Been reading David Skeel's "Debt's Dominion." Like Kate Hopkin's in "99 Drams," his wanton use of "in order" causes me to grind my teeth. For my taste, he also spends a little too much time dabbling in the academic ins and outs of public choice theory. But when it actually gets into describing the history of bankruptcy laws, it's an interesting read.
While developing the history of Bankruptcy laws, he also happens to provide some interesting insights into the development corporations into "natural persons," a subject of my continuing interest.
A few choice quotes as well as my commentary appear after the jump.
On page 3, Skeel writes "lawmakers also argued over whether any bankruptcy law should include corporations, or limit it's reach to natural persons." That's my emphasis which I add to highlight its incongruence with the Supreme Court's Citizen United decision.
On page 28, Skeel discusses Senator Thomas Hart Benton's personal interest in passing strong bankruptcy laws. Skeel writes, "Bankruptcy in his view might be one way to reign in the excesses of the nation's growing corporate sector." Having gone by the nickname Old Bullion during his Senate days way back in the 1840s, Sen. Benton would likely have a seizure if he was alive today.
On page 49, Skeel describes the original purpose of corporations. "If state lawmakers concluded that they needed a railroad, the state would issue a corporate charter for this purpose, effectively granting a local monopoly to the lucky firm.... In a sense, the early firms were like an extension of state government. It is only a slight overstatement to call them our first state agencies." Would it be a slight overstatement to call Goldman Sachs a state agency? Or perhaps 200 years later, the have the roles been reversed and it is the government that is an agent of Goldman Sachs??? Some seem to give credence to the latter.
On page 54, Skeel quotes Senator Henry Clay on discussing the jurisprudential quandary of whether the Constitution's bankruptcy clause applied to corporations. The quote: "Corporations are artificial beings, created by the States." Yet another piece of legislative history ignored by the Supreme Court's originalists.
On page 105, Skeel discusses attempts to codify receivership practice during the New Deal and specifically how the Supreme Court in Shapiro v. Wilgus expressed reluctance to extend receivership techniques to non rail road corporations on the basis that rail roads were "public service corporation" that provided "service in furtherance of the public good." Particularly ironic in light of the words appearing on page 49 and quoted above.