The rape trial of Owen Labrie opened a stunningly clear window into the culture of St. Paul’s. It’s a culture that I feel I know well. I know it because I went to Phillips Exeter Academy, which is part of that same coterie of prep schools, and my daughter went to St. Paul’s. Growing up in that culture, this is what I learned about gender relations: first base, second base, third base, homerun. The object was to score, to push against resistance, to overcome by whatever means.
On any given day in the United States, supermax prisons and solitary confinement units hold tens of thousands of men, women, and children in conditions of extreme isolation and sensory deprivation, without work, rehabilitative programming, or meaningful human contact of any kind. These people are confined to small, often windowless cells with solid steel doors, where their only interactions with prison staff take place through “feeling slots,” and their only respite may be one hour a day to exercise alone in a walled or fenced “dog runs.” They may remain in solitary for anywhere from weeks to decades. This massive experiment in total human isolation is one of the nation’s most pressing human rights issues. Continue reading “What Every Harvard Law Student Should Know About Solitary Confinement”
On August 27, 1774, a Saturday, Timothy Paine (Harvard 1748, fifth in class, ranked at the time by “dignity of family”) received some visitors at his home in Worcester. Two thousand militiamen had gathered on the town common, they told him, to obtain his resignation from the Council. King George III had just appointed Paine and 35 others to serve on that powerful body, taking the place of council members who had been duly elected in May, and each of these appointees, like Paine, now had to face the people’s wrath. Continue reading “What Harvard Law Students Should Know about the Popular Roots of Law in Massachusetts”
Marcia Sells will officially assume her position as Dean of Students on September 21, fulfilling the position vacated by Ellen Cosgrove’s departure for Yale Law School. After experiences ranging from ballet to private practice to academia, Sells is looking forward to her role in the Law School’s Administration.
“I like figuring out how to make things work well,” said Sells. “There are opportunities for collaboration between different offices—which is true in any field, especially higher education. I also like the engagement with people who are at different stages of their professional and intellectual development. It is nice to be there, and hopefully have some role in helping people find the beginnings of their paths.”
The Record, the oldest independent law school newspaper in the country, relies on donations to continue publishing, and we would be extremely grateful if you could donate — even a small amount — to help us operate next year. (For more information, see the “donate” tab on our website at the following link: http://hlrecord.org/?page_id=20019.) Publishing costs each year are in the thousands.
Before last year, The Record — a presence since the 1940s — had stopped publishing regularly and had been relegated to an online existence. But last year, with the generous help of former editor-in-chief Ralph Nader, we’ve been able to publish biweekly and to serve as a forum for Harvard Law students and others to debate issues shaking the campus and the broader community. In addition to regularly publishing quality pieces, we’ve garnered thousands of followers on Facebook and Twitter and earned mentions in numerous other media outlets.
I have long considered myself an activist. I have tried to “change the system” by getting elected to boards, submitting shareholder resolutions and writing op-eds. Not a grassroots effort, by any means, but more of a corporate Robin Hood. I’ve never been a street protester, a marcher or a boycotter. I was already out of school and working in the 1960’s and 70’s so I became an “inside” activist.
Then, this past spring I read in the Crimson “Divest Harvard Plans Weeklong Blockade of Massachusetts Hall,” I had to ask myself: why I am not participating? Why not me? And so I went. My wife and I drove to Cambridge and joined the small group gathered to protest Harvard’s investment in fossil fuels. Continue reading “What Harvard Law Students Should Know About Activism”
For more than a decade, the Justice Department morphed its approach to corporate crime, eschewing criminal prosecutions in favor of deferred prosecution and non-prosecution agreements that allowed large corporations to avoid the ignominy of criminal convictions. The trend began during the Bush administration and became so dominant during the Obama administration that the Criminal Division of the Justice Department entered deferred prosecution and non-prosecution agreements in more than two-thirds of the corporate cases it resolved.
There seemingly were no crimes that did not qualify for corporate absolution. The Justice Department entered a non-prosecution agreement in the Upper Big Branch mine disaster that killed 29 miners, even though the Labor Department found that the mine owner had committed over 300 egregious violations of federal mine safety laws. The Justice Department agreed to a deferred prosecution with HSBC, even though the bank was involved in nearly a trillion dollars of money laundering, much of it from drug trafficking. There were no prosecutions at all for the worst financial crisis since the Great Depression, even though financial institutions and officials within those companies took risks and engaged in conduct that imperiled the global economy.
In the movie The Firm, there’s a moment when Tom Cruise realizes the job he accepted fresh out of Harvard Law School (“HLS”), with the apparently staid tax law firm of Bendini, Lambert & Locke, has one major drawback: the Morolto crime family is the firm’s biggest client, and most of its lawyers are heavily involved in money laundering and tax fraud. This raises a question. Could that really happen? John Grisham thrillers are best enjoyed when such doubts are set aside, of course, but the question is a serious one nonetheless, because the plot of The Firm springs from the very real imbalance of power that exists between law students and the law firms that hire them. When law students graduate, they are in the position of apprentices, with little or no experience in the actual practice of their profession. At the same time, the average “apprentice” now starts a career in the law with more than $100,000 in student debt. This combination of inexperience and financial need creates a powerful incentive for law students to seek employment with large corporate law firms, which may pay double or triple the starting salary of a job in government or the non-profit sector. Suppose, then, that such a firm violates the law or rules of professional conduct. Would it be required to disclose that fact as a condition of its participation in the On-Campus Interview (“OCI”) program at HLS? And if not, what safeguards are in place to ensure that students don’t wind up like Tom Cruise, inadvertently agreeing to work for a firm that engages in unethical or even criminal conduct?
Is that title the product of ubiquitous attorney hyperbole? Or accurate? I believe the decision maybe the seminal example of the “King Wears No Clothes” lesson. Indeed, it has spawned no recognition within the popular press, and is apparently not comprehended by any editorial board from the Wall Street Journal to USA Today.
The U.S. Supreme Court case of North Carolina Dental Board v. FTC last month is, for antitrust and state regulatory law, the equivalent of Brown v. Board of Education for education and civil rights. To explain, in 1943 the same Court decided the seminal case of Parker v. Brown. It held that federal antitrust law applies, as a matter of supremacy, to matters affecting interstate commerce (pretty much everything). But an exemption was made for what is termed “state action.” That is, a state regulatory agency could arrange what would otherwise be an antitrust offense. Such a protective status require two conditions: it must be a restraint that was affirmatively articulated by the sovereign state — and it must be subject to “ adequate state supervision.” That second prong is critical. The state may not delegate sovereign power to restrain trade without that independent review. Another subsequent case (Midcal) by the Court made clear that this “supervision” may not be a general or pro forma review. It must be specific and real, and examine the anticompetitive implications of each public decision before implementation.
Since this 1943 decision, much has happened to the political reality of our “democracy.”
Continue reading “What Harvard Law Students Should Know About the Recent Supreme Court NC Dental Case: Arguably the Most Important New Precedent for Public Interest, Administrative, Antitrust, and State Government Law Since 1943”
In Robert Bolt’s play, Man for All Seasons, Sir Thomas More is condemned to death for denying the legitimacy of the king’s divorce. The only witness against him is Richard Rich, an ambitious young lawyer who, by false swearing, dooms More and damns his own soul for all eternity. As More struggles to understand why, he learns that Rich has just been appointed Attorney-General for Wales. “For Wales?” he asks the young man. “Why Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales?”
I think of Richard Rich each time I read of another lawyer who has disgraced himself for power or preferment. Indeed, I have invented the “Richard Rich Society” in my mind for just such people. Their numbers include the Justice Department lawyers who authorized the kidnapping, torture, indefinite detention, and assassination of alleged terrorists by the Bush and Obama administrations. Others abetted these lawyers, or shielded them from exposure or prosecution. No one today would ask if these disgraceful lawyers fear the wrath of a righteous God. However, it is not too much to ask what they will tell their children when asked: “Daddy, what did you do in the war against terrorism?”
Their practiced answer, of course, will be “I kept America safe from terrorists.” However, history books will tell a different story, and the children will learn how their fathers twisted the law to give CIA agents and military guards legal cover so that they might kidnap and torture often innocent “enemies,” and hold them without trial for more than a decade in CIA and military prisons, including Guantanamo – the American Devils Island.
First, the bad news: there is a serious public policy problem at which lawyers, when swinging for the fences, have repeatedly struck out. Now the good news: lawyers, when working with community organizers and labor leaders, are winning terrific precedents.
The policy problem is corporate welfare, especially when states and localities (not counting Uncle Sam) spend an estimated $70 billion per year on “economic development incentives” that are all too often windfalls extracted when companies exploit federalism to whipsaw states against each other.
In a Darwinian corporate version of rising inequality, the problem has gotten much worse the past decade, with the soft economy creating more desperate politicians. Whereas we used to count about 10 “megadeals” per year (essentially deals costing taxpayers nine or ten figures each) for a total of $3 billion annually, we are now counting about 20 megadeals per year costing more than $6 billion.
The common law followed by most states is the so-called “employment at-will” doctrine – that employees can be terminated for any reason. There are many exceptions to the “at-will” doctrine. Discharges in violation of federal or state statutes, for example non-discrimination statutes such as Title VII of the Civil Rights Act, are forbidden. Further many employment agreements, for example collective bargaining agreements applicable to union shops, forbid discharges without “just cause”.
Victims of discriminatory discharge because of race, gender etc., and protected by statute can often enforce their rights by filing charges with the appropriate governmental agency, for example the Equal Employment Opportunity Commission (EEOC) or National Labor Relations Board (NLRB).
2015 is a special year. Exactly 50 years ago, a lot of things in the history of civil rights movement happened: The Civil Rights Act, the March on Washington, the Voting Rights Act, but also the loss of one of the main leaders of the civil rights movements: Malcolm X.
His name was previously Malcolm Little. He replaced the white slave master name of ‘Little’, by the letter ‘X’, which symbolizes the unknown. Ilyasha Shabazz is one of the six daughters of the slain activist (who took the Arabic name El-Hajj Malik El-Shabazz). She held a speech in memory of the Legacy of Malcolm X at Harvard Law School.
In the interview Ilyasha Shabazz shared more information about her family, herself, being the daughter, her father’s life and legacy and what he would think today.
Who was Malcolm X for you?
Malcolm X was a very young man, only in his twenties, when the world learned about him- a very compassionate person, a courageous leader, a man of great faith, who fought for human rights. Just a dynamic, passionate individual. Someone I loved very much, my father.
His childhood seems to have had a deep impact on his future path. What did he experience?
When you look at Malcolm’s life, even in his childhood – as exciting and fulfilling as it was up until the assassination of his father, when he was just six years old- he endured lots of pain. His family house was set afire twice. His father purchased land that was reserved “for whites only” during the Jim Crow Era of the 1920s. His father was killed because of hate, and Malcolm was separated from his siblings and his mother. And even though he was separated from his siblings, he still was very smart: learning the values instilled in him by his parents-the love of education and learning. Even though he was the only African American student, he won the class presidency in seventh grade. His teacher asked him what he wanted to be when he grew up. Malcolm said he wanted to be a lawyer. That means he wanted to fight for human rights, and help others- much as he saw the work done by his father. His teacher told him he could not be a lawyer- that there was a certain way that African Americans had to be in life, and that they should not aspire to be great. And he should be a carpenter and work with his hands.
Later Malcolm X became a leader for human rights. Initially he believed in the separation of black and white Americans as a solution to the racial problem and he rejected nonviolence as a strategy because, in his view, African American should advance and defend themselves “by any means necessary.” He is often contrasted with Martin Luther King, who endorsed nonviolent resistance. Both had the same goal. What do you think about this frequent comparison?
That is right, both had the same goal. I think it is unfortunate that we have to compare or choose one over the other. For instance, when we talk about Thomas Jefferson’s contribution versus George Washington’s contribution, we are not encouraged to choose one over the other. We embrace and respect both contributions. I think even when it comes to Dr. King and my father, we should not have to choose one over the other. We should be grateful that each made the ultimate sacrifice to serve their country for the betterment of their people, to end oppression and to seek social justice.
Also, my father never promoted segregation or violence. We must consider the social climate that Malcolm challenged- and consider that when we see Malcolm, we see him reacting to the violence perpetrated against innocent children, nonviolent protesters, young defenseless men, women, even elders. Not that he ever caused this violence. My father was one of the most highly sought-after speakers in our nation during this time. My favorite speech of his is the one he made at the Oxford Union in the U.K., where he is not reacting to violence but rather engaged in dialogue with his favorite audience- young people: where he plants seeds with young future leaders.
Some months before his assassination, it is often said that he had a transformation. Do you agree?
No, he did not. You know, people always talk about this big transformation. But when you look at him, he continually evolved. He continued to research, to learn, and to adopt his new knowledge in his work. When we first learned about Malcolm X, he was only in his twenties. When he was gunned down, he was 39. So he continued to evolve- and certainly, whoever you are at 20 is not the same person that you will be at 30, 40, or 50. And Malcolm was always compassionate. He was always a responsible, accountable, and great leader, who stood toe to toe with injustice. If something was not right, he challenged it to make it better- for all of humanity.
Initially he focused on working only with African Americans. Later he was open to working with others- no matter what their religion or ethnic background was- as long as the goal was to secure African American rights. How do you see this shift?
That is correct. African Americans were the descendant of enslaved Africa in this country who for so many hundreds of years were psychologically scarred, psychologically traumatized, and not considered or given full rights as a human being. They were considered to be only three-fifths of a human being Their rights were not even included in the Constitution.
During his trip abroad for his pilgrimage to Mecca in 1964, he saw that people of different skin colors and ethnic backgrounds saw and treated each other equally as human beings, and prayed together. He realized that the treatment of blacks in the United States was a particularly American problem was an American problem and that you cannot see all white people as racists. I think being in the U.S.A. all his life, without basic human rights- and then being able to visit other countries- broadened his perspective and further heightened his commitment to improving race relations.
Your mother, Betty El-Shabazz, was a civil rights and women’s rights advocate. How did she face the challenging time after the assassination?
Before her husband was killed, she believed that the woman’s role was in the home, where she could nurture her husband and her children. After her husband was killed she could no longer subscribe to that. So she felt that if she wanted her daughters to have equality and a good education, she would have to work very hard. She invested in herself to get her Ph.D. so that she could take care of her six children. She knew that if she wanted equality and education for us, extracurricular activities like music, religious and history lessons would be important. She had to work very hard to make that possible. And she accomplished even more than that. Because she understood the importance of education and history, she never accepted “no” or “I can’t” as answers for herself. She possessed faith in God and self-respect and self-esteem. She did not live her life as a victim or in despair. She just believed that, whatever it is, you want to make the best of your life.
Being the daughter of a man like Malcolm X, who had such a deep impact on human rights history, is an honor, but it might also involve a lot of outside expectations and pressure. How do you experience it?
Before we understood the icon that is Malcolm X, our mother made sure that we knew him primarily as “Daddy” or “Mommy’s husband”- the loving and compassionate man, that we knew about the importance of his love and compassion, about his intelligence and commitments! It was at school where I learned about him as one of the leaders in the civil rights movement. That was where I learned of racism and injustice.
There was pressure initially, but as I talked about it in my first book, Growing X, I eventually found that my relationship with God was most important, and not the judgment of others: that as long as I could look in the mirror and like me, I would be fine. I am so happy that he is my father. I just honor and respect the work that he did. And so I realized that if I wanted to ensure accuracy of his works so that it could empower young people, then I just have to do the work also.
Why would the legacy of Malcolm and Betty El-Shabazz be so important today?
Each hour someone gets killed through a hate crime. FBI crime report statistics show that at least 8 African Americans, 4 Muslims, 3 Jews, 3 whites, 3 gays, and 1 Latino become hate crime victims every day. Did you know that young people commit the majority of hate crimes in the United States? According to the latest available FBI report statistics, one-half of all the hate crimes in our nation are committed by people between the ages of 15 and 24.
Those numbers are just alarming. I ask the young people: What have you been taught? We teach our children to hate and that means that we are teaching them to hate themselves. We are one of the greatest countries in the world. I ask all young people: Where is your value system, your purpose? We hear this slogan: Black Lives Matter. How specifically does your life matter?
Concerning the rights of African Americans, a lot of things have improved in the last 50 years, but some have not. In recent tragic events, like in Ferguson or on Staten Island, African Americans were victims of police brutality.
The legacy of Malcolm and Betty El-Shabazz is important during this time because people are still being killed, senselessly. This says that we haven’t addressed systemic injustice, institutional racism. The only way it is going to end is if we learn about it and address the root of the problem. All responsible, smart-thinking adults must act and teach our young people better.
Would Malcolm X have a similar viewpoint?
Yes. That is what he was doing 50 years ago. Some people have tried to write him out of history and reduce his significant contributions and character to something he was not. But now, when these problems have continued to exist 50 years later, people suddenly say, “Oh! This is what he was talking about! Oh, look at Malcolm X’s Autobiography!”
What kind of change do you wish to see?
I just want young people to take charge. We all know what we are looking for. We just have to take charge and make it happen. Young people have to be more active, not only in #Black Lives Matter, but in all lives, wherever injustice occurs. We have to have compassion for one another regardless of where we come from. To know that we are sisters and brothers, a family, under the surveillance of God. So if you are in pain because you don’t have education, then I have to help you so that you can have an education. Or if someone else is challenged for whatever reason, that I see it also as my responsibility to act. I am my brothers’ and my sisters’ keeper. Life is about giving something back!
When you say that young people have to be more active beyond #Black Lives Matter, what do you mean by that? How would you suggest they face these challenges?
#Black Lives Matter is an important effort but we have to go beyond it. If I had the answer to how to go beyond it, I would be doing it. I want to address this message to the young, smart, people and students.
It was in the 1960s that young students demanded to have African studies included in the overall educational curriculum throughout the country. That did not exist before. But they demanded it because it was their ancestors who cultivated a once barren land so we could co-exist in one of the greatest countries in the world. Because Blacks made significant contributions, despite all the psychological trauma they had to endure. And those young students]reached their goal.
Today we have Africana studies- but it is not enough. If you want to have change, you have to come together and figure out the next steps with a clear end goal. We cannot just go and make hashtags and say, “Now we are participating in revolution, in the movement, the struggle continues.” We have to look at Malcolm. He was a result-oriented person. He called for smart action and figured it out. You are younger and smarter than me! It is very clear that this generation is going to be the generation that makes the change. I mean, look what happened with the #Black Lives Matter campaign, look at what passionate people are able to do. The idea that they are able to organize all this through social media is one of the greatest advantages. That was amazing. More can be done from it.
You have also written some books. The last one, X: A Novel, which you wrote with Kekla Magoon, was published just last month. Why did you write them?
This book tells about the adolescence of Malcolm X, who was a person like anyone else, but who stood up against injustice. I wrote these books because I want young people to understand their roles in life: that we have to give something back to society. It is not about getting rich, it is about our humanity, our purpose.
Ilyasah Shabazz is the author of the books The Diary of Malcolm X: El-Hajj Malik El-Shabazz, Growing Up X, Malcolm Little, and X: A Novel
Over the past twenty years in American politics, it has become increasingly clear that even conventional liberals (or “progressives”) are not going to produce the kinds of transformative change that our society really needs. Conventional public policy and law have been largely captured by the two major political parties, which themselves are both in tight collusion with business elites. I call it the Market/State duopoly, the incestuous alliance of the two great forms of power in our country, in a tacit collusion against genuine democratic participation and citizen control.
To be sure, we can’t simply walk away from politics, policy and law; they remain vital arenas of engagement. But our politics today is too structurally compromised to produce much significant change. As Senator Elizabeth Warren has said, the game is rigged. We live in a time of predatory business organizations, poorly performing government institutions, moribund democratic participation, and slow-motion ecological collapse.
So how to move forward?
I have come to see great value in seeing our political and legal challenges through the lens of the commons. One general way to understand the commons is as everything that we inherit or create together, which we must pass on, undiminished, to future generations. Our common wealth consists of countless resources that we share such as public lands, federally funded research, the atmosphere, the oceans, the airwaves used by broadcasters. The commons should be understood as a social and political system for managing that shared wealth, with an emphasis on self-governance, fairness and sustainability. The commons is also a worldview and ethic that is ancient as the human race but as new as the Internet.
If you mention “the commons” to someone today, the first idea that usually comes to mind is “the tragedy of the commons.” That idea was launched by biologist Garrett Hardin in the journal Science in 1968. In his now-famous essay, Hardin said, Imagine a pasture in which no individual farmer has a rational incentive to hold back his use of it. He declared that each individual farmer will put as many sheep on the pasture as possible, which will inevitably result in the over-exploitation and destruction of the pasture: the tragedy of the commons. Over the past two generations, economists and conservative ideologues elevated the “tragedy parable” into a cultural cliché because they saw it as a powerful way to promote private property rights and so-called free markets, and to fight government regulation.
But Hardin was not really describing a commons. He was describing an open-access regime that has no rules, boundaries or indeed no community. In fact, the situation he was describing – in which free riders can appropriate or damage resources at will — is more accurately a description of unfettered markets. You might say Hardin was describing the tragedy of the market.
The late Professor Elinor Ostrom of Indiana University powerfully rebutted the whole “tragedy of the commons” fable in her landmark 1990 book, Governing the Commons: The Evolution of Institutions for Collective Action. This book and hundreds of other case studies by Ostrom and her colleagues showed that it is entirely possible for communities to manage forests, fisheries, farmland, irrigation water, wild game and other natural resources as commons, without over-exploiting them.
How? People talk to each other, negotiate rules, build systems to identify and punish free riders, develop community norms, etc. An estimated two billion people around the world depend on these commons for their everyday survival – something that most economists ignore because this self-provisioning takes place outside of conventional markets. For her pioneering work in studying the role of cooperation in generating value, Ostrom won the Nobel Prize in Economics in 2009 – the first woman to win the award.
Another development in the 1990s – the emergence of the World Wide Web – persuaded me that the commons has a bright future. Within a few years after the Web went public, it became clear that cyberspace is a highly generative realm in which neither the state nor the market is the driving force. The Internet is really a massive hosting platform, a new lightweight infrastructure for cooperation that is fantastically generative, because it lets people self-organize their own commons.
By the early 2000s, it was clear that something very new and different had arrived: a new sector of commons-based peer production. This world consists of such powerful forces as free and open source software, which dominate the software world; the great Wikipedia project in dozens of languages and hundreds of wiki offshoots; the estimated 882 million documents and creative works using Creative Commons licenses; and the more than 10,000 open access scholarly journals that bypass the exploitations of commercial publishers. The rise of this Commons Sector simply cannot be explained by mainstream economics and its fictitious model of human beings as selfish, rational, utility-maximizing materialists.
Another noteworthy development in recent years has been the rise of an eclectic international movement based on the principles of commons. It consists of food activists trying to rebuild local agriculture; software programmers building free software and open source software; artists devoted to collaborative digital arts; and scientific communities sharing their research and data on open platforms. It can be seen among seed-sharing farmers in India practicing a kind of open-source agriculture, and among urban activists in Europe who demand a “right to the city” for citizens, as opposed to developers.
The commons movement also consists of many people who are fighting the privatization and commodification of their shared wealth by the “free market.” The “enclosure of the commons” is arguably one of the core dynamics of neoliberal capitalism – to collude with the state to take and marketize the people’s shared resources, whether they be elements of nature, culture and information.
In the US, we have seen timber companies seize great swaths of forests and wilderness that belong to the American people….federal drug research for which we taxpayers have paid billions of dollars, only to see Big Pharma claim monopoly patents….and the corporate privatization of public universities through “partnerships” that essentially annex publicly funded scientific research. Most recently, we have seen the fierce attempts by telecom and cable companies to seize control over access to the Internet in order to convert that great commons into a closed marketplace. Enclosures amount to a massive theft and dispossession of common wealth for private gain.
Market enclosures have provoked the rise of a large movement of commoners seeking to reclaim what is theirs. They include indigenous peoples trying to preserve their ethnobotanical knowledge from the biopiracy of big pharmaceutical and ag-biotech companies. Subsistence farmers and fishers whose livelihoods are being destroyed by industrial harvesting. Latin Americans fighting the neo-extractivist agenda of multinational companies plundering oil, minerals and genetic knowledge.
A whole other realm of commoners is engaged in the creative construction of new commons. You can see them in localities that use alternative currencies, such as the Bangla-Pesa in Kenya, which has made it possible for poor people in slum neighborhoods to exchange value with each other. You see the commons in the explosion of open design and manufacturing – design that is globally shared but manufacturing that is local, inexpensive, accessible to anyone, and modular, in the style of open source software. This movement has produced the Wikispeed car that gets 100 miles per gallon of fuel….the Farm Hack community that has produced dozens of pieces of affordable farm equipment…. and specialized open-source prosthetic limbs that major medical suppliers don’t have the creativity or profit incentive to make.
What unites these highly diverse communities? They are all asserting a different universe of value. They all share a basic commitment to production for use, not market exchange. They are asserting the right of communities to participate in making the rules that govern themselves, and the importance of fairness and transparency in governance. As commoners, they assert the responsibility to act as long-term stewards of resources.
In the 1980s, when Margaret Thatcher was insisting that Great Britain adopt the neoliberal agenda of privatization, deregulation, budget cuts and new privileges for capital, she insisted, as the European Union now insists to the Greeks, “There is no alternative!” The phrase that was later shortened to its acronym, TINA.
Looking around at contemporary commons and the many companion movements bursting out all over, it is clear that the more accurate acronym is TAPAS – “There are plenty of alternatives!” The only question is whether we have the eyes to see them and the courage to commit to them.
The great British critic Raymond Williams put it well: “To be truly radical is to make hope possible rather than despair convincing.” That is the real challenge that we face, to overcome cynicism and hopelessness, and to quicken the many serious alternatives awaiting our creativity.
David Bollier is cofounder of the Commons Strategies Group, cofounder of Public Knowledge, the Washington public-interest group, and author of Think Like a Commoner. He blogs at Bollier.org and lives in Amherst, Massachusetts.
Twenty-eight years ago, Corporate Crime Reporter, a weekly print newsletter, was launched. The Harvard Law School Library was one of our first subscribers. From the beginning, the most popular feature of Corporate Crime Reporter has been a weekly question/answer format interview. Over the years, we’ve interviewed hundreds of prosecutors, defense attorneys, law school professors, reporters, and activists. Our first interview, which appeared in Volume One, Number One on April 13, 1987 was with the premier corporate crime prosecutor of his day.
That was Rudolph Giuliani, then U.S. Attorney in the Southern District of New York. At the time, he was prosecuting the likes of Michael Milken, Ivan Boesky and Marc Rich. President Bill Clinton later pardoned Marc Rich. Apparently Marc Rich’s wife was dumping big cash into the Clinton library. Rudy is now solidly in the hands of the corporate crime lobby. He prosecuted corporate crime as a way to achieve higher office. Then he learned one of the key lessons of corporate crime prosecution.
You can achieve higher office by prosecuting corporate crime. But as you move up the ladder, you have to make nice with the corporate powers that be. And so you turn your attention and rhetoric to various forms of street crime.
Corporate crime lesson number one – prosecute corporate crime to achieve higher office, then get tough on street crime to protect your political position.
Or to simplify it, corporate crime is all about power politics.
Corporate crime inflicts far more damage on society than all street crime combined. Whether in bodies or injuries or dollars lost, corporate crime and violence wins by a landslide. Last year, Credit Suisse pled guilty to helping thousands of Americans file false income tax returns. The company was fined $2.6 billion. Last year, BNP Paribas pled guilty to violating trade sanctions and was forced to pay $8.9 billion.
The costs of just those two crimes dwarf the yearly out of pocket yearly costs of all the burglaries and robberies in the United States ($4.5 billion in 2014 according to the FBI).
Health care fraud alone costs Americans $100 billion to $400 billion a year. (For more on this, check in with your neighbor, Harvard’s own Malcolm Sparrow and his corporate crime classic — License To Steal: How Fraud Bleeds America’s Health Care System (Westview Press, 2000).
The savings and loan fraud – which former Attorney General Dick Thornburgh called “the biggest white collar swindle in history” – cost us anywhere from $300 billion to $500 billion. And then you have your lesser frauds: auto repair fraud, $40 billion a year, securities fraud, $15 billion a year – and on down the list.
(For an incisive analysis on the double standard embedded in the U.S. criminal justice system — street crime versus corporate crime – check out — The Divide: American Injustice in the Age of the Wealth Gap by Matt Taibbi (Random House, 2014)).
Corporate crime is often violent crime.
Recite this list of corporate frauds and people will immediately say to you: but you can’t compare street crime and corporate crime – corporate crime is not violent crime.
Corporate crime is often violent crime. The FBI estimates that, 14,000 Americans are murdered every year. Compare this to the 54,000 Americans who die every year on the job or from occupational diseases such as black lung and asbestosis and the additional tens of thousands of other Americans who fall victim every year to the silent violence of pollution, contaminated foods, hazardous consumer products, and hospital malpractice. These deaths are often the result of criminal recklessness. Yet, they are rarely prosecuted as homicides or as criminal violations of federal laws.
The April 2010 Upper Big Branch mining disaster in West Virginia – cost 29 lives. A Labor Department report found that the company’s unlawful policies and practices were the root cause of the disaster. Yet, the company was given a non prosecution agreement. (More on deferred and non prosecution agreements to settle corporate crime cases below.)
The company’s former CEO, Don Blankenship, is currently facing federal criminal charges in West Virginia in connection with the deaths of the miners. (For the best coverage of his trial — and the politics of corporate crime in West Virginia, follow Charleston Gazette reporter Ken Ward Jr. (Twitter handle: @kenwardjr)
Corporate criminals are the only criminal class in the United States that have the power to define the laws under which they live.
The mafia, no.
The gangstas, no.
The street thugs, no.
But the corporate criminal lobby, yes. They have marinated Washington –from the White House to the Congress to K Street – and all fifty state capitals — with their largesse. And out the other end come the laws they can live with. They still violate their own rules with impunity. But they make sure the laws are kept within reasonable bounds.
Exhibit A – the automobile industry.
Over the past 30 years, the industry has worked its will on Congress to block legislation that would impose criminal sanctions on knowing and willful violations of the federal auto safety laws. Today, with very narrow exceptions, if an auto company is caught violating the law, only a civil fine is imposed.
Corporate crime is under-prosecuted by a factor of say – 100. And the flip side of that – corporate crime prosecutors are underfunded by a factor of say – 100.
Big companies that are criminally prosecuted represent only the tip of a very large iceberg of corporate wrongdoing.
For every company convicted of health care fraud, there are hundreds of others who get away with ripping off Medicare and Medicaid, or face only mild slap-on-the-wrist fines and civil penalties when caught.
For every company convicted of polluting the nation’s waterways, there are many others who are not prosecuted because their corporate defense lawyers are able to offer up a low-level employee to go to jail in exchange for a promise from prosecutors not to touch the company or high-level executives.
For every corporation convicted of bribery or of giving money directly to a public official in violation of federal law, there are thousands who give money legally through political action committees to candidates and political parties. They profit from a system that effectively has legalized bribery.
For every corporation convicted of selling illegal pesticides, there are hundreds more who are not prosecuted because their lobbyists have worked their way in Washington to ensure that dangerous pesticides remain legal.
For every corporation convicted of reckless homicide in the death of a worker, there are hundreds of others that don’t even get investigated for reckless homicide when a worker is killed on the job. Only a few district attorneys across the country have historically investigated workplace deaths as homicides.
White collar crime defense attorneys regularly admit that if more prosecutors had more resources, the number of corporate crime prosecutions would increase dramatically. A large number of serious corporate and white collar crime cases are now left on the table for lack of resources.
Beware of consumer groups or other public interest groups who make nice with corporations.
There are now probably more fake public interest groups than actual ones in America today. And many formerly legitimate public interest groups have been taken over or compromised by big corporations. Our favorite example is the National Consumer League. It was created to eradicate child labor.
But in the last twenty years or so, it has been taken over by large corporations. It now gets the majority of its budget from big corporations such as Pfizer, Bank of America, Pharmacia & Upjohn, Kaiser Permanente, Wyeth-Ayerst, and Verizon.
It used to be when a corporation committed a crime, they pled guilty to a crime.
So, for example, so many large corporations were pleading guilty to crimes in the 1990s, that in 2000, we put out a report titled The Top 100 Corporate Criminals of the 1990s. We went back through all of the Corporate Crime Reporters for that decade, pulled out all of the big corporations that had been convicted, ranked the corporate criminals by the amount of their criminal fines, and cut it off at 100.
So, you have your Fortune 500, your Forbes 400, and your Corporate Crime Reporter 100.
With the advent of deferred and non prosecution agreements, corporate guilty pleas are down significantly. But corporate crime, by all reports, is up significantly.
Today, corporate criminals don’t have to worry as much about pleading guilty to crimes. Three new loopholes have developed over the past five years – the deferred prosecution agreement, the non prosecution agreement, and pleading guilty a closet entity or a defunct entity that has nothing to lose.
Corporations love deferred prosecution agreements.
In the 1990s, if prosecutors had evidence of a crime, they would bring a criminal charge against the corporation and sometimes against the individual executives. And the company would end up pleading guilty.
Then, the Justice Department said – hey, there is this thing called a deferred prosecution agreement.
We can bring a criminal charge against the company. And we will tell the company – if you are a good company and do not violate the law for the next two years, we will drop the charges. No harm, no foul. This is called a deferred prosecution agreement.
And most major corporate crime prosecutions are brought this way now. The company pays a fine. The company is charged with a crime. But there is no conviction. And after two or three years, depending on the term of the agreement, the charges are dropped.
Corporations love non prosecution agreements even more — like the one that Massey Energy got.
In 2007, I was sitting my office in the National Press Building. And into my e-mail box came a press release from the Justice Department. The press release announced that Boeing will pay a $50 million criminal penalty and $615 million in civil penalties to resolve federal claims relating to the company’s hiring of the former Air Force acquisitions chief Darleen A. Druyun, by its then CFO, Michael Sears – and stealing sensitive procurement information.
So, the company pays a criminal penalty. And I figure, okay if they paid a criminal penalty, they must have pled guilty.
No, they did not plead guilty.
Okay, they must have been charged with a crime and had the prosecution deferred.
No, they were not charged with a crime and did not have the prosecution deferred.
About a week later, after pounding the Justice Department for an answer as to what happened to Boeing, they sent over something called a non prosecution agreement.
That is where the Justice Department says – we’re going to fine you criminally, but hey, we don’t want to cost you any government business, so sign this agreement. It says we won’t prosecute you if you pay the fine and change your ways.
Corporate criminals love non prosecution agreements. No criminal charge. No criminal record. No guilty plea. Just pay the fine and leave.
(For a book length analysis of the trend toward deferred and non prosecution agreements, check out a corporate crime classic –Too Big to Jail: How Prosecutors Compromise with Corporations by law professor Brandon Garrett (Harvard University Press, 2014.)
In health fraud cases, find an empty closet or defunct entity to plead guilty.
The government has a mandatory exclusion rule for health care corporations that are convicted of ripping off Medicare.
Such an exclusion is the equivalent of the death penalty. If a major drug company can’t do business with Medicare, it loses a big chunk of its business. There have been many criminal prosecutions of major health care corporations for ripping off Medicare. And many of these companies have pled guilty. But not one major healthcare company has been excluded from Medicare.
Because when you read in the newspaper that a major healthcare company pled guilty, it’s not the parent company that pleads guilty. The prosecutor will allow a unit of the corporation that has no assets – or even a defunct entity – to plead guilty. And therefore that unit will be excluded from Medicare – which doesn’t bother the parent corporation, because the unit had no business with Medicare to begin with.
In May 2007, federal prosecutors brought a criminal prosecution of Purdue Pharma, the Stamford, Connecticut-based maker of OxyContin.
It was reported in the press that the company pled guilty to pushing OxyContin by making claims that it is less addictive and less subject to abuse than other pain medications and that it continued to do so despite warnings to the contrary from doctors, the media, and members of its own sales force.
In fact, Purdue Pharma – the company that makes and markets the drug –didn’t plead guilty. A different company – Purdue Frederick pled guilty. Purdue Pharma actually got a non-prosecution agreement. Purdue Frederick had nothing to lose, so it pled guilty.
Corporate criminals don’t like to be put on probation.
Very rarely, a corporation convicted of a crime will be placed on probation. Many years ago, Consolidated Edison in New York was convicted of an environmental crime. A probation official was assigned. Employees would call him with wrongdoing. He would write reports for the judge.
The company changed its ways. There was actual change within the corporation.
Corporations hate this.
They hate being under the supervision of some public official, like a judge.
We need more corporate probation.
Corporate criminals don’t like to be charged with homicide.
Street murders occur every day in America. And they are prosecuted every day in America. Corporate homicides occur every day in America. But they are rarely prosecuted.
The last homicide prosecution brought against a major American corporation was in 1980, when a Republican Indiana prosecutor charged Ford Motor Co. with homicide for the deaths of three teenaged girls who died when their Ford Pinto caught on fire after being rear-ended in northern Indiana.
The prosecutor alleged that Ford knew that it was marketing a defective product, with a gas tank that crushed when rear ended, spilling fuel.
In the Indiana case, the girls were incinerated to death.
But Ford brought in a hot shot criminal defense lawyer who in turn hired the best friend of the judge as local counsel, and who, as a result, secured a not guilty verdict after persuading the judge to keep key evidence out of the jury room.
It’s time to crank up the corporate homicide prosecutions.
If you would like to know more about criminal prosecutions for workplace and marketplace deaths and illnesses, check out a recent book by University of Maryland Law Professor Rena Steinzor. It’s called Why Not Jail?: Industrial Catastrophes, Corporate Malfeasance, and Government Inaction (Cambridge University Press, December 2014).
There are very few career prosecutors of corporate crime. This despite the fact that universally, white collar lawyers would prefer to work in the public sector than in the private sector. They will tell you this straight up. And they have.
For years, I would raise the then rare example of Patrick Fitzgerald as a career corporate and white collar prosecutor. For more than 20 years, he was U.S. Attorney in Chicago. He put away Scooter Libby. He put away the Canadian media baron Conrad Black. He prosecuted powerful corporations and public officials alike.
But then alas, in 2013, Fitzgerald succombed to seductions of the criminal defense bar and joined his colleagues at Skadden Arps.
Most corporate crime prosecutors see their jobs as a stepping stone to greater things.
Some, like Giuliani, prosecuted corporate crime as a way to move up the political ladder and then into private practice.
Most young prosecutors prosecute corporate crime as a step up into the lucrative corporate crime defense bar.
Corporate criminals often turn themselves into the authorities.
The vast majority of corporate criminal prosecutions are now driven by the corporations themselves. If they find something wrong, they know they can trust the prosecutor to do the right thing. They will be forced to pay a fine, maybe agree to make some internal changes.
But in this day and age, in all likelihood, they will not be forced to plead guilty.
So, better to be up front with the prosecutor and put the matter behind them. To save the hide of the corporation, they will cooperate with federal prosecutors against individual executives within the company. Individuals will be charged, the corporation will not.
The market doesn’t take most modern corporate criminal prosecutions seriously.
Almost universally, when a corporate crime case is settled, the stock of the company involved goes up.
Why? Because a cloud has been cleared and there is no serious consequence to the company. No structural changes in how the company does business. No monitor. No probation. Preserving corporate reputation is the name of the game.
The Justice Department needs to start publishing an annual Corporate Crime in the United States report.
Every year, the Justice Department puts out an annual report titled “Crime in the United States.”
But by “Crime in the United States,” the Justice Department means “street crime in the United States.”
In the “Crime in the United States” annual report, you can read about burglary, robbery and theft.
There is little or nothing about price-fixing, corporate fraud, pollution, or public corruption.
A yearly Justice Department report on Corporate Crime in the United States is long overdue and long resisted.
We must start asking – which side are you on – with the corporate criminals or against?
Most professionals in Washington work for, are paid by, or are under the control of the corporate crime lobby.
Young lawyers come to town, fresh out of leading law schools, 25 years old, and their starting salary is $150,000 a year. And they’re working for the corporate criminals.
Young lawyers graduating from the top law schools have all kinds of excuses for working for the corporate criminals – huge debt, just going to stay a couple of years for the experience.
But the reality is, they are working for the corporate criminals.
What kind of respect should we give them? Especially since they have many options other than working for the corporate criminals.
Time to dust off that age-old question – which side are you on?
(For young lawyers out there considering other options, check out Alan Morrison’s book – Beyond the Big Firm: Profiles of Lawyers Who Want Something More (Aspen Publishers, 2007))
We need a 911 number for the American people to dial to report corporate crime and violence.
If you want to report street crime and violence, call 911.
But what number do you call if you want to report corporate crime and violence?
We propose 611.
Call 611 to report corporate crime and violence.
We need a national number where people can pick up the phone and report the corporate criminals in our midst.
What triggered this thought?
I attended the press conference at the Justice Department in 2007 announcing the indictment of Congressman William Jefferson (D-Louisiana).
Jefferson was the first U.S. official charged with violating the Foreign Corrupt Practices Act.
Federal officials alleged that Jefferson was both on the giving and receiving ends of bribe payments.
On the receiving end, he took $100,000 in cash – $90,000 of it was stuffed into his freezer in Washington, D.C.
The $90,000 was separated in $10,000 increments, wrapped in aluminum foil, and concealed inside various frozen food containers.
At the press conference announcing the indictment, after various federal officials made their case before the cameras, up to the mike came Joe Persichini, assistant director of the Washington field office of the FBI.
“To the American people, I ask you, take time,” Persichini said. “Read this charging document line by line, scheme by scheme, count by count. This case is about greed, power and arrogance.”
“Everyone is entitled to honest and ethical public service,” Persichini continued. “We as leaders standing here today cannot do it alone. We need the public’s help. The amount of corruption is dependent on what the public with allow.”
The amount of corruption is dependent on what the public will allow.
“If you have knowledge of, if you’ve been confronted with or you are participating, I ask that you contact your local FBI office or you call the Washington Field Office of the FBI at 202.278.2000. Thank you very much.”
Shorten the number – make it 611.
And the number one thing you should know about corporate crime?
Everyone is deserving of justice.
So, question, debate, strategize, yes.
But if God-forbid you too are victimized by a corporate criminal, you too will demand justice.
We need a more beefed up, more effective justice system to deal with the corporate criminals in our midst.
Russell Mokhiber is editor of Corporate Crime Reporter and author of Corporate Crime and Violence: Big Business Power and the Abuse of the Public Trust.