Friday, November 13, 2009



On November 28, 2008, the Wal-Mart in Valley Stream, N.Y. braced itself for "Black Friday," the notorious shopping frenzy the day after Thanksgiving. It hired temporary employees to work longer hours. It also planned to open earlier and close later. Still, that was not enough to placate a mob of predawn shoppers who assembled at the front door long before the slated 5 AM opening time. These shoppers did not want to wait until 5 AM, so they smashed down the door and stampeded through the entrance. In the process, they trampled a temporary employee to death.

I presume they went straight to the discount aisles and did not even notice what they did.

I read about this story in the New York Daily News. See N.Y. Daily News, Wal-Mart set for shopper frenzy, Nov. 12, 2009 at p. 6. The News reported that Wal-Mart faced prosecution for its "wanton and willful disregard" for its employees' safety. Rather than face crippling fines, however, Wal-Mart struck a deal with prosecutors. It promised to implement better "crowd control measures" this year than it did last year.

This story interested me for two reasons. First, it confirmed to me how truly violent people can be when engaging in commerce. Second, it reminded me that the criminal law does things beyond merely punishing human bodies and individual bank accounts.

I felt genuine horror when I reflected on these rabid shoppers. Why does commerce lead people to behave like this? I have written that commercial language is "warlike:" the words "bargain," "purchase" and "haggle" all derive from violent etymological roots. But language alone does not explain why people smash down doors and crush hapless employees underfoot on their way to bargain bins. Something else is at work here. While language may reveal commerce as a warlike enterprise, the activity itself lends itself to contentiousness, strife, cruelty, selfishness and violence.

What was so important to these shoppers? Why was it so important to buy a few Holiday trinkets before the other guy? What emotions did they feel as they battered down the door and heard the employee struggling to escape from under their feet? Put simply, what did commerce do to these people? When they woke up that morning, they were law-abiding middle class drones. But by 5 AM they had transformed into a stampeding horde indifferent to life and death.

Human beings are acquisitive creatures. They like laying their hands on as many objects as possible and calling them "mine." Capitalist apologists even say that this "impulse to own" gives us the greatest economy the world has ever seen. They say it is pointless to deny it, and that communist countries fell because they tried to meddle with humankind's natural propensity to "competitively strive for ownership."

Property law also taps into this maniacal human urge. It proceeds on the reasoning that people will only work hard in society if they know their toils will translate into more "stuff" to call "mine." John Locke called this "The Labour Theory."

Maybe human acquisitiveness does give us the greatest economy in the world. Maybe it does lead people to work harder. Maybe it leads to innovation and greater good for all. But boiled down to its core, it is pretty damn ugly. It leads to scenes like the scene at Wal-Mart last year. I am not saying that human acquisitiveness does not bring direct benefits to society. I am merely saying that there is nothing noble or even attractive about it. The idea that people are prepared to smash down doors and trample others for a few Holiday savings is proof enough that commerce brings out some pretty horrible impulses in our human fellows.

On the second question, I found it interesting that no one went to jail for this outrage. After all, who was really liable? Everyone pointed the finger at Wal-Mart. But Wal-Mart is not a living human being; it is a noncorporeal corporation, a fanciful "legal person" with intangible rights and responsibilities. In the popular understanding, criminal law inflicts pain on "bad people" as "social revenge" for some dastardly choice they made. But how do you inflict pain on a non-human--even non-biological--entity? Corporations cannot be imprisoned, or tortured, or executed. They cannot even feel scared or anxious. Only living things can feel emotions.

So why did the prosecutor pursue Wal-Mart for the stampede? What could the criminal law do to inflict pain on a corporation? Interestingly enough, the criminal law has other, more subtle powers than merely inflicting bodily pain on humans. It can also target property, and corporations really like property. Corporations are private profit-making machines; they exist solely to enrich the people who own shares in the entity. To make profits--and to fulfill their raison d'etre--corporations need to earn more income than they lose in liabilities. The criminal law can impose fines on a corporation. Fines are "liabilities." If a fine is large enough, it could gravely impact the "income/liability" ratio and lead (gasp) to a quarterly loss.

In this case, Wal-Mart's management obviously did not want to suffer a loss. After all, corporate managers lose their jobs--and fat Christmas bonuses--if they report losses. They knew that a criminal fine would lead to a loss, so they bargained with the prosecutor to avoid that fate. The prosecutor took the opportunity to wring some public good from Wal-Mart's private misdeeds, so he insisted that Wal-Mart "implement greater safety controls next time." Thus, by threatening the corporation's monetary lifeblood, the prosecutor extracted a public benefit from Wal-Mart's transgression.

In this example, we see how the criminal law does more than merely punish individual bodies to vent social revenge. Rather, it can threaten corporations, too. In so doing, it can force corporations to take action that leads to greater safety and accountability. That is a public benefit. And because the criminal law is a public function, we should be glad that it has the power to achieve goals like this.

If we can't hang corporations or throw them in prison, we can at least force them to "do better" by threatening their precious "income/liability" ratios. Such public actions may not be as emotionally satisfying as electrocuting a half-insane child killer or lethally injecting a dubious home invader who had a court-appointed lawyer, but at least it's something.

Human beings respond to threats. So do "noncorporeal" entities like corporations. Humans adjust their behavior if they believe the criminal law will hurt their bodies or take away their money. Corporations will adjust their behavior if they believe the criminal law will impact their bottom lines and cause quarterly losses.

Everyone fears pain. Corporations fear fiscal pain. So that's the pain the criminal law threatens to inflict on them.

I say: "Whatever works."

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