Why law?

February 13, 2018

Governments, including democracies, make laws and rules. Lots of folk spend lots of time telling us we don’t need regulation, or at least we need lots less. Laws and rules are restraints on our freedom to do what we want. And most people are honest. So why do we need law?

Let me tell you about a janitor at Albany Law. John DeMateo was very much beloved. Our gymnasium is named for John. He was always ready to lend a helping hand, often going way out of his way to be helpful. He hired students for the maintenance staff, giving them ways to earn the money they needed to get through their schooling. During breaks, especially the summer break, John used to put out an urn of coffee strictly on the honor system. Put in a quarter and take a cup. No one was watching. What John told me was fascinating. He never had any problem with people helping themselves to free coffee. I’m sure some people must have paid a little later when they got that quarter. But they were honest. However, and this is a big but, every summer someone figured out where he kept the money. It only took one. John still put the urns out but he told me that it barely paid his expenses. The vast majority of us were honest, but one dishonest person changed everything.

Law is for the few people whose unscrupulousness can make life miserable. I’ve heard a Harvard dean claim that a code of professionalism is better than law because scientists will follow it. But if there is any significant profit to be made from being unscrupulous, someone will follow that path too. Business tells us that most businessmen are honest. I’m sure that’s true. But how many unscrupulous business people does it take to make life miserable for the rest of us – especially when the unscrupulous, who cut corners that endanger the rest of us, can brag about how cheap their stuff is. Cheap indeed. And that puts pressure on everyone else. It puts pressure on other businesses, especially when it’s hard to find out who’s doing what. How easy is it for us to know that the workers who make our beloved running shoes are treated well? Or to understand the medical implications of all the stuff that goes into our food. Competition isn’t a level playing field. Many regulations are appreciated by business because they squeeze out the unscrupulous and make it easier to treat customers well and still stay in business. Generic chants about regulation are just sloppy reasoning that hide serious issues.

So when Trump and his cabinet officers tell you they’re going to weaken or eliminate regulations, does that mean everything is going right so we can trust what people are doing? Or does it mean a green light for those who are going to take advantage of non-enforcement to do us harm? Most people want to treat others well, but the few that don’t care will make life difficult for the rest of us. Sloppy language covers serious mistakes.

— This commentary was broadcast on WAMC Northeast Report, Feb. 6, 2018.

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Democracy and Public Investment

January 30, 2018

What democracy can do is obscured by today’s free market, anti-regulatory, anti-government rhetoric. That rhetoric creates real winners and losers, but taking it at its word, it’s based on an everyone-for-him-or-herself form of individualism. It asserts that our successes and failures are almost solely the result of our personal abilities and denies that what we accomplish always rests in part on what society gives us.

That flatly contradicts reality. This country blossomed because we worked together, with a spirit of cooperation. Cooperation that made associations, large businesses and elective government possible.

Everyone-for-him-or-herself-alone ideologues shouldn’t blind us to the public role in development. America’s Founders knew they needed government. As aptly described in the show Hamilton, Alexander Hamilton, Robert Morris and their colleagues understood the importance of a banking system and had government create it. Across the thirteen original states, Founders used government to open transportation to the west. Washington himself was deeply involved in efforts by Virginia and Maryland. When New York, which had a sea level path to the interior, finally built the Erie Canal, it set the path for industrialization and settlement for a century and a half, and made the North into the powerhouse that won the Civil War.

Today we’ve lost a shared sense of the public investments necessary to continued development, and the foundations of American success are falling apart. Bridges take unsuspecting occupants into the rivers and ravines below. Water systems deliver lead, mercury, and an armory of toxins. Sewage systems poison rivers, people and the living things that depend on them. Trains crash for lack of decent equipment. The electronic grid barely carries ordinary loads. The next solar storm can take the electrical and internet grids down, bringing the country to a lengthy stand-still. American colleges and universities have been the envy of the world but stripping their resources will ensure their replacement abroad and with them the R&D that has been central to American leadership. We are the wealthiest of countries but too cheap to fund our infrastructure, terrified that taking care of America would actually put people to work, or that public spirit in building and rebuilding America will help someone else’s business.

The best stimuli for business are investments in the capacity of the public, infrastructure for getting things done, and rules that create a common floor of good behavior. The idea that everything depends on lowering taxes is pure garbage from people who want their winnings the easy way – by taking them away from the people.

Trump promised to put infrastructure in his budget. It’s hard to know whether he’ll keep that promise, whether enough Republicans will follow him, or whether it would include anything more than a wall on the border or brick and mortar repairs. Public investment could make infrastructure better and more resilient, as so dearly needed in Puerto Rico and on the coasts. Public investment could go well beyond controversial minimum wage laws by offering decent, useful, jobs at livable wages. Public programs could improve the private market by creating a model to compete with, like the public health care option that Obama tried to get.

Madison, Hamilton and their contemporaries had a much more patriotic and mature understanding of what American progress depended on – the people, the whole people, not just a few plunderers appropriating for themselves what should be our birthright.

— This commentary was broadcast on WAMC Northeast Report, Jan. 30, 2018.


Chemicals, Infertility and Morals

March 27, 2017

You’ll be subjected to rolling commentary on innumerable aspects of the Gorsuch hearings. I prefer, as I often do, to address deeper aspects of our competing value systems that underlie the surface of our political battles. One is the human impact of our treatment of planet earth.

Human behavior is injuring our environment. But nature has ways of winning the battle. It turns out that our fertility is as fragile as the eagles’ before DDT was banned, that endocrine disruptors and other environmental toxins are damaging our ability to reproduce – they’re in our kitchens, pesticides and other purchases.[1] That can be a powerful counterattack against the human activity that is warming the globe. If we become infertile and our population plummets, America will become a sad, lonely, vulnerable place, and, quite likely, conquered by any healthier peoples left.

Nevertheless, I’m sick of making consequential arguments, to tell people that if we don’t do this or that, bad things will happen. I think the arguments I’ve been making are air tight. But the science floats over people’s heads. A women, well-enough educated to know better, told me that she chose not to think about the environment because it was too big to deal with. Her comment made clear to me that reason doesn’t reach nearly enough people. Science won’t solve anything unless we accept and act on it.

So let’s address the moral issue. No one, no business, no company or corporation has the right to put toxins in the environment, chemicals that can make it impossible for people to reproduce or kill or maim those of us alive, or make us produce deformed and handicapped children – no one and no company has that right. And they don’t have the right to change the subject, throw smoke in our eyes, saying something else is the problem when they aren’t bothering to check. We’ve had enough lies. This is not a football game where deception is a winning strategy. In human life, deception is sinful, immoral, totally unacceptable. Taking risks with other people’s lives and making excuses for it is criminal.

If there is an economic problem, then, as many labor leaders have suggested for decades, let’s share the work, or create other jobs that don’t do damage – jobs aren’t an excuse for hurting people. Hurting people isn’t a job; it’s a crime. People aren’t entitled to work at criminal enterprises.

The Cabinet and the President and the Members of Congress and the state and local governments aren’t entitled to commit the crime of murder by poisoning the environment. Pro-lifers and liberals should be united on the environmental front given the enormity of the killing, of adults, children, fetuses and sperm. We’ve all seen multiple films with populations at risk and the starship or other craft working hard to prevent destruction of civilizations. The authors of those stories were trying to portray the immorality of destroying civilizations, and they were warning us of the likelihood that we would face that problem.

How many of us are moral enough to deal with this issue? Isn’t it criminal to support the rape of the air, land, food and water that give us life? Isn’t it criminal to carelessly poo-poo the dangers? How many of our corporate and elected officials are criminals?

Those with so little respect for the lives of fellow human beings must repent, stop and stop those who do, immediately and completely.

— This commentary was broadcast on WAMC Northeast Report, March 21, 2017.

[1] https://www.nytimes.com/2017/03/11/opinion/sunday/are-your-sperm-in-trouble.html.


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.


Romney’s Choice: Paul Ryan for Vice President

August 14, 2012

Mitt Romney ended the suspense with the choice of Paul Ryan for Vice-President. And what did we get? Nothing! The Ryan budget for dealing with our problems is zero – no taxes, no expenses, no government. No regulation, no protection, no help, no investment. We’re in a recession and what do we get to pull out of it – nothing, zero, nada. 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 »


Environmental liability

April 10, 2012

Let me suggest a solution to the fracking problem. The self-styled energy companies want to draw natural gas out of the shale deposits deep below the earth’s surface. Environmentalists like myself believe that fracking will foul the drinking water, damaging a much more crucial resource than the gas they’ll extract.  We also think that if gas is so valuable, they wouldn’t be burning it off where it already comes up alongside oil wells. But that’s another story. Let’s stick to safety.  Read the rest of this entry »


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