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I'm not a lawyer, but I believe the point isn't necessarily that you'd use civil disobedience as an affirmative defense (like a self-defense claim would be). Instead, you'd make that argument to a jury that may or may not factor that into their decision (i.e. jury nullification). You're right that it's not a claim you'd make to a court expecting leniency. But you might be able to gain sympathy from a jury of your peers if they thought you were morally right.

I don't think there is anything that would stop a defense from making that argument. If that's all you had to argue, then that's the proverbial "pound the table", if you will.

I agree. Just saying that's available to corporations as well. Reason I mention is this: "companies do not engage in civil disobedience" is not only not true; we need and should expect companies to engage in civil disobedience.

Edit: To be clear, I am not talking at all about Greyball. I mean cases where civil disobedience would actually be justified.

I am not sure why you think that companies do or should engage in civil disobedience.

When companies want to change laws, they lobby the government, in part because telling one's employees to break the law is criminal conspiracy and very expensive, given how much power companies have & employees don't.

Sure, corporations sometimes do act in the public interest and sometimes act in the interest of justice. However, legally, courts & judges do not consider mitigating liability or punishment for their behavior on this basis. There are many reasons for this, but mostly because its just better public policy to limit any civil disobedience mitigation to actual humans.

Otherwise, eg, wouldn't coal mining companies be all about "civil disobedience"?

Take PRISM for example, or imagine a Muslim registry - or any other scenario where government requires companies to comply with a scheme and the company's appropriate ethical response would be refusal.

(1) Why should we not welcome civil disobedience then or call it anything other than "civil disobedience"?

(2) In a judicial context, what specifically do you believe would stop the same sentencing considerations from applying to corporations? Sentencing guidelines? Judicial precedent?

Criminal procedure is not my field, so there's a possibility I am making some basic mistaken assumption - please correct me if so.

You seem to be kind of conflating ethics & civil disobedience? And expanding civil disobedience to include, for example, refusing to work assigned to you?

The government does not require companies to comply with a scheme. Companies are free to contract with the government, but certainly aren't forced. PRISM & Muslim registries are also edge cases. There are many companies who choose not to do any work with the military, defense industry, or even gun, drug, or tobacco companies for ethical reasons. Most companies will allow their employees to opt not to work on projects that violate their ethics or values. However, a company would certainly be within their rights to fire an employee for refusing to participate in a project. (its not a smart move, nor does it help with retention of other employees) None of this is, by any means, civil disobedience--nor are ethics and civil disobedience interchangeable. (& it doesn't have to be illegal to be unethical--but civil disobedience is about law-breaking.)

As you may remember, the courts would not permit the government to force Apple to build decryption software to crack that iphone.

And we should not welcome all or encourage civil disobedience. We should just create just laws. Also, we should not redefine or expand the definition of civil disobedience.

Civil disobedience is not a "sentencing consideration." All of this is so inside baseball that it'd take explaining all of civil & criminal procedure in order for you to understand. It would take me a long time to make it both clear and accurate and the payoff would not be worth it. Sorry, but yes, you are making many mistaken assumptions:)

There are many public policy reasons why corporations do not & are not considered to engage in civil disobedience. Here's a few quick ones: we don't want companies to direct their employees to break the law or ignore health safety or environmental regulations, or to encourage the formation of criminal enterprises, most (99%?) are defined by a profit-making purpose & this undermines that (& create shareholder lawsuits.) and, despite Citizens United, the overwhelming majority of our laws do not treat corporations as people. For instance, corporations, legally speaking, are not considered to have mens rea or intentions.

TLDR: Citizens United aside, it is actually just not useful or accurate to consider corporations as people, because they aren't. As far as our legal system goes, humans have intentions & a state of mind and corporations don't.

(Feel argue they do, but, as far as the US legal system goes, they don't. And shouldn't. Because they actually don't. So, please, don't. Or, just don't expect my response).

I won't expect a response but here are a few observations:

You seem to view civil disobedience as a concept inherent to legal procedure as opposed to being by definition outside of law. That seems to me a very unorthodox definition of civil disobedience.

What I mean by civil disobedience is any legal agent (natural person or otherwise) refusing to comply with valid law for reasons of conscience. If you are subject to a law, you can engage in civil disobedience. A company that refuses for reasons of company principles to comply with a legally valid order to comply with a Muslim registry is engaging in civil disobedience. The ethics of corporate civil disobedience is complicated given obligations to shareholders and need to respect autonomy/views of dissenting employees. But groups of people are indeed capable of having shared principles, and that has nothing to do with Citizen United. Fine if you disagree.

Of course those are edge cases. Instances where civil disobedience is relevant usually are. Those are precisely the cases worth talking about.

Creating just laws and violating unjust ones still in effect are not mutually exclusive.

I just meant I wouldn't respond to a comment about how actually corporations totally have state of minds and intentions. Sure, one could write laws where they did (just like you could write a law that says anything), but that is not presently the case in any jurisdiction I am aware of and there's not much of a reason to think it'll ever change. Because corporations are not people.

I am not sure what you mean. I do view civil disobedience through a legal lens, but its inherent in its definition-its action taken in opposition to law. Its not civil disobedience unless the law is being broken.

From Wikipedia: Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power.

I am not sure I understand your definition, but it is broader than mine.

I do not understand what you mean here: "A company that refuses for reasons of company principles to comply with a legally valid order to comply with a Muslim registry is engaging in civil disobedience."

What is a “legally valid order”? The US government doesn't & can't order companies to work for it. (Again, consider Apple & San Bernardino--the Court refused the DoJs request) It cannot arbitrarily demand data. (Obviously court orders for discovery, subpoenas,etc are not the same thing) And our Constitution & many very settled SC precedents, along with many other laws, make it illegal for the government to discriminate on the basis of religion.

Similarly, the US Government cannot compel Palantir or Facebook to make a Muslim Registry, but, leaving the Registry aside, either could fire an employee for refusing to work on a project for the Trump administration, (though it'd be a dumb thing to do). Any public attempt the Trump administration makes to create a Muslim registry will be challenged & enjoined in federal court.

If the Trump signs an executive order creating a Muslim Registry, it will be immediately challenged in court, and, a TRO or an injunction, will be granted for the same reasons.

Groups of people are absolutely capable of having shared principles & working together (its even common), but that is not how corporations are defined by laws made by legislatures or how courts interpret & apply those laws. Law is all about definitions, overlapping jurisdictions, and knowing which rules apply. I

However, the government cannot compel or order a company to build a Muslim Registry let alone anything else. Google & Facebook aren't ordered around at their whim. Plus our Constitution also forbids discrimination on the basis of religion. There are many more layers to this than I can explain.

My point about PRISM & the Muslim Registry was that they are on the edge because they are easy….since both are widely viewed as illegal and/or unconstitutional. As have US courts. Laws don't have to be changed; PRISM already violates them. Same with the Muslim Registry; if Trump orders it, a court will enjoin it before it is made. Neither the government nor Trump can order a company to build anything, let alone something that is facially unconstitutional. Neither is as much about civil disobedience as they are are about challenging laws in courts.

I don't think creating just laws and violating unjust ones are mutually exclusive at all. However, the purpose of a company (leaving B corps aside-rooting for you Etsy) is to make profits, regardless of who works there.

A company's BoD may believe that environmental regulations are deeply unjust because climate change is myth, but that doesn't mean that the company can order their coal miners to violate laws.

Last try: companies have fiduciary duties to their shareholders. Not breaking laws is implicit. When a company wants to change a law, it is cheaper & less risky to lobby for change than liability for breaking them. And a broader definition of civil disobedience undermines it, eventually into meaninglessness. Which is great for folks who don’t think words should have meaning, I guess?

Final comment on this: Though civil disobedience is defined by relation to law, ethics are not dependent on or related to law. Seems like our definitions vary more than we disagree.

For examples of legally binding orders, see the transparency policies of major tech companies (disclosure: I worked for one). Government routinely submits binding information requests, together with gag orders. The pleadings in Microsoft's recent lawsuit challenging the orders gives a sense of the extent. The fact that actions can be challenged doesn't mean corporate civil disobedience is irrelevant. What if a challenge fails? Yes, corporations can lobby. So can humans. Yes, obligations towards stakeholders make the matter complicated. I don't think it's true that fiduciary obligation requires absolute compliance with laws (what about late filing penalties that it makes economic sense to incur?), so context matters. I disagree there's a slippery slope towards meaninglessness. But I appreciate your comments. I have a good sense of where you are coming from. Thanks.

Binding information requests are court orders, which can, as you note, be appealed in court. I am unaware of any instance where a company has lost an appeal in court & refused to turn over information to the court in an instance where civil disobedience would be relevant. And yes, fiduciary obligation does not require absolute compliance, but it certainly does demand that corporation do not direct employees to violate the law. Indeed, context does matter--that's also why agreed upon definitions of, eg, "civil disobedience" are so important. Otherwise, among other things, its very hard to understand each other. Glad that we found a way:)

Civil disobedience is rooted in ideas of justice. E.g. a corporation could engage in civil disobedience by refusing to have separate black and white seating areas. But our society does not generally recognize any "justice" angle to economic regulation. It's not "civil disobedience" for a company to skirt laws as part of a profit-making enterprise just because it wants to second-guess the government's idea of what those regulations should be. Nobody will write history books about how the noble unicorn startup evaded unjust regulations of its day to maximize its market capitalization.

No disagreement here on that. I'm not defending Greyball.

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