Limited Liability Is Causing Unlimited Harm(project-syndicate.org)
project-syndicate.org
Limited Liability Is Causing Unlimited Harm
https://www.project-syndicate.org/commentary/limited-liability-corporate-shares-by-katharina-pistor-2020-02
132 comments
The concept is fine and makes sense, but it's been allowed to run amok and we're seeing blowback as a result. Insurance would probably be a transformational force, as business structures vulnerable to fraud wouldn't be insurable.
Another obvious problem has been allowing professionals to transform from partnership structures to corporate structures. I would argue that insulating attorneys, accountants, and investment bankers from risk hasn't been a net positive for society.
Another obvious problem has been allowing professionals to transform from partnership structures to corporate structures. I would argue that insulating attorneys, accountants, and investment bankers from risk hasn't been a net positive for society.
This depends on the state. In CA, professionals (operating a business under a licensure) automatically carry personal liability.
> [...] we'd probably see even more of a culture of haves vs have nots in the investment world.
There are no have nots in the investment world. The investment world, intuitively, is made up of have and have mores.
There are no have nots in the investment world. The investment world, intuitively, is made up of have and have mores.
The have-nots are people who buy a few shares in an index fund. That doesn't require significant time or thought, so you can do it even if all you can spare is €1k and very little time.
as someone with a tech job, I don't consider myself a "have-not" but I basically just buy index funds with whatever surplus income I have every few months. if my losses weren't limited to the cost basis of my shares, it would basically be too risky for me to invest at all. this would drastically change my retirement prospects.
In Italy, it used to be that you'd have to sink 10,000 euros, approximately, of capital into the equivalent of an LLC to create it.
Otherwise, you could create an unlimited liability type partnership or something similar.
Company formation was for the wealthy.
Otherwise, you could create an unlimited liability type partnership or something similar.
Company formation was for the wealthy.
Having, gaining, and increasing investment builds wealth. My largest point is projecting a binary grouping like "have" and "have nots", which is typically used to delineate the poor and the not-poor is disingenuous. The poor (have-nots) are not even in the arena. A majority of people in the world today do not have and will not have any investments of any kind ever; those are the have-nots.
A more honest statement would be that the wealthiest investors would gain more power over less wealthy investors; however, that is already the case, the wealthiest non-institutional investors are free to create their own hedge funds, an extraordinary overhead - but one some take on, to gain a leg up on the little (rich) guy.
A more honest statement would be that the wealthiest investors would gain more power over less wealthy investors; however, that is already the case, the wealthiest non-institutional investors are free to create their own hedge funds, an extraordinary overhead - but one some take on, to gain a leg up on the little (rich) guy.
Limited liability is not indemnity.
Indemnity means that one party has to cover the other party's losses--in other words, pretty much the exact opposite of limited liability for the covering party.
Limited liability means that a party is not responsible for their business' debts beyond their investment in the business. Frequently, this means that no one is responsible for the businesses' debts if it fails. See for example, most environmental cleanup litigation or asbestos litigation.
Indemnity means that one party has to cover the other party's losses--in other words, pretty much the exact opposite of limited liability for the covering party.
Limited liability means that a party is not responsible for their business' debts beyond their investment in the business. Frequently, this means that no one is responsible for the businesses' debts if it fails. See for example, most environmental cleanup litigation or asbestos litigation.
> [...] Frequently, this means that no one is responsible for the businesses' debts if it fails. See for example, most environmental cleanup litigation or asbestos litigation.
This is incorrect. A business that has legal personhood (i.e. a corporate entity) is still responsible for its own debts if it fails (i.e. it goes into bankruptcy and is fully liquidated). Just like any other person.
By way of analogy, imagine a (natural) person's parents pass away deep in debt, and this person is not party to the parents' debts. In this case, the person may lose any potential inheritance, but the creditors may not go after the person's own assets in order to satisfy the parents' debts. Any assets belonging to the parents' estates may be liquidated to satisfy any outstanding creditors unless and until all of the debt is recovered.
Businesses in receivership are treated in substantially similar ways. Therefore, _someone_ does indeed pay: the business itself.
> Limited liability is not indemnity. > > Indemnity means that one party has to cover the other party's losses--in other words, pretty much the exact opposite of limited liability for the covering party.
I never meant to argue that limited liability was identical to indemnity, but they are practically similar. Because a corporation is a legal person (again, merely meaning that it can enter into agreements, sue and be sued, and thus can acquire or dispose of property), limitation of liability is equivalent in effect to the corporation itself indemnifying any investors from having to cover any costs that are incident to the corporation's operations exceeding the investors' contributions.
Perhaps the law could be structured in such a way that investors would retain some of the firm's liability exceeding their investments. This might be set up as some sort of bond held in escrow that an investor must post before investing, or maybe would involve the law authorizing creditors to go after investors up to some percentage of that person's share in equity in the event of collapse (this would almost certainly lead to large numbers of personal bankruptcies). My whole point was originally that there are already legal tools - like indemnity and insurance - that would preserve the aspects of limited liability. However, these would not be distributed in an equitable way, instead being most available for the wealthiest investors and the largest corporations, and inaccessible to ordinary people or entrepreneurs.
In practice, we'd still have limited liability, but a more unequal one with higher lawyer fees.
This is incorrect. A business that has legal personhood (i.e. a corporate entity) is still responsible for its own debts if it fails (i.e. it goes into bankruptcy and is fully liquidated). Just like any other person.
By way of analogy, imagine a (natural) person's parents pass away deep in debt, and this person is not party to the parents' debts. In this case, the person may lose any potential inheritance, but the creditors may not go after the person's own assets in order to satisfy the parents' debts. Any assets belonging to the parents' estates may be liquidated to satisfy any outstanding creditors unless and until all of the debt is recovered.
Businesses in receivership are treated in substantially similar ways. Therefore, _someone_ does indeed pay: the business itself.
> Limited liability is not indemnity. > > Indemnity means that one party has to cover the other party's losses--in other words, pretty much the exact opposite of limited liability for the covering party.
I never meant to argue that limited liability was identical to indemnity, but they are practically similar. Because a corporation is a legal person (again, merely meaning that it can enter into agreements, sue and be sued, and thus can acquire or dispose of property), limitation of liability is equivalent in effect to the corporation itself indemnifying any investors from having to cover any costs that are incident to the corporation's operations exceeding the investors' contributions.
Perhaps the law could be structured in such a way that investors would retain some of the firm's liability exceeding their investments. This might be set up as some sort of bond held in escrow that an investor must post before investing, or maybe would involve the law authorizing creditors to go after investors up to some percentage of that person's share in equity in the event of collapse (this would almost certainly lead to large numbers of personal bankruptcies). My whole point was originally that there are already legal tools - like indemnity and insurance - that would preserve the aspects of limited liability. However, these would not be distributed in an equitable way, instead being most available for the wealthiest investors and the largest corporations, and inaccessible to ordinary people or entrepreneurs.
In practice, we'd still have limited liability, but a more unequal one with higher lawyer fees.
You might see some behavioral change from the controls that underwriters would make businesses implement. Often it's the insurance industry driving security engineering, fire protection, safety protocols, etc.
On the other hand, shareholders have about the same incentives and there is already corporate governance.
On the other hand, shareholders have about the same incentives and there is already corporate governance.
I doubt we'd see much at all of a difference, since large (and even most small) businesses are already insured against losses subject to underwriter enforcement of actuarial policy.
If we take the Deepwater Horizon oil spill from 2010, certainly one of the largest potential liabilities we've seen, BP's liability was capped at $75M.[1] BP ultimately waived its liability as a condition of settling with affected parties, but I think I'm justified in thinking this arrangement was just a particularly expensive PR cost. Insurance providers looked at BP's minuscule liability and were happy to sign the papers. I'm guessing the underwriters had only minimal conditions for the insurance policy. In a world where BP's liabilities were uncapped, I'm guessing the insurance underwriters (and ultimately actuaries) would have taken a much closer look at BP's operations on the oil rig.
If someone wants to propose lifting statutory caps on liability, or even creating liability for e.g. sea level rise, I'd be fully in favor. That solution is like a scalpel rather than a machete (such as revoking limited liability for corporate entities).
[1] https://www.nytimes.com/2010/05/02/us/02liability.html
If we take the Deepwater Horizon oil spill from 2010, certainly one of the largest potential liabilities we've seen, BP's liability was capped at $75M.[1] BP ultimately waived its liability as a condition of settling with affected parties, but I think I'm justified in thinking this arrangement was just a particularly expensive PR cost. Insurance providers looked at BP's minuscule liability and were happy to sign the papers. I'm guessing the underwriters had only minimal conditions for the insurance policy. In a world where BP's liabilities were uncapped, I'm guessing the insurance underwriters (and ultimately actuaries) would have taken a much closer look at BP's operations on the oil rig.
If someone wants to propose lifting statutory caps on liability, or even creating liability for e.g. sea level rise, I'd be fully in favor. That solution is like a scalpel rather than a machete (such as revoking limited liability for corporate entities).
[1] https://www.nytimes.com/2010/05/02/us/02liability.html
It is interesting (or worrying) to think about why someone like this writes an article like this. It seems kind of self-evident that limited liability gives people the opportunity to sue companies, and her main issue is apparently with the quantum of judgement against companies (left unsaid is why they would be larger against individuals or whether employees are able to shoulder those legal liabilities). But this is where we are now...a sizeable proportion that think that everything companies do is innately evil (these people often have tidy public sector jobs that are paid for by these companies). It is very weird...it is like life is a Disney film with evil rich people and virtuous poor people.
"or they'd require the corporate entity - again, still a legal person - to indemnify them for any losses beyond the investment"
But if the shareholders are being called on for more money, it's because the corporation has run out. And in that scenario, contractual indemnity from the corporation would be of no use, because it neither (i) provides funds to pay those who are suing, or (ii) protects the shareholders from lawsuits from third parties.
But if the shareholders are being called on for more money, it's because the corporation has run out. And in that scenario, contractual indemnity from the corporation would be of no use, because it neither (i) provides funds to pay those who are suing, or (ii) protects the shareholders from lawsuits from third parties.
> But if the shareholders are being called on for more money, it's because the corporation has run out. And in that scenario, contractual indemnity from the corporation would be of no use, because it neither (i) provides funds to pay those who are suing, or (ii) protects the shareholders from lawsuits from third parties.
The definition of indemnity is protection from lawsuits filed by third parties. This is in fact why you have insurance. Person A sues person B (an investor in C) for something corporation C did. Person B produces the indemnity agreement between himself and C, and the court throws out the suit.
And worthless judgments happen all the time. A party's inability to pay does not dissolve that party's agreements to indemnify some other party, or expose them to liability.
And, besides, it would likely never get to this point anyway, unless this proposal also involves abolishing corporate bankruptcy.
The definition of indemnity is protection from lawsuits filed by third parties. This is in fact why you have insurance. Person A sues person B (an investor in C) for something corporation C did. Person B produces the indemnity agreement between himself and C, and the court throws out the suit.
And worthless judgments happen all the time. A party's inability to pay does not dissolve that party's agreements to indemnify some other party, or expose them to liability.
And, besides, it would likely never get to this point anyway, unless this proposal also involves abolishing corporate bankruptcy.
> The definition of indemnity is protection from lawsuits filed by third parties. This is in fact why you have insurance. Person A sues person B (an investor in C) for something corporation C did. Person B produces the indemnity agreement between himself and C, and the court throws out the suit.
This sounds like it's missing something. Why wouldn't company B pay company D, a small LLC with 0 assets, to indemnify it against everything it does, period. There has to be a case where, in your scenario, C can't cover the issue and B is on the hook, rather than the case just being "thrown out".
This sounds like it's missing something. Why wouldn't company B pay company D, a small LLC with 0 assets, to indemnify it against everything it does, period. There has to be a case where, in your scenario, C can't cover the issue and B is on the hook, rather than the case just being "thrown out".
I think most commonly indemnification agreements are actually regarding B suing C or vice versa. E.g. if I sell you some software to use in your product ot resell, don't come sue me because you got yourself in trouble with it somehow.
To protect a third party from liability you would have to operate somehow like insurance, and that has a lot of legal requirements like you need to have sufficient cash in a bond or something to be able to guarantee you can pay claims.
To protect a third party from liability you would have to operate somehow like insurance, and that has a lot of legal requirements like you need to have sufficient cash in a bond or something to be able to guarantee you can pay claims.
Good question.
I don't know. This is where it gets into the territory that a lawyer would need to find the precedent and find scenarios where courts did indeed find that an indemnity agreement was invalid for some reason. That goes beyond my knowledge of finance/economics and basic working knowledge of the law. My gut tells me that you are right about your scenario.
IANAL, but if I were to hazard a guess, I'd say that the courts would be unimpressed with a corporate entity that has no assets and loads of indemnity agreements. (I'd also point out that a LLC being paid for anything by definition has assets, although it may just convert them all into expenses.) A court might decide that such an agreement is unenforceable. I'm guessing that blatantly bad faith arrangements like that would not stand up in court. But, again, this is a total guess.
I don't know. This is where it gets into the territory that a lawyer would need to find the precedent and find scenarios where courts did indeed find that an indemnity agreement was invalid for some reason. That goes beyond my knowledge of finance/economics and basic working knowledge of the law. My gut tells me that you are right about your scenario.
IANAL, but if I were to hazard a guess, I'd say that the courts would be unimpressed with a corporate entity that has no assets and loads of indemnity agreements. (I'd also point out that a LLC being paid for anything by definition has assets, although it may just convert them all into expenses.) A court might decide that such an agreement is unenforceable. I'm guessing that blatantly bad faith arrangements like that would not stand up in court. But, again, this is a total guess.
A is not a party to the contract between B and C.
So, if A has a claim against B, cannot impact or nullify that contract.
Sure, B can try to get C to pay. Or B can pay up and then try to get the money back from C. But this is between B and C, and does not affect A's ability to collect.
So, if A has a claim against B, cannot impact or nullify that contract.
Sure, B can try to get C to pay. Or B can pay up and then try to get the money back from C. But this is between B and C, and does not affect A's ability to collect.
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Pointing out that the currently default structure could be replicated by other means currently available is no argument for keeping it the default. It is not in fact some God-given design to which all paths must inevitably converge. Clearly the author is proposing that it be discouraged one way and another over a period of time; your characterisation of that as an impossible task is backed up only by speculation.
You can't really insure against going to jail. As others have said, I think she was off the mark with regards to calling out "shareholders" vs. "managers" / "those actually responsible for making the criminal decisions", but if you made the call and gave orders to negligently cut your safety standards, and then your oil company has a spill, you should go to jail.
Are you interpreting this op-ed to say that investors who have no active hand in the operations of a business should have criminal liability for any actions people in the corporation take? I discounted that possibility out of hand since it seems patently absurd when I think about it a bit more.
I don't have a clear position here, but why not? Shareholders can do their due diligence after all. If you are not directly involved in the decision making that caused suffering to occur then you perhaps incur monetary losses (either through insuring yourself or paying fines). This will of course, change the risk equation. Previously potentially profitable investments suddenly become non-viable because when you factor in insurance costs / possible fines, you can think more than once about funding endeavors by people which might be crooks.
If you were directly responsible for the decision making that caused predictable suffering, you can be criminally liable. You can go to jail. What is the problem with that?
If you were directly responsible for the decision making that caused predictable suffering, you can be criminally liable. You can go to jail. What is the problem with that?
Some seem to be arguing for that here. It would obviously go against the principle of mens rea.
Limited liability doesn't protect anyone from criminal charges anyway.
Limited liability doesn't protect anyone from criminal charges anyway.
I don't really see how it would be better. The corporations that I've heard described as evil most often don't seem to be affected at all, at first thought at least. Some because they're profitable, others were at risk around 2008-2010, but were kept from bankruptcy (with or without shareholder liability) because of systemic risk.
Could you explain what problem this would solve?
Could you explain what problem this would solve?
You can just increase capital requirements on the firm, or (alternately) allow the firm itself to take on liability insurance where the insurance company has adequate capital requirements of its own. Shareholders would not be required to self-insure or anything like that, they would just need to up their ante until it actually covers the worst-case loss. It's totally fair.
What does that actually mean in practice when liabilities can exceed assets? Also, what does it look like to try to have "sufficient" cash reserves for contingency? We've had enough trouble trying to do that with banks and Basel III.
To use a concrete example: Electricite de France (EDF). They operate a large fleet of nuclear reactors. How much should they be required to put aside against the contingency of a massive Chernobyl-level incident? Their "total assets" are 283.2 billion EUR according to Google. Is that enough?
(Slightly bad example in that the majority shareholder is the French government, but never mind)
> up their ante until it actually covers the worst-case loss
The worst-case loss is difficult to predict in advance and may be a huge number with low probability. What do you think the minimum "ante" should be required for a low-end business such as opening a restaurant?
To use a concrete example: Electricite de France (EDF). They operate a large fleet of nuclear reactors. How much should they be required to put aside against the contingency of a massive Chernobyl-level incident? Their "total assets" are 283.2 billion EUR according to Google. Is that enough?
(Slightly bad example in that the majority shareholder is the French government, but never mind)
> up their ante until it actually covers the worst-case loss
The worst-case loss is difficult to predict in advance and may be a huge number with low probability. What do you think the minimum "ante" should be required for a low-end business such as opening a restaurant?
The "cap" is imposed by bankruptcy.
In some of the examples cited, the beneficial owners will get to keep ill-gotten gains, while the company implodes. The Sacklers/Purdue is a great example. The owners picked the corporate carcass clean, shipped the money out of the jurisdiction of the US Courts, and are protected against most future claims.
In some of the examples cited, the beneficial owners will get to keep ill-gotten gains, while the company implodes. The Sacklers/Purdue is a great example. The owners picked the corporate carcass clean, shipped the money out of the jurisdiction of the US Courts, and are protected against most future claims.
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The shareholders are not usually the ones making the decisions, the managers are. Rather than going after Joe Average's pension when he put $100 in an index fund that turned out to own Dow Chemical, go after the managers.
Perhaps a rule that anyone in a decisionmaking position who earned over $1m total comp last year is partially liable for fines against the company?
In the UK a few decades ago there was a huge fiasco when Lloyds, one of the few remaining places whose investors have unlimited liability because the company dates from 1686, dumped liabilities relating to asbestos onto them. https://www.theguardian.com/money/2000/nov/04/business.perso...
Was Sir William Jaffray responsible, in the 1980s, for the actions of those marketing and installing asbestos in the 1970s? He ended up liable for it anyway.
Perhaps a rule that anyone in a decisionmaking position who earned over $1m total comp last year is partially liable for fines against the company?
In the UK a few decades ago there was a huge fiasco when Lloyds, one of the few remaining places whose investors have unlimited liability because the company dates from 1686, dumped liabilities relating to asbestos onto them. https://www.theguardian.com/money/2000/nov/04/business.perso...
Was Sir William Jaffray responsible, in the 1980s, for the actions of those marketing and installing asbestos in the 1970s? He ended up liable for it anyway.
> Perhaps a rule that anyone in a decisionmaking position who earned over $1m total comp last year is partially liable for fines against the company?
Limited liability is almost always irrelevant to megacorps, because they're large enough that any given liability doesn't actually bankrupt them. Which also means that managers in a company that size would still expect it to never happen and it wouldn't impact their behavior, and they would just carry insurance against it anyway.
On top of that, it doesn't even really help the victims, because if you have a claim which can bankrupt a $100B corporation, the few million in additional assets you could get from the managers is a rounding error.
If you're really trying to affect behavior, criminal penalties for the managers would tend to be more effective, but they also tend to already exist in cases of malice rather than negligence. Negligence tends to be punished with financial penalties rather than prison, and then we're back to the money getting paid by the corporation itself or insurance.
Limited liability is almost always irrelevant to megacorps, because they're large enough that any given liability doesn't actually bankrupt them. Which also means that managers in a company that size would still expect it to never happen and it wouldn't impact their behavior, and they would just carry insurance against it anyway.
On top of that, it doesn't even really help the victims, because if you have a claim which can bankrupt a $100B corporation, the few million in additional assets you could get from the managers is a rounding error.
If you're really trying to affect behavior, criminal penalties for the managers would tend to be more effective, but they also tend to already exist in cases of malice rather than negligence. Negligence tends to be punished with financial penalties rather than prison, and then we're back to the money getting paid by the corporation itself or insurance.
> they would just carry insurance against it anyway.
A lot of people in this thread keep citing insurance, as if you can _just carry_ insurance for anything. This completely ignores the actual insurance companies in the equation.
Insurance companies are not limitless pits of funds, they won't just give insurance to anyone for anything. If a manager has a track record of damaging behaviour or works in an industry that does obvious harm, why would somebody give them insurance?
People are talking like the results are useless unless it personally bankrupts the managers responsible, the goal is not to hurt the person responsible as much as possible, its to actually provide compensation for victims, and provide a market force to reduce harmful behaviour.
You can't just "get insurance" for anything. If you were legally liable for harms, and you had a track record of harmful decisions or work in a obviously harmful industries, then the insurance companies are unlikely to provide you insurance or will charge you high enough premiums that those who are more responsible or do safer work are economically advantaged.
A lot of people in this thread keep citing insurance, as if you can _just carry_ insurance for anything. This completely ignores the actual insurance companies in the equation.
Insurance companies are not limitless pits of funds, they won't just give insurance to anyone for anything. If a manager has a track record of damaging behaviour or works in an industry that does obvious harm, why would somebody give them insurance?
People are talking like the results are useless unless it personally bankrupts the managers responsible, the goal is not to hurt the person responsible as much as possible, its to actually provide compensation for victims, and provide a market force to reduce harmful behaviour.
You can't just "get insurance" for anything. If you were legally liable for harms, and you had a track record of harmful decisions or work in a obviously harmful industries, then the insurance companies are unlikely to provide you insurance or will charge you high enough premiums that those who are more responsible or do safer work are economically advantaged.
> If a manager has a track record of damaging behaviour or works in an industry that does obvious harm, why would somebody give them insurance?
If a manager has a track record of damaging behaviour or works in an industry that does obvious harm, why would somebody hire them? The liability to the corporation as things are now is the same as what it would be to the insurance company.
And that's assuming that actuarially the people who have made mistakes in the past are more likely to make them in the future. Maybe the people who have made mistakes in the past are the people who have learned what not to do and are a safer choice than someone with less experience, or at least are not sufficiently more risky that the difference in insurance premiums would be prohibitively large.
> People are talking like the results are useless unless it personally bankrupts the managers responsible, the goal is not to hurt the person responsible as much as possible, its to actually provide compensation for victims, and provide a market force to reduce harmful behaviour.
Making the managers responsible for corporate liability doesn't do much for victims because the managers typically have far less money than the corporation itself. All it can really do is try to motivate the managers to avoid the liability, but it doesn't even do that when it's the insurance company and not the manager that pays in the event of liability anyway.
If a manager has a track record of damaging behaviour or works in an industry that does obvious harm, why would somebody hire them? The liability to the corporation as things are now is the same as what it would be to the insurance company.
And that's assuming that actuarially the people who have made mistakes in the past are more likely to make them in the future. Maybe the people who have made mistakes in the past are the people who have learned what not to do and are a safer choice than someone with less experience, or at least are not sufficiently more risky that the difference in insurance premiums would be prohibitively large.
> People are talking like the results are useless unless it personally bankrupts the managers responsible, the goal is not to hurt the person responsible as much as possible, its to actually provide compensation for victims, and provide a market force to reduce harmful behaviour.
Making the managers responsible for corporate liability doesn't do much for victims because the managers typically have far less money than the corporation itself. All it can really do is try to motivate the managers to avoid the liability, but it doesn't even do that when it's the insurance company and not the manager that pays in the event of liability anyway.
You're ignoring the fact that shell corporations used as liability shields are widespread. Look at all those abandoned oil wells that nobody will pay to clean up because the corporations that owned them don't exist anymore.
Managers have assets, insurance companies have assets, shell corporations designed to shield other corporations and managers do not have any assets.
> And that's assuming that actuarially the people who have made mistakes in the past are more likely to make them in the future.
Moreso I'm assuming that the actual actuaries will be incentivized to assess this correctly when somebody actual has to pay when things go bad.
Managers have assets, insurance companies have assets, shell corporations designed to shield other corporations and managers do not have any assets.
> And that's assuming that actuarially the people who have made mistakes in the past are more likely to make them in the future.
Moreso I'm assuming that the actual actuaries will be incentivized to assess this correctly when somebody actual has to pay when things go bad.
> Limited liability is almost always irrelevant to megacorps, because they're large enough that any given liability doesn't actually bankrupt them.
And that's what needs to change, not the concept of limited liability itself.
And that's what needs to change, not the concept of limited liability itself.
> And that's what needs to change, not the concept of limited liability itself.
Suppose you go to a drive through and order a coffee. The restaurant is negligent; their coffee is unreasonably hot, the lids they use don't seal well and their employee spills the coffee on you. You get second and third degree burns, sue them and get awarded a million dollars.
If it was a mom and pop restaurant, they're bankrupt. Their restaurant isn't worth $1M but now they owe you that much and they don't have it so they go out of business.
If it was a national chain, they make $1M less profit this year but none of their locations close. Maybe they fire that employee, start using better fitting lids on their coffee or don't serve it so hot anymore.
Their behavior was the same, the liability was the same, the only difference is that they were big enough to pay the money without going bankrupt. That's not necessarily bad. Better that the victim gets the $1M they were awarded instead of something less than that. Better that the other employees who weren't negligent don't lose their jobs too. As long as the liability is enough to get them to fix the problem (or, ideally, to have predicted it and prevented it to begin with).
Suppose you go to a drive through and order a coffee. The restaurant is negligent; their coffee is unreasonably hot, the lids they use don't seal well and their employee spills the coffee on you. You get second and third degree burns, sue them and get awarded a million dollars.
If it was a mom and pop restaurant, they're bankrupt. Their restaurant isn't worth $1M but now they owe you that much and they don't have it so they go out of business.
If it was a national chain, they make $1M less profit this year but none of their locations close. Maybe they fire that employee, start using better fitting lids on their coffee or don't serve it so hot anymore.
Their behavior was the same, the liability was the same, the only difference is that they were big enough to pay the money without going bankrupt. That's not necessarily bad. Better that the victim gets the $1M they were awarded instead of something less than that. Better that the other employees who weren't negligent don't lose their jobs too. As long as the liability is enough to get them to fix the problem (or, ideally, to have predicted it and prevented it to begin with).
Yes, I agree with all of that.
I also don't think that allowing companies to externalize their costs (either implicitly or explicitly) is beneficial to society, and that is why I said that the regulatory environment needs to change in scenarios where that's not the case.
I also don't think that allowing companies to externalize their costs (either implicitly or explicitly) is beneficial to society, and that is why I said that the regulatory environment needs to change in scenarios where that's not the case.
> ... Lloyds, one of the few remaining places whose investors have unlimited liability because the company dates from 1686...
It’s worth noting that even Lloyd’s has been changing as a result of unlimited liability being, well, a liability. New private individual investors with unlimited liability (called “Names” in Lloyd’s parlance) haven’t been admitted in some years and corporate entities have been admitted to join with limited liability for almost thirty years. As it stands now, something like only 3% of Lloyd’s insurance capacity is provided by unlimited liability Names and that’s expected to hit 0% before 2030.
It’s worth noting that even Lloyd’s has been changing as a result of unlimited liability being, well, a liability. New private individual investors with unlimited liability (called “Names” in Lloyd’s parlance) haven’t been admitted in some years and corporate entities have been admitted to join with limited liability for almost thirty years. As it stands now, something like only 3% of Lloyd’s insurance capacity is provided by unlimited liability Names and that’s expected to hit 0% before 2030.
Shareholders are ultimately the ones who choose the managers. The managers work on behalf of the shareholders: they have a fiduciary obligation to create profits for those shareholders. If they're engaging in illegal or dubiously-legal activities in order to increase profits, they're not doing so purely for their own benefit. They're doing so because that was what they were specifically tasked to do.
Average Joe has very little of that say, and proportionately little of the benefit. But the institution that manages Joe's 401(k) has, in aggregate, quite a bit of that say. And it's a little disingenuous of them to say, "It's not our fault that the manager we hired was dumping toxic waste. We just benefited from the savings in the waste management department."
Shares represent both a piece of the profit and a piece of control, so it's not unreasonable that they should bear financial responsibility for the actions of the corporation. It shouldn't stop at management -- though the corporate veil is supposed to be pierced by illegal activity, and for a lot of reasons it rarely is. Which just makes it more imperative that the people who hired the manager be required to protect their investment.
Average Joe has very little of that say, and proportionately little of the benefit. But the institution that manages Joe's 401(k) has, in aggregate, quite a bit of that say. And it's a little disingenuous of them to say, "It's not our fault that the manager we hired was dumping toxic waste. We just benefited from the savings in the waste management department."
Shares represent both a piece of the profit and a piece of control, so it's not unreasonable that they should bear financial responsibility for the actions of the corporation. It shouldn't stop at management -- though the corporate veil is supposed to be pierced by illegal activity, and for a lot of reasons it rarely is. Which just makes it more imperative that the people who hired the manager be required to protect their investment.
> Shareholders are ultimately the ones who choose the managers.
They absolutely are not. Do you think I (as an investor in Dow) have any say over who managed the plant in Bhopal?
> Average Joe has very little of that say, and proportionately little of the benefit. But the institution that manages Joe's 401(k) has, in aggregate, quite a bit of that say. And it's a little disingenuous of them to say, "It's not our fault that the manager we hired was dumping toxic waste. We just benefited from the savings in the waste management department."
That I agree with, and that's why you fine the company for the cost of the cleanup plus some punitive fine as a response. If that forces the company into bankruptcy, so be it, but BP absorbed a $65 billion cost for the Horizon disaster, so it seems like large companies could survive the potentially high expenses.
> Shares represent both a piece of the profit and a piece of control...
This is true in theory but not in practice, so I feel the rest of your comment doesn't hold up.
They absolutely are not. Do you think I (as an investor in Dow) have any say over who managed the plant in Bhopal?
> Average Joe has very little of that say, and proportionately little of the benefit. But the institution that manages Joe's 401(k) has, in aggregate, quite a bit of that say. And it's a little disingenuous of them to say, "It's not our fault that the manager we hired was dumping toxic waste. We just benefited from the savings in the waste management department."
That I agree with, and that's why you fine the company for the cost of the cleanup plus some punitive fine as a response. If that forces the company into bankruptcy, so be it, but BP absorbed a $65 billion cost for the Horizon disaster, so it seems like large companies could survive the potentially high expenses.
> Shares represent both a piece of the profit and a piece of control...
This is true in theory but not in practice, so I feel the rest of your comment doesn't hold up.
Like Sarbanes-Oxley but for more than just financial certification.
> Perhaps a rule that anyone in a decisionmaking position who earned over $1m total comp last year is partially liable for fines against the company?
In UK banking now there are regulations that manager above a certain level are legally liable for decisions made below them. This means in the worst case, a director level manager can go to prison for a decision they or one of their subordinates makes. If it's a subordinate, I believe it is their responsibility to prove that the information was hidden from them, i.e. they are required to know what's going on below them as far as they reasonably can.
In UK banking now there are regulations that manager above a certain level are legally liable for decisions made below them. This means in the worst case, a director level manager can go to prison for a decision they or one of their subordinates makes. If it's a subordinate, I believe it is their responsibility to prove that the information was hidden from them, i.e. they are required to know what's going on below them as far as they reasonably can.
Sounds like a great way to ensure managerial compensation is even higher than it is today
The article conflates a lot of things that are not connected to limited liability (unsafe airplanes and pollution!?). And it misunderstands limited and zero liability, pretending the former is the later? Then it fails to understand liability all together.
I understand why there is a human need to hold someone accountable for everything. But that's not realistically possible. Trying or pretending it is leads to very weird results (like the article)
There are so many failures here, I'd go as far as to call it "not even wrong". It's just a mess of accusations and (incorrect) assertions. The cynic in me wonders if its intended to just appeal to people's prejudices. But maybe I'm just cynical...
I understand why there is a human need to hold someone accountable for everything. But that's not realistically possible. Trying or pretending it is leads to very weird results (like the article)
There are so many failures here, I'd go as far as to call it "not even wrong". It's just a mess of accusations and (incorrect) assertions. The cynic in me wonders if its intended to just appeal to people's prejudices. But maybe I'm just cynical...
The basic premise seems simple and not-wrong enough: External costs are not borne by shareholders, so they are not priced into the market. I mean, that's kind of the definition of externality.
Everything else is hot garbage, though. I don't understand why the shareholders are being dragged into this at all... Suddenly making millions of people partially liable for the acts of the company would result in nothing other than panicked crashes. Not to mention things like index funds suddenly becoming untenable -- imagine liability to the entire stock market?! And that to me is enough to confirm that this is barking up the wrong tree, because index funds are one of the best things to happen to the investment market for the average person.
The answer is to internalize the costs to the corporation, so that the market can properly reflect them just like every other cost. This works fine, and doesn't destroy the very nature of the market or shareholding.
EDIT: I mean this broadly. Not just carbon taxes and other classic examples of externalities. But also things like proper fines against damages discovered in court. Currently fines seem flatter than they should be. They're often enough to completely shutter a small company, but when scaled up often don't even negate the potential profits for megacorps.
Everything else is hot garbage, though. I don't understand why the shareholders are being dragged into this at all... Suddenly making millions of people partially liable for the acts of the company would result in nothing other than panicked crashes. Not to mention things like index funds suddenly becoming untenable -- imagine liability to the entire stock market?! And that to me is enough to confirm that this is barking up the wrong tree, because index funds are one of the best things to happen to the investment market for the average person.
The answer is to internalize the costs to the corporation, so that the market can properly reflect them just like every other cost. This works fine, and doesn't destroy the very nature of the market or shareholding.
EDIT: I mean this broadly. Not just carbon taxes and other classic examples of externalities. But also things like proper fines against damages discovered in court. Currently fines seem flatter than they should be. They're often enough to completely shutter a small company, but when scaled up often don't even negate the potential profits for megacorps.
I don't see that conflation nor that misunderstanding.
> not connected to limited liability [like] pollution
I'm pretty sure that's in reference to things like https://indyweek.com/news/legal-maneuver-absolve-duke-energy... where a company offloads its pollution liabilities to an under-capitalized LLC:
] In most cases, the landowner would be legally liable for such damages. But the owner of the abandoned brick mine is not Duke Energy; it's Green Meadow LLC, a new corporation led by the president of Charah Inc., a Kentucky ash disposal company contracting with Duke on the coal ash project.
] Once Charah takes possession of the ash, Duke may not be responsible for the waste, legal experts say, a contingency that may be part of Duke's private contract with Charah.
] And if Green Meadow or Charah does not have the money to pay damages emanating from a lawsuit, then county governments and the state not Duke Energy may be ultimately forced to pay, legal experts say.
> misunderstands limited and zero liability
I find it hard to believe that "Katharina Pistor, Professor of Comparative Law at Columbia Law School, [and] author of The Code of Capital: How the Law Creates Wealth and Inequality." understands the topic worse than an HN commenter.
> pretending the former is the later
I don't see that. For example, Pistor writes "The corporate entity itself might face liability, perhaps even bankruptcy, but the shareholders can walk away from the wreckage, profits in hand."
That distinguishes between limited and zero liability.
A quick look (following the links) finds several papers related to piercing the corporate veil. Eg https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1517428&... describes how the inability to pierce the corporate veil may "improperly shield irresponsible business owners."
> not connected to limited liability [like] pollution
I'm pretty sure that's in reference to things like https://indyweek.com/news/legal-maneuver-absolve-duke-energy... where a company offloads its pollution liabilities to an under-capitalized LLC:
] In most cases, the landowner would be legally liable for such damages. But the owner of the abandoned brick mine is not Duke Energy; it's Green Meadow LLC, a new corporation led by the president of Charah Inc., a Kentucky ash disposal company contracting with Duke on the coal ash project.
] Once Charah takes possession of the ash, Duke may not be responsible for the waste, legal experts say, a contingency that may be part of Duke's private contract with Charah.
] And if Green Meadow or Charah does not have the money to pay damages emanating from a lawsuit, then county governments and the state not Duke Energy may be ultimately forced to pay, legal experts say.
> misunderstands limited and zero liability
I find it hard to believe that "Katharina Pistor, Professor of Comparative Law at Columbia Law School, [and] author of The Code of Capital: How the Law Creates Wealth and Inequality." understands the topic worse than an HN commenter.
> pretending the former is the later
I don't see that. For example, Pistor writes "The corporate entity itself might face liability, perhaps even bankruptcy, but the shareholders can walk away from the wreckage, profits in hand."
That distinguishes between limited and zero liability.
A quick look (following the links) finds several papers related to piercing the corporate veil. Eg https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1517428&... describes how the inability to pierce the corporate veil may "improperly shield irresponsible business owners."
Just FYI, on the Green Meadow point, companies are already required to show that when they transfer liabilities like this, the entity transfered to is "properly funded". People can argue over what level of funding is required, but there are funding requirements. The article itself even mentions higher funding requirements when the EPA classes waste as a Hazardous etc.
If that we're not the case, llcs would be a sort of crazy loophole to dump problems and walk away. But it's not. We already have a whole web of regulations, most based around requiring insurance and regulating insurer risk profiles...
In answer to you the "profits in hands" quote, I think that's misrepresentation because its incredibly rare. How many times does someone invest in a company, magically get more than their investment back in cash and then the company goes bankrupt and have it all happen so quickly that it's fraud rather than just 10 years of success and failure? The article doesn't give even 1 example of that. Also to take advantage of limited liability a dividend needs to be properly declared and paid. Companies that realise they have major liabilities can't do that. That's why they don't. So the article pretends you can just wait till pay day, liquidate everything and throw the money over the fence and you get away with it.
If that we're not the case, llcs would be a sort of crazy loophole to dump problems and walk away. But it's not. We already have a whole web of regulations, most based around requiring insurance and regulating insurer risk profiles...
In answer to you the "profits in hands" quote, I think that's misrepresentation because its incredibly rare. How many times does someone invest in a company, magically get more than their investment back in cash and then the company goes bankrupt and have it all happen so quickly that it's fraud rather than just 10 years of success and failure? The article doesn't give even 1 example of that. Also to take advantage of limited liability a dividend needs to be properly declared and paid. Companies that realise they have major liabilities can't do that. That's why they don't. So the article pretends you can just wait till pay day, liquidate everything and throw the money over the fence and you get away with it.
> The article doesn't give even 1 example of that
Though it does link to https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1871173 "The Modern Law of Corporate Groups: An Empirical Study of Piercing the Corporate Veil in the Parent-Subsidiary Context"
] Empirical analysis treating the application of substantive piercing doctrine to the parent-subsidiary context is virtually nonexistent. This Article begins to fill that void. The underlying project is an empirical analysis of piercing the corporate veil in the parent-subsidiary context. The Article's first objective is to describe statistically the propensities of modern courts for piercing the corporate veil in the parent-subsidiary situation. Its second objective is to use advanced statistical techniques to explore potential causal relationships regarding piercing the veil in the parent-subsidiary context. Both of these objectives are unique to this study. The hope is that courts, commentators, and practitioners may be better equipped to understand and predict under what circumstances a court is likely to exercise its equitable discretion and hold a parent company liable.
Fraud or misrepresentation was discussed in 46.4% (n=167) of the piercing cases, and found to be present in 7.2% (n=26) of them. (See page 1128.)
Undercapitalization (which I mentioned) was in 44 of those cases.
So examples are out there.
Though it does link to https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1871173 "The Modern Law of Corporate Groups: An Empirical Study of Piercing the Corporate Veil in the Parent-Subsidiary Context"
] Empirical analysis treating the application of substantive piercing doctrine to the parent-subsidiary context is virtually nonexistent. This Article begins to fill that void. The underlying project is an empirical analysis of piercing the corporate veil in the parent-subsidiary context. The Article's first objective is to describe statistically the propensities of modern courts for piercing the corporate veil in the parent-subsidiary situation. Its second objective is to use advanced statistical techniques to explore potential causal relationships regarding piercing the veil in the parent-subsidiary context. Both of these objectives are unique to this study. The hope is that courts, commentators, and practitioners may be better equipped to understand and predict under what circumstances a court is likely to exercise its equitable discretion and hold a parent company liable.
Fraud or misrepresentation was discussed in 46.4% (n=167) of the piercing cases, and found to be present in 7.2% (n=26) of them. (See page 1128.)
Undercapitalization (which I mentioned) was in 44 of those cases.
So examples are out there.
That's fine, but those are cases where by definition they were caught doing things that are NOT allowed. The article's point is that you can off load your liabilities and keep the profits perfectly legally. Those cases prove that isn't true.
But you are moving the goalposts now.
You:
> The article doesn't give even 1 example of that
GP:
> It does.
You:
> but They weren't supposed to.
Me:
They did though.
No, the article gives no examples of how companies can walk away from their liability by legally abusing llcs. It links to an article with examples of the opposite, disproving the very thing the author claims.
You are misreading or misrepresenting what the article says. It is arguing that “limited liability” for shareholders de facto means “zero liability” for anything the company does. While that’s not strictly true, a shareholder in a public company indeed suffers no consequences for said company’s actions other than potential loss of their initial investment. The author is saying this is insufficient, as it leads to companies taking legal risks like building unsafe airplanes and causing pollution.
Does this not reflect the world outside your window? When I can put money into a company, then sit on it over a period of years and just watch it grow, what’s my incentive to prevent the company from doing bad things? When I can do that for hundreds of companies at a time, in the form of an index fund or ETF, and be virtually assured my money will grow over the long term, why would I do anything to prevent the company from taking risks?
TL;DR: “Zero liability” is not zero, it’s just so small it doesn’t discourage bad behavior.
Does this not reflect the world outside your window? When I can put money into a company, then sit on it over a period of years and just watch it grow, what’s my incentive to prevent the company from doing bad things? When I can do that for hundreds of companies at a time, in the form of an index fund or ETF, and be virtually assured my money will grow over the long term, why would I do anything to prevent the company from taking risks?
TL;DR: “Zero liability” is not zero, it’s just so small it doesn’t discourage bad behavior.
But limited liability comes into play in none of his examples which is why he appears to be conflating issues. All of the examples he gives are of companies which had enough money to cover their liabilities (none of them went bankrupt due to the example misconduct). So it appears that the issue is with liability in general, not limited liability in specific.
Limited liability is what makes people want to continue investing in Boeing after they made a plane prone to crashing, and Exxon after they leak millions of gallons of oil into the ocean. You can, and I think do, argue that those companies should have more liability for those things, perhaps in the form of prison sentences for negligence, or, at least, increased fines, but limited liability is what ultimately keeps the company going for the long term, in spite of what they’ve done.
But Boeing and Exxon both are still around and still profitable and did not need to fall back on the principle of limited liability to protect their shareholders. So if anything that would indicate to me as a shareholder that both companies are not that bad at quantifying risk. Limited liability makes it less risky to invest in smaller, less established companies. Those with well established histories like Boeing and Exxon seem like they would actually be helped by eliminating limited liability as they have long histories of not needing to use it.
You're missing the point. If I could suffer unlimited liability beyond my initial investment for things Exxon does, why would I invest? What would happen to Exxon if everyone thought that way?
People would stop being able to retire because any and all investment has become infinitly risky. That's what would happen.
I need to invest my money in something[0]. If Exxon has a good track record of only incurring liabilities which they can cover using revenue (which they do) then I would invest with them over some other company without such a record.
[0] https://meltingasphalt.com/wealth-the-toxic-byproduct/
[0] https://meltingasphalt.com/wealth-the-toxic-byproduct/
If I could suffer unlimited liability for opening a restaurant, or even investing in my brother's restaurant, would I? If a staff member fails to wash their hands and kills a few people with a particularly disastrous food poisoning outbreak, who should lose their house, me (passive investor), or them (worker)?
(Getting rid of limited liability also means the company is no longer necessarily a liability shield for its staff! People would likely fallback on not being a company, so either partnership arrangements or just a cloud of independent contractors)
(Getting rid of limited liability also means the company is no longer necessarily a liability shield for its staff! People would likely fallback on not being a company, so either partnership arrangements or just a cloud of independent contractors)
If your argument were correct, sole proprietorships and non-LLP partnerships would not exist.
Neither take on external investors, partnerships are rare and generally carry insurance as protection against their liability, and sole proprietorships only exist due to ignorance or laziness on the part of the business owner (in the US at least), so I'm not sure what your point is here.
> If I could suffer unlimited liability beyond my initial investment for things Exxon does, why would I invest?
Because you expect to make more money than you expect to lose. The liability risk (or the cost of insuring against it) would just get priced into the stock price.
> What would happen to Exxon if everyone thought that way?
They would presumably consolidate even more than they already have, so that the total amount of corporate assets is greater, which reduces the probability that a liability could exceed them and cause the shareholders to lose more than they put in.
Limited liability benefits small corporations far more than larger ones, because the risk of incurring a liability that exceeds the total value of the corporation is higher when the total value of the corporation is smaller.
Because you expect to make more money than you expect to lose. The liability risk (or the cost of insuring against it) would just get priced into the stock price.
> What would happen to Exxon if everyone thought that way?
They would presumably consolidate even more than they already have, so that the total amount of corporate assets is greater, which reduces the probability that a liability could exceed them and cause the shareholders to lose more than they put in.
Limited liability benefits small corporations far more than larger ones, because the risk of incurring a liability that exceeds the total value of the corporation is higher when the total value of the corporation is smaller.
Because they do a ton of other stuff. There is a fundamental misunderstanding of the scale of these businesses...they pay out based on the cost determined by a third party but they are still profitable because they do a ton of other stuff.
Eliminating limited liability would finish these businesses because it would require risk to be borne by employees and managers. They are not able to bear that risk...that is why we split ownership and management with limited liability...this has been thought out.
Eliminating limited liability would finish these businesses because it would require risk to be borne by employees and managers. They are not able to bear that risk...that is why we split ownership and management with limited liability...this has been thought out.
Limited liability has nothing to do with employees and managers, it applies only to shareholders. Shareholders and corporations would love to push more liability onto their employees, but it is labor law that prevents them from doing so, not the principle of limited liability.
It's not so much labor law as that the employees have relatively little money. Having a contract that says your employee has to pay the corporation's billion dollar liability when the employee is negligent is little help to the corporation when the employee hasn't got a billion dollars.
Limited liability applies to both shareholders and directors of a company.
What is the liability of directors limited to?
Zero, in almost all cases: https://www.upcounsel.com/liability-of-company-directors
No, it does. You don't think it does because you either haven't looked at what happens if limited liability doesn't exist or you are assuming that we can make these changes with no consequence.
Well we can't just micromanage everything perfectly. If you change this, the liabilty doesn't just magically disappear. You will see firms collapse into themselves, and that risk will move to managers and employees. It moves to managers because they are the only ones who will take the risk (i.e. we have no principal/agent problem, everyone is a principal) and it moves to employees because that system is incapable of bearing the risk (do you understand that wage labour didn't exist until the late 19th century...before that point, you had union gangmasters who were paid by piece and putting out...again, what we would call employees today bore substantial risk). Again, it moves risk from those able to bear it to those who cannot (the system we have is enormously favourable to employees, and very disadvantageous for employers...the reason people think the opposite is because they don't know what the world was like before this).
Srs, this site is one of the worst for people with no knowledge telling you something they have no understanding of with absolute authority. Read a book on pre-20th century economic history...there is a reason why we got here, it is called progress.
Well we can't just micromanage everything perfectly. If you change this, the liabilty doesn't just magically disappear. You will see firms collapse into themselves, and that risk will move to managers and employees. It moves to managers because they are the only ones who will take the risk (i.e. we have no principal/agent problem, everyone is a principal) and it moves to employees because that system is incapable of bearing the risk (do you understand that wage labour didn't exist until the late 19th century...before that point, you had union gangmasters who were paid by piece and putting out...again, what we would call employees today bore substantial risk). Again, it moves risk from those able to bear it to those who cannot (the system we have is enormously favourable to employees, and very disadvantageous for employers...the reason people think the opposite is because they don't know what the world was like before this).
Srs, this site is one of the worst for people with no knowledge telling you something they have no understanding of with absolute authority. Read a book on pre-20th century economic history...there is a reason why we got here, it is called progress.
It's more like corporations know that regulators can't or don't assign meaningful fines. Look at Facebook and their recent $5 billion fine. That's a "cost of doing business" to them.
Counterpoint: as a Boeing investor, exactly how much foreknowledge of and ability to prevent the 737 MAX disaster would you have had?
It doesn’t matter, because all I can lose is my initial investment. That’s the point.
You probably wouldn't want to invest into something unknown if you then were liable for damages caused by it. Which is, I think, the point of the article.
As a passive investor, every investment option is an unknown, and therefore no investments could be made where the investor doesn't have direct control over the decision making process at the firm.
Exactly. Capitalism would be completely transformed.
[deleted]
You aren't virtually assured your money will grow over the long term, especially if you only invest in companies that make mistakes on the scale of Exxon and Boeing. It seems like your post is based on this premise, which isn't accurate.
Also, I don't think anyone misunderstands what the author is saying, as it's very clear. It just makes no sense, isn't supported by the examples she brings up, and the proposed solution would do significant harm.
Also, I don't think anyone misunderstands what the author is saying, as it's very clear. It just makes no sense, isn't supported by the examples she brings up, and the proposed solution would do significant harm.
You are virtually assured your money will grow over time if you invest in enough companies. That’s the reason VCs and index funds exist.
1. No, you aren't "virtually assured". Past performance indicates that's the case over enough time (25+ years), but that isn't an assurance.
2. I'm not sure how this supports your argument, as an index fund investor is even more removed from the decision making process that leads to some sort of disaster.
2. I'm not sure how this supports your argument, as an index fund investor is even more removed from the decision making process that leads to some sort of disaster.
Take a look here and get back to me: https://www.slickcharts.com/sp500/returns
You don't need to go to a 25 year time horizon to have a very high chance of making money. By my count, the S&P only lost money in 20 out of the past 94 years. According to https://www.thebalance.com/rolling-index-returns-1973-mid-20..., there was no rolling 15 year period since 1973 where the index lost money. The index lost money in only 11 of 80 rolling 10 year periods from 1928-2008.
You don't need to go to a 25 year time horizon to have a very high chance of making money. By my count, the S&P only lost money in 20 out of the past 94 years. According to https://www.thebalance.com/rolling-index-returns-1973-mid-20..., there was no rolling 15 year period since 1973 where the index lost money. The index lost money in only 11 of 80 rolling 10 year periods from 1928-2008.
Yes, I'm aware. I picked 25 years because that's about how long it took for the market to surpass the highs just prior to the Great Depression.
My point, since you seem to keep missing it, is that "a very high chance" is not the same as "virtually assured", and "virtually assured" is not the same as "guaranteed", yet you seem to be conflating these concepts, as well as minimizing the current consequences of investing in an irresponsible company (losing your investment).
My point, since you seem to keep missing it, is that "a very high chance" is not the same as "virtually assured", and "virtually assured" is not the same as "guaranteed", yet you seem to be conflating these concepts, as well as minimizing the current consequences of investing in an irresponsible company (losing your investment).
How is losing money suffering no consequences?
(I can tell you that I worked in investment management and sat in meetings where this kind of thing was discussed...no-one thinks this, companies that do bad things lose money...end...SRI is something that the good managers always did, it is just branded so bad managers can make money. Index funds are making it easier on companies but...that is a choice people are making to separate stewardship from their portfolio management).
(I can tell you that I worked in investment management and sat in meetings where this kind of thing was discussed...no-one thinks this, companies that do bad things lose money...end...SRI is something that the good managers always did, it is just branded so bad managers can make money. Index funds are making it easier on companies but...that is a choice people are making to separate stewardship from their portfolio management).
> a shareholder in a public company indeed suffers no consequences for said company’s actions other than potential loss of their initial investment.
I didn't say "no consequences." I said the consequences were too small.
I didn't say "no consequences." I said the consequences were too small.
...compared to what...you have lost 100% of what you put in. Any other system is about wealth transfer...it is generally not advisable to attempt to transfer wealth this way, there are unintended consequences.
The consequences are too small compared to what would be needed to prevent Exxon dumping millions of barrels of oil into the ocean.
Who cares if it’s wealth transfer, anyway? If I lose my initial investment in a company, that money goes somewhere, right? Ergo, what we have is already a form of wealth transfer.
Who cares if it’s wealth transfer, anyway? If I lose my initial investment in a company, that money goes somewhere, right? Ergo, what we have is already a form of wealth transfer.
"taking risks" isn't even strong enough. "doing harm." a capitalist system is a system by and for capital, and if capital isn't held to account for harm, it will never do anything to prevent that harm (the harm is almost always inflicted on those without capital). in fact, there is incentive to do more harm if it is profitable.
> I understand why there is a human need to hold someone accountable for everything
You're right, there has to be a balance between punishment and forgiveness.
You're right, there has to be a balance between punishment and forgiveness.
I fully support this. Next time an Exxon spill leaks oil into the ocean, we should gather up our teachers and mail carriers whose pensions are invested in oil and put them in jail. That'll really show those polluters!
Sarcasm aside, this strikes me as the kind of vague solution waving that sounds great on paper and has no connection to reality.
Sarcasm aside, this strikes me as the kind of vague solution waving that sounds great on paper and has no connection to reality.
The correct implementation of this is to apply more personal liability to executives and directors making the decisions that lead to oil getting dumped in the ocean. When decision makers go to prison as a result of negligently bad decisions, they will not be as negligent as often.
Is that specific enough?
Is that specific enough?
But we already have the idea of piercing the corporate veil though. I'm not sure needing to change the structure of limited liability matters as much as formalizing and unifying that concept.
Either way, what’s needed is to increase the level of liability on those that control the actions of corporations. What you call it doesn’t matter, the effect is the same.
I don't understand the sarcasm: if teachers and mail carriers were liable when their pensions were invested in terrible things, they would demand more say in where their pensions were invested.
The police were unkind when they cuffed Ms. Wilson, and they ended her screaming and resisting by smacking her head into the classroom door.
"That'll be enough of that! This is for all those dolphins you murdered with your oil spill!"
The kindergarteners looked on in horror - they liked dolphins. They couldn't believe their teacher was a dolphin killer.
"I swear, I just chose the default fund allocation! My rep said it was the most stable set of funds for retiring at 65!" Ms. Wilson made no attempt to choke back her tears.
The officer was having none of that nonsense. "You should have been an active investor in your own future and chosen the 35/5 fund instead. I guess you'll have plenty of time to read up on retirement planning in the clink."
"That'll be enough of that! This is for all those dolphins you murdered with your oil spill!"
The kindergarteners looked on in horror - they liked dolphins. They couldn't believe their teacher was a dolphin killer.
"I swear, I just chose the default fund allocation! My rep said it was the most stable set of funds for retiring at 65!" Ms. Wilson made no attempt to choke back her tears.
The officer was having none of that nonsense. "You should have been an active investor in your own future and chosen the 35/5 fund instead. I guess you'll have plenty of time to read up on retirement planning in the clink."
I’m sure sarcasm will fix the irreparable damage corporations are doing to society and the planet.
It will do just as much good as the suggestion to hold individuals responsible for decisions they didn't make and in some cases have absolutely no control over (including the decision to invest in the company).
What if investing in a company was in fact an act that bears consequences? Would it make people invest more wisely in things that are less damaging? Would we hold corporations to a higher standard of responsibility?
A faceless corporation won't keep you warm at night, no matter how much love you profess to them.
A faceless corporation won't keep you warm at night, no matter how much love you profess to them.
When you bought your shoes - regardless of which shoes you bought - you also contributed to 3M corporation, which makes the adhesive which holds almost every modern shoe together.
When your paycheck is deposited, you used the ACH clearing houses propping up your bank's ability to make transfers.
When you applied to buy a mortgage, or for renters insurance on your apartment, you supported credit check companies like Experian.
Did you do this because you love Experian and 3M? Did you make a critical evaluation of each of their offerings, investments, subsidiaries, owners, share holders and stated outlooks? Did you factor the environmental impact of the aerosol which powers Super 77 glue when you decided to buy shoes?
Since you're a major supporter of 3M and Experian, I assume you also attend their quarterly briefings by phone. Do you feel they will continue to act in an appropriate and moral way for the foreseeable future? If not, do you intend to return your shoes and find a new dwelling?
When your paycheck is deposited, you used the ACH clearing houses propping up your bank's ability to make transfers.
When you applied to buy a mortgage, or for renters insurance on your apartment, you supported credit check companies like Experian.
Did you do this because you love Experian and 3M? Did you make a critical evaluation of each of their offerings, investments, subsidiaries, owners, share holders and stated outlooks? Did you factor the environmental impact of the aerosol which powers Super 77 glue when you decided to buy shoes?
Since you're a major supporter of 3M and Experian, I assume you also attend their quarterly briefings by phone. Do you feel they will continue to act in an appropriate and moral way for the foreseeable future? If not, do you intend to return your shoes and find a new dwelling?
Well said.
> What if investing in a company was in fact an act that bears consequences?
The investing market would shrink.
> Would it make people invest more wisely in things that are less damaging?
People are incapable of investing "wisely" enough in a company where they don't have any meaningful access to data or control over employee behavior, so I would say the answer to this is no.
> Would we hold corporations to a higher standard of responsibility?
Probably not, as holding corporations to a higher standard isn't really the job of individual, passive investors. Institutional investors might try, since they do so already, but you can see how successful that has been.
> A faceless corporation won't keep you warm at night, no matter how much love you profess to them.
I don't expect them to do so, so I'm think I'm fine here, but thanks so much for your concern.
The investing market would shrink.
> Would it make people invest more wisely in things that are less damaging?
People are incapable of investing "wisely" enough in a company where they don't have any meaningful access to data or control over employee behavior, so I would say the answer to this is no.
> Would we hold corporations to a higher standard of responsibility?
Probably not, as holding corporations to a higher standard isn't really the job of individual, passive investors. Institutional investors might try, since they do so already, but you can see how successful that has been.
> A faceless corporation won't keep you warm at night, no matter how much love you profess to them.
I don't expect them to do so, so I'm think I'm fine here, but thanks so much for your concern.
People rant and rave about government and corporations; about capitalism and socialism, but it's weird to me that people almost universally take sides. They are symbiotic, and their flaws are pretty much shared. You have any large organization and nobody has much influence over it; it mainly acts to preserve itself, and can cause all sorts of bad consequences. Criticizing government or capitalism makes it sound like there is some alternative, but it never quite comes into focus for me. Maybe it's because I can imagine going back to pre-modern times? Or, I should say, being left behind as one of the vast majority not suited to them.
The rep wouldn't consider Exxon stable if it could result in their clients being cuffed.
It’s not necessarily about Exxon, but whatever company people do end up investing in. There’s no due diligence process that can guarantee a company never does and will never start doing bad things.
1. Teachers and mail carriers are by large incapable of adequately understanding what their pensions are invested in and each risk associated with each investment.
2. Individual teachers and mail carriers have literally no control over how their pensions are invested in most cases, so why should they be liable for those decisions?
2. Individual teachers and mail carriers have literally no control over how their pensions are invested in most cases, so why should they be liable for those decisions?
If shareholders were criminally (or financially) liable for harm, the thing that would 'show those polluters' would be the way a market panic dumped their stock long before a spill occurred.
No one would want much XOM stock in their pension portfolio because they take big risks, shipping and piping toxic substances in ways that frequently cause major disasters. Their business wouldn't be completely destroyed, but they'd have an incentive to take fewer risks - They finally phased out single-hull tankers in US waters 25 years after the Valdez, if this proposed liability was present 1989 they might not have chartered that ship for fear of a shareholder exodus.
No one would want much XOM stock in their pension portfolio because they take big risks, shipping and piping toxic substances in ways that frequently cause major disasters. Their business wouldn't be completely destroyed, but they'd have an incentive to take fewer risks - They finally phased out single-hull tankers in US waters 25 years after the Valdez, if this proposed liability was present 1989 they might not have chartered that ship for fear of a shareholder exodus.
Investors don't have enough information about daily operations to make those decisions accurately. You'd just end up making it too risky to invest in anything, and our economy as a whole would suffer.
The way to ensure safety is through regulation and regulatory enforcement, not by relying on everybody's grandpa to thoroughly vet the safety practices of Exxon before reallocating his IRA.
The way to ensure safety is through regulation and regulatory enforcement, not by relying on everybody's grandpa to thoroughly vet the safety practices of Exxon before reallocating his IRA.
I'm totally OK with this if the ratio of punishment equals the ratio of the participation.
I.e. teachers go to jail for a few minutes, whereas major shareholders go to jail for a few years or decades.
I.e. teachers go to jail for a few minutes, whereas major shareholders go to jail for a few years or decades.
That doesn't really create the desired level of deterrence though. It's often the case that very large corporations don't have major shareholders, they're majority-owned by widely-held funds, i.e. teachers' retirement accounts.
The underlying problem is essentially inherent to diversified investment strategies -- nobody owns enough of anything to actually care about that corporation in particular, so then shareholders can't act as a check on corporate behavior because none of them are paying attention.
The underlying problem is essentially inherent to diversified investment strategies -- nobody owns enough of anything to actually care about that corporation in particular, so then shareholders can't act as a check on corporate behavior because none of them are paying attention.
> Markets are supposed to measure and allocate risk, yet shares in companies that pollute, peddle addictive pain killers, and build unsafe airplanes are doing just fine.
This has nothing to with limited liability shielding investors, and everything to do with the companies themselves not being adequately punished for their wrong-doing. The market is accurately measuring the risk of these activities and determining they are low risk, because their consequences are lower than their gains. If you fix that, I guarantee you that the stock prices will follow.
Now investors will still end up making some profit of off harmful behavior of companies before that behavior comes to light, and thus the market reacts to it, but I don't know that investors should be punished in that situation. It is at most negligence, but it is hard to blame them for lack of due-diligence when regulators and law enforcement, whose job it is find wrongdoing, hadn't yet discovered it either. Leave the liability on those who performed, agreed to, or at least had knowledge of the wrongdoing.
This has nothing to with limited liability shielding investors, and everything to do with the companies themselves not being adequately punished for their wrong-doing. The market is accurately measuring the risk of these activities and determining they are low risk, because their consequences are lower than their gains. If you fix that, I guarantee you that the stock prices will follow.
Now investors will still end up making some profit of off harmful behavior of companies before that behavior comes to light, and thus the market reacts to it, but I don't know that investors should be punished in that situation. It is at most negligence, but it is hard to blame them for lack of due-diligence when regulators and law enforcement, whose job it is find wrongdoing, hadn't yet discovered it either. Leave the liability on those who performed, agreed to, or at least had knowledge of the wrongdoing.
I think it has more to do with one's definition of "doing fine". Boeing lost money. They can continue as a going concern since their 150k employees have a ton of other things going on that investors expect to make money, aside from one particular flawed product.
It seems wrong to me to require punishment to scale with the size of the company, as opposed to the size of the "wrong doing". If Boeing has ten other subsidiaries doing defense contracts, satellites and whatever else, that should require them to be fined ten times more?
It seems wrong to me to require punishment to scale with the size of the company, as opposed to the size of the "wrong doing". If Boeing has ten other subsidiaries doing defense contracts, satellites and whatever else, that should require them to be fined ten times more?
I'd rather see criminal penalties for execs who commit such actions. A good example is Boeing's CEO. He's the one whose policies led to the unnecessary death of 300+. He knew what he was doing and instead of a golden parachute, should be spending life in jail or even getting the death penalty as the number of people he murdered is enormous, eclipsing most serial killers. Have real accountability and real consequences and what happened will not happen again. Instead, he gets millions and a nice retirement for murdering hundreds. He's living the American dream: making profit off other people's misery. The same can be applied to other disasters that could have been avoided if the executives weren't negligent, uncaring, greedy assholes. But let's face it. Justice like this is a fantasy that will never happen because as a society we believe corporations can do nothing wrong. Or maybe it's just Washington that makes it seem that way. The distinction is almost irrelevant since Washington is supposed to represent our people.
The lack of regulation and enforcement by government agencies and a disinterested or powerless consumer base seems to be the root cause of almost all her issues, not limited liability.
Because the repercussions of catastrophic events aren't enough to bankrupt companies like Exxon, Dow, and BP, limited liability is irrelevant in those cases.
In my opinion, a more coherent argument for her position (which I don't agree with at all to be clear) would be to find examples of companies that did go bankrupt after some negative event they caused and highlight how the limited liability of the corporation shielded bad actors from punishment they arguably deserved.
Because the repercussions of catastrophic events aren't enough to bankrupt companies like Exxon, Dow, and BP, limited liability is irrelevant in those cases.
In my opinion, a more coherent argument for her position (which I don't agree with at all to be clear) would be to find examples of companies that did go bankrupt after some negative event they caused and highlight how the limited liability of the corporation shielded bad actors from punishment they arguably deserved.
When a pharmaceutical company makes some opioids that kill people, it's my mom and her 401(k) account that should be liable? And this will reduce inequality?
Not sure I'm buying that one.
Not sure I'm buying that one.
Her 401(k) should definitely be liable, in that her investment in a company that arguably shouldn't be allowed to exist is lost.
She should not be personally liable as she had no direct part in the decision to make opioids that kill people.
She should not be personally liable as she had no direct part in the decision to make opioids that kill people.
I mean, she profited when the company sold all the opioids that caused the stock to go up, why should she be off the hook on the negative end?
She didn't realize any profit if she still holds the stock. But that technicality aside, we already do hold her liable, but only to the amount of her investment. The point of my comment is, why would increasing her liability (from the amount of her investment, to everything she owns) decrease inequality?
> we already do hold her liable, but only to the amount of her investment
That's the thing, though - we don't. Her liability is limited to effectively zero. Her investment may lose value, but that is another risk entirely. If the company in which she is invested goes bankrupt with a billion dollar debt, she isn't on the hook for a penny of it.
That's the thing, though - we don't. Her liability is limited to effectively zero. Her investment may lose value, but that is another risk entirely. If the company in which she is invested goes bankrupt with a billion dollar debt, she isn't on the hook for a penny of it.
>my mom and her 401(k) account that should be liable?
That shows one of the really big problems with 401k's, you pretty much get no say in what companies you invest in. Worse, you usually can't even get information about what companies you invest in.
That shows one of the really big problems with 401k's, you pretty much get no say in what companies you invest in. Worse, you usually can't even get information about what companies you invest in.
I've never had a 401(k) where I couldn't get a prospectus for a fund that I'm invested in. And I've had some shitty 401(k)s
We need a corporate death penalty: when a corporation has been convicted of murder out other acts, the corporation should be dissolved, the assets sold off, and the proceeds distributed to the victims families. As it stands now, the execs get their gold, the corporations get a slap in the wrist, and then it's business as usual.
A corporation's assets are typically worth more as an operating business than as a disjoint collection of vehicles and land, so the buyer would tend to be someone who wants to continue operating the business and would buy the whole thing. In many cases the value of the business would also exceed the liability, in which case the difference should presumably go to the original shareholders. They might then want to use that money to invest in the new business.
That is effectively what already happens. You're basically just asking for the amount of liability for particular behavior to be larger than it is, and then in more cases it would cause the corporation to go bankrupt and have to raise new capital in order to continue operating, because the result would be the same.
That is effectively what already happens. You're basically just asking for the amount of liability for particular behavior to be larger than it is, and then in more cases it would cause the corporation to go bankrupt and have to raise new capital in order to continue operating, because the result would be the same.
> We need a corporate death penalty: when a corporation has been convicted of murder out other acts, the corporation should be dissolved, the assets sold off, and the proceeds distributed to the victims families.
That's what is supposed to happen through the legal process, but isn't currently as you pointed out.
We don't need new processes, we just need to use the ones we have as they should be.
That's what is supposed to happen through the legal process, but isn't currently as you pointed out.
We don't need new processes, we just need to use the ones we have as they should be.
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It occurs to me I should consider the following.
The author is a lawyer arguing to expand the field of defendants in a lawsuit. Most of those defendants would be likely to settle rather than be dragged into court. Who would be the beneficiary in that scenario?
(I am not a lawyer.)
The author is a lawyer arguing to expand the field of defendants in a lawsuit. Most of those defendants would be likely to settle rather than be dragged into court. Who would be the beneficiary in that scenario?
(I am not a lawyer.)
If companies are persons. Should we arrest them? Tax them like individuals?
Corporations are taxed like individuals. The individual tax is the tax borne by the entirety of shareholders of the corporation as individuals. Corporations are then taxed again. They are doubly taxed entities unlike a passthrough LLC or sole proprietorship
or subject them to the death penalty in the case of gross crimes against humanity?
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Limited legal liability is not the essential aspect of incorporation, legal personhood is. The ability to sue and be sued as its own entity is the one unique aspect of the corporation that distinguishes it from what came before.
Limited liability, on the other hand, is commonly used in contract law. The entire insurance industry is based on this idea. It even has a respectable, legalese name: indemnity.
In a world of shareholders having unlimited liability, shareholders would buy insurance against any loss beyond the cost bases of their investments, or they'd require the corporate entity - again, still a legal person - to indemnify them for any losses beyond the investment, or maybe the clever lawyers - including the professor's own students - would use indemnity to make even more innovative agreements and tools.
By creating out of whole cloth a market for insurance that heretofore has not existed, we'd probably see even more of a culture of haves vs have nots in the investment world. Those with more money and prestige would be able to buy better protection; ordinary people would be less well-protected.
In the end, we'd have a less equal system, more uncertainty and no change in the behavior of corporations with respect to liabilities of their shareholders.