions of an employee of a corporation whose stock you hold in your 401(k), rather than the employee?

                Because if the employee can be the one punished, then everyone from the CEO down has the incentive to carefully structure the company around plausible deniability, so that the employee who takes the fall for the billion dollar mass wrongful death settlement is Alicia the intern.

                If the shareholders would be on the hook, then the “maximize shareholder value” imperative calls for avoiding the wrongful deaths in the first place.

                (Not that I necessarily agree that it’s the right thing to do, but I think that’s the answer to your question of “why”)Report

              • Avatar Stillwater says:


                I think what you wrote up there circles all the way back to Schilling’s point about the relationship between benefits and liabilities. BB is taking a very narrow view of what constitutes a corporation (it includes shareholders but doesn’t include (specific actions taken by) individuals employed by the firm). Because he accepts that view, he (BB) takes an overly narrow view of what constitutes punishment: that responsibility for the actions of employees doesn’t “pass thru” to shareholders, actions which take place, as it were, behind the corporate veil.

                So I don’t think he (BB) is right to suggest that shareholders can have it both ways: protections from liability on the front end without responsibilities for liabilities on the back end. (Which is pretty much the point Saul was getting at, I think.)Report

              • Avatar DensityDuck says:

                “If you share in the profits I don’t know why you shouldn’t share in the liabilities, one of which is litigation.”

                I’m not sure what this is supposed to mean when the whole point of a corporation is that it’s an entity legally distinct from the persons involved in it.Report

            • Don’t make a silly argument and expect me to spend time on brilliant comebacks.Report

        • Avatar Stillwater says:

          For example, the law allow shareholders to own property jointly via a corporation, because that simplifies things. It allows people to sue corporations instead of suing the shareholders individually, because that simplifies things.

          Yes, it has those benefits. But it also very intentionally protects shareholders from liability beyond their holdings in the firm, yes?Report

      • Avatar DensityDuck says:

        ” In all seriousness, if the corporation gets the benefits of personhood, it should have to suffer the consequences as well.”

        I am one hundred percent okay with punitive damages against corporations if it means you actually no-shit for-real accept that they can have constitutional rights as entities distinct and independent from shareholders, employees, owners, and management.Report

        • Avatar Kim says:

          I acknowledge that they can have const. rights, I just want to make sure we think about it before giving them all of them.

          (search and seizure is probably one we gotta give ’em, right?)Report

    • Avatar Saul Degraw says:

      Employees and Managers are agents of the corporation. If they are acting with intent (which is the only time punitives are rewarded) and the corporation encourages it or knows about it and does nothing to stop the intentionally malicious behavior during work time, the corporation is liable and subject to punitives.Report

    • Avatar Francis says:

      The purpose of punitive damages is both specific (as to the defendant alone) and general (as to the world at large) deterrence.

      The purpose of levying punitive damages against a corporation is (hypothetically) to punish shareholders for having done such a poor job of selecting their directors. Given the realities of corporate management, the real purpose of corporate punitive damages is to punish the officers and directors who would otherwise look at civil damages just as a part of doing business.

      Some breaches of contract are ‘efficient’. If I’ve contracted with you to deliver 1,000 widgets in August at $1.00 each and someone approaches me to buy them at $1.20, it’s efficient for me to breach the contract, pay you your contract damages, deliver the widgets to the new guy, and pocket the difference. So punitive damages for breach of contract are really rare.

      Civil torts get a lot more complicated. Is this line of cars exploding more often than the next one due to (a) a deliberate choice to keep costs down, (b) negligence, (c) a combination thereof? Who in the corporate chain of decision-making made what decisions, or failed to make a decision? Also, if the corporation is only paying compensatory damages, why would it change its behavior? Are people really indifferent to receiving harm + cash as compared to no harm, or are we just fooling ourselves? Can we even adequately price the harm associated with — for example — a coal mine collapse killing miners, or the failure of a slurry pond killing off miles of a recreational stream?Report

      • Avatar Brandon Berg says:

        Given the realities of corporate management, the real purpose of corporate punitive damages is to punish the officers and directors who would otherwise look at civil damages just as a part of doing business.

        This happens indirectly, though. The officers and directors may have stock or options, so they absorb some of the damages that way, and then they may get fired, but the vast majority of the punitive damages will be borne by people who have very little in the way of direct control over the operation of the company.

        If the officers and directors are responsible for the malfeasance, why not cut out the middleman? Why punish shareholders in the hopes that maybe they’ll pass it through to the officers and directors?

        Also, if the corporation is only paying compensatory damages, why would it change its behavior?

        Because the corporation doesn’t have behavior. Individuals do. And they won’t want to get sued again, anymore than shareholders do. But those individuals have more control over their own behavior than shareholders have.Report

        • Avatar Francis says:

          Corporations really are more than the sum of their parts. Any large enough group has emergent behavior that arises out of the interaction of the people within it.

          If corporations can’t be punished punitively, then we need to accept that corporations will find out that causing harm + paying damages is far cheaper than not causing harm in the first place. And there goes a big chunk of the environmental successes of the last 45 years.

          So if the CEO wants to keep his job, it’s not enough for him to say he didn’t know. He needs to be able to prove that he established and enforced a culture of compliance and the wrongful act was the result of misconduct of rogue employees directly disobeying company policy. That’s the way that the corporation avoids punitive damages and the CEO keeps his job. By contrast, if his testimony is that he didn’t know and he didn’t care, then collective punishment is appropriate. It was the investors’ job and the Board’s job to make sure he did care, and they abandoned their duties as well.Report

        • Because the corporation doesn’t have behavior. Individuals do.

          Which is precisely why corporate money should not be used to make political contributions: it’s not the corporation making the contributions, it’s individuals, using other people’s money.Report

    • Avatar Richard Hershberger says:

      It’s never really been clear to me why punitive damages should be awarded in lawsuits against corporations.

      For the same reason Admiral Byng was shot.Report

    • Avatar Brandon Berg says:

      Apparently this is already the way it works with government, which has immunity from punitive damages for the same reason: The cost of the damages would be borne by taxpayers, who have limited and indirect control over the operation of government. Presumably this applies even when the tortious action is known to and popular with voters. Why should it be different for corporations and shareholders?Report

  8. Avatar Jesse Ewiak says:

    File this under “I guess a lot of Americans are high SES liberals who look down on people” –

    “According to a new ABC/Washington Post poll, Donald Trump’s unfavorability rating is at 70%, with a favorability rating of 29%. That’s a net of -41%. He performs best among whites (39/59), but he’s underwater among blacks (4/94!), Hispanics (11/89!) and non-whites (12/88!). In comparison, Clinton is at 43/55, for a net of -12%. She’s down big among whites and men, but is above water with blacks, Hispanics, non-whites and women.

    According to a new CBS News poll, Americans disapprove of Trump’s response to the Orlando tragedy. 51% of Americans disapprove of his response, compared to only 25% that approve of it. In comparison, 44% of Americans approve of Obama’s response and 34% disapprove, whereas 36% approve of Clinton’s response and 34% disapprove. Trump has turned what is generally a freebie for Republicans and turned it into a negative for him.

    And support for an assault weapons ban stands at 57% now.”

    Even if you think the polls are massaging the numbers or there are “shy Trump” voters, it’s beginning to look like unless polling is the most wrong in history about everything since the Reader’s Digest poll that said FDR would lose in a landslide, some of the pro-Trump people are going to have a rough four years.

    But hey, Hillary Clinton is soooooooooo terrible at politics because she didn’t turn the wurlitzer on a guy who she basically agrees with on the end goal in a lot of issues, but differs on implementation.Report

    • Avatar j r says:

      But hey, Hillary Clinton is soooooooooo terrible at politics because she didn’t turn the wurlitzer on a guy who she basically agrees with on the end goal in a lot of issues…

      Why would Hillary play the jukebox at Bernie? Is there some song he really hates?Report

    • Avatar Morat20 says:

      I vaguely recall reading another poll that said, at the moment, something like 60% of women wouldn’t vote for Trump under any circumstance.Report

    • Avatar Joe Sal says:

      Yeah, Trump is doomed.Report

      • Avatar Stillwater says:

        Well, I gotta admit, it’s been a very surprising month or two. I was pretty doggone certain that he – being a genius at deal-making and a very successful businessman … – would realize that without institutional GOP support his general election campaign was dead before it even started. So I fully expected him – because I attributed to him the basic cognitive ability to understand the world he lives in… – to not only pivot to moderation in his rhetoric, but to reach out, in an attempt to embrace (in a Trump sorta way, anyway), important figures within the GOP as well as the mainstream establishment. But alas, no.

        If I didn’t know better (and I don’t!) I’d think he’s subconsciously, yet nevertheless very intentionally, trying to sabotage his own campaign.Report

        • Avatar Jesse Ewiak says:

          To quote Rick Wilson, Republican strategist, “He’s 70 years old. He’s a narcissistic sociopath. He’s not going to change. There is no better version of Donald Trump, no mindful, serious, presidential version, only the reality-TV, con-man, pro-wrestling dipshit Donald Trump.”

          • Avatar Stillwater says:


            Yeah, I always knew about THAT part of Trump. My surprise came when I realized that even tho he was SO CLOSE to holding the reins of power he was – IS! – functionally incapable of making even the slightest concession to reality to attain it.Report

            • Avatar Autolukos says:

              This is the least surprising thing about Trump’s campaign thus far to me. Why would anyone expect him to change?Report

              • Avatar Stillwater says:

                I guess I foolishly attributed to him a desire to win.Report

              • Avatar Will Truman says:

                Common mistake! I thought that there might be a pivot a long time back. He was doing what he was doing because it was working and all that. It was only late in the primaries when he clearly needed to make some changes he wasn’t making. Around then, it became hard to deny that he is actually incapable (or at least undesirous).Report

              • Avatar Stillwater says:

                Yeah. That’s why I’ve been asking you about the Establishment’s views re: his nomination the last few days. It’s become crystal clear to me that his behavior suggests not only that he’s a [add: dangerously] delusional narcissist, but that he doesn’t actually want to win the election.

                Seems to me those are legitimate grounds for mutiny!Report

              • Avatar Will Truman says:

                It’s technically not up to the establishment. I think next time it might be. But I think one of the reasons they’re still stuck in the headlights is that whether they want to take down the king or not, they really don’t want to shoot at the king and miss.

                A couple people have reported on Twitter that they’re getting polling calls asking what they would do if the GOP were to dump Trump. Not sure what to make of that.

                Ultimately, though, I think a party with the ability and resolve to dump Trump now would have had the ability and resolve to do a lot more to him before things got to this point.Report

              • Avatar Stillwater says:

                Here’s my sneaking suspicion: if the GOP, Establishment, Power Brokers, Media (whatever that nexus is called) were to exert an extreme amount of leverage on Trump and by extension his delegates (so the leverage exists at the institutional level, if you take my meaning), Trump would willingly use that as an excuse to bow out of the race.

                In other words, I don’t think he wants to win, and I’m getting the feeling that he doesn’t even really want to run. He just needs the right cicrumstances to quit. One that allows him to play the victim and claim he was right all along.

                {Edited to remove my own confusions when writing that comment…}Report

              • Avatar Morat20 says:

                Yeah, but letting him play the victim would screw the GOP pretty heavily. What did they win, really, by him leaving?

                If they let him screw the pooch and lose in 2016 (I’m pretty sure they’ve written this year off anyways), then they can come back in 2020 and use him as a boogeyman. “This is what happens when you nominate crazy”. I mean his loss has a use then.

                Taking the nomination from him, even if he wants it taken away, just gives out the message “If us party elites don’t approve, screw you voters”.Report

              • Avatar Stillwater says:

                Yeah, but letting him play the victim would screw the GOP pretty heavily. What did they win, really, by him leaving?

                Not in my thought experiment!

                Trump is confronted with a situation that PROVE’S his point and leaves ungracefully but face-savingly as an act of demonstrating that point. The GOP wins by reconstructing their party at the national level and not suffering any more damage five months of Trump as the Nominee would be sure to inflict.Report

              • Avatar Morat20 says:

                Not to mention it’s a collective action problem.

                And good god, the infighting. Who would they replace him with? Cruz was the last man standing, but if I understand it the GOP political class is built of two types of people: Those who loathe Cruz personally, and those who haven’t met him.

                But if they don’t pick him, he’s set to take the angry base (the ones who choice just got overruled) and run directly against the party, deepening the rift. If not in 2016, then 2020 — and you know he’ll be running around in this year and in 2018 spiking GOP wheels everywhere to increase his own visibility over this.

                Getting rid of Trump means basically exposing the massive rifts in the GOP — between internal factions (neocons, social conservatives, business types, etc) and between base and their leaders, and giving them all knives and a GREAT view of everyone else’s backs.

                It’d be like throwing chum into the water.

                Whomever won wouldn’t have much of a kingdom left, and certainly a really upset, rebellious peasantry.Report

              • Avatar Will Truman says:

                That is sort of what I’m getting at in the last paragraph. They were paralyzed during the primary by collective action issues with non-ideal options. They have no ideal options now, and collective action problems now. If they couldn’t do it before, I don’t expect them to be able to do it now.

                I still think dumping him, if possible and if you can find a candidate (any candidate), is the best of a lot of bad options. But it requires actions, and it’s hard to inspire people to action for the Least Disastrous Path, even if everybody agrees. (And right now, I think nobody knows with any certainty.)Report

              • Avatar Autolukos says:

                It’s not about whether he wants to win; it’s about whether he believes the people telling him he needs to change (he probably doesn’t; after all, didn’t he beat them in the primary?) or has the discipline to follow through on a change (no way in hell).

                I’ll give him this: there is no doubt in my mind that we’re seeing the authentic Trump.Report

              • Avatar Stillwater says:

                Revisiting this topic…

                I’ll give him this: there is no doubt in my mind that we’re seeing the authentic Trump.

                I agree with that. Personally, I thought in the primaries we were seeing the authentic Trump: simplistic jingoism masquerading as policy, reducing objectively held policy positions to the expression of psychological defects, pandering to a marginalized audience’s basest instincts for self-serving promotional purposes, etc etc.

                Here’s the problem: even if we viewed him as a con-man during the primary, he’s failed to deliver on the con subsequent to becoming the presumptive nominee. He’s acted, in every way imagineable, as a person incapable playing that con to its s end. IOW, even the explanation that Trump is a con-man is refudiated by his current self-destructive behavior, behavior entirely inconsistent with The Con since a con-man has to understand the world he acts and operates in even more than his mark.

                So the shocking revelation – confirmed (for me, anyway, since I had that suspicion already) by investigations into his business practices – is that he’s really nothing BUT a low level grifter who suffers from a host of pronounced personality disorders which … oh I dunno … gave him delusions of grandeur.

                I mean, it’s sorta paradoxical looking at it from where I sit: you have a megalomaniacal narcissistic dude SO CLOSE to holding the reins of supreme power, and something – some defect in him – trips him up. He’s neither making a conscious attempt to win, to follow thru on the con, and he’s not making a conscious attempt to quit, and bow out gracefully having achieved his goals (higher ratings for The Apprentice?).

                Or more simply, he appears to have no connection to reality whatsoever.Report

        • Avatar Aaron Warfield says:

          “If I didn’t know better (and I don’t!) I’d think he’s subconsciously, yet nevertheless very intentionally, trying to sabotage his own campaign.”

          Yeah, @stillwater pretty much this.Report

          • Avatar Stillwater says:

            Well, the alternative is even less flattering: that he’s so gripped by megalomaniacally narcisstic sociopathic delusions that he’s completely disconnected from reality. 🙂Report

        • Avatar Morat20 says:

          Trump does not seem to be the type of person that’s going to pretend to be anything else. Why should he? Even his negotiating style isn’t consensus building — it’s based on raw intimidation and table pounding.

          Delightfully, I did find out today that the Treasure for one of the Trump PACs was a guy convicted of a massive Ponzi scheme, one who the inspiration for one of the villains-of-the-week on Leverage.

          Which was quite a delightful little show, although when binge watching it the use of “We lie to the viewer to raise tension, then reveal the deception to show how the crew saw this coming” gets overdone — they’re not always that good about leaving little clues throughout that indicate it is going to plan. (Like in the pilot — part of the con was letting the mark know he was being conned. So they planted easily seen bugs with blinking lights, and used Nigeria as part of the “Get money from you” scam and even mused that the mark liked thinking he was smarter than everyone else.Report

        • Avatar DavidTC says:

          Well, I gotta admit, it’s been a very surprising month or two. I was pretty doggone certain that he – being a genius at deal-making and a very successful businessman … – would realize that without institutional GOP support his general election campaign was dead before it even started. So I fully expected him – because I attributed to him the basic cognitive ability to understand the world he lives in… – to not only pivot to moderation in his rhetoric, but to reach out, in an attempt to embrace (in a Trump sorta way, anyway), important figures within the GOP as well as the mainstream establishment.

          Trump is a conman. His entire life is setting up deals where all the benefits go to him, and other people put in money, and then the entire thing slowly falls apart but he walks away with all the money.

          That is, literally, all he has ever done. Oh, and he also owns some real estate that he managed to pick up for cheap and restrained himself from meddling in, so they return a steady income that he can live off of between his con deals.

          There is simply no functional way this works in politics. It cannot mesh with politics. I’m sure Trump thought he could walk in, make bunch of deals with everyone, and then slowly leave them on the side of the road as he…profited (Not sure exactly how he was planning on doing that.) but…look, I think a lot of Republican policies are stupid. And I think a lot of Republicans pols are, personally, sorta dumb.

          But pols at a national level can, at least, spot a conman. Especially one that parachuted in from the outside, insulting everyone and blathering nonsense, with no respect for the norms. Everything about him screams ‘Don’t trust this guy’. Maybe if he had magically become the Republican nominee without a primary, some people wouldn’t know this yet…but he didn’t, and they do.

          It’s almost sad, in a way, how little Trump simply…won’t work in politics. I mean, at all. His entire universe, how he thinks about the world, how he operates, cannot fit within politics. It’s like a turn-of-the-century carnival barker thrown into with a bunch of monks, or a clown going to live with surfer dudes, or a giraffe joining a wolf pack. He is *completely* out of place. No one, at all, is buying what he is selling.Report

          • Avatar Kim says:

            What you don’t understand is this is part of why Trump works.
            He says outlandish things, but nobody, including trump, actually knows what he’s gonna do when he’s in office.

            Until then, he’s infuriating to the types of people that the down-n-out folk love to piss off.Report

    • Avatar El Muneco says:

      I wonder how many of those who disapprove of Trump’s response are actually Trump supporters who didn’t feel his response was strong enough…Report

      • Avatar Jesse Ewiak says:

        Probably the same number as the amount of Hispanic voters who disapprove of him because he’s not being strong enough on illegals!Report

      • Avatar Will Truman says:

        Few. But I don’t think it’s about “too forcefully” or “not forcefully enough” as much as incoherence and egocentrism, which matters to people not supportive of Trump. On the other hand, the Orlando response numbers are among the least troubling to the campaign on display at the moment.Report

  9. Avatar Patty Pan says:

    Naked videos of Erin Andrews on the internet = $55 million award. A victory for privacy and women!

    Naked videos of Heather Cole on the internet = $140 million award. ZOMG FREEZE PEACH AT RISK!!!!

    Is the good award/bad award demarcation line for putting secretly taken naked videos on the internet at $100 million?

    Or is Ms Cole a defiled woman for consenting to have sex with that vulgarian Bollea? We do like to punish wimmen for fishing the wrong dudes.Report

    • Avatar Brandon Berg says:

      Was Heather Clem a plaintiff in the lawsuit? I think she was one of the defendants. Gawker was probably just showing their feminist bona fides and applying a blatant sexual double standard. Revenge porn is something men do to women, Hogan is a man, ergo this is A-okay.Report