The ever-stalwart Tom Kirkendall, of Houston’s Clear Thinkers, writes today about the plight of former Merrill Lynch executive James Brown , one of the last Enron figures still pursued by our Javert-like Department of Justice (sic).

My own take on Enron, now, is that it involved some financial fraud, notably by Andy Fastow and a couple of his cronies, but that it also involved what Rob Bradley has called “philosophical fraud” and I have called postmodernism . Under the circumstances, I think we need to say of its dubious but non-frauduent practices something similar to what ACLU types often say of disagreeable speakers: “I disagree entirely with the way you conduct your business, but I shall defend to the death your right to conduct it as you see fit.”

The invaluable Professor Stephen Bainbridge asks whether the doctrine of “conscious avoidance may be the next proper target for those of us who wish to free business from persecution: “Is ‘Conscious Avoidance’ the Next ‘Honest Services’? He quotes Christine Hurt as saying: “This theory, in the form of a jury instruction, allows jurors to find that defendants commited securities fraud with intent even absent proof of knowledge of the specific illegal acts.” More to come.

The following “Atlas Shrugged” comment by the CEO of Emerson Electric , David Farr, was made back in November 2009, but it is just making the rounds of the Web today and so I thought it worth linking to: “Washington is doing everything in their manpower capability to destroy U.S. manufacturing,” Farr said today in Chicago at a Baird Industrial Outlook conference. “Cap and trade, medical reform, labor rules. What do you think I am going to do? I’m not going to hire anybody in the United States. I’m moving. They are doing everything possible to destroy jobs.”


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