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.

Regulation and the Slide to Hell

August 28, 2012

There’s too much regulation, says Romney. Too much regulation, say some businesses. It’s always categorical, not about which regulation. Just that regulation is bad. Stop it.

The forests are burning. The drought continues. The deserts are growing. The earth is warming. The diseases are spreading. The storms are destroying our towns and farms. The glaciers are melting and the oceans are retaking our shores, submerging islands, making refugees and warriors. But oh block the regulation. Read the rest of this entry »

Capitalism, Religion and Global Warming

August 7, 2012

Global warming is the earth’s response to unrestrained capitalism. Everybody gets to make, buy and use whatever they want without regard to how it affects the sustainability of the environment and everyone in it. Drilling in the Gulf, the Arctic or anywhere, hydrofracking in New York, Pennsylvania or anywhere, turning food like corn into oil that can be burned, all make carbon based fuels that contribute to global warming.

The growing list of minor chores that we once did with cranks, like grinding coffee, requires more power for which more carbon based fuel is burned. Planning buildings without regard to natural cooling requires maximum use of power hungry air conditioners. This is capitalist freedom to do whatever we want. And the earth is fighting back.  Read the rest of this entry »

Character, Capitalism and Regulation

June 19, 2012

Many conservatives are concerned that we have lost a sense of moral obligations, without which the state must eventually fail. They trace most of the nation’s ills to character, including the national debt, crime, failing schools and poverty to name a few.  Read the rest of this entry »

What students need from higher education?

May 10, 2012

Students are choosing where to go to college. A college education is expensive but too many graduates come out of college without a skill set. What do they need from higher education?

Some students go through specialized programs and learn specific skills they can use – engineering, accounting, pharmacy, for example, are all undergraduate majors. And college gives students an opportunity to figure out which field of endeavor they will be willing and able to do well. But the information conveyed in specific majors may be much less helpful for careers that are not in that field.

Students can obtain a core that would work in a wide expanse of positions available to college grads – many even in the arts. I’ll add a couple of comments on what would help for future lawyers. Read the rest of this entry »

The Cost of Non-Regulation

January 31, 2012

The debate over pipelines in New York, and from Canada through the midwest, has been cast as the value of the natural gas versus the value of the environment, particularly water supplies. We can have one or the other. But not both. Either the environment or the gas. Read the rest of this entry »


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