Globalization and Democracy

August 27, 2019

Amy Chua wrote World on Fire two decades ago, arguing that globalism and democracy would collide by bringing out ethnic and religious resentments around the globe. She identified animosities country by country that would explode when times got tough.

Many of us connected economic and democratic health. In hard times people look for scapegoats and blame each other. I’ve gotten jobs from and lost them to people of other races and genders. That’s normal and goes both ways but I did fine and don’t need to blame anyone. Many who don’t feel as well are looking for reasons.

Chua’s analysis isn’t destiny. Unions in Hawaii realized workers would do better if they were united. Hawaii developed a lovely multi-cultural society as a result. But Yugoslavia came apart in rough times. I fear the European Union and the United States can come apart if we engage in an orgy of blame.

Franklin Roosevelt focused on creating jobs in the 1930s and World War II finally pulled us out of the Great Depression. John Maynard Keynes explained that, when an economy is in the doldrums, spending and investment, by government, industry or consumers, pulls the economy out most effectively. Democrats have worked with his ideas ever since and the overall, national, economy has done well with Democrats in power, particularly when Democrats had a strong labor union base focused on workers.

But capitalism is built on creative destruction. Miners’ desires notwithstanding, other industries have been replacing coal for most of the twentieth century because coal dust and soot blanketed cities, killed plants and got into people’s lungs. The process accelerated recently as more sources of heat and power became available. It’s a benefit that capitalism allows shifts like that but also a problem that capitalism makes workers pay the greatest price for such change. Macroeconomic, Keynesian thinking helps but it doesn’t solve the harms to specific groups of workers who’ve lost out through no fault of their own. More is needed.

Republicans view the economy differently, particularly since Ronald Reagan became President, focusing on supply side economics which stresses putting more resources in the hands of companies, entrepreneurs or so-called job creators. Unfortunately, supply side economics leads Republicans to ignore what business does with money, hoping that enough will be used to create jobs at home. But business also uses their money to outsource to foreign countries, buy stock back, build monopolies and the like, which don’t help American workers. Business helps American workers when they find demand for what American workers produce. That’s not automatic.

So supply side economics leads Republicans away from strategies that would actually help workers and aggravates hard economic times that tend to push workers to fight among themselves for the available jobs. Under most conditions, supply-side economics is a smokescreen for policies that make things worse. Staying away from anything related to supply-side economics is much better for workers, brotherhood and labor unity. But the alternative Keynesian economics isn’t enough.  There is a gap with respect to finding work for areas which have lost their main industries.

To save our democracy, it’s crucial to get across what actually will help American workers and what won’t. That’s why the argument over government projects, like rebuilding infrastructure, is so important.


Corruption Overwhelming America

August 20, 2019

This commentary was drafted in anger when I learned that pig farmers are refusing to allow inspections to look for the microbes that are killing people. Upton Sinclair’s The Jungle exposed the filth of the meat-packing industry in 1906 and led directly to the Pure Food and Drug Act and the creation of the FDA, the Food and Drug Administration. Now they want to undo a century of relatively clean food by claiming regulation is bad – yes, particularly bad for filth in the food industry.

This country’s reputation for honesty and responsibility long gave us a huge market edge. American institutions check on errors and misbehavior. That drove our legal and corporate culture. Now we’re inviting the world to ditch its confidence in us, and inviting each other to be cynical about business and political claims, threatening our economic power and democratic system.

Everyone has a reason why you can’t check on them. China is more honest about their meat than our pig farmers. Police refuse to allow information to be made public about their behavior because the people might realize who is trustworthy and who isn’t. The President denies Congress’ authority to get information from him. Even George Washington turned papers over. Trump is the first President since Richard Nixon to refuse Congress his tax information, lest the American people get an honest look at his economic behavior, bankruptcies and unreliability.

Republicans lump everything under the title of regulation and, making no distinction, claim all regulation is bad. Regulation is a problem because they might have to take responsibility for the poisons they want to emit, the toxins and dangerous bugs in the food they want to sell us, and the financial shenanigans they use to fleece us of our money. No one has the right to poison or injure anyone else. That’s irresponsible at best, legally tortious and probably criminal.

The so-called Supreme Court authorizes corporations to force us into arbitration with arbitrators the corporations choose so that the arbitrators are only beholden to the corporations, and anyway, they have no power to cure corporate misbehavior. Heaven forbid corporations should have to own up for their sins. Why should they – no one else does.

We have fussed about the bribery rampant in other countries because it prevents law from working to produce decent and proper behavior that justifies reliance. Preventing investigations is almost as bad. We’re now allowing corporate and political America to behave like the Mafia where there is only accountability for hurting each other – the purpose of the organization is to fleece the public, impose protection rackets, and, where people object, kill. In this complex world it is increasingly difficult to protect yourself from dishonest business.

But the President does it – shouldn’t we follow his example? He failed to fire Mueller but he fires everyone else who might insist on honesty and accountability. Now he’s now moving federal agencies halfway across the country to encourage the staff to quit rather than relocate. What a step forward.

There’s a stench in the White House but who’s left to complain? Too many corporate officers can no longer be watched because Trump destroyed the civil service. Who’s to complain about what they do?

 


At SPAC last night

August 18, 2019

The Philadelphia Orchestra with the Albany Pro Musica chorus and four international soloists kept my heart on fire and my eyes well watered at SPAC last night with Mozart’s Requiem. Wow. And thank you.


Greenhouse Gas Tax

August 16, 2019

Governor Cuomo recently announced a wind farm off of Long Island. Sounds big. But it made clear to me that we have to turn to a carbon or greenhouse gas tax. Big as that wind farm is, new government wind farms are rare. And government projects somehow have to compete with and make up for all the carbon released by private sources. As the economy improves, private sources just make more. That process has to stop.

Many people altruistically change their behavior. Others would if they could. But inevitably a lot of people take advantage of the freedom of countries like America to do what they please regardless of the harm they cause to others, to the country, our children, grandchildren and civilization. There is no good alternative to a greenhouse gas tax because nothing else affects the private behavior of those who refuse to change their behavior.

A carbon tax has to be universal – no exceptions – everyone and all businesses are involved in the problem and we all have to change. A tax can be revenue neutral with a tax cut to balance the expected revenue. Not only budgetarily neutral, but all of us can change behavior to reduce the impact of the tax on us. But no exceptions for favored groups. Everyone has to do their part or the program will deconstruct. It has to be universal to protect people from unfair burdens and unfair competition. Pogo’s comment that “we have met the enemy and they is us” is unfair to many of us. But we become the enemy if we resist change. Supporting a universal greenhouse tax should be something we do proudly and proclaim publicly, like flying the flag.

We’ve been talking about global warming since the 50s or the 80s depending on what we take as the starting point. Just to indicate how long we’ve been confronted with this problem, I worked with Barry Commoner and scientists working with him in the 70s, listened to James Hansen and major environmental reporters who came to and spoke at Albany Law School numerous times since I arrived here in 1979 – this stuff is not new. You can take that as meaning that the science is well established. Some may find that comforting. I find it terrifying because it indicates how slowly we’ve been moving.

The benefit of democracy is that the people can decide. But the problem of democracy is how difficult it can be to turn the ship of state, to convince everyone that needs to be convinced, and overcome all the people who have an interest in fouling up the works, through lobbying, political contributions and the real fake news, the repeated climate change denials when scientists who are not on the take all around the world have already had time to come together to try to warn us of impending disaster.

Come on folks. It’s time to insist on action. As a crowd of angry people chanted in Dayton, “Do something.” They’re both issues of mass murder. Do something. Now.

 


The Administration Attack on Anti-Discrimination Laws

August 6, 2019

It was reported recently that the current Administration is trying to eliminate so-called disparate impact cases under the Fair Housing Act.[1] The press reported it as forcing plaintiffs to prove intent to discriminate. Actually it would make it all but impossible to prove housing discrimination in any form. So, even though the regulations haven’t been finalized, I’d like to get out ahead of it.

Think about the problem from the point of view of an attorney. A client tells you he or she has been discriminated against. What evidence do you look for?

You can look for an admission – “I refuse to give you a job or sell you a house or rent you an apartment because you are Black, brown, or yellow, or because you pray to the wrong God.” There are occasions when people will scream out such language. Maybe an email. It’s rarer on paper. But their lawyers have told them to shut up with the racist language because it will open them to litigation. So you keep your eyes and ears open but don’t expect such gifts to land in your legal file.

The alternative is circumstantial evidence. Circumstantial evidence is a pretty ordinary method of proving things whether in a criminal case, racial discrimination case or many others. Discrimination is easily defined, and Congress has legislated that there is discrimination where the impact on people of one race, sex or religion is very different from those of another race, sex or religion and there is no decent justification for that behavior.

The late Justice John Paul Stevens, concurring in the case that first demanded evidence of intent,[2] made it clear:

“Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor.”

And he continued:

“the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.”

Because, to put it clearly, evidence of unjustified impact is evidence of intention. So what the Administration and its conservative supporters are saying is that there shouldn’t be a way to prove a violation of the Fair Housing Act or the 14th Amendment Equal Protection Clause. Discrimination happens, get over it. Just another example of people with the power to act with impunity, injuring others without fear of paying the price.

Put it another way, prejudiced judges and administrators will have a fig leaf – you couldn’t prove misbehavior because all you have is consequential evidence. And, with the exception of Kennedy and occasionally O’Connor, the conservative justices on the Rehnquist and Roberts Courts have made the most of that fig leaf, blind to discrimination in front of their faces.

There are people who believe they have no stake in the welfare of African-Americans. But they do. When communities decay, they affect us all. They bring down wages, cost us for the services needed because of the problems in those communities, and cost us the benefits that people in functional communities provide the rest of us – the doctors, scientists, teachers, people in all the professions that serve us all. There is a huge cost in substituting disfunctional for functional communities. Undermining people’s ability to take care of themselves and their families undermines the ways communities work, and we all pay the cost.

[1] Chris Arnold, A New Trump Rule Could Weaken A Civil Rights Era Housing Discrimination Law, All Things Considered, July 31, 2019, 5:20 PM, available at https://www.npr.org/2019/07/31/747006108/a-new-trump-rule-could-weaken-a-civil-rights-era-housing-discrimination-law.

[2] Washington v. Davis, 426 U.S. 229, 253, 254 (1976) (Stevens, J., concurring).


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