The Mystery of Low Wages

For many years and particularly since the Republican tax cuts, there has been a problem that economists and the Federal Reserve Bank can't seem to explain or solve: stagnant or falling wages.

Job growth has been robust for years and it was promised that tax cuts would enable corporations to pay higher wages.

According to what economists call the "Phillips curve", low unemployment should accelerate pay growth, but it just hasn't happened and no one can explain why. It is almost as if the law of supply and demand has been suspended.

Some economists attribute the problem to the fact that union membership is at an all-time low.

Some economists point to the fact that corporations used their tax cut to buy back their own shares, which helps stockholders (1/3 of which are foreigners) and executive level employees who own stock or stock options, rather than pay higher wages to ordinary employees.

Some economists blame technology and automation.

But, as said by the chairman of the Fed in an understatement, "...it's a bit of a puzzle."

Maybe there is another reason that is at least somewhat to blame.

Attorneys general in 10 states are investigating whether clauses in fast food franchise agreements are preventing workers from switching jobs and thereby locking them into low-paying positions. These agreements, called "no-poach clauses", prohibit franchisees from hiring employees away from a fellow franchisee of the same brand.

Fast-food restaurants employ 4.5 million people and have generated more jobs than nearly any other sector since the 2008 recession. These agreements also exist in other industries.

Obviously, these no-poach agreements help business owners by maintaining low wages and reducing employee turnover, but they do so by harming the lowest paid and most vulnerable employees in our economy.

Let us hope that this type of collusion to manipulate the job market is put to an end. 

Photo Credit: Jerry Nettik 

The Appointment

President Trump has appointed Judge Brett M. Kavanaugh to the United States Supreme Court. This was immediately followed by the usual coded double talk from politicians and political pundits on the right who said in various ways that Kavanaugh was not an “activist judge”. For example, Trump promised a Justice “who will faithfully interpret the Constitution as written”. The Wall Street Journal said Kavanaugh’s record “suggests he will help to restore the Supreme Court to its proper, more modest role in American politics and society” and that “Kavanaugh is among a younger generation of judges who base their ruling on the text of the Constitution and Congressional statute.” You can expect to hear more and more of this kind of talk in the months leading up to the phony, staged, perfunctory confirmation hearing. All of it is intended to convey to those who are not versed in the law the simplistic and false idea that the Constitution and the laws of this country are clear, unambiguous and easy to apply to any fact situation that may arise now or in the future.

Most people would agree that Thomas Jefferson knew a thing or two about the Declaration of Independence, the Constitution and political theory. After his presidency, Jefferson kept up a lively correspondence with many notable thinkers of his era about all of the political issues of his day. Here is what Jefferson wrote to Samuel Kercheval on 7/12/1816: “Some men look at constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present; but without the experience of the present: and 40 years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

In other words, the law is not immutable and must change to fit the times and the needs of society.

The truth of the matter is that Republicans are counting on Kavanaugh to be an “activist judge”. If he is not, it will be a big disappointment to Republicans. His job, from their perspective, is to:

1. be a reliable vote for the conservative point of view on social issues such as abortion; guns; religion; gender and racial discrimination, etc.;
2. bless the Republican political strategy of voter suppression through gerrymander, voter ID laws, purging of voter rolls, etc., and continue the ability of candidates to benefit from unlimited supplies of “dark money”;
3. expand the rights of corporations and favor corporations over individuals in all forms of litigations;
4. hold the ACA (Obamacare) to be unconstitutional; and,
5. protect Donald Trump if, as and when necessary.

It is reasonable to believe Kavanaugh has already been tested on all these issues in private before his appointment was announced.

Phot Credit: Wynn Pointaux

You Had to Know It Was Coming

You may recall the recent United States Supreme ruling in the case of a baker who refused to bake a wedding cake for a gay couple.  The Court actually evaded a direct ruling on the question of whether a religious conviction could justify refusal of goods and services by holding, in essence, that the baker did not get a fair hearing before the Colorado Civil Rights Commission. Nevertheless, the Supreme Court’s decision was widely reported as having been for the baker and it was seen as permission to deny goods and services on the basis of religious beliefs.

After the Supreme Court’s decision, a Walgreens’ pharmacist in Arizona refused to give a woman a drug prescribed by her doctor. The drug, Misoprostol, can be used to end a failed pregnancy in the first ten weeks. In this lady’s situation, it was being used by her doctor because there was no fetal heartbeat and the pregnancy would end in a miscarriage. When the lady went to Walgreens with her 7 year old to pick up her prescription, the pharmacist asked if she was pregnant. When she responded affirmatively, the pharmacist refused to give her the prescription because of “his ethical beliefs.”

Walgreens later apologized to the lady. But, Walgreens said, “To respect the sincerely held beliefs of our pharmacist while at the same time meeting the needs of our patients, our policy allows pharmacists to step away from filling a prescription for which they have a moral objection.”

I’m not at all certain what message the United States Supreme Court intended to send in the wedding cake case, but I’m pretty sure it was not that you and your doctor have to consult with a pharmacist’s conscience in order to receive a legal drug lawfully prescribed by your doctor.

The unfortunate, but predictable, consequences of the wedding cake case is that religion will be used to justify personal prejudice until the Supreme Court defines the limits of permissible conduct.

Photo credit: PublicDomainPictures    

It's Only 52 Million People - What's the Big Deal?

The State of Texas, led by Republican Attorney General Ken Paxton, has filed a federal lawsuit along with 20 other Republican Attorneys General seeking a judicial declaration that the Affordable Care Act (ACA) is unconstitutional.

Under normal circumstances the Justice Department would assume its legal responsibility to defend the constitutionality of a law passed by Congress. However, nothing is normal anymore. Donald Trump and Republicans in Congress have tried almost everything possible to repeal or circumvent the law. The key word here is “almost”. The newest backdoor tactic is that Donald Trump has told Jeff Sessions, his Attorney General, to take a dive and not defend the lawsuit. This maneuver signals to the courts that the Trump Administration believes the law is unconstitutional and, theoretically, makes it easier for the suit to succeed. There is no doubt that this is a legal strategy coordinated among the Republican Attorneys General and the Trump Administration.

Why should you care? The ACA requires insurance companies to cover those with pre-existing conditions at no additional cost to the insured. According to a Kaiser Foundation analysis in 2016, 52 million adults under the age of 65 have pre-existing conditions that will make it extremely difficult or impossible for them to get health insurance coverage. This doesn’t include children. This is a disaster in the making by any standard.

After Sessions declared that the Trump Administration would not defend the lawsuit, the possibility the suit might be successful became obvious and there was an unexpectedly loud public outcry. Even 59% of Republicans want rules that prohibit insurance companies from denying coverage based on pre-existing medical conditions. Predictably, Senator Ted Cruz of Texas agrees with the lawsuit despite the backlash because it realizes his cherished goal of destroying, albeit judicially rather than legislatively, the ACA. Senator John Cornyn of Texas and many other Republicans said it was not their intent to leave people with pre-existing conditions without coverage, even though they have tried repeatedly over the years to repeal the ACA.

If we are to be judged by what we do rather than what we say, it is time for Congress to act rather than talk about guaranteeing coverage for pre-existing medical conditions.

For more on this topic, see the column by Paul Krugman in the New York Times of 6/14/2018.

Photo Credit: Myriam

Democracy Takes Another Hit

On 6/11/18 the United States Supreme Court ruled in a 5 to 4 vote that Ohio can purge a registered voter from the voter rolls if the voter has not voted and does not respond to a notice. Ohio begins the purging process based on the failure to vote in a single federal election cycle. Just think for a moment about how extreme that is. The purging of voter rolls goes hand in hand with other efforts to suppress the vote such as cutbacks on early voting, elimination of same-day registration and voter identification laws. All of these measures have been advocated only by Republicans and passed only by state legislatures controlled by Republicans. It goes without saying that this decision will encourage other states dominated by Republicans to follow Ohio’s lead and enact a similar law.

According to the New York Times, a Reuters study in 2016 found that at least 144,000 people were removed from the voting rolls in Ohio’s 3 largest counties (Cleveland, Cincinnati, and Columbus) and  that voters were struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.

These voter suppression laws, coupled with partisan gerrymandering, make it very difficult to defeat sitting politicians. It is not a surprise that politicians will say and do anything to stay in office, but it is very discouraging when the United States Supreme Court condones these political tactics.

In dissent, Justice Stephen G. Breyer, quoting a Senate report, said, “The purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority.” That sounds way too naïve for our times.

We should be doing everything we possibly can to make sure people do vote rather than suppressing the vote. For example, Australia has a law that makes voting mandatory and they make it easy to vote. One of the easiest things we could do is to change election day to a Saturday. Just imagine how many people don’t vote because they work from 8:00 a.m. to 5:00 p.m. Monday through Friday, have busy family lives, and many other weekday obligations. It seems we’re headed in the wrong direction with the wrong motives if the goal is democracy.  

Photo Credit: Lisa Johnson

Take Me Out to the Ballgame

I recently watched a segment of Bryant Gumbel’s Real Sports on HBO that had to do with injuries caused by foul balls in major league ballparks. The program featured the stories of many victims who had sustained gruesome injuries and it also documented the failure of Major League Baseball to protect its fans.

On March 29, 2018, the week following the HBO program, The New York Times ran a lengthy story on the same issue. According to HBO and The New York Times, a study in 2014 found that 1750 fans per year are injured by flying objects (batted or thrown balls and broken bats) in major league games. Many of those injuries were to the face and head. A layperson would probably assume that the injured fans are compensated by the teams or by Major League Baseball. That is most definitely not the case. Almost all lawsuits against baseball teams and Major League Baseball have been dismissed based upon legal precedent established 105 years ago in a Missouri case. In that case the court ruled that because the victim had chosen a seat in an unprotected section, he had “assumed the ordinary risks of such position.” This legal doctrine is called “assumption of the risk.”

Since 1913, there has been a disclaimer on the back of every ticket to every Major League Baseball game that says:  “The holder assumes all risk and danger inherent to the game of baseball, whether occurring prior to, during or subsequent to, the actual playing of the game, including specifically (but not exclusively) the danger of being injured by thrown bats, fragments thereof, and thrown or batted balls, and agrees that the (Name Of Club) are not liable for injuries resulting from such injuries.” This disclaimer and the court cases upholding it as a defense to liability has been dubbed the “baseball rule.”

A man named Andy Zlotnick was seriously injured in Yankee Stadium in 2011. A foul ball hit him in the face crushing his left eye socket, fracturing his jaw and permanently impairing his vision. He made a claim, but was met by the “baseball rule.” He lost. However, Zlotnick wouldn’t stop legally (he appealed and lost again) or in the court of public opinion. Zlotnick’s plea for more fan protection was gaining attention, but not really getting action, until a 2 year old child was hit in the head at Yankee Stadium. She suffered a broken nose, an orbital fracture and bleeding on the brain. Injuring a 2 year old on national television was finally enough to get the attention of Major League Baseball. The Commissioner recommended extending the netting in ballparks to the near end of each dugout. This is being done and is helpful, but the length and height of the netting is still woefully inadequate.

In case you are thinking you will be able to dodge a batted ball, HBO ran an experiment by throwing balls from a pitching machine at people who were seated behind a clear plastic shield. The balls were thrown at 95mph. Even though they were expecting the ball, not a single person reacted in time to protect themselves. Some batted balls are travelling up to 130mph and most fans are not paying close attention to every pitch. Fans in real life have almost no chance of protecting themselves from a hard hit foul ball.

From Major League Baseball on down, the people who know baseball and run the leagues know that a batted ball can kill or maim a spectator, and that the spectators do not fully appreciate the full extent of the danger. The fact that the law has not heretofore imposed liability should not be a license to violate common sense safety rules.

Photo credit: Free Photos

The Cake Case - What Does It Mean?

The U.S. Supreme Court finally issued its opinion in the famous case of the commercial baker in Colorado who refused to bake a wedding cake for a gay couple.

The decision was 7-2 in favor of the baker. Religious conservatives are hailing it as a victory for freedom of religion, freedom of religious expression and freedom of speech. Those in the LGBT community and others are worried that the decision is an invitation to discriminate based upon claims of religious belief. The Supreme Court’s decision doesn’t support either position.

The decision turns on very narrow grounds and the specific facts of this case. The decision tries to avoid the broader issues that captivated the public’s attention.

In Colorado there is a law that prevents discrimination based on sexual orientation. When the baker refused to bake the cake, the gay couple filed a complaint with the Colorado Civil Rights Commission. The Commission ruled for the gay couple. This decision was appealed through the judicial system until it reached the U.S. Supreme Court.

The U.S. Supreme Court ignored, I am sure intentionally, the most provocative legal arguments. Instead, the majority seized upon comments made by one of the commissioners during the original hearing and found that they were “inappropriate” and “dismissive” and indicated unfairness. According to the opinion, “The neutral and respectful consideration to which Phillips was entitled was compromised here. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

The objectionable comments made by the commissioner were to the effect that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” According to the opinion, these statements are some evidence of “hostility to religion”.

Whether those words indicate hostility to religion rather than hostility to discrimination is debatable. Nevertheless, it was those words that gave the U.S. Supreme Court an excuse to rule without tackling the more formidable issues that framed the public’s understanding of the case.

It is worth asking what the Court’s ruling would have been had the commissioner said nothing at the hearing and not given the Court an easy out.

There are other similar cases making their way to the Court which will provide an opportunity, if the Court wants an opportunity, to define the boundaries.

Photo Credit: Jeremy Wong

A Solution Looking for a Problem

It now seems certain that the Environmental Protection Agency (EPA) intends to rollback fuel efficiency standards for cars and light trucks.

Fuel efficiency standards and how they are calculated is complicated, but suffice it to say that the rule in question required passenger cars to average 50 miles per gallon by 2025. This rule was established by the EPA during the Obama Administration and was intended to reduce the emission of greenhouse gases linked to climate change. i.e., global warming. The automakers opposed the rule at the time, but they have made steady technological progress toward achieving it, which helps consumers and the environment.

During his campaign Trump denied climate change and promised the EPA would rollback rules related to climate change. This he did regarding coal-fired power plants, one of the worst polluters, even though the plants were already fast disappearing due to market forces. Shortly after he took office, Trump met with automakers and promised them relief from the fuel efficiency standard. The new rule will freeze standards at the 2020 level.  According to Trump, this will save jobs in the auto industry. It is not at all clear how making less fuel efficient vehicles saves jobs.

When the rollback occurs there will be a monumental legal battle with California and the 12 states that use California's pollution standards. California has special status under the 1970 Clean Air Act. For those of us old enough to remember, in the 1960s and 1970s California was facing a crisis caused by air pollution (smog) related to exhaust emissions. California, in a political bargain, was given the right to adopt standards that were more stringent in order to address its air pollution problems. Therefore, for the last 50 years California has exercised its legal right to require automakers selling cars and trucks in California to meet its standards.  Because California is such a large and lucrative market, California's standards have become the de facto standard because automakers don't want to manufacture separate vehicles for different markets.

According to media reports, meetings and negotiations have taken place in an attempt to avoid the inevitable high stakes legal showdown that could have horrible repercussions for the automakers and the environment. Those negotiations failed. Why? It seems most likely true that it all boils down to politics and personal vendettas. Without getting into too much detail, suffice it to say that:

1.         Trump and a substantial number of his party tend to disbelieve climate science;

2.         Less fuel efficient cars and trucks burn more fossil fuel;

3.         Many of Trump's biggest corporate backers are fossil fuel companies;

4.         Scott Pruitt, Administrator of the EPA, is from Oklahoma, a true friend to the oil and gas industry, and an adamant "climate science denier";

5.         The EPA standard in question was created during the Obama Administration and Trump hates Obama;

6.         California leans heavily toward the Democratic Party;

7.         The Governor of California is Democrat Jerry Brown;

8.         Trump was trounced in California;

9.         Trump and Brown strongly dislike each other personally; and,

10.       Trump believes he has a 5 to 4 advantage in the U.S. Supreme Court.

In one of those "be careful what you wish for" situations, automakers are now speaking out in favor of more stringent standards. Bill Ford, Jr. , executive chairman of Ford Motor Company, said, "We support increasing car standards through 2025, and are not asking for a rollback." The automakers don't want to risk California winning the coming litigation and, like most businesses, they loathe uncertainty and want to make a deal.  Will this make any difference? Almost certainly not.

Photo Credit: Ralf Kunze

Buying Silence - A Dirty Business.

There have been an endless number of stories recently involving powerful and famous people, businesses and organizations who bought someone’s silence through a nondisclosure confidentiality agreement. An outside observer would have to conclude that there must be a marketplace for this kind of deal, but the parameters of that market are elusive.

I assume there are multiple factors which must play a role in determining the market value of silence such as consideration of just how dirty the secret is; the harm caused to the victim; the notoriety of the perpetrator and what that person has to lose if the victim speaks out; the financial ability of the perpetrator to pay; whether the perpetrator’s employer or business will also be financially harmed if the dirty secret comes out, etc. But, one factor you may not have considered is the cost of buying  off the victim’s lawyer.

On 4/5/18, The New York Times ran a story about the 6 publically known settlements involving Bill O’Reilly, formerly a star on the Fox Network. The settlement total was $45 million. One of the settlements involved a Ms. Mackris, a fellow employee at Fox, who sued O’Reilly for sexual harassment. The claim was settled for $9 million and a confidentiality agreement. The highly unusual terms of the settlement agreement have now been revealed in connection with new litigation.

The terms of the agreement include a provision that says the lawyers representing Ms. Mackris are agreeing to switch sides and advise O’Reilly on other sexual harassment claims. Ms. Mackris’ lawyers also agreed not to represent any other client who may have a claim against O’Reilly and Fox. This type of agreement is considered to be professionally unethical. Therefore, it is not surprising that Ms. Mackris’ lawyer was not immediately available for comment.

Greed is a powerful human weakness.

Photo Credit: philm1310

The Lawyer-Client Privilege

The investigation of President Trump’s lawyer  “fixer”, Michael Cohen, has brought to the public’s attention like never before the legal principle of protecting documents from disclosure that are subject to a claim of confidentiality based upon the attorney-client privilege.

What is the attorney-client privilege?

The Texas Rule of Evidence, which are modeled after the Federal Rules, state:

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client.”

The tentacles of the privilege extend to communications between the client’s representative and the client’s lawyer or the lawyer’s representative; the client’s lawyer and the lawyer’s representative; communications among lawyers in a pending action if the communications concern a matter of common interest in the pending litigation; between the client’s representatives or between the client and the client’s representatives; or, among lawyers and their representatives representing the same client.

In a criminal case, a client has a privilege to prevent a lawyer or a lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.

As you can see, the privilege is potentially broad and its application can be highly technical and difficult depending upon the circumstances.

There are exceptions to the privilege.

The most important exception is that communications are not privileged if the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

The attorney-client privilege is enormously important to the functioning of our legal system. Without it there would not be a free flow of truthful communication between lawyer and client. On the other hand, it can be and is abused. There are many instances wherein a client, usually a client that gets sued a lot, will dump a trove of harmful documents into the offices of its lawyers and then claim the documents can’t be disclosed because they are privileged.

The task of deciding which of the documents seized from Cohen are privileged and which are not is likely to be tedious and lengthy.

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When Jurors Don’t Get Along

The New York Times ran an interesting article on 5/30/2018 regarding a hotly contested criminal trial in Federal District Court in New York. The trial involves charges against a former elected official who is accused of public corruption in a bribery and kickback scheme.

After 7 days of deliberations, one of the jurors failed to report for duty due to a claim of illness. As it turned out, the juror was not really ill, but refused to return because the deliberations had degenerated into cursing and name-calling.

The defense immediately asked for a mistrial.

The judge denied the mistrial because the jury had not said it had reached an impasse and seated an alternate juror. The judge then instructed the jury to disregard the entirety of its deliberations and to begin again from the start.

After 7 very difficult, rancorous days of deliberations, what do you think the chances are of the jury following the judge’s instructions to start over?

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May a Lawyer Disobey a Client?

The United States Supreme Court has granted a convicted killer a new trial based upon his lawyer's decision to disobey his client's clear instructions.

The facts are that Robert McCoy was charged with murdering 3 family members in Louisiana. The state was seeking the death penalty. McCoy told his lawyer that he was not guilty, i.e. innocent, and that he wanted to contest his guilt. The lawyer, being convinced that the State's evidence of guilt was overwhelming and that the only chance McCoy had of escaping the death penalty was to admit the killings, disobeyed his client's explicit instructions and told the jury McCoy had killed the victims. The jury convicted McCoy and sentenced him to die.

There was no dispute that the lawyer disobeyed McCoy's clear instructions.

The Court, through Justice Ginsberg, said: "We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experience-based view is that confessing guilt offers the best chance to avoid the death penalty."

3 Justices dissented, saying the lawyer only admitted McCoy killed the victims, not his guilt of the offenses charged (first degree murder).

Lawyers have to make many important strategy decisions during a trial based on their training, knowledge, experience and skill. Some of those decisions require the client's consent. If the client knowingly and voluntarily chooses to ignore the lawyer's advice, then the lawyer must obey the client regardless of the consequences.

An exception to this rule is when a client tells his lawyer he intends to testify and tell a lie. A lawyer cannot ethically call a witness to testify whom he knows in advance intends to tell a lie. This is not to say that lawyers don't call lying witnesses to testify but, in reality, it is very rare that a witness exposes his intent to tell a lie in advance of his testimony.

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Distracted Driving in an Autonomous Car

In March, 2018, an autonomous vehicle being tested in Arizona struck and killed a pedestrian. An exhaustive investigation was undertaken by the National Transportation Safety Board (NTSB). The results were released on 5/24/2018.

The NTSB found that the vehicle’s computer system spotted the pedestrian 6 seconds before impact, but it did not slow down or brake the car.

The vehicle in question was a Volvo XC-90, which is equipped with its own sensing technology and an emergency braking system. Importantly, Uber, the company testing its autonomous technology, had disabled the Volvo emergency braking system to “reduce the potential for erratic vehicle behavior.” The dead pedestrian paid for this decision.

The vehicle also had a safety driver. Dashboard cameras monitoring the driver’s behavior prove that the safety driver was looking down and away from the road before striking the pedestrian.

Uber has temporarily suspended its testing, but it intends to restart and several other companies are testing.

I have written many times about the danger of distracted driving. It seems likely true that this safety driver felt free to be distracted because of the autonomous nature of the vehicle. It seems like human nature to be lulled into a false sense of security. For autonomous vehicles to be safe, they will need to be totally self-sufficient and not depend on the human driver at all. 

Photo Credit: StockSnap

Workers Lose a Big Case

The United States Supreme Court ruled on 5/21/18 that companies can force their employees to resolve their claims in arbitration rather than in a court of law and that agreements which prohibit employees from banding together in a class action case are enforceable. This decision is a major blow to all workers who have signed employment contracts which contain these provisions.

It is estimated that 54% of non-unionized employers use mandatory arbitration clauses today, up from 2% in 1992.

The vote was 5 to 4 with Justice Ginsberg delivering a forceful dissent from the bench.

Justice Gorsuch, a Trump appointee, wrote for the majority. His opinion appears to be an about face in his thinking. In a 2015 dissent involving mandatory arbitration provisions in consumer contracts, he said prior cases upholding mandatory arbitration provisions “have predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer protection laws.” Obviously, the very same thing can be said of employment contracts and the end result will be that because employers are “insulated” from liability to their employees, they will shortchange, cheat and abuse them. Gorsuch apparently is not worried about his hypocrisy.

With this decision we now have mandatory arbitration in consumer contracts (banks, credit cards, rental agreements, nursing homes, cell phones, etc.) and employment contracts. In effect, the Supreme Court has O.K.’ed the creation of a parallel, private and confidential judicial system that stacks the deck against consumers and employees.

One of the many pities here is that the vast majority of employees have no realistic choice other than to sign these agreements. If you are a nonunion worker and you need the job, you will sign and, even if you don’t sign that agreement, the next place you apply will probably have a similar agreement.

Considering the lack of real wage growth for lower and middle class workers over the last 40 years, it is amazing more workers have not unionized. Without a union, workers have no bargaining power and no legal protection.

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Draining the Swamp? Not So Fast.

The National Rifle Association (NRA) has been in the news a lot lately. Its control of politicians is plain to see. The NRA has about 3 million members and it does have a lot of money it is willing to spend to attempt to unseat politicians who don't toe the line, but with all its power, the NRA is not even close to the most influential special interest group in the game of buying political favor.

Special interest groups who lobby for Big Business in all its many forms are far more financially powerful than the NRA. The NRA does have a hot-button social issue to exploit, but it would be a mistake to underestimate the influence of all the others. For example, Facebook, Google, Amazon and Apple have the biggest corporate lobbying budgets. They spent a combined $49.7 million on lobbying in 2017. This does not include their outside lobbying trade groups or the so-called experts they hire to whisper in the ears of politicians. The recent testimony of Mark Zuckerberg before Congress was nothing more than free air time for politicians. If anything comes of the Facebook privacy scandal, which is far from certain, it will be more heavily influenced by the lobbyists behind closed doors than by that hearing.

Draining the swamp? Politicians won't intentionally destroy their own habitat. 

Photo Credit: Alex Yomare

Before It’s Too Late

“It is strange that we didn’t even notice the moment we lost everything. We didn’t start the fight for our beliefs when it was possible. Now we can do nothing. We can only watch silently as everything is falling apart.”

These words could have been used to describe the ascent of Nazi Germany, but they were actually said recently by a prominent (but anonymous) Russian who was lamenting the fact that his country had let slip its best opportunity to create a liberal democracy following the end of the Cold War and was now facing life under the autocratic rule of the virtual dictator, Vladimir Putin.

As I read the words in a 4/2/18 article in Time magazine, I thought about what is going on in our country. Venomous attacks on the media. Attacks on our judicial system. Attacks on almost every government institution. Attacks on democracy. Attacks on truth itself. Calls for nativisim and racism. Attacks upon science and intellectuals. Tribalism at its worst. The words made me wonder if it is already too late for us. Let us not look back and be forced to say, “We didn’t start the fight for our beliefs when it was possible.”

Photocredit: Wikiimages

Doesn’t Politics Make You Sick?

I have often heard it said that watching lawmakers make law is like watching a butcher make sausage. It is messy and not for the squeamish or faint of heart.

We have just learned that Michael Cohen, President Donald Trump’s personal lawyer and “fixer”, was paid millions of dollars by companies seeking insider influence over Trump. One of those companies is Novartis, a huge Swiss drug maker that had several important drug applications pending before the U.S. Food and Drug Administration and was also concerned about a change in the law that would allow Medicare to negotiate drug prices, several federal inquiries into its marketing practices, price fixing investigations and investigations of corrupt conduct. The negative attention was apparently more than Novartis wanted. In a faux act of contrition, they fired their general counsel who was at least partially responsible for negotiating the contract with Cohen. It is safe to say Novartis would not have thrown its lawyer over the fence if its attempt to grease the political gears had not been revealed.

On May 16, 2018, the Federal Trade Commission confirmed lawyer Andrew Smith to lead its consumer protection unit. Smith has represented so many companies with business before the commission that he will have to recuse himself from dozens of pending cases. The confirmation came as a result of a 3 to 2 party line vote. This is another in a long line of appointments of industry insiders and those with a professed hatred of the agencies they are appointed to lead.

The disgusting thing is that none of this is shocking or even unusual anymore.

At least sausage tastes good.

Photo Credit: Andrea Pumarejo Olivella  

Is Solitary Confinement Unconstitutional?

There are approximately 80,000 inmates in solitary confinement in the United States. The United States Supreme Court seems to be poised to take up the question of whether prolonged solitary confinement is unconstitutional because it violates the Eighth Amendment's protection against cruel and unusual punishment.

There seems to be broad judicial agreement that prolonged solitary confinement without access to at least some outside exercise is cruel and unusual. In fact, Justice Kennedy wrote in a concurring opinion in 2015 that "years on end of near total isolation exact a terrible price" with common side effects including "anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors."

The bad effects of solitary confinement are well known to prison officials. That is why they use solitary confinement as a threat and as punishment.

It seems ironic that probably a majority of the Justices on the United States Supreme Court consider prolonged solitary confinement to be cruel and unusual, while United States Senators are still arguing during the confirmation hearing of Gina Haspel for CIA Director whether physically torturing prisoners in solitary confinement is an acceptable means of conducting an interrogation.

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No Justice

The Houston Chronicle ran a story on 4/20/2018 about Linn Energy, an oil and gas company. Linn Energy was operated as a Master Limited Partnership, which is a corporate structure intended to enhance tax avoidance.

Linn Energy aggressively built its size by incurring massive debt. Servicing the debt depended upon sustained high oil prices. Linn Energy executives paid themselves lavishly along the way. But, oil prices fell and by 2016 when Linn Energy filed for bankruptcy, it had $8.3 billion in debt. Linn Energy is now splitting itself into multiple businesses.

Linn Energy’s investors were wiped out by the bankruptcy, but its top 3 corporate leaders (CEO, COO and CFO) received payouts totaling $110 million. Something is VERY wrong with this picture.

Photo Credit: Brigitte Werner

Why’d You Shoot Me?

I don’t usually write about police shootings, but a decision by the United States Supreme Court on April 2nd, 2018 caught my attention because of current investigations and mass protests.

In the case decided by the Supreme Court, 3 police officers were called to a home in Tucson, Arizona. The call said a woman was acting erratically by hacking a tree with a knife. When the officers arrived, they found an unarmed woman named Chadwick in the driveway of a home. A second woman named Hughes walked out of the house holding a kitchen knife and stopped within six feet of Chadwick. As it turns out, the two women were roommates in the house. The officers drew their guns and ordered Hughes to drop her knife. It is not clear that Hughes heard the command, but when she didn’t drop her knife, one of the officers shot her 4 times. Miraculously, she didn’t die, although the intent to kill her seems plain enough based on shooting her 4 times. Screaming and bleeding, Hughes asked, “Why’d you shoot me?” That is a fair question.

Hughes sued for the use of excessive deadly force.

According to the testimony, Hughes was not moving, spoke calmly, held the knife at her side and made no aggressive movements.

The Supreme Court ruled that the police officer had “qualified immunity” and was not liable. The Court’s decision was unsigned and issued without full briefing and oral argument. In other words, as far as the Supreme Court was concerned, it was a slam dunk for the police. It was so clear that Hughes won’t even receive a jury trial. The Court didn’t overtly say the officer had a right to shoot Ms. Hughes, but it may as well have said it.

Justice Sotomayor, joined by Justice Ginsburg, vigorously dissented. Justice Sotomayor said that because the officer “lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity”. Justice Sotomayor said the decision transforms “qualified immunity” into an absolute shield for law enforcement officers. She concluded by saying: “Because there is nothing right or just under the law about this, I respectfully dissent."

This Supreme Court decision indicates that virtually any excuse will be sufficient to justify a police shooting. Therefore, it seems highly unlikely that the current protests will achieve anything beyond forcing local law enforcement agencies to reexamine their policies and training. However, some lawmakers in California intend to propose a state law that allows police officers to use deadly force only if there is no reasonable alternative. This means police officers will be obligated to use no more force than necessary. This proposal is opposed by law enforcement agencies.

Photo Credit:  JacquesTiberi