But in the industrialized world, once-through processes and massive amounts of waste are enabled by distant owners who have a systematic blindness to the consequences being inflicted on people and the environment in the name of efficiency. The technology at the very heart of capitalism in industrial societies has, in its very DNA, this dangerous brokenness: the corporate form was created and has metastasized into its world-conquering form by breaking the link between actions and consequences. That is the whole purpose of limiting liability: to free certain people from the consequences of their actions when those actions turn out badly. This, as was intended, promotes risk-taking.
We labor today under a set of rules created for very different world, that of 15th and 16th century Europe, where the invention of the limited liability corporation was a force multiplier for the monarchs, who used crown corporations to further imperial ambitions. By creating incentives for adventurers – and protecting their fortunes from being erased by a stroke of bad luck or poor judgment – the corporate form caused a revolution in societies that is still playing out today, including in Oregon.
But just as the cancer cell is a particularly healthy, efficient cell whose success is at the expense of the host organism, the wild efficiency of the corporate form is going to be our undoing. Just as the cancer cell is blind and deaf to feedback signals from surrounding cells trying to tell the hyperactive cell to stop dividing and replicating, corporations are ignore any signal that would tend to impede the growth of the corporation. Coupled with distant ownership, what we are left with is like a collapsed ecosystem where the species diversity just tending towards zero for all but the so called ”weed species”– rats, the cockroaches, and the other omnivorous generalists.
Once, in a discussion of environmental concerns, a gentleman who had been to Sweden claimed that the Swedes had managed to deal with pollution in a particularly elegant way, without extensive bureaucracies or administrative overhead costs. According to this gentleman, the Swedish Clean Water Act amounted to one simple idea: factories had to draw their water downstream of their own discharge pipes.
True or not about Sweden’s, the story certainly contains an important truth, which is that self-regulation with honest, inescapable feedback is the best regulation. The converse is true as well, as America has proved repeatedly: without feedback, self-regulation is essentially no regulation at all. Unless there is feedback, it is very difficult to manage complexity except through over-sized bureaucratic measures.
To take just one example, consider confined animal feeding operations or CAFOs as they’re known. These are hellish Stygian wastelands of industrial agribusiness that dot the landscapes America, especially in the West, including Oregon. As presently “regulated,” CAFOs are a blight and a scourge that can only exist because those profiting from them stay as far away from them as possible. A system designed with feedback loops in mind would ensure that the owners of large numbers of livestock were not able to remove themselves while subjecting others to the consequences of gathering so many creatures in one tiny place.
Immunity for Officials is a Cancer in the Body Politic
The inchoate rage of the Black Lives Matter movement is due in very large part to this failed feedback loop, which reliably produces the spectacle of gross negligence and even intentional criminality by officials who cannot be made to account for their actions.
We know from exoneration after exoneration of innocent individuals that our fallible criminal justice system is found wanting day after day, in city after city and town after town all across America, with Oregon no exception. Unless prosecutors, judges, police, and investigators face the prospect of criminal liability for subverting and perverting the justice system, we will never restore faith in it.
True, it should not be easy to prosecute a public official in a fit of anger; however, it must also not be possible to pursue wrongful prosecutions and to obtain coerced plea-bargain convictions by carelessly or willfully using techniques and practices that are well-known to produce such miscarriages of justice. Those who would sit in judgment over others and insist on righteous conduct must be willing to be judged by that same system, not be immune from it.
For additional reforms in criminal justice, the reader can do no better than to read the introduction to a recent law review article Criminal Law 2.0 by Judge Alex Kozinski of the Ninth Circuit of the U. S. Court of Appeals.