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Just getting back to this.

First, I want to note that I really respect your environmental concern and passion on this issue. Very admirable.

That said, a good bit of what you're saying here doesn't add up for me in terms of practical application. Maybe you can fill in some of the gaps.

On 9/7/2021 at 5:41 PM, Armacing said:

See, that's where you go wrong.  As a plaintiff in a free market, I don't have to wait to get cancer and prove your chemicals caused it.  All I have to do is prove you put chemicals into my section of the river (because - remember - in a free market environment the property line extends out into the river) without my permission. 

Based on your parenthetical there, it seems like you're aware that under current law that nobody actually owns the river - people who own property adjacent to rivers just own the banks but not the water itself, which is why it's illegal to damn them up or divert all the water thereby preventing the water from reaching the property owners downstream. 

If I understand what you're proposing correctly, and if property owners property lines extend into the river itself, what keeps the property owner or owners at the source of the river from building a lake and depriving all the downstream property owners of their water rights? 

On 9/7/2021 at 5:41 PM, Armacing said:

That means if I detect chemicals in my section of the river and they came from you, then you owe me damages because you polluted my water. 

What are the damages for polluting water? Is it a sliding scale, meaning more pollution equals more damages? Are some forms of pollution worse than others? Do you expect the government to define these damages through legislation or do you envision just tossing these questions to juries on a case by case basis? 

On 9/7/2021 at 5:41 PM, Armacing said:

In a free market we are talking about the right of all injured parties to seek damages for any pollution that is conveyed onto their property via any means (air, surface water, ground water, contaminated wildlife, electromagnetic radiation, etc.) and without any safe harbor regulation for the company to hide behind.  

When you bring things like air and electromagnetic radiation into the mix, it seems like your plan here becomes a lot more problematic.

You still have the damages issues. For example, can I sue radio broadcasters for the radio waves that pass through my property? Who defines how much that cause of action is worth and what is that definition based on? Can I get an injunction to prevent the radio waves from passing through in the first place? 

Air is even trickier. So you take a sample of the air on your property and find it's loaded with C02 (or any other "pollutant" for that matter). How do you prove that C02 came from a specific entity, or do you literally have a cause of action against any person and any company on earth given that we all emit C02? For example, (beyond CO2) if you find traces of cigarette smoke in the air on your property, can you sue every smoker in the city, the county, or the state? 

On 9/7/2021 at 5:41 PM, Armacing said:

I would be curious to know why you think any shareholder should be shielded from liability in any instance because the choice to invest is completely voluntary.  It's not like they don't know what they're getting into when they buy the shares.

I think you overestimate the amount of information available to passive shareholders - in my experience, they often if not usually don't know what they're getting into when they buy the shares. If they're investing through a brokerage account or in a mutual fund or index, etc. (which is like half of US households) then they most likely don't even know which companies they own stock in on a given day. But even for passive investors who are actively picking companies, I still think it's a bad idea to impose liability because those investors don't have access to detailed information on the company's operating practices. For larger companies, most of the company's own employees don't have access to enough information to see all the potential avenues for legal liability that the company may be exposed to at any given moment, and they certainly don't have much opportunity to influence those operations beyond the scope of their own employment. Why would we expect passive investors to be in a better position to 'know what they're getting into' than the company's own employees? 

Further, do you envision passive shareholder liability to be joint and several? Do you think it should be proportional to ownership share? Case in point, if I own stock in McDonald's and somebody decides to sue me because they get badly burned by McDonald's excessively hot coffee, am I liable for the entire extent of the damages or do I only owe the value of my stock divided by the entire McDonald's market capitalization?

These principles apply beyond stock bought through exchanges, too. If for example, I give my brother $5k to help him start an ice cream truck business in exchange for some equity, do you think I should be on the hook for damages if he accidentally runs a school bus off the road and is sued for millions? Seems to me like that kind of system would prevent just about anyone from investing in any business. This would be especially devastating for businesses with only moderate ROI expectations. For example, I might be able to justify this kind of risk exposure on a 5k investment if it was a tech startup that had the potential to earn millions, but the risk/reward calculation will never come out in favor of investment under these conditions for smaller ROI ventures like restaurants, anything brick and mortar, services like plumbing/electricians/contrators, or just about any small general proprietorship and partnership operation, which would be the only kind of corporate structure left once all liability-limiting vehicles have been eliminated per your design. Seems to me that would put a swift end to the vast majority of investment and new businesses across the board (which may or may not be your goal here, I'm not entirely clear).

In any case, thanks again for the full-throated environmental defense. I'm curious to see how you resolve some of the uncertainties (or confusions on my part) I've pointed out, but thanks for the thought exercise either way.

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9 hours ago, ruraljuror said:

If I understand what you're proposing correctly, and if property owners property lines extend into the river itself, what keeps the property owner or owners at the source of the river from building a lake and depriving all the downstream property owners of their water rights? 

It works like this:  You buy land and your property line extends to the middle of the river where it meets another property owner.  That means you own river-front land and all of the benefits that come with it, namely:  flowing water along one side of your property.  As an owner of river-front property you have the ability to enjoy that water:  swim it it, draw from it for agriculture, fish in it, etc.  But the person downstream has the same rights, so anything you do that prevents them from enjoying their use of the river causes a dispute to arise.  That dispute will be settled in court on a case-by-case basis.  Over time accepted usage practices will be identified and adherence to these "commonly accepted practices" will become pre-conditions for insurance policies to remain in effect.  As a consequence, a person who engages in activities related to the river that are outside of practices allowed by their insurance policy will open themselves up to liabilities not covered by personal liability insurance.  Given that pollution (or diversion) affects all parties downstream, you might say that one wrong move would open the proverbial floodgates of litigation.

9 hours ago, ruraljuror said:

What are the damages for polluting water? Is it a sliding scale, meaning more pollution equals more damages? Are some forms of pollution worse than others? Do you expect the government to define these damages through legislation or do you envision just tossing these questions to juries on a case by case basis? 

If someone just tows a bunch of junk cars onto your land and leaves them there, then a dispute has arisen as a result of the transgressor's actions.  What are the damages owed by the person who has done this?  Probably the cost to remove the offending (unwanted) materials from your property and compensation for any time when the property owner could not enjoy the desired usage of their own land.   Same principle applies to all manner of unwanted materials conveyed onto another person's property, including liquid waste via the river.  Juries will decide the monetary value of any compensation and what the corrective actions should be.

9 hours ago, ruraljuror said:

When you bring things like air and electromagnetic radiation into the mix, it seems like your plan here becomes a lot more problematic.

I think it only stands to reason that if someone can't pollute the river with liquid waste if I'm downstream, they likewise cannot pollute my air if I'm downwind, nor can they irradiate me with impunity.

9 hours ago, ruraljuror said:

You still have the damages issues. For example, can I sue radio broadcasters for the radio waves that pass through my property? Who defines how much that cause of action is worth and what is that definition based on? Can I get an injunction to prevent the radio waves from passing through in the first place? 

All good questions for a jury, but I don't think anyone should be limited from bringing legal action against someone who is broadcasting EM radiation onto their property without permission.   What about all those crazy tinfoil hat people who think the radio waves are controlling their minds?  Shouldn't they have their day in court?   The law doesn't guarantee the success of any single business model or new technology, only that life, liberty, and private property will be protected.  All non-violent disputes arising with the free society will either be solved via mutual agreement of the parties involved or a trial.

 

9 hours ago, ruraljuror said:

Air is even trickier. So you take a sample of the air on your property and find it's loaded with C02 (or any other "pollutant" for that matter). How do you prove that C02 came from a specific entity, or do you literally have a cause of action against any person and any company on earth given that we all emit C02? For example, (beyond CO2) if you find traces of cigarette smoke in the air on your property, can you sue every smoker in the city, the county, or the state? 

Well, first of all, CO2 is not a pollutant:  It's a natural constituent of the Earth's atmosphere and every animal exhales CO2.  Now talking about real pollutants like cigarette smoke:  I say if you are getting blasted with cigarette smoke on your property you should be able to bring legal action against the offending party.  The jury will have to decide how egregious the transgression is on a case-by-case basis and determine compensation accordingly.

9 hours ago, ruraljuror said:

I think you overestimate the amount of information available to passive shareholders - in my experience, they often if not usually don't know what they're getting into when they buy the shares. If they're investing through a brokerage account or in a mutual fund or index, etc. (which is like half of US households) then they most likely don't even know which companies they own stock in on a given day.

You're making my point for me here.  The very fact that they don't know what they're investing in is a symptom of the problem - it's caused by limited liability.  They don't know because they don't have to know, because not knowing now doesn't carry any risk.  Once limited liability is gone and people start losing their house for being shareholders in a high-risk company, you better believe they will know.  Mutual funds might become a thing of the past like lead pipes or asbestos.

9 hours ago, ruraljuror said:

But even for passive investors who are actively picking companies, I still think it's a bad idea to impose liability because those investors don't have access to detailed information on the company's operating practices. For larger companies, most of the company's own employees don't have access to enough information to see all the potential avenues for legal liability that the company may be exposed to at any given moment, and they certainly don't have much opportunity to influence those operations beyond the scope of their own employment. Why would we expect passive investors to be in a better position to 'know what they're getting into' than the company's own employees? 

Once again, you're describing the current situation where a legal and shareholder framework for communicating vital information to shareholders does not yet exist.  In a world without limited liability it could be as simple as new disclosures in the financial statements with facts-on-the-ground verified by the auditors.  Or it could be an entirely new structure of share ownership that would sound foreign to us today (in the current environment of limited liability), but which would satisfy the risk/reward profile of free market investors.  So you're wrong about it being a bad idea.  It's a great idea for every shareholder to be an activist shareholder who is actively watching the actions of management, or perhaps has their proxies watching management.  Maybe the mutual fund morphs into a shareholder assurance/insurance entity ... who knows?  All manner of innovations are possible in the free market.

9 hours ago, ruraljuror said:

Further, do you envision passive shareholder liability to be joint and several? Do you think it should be proportional to ownership share? Case in point, if I own stock in McDonald's and somebody decides to sue me because they get badly burned by McDonald's excessively hot coffee, am I liable for the entire extent of the damages or do I only owe the value of my stock divided by the entire McDonald's market capitalization?

I think they would have to be jointly and severally liable because not all shareholders will have the same net worth, and the plaintiff(s) will have the right to receive compensation up to the full assets and income of all shareholders.  If they were only jointly liable that might provide shelter for all shareholders who have more assets than the poorest shareholder - which wouldn't work too well.  Plus, jointly & severally is a harsher liability for the shareholder, so the stakes are higher for them, thus the stakes are higher for management.   In an environment like that, I think you would be hard pressed to find an investor who doesn't know what they are getting into... and I bet shareholder agreements that outline all relevant liabilities, responsibilities,  insurance covenants, and limited shareholder indemnification would become the norm.

9 hours ago, ruraljuror said:

These principles apply beyond stock bought through exchanges, too. If for example, I give my brother $5k to help him start an ice cream truck business in exchange for some equity, do you think I should be on the hook for damages if he accidentally runs a school bus off the road and is sued for millions? Seems to me like that kind of system would prevent just about anyone from investing in any business.

Yes, you would absolutely be liable as part-owner, although this example doesn't really involve shares... or any presumption of limited liability really... I mean, you are part owner with your brother in an ice cream truck and you don't have liability insurance?  Like - what did you think was going to happen the first time he runs into somebody?  I think the key point you are missing is insurance and how the cost of insurance serves as a disincentive for people to engage in risky activities or risky investments.  I think it would be more accurate to say that investing in an *uninsurable* business would be a hard sell to all but the most desperate investors.

9 hours ago, ruraljuror said:

This would be especially devastating for businesses with only moderate ROI expectations. For example, I might be able to justify this kind of risk exposure on a 5k investment if it was a tech startup that had the potential to earn millions, but the risk/reward calculation will never come out in favor of investment under these conditions for smaller ROI ventures like restaurants, anything brick and mortar, services like plumbing/electricians/contrators, or just about any small general proprietorship and partnership operation

But there's no limited liability for sole proprietors or general partners today - yet those entities exist by the thousands.  You even brought up the concept of piercing the corporate veil, which can happen with LLC's and closely held corporations - yet those entities exist by the thousands today.  And you can rest assured that hardly any of them have the risk/reward profile of a tech start up.  So how come they exist today if according to your argument above the very idea should be unappealing to investors?  The answer is insurance.  Conversely; I bet there a multitude of examples where small-time investors thought about investing in something, looked into the risks, checked with the insurance company, and decided not to invest.  Happens every day, and that's part of what makes the free market so awesome.

9 hours ago, ruraljuror said:

which would be the only kind of corporate structure left once all liability-limiting vehicles have been eliminated per your design.

My design doesn't necessarily imagine the elimination of corporations, only that the shareholders are personally liable.  I leave it up to investors and companies to decide what ownership structure meets their mutual needs.  It's just that without limited liability, they will need to pay special attention to high-risk activities that could result in class action suits with a large number of plaintiffs.

9 hours ago, ruraljuror said:

 but thanks for the thought exercise either way.

Always happy to oblige, and thanks to you for bringing up objections/problems for me to answer.

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On 9/13/2021 at 4:54 PM, Armacing said:

It works like this:  You buy land and your property line extends to the middle of the river where it meets another property owner.  That means you own river-front land and all of the benefits that come with it, namely:  flowing water along one side of your property.  As an owner of river-front property you have the ability to enjoy that water:  swim it it, draw from it for agriculture, fish in it, etc.  But the person downstream has the same rights, so anything you do that prevents them from enjoying their use of the river causes a dispute to arise.  That dispute will be settled in court on a case-by-case basis.  Over time accepted usage practices will be identified and adherence to these "commonly accepted practices" will become pre-conditions for insurance policies to remain in effect.  As a consequence, a person who engages in activities related to the river that are outside of practices allowed by their insurance policy will open themselves up to liabilities not covered by personal liability insurance.  Given that pollution (or diversion) affects all parties downstream, you might say that one wrong move would open the proverbial floodgates of litigation.

What you've described sounds pretty much exactly how common civil law has developed, except you're choosing to codify norms and promote consistency/predictability via insurance policy terms instead of through legislation. I'm not sure what exactly that accomplishes besides introducing a new middle man into the mix who can sell a bunch of new insurance policies. Can you give an example that shows a situation in which current law would lead to a worse/unjust result, while the system you describe would lead to a better, more just outcome?

On 9/13/2021 at 4:54 PM, Armacing said:

All good questions for a jury, but I don't think anyone should be limited from bringing legal action against someone who is broadcasting EM radiation onto their property without permission.   What about all those crazy tinfoil hat people who think the radio waves are controlling their minds?  Shouldn't they have their day in court?   The law doesn't guarantee the success of any single business model or new technology, only that life, liberty, and private property will be protected.  All non-violent disputes arising with the free society will either be solved via mutual agreement of the parties involved or a trial.

Those crazy tin foil hat people are currently free to file any and all the lawsuits they please, but I think it's very important that those lawsuits meet certain minimal criteria in order for the case to proceed past the filing in order to prevent abuse of the court system. Currently, for a lawsuit to proceed past the initial filing, the plaintiff is going to have to show that there is a legitimate cause of action that the court has power to address and that there has been verifiable harm that resulted from the cause of action. Without those minimal criteria, the court system could turn into a circus pretty easily and shift all the power to those with enough money to fight a legal war of attrition.

Let's take your example of suing over electromagnetic radiation to it's logical extremes: Let's say I get really into astronomy and decide that I don't want any light from my neighbors' houses entering my property. Unfortunately, those neighbors don't comply with my requests, so I take them to court.

Under the current system, my neighbor's attorney might point to a local light pollution ordinance, then show that I've failed to allege the emittance of light exceeding that threshold, at which point my case will be dismissed. If there's no such local ordinance, then my neighbor's attorney might show previous cases in which judges ruled that any property-line-crossing light that results from a property owner's right to reasonably light their own property does not constitute a redressable harm acknowledged by the court system. One way or another, the case is getting quickly quashed, and should I choose to continue filing similar suits despite having each action tossed, my attorneys are likely to face some form of retribution that would put an end to my nuisance lawsuits for good.

Under your system, are you proposing to allow the case to go all the way to a jury? If it does go to a jury and even if I lose, is there anything that prevents me from filing suits against all my neighbors the next night and repeating the process over and over again until my neighbors relent and give in or until I happen to find a jury of 12 sympathetic stargazers and/or lightphobics? 

On 9/13/2021 at 4:54 PM, Armacing said:

Well, first of all, CO2 is not a pollutant:  It's a natural constituent of the Earth's atmosphere and every animal exhales CO2. 

I put CO2 in quotes to avoid that pushback, but alas.

To counter your points, I'll note that water isn't poison, for example, but if you drink too much of it you will die. Similarly, water is a natural constituent of our air/land, but excess quantities in the form of hurricanes and floods can certainly have devastating impacts on the habitability of a given place.

More importantly, it was my understanding that you were promoting what you believe to be a system that is better suited to environmental protection than the current system, but if your system doesn't or can't identify excess CO2  as an environmental problem, then that's kind of a non-starter from my perspective in terms of being an improvement.

On 9/13/2021 at 4:54 PM, Armacing said:

You're making my point for me here.  The very fact that they don't know what they're investing in is a symptom of the problem - it's caused by limited liability.  They don't know because they don't have to know, because not knowing now doesn't carry any risk.  Once limited liability is gone and people start losing their house for being shareholders in a high-risk company, you better believe they will know.  Mutual funds might become a thing of the past like lead pipes or asbestos.

I'm open to the possibility that the world might be a better place if limited liability as a means of shielding investors had never been conceived, and if mutual funds had never existed, etc. I have not idea what that world would truly look like and what unintended benefits and detriments would accompany it. 

But why do you think it's a good thing that somebody might lose their house for being a shareholder in a high risk company. To be clear, I understand that you believe this to be the best way of providing oversight to insure the companies that one is invested in is not exposing itself to "too much" liability. But what is "too much"? Do you also think it would be a good thing that somebody might lose their house for being a shareholder in a low risk company? What about somebody who loses their house by being a shareholder in a it-seemed-like-a-no-risk company? In your system, it seems clear that those outcomes would be inevitable too, but there is no moral hazard example to be made out of these latter two lower-risk investors. Are they then just collateral damage whose only effect on the market will be to serve as a cautionary tale and stifle investment? What is gained to justify these losses?

On 9/13/2021 at 4:54 PM, Armacing said:

Once again, you're describing the current situation where a legal and shareholder framework for communicating vital information to shareholders does not yet exist.  In a world without limited liability it could be as simple as new disclosures in the financial statements with facts-on-the-ground verified by the auditors.  Or it could be an entirely new structure of share ownership that would sound foreign to us today (in the current environment of limited liability), but which would satisfy the risk/reward profile of free market investors.  So you're wrong about it being a bad idea.  It's a great idea for every shareholder to be an activist shareholder who is actively watching the actions of management, or perhaps has their proxies watching management.  Maybe the mutual fund morphs into a shareholder assurance/insurance entity ... who knows?  All manner of innovations are possible in the free market.

It gets a bit trickier to discuss this stuff when we have to include some kind of communication framework that doesn't yet exist in order to make the equation add up, but I am curious about the first possibility you mentioned and what you are imagining will compel companies to adopt new disclosure and auditing processes? Also, who do you envision paying for and conducting the audits? 

I do like the idea of and can see benefits to every shareholder being an activist shareholder, but I also think it is a much better theoretical concept than a practical one. There are between 3 and 0 people at any given company that know literally everything that's going on at the company where they work day in and day out, so there's no amount of communication that will enable shareholders to have a complete understanding of their daily risk exposure. Further, this whole framework could put an end to actual activist investing, since would-be-activist investors would have to expose themselves to the very risk they seek to eliminate in order to attempt spur reform from within the company.

On 9/13/2021 at 4:54 PM, Armacing said:

I think they would have to be jointly and severally liable because not all shareholders will have the same net worth, and the plaintiff(s) will have the right to receive compensation up to the full assets and income of all shareholders.  If they were only jointly liable that might provide shelter for all shareholders who have more assets than the poorest shareholder - which wouldn't work too well.  Plus, jointly & severally is a harsher liability for the shareholder, so the stakes are higher for them, thus the stakes are higher for management.   In an environment like that, I think you would be hard pressed to find an investor who doesn't know what they are getting into... and I bet shareholder agreements that outline all relevant liabilities, responsibilities,  insurance covenants, and limited shareholder indemnification would become the norm.

It just seems to me like there's a major flaw in the whole idea that investors will 'know what they're getting into' if their houses are on the line. Even if I'm a cybersecurity expert myself, there's no amount of information that I will be able to attain about Bank of America's cybersecurity set up that can help me make a meaningful determination of their risk exposure to getting their mainframe hacked. So if I own one share of Bank of America stock, what sense does it make me conceivably on the hook for a multimillion dollar breach of customer data, even if only in theory? Even if I'm well versed in actuarial science, current Iowa tort law and local social strife, it seems unlikely that I'll be able to identify the racist pattern with which one of the State Farm reps in the downtown Cedar Rapids branch is denying claims and thereby exposing the company to untold punitive damages, so what sense does it make that I could potentially be held liable? No amount of communication can bridge those gaps or eliminate those risks, so why punish passive investors who were in the worst position of all parties involved to identify and minimize those risks. 

On 9/13/2021 at 4:54 PM, Armacing said:

Yes, you would absolutely be liable as part-owner, although this example doesn't really involve shares... or any presumption of limited liability really... I mean, you are part owner with your brother in an ice cream truck and you don't have liability insurance?  Like - what did you think was going to happen the first time he runs into somebody?  I think the key point you are missing is insurance and how the cost of insurance serves as a disincentive for people to engage in risky activities or risky investments.  I think it would be more accurate to say that investing in an *uninsurable* business would be a hard sell to all but the most desperate investors.

I think by focusing on business structure and insurance, you may have missed my point, which was that even a very low risk investment (like 5k for something trivial like an ice cream truck) could potentially lead to negative outcomes that are grossly disproportionate to the potential reward.  Without limited liability, I would never invest in a venture like this because it doesn't matter how responsible my brother is - it's always possible that he commits some act of negligence that negates the liability policy and could leave me on the hook for thousands of times more money than the investment could have ever earned. The risk could never be justified and money for these kinds of investments would all but dry up entirely.

On 9/13/2021 at 4:54 PM, Armacing said:

But there's no limited liability for sole proprietors or general partners today - yet those entities exist by the thousands.  You even brought up the concept of piercing the corporate veil, which can happen with LLC's and closely held corporations - yet those entities exist by the thousands today.  And you can rest assured that hardly any of them have the risk/reward profile of a tech start up.  So how come they exist today if according to your argument above the very idea should be unappealing to investors?  The answer is insurance.  Conversely; I bet there a multitude of examples where small-time investors thought about investing in something, looked into the risks, checked with the insurance company, and decided not to invest.  Happens every day, and that's part of what makes the free market so awesome.

This might be a good time for a fact check, but I would guess that most sole proprietors and general partnerships don't have much outside investment. More importantly, the risk/reward ratio is what makes these kinds of vehicles so popular for small businesses and family operations given the potential tax savings they provide and the relatively small amount of assets they own that could potentially be at risk in the first place (especially since many jurisdiction protect homes from bankruptcy). Also, the relatively small scope of operation for most sole proprietors and general partnerships makes it much easier to insure against liabilities that are likely to be encountered in the scope of business, but one of the main factors at play here is that these kinds of businesses are typically owner/operated, so these kind of operators can tolerate these risks because they're the ones in the best position to minimize it as well as to be held accountable if and when they fall short and to benefit directly from the reward when they don't. Resting liability on the shoulders of those in the best position to minimize it is goal.

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On 8/29/2021 at 4:37 PM, Armacing said:

but they consistently fail to call out China's disproportional share of global emissions.  Why??

Because we in the West can't do anything about it other than encourage them to change their ways. Those of us who support low carbon electricity generation have a hard enough fight here at home moving us away from fossil fuels - so we focus on what we can influence, and shy away from what we cannot. Clean up our own house first etc...

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