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Interesting but badly flawed
on 17 December 2008
This is a well written work but very shallow in scope and analysis. Joel Bakan does identify part of a real problem but offers the unoriginal and tired solution that more regulation is necessary. He entirely misses the point that so-called deregulation of corporations and so-called privatization has been largely illusory and highly deceptive. Those words have been used to cloak a vast shell game where regulation and oversight have been used in a cosy government-corporate tango to favour the big political, corporate, and financial muscle. In other words, you cannot separate the oligarchical interests of big politicians and big bankers and big corporations. A single word describes it: CORRUPTION, albeit often subtle.
No amount of extra regulation helps. In fact, quite the reverse. The more regulation, the more corruption flourishes. Big corporations cope easily with regulation and corruption. It is the small family business and the consumer that suffers most.
Bakan gives a passing nod to these problems but weakly responds that at least the ordinary person has an occasional democratic vote at the ballot box.
It is painfully obvious that democracy (in the sense of governance truly representing the bulk of the population) has failed in the West. The citizen is ignored, even on major issues. (Iraq war? Banker Scam?) A few weeks before election time a left-right glove puppet charade is conducted where big corporate funded wealthy identi-candidates are sold via the corporate media, while real candidates who might effect real change are censored, sidelined, and denigrated.
Bakan makes passing mention of a much better way the citizen can vote - with their pocket books and with boycott. But he denigrates it by saying no one can be expected to vote against their self-interest. Huh? Is voting for a generally corrupt politician who 'might' do some good for you on one out of a thousand issues, and who 'might' stand up to the financial blandishments offered by Big Business, a better bet than refusing to buy the products of a rogue corporation.
Bakan makes no mention of the real solution--Common Law (CL). Perversely, the very laws and regulations that he is proposing have been steadily diminishing this option. He of all people, a Professor of Law, should know that. For instance, Bakan gives an example of a man whose white shirt is soiled by fallout from a polluting smoke stack. He says we need regulation to stop that kind of damage to the interests of society and individuals. Well, sir, we've had the remedy for centuries. The principles are well established and the remedy is simple. Why neglect CL? One reason might be because corporations and lawyers--and Law Professors--love confusion and the importance it gives the practitioners of regulatory law. They can hide behind thickets of legislation. They profit, the costs are passed on to poor taxpayer and consumer.
Governments everywhere are turning to statute law and regulation to undermine Common Law precisely to protect corporations. It also makes legislators look important and appear to be 'doing something'. The American, British, and Australian governments have all recently passed, or are proposing to pass, laws protecting Big Pharma from claims of negligence and liability from any damage caused by drugs - even if the companies know of them in advance and fail to warn victims. Similar non-liability laws are increasingly applied to protect Corporates. It is a self -fulfilling cycle: The more government interferes, the more the market is destabilized and so the more excuse to interfere. Mr. Bakan wants to give more regulatory powers to these sorts of regimes?
Finally, Mr. Bakan repeatedly stresses the evil pathology of corporations. True, consequences of corporate actions can be evil. Regulation and government protections enhance this pathology. Robust application of CL would diminish it.
He strongly criticizes Risk/Benefit analysis and uses a particularly harrowing example to make his point, implying that there is no place for Risk/Benefit analysis where there might be any possibility of harm to the public. Well, sorry, but we can do nothing in this life without accepting an element of risk and knowing that some of that risk is going to come home somewhere at sometime. In the British Government Health Service Risk or Cost Benefit Analysis costs the lives of patients every single day. It is a hard fact that you cannot spend millions of pounds to extend the life of one patient for a few weeks - or even a few years. The vehicle crash case Joel Bakan examines could not be excused, but--once again--application of rights under Common Law pulled the company back into line, whereas relying solely on Government regulation would likely have failed, and possibly have facilitated a cover-up.
I have long puzzled how to deal with the corporate failings that this book highlights. I did not find any answers here. In describing the Big Corporation Mr. Bakan might just as well have been describing it's pathological crony-on-steroids, Big Government, whom he believes should be given more power. The diagnosis is flawed and the course of treatment proposed would make matters worse--much worse.
Still, it is worth reading.