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

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”

What Harvard Law Students Should Know About the Torture Lawyers: What Will They Tell Their Children?

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.

Continue reading “What Harvard Law Students Should Know About the Torture Lawyers: What Will They Tell Their Children?”

What Harvard Law Students Should Know About Reining In Corporate Welfare

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.

Continue reading “What Harvard Law Students Should Know About Reining In Corporate Welfare”

What Harvard Law Students Should Know About the Rights of Employees to Litigate Claims of Wrongful Discharge

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).

Continue reading “What Harvard Law Students Should Know About the Rights of Employees to Litigate Claims of Wrongful Discharge”

My Father, Malcolm X: Daughter Ilyasah Shabazz on Her Father

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

What Harvard Law Students Need to Know About the Commons

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.

20 Things You Should Know About Corporate Crime

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.

Number 20

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.

No comparison.

(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)).

Number 19

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.

Not true.

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)

Number 18

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.

Number 17

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.

Number 16

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.

Number 15

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.

Number 14

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.

Number 13

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.

Number 12

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.)

Number 11

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.

Why not?

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.

Number 10

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.

Number 9

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).

Number 8

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.

Number 7

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.

Number 6

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.

Number 5

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.

Number 4

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.

Number 3

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))

Number 2

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.

Number 1

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.

What Harvard Law Students Should Know About For-Profit Colleges

I’m a Washington DC lawyer and policy advocate, and I spend a couple days a week trying to expose and end the abuses of a particularly bad industry: predatory for-profit colleges. I am regularly contacted by industry employees who no longer can live with being part of an immoral enterprise:

  • The marketer at a Utah “lead generation” company who is assigned to placing fake ads for non-existent jobs on the Internet, aimed at luring unemployed people to provide their contact information.
  • The telephone rep at a Florida call center, who grabs the leads that were generated, and tries to deceive these people – low-income single parents, veterans, and others struggling to get ahead – into buying high-priced, low-quality career training programs, many conducted entirely online.
  • The California college librarian, heartbroken because her school has admitted to its $80,000 criminal justice a program a mentally challenged man who reads on a third grade level and believes he is training to become a police officer.

These employees talk to me about feeling ashamed, degraded, disgusted with what they’re doing.

Yet their ultimate bosses, the CEOs of the big predatory for-profit colleges, seem to have no such shame. Nor do the many power brokers and celebrities, from Suze Orman to Colin Powell, Trent Lott to Dick Gephardt, Marc Morial to Mitt Romney, who have been hired, one way or another, to endorse and defend bad actors in this industry. Nor do the many graduates of Harvard Law and other premier institutions who get rich as executives and advisers with predatory for-profit colleges.

When you leave Harvard, you will have a world of opportunity. The question posed for you by the story of for-profit colleges is whether you want to be paid to shield the privileged even when they engage in blatant abuses, or whether you want to use your talents and creativity to help build a stronger, more just, more innovative, and more productive society that benefits everyone.

A for-profit college is a college that’s owned by a profit-making business, as opposed to the more traditional model of a college operated by a state or by as a non-profit.  Most for-profit colleges focus on training students for careers, in fields from information technology to health care to auto repair.  There’s a strong need for such training programs, and there’s nothing wrong in theory with the idea of having businesses run them, but in practice it has created a big problem for students and taxpayers.

Many for-profit colleges get about 90 percent of their revenue from federal government grants and loans provided to help students get an education.  These businesses hire lobbyists to loosen the government’s rules for getting such aid. They also spend heavily on campaign contributions that have helped buy the allegiance of almost all the Republicans in Congress, and many of the Democrats as well.

As a result, the rules are very weak, and for-profit colleges can maximize their profits by ripping off students – using deceptive advertising and coercive recruiting, charging very high prices, and spending far too little on teaching and helping students build careers. The victims of these abuses have seen their financial futures ruined by overwhelming student loan debts reaching over $100,000 in some cases.

Some for-profit colleges are honest and do a good job educating students, and there are good teachers and students at even some of the worst schools. But overall, the industry is hurting people and our economy, while making a small group of owners rich enough to buy their own yachts, private planes, and mega-mansions.  For-profit colleges have obtained as much as $32 billion a year from federal aid, and their lobbyists work every day to keep that money flowing.

For-profit colleges, like other kinds of colleges, are eligible to receive federal student grants and direct loans — if they receive approval from organizations called accreditors. Many accreditors apply fairly low standards. Some for-profit colleges, such as some local strip-mall beauty schools or the infamous Donald Trump University, still don’t bother to get accredited, and thus students are not eligible for federal aid.  Most for-profit colleges do get federal aid, but many of their students need more aid than that to pay the high tuition costs.  So for-profit colleges steer many students into non-federal private loans that come with very high interest rates that can reach 15 percent or more, as compared with 3.8 percent for federal loans.

For-profit colleges tend to have graduation and job placement rates at the low end of the scale, especially given their high prices.  Here is one key statistic that shows the poor performance overall of for-profits: According to the U.S. Department of Education, for-profit colleges now have about 13 percent of all US college students, but they account for nearly half of all defaults on student loans. The Department also found that 72 percent of the for-profit colleges it surveyed produced graduates who on average earned less than high school dropouts.

There are real challenges in figuring out how to provide quality career education to people at affordable prices. But instead of focusing on that important work, Washington education policy advocates and lawyers are caught up in a debate defined by the for-profit college industry using pressure to keep billions in federal dollars flowing with no accountability whatsoever. Because their wealth comes almost entirely from taxpayers, the for-profit college industry is a monster that Washington has created. It’s difficult to stop this monster.

But in recent years federal and state law enforcement agencies have launched extensive investigations of for-profit colleges for defrauding students and taxpayers. Many of the biggest for profit colleges – including University of Phoenix, EDMC, ITT Tech, Corinthian, Kaplan, Career Education Corp., and DeVry – are under investigation by federal agencies and / or state attorneys general.  Some for-profit colleges – including ATI Technical Institute and FastTrain College — have been shut down for their frauds, and some for-profit college executives have been sent to prison.

These law enforcement probes, coupled with an increasing volume of media exposes, have finally helped get the message to potential students that they might do better at a community or state college. But the for-profits continue to run deceptive ads endlessly on TV and the Internet; before he was killed in Ferguson, MO, Michael Brown had enrolled at for-profit Vatterott College, a school that has been punished in court for deceiving its students and leaving them worse than they started and whose executives received criminal convictions for defrauding the government.

President Obama is well aware of the scam. His Administration has sought to implement a new rule (called “gainful employment”) to channel aid toward programs that were actually helping students and away from programs that consistently leave students with overwhelming debt. But an army of industry lobbyists and lawyers have managed to water down the rule and then have it struck down in court, on the ground that the Department had failed to articulate a clear rationale for one component of the regulation.

Right now, APSCU, a trade association dominated by predatory for-profit colleges, is back in court trying to block a new version of this rule. I work with a coalition of student, veterans, labor, consumer, and civil rights groups urging the court to decide that the government has the right to demand at least minimal performance standards, that predatory companies do not have a permanent entitlement to take billions in taxpayer dollars without regard for the consequences for students and our economy. (This litigation, and many other aspects of this issue, are ripe for further exploration through your law school papers and law journal articles.)

When you consider a debate like this, think about your future as an attorney. Which side will you be on?

David Halperin engages in policy, advocacy, communications, and legal work in Washington DC. He is a Yale Law graduate who took his third year of classes at HLS. A former White House speechwriter for President Clinton, Halperin is the author of Stealing America’s Future: How For-Profit Colleges Scam Taxpayers and Ruin Students’ Lives (Amazon ebook). You can reach him through his blog: RepublicReport.org/contact .


On the Large Potential of Small Claims Courts

When I was in law school, I bought a laptop that turned out to be a lemon. It would overheat during class, sending the cooling fan into overdrive, and by the end of an hour it whirred loud enough to turn heads several rows away. Soon it started to crash. “System failure,” the screen would read upon rebooting. And then, two years after I bought it, the machine crashed for the last time: “massive system failure,” it said.

This was not a cut-rate computer. It was a Toshiba – supposedly one of the best brands – and I bought it from a reputable national retailer for $1,500. So I called the store. The manager’s response was as predictable as it was unsatisfactory. Since the warranty had expired, the store – OK, it was Micro Center on Memorial Drive in Cambridge, but it easily could have been another – wouldn’t even look at it unless I paid a “diagnostic fee” of $95. My only recourse now, the manager insisted, was to contact the manufacturer.

Just as predictably, Toshiba declined to accept responsibility for the defective machine, due to the expired warranty. But my call to corporate headquarters yielded an interesting fact: someone else had purchased the computer two months before I did, and registered it with Toshiba. That person had apparently returned the computer to Micro Center, and Micro Center then sold it to me as new.

Every state has laws that are intended to protect consumers from such abuses by prohibiting unfair and deceptive business practices. [1] In most states, including Massachusetts, the law provides citizens with a private right of enforcement by means of a civil action for damages. [2] The Massachusetts Consumer Protection Act, like many other state laws, also allows a prevailing plaintiff to collect treble damages for knowing or willful violations, plus costs and attorney’s fees. [3] But often no attorney is needed, because consumers can represent themselves in small claims court.

Small claims courts are the most accessible forum of law available to American citizens. States began to establish them in the early twentieth century, following publication of an influential article by Roscoe Pound, which argued that consumers should have a mechanism for pursuing relatively minor claims without incurring the expense of a full-fledged lawsuit. [4] Today small claims courts exist in every state, and although their rules vary, they share the same basic characteristics: costs are minimal, procedures are simple, and adjudication is lightning fast in litigation time. Filing fees range from $15 to $150, depending on the state, while the maximum claim value ranges from only $2,500 in Kentucky and Rhode Island to as much as $25,000 in Tennessee. [5] Massachusetts falls in the middle: filing fees are between $40 and $150, depending on the value of the claim, and the maximum claim value is $7,000 (except there is no limit on property damage claims arising from an automobile accident). Apart from those requirements, anyone with a grievance can have their day in court simply by filling out a complaint form and appearing at the scheduled hearing. Massachusetts also permits parties to be represented by an attorney, though some states do not.

Despite the original purpose of small claims courts, and the ease with which average citizens can access them, their dockets tend to be dominated not by consumer claims, but by debt collectors and other business interests pursuing claims against individuals. [6] A study of a California small claims court found, for example, that corporate or business plaintiffs filed 56 percent of all cases in 2002, while only 36 percent were filed by individual or private party plaintiffs, and the remaining 8 percent were filed by government plaintiffs. [7] The authors surmise that corporations are simply more familiar with the small claims court system than average citizens, and that collecting debts is a normal part of the corporate business structure. [8] But whatever the cause, they conclude, “the system has been over utilized by businesses and corporations.” [9] In other words, to some extent small claims courts have been functionally hijacked by the very interests they were intended to check.

This is not a new phenomenon. As early as 1972, a comprehensive legal study of small claims court referred to it as “the forgotten court,” because the spirit of reform that gave rise to it appeared to have moved on. [10] But the debt collectors have not forgotten. In 2006, an investigation by the Boston Globe concluded that small claims courts, with their relaxed procedures and evidentiary standards, “have mutated into a system that ignores individual rights and shows favoritism toward debt collectors and their lawyers.” [11]

To be sure, small claims courts may be subject to abuse by unscrupulous debt collectors – and that is just one of many valid criticisms. [12] But they can also be an effective forum for accomplishing exactly what they were originally intended to do. In my case, for example, a $1,500 lemon was more than I could swallow, and so I sent Micro Center a demand letter requesting restitution or some other reasonable resolution. Micro Center declined, and soon we were appearing before a magistrate judge in the small claims division of Cambridge District Court. I presented my evidence, which Micro Center didn’t dispute. Its representative also helpfully admitted that Micro Center routinely sold floor models and returned merchandise as new, without notice to the customer. Justice was swift – I was awarded treble damages, plus costs, for a judgment of more than $4,500.

Everyone, it seems, has their own “Micro Center” story. In today’s economy of mass produced goods and automated transactions, the consumer who has never been victimized by defective products, shoddy services, overcharges, hidden and unauthorized fees or other unlawful business practices is vanishingly rare. But all too often, consumers accept these abuses as a cost of doing business if they want cable television, cell phones, rental cars, airline travel, hotel rooms and all the other amenities or necessities of modern life. Some people may be unsure of their rights, or how to go about obtaining a remedy. Others may not even know they have a claim, because putative corporate defendants have become so adept at warding off litigation by citing boilerplate provisions of their fine print contracts.

Imagine if more consumers were willing to challenge corporate malfeasance in small claims court. Corporations might soon decide that unfair and deceptive business practices weren’t so cost-effective anymore. They might even start treating consumers with the kind of honesty and fairness that real people expect from each other in business. That’s the idea behind the Small Claims Action Center, a new non-profit organization launching in Washington, DC. SCAC will help ordinary people use consumer protection laws to obtain justice in small claims court, while raising awareness among similarly situated parties who also may have meritorious claims. The more individual plaintiffs who are made whole, the greater the deterrent effect small claims court will have against the abusive and unlawful corporate practices proliferating today.

Those who doubt that small claims court litigation can produce a meaningful deterrent effect may be surprised to learn that it has already done so, albeit in isolated instances. In the early 1980s, for example, more than 100 people filed separate small claims actions against the San Francisco Airport, seeking the jurisdictional limit in nuisance damages for excessive noise. The small claims court awarded judgment in favor of each plaintiff, and the appellate courts upheld the judgments. [13] In doing so, the Court of Appeals expressly rejected the city’s arguments that the claims were too “complex” or otherwise “inappropriate” for resolution in small claims court. [14]

The same thing can happen again. And again, and again, and again.

Oliver Hall is a public interest attorney in Washington, DC. He is founder and legal counsel to the Center for Competitive Democracy.

[1] See Carolyn Carter, Consumer Protection in the States: A 50-State Report on Unfair and Deceptive Acts and Practices Statutes, NATIONAL CONSUMER LAW CENTER (February 2009).

[2] See MASS. GEN. LAWS ch. 93A (2014).

[3] See id. at § 9(3).

[4] See Roscoe Pound, The Administration of Justice in the Modern City, 26 HARV. L. REV. 302 (1913).

[5] See NOLO, Small Claims Court: The Basics (visited February 20, 2015) <http://www.nolo.com/legal-encyclopedia/small-claims-court>.

[6] See Bruce Zucker and Monica Her, The People’s Court Examined: A Legal and Empirical Analysis of the Small Claims Court System, 37 U. SAN. FRAN. L. REV. 315, 341 & n.143 (Winter, 2003).

[7] See id.

[8] See id.

[9] See id. at 340.

[10] See Barbara Yngvesson and Patricia Hennessey, Small Claims, Complex Disputes: A Review of the Small Claims Literature, 9 L. AND SOC. REV. 2, 219 (Winter, 1975).

[11] See Michael Rezendes et al., Dignity Faces a Steamroller, BOSTON GLOBE (July 31, 2006).

[12] See, e.g., Jeffrey H. Joseph and Barry A. Friedman, Consumer Redress Through the Small Claims Court: A Proposed Model Consumer Justice Act, 18 B.C. IND. AND COMM. L. REV. 5, 839 n.2 (June 1977).

[13] See City and County of San Francisco v. Small Claims Division, 190 Cal. Rptr. 340 (Ct. App. 1983).

[14] See id. At 343-44.

What Harvard Law Students Should Know About Equal Justice Works

A few weeks ago, I was visiting with Ralph Nader HLS ’58. I have known Ralph for most of my life and have seen how his dedication to the public interest has created enormous impact on so many issues including consumer rights, car safety, protecting whistleblowers, and corporate misconduct to name a few.

While Ralph is extraordinary, he is certainly not alone. Thousands of lawyers have dedicated their careers to helping under-served communities and causes. The vast majority of these lawyers will say they are incredibly happy with their choice, even though it meant a great deal of personal and financial sacrifice. It is hard but fulfilling work.

Here’s the problem: As the gap between the rich and poor continues to grow, we face a crisis in who has access to justice. There is just one legal aid attorney available for every 6,415 low-income Americans. About 80 percent of defendants in criminal cases can’t afford a lawyer, and the majority of parties in housing, probate, and family courts across the country go unrepresented. All the while, corporations and the wealthiest citizens can afford to hire the best lawyers.

The justice gap in America is a moral crisis, but dedicated law students and lawyers can help. Today, more students enter law school with public interest aspirations than in a generation. Many have been in AmeriCorps, Teach for America, the Peace Corps or have experienced the satisfaction of community service in high school or college. They are hungry for opportunities to serve. Unfortunately many are blocked by the scarcity of public interest jobs and mortgage sized educational debts.

Equal Justice Works, a national nonprofit dedicated to empowering tomorrow’s public interest lawyers, provides programming for students who want to take their public interest commitment to the next level. We pave the way for law students to build careers they dream of –careers that do more than pay the bills – by offering a continuum of programs for law students and young lawyers dedicated to closing the justice gap

Law students should learn how to manage their educational debt before it gets overwhelming. Students can supplement their eligibility for Harvard’s innovative Low Income Protection Plan (LIPP) with many of the educational resources offered by Equal Justice Works. We provide free monthly webinars and a free e-book, “Take Control of Your Future,” that contain comprehensive information on programs that can help you manage your student debt, like income-driven repayment plans and Public Service Loan Forgiveness (PSLF). You can get legislative updates, primers on debt relief programs, and more on our Huffington Post blog.

As a student, you can read about unique public interest law projects and enroll in AmeriCorps JD to cultivate your skills and work with 720 other law students across the country to deliver crucial legal services to people in need. Those with a passion for public service can act as student leaders, raising awareness about the need for public interest lawyers and inspiring other students to explore opportunities to expand access to justice. Because of Equal Justice Works’ student-led Law Students for Pro Bono campaign, thousands more law students across the country will be exposed to public interest law through pro bono requirements like Harvard’s.

You will find a wealth of public interest legal opportunities at the Equal Justice Works Conference and Career Fair, where more than 1,200 law students and recent graduates meet in Washington, D.C. in October to network, participate in cutting edge workshops about public interest law, receive media coaching, and interview for positions with over 140 public interest employers from around the nation.

Students entering their final year of law school can look to Equal Justice Works for answers to that pervasive question – “what’s next?” We offer the largest postgraduate legal fellowship program in the country with 285 Fellows currently in the field. An amazing 85 percent of our former fellows remain in public interest law to this day.

You can apply to help veterans with homelessness, debt, and other legal issues in the Veterans Legal Corps. You might seek to assist individuals in obtaining employment by expunging or sealing criminal records and restoring occupational and driver’s licenses with the Employment Opportunity Legal Corps. If you are committed to helping the recent wave of unaccompanied immigrant children receive assistance and fair representation, apply to Justice AmeriCorps. And if you wish to work with low-income communities to preserve and improve Section 8 housing, you can join the VISTA Affordable Housing Preservation Project. You can also apply for a privately funded Equal Justice Works Fellowship, where you design and implement your own project on any issue from environmental justice to LGBTQ advocacy.

One Harvard alumna, Megumi Tsutsui, is turning her law school experience into a rewarding public interest career through an Equal Justice Works Fellowship. Megumi did clinical work at the Legal Services Center, offering assistance to victims of predatory lending and debt collection. There, she realized an unmet need for the protection of low-income and minority populations against these malicious practices. She designed a plan to cultivate financial stability in low-income and Latino communities in the Bay Area by resolving bad debt and facilitating access to affordable loans. Megumi was awarded an Equal Justice Works Fellowship. Now you can find her in Oakland at Housing and Economic Rights Advocates, continuing the work she started as a student and making her plan a reality.

Megumi isn’t alone. Many Harvard alumni have received these Fellowships to design and implement their own groundbreaking projects. In Michigan, 2014 Equal Justice Works Fellow Jessica Frisina is working to throw a wrench into the school-to-prison pipeline for Detroit’s children, representing them in juvenile court and organizing the local community in advocating for restorative alternatives to incarceration and expulsion.

In California, 2013 Equal Justice Works Fellow Annie Hudson-Price is representing court-involved veterans suffering from service-related trauma and illness while promoting the widespread adoption of Veterans Treatment Courts as community-based alternatives to traditional sentencing models. And right here in Massachusetts, 2013 Equal Justice Works Fellow Erica Boyce is providing legal assistance and educational outreach to independent commercial fishermen on Cape Cod, facilitating mediation and training in dispute resolution to resolve entrenched conflicts between independent fishermen and the massive fishing companies that threaten their livelihoods.

Harvard Law students have more support for public interest pursuits than any other law school in the country. With its comprehensive course offerings, pro bono requirement, student practice organizations, and nearly 30 in-house clinics, Harvard Law School gives its students exemplary tools to cultivate public interest careers.

You have the power to be a force for justice. Under-served community and causes desperately need your talents. And Equal Justice Works has the resources to help you along the way.

David Stern is Executive Director of Equal Justice Works. Visit www.equaljusticeworks.org to learn more about innovative programs and resources that are empowering and mobilizing the next generation of public interest lawyers.

What Harvard Law School Students Need to Know About How They Can Help College and High School Teachers Introduce Tax Policy Issues in Their Curriculum

Here’s a challenge: Try to find a serious discussion of our nation’s tax policies in the curriculum of any liberal arts college or university. Good luck! The subject rarely earns more than minor attention even in economics courses. And it’s virtually absent from our high schools.

No one should be surprised. Consider this anecdote. In the late 1990s, I met with Arthur Schlesinger, Jr. to see if he would write a blurb for my forthcoming book, If Americans Really Understood the Income Tax. A favorite professor of mine when I was a Harvard undergraduate decades earlier, Schlesinger remained one of our country’s most distinguished U.S. historians. His initial comment: “But John, I know nothing about taxation.”

One reason: Never having been taught about our tax laws, let alone tax policy issues, professors as well as high school teachers have little idea what to teach and how to teach it. So they ignore what deserves to be part of a basic civics education.

With troubling implications: Taxation must have little bearing on our nation’s history or its future–on our social history, including issues of race, class, gender and poverty; on our nation’s economic growth; on our government’s ability to pay its debts and fund essential programs. At a minimum, students could well assume that the subject is beyond them, either because it’s inherently within the purview only of tax experts or because “my brain doesn’t do numbers.”

Here’s a different perspective. Except for the U.S. Constitution, federal tax laws represent the most comprehensive expression of our nation’s values. The laws touch upon nearly every aspect of our lives—housing, health care, education, jobs, unemployment, entitlements, marriage, divorce, children and childcare, retirement, charities and charitable giving, the environment, and on and on. The tax choices Congress makes crucially shape who we are as a nation and what we will become. Our young people need to know this.

Put differently, a public illiterate about our government’s tax policies is vulnerable to countless misleading statements about them. This is dangerous. We can’t afford it.

The case for introducing the subject to a college or high school curriculum is particularly timely now given the need for genuine reform of our nation’s dysfunctional income tax, and the vast divide between the parties about what such reform should mean. There is widespread agreement that a simpler tax system could be both fairer and promote greater economic growth. Rhetoric aside, we remain mired in a clash of two shouting matches: Taxes must not be raised on anyone—indeed, they already are too high, particularly on “the rich,” according to most Republicans–or taxes must be reduced on “the middle class” and raised only on “the rich,” the view of most Democrats, including President Obama.

Both arguments share one characteristic: They are data free. The public hears only conclusions, as if either argument is self-evident. Here’s what’s not self-evident: However “middle class” or “rich” is defined—and the choices seem unlimited– the tax liabilities of households within each category depend on far more than the size of their income. With well over 100 tax breaks protecting nearly half of all individual income from tax—nearly $7 trillion of untaxed income last year alone—households of equal size and equal incomes seldom owe equal taxes. Rather, the amount we owe depends far too much on our ability to avoid taxes than on our ability to pay them, whether we are middle class or rich.

Probably to your great surprise, all this can be understood by high school juniors and seniors in an hour.

My confidence stems from experience. For 25 years I taught a seminar for liberal arts students at Mount Holyoke College on the social and economic outcomes of our tax laws. And for the last year and a half, I have given numerous one-hour talks on the subject to high school juniors and seniors studying economics, U.S. government, or U.S. history. The teachers value it. The students get it.

But let’s make it a series of five-one hour talks that you—Harvard Law students—can help prepare that will enable college professors and high school teachers to introduce the major tax issues of the day to their students. Consider these topics I have covered in a single hour on the federal individual income tax for high school students:

First: The choice of an income tax vs. some form of consumption tax.

Second: The central revenue-raising role of the individual income tax and the need, therefore, that it be well designed and respected.

Third: The choice of progressive rates—those now and since 1913–vs. a single flat rate.

Fourth: The vast difference between “economic income” and “taxable income” under our tax laws, in which nearly half of all individual income escapes taxation through tax breaks for personal matters, such as for owning a home, buying health insurance, funding a retirement plan.

–Two consequences: (1) Tax rates on the remaining “taxable income” must be much higher than would be true with far fewer tax breaks; and (2) it is unlikely that people with equal abilities to pay will pay equally.

Fifth: Most of the “missing income” from personal tax breaks appear as exclusions, deferrals and deductions (each explained) that save the most taxes for people in the highest marginal tax brackets.

–Still, the top quintile of income earners pay about 90% of all federal individual income taxes, a much higher share of such taxes than their share of all income. (Low- and moderate-income households, while paying little or no federal income taxes, pay substantial Social Security and Medicare taxes, federal, state and local sales taxes, and, in some cases, state income taxes.)

Sixth: My favorite example: The home mortgage interest deduction—the most prized of all tax breaks and a third rail of American politics. Let’s assume it exists to promote homeownership.

–The law: Taxpayers may deduct the interest on up to $1 million of loans to buy, build or substantially improve up to two homes that they use personally.

–The estimated tax savings, and cost to the government, over five years: $400 billion (from Congress’s nonpartisan Joint Committee on Taxation).

–Who gets that $400 billion? (based on 2014 distribution by the Joint Committee)
For the bottom half of all tax returns: 2% ($8 billion);
For the top half of all tax returns: 98% ($392 billion);
For the top 5% of all tax returns: over 40% (over $160 billion).

Then questions and observations:

–Does the deduction significantly increase the percentage of home ownership? Probably not.

–The deduction drives up house prices.

–The deduction may create double losers: those who don’t benefit from the deduction and may pay higher rents if there are fewer rental apartments because so much capital is drawn to homeownership.

–Our economy may be stronger if fewer tax dollars subsidized expensive homes.

Finally, a discussion of possible reforms, such as subsidizing only a single, basic home; tax credits to subsidize the purchase, with the credits declining as incomes rise; lowering tax rates for everyone if these and other reforms significantly increase the amount of taxable income.

Professors and teachers need your help to craft these discussions. My bet is: you’ll enjoy it.

John O. Fox holds degrees from Harvard College, A.B. 1960; University of California at Berkeley Law School, LLB, 1964; Georgetown University, LLM in Taxation, 1968. He has practiced law in Washington, D.C., 1964- 2000; was visiting professor, Mount Holyoke College, 1985-2011; and is the author of If Americans Really Understood the Income Tax (Westview, 2001), op-eds in Washington Post, New York Times and other publications. He can be reached at johno.fox@comcast.net or 760-778-5222 in California, and, after April 2015, at 413-549-2604 in Massachusetts.

What Harvard Law Students Need to Know About Law School Transparency

In March 2012, I participated on a panel at Harvard Law School’s Global Legal Education Forum. We were asked to unpack the crisis in legal education. As co-founder of Law School Transparency (LST), I discussed the importance of eliminating deceptive law school marketing and increasing the availability of high-quality consumer information. One of our core goals is to empower prospective law students to make smart decisions about whether and where to attend law school. Information, and the narrative surrounding the pursuit of transparency, is paramount to that goal.

Prior to the panel, a well-meaning event organizer approached me. He accurately predicted that my opening remarks would stress how reliable consumer information stimulates competition. The S.J.D. student then suggested that I eliminate the word “consumer” from LST’s advocacy efforts. While he agreed that transparency was critical, he reasoned that pursuing a legal education is not merely or even predominately transactional. We were likely to lose out on potential support from some within the legal academy by using consumer-laden terms.

I thought carefully about his advice for weeks. Ultimately, I decided to stick with the evocative consumer frame. These word choices remind those in and around the profession, as well as those who want to join it, that pursuing a legal education has a distinctly transactional feel. Obtaining a legal education may be primarily about acquiring new knowledge and new skills, but choosing to attend law school today has an awful lot in common with buying a car or obtaining a mortgage.

Neither a home nor car purchase is inherently hazardous, but when a sophisticated party enjoys a major advantage over the other, e.g. an information asymmetry or disparate bargaining power, the results get unfair quickly. The law school process is brimming with examples demonstrating that students need help overcoming foreseeable disadvantages—especially would-be first-generation lawyers.

For many years, law schools withheld meaningful post-graduation employment data from students. The American Bar Association’s accreditation process blessed deceptive if not fraudulent statistics manufactured by schools. Schools counted all employed graduates equally, whether they worked as an associate at a large firm or as a barista at Starbucks or in a temporary job at their law school. Schools also declined to publish survey response rates when advertising starting salaries. Against a widespread belief that law school is a ticket to financial security, statistical chicanery distorted decision-making. Many students would have chosen another school or demanded to pay less if they had known the truth.

Competition among law schools is fiercer than ever. Schools still hire their own graduates to boost employment rates and rankings, although they must disclose it. While disclosure norms have changed, 40% of law schools still do not share their NALP Report, a handy report teeming with useful consumer information. Every school receives its school-specific report from NALP annually.

Unfortunately, Harvard Law School remains one of the holdouts. HLS should have nothing to hide, so the school has zero excuse to withhold information from its applicants. HLS could choose to disclose its NALP Report and stop aiding other schools from distorting student decision-making.

In addition to a continued information asymmetry, law schools have become more creative in their marketing, particularly concerning pedagogical and curricular changes that are challenging to parse. Even the cost of obtaining a legal education is obscure for students. The accumulation of interest on student loans during law school surprises more students than it should. Tuition increases are inevitable yet difficult to predict. And many law schools prey on optimism bias through conditional scholarship programs, which eliminate scholarships based on GPA and cause these students to subsidize higher-performing students.

Applicants also generally misunderstand the purpose of most scholarships; they frequently view scholarships as gifts rather than incentives. As we reinforce the effectiveness of negotiation and emphasize the strong bargaining position today’s applicants have in a soft market, we empower them to confront extraordinarily high prices.

Law schools leave too many people full of potential without hope post-law school. Poor choices in a life-altering financial commitment negatively impact students and their families. Purchasing a legal education is a transaction, and reliable consumer information is essential for combatting unfairness. We can help students become more sophisticated, like the institutions collecting their tuition.

We will continue to change the rules and the norms so that new lawyers join our profession with their eyes wide open. To this end, LST provides prospective law students with two key resources. The LST Reports offer a popular alternative to the U.S. News & World Report law school rankings. We also recently launched a podcast called I Am the Law, which expands public knowledge about the many roles that lawyers play.

We built the LST Reports (www.LSTScoreReports.com) on ABA-required data and data that we obtain from law schools through voluntary disclosure. To help people sift through schools and mountains of data, we carefully organize employment, admissions, and financial data. We help visitors see the big picture and, if they choose, the fine detail. In effect, we empower them to make strategic decisions and informed choices.

Statistics drive the LST Reports. Quantitative measures have significant merit, but answer only some questions. Indeed, “Do I want to be a lawyer?” is better answered with qualitative information. Our new podcast (www.LSTRadio.com) seeks to help people determine what, if any, legal jobs will satisfy them.

Each episode includes an informational interview with a lawyer about what his or her job entails. Our audience gains access to many more lawyers than they can interview on their own, and our hosts ask questions that provoke thoughtful, revealing answers. The interviews will help prospective students investigate whether a legal career is a good match. We hope they will also expose law students to jobs they haven’t considered. The result will be more students pursuing careers based on facts rather than fictions.

The bottom line is that the legal profession has an obligation to maximize the flow of useful, reliable consumer information. These efforts will aid students, prospective students, alumni, and clients. Our country needs lawyers, but they should be lawyers who are part of a transparent, affordable, and fair profession.

Some Things That Harvard Law Students Might Need to Know

Lawyers play many roles, discharge many functions – but we are also social architects [1], creating the systems and institutions and defining the rules by which they operate. [2] As our communities, our nation, and the world undergo vast changes –ecological, demographic, economic, fiscal and technological –we must ask ourselves what do we as lawyers need to know – and what do we need to know that we do not know so that, as true professionals, we know when to ask for help!

Some things that Harvard law students need to know:

1. Legal rules are not self-implementing. Victory on paper does not automatically translate into changed behavior by officials. Until we look at the systems that are responsible for implementation, until we learn how to get systems to do what they are charged with doing, our victories can be meaningless. None of the Harvard law students with whom I have met had heard terms like “emergent structures,” “stocks” and “flows” or considered the function of “Feedback loops.”

2. Most of us lawyers could not afford the very services that we ourselves are selling. We are part of a system that denies justice to anyone who cannot afford our services. When are we going to take responsibility for a system that only the wealthy and corporations can afford?

What are our responsibilities as Officers of the Court to create a system of rules and remedies that takes “justice for all” seriously? We enjoy a monopoly over the practice of law – but monopolies are conferred by law to advance a public purpose. What are we doing to advance access to justice as a fundamental right – at least where life, liberty and the pursuit of happiness are at stake?

3. The public has lost confidence in government’s ability to address the problems that require collective action. It may take a village to raise a child, but how is that village to be sustained and supported if no one will pay for the services and the infrastructure it takes to maintain a village? Voter turnout – or the lack of voter turnout – is a statement. John Barber has noted the degree to which there is “pervasive apathy about things public and political.”

“In a country where voting is the primary expression of citizenship, the refusal to vote signals the bankruptcy of democracy.” We have work to do – as citizens and as human beings – that we cannot delegate or simply contract with professionals and non-profits to do for us. Yet, students do not learn unless they work; patients do not get well unless they do what it takes to get healthy and maintain health; neighborhoods are not safe unless they develop something the experts call “collective efficacy” – a local culture of looking out for each other. Something is wrong if our solution to crime is limited to building more prisons and our solution to eldercare is building more nursing homes to which we can consign and abandon our parents.

4. Are you graduating law school without knowing the term co-production: what it means and what it takes? Nobel prize winner Elinor Ostrom coined the process by which consumers of a service become enlisted as active co-producers of the outcome desired: turning students into teachers and mentors; patients into support systems and healers; citizens into the civic work force needed to make democracy work, human beings into the work force needed to ensure that the planet can continue to sustain life.

5. To what extent have Harvard law students given up on addressing the racial disparities in well-being that system after system perpetuates? We see those disparities beginning in child welfare and proceeding from there to educational disparity, juvenile justice, employment opportunity, health care and eldercare. We see efforts to secure judicial intervention to effect system change blocked by the “intent requirement” established by Washington v. Davis. Plessy v Ferguson, separate but equal, may be gone in theory – but it is alive and well in most of our public systems.

Yet, the intent requirement can be met and transformed by the process of putting officials on formal notice of the effect of present practice and the availability of innovations that work, have been validated, save money and achieve superior outcomes. Once on formal notice, going back to business as usual becomes a conscious choice among alternatives- so that intent to perpetuate racial disparity can be inferred. City of Canton v Harris. Have Harvard law students asked: What would it mean to require officials to make use of knowledge of what works and cease perpetuation of practices that do not work and that perpetuate racial disparity? That requires going outside the law to work with other disciplines, to scrutinize decades of experiments funded by government and foundations, undertaken by innovators and by community groups. It would even take acknowledgment of our own ignorance of those alternatives and the pursuit of knowledge outside our own discipline.

6. Have students who entered this law school wanting to make a difference in the world pondered whether they have any responsibility for dealing with the implications of the dynamics built into our fiscal system that Piketty has documented? What is our individual, collective and professional responsibility to address and counter those forces that relentlessly drive inequality and perpetuate entrenched disenfranchisement? Consider Piketty’s conclusion:

When the rate of return on capital exceeds the rate of growth of output and income, as it did in the nineteenth century and seems quite likely to do again in the twenty-first , capitalism automatically generates arbitrary and unsustainable inequalities that radically undermine the meritocratic values on which democratic societies are based.

7. Have Harvard students succumbed to the myopia that defines a client only in terms of his or her problem — but does not see the client in terms of capacity and potential to contribute to the well-being of others? We are not blind to the assets of wealthy clients or corporate clients. But are we blind to the assets of those without money but who have the capacity to fight for justice, to help others, to advance democracy, to provide support for the frail and the disabled, to make our communities vibrant and our planetary ecosystem sustainable.

8. Why have we bought into a culture and a legal system that monetizes everything? Most recently Peter Barnes has reminded us that:

The global value of financial derivatives in 2012 was $687 trillion. That compares to a total world GDP of $72 trillion.

The total value of foreign exchange transactions in 2010 was $1.5 quadrillion, (a quadrillion is 1,000 trillion). Of that amount, only 1.5 percent was used to pay for real goods. The rest was currency speculation. (P. 57)

Our primary growth industry has become the finance industry, manufacturing digits in cyberspace which have no relation to anything other than digital risk and return. We are told that the primary question in our lives must be: “Is your money working for you?” Have we abandoned asking another set of questions: “What are you working for? What do you want your life to mean? And what kind of world do you want to leave for your children and their children?”

9. In Greek mythology, a certain King Midas was given anything he wished for. His wish (to turn everything he touched into gold) revealed itself as a curse when his food, his furniture and finally his daughter became inanimate gold. Have even the most idealistic Harvard students unwitting internalized what I call the Midas Monoculture where all values are converted into cost-benefit analysis utilizing a monetary system that devalues the very universal capacities that enabled our species to survive and evolve? Have they unwittingly succumbed to the Midas Monoculture where all investments of effort are judged in terms of the bottom line: billable hours and profit?

10. Finally, why have we not asked ourselves whether we have permitted only one medium of exchange to function as the definitive and exclusive means to compute value when we know it is possible to create alternative mediums of exchange to shape behavior? In education, we invented another medium of exchange to shape behavior: grades and academic credits. In cooperative economics and worker owned enterprises, we can honor sweat equity and confer ownership prerogatives. In TimeBanking and other complementary currencies, we can honor work that the market does not value and a citizen work force not recognized by economists. And we know from when we alter the characteristic of a medium of exchange that we change the dynamics.

Wall Street knows that when it “securitizes derivatives.” The World Bank knew it when they created special drawing rights. Environmental advocates knew it when they created carbon credits. Teachers know it when they change a grading system from 4.0 to pass-fail and when they confer academic credits for group projects and community service. Why are we not asking ourselves: what kinds of currencies, what kinds of mediums of exchange do we need to create the kind of world we all want to see emerge? We have ample productive capacity – but we do not have a distributive system that works to realize universal human values?
Yet, we have no medium of exchange that values, decency, caring and a passion for justice. In a world which is more interdependent than ever, what currencies and what fiduciary institutions vested with what powers of approval, disapproval and secular sanctification might we create to advance human dignity, preserve the planet and provide the exchange systems needed for all to subsist, develop, and contribute? How might a different medium of exchange and a different way to define value nurture the emergence of a different economics, an ecological economics that honors life?

My own attempt at an answer was to make Time itself a form of money – because Time is life itself. It is the most precious thing we have. Perhaps we need a different currency to return economics to its origin, Oekonomia – the management of the household, the human household, not the corporate household – in order to center our efforts on advancing life values for all living beings.

Have you learned to ask these kinds of questions – and to ask how juridical concepts like rights and duties, powers and immunities might contribute? And have you asked yourself, how a whole range of mutual obligations and a whole range of relationships that are not subject to legal enforcement might also be part of creating an ecological economics that advances life values?

[1] Charles Hamilton Houston (who charted the pathway to Brown v the Board of Education) declared that a “lawyer is either a social engineer or a parasite on society”

[2] 25 of the 56 signers of the Declaration of Independence and 32 of the 55 framers of the Constitution were lawyers.

Edgar Cahn is a distinguished legal professor. Shortly after graduating from Yale Law School in 1963, he became counsel and speech writer to Robert F. Kennedy. He created the Antioch School of Law with his late wife, Jean Camper Cahn. He is the founder of TimeBanking, a currency that rewards decency, caring, and social justice.

What Harvard Law Students Should Know About Corporations and Campaign Finance

The greatest impediment to dealing with the greatest challenges facing our nation and planet — preventing catastrophic climate change, addressing wealth and income inequality, ensuring health care for all, and much more — is concentrated corporate power. And because corporations are legal creations of the state, the problem of corporate power is, ultimately, a legal question: What legal rights, responsibilities and restraints do We the People impose on our creations?

There are a multitude of sources of corporate power, and no one approach will be sufficient to reassert popular sovereignty over our corporate creations. But amidst a host of desperately needed reforms, reducing corporations’ political power is an absolute necessity; and a key imperative means of reducing their political power is through amending the Constitution. I favor a constitutional amendment to establish that for-profit corporations do not have claim to constitutional rights broadly, but here focus on a more particular issue: an amendment to enable control of election-related spending by corporations and the corporate class.

Following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, corporations are now endowed with First Amendment political speech rights comparable to those of real, live, breathing human beings; and, more specifically, have been bestowed with the power to make unlimited expenditures from the corporate treasury to influence election outcomes (corporations do not, yet, have the right to make direct contributions to candidates). Citizens United and a host of other decisions have also empowered the super rich to devote unlimited amounts of money to outside groups aiming to influence elections (these include Super PACs, 501(c)(4) social welfare groups and trade associations); overturned spending limits; undermined effective public financing systems for elections; made it impossible to control spending by self-financing candidates; overturned a limit on the total amount of money the super rich can contribute to candidates; and much more.

The result is something very much resembling a plutocracy – rule by the wealthy elite – and a campaign finance system completely dominated by a very tiny number of corporate and super rich donors. Consider:

• The top 100 donors were responsible for more than half of all Super PAC contributions in 2012, with 2014 sure to show similar results.
• With rising income inequality, the top .01 percent of the population now take a staggering 4 percent of national income. But that same .01 percent of the population is responsible for more than 40 percent of all campaign contributions.
• Through their vast network, the Koch Brothers have announced plans to spend nearly $300 million in the 2014 elections. How consequential is this? The Koch Brothers are responsible for one in ten political advertisements on TV this election cycle.

We’ll never know how much the Koch Brothers actually spent, because their organizations are required to report only a portion of what they spend. Indeed, in the 2012 election, the Kochs ran most of their money through something called Freedom Partners – organized as a trade association, though it is effectively a political committee – that no one even knew existed until after the 2012 election was complete!

Is all of this an abstraction? No, it has very direct impact on virtually every national policy fight. Consider just the issue of climate change. The problem is well encapsulated by Senator Sheldon Whitehouse, D-Rhode Island: “The polluters give and spend money to keep polluting. … Not truth, not science, not economics, not safety, not policy, and certainly not religion, nor morality — nothing supports climate denial. Nothing except money. But in Congress, in this temple, money rules; so here I stand, in one of the last places on Earth that is still a haven to climate denial.”

The American people get this. A new poll commissioned by Public Citizen and conducted by Lake Research Partners, a Democratic polling firm, and Chesapeake Beach Consulting, a Republican polling firm, found that voters hold an unfavorable view of spending in elections by special interests and lobbyists by an astounding six to one margin. This opposition is roughly equal among Republicans, Democrats and independents. By the same six to one margin, voters say that reducing the influence of money in politics is an important issue.

The poll found that voters favor a constitutional amendment by a 61 to 28 percent margin – a more than 2-1 ratio. Presented with these arguments for and against an amendment, Republicans strongly favor the amendment — by a 54 to 36 percent margin. Other polls find even stronger support.

To understand how mind-boggling are these levels of demand for reform, consider that only three-quarters of Americans believe the earth revolves around the sun.

The public demand for action and a large-scale grassroots organizing drive – more than 550 cities and towns, and 16 states have passed resolutions or the equivalent calling for a constitutional amendment to overturn Citizens United – has forced the issue on to the agenda in Washington.

In September, the U.S. Senate voted on the Democracy for All amendment, introduced by Senator Tom Udall, D-New Mexico. The amendment, which simply states that Congress and the states shall have the authority to impose reasonable regulation on election-related spending, received 54 votes, with 42 opposed. This was short of the 60 needed to clear a procedural hurdle, as well as the 67 needed to pass a constitutional amendment.

The vote was on party lines, but there was nothing inevitable about unanimous Democratic support. In 2010, only four senators favored an amendment; only 26 did in 2012. Even this year, it was a grassroots push that ensured all Democrats would vote for the amendment.

Even though many Republican senators hate Citizens United, hate the current campaign finance system and almost surely favor an amendment, none voted for the Democracy for All amendment. This was due to the party discipline exercised by Senate Minority Leader Mitch McConnell (R-Ky.) – a degree of control that will eventually recede as public demand for action grows even stronger.

We are now amidst a period of constitutional crisis, with corporations and the super rich empowered by an activist Supreme Court to exert a stranglehold over our purported democracy. But we are also in a period of constitutional amendment ferment.

It should be a time of extraordinary excitement at law schools across the country, with fevered debates not only about whether the constitution should be amended, but how, and with what precise wording. Several Harvard Law scholars are notably engaged in the debate, but from Harvard and law schools across the country, we need way more voices, with more focused engagement. The American people are engaging in the serious and purposely effort of amending our core democratic document. They want to make the law advance popular sovereignty and democratic and equality values. They need help from the nation’s legal scholars.

Martha Minow on Harvard Law School’s challenges, accomplishments

Dean Martha Minow took the helm of Harvard Law School at a time when a dwindling endowment and university-wide budget cuts have forced the school to employ cost-cutting measures.

Minow assumed the deanship on July 1, inheriting a much tighter budget than in years past. At the law school, each department had to trim its budget by 10 percent, after projections showed that the law school could expect to receive $10 million less from the endowment in fiscal year 2010 than it received in 2009, according to a July HLS press release. Howell Jackson ’82 was acting dean at the time the budget cuts and other staff reductions were announced.

Still, during her first months as dean, Minow has faced these challenges head on and has worked to address student concerns and create new programs tailored to meet student needs that have arisen as a result of the economic downturn.

“My goals are to help the Harvard Law School continue to be the leader in legal education in the world, which includes continuing to enhance the student experience, continuing to enhance the faculty, [and] managing during a turbulent economic time,” she said in an interview with the Harvard Law Record in November.

Although free coffee service was reduced at the beginning of the academic year, Dean of Students Ellen Cosgrove announced in an e-mail in November that the school would make free coffee available in Lewis all day, indicating the change was made in response to student and faculty complaints. The all-day service supplements the free coffee in Pound and Austin halls in the morning and the free coffee available in the library during late evenings and weekends.

“We have a very active, terrific team here, and when students are unhappy about something, we try to respond,” Minow said. “Coffee was something I was deeply, personally involved in, and when students have a problem, we try to solve it.”

The ice skating rink that covered Jarvis Field during winter months in recent years has been one casualty of the budget cuts. Minow said she would be willing to talk to students who are upset about that change.

“I’d love to talk with them about that compared to other priorities,” she said.

Minow said the school also is committed to helping 3Ls and alumni who have not been able to find work during the economic downturn.

“I would say it’s all hands-on deck on this one – very, very active and vigorous,” she said.

HLS announced in October the creation of the Holmes Fellowship, which will give about 12 third-year students up to $35,000 to pursue public interest law in the year immediately following graduation, with priority given to students who show they have not been able to secure another source of funding or job.

In addition, Minow said OCS and OPIA are focusing on job fairs and career counseling, and she has been meeting with law firms and alumni to encourage them to hire HLS students.

“It was the theme of my conversations with alumni during reunions to increase their involvement in helping current students and also alums who are looking for jobs,” Minow said. “People were incredibly responsive and eager to help.”

Minow also said construction on the Northwest Corner project is ahead of schedule and under budget, although she cautioned that this could change. The Harvard Crimson reported that the university recently borrowed $480 million to fund capital expenses, including completion of the new law school facility. Current first-year students should still be able to move into the building during the spring of their 3L year, she said.

“I’ve had the great chance to tour the building,” Minow said. “It’s an extremely exciting space that is entirely student focused with all kinds of meeting rooms of different sizes and a great flow and a sense of a city with a central artery or a main thoroughfare. It’s going to be fantastic.”

Minow said her experiences since assuming the deanship have been “intense and busy and exciting.” Still, she said the thing she misses most about only having the responsibilities of a faculty member is controlling her own time and schedule.

“I don’t do that anymore. Somebody else is in charge of my time,” Minow said. “But I would not for a minute give up the privilege and pleasures of working with students and teaching and writing. The reason I took on this job was to try to help other people and help students and faculty have the great opportunities that I’ve had.”