On Chief Executive Officers

The corporate person is a legal fiction that requires an actual human being to direct its actions. Recent events have shown how serious that responsibility can be in armed society.

Dear Friends,

For five years of my career, I served as a Deputy State Public Defender in Colorado. During that service, I represented a client who was prosecuted for First Degree Murder, a charge that carries a mandatory life sentence without possibility of parole upon conviction. My client shot another man in the head from close range while intoxicated. Not a great set of facts.

After over a week of trial, the jury returned a verdict of “Not Guilty,” and my client was set free instead of going to prison for the rest of his life. A copy of that verdict form is framed on my office wall.

A jury of my client’s peers was shown evidence that my client killed another person. And they found, after reviewing all the evidence, that that killing was justified.

Americans are guaranteed a trial by jury in the constitution as a bulwark against tyranny. When a crime is determined to be justified by a jury of your peers, you are acquitted, even though the goverment wanted you convicted. In order to imprison you, the government has to convince a unanimous jury of your neighbors that you should be convicted.

In recent years, there have been a few other high profile acquittals of men who were clearly responsible for the death of another human being. Kyle Rittenhouse was acquitted of murder. Daniel Penny was acquitted of murder.

After the acquittal of my client, there was nobody coming out to praise my client for killing another person. Nobody gave him paid speaking engagements around the country or invited him to the Army-Navy football game. He went on to a more sober and quiet life away from the place he lived when he killed another man.

Two homicides, two different reactions

Glorifying violence has unpredictable consequences.

Recently, the CEO of United HealthCare was killed by another man with a gun on a sidewalk in New York. The reaction of many members of the public to that killing was similar to the reaction that supporters of Rittenhouse and Penny had: that the killer was protecting the rest of society from someone dangerous.

The limited liability corporation is a legal fiction that allows larges groups of people to combine capital to do something big without being personally liable for losses in the case of a massive failure. There’s a lot of legal history to learn about why such a legal fiction is beneficial to a society that you can read, but the reality is that anything big in society is done by a corporation if it isn’t done by a government.

Corporations and governments being legal entities that aren’t natural persons, they still require natural persons to direct their efforts. This is an incredible amount of power for a person to have. CEOs of some of the larger public companies can direct the efforts of thousands of people and millions of dollars by sending a text message. They can buy entire media outlets to present the best face of their company to the public. They can change elections.

The killing of a CEO is a reminder that with great power comes great responsibility. The corporation is a fictional person but the CEO is a very real human being, as is a leader of a government. When the legal fictions start to break down in holding the organization accountable for abuse, people have historically taken their grievances to the Chief Executive Officers of corporations and governments.

When out country was founded, there was an understanding that governments, the institutions that hold power over the lives of people, derived their power from the consent of the governed. You get to be president because people voted for you, you get to be chief executive officer because the board or the shareholders voted for you. If you choose to act against the interest of the shareholders or the board or the voters, they will withdraw their consent.

If you persist in acting against their interest, some may choose to pursue other means to change leadership. There is a risk to being the chief executive officer, to being the personal face of a vast and impersonal legal organization.

The rule of law is important for a society to move beyond the use of violence to resolve disputes. Those who would reject the rule of law, who would prefer that violence be the way that disputes are settled, are making a world more dangerous for those who serve as the human faces of huge organizations.

There are things that are wrong that are legal. There are things that are right that are illegal. Juries are one way to sort through that confusion, outlaw violence is another way to sort through it.

If we don’t fight to uphold the rule of law, applied without fear or favor, to the powerful and powerless alike, we invite the direct action of those who see themselves in the tradition of John Brown.

I’ve been going back over Timothy Snyder’s “On Tyranny” during this last week. It’s worth revisiting now, as the man who attempted a coup the United States in 2021 is going to be inaugurated as president of the United States in 2025. The United States will have as a chief executive officer a man who sees the rule of law as an unwelcome obstacle to his goals.

Our country has been great because the rule of law made it great. When we apply justice equally across the rich and the poor, the praised and the despised, the connected and the disconnected, we create the conditions for peace and prosperity. When we allow the powerful to flout the law, we create the conditions for violent conflict.

Stand up, stand out, and support the rule of law. Don’t tolerate tyranny silently. Don’t break the law to get the bad guys, because it just makes you the bad guy.

But don’t ignore the conditions that have been created that have brought us to this fraught moment in American history.

Yours truly,
Nick