On Corporate Privilege – Have They No Shame?

April 21, 2015

In a legal system which holds corporations responsible for virtually nothing, corporate power, hypocrisy and the wall of corporate shame keep growing.

Corporations put clauses in consumer contracts that make suing them useless and impossible. They make us sign those contracts for most of what we buy from the modern economy. The Supreme Court says OK on the fiction that we don’t have to sign the so-called agreements. As far as the Court is concerned, all we have to do is opt out of the economy and then no corporation can bother us.[1] If a dispute ever gets to a hearing, it is heard by arbitrators chosen by the corporate sellers.

Industry groups repeatedly argue that they have to put such abusive provisions in their contracts or they couldn’t give us a good deal. In other words, when people are down, their mortgages underwater, corporations should just keep kicking – they’re really just doing it for us.

That’s bad enough for people who are just trying to be treated fairly. But corporations have been getting the privilege of trashing rules protecting us from toxins and pollutants in favorably disposed forums. These are so-called investor-to-state dispute settlement or ISDS clauses in international trade agreements. Corporations can attack any rules that will cost them money, which of course means all regulation is vulnerable. Like the domestic arbitration clauses that the U.S. Supreme Court has blessed, “These challenges are not heard in a normal court but instead before a tribunal of private lawyers,” as the Alliance for Justice and many prominent attorneys have told Congress.[2]

There’s already an ISDS clause in the North American Free Trade Agreement, or NAFTA.[3] Corporations are trying to keep the ISDS mechanism in trans-atlantic agreements that multi-nationals will use against food and environmental laws here and in Europe, claiming they restrict free commerce.[4] Cecilia Malmstrom, the European Union’s trade commissioner, responded “We want the rule of law, not the rule of lawyers.”[5]

Describing the terms of the 12-nation trade accord for a Trans-Pacific Partnership for which Congress is considering fast track authority for President Obama, Jonathan Weisman wrote in the Times that it would “allow foreign corporations to sue the United States government for actions that undermine their investment ‘expectations’ and hurt their business,” using the business friendly ISDS procedure.[6] Once again that is poised to protect multinational corporations from food, health and environmental regulation.

In D.C., the coal industry is trying to convince the U.S. Supreme Court to block the Environmental Protection Agency from going ahead with procedures for strengthening rules preventing toxic emissions of mercury.[7]

Here at home, toy industry groups are suing against efforts of Albany County to ban the sale of toxic toys, with such poisons as lead, mercury and arsenic, claiming it’s a violation of the Constitution and federal statutes.[8]

Business repeatedly claims regulation isn’t necessary because they are honorable and we can trust them and the economy. But their choice of legal targets make clear what they really believe.

No one has the right or privilege to put toxins in us, in our air, water, or our kids’ toys. Have they no shame? It’s time we had a government, all of whose branches respected the rights of the rest of us.

— This commentary was broadcast on WAMC Northeast Report, April 21, 2015.

[1] See American Express Company v. Italian Colors Restaurant, 133 S. Ct. 2304, 2313 (2013) (Kagan, dissenting); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006).

[2] Letter over the signature of many well-known law professors and sent by the Alliance for Justice to congressional leadership, available at http://org2.salsalabs.com/o/6539/p/dia/action3/common/public/?action_KEY=19342.

[3] NAFTA ch. 11.

[4] REUTERS, EU Seeks Solution to Keep Arbitration in U.S. Trade Deal, March 18, 2015, 12:22 P.M., http://www.nytimes.com/reuters/2015/03/18/business/18reuters-eu-usa-trade.html.

[5] Id.

[6] Jonathan Weisman, Trade Pact Seen as Door for Suits Against U.S. New York Times, March 26, 2015, at B1, available at http://www.nytimes.com/2015/03/26/business/trans-pacific-partnership-seen-as-door-for-foreign-suits-against-us.html.

[7] Editorial, Dirty Coal at the Supreme Court, New York Times, March 23, 2015, at A20, available at http://www.nytimes.com/2015/03/23/opinion/clean-air-act-and-dirty-coal-at-the-supreme-court.html?emc=edit_tnt_20150323&nlid=47098180&tntemail0=y.

[8] Matthew Hamilton, Industry contests toxic toys ban, Albany Times Union, April 17, 2015 at A1.


Reactions to the Charlie Hebdo bombings – Was it just about France?

January 13, 2015

In what other country do world leaders march with arms linked against terrorism? Terrorism goes on in every continent but we mourn and gather in Europe. Terrorism happens in Haifa, Jerusalem and the West Bank – in both directions – but we mourn and gather in Europe. Do we stand for a principle or is France the principle – that France cannot be touched? Or that France is in danger? But other places are in danger. For all my criticisms of Israeli reactions, they are in considerable danger as the Palestinians have been able to use Israeli reactions to the devastation caused by their own terrorism to unite much of the world against Israel. Or is there good and bad terrorism? Were the Communists right, that’s it’s all about whose terrorists are freedom fighters?

So does this lead anywhere? Is the world standing together in Paris a prelude to a principle? But where do principles lead? To more pious declarations? Pious declarations can help lead to forms of action. If the free countries of the world really wanted to solve the Israeli-Palestinian conflict, they clearly could put the screws on both sides and make a two-state solution actually happen. It’s too late to just back off and say it’s their fight and take no sides. But death there is just politics, who we stand with, not what we stand against. Letting it go on when that fight could be stopped is all about being able to use the conflict for politics, even though it is clearly spiraling out of control and enveloping us all. The conflict does no one any good except that pious declarations allowed the French to appear as friends of oppressed people without doing anything about it.

Of course we have been misplaying the Middle East for decades. We were hostile to a group of Middle Eastern leaders with real popular support because we didn’t like their domestic policies. So their peoples, or many of them, have been drawing the obvious conclusion – that their fight is international. The West doesn’t help. It just supports extractive industries and kleptocratic leaders while letting the problems of the people of the Middle East fester. Why do we expect to be free of terrorism in the West when we have a policy of supporting strong men who protect American and western business while raping their peoples and otherwise blessing all the nonsense they commit at home?

I find myself continually drawn to Pogo’s remark, “We have met the enemy and they is us.” All over the globe we have fought against peoples and leaders who try to take care of their own people. Leaders who try to provide for their own. We have had a part in displacing liberal leaders in Latin America, Africa and Asia because they really tried to make things better for their countrymen.

We who grandly tell the world about the virtues of self-government, and tell the world that our internal policies are none of their business, because we govern ourselves, do the reverse because we have the muscle.

I was struck by a statement by Chris Giannou on Alternative Radio who remarked that the world, including the Muslim world, “love you for your values. They hate you for your hypocrisy.”

Values are powerful until we compromise them with war, torture and indiscriminate killing as if the peoples of the Middle East are just there for us to play with.

— This commentary was broadcast on WAMC Northeast Report, January 13, 2015.


Yipes – taxes for the New Year??? !!!

December 30, 2014

Some years ago I called Phil Shrag whom I knew from law school. He’d run the National Organization for the Rights of the Indigent for the NAACP and worked for the New York City Commissioner of Consumer Affairs. Phil was and is a very public spirited person. At the time he was teaching at Columbia. I don’t remember what I called him about but at some point in the conversation we made small talk. I asked him what he was teaching. Tax. That was a surprising answer since none of the things Phil had done suggested significant involvement with the tax code. But he pointed out that every public policy runs through the tax code. So it made a lot of sense.

Phil of course was right. Global warming? The tax code determines how cheap it is to buy carbon based fuels that warm the globe. And it determines whether the producers or somebody else has to pay for the cleanups, the environmental damage, dealing with the warming planet. And it determines what the carbon hawkers have to pay for threatening to obliterate our descendants and end human life on this planet. No tax – go ahead and choke the globe.

Antibiotic resistant disease? The tax code determines what cheap methods are OK to raise and sell animals and animal products. Jam animals together for “efficient” processing and they need antibiotics. The tax is on the land, not the antibiotics. Voila, it’s cheap to feed antibiotics to animals and ship them to us with resistant diseases. Of course we’ll pay the price with illness, doctors, and grieving for our dear ones – but, hey, the milk was cheap.

Landfills? Who pays for those? Do you get a break for composting, sorting, recycling or not buying so much? Nope – we all pay for garbage. But the tax could be shifted to producers and off our shoulders. Things would instantly get less wasteful.

Ever since the elder George said “Read my lips; no new taxes,” taxes have become the third rail of politics – instant suicide for any politician even to bring it up. But health, wealth and survival are right there in the tax code. We need smart taxes, that shape us the way we ought to be. The freedom to corrupt our country and our world with garbage, poison and heat isn’t legitimate freedom – that’s one person’s “freedom” to mess with another’s life, or the lives of many. That’s not freedom, not what our forefathers’ fought for, not patriotic, sensible or constructive. We need smart taxes. Now. Taxes that will make our world a better place.

So last week I wished for peace, health and good government – figuring I was on mostly safe ground. So now I’m blowing it – wishing for new, I’d rather say better, taxes. TAXES for the New Year! That Gottlieb character must be crazy.  Like a fox? Naahhh. Just nuts.  Republicans won’t allow it anyway.

Oh, devilishly inspired by Paul and Anne Ehrlich, how about a tax on more than two children per family – NO, don’t throw tomatoes, they stain. I’m out o’ here! Happy New Year everyone.

— This commentary was broadcast on WAMC Northeast Report, December 30, 2014.


Libertarians on and off the Court

December 2, 2014

Most Supreme Court justices are libertarians in some sense. But what kind and for whom varies widely.

We all believe we have rights to decide lots of things for ourselves. But what are the limits? The more “conservative” the justices and others are, the closer to the Tea Party, the only limits they recognize are force and fraud. Various conservative philosophers have been very plain about that. Regulations, almost all regulations, interfere with that freedom of action.

People sign contracts every day that have draconian consequences for them, but, say the far right, you agreed to that. You signed a contract for which the only remedy is a stacked deck, arbitration in front of an arbitrator arranged by the company, and you have no right to unite with other people in the same situation to fight expensive battles together and share the costs – that’s called a class action, and the Court’s conservatives forbid it in arbitration, won’t allow the states to try to protect consumers from such restrictions on their rights. That protects the company’s liberty. And of course you had the liberty not to sign – if you read and understood the contract and had a realistic choice.

You signed a mortgage with a lender and it had all sorts of hidden costs, fees, rates and traps that put a lot of people underwater and helped to build and then break the housing bubble, and with it the economy. But, tough, you signed, say the conservatives.

Most states used to forbid usury, interest rates that no one could reasonably pay but that piled up so quickly bankruptcy was inevitable. Not any more – the Supreme Court made sure states could no longer forbid usury.

And where the conservatives on the Supreme Court couldn’t block federal law, like the antitrust laws which were intended to give us the benefit of competition and protect us from monopoly, they made it impossible to prove.

There are an endless set of examples. The company gets the liberty and you get the shaft.

But when you get the shaft, that doesn’t just affect the liberty that judges and legislatures say you have. Getting the shaft affects your real liberty – liberty to make wholesome life choices for yourselves and your families. Most of us think our liberty is limited by the effect on other people’s liberty. Giving people the shaft deprives people, ourselves and lots of others, of our very real liberty.

Most states tried to limit legal liberty to do things that harm others. There should be no liberty to foul the water we drink or the air we breathe. There should be no liberty to bury costs in fine print legalese, or propose terms that the company knows will do damage. There should be no liberty to put people into unsafe working conditions when the company could have saved their lives, saved people from collapses and explosions in coal mines, oil rigs, and similar disasters. It doesn’t matter that the workers agreed, signed a contract, took the job – the company knew and we should be able to stop it.

We too believe in liberty, but it is liberty bounded by what’s good for everyone. We have a choice between freedom for those who have the money and power to exercise it, or freedom for everyone based on some realism about what’s going to happen.

Do we care? The protectors of corporate legal liberties on the Court have a child’s idea of liberty – without responsibility. Children throwing tantrums at civilization have no place on the Court.

— This commentary was broadcast on WAMC Northeast Report, December 2, 2014.


Regionalism vs. the Environment

August 26, 2014

There’s been news recently about a decline in gas prices. Hallelujah? Or oh my God! Decline in prices means more people will build energy inefficient homes and invest in gas guzzling machinery or businesses. Some will benefit, but the world will suffer. How do we accommodate those inconsistent objectives? Read the rest of this entry »


Tailspins for the Poor

August 5, 2014

George Gershwin wrote “I’ve got plenty of nothing, and nothing’s plenty for me.” But sometimes it seems like politics is about the art of squeezing or taking as much as possible from people who have nothing at all – the villainy of the Sheriff of Nottingham in the Robin Hood story but in modern dress. Read the rest of this entry »


The Anti-Union Court

July 1, 2014

The Court decided yesterday in Harris v. Quinn that at least some of the employees who work under a collective bargaining agreement don’t have to share in the costs of negotiating that agreement. The Court says it violated their First Amendment rights. How many unions and employees it will apply to is still unclear but this is not the first move the Roberts Court has made in that direction.[i] Sometimes the patterns matter much more than the individual decisions, whether good or bad. Read the rest of this entry »


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