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Michael Hiltzik of the Los Angeles Times provides us with much needed context and perspective on the so-called “IRS Scandal.”
As Juan Cole notes, “The IRS scrutiny of Tea Party groups applying for tax-exempt charitable status derived from a legitimate concern at the more than doubling of such requests after the Citizens United ruling, and a suspicion that the groups were backed by Republican billionaires intending to use them for politics, not charity. It may be that the scrutiny was sometimes invidious, but it is not obvious on the surface as to whether the bureaucrats actually did anything out of the ordinary (left-wing requests for tax exempt status were flat; if they had suddenly doubled presumably they would have attracted attention, too).”
* Adhyāsa(Sanskrit: अध्यास) in Advaita Vedānta philosophy: “Throwing over or casting upon; misconception or erroneous attribution, the significance being that the mind casts upon facts, which are misunderstood, certain mistaken notions; hence false or erroneous attribution. Simply put, adhyāsa means superimposition or false attribution of properties of one thing on another thing.” [Adapted from Wikipedia entry]
I am pleased to announce the publication of Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).
The presumption that God is omnibenevolent—inherently just, wise, kind, and merciful—is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoke of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself. In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.
Ave Maria School of Law invites applications for multiple faculty positions from entry-level and lateral candidates, pre- or post-tenure.Ave Maria particularly welcomes applications from candidates with teaching and research interest in Contracts, Business Organizations, Sales, Negotiable Instruments, Secured Transactions, and related commercial subjects.Applicants should have superior academic credentials; a record, or the promise, of excellence in teaching and legal scholarship; and an interest and commitment in exploring his or her teaching and research interests in an institution that strives to integrate the Catholic intellectual tradition into teaching, scholarship, and service. Entry-level applicants may demonstrate scholarly promise by publications in scholarly journals or scholarly works in progress. In the case of any applicant with tenure, a distinguished record of teaching and scholarship is required. Interested candidates should send their materials to Professor Patrick T. Gillen, current chair of the Appointments Committee.Applications can be e-mailed to Professor Gillen at ptgillen@avemarialaw.edu or can be mailed to his attention at 1025 Commons Circle, Naples, Florida 34119.Resume review will begin immediately and continue until the positions are filled.
Ave Maria School of Law, providing legal education enriched by the Catholic Faith, seeks employees whose education, experience and beliefs are consistent with its mission. Ave Maria School of Law is an EQUAL OPPORTUNITY/AFFIRMATIVE ACTION employer that values diversity, including diversity in religious affiliation, and strongly encourages applications from persons of diverse backgrounds willing to support the institutional mission; it requires compliance with all state and federal laws governing employment discrimination.
In a Voice of the People letter to the editor published in today's Chicago Tribune, USDA Discrimination, Secretary Vilsack weighed in on the Times and Tribune criticism of the settlement process used to resolve longstanding discrimination complaints at the USDA. Secretary Vilsack takes emphasizes the controls built into the new settlements approved by the Obama administration. He states that the USDA "ensured that each would be led by a neutral, third-party adjudicator . . . [and] that "each of the processes require documentary evidence in order for a claimant to prevail." He further promises that " all potentially fraudulent claims are referred to the appropriate federal authorities for investigation."
George Mason's History News Network published an article, NYT Ignores USDA Discrimination, written by Agricultural Historian, Pete Daniel. Daniel's latest book is Dispossession: Discrimination against African American Farmers in the Age of Civil Rights." His article details longstanding discrimination against African American farmers in the administration of USDA programs and raises a direct challenge to the Times reference to "career lawyers and agency officials who had argued that there was no credible evidence of widespread discrimination."
The Times article, U.S. Opens Spigot After Farmers Claim Discrimination, the subject of several recent posts, continues to circulate, with others relying on the information provided. This is unfortunate, as there are many areas where the information presented is misleading, and few outside of the specialized world of agricultural law are likely grasp the significance.
I offer some examples specifically related to the Pigford settlement with African American farmers. First, I provide a quote from the article, and then I explain why it is misleading.
“In 16 ZIP codes in Alabama, Arkansas, Mississippi and North Carolina, the number of successful claimants exceeded the total number of farms operated by people of any race in 1997, the year the lawsuit was filed.”
The number of farms in 1997 is essentially a meaningless statistic. While the lawsuit was filed in 1997, it relates to the preceding 15 year period (1986-1997). Farms, particularly smal farms, are not static. During this time period, there was marked consolidation of farmland throughout the country. Nationwide, trom 1978 to 1998, the number of farms declined by 300,000. Farmland changed ownership; small farmers were often forced out with larger operations purchasing their land. Farmers rented farmland one year, but not the next. Farmers went in and out of business. Reliance on a one-year snapshot near the end of a period of consolidation is misleading.
"Thirty percent of all payments, totaling $290 million, went to predominantly urban counties — a phenomenon that supporters of the settlement say reflects black farmers’ migration during the 15 years covered by the lawsuit. Only 11 percent, or $107 million, went to what the Agriculture Department classifies as “completely rural” counties.”
Research backs up what "the supporters of the settlement say," and the article should have said so. The settlement monies were paid out 15-20 years after the discrimination occurred. In many instances, discrimination had caused farmers to lose their farm and forced them give up on their farming ambitions. Many moved to an urban area to seek other employment. Nationwide rural-urban migration statistics from this time period provide further confirmation. The changing character of “rural” counties, and the changing definition of what it means to be a "rural" area provide additional complexity and represent relevant information that has been left out.
“Two government reports that year found no evidence of ongoing, systemic discrimination. The Government Accountability Office reported that 16 percent of minority farmers were denied loans, compared with 10 percent of white farmers, but traced the difference to objective factors like bad credit. An Agriculture Department study also found “no consistent picture of disparity” over the previous two years.”
The article does not reference the 1997 USDA CRAT Report that concluded that minority farmers had lost significant amounts of land and farm income as a result of USDA discrimination or the 1997 USDA OIG Report that found a backlog of discrimination complaints that had never been processed, investigated, or resolved. The article does not address the string of subsequent reports (1998-2008) that found continuing problems with the processing of discrimination complaints at the USDA.
Moreover, the loan denial rate is only one simplistic indication of loan discrimination. Discrimination complaints, when processed appropriately, reveal a host of other more common and insidious methods of discrimination including late loan approval, reduced loan amounts, lack of notice of programs, interest rate deviations, and provision of erroneous information, all of which can be devastating to a farming operation.
“Just five months after the lawsuit was filed, and without the investigative step of discovery, the Justice Department opened settlement negotiations.”
A lengthy discovery period was hardly necessary when the government’s own investigations indicated that discrimination had occurred in a systemic and prolonged manner. Consider this listing of some of the relevant reports:
1965 U.S. Civil Rights Commission study 1966 U.S. Civil Rights Commission study 1968 U.S. Civil Rights Commission study 1970 U.S. Civil Rights Commission study 1980 OEO Investigation 1981 “A Time to Choose” USDA Report 1982 U.S. Civil Rights Commission study, The Decline of Black Farming in America” 1983 USDA Disbanded Office of Civil Rights 1987 OIG Report 1990 House Gov’t Operations Committee Hearings 1997 CRAT Report 1997 OIG Report
“The billion-dollar settlement, the judge’s opinion said, was designed to provide ‘those class members with little or no documentary evidence with a virtually automatic cash payment of $50,000.’”
This quote is particularly frustrating to me as a law professor. It is taken from the 1999 court order approving the Pigford settlement. When I teach the Pigford litigation to my class, I highlight this predictive statement - for its inaccuracy. The large number of claims filed was a challenge to the claims review process, yet the process worked methodically to separate claims based on the evidence. While the article jumps back and forth rather carelessly between the discussing the number of applicants and the number of successful claimants, readers should be cautioned that 31% of the claims were denied. To allege that Pigford provided a “virtually automatic settlement” is wrong. The quote itself is accurate, but the story’s use of it is seriously misleading.
There are many complex issues to be debated in light of our experience with these cases, but I fear that the Times article is but another barrier to this debate. The over-use of anecdotes of fraud at the expense of more thoughtful analysis is just very disappointing. It reopens wounds from the past and divides those who should be thinking about ways to foster a diverse, sustainable agriculture going forward.
As a final point, I notice in the comments to the Times article that some are using this story to raise criticism of the millions spent each year on farm program payments. This is particularly ironic. The minorities and women farmers that make up the discrimination claimants are generally not the recipients of any significant portion of the farm program payments. Those go to the largest of the farms. The discrimination claimants are among the most vulnerable groups of farmers - farmers whose smaller operations have most often been disadvantaged by an overall farm policy that rewards large scale production. The article essentially charges USDA with giving them too much support. I have been working with these issues for over 25 years, and that is just not the way I see it.
A number of scholars who work in different areas related to agriculture, food, and justice co-authored a response letter to Sharon LaFraniere's article, U.S. Opens Spigot After Farmers Claim Discrimination, which appeared in the New York Times. Their response was published as a Letter to the Editor in the Times today, along with a letter from Ralph Paige, the executive director of the Federation of Southern Cooperatives Land Assistance Fund.
The letters were posted together under the heading Bias and a Settlement With Black Farmers in the online version, with the notation that a version appeared in the printed issue May 4, 2013, on page A20.
Both letters provide context regarding historical patterns of discrimination and its tragic effects. And, they criticize the Times article for its decision to focus on anecdotes of fraud and "cherry-picked examples" to tell an incomplete story.
The list of the scholars who submitted their Letter to the Editor was not included in the Times publication, but it is impressive -
Valentine Cadieux, Ph.D., Departments of Sociology and Geography, University of Minnesota
David A. Chang, Ph.D., Department of History, University of Minnesota
Tracey Deutsch, Ph.D., Department of History, University of Minnesota
Jess Gilbert, Ph.D., Department of Community and Environmental Sociology, University of Wisconsin-Madison
Thomas Mitchell, LL.M., University of Wisconsin Law School
Rachel Schurman, Ph.D., Department of Sociology, University of Minnesota
Marilyn Sinkewicz, Ph.D., School of Social Work, University of Michigan
Rachel Slocum, Ph.D., Department of Geography, University of Wisconsin La Crosse
Monica M. White, Ph.D., Gaylord Nelson Institute for Environmental Studies and Department of Community and Environmental
Sociology, University of Wisconsin-Madison
Spencer D. Wood, Ph.D., Department of Sociology, Anthropology & Social Work, Kansas State University.
After reading a skeptical query at another law blog about the putative “corporatization of higher education,” I thought to assemble this select bibliography on the topic. Incidentally, it turns out the law professor who posed this question responded in turn to a reply by proclaiming with remarkable confidence that “corporatization has not come to law schools in any meaningful fashion.” Is that true? [Correction: It may be that the person who asked the question is not in fact a law professor although perhaps an individual who has written law articles and now works for a private firm.]
Aronowitz, Stanley. The Knowledge Factory: Dismantling the Corporate University and Creating True Higher Learning. Boston, MA: Beacon Press, 2001.
Aronowitz, Stanley. C. Wright Mills and the Making of Political Intellectuals. New York: Columbia University Press, 2012.
Bok, Derek. Universities in the Marketplace: The Commercialization of Higher Education. Princeton, NJ: Princeton University Press, 2003.
Chomsky, Noam, et al. The Cold War and the University: Toward an Intellectual History of the Postwar Years. New York: The New Press, 1997.
Donoghue, Frank. The Last Professor: The Corporate University and the Fate of the Humanities. New York: Fordham University Press, 2008.
Ginsberg, Benjamin. The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters. New York: Oxford Univeristy Press, 2011.
Jacoby, Russell. The Last Intellectuals: American Culture in the Age of Academe. New York: Basic Books, 1987.
Kenney, Martin. Bio-Technology: TheUniversity-Industrial Complex. New Haven, CT: Yale University Press, 1988.
McGettigan, Andrew. The Great University Gamble: Money, Markets and the Future of Higher Education. London: Pluto Press, 2013.
Mirowski, Philip. Science-Mart: Privatizing American Science. Cambridge, MA: Harvard University Press, 2011.
Nelson, Cary and Stephen Watt. Academic Keywords: A Devil’s Dictionary for Higher Education. New York: Routledge, 1999.
Newfield, Christopher. Unmaking the Public University: The Forty-Year Assault on the Middle Class. Cambridge, MA: Harvard University Press, 2008.
Nussbaum, Martha C. Cultivating Humanity: A Classical Defense of Reform in Liberal Education. Cambridge, MA: Harvard University Press, 1997.
Nussbaum, Martha C. Not for Profit: Why Democracy Needs the Humanities. Princeton, NJ: Princeton University Press, 2010.
Readings, Bill. The University in Ruins. Cambridge, MA: Harvard University Press, 1996.
Ryan, Alan. Liberal Anxieties and Liberal Education. New York: Hill and Wang, 1998.
Schrecker, Ellen. The Lost Soul of Higher Education: Corporatization, the Assault on Academic Freedom, and the End of the American University. New York: The New Press, 2010.
Simpson, Christopher, ed. Universities and Empire: Money and Politics in the Social Sciences during the Cold War. New York: The New Press, 1998.
Steck, Henry. “Corporatization of the University: Seeking Conceptual Clarity,” Annals of the American Academy of Political and Social Science, Vol. 585 (Jan. 2003): 66-83.
Tuchman, Gaye. Wannabe U: Inside the Corporate University. Chicago, IL: University of Chicago Press, 2009.
Washburn, Jennifer. University, Inc.: The Corporate Corruption of American Higher Education. New York: Basic Books, 2005.
Thanks to a colleague at my college, Paul McDowell (Anthropology), for a couple of additional titles.
Discrimination in the delivery of USDA programs is a painful and complex subject. I was alarmed to see errors, omissions, and misleading references in the Times article. I am very disappointed that the author appeared more interested in producing a salacious story than in treating the issue with the respect and depth that it deserved. I offer corrections and additional information.
First, the article mischaracterizes the terms of the Pigford settlement, implying falsely that all claimants received payment. In fact, 31% of those who were eligible to file claims, almost one-third of claimants, were denied relief. Clearly, some of the examples of false claims provided by the article's anonymous sources were of claims that were denied. For additional information, the Federation of Southern Cooperatives issued a Press Release that explains the claims process, correcting the misinformation provided by the Times.
Second, the article fails to explain that in each of the discrimination cases referenced, claimants were required to submit evidence that shows that they experienced discrimination and that they complained about the discrimination. Specific written documentation was not always required for some forms of relief because there was frequently no written documentation available. The failure of USDA to keep copies of discrimination complaints, borrower records, or any paper trail that would evidence illegal activities during this time period should not be used to preclude recovery by legitimate victims. Recall that these cases go back to the 1980s-90s, when USDA did not keep electronic records of their loan files and for a number of years did not even have an Office of Civil Rights to process complaints.
Third, the article implies that discrimination at USDA was a pre-1997 problem, referencing two unnamed studies on loan application approval rates in 1997. However, there are numerous studies from 1997 through 2008 that document the serious and continuing discrimination problems at the USDA.
For example:
Government Accountability Office (GAO), Problems Continue to Hinder the Timely Processing of Discrimination Complaints (1999);
USDA, Office of Inspector General (OIG), Evaluation of the Office of Civil Rights' Efforts to Implement Civil Rights Settlements (2000);
GAO, Improvements in the Operations of the Civil Rights Programs Would Benefit Hispanic and Other Minority Farmers (2002);
GAO, USDA: Major Management Challenges and Program Risks (2003)OIG Audit Report: Review of the U.S. Department of Agriculture’s Accountability for Actions Taken on Civil Rights Complaints (2007);
GAO, USDA: Recommendations and Options to Address Management Deficiencies in the Office of the Assistant Secretary for Civil Rights (2008);
GAO, USDA: Recommendations and Options Available to the New Administration and Congress to Address Long-standing Civil Rights Issues (2009).
Moreover, any reference to loan approval rates as a definitive indication of levels of discrimination is as naive as it is inaccurate. There are far more insidious ways to discriminate. An operating loan may be granted, but reduced to an insufficient amount. Loan proceeds needed for planting in early spring can be delayed until summer, long after optimal planting time. A higher interest rate might be charged. Information about special programs, such as reduced loan rates or disaster assistance may be provided to some farmers, but not to others. Favored borrowers may get assistance with complicated government paperwork and reminders of deadlines, while others do not. Some borrowers are told that the loan funds have run out, but are conveniently not told about the waiting list for future funds. The Wall Street Journal detailed many of these problems in Roger Thurow's landmark article, Soiled Legacy: Black Farmers Hit the Road to Confront A 'Cycle of Racism' - Many Lost Lands, Dignity As USDA Denied Loans Whites Routinely Got (May 28, 1998).
When Secretary Vilsack assumed office as head of the USDA in 2009, he inherited a department plagued by decades of documented discrimination. He was confronted with official government reports stating that discrimination claims were still not being handled properly. While Pigford had been settled, many African American farmers who had missed the filing deadline complained that they had not had an opportunity to even make their case. See, e.g., Environmental Working Group series, Obstruction of Justice. Yet within the department, some long-time employees resented the settlement; indeed, no one at USDA was terminated in connection with the abuses evidenced in Pigford.
Secretary Vilsack also inherited the Keepseagle case alleging USDA discrimination against Native American farmers during the same years as Pigford, 1981-1999. This case had been in litigation for 10 years; class certification was granted 8 years before Vilsack took office; discovery had been ongoing for over 5 years. The Native American plaintiffs produced strong evidence of discrimination. The question that the Times article should have asked was - given years of official documentation of discrimination against minorities at USDA, why did it take the Department of Justice over a decade to agree to any type of settlement in Keepseagle?
While the Times article criticizes Pigford for producing too many potential claimants, the article criticizes Keepseagle for producing too few. Implicit is the allegation that there was not the level of discrimination alleged. That assumption is again naïve and misguided. The lower level of participation among Native farmers is much more accurately explained by the reality that the government's 10 year delay made a fair resolution of the case nearly impossible. The sad reality is that many of the potential claimants had died and their heirs had no way to establish their claim. Others simply could not produce the necessary information so many years after the fact. The numbers also reflect the profound mistrust of the U.S. government that is still pervasive in the Native community.
The article also failed to mention the significant non-monetary relief provisions included in the Keepseagle settlement - provisions that are designed to help build better connections and strengthen Native agriculture going forward. If settlement funds remain and can be dedicated to these types of additional efforts, is this a problem?
In 1997, the USDA's own Civil Rights Action Team (CRAT) concluded that “[d]espite the fact that discrimination in program delivery and employment has been documented and discussed, it continues to exist to a large degree unabated.” And, while “every Secretary of Agriculture has said that improving civil rights is a priority at USDA,” the report found “that with few exceptions, senior managers at the Department have not invested the time, effort, energy, and resources needed to produce any fundamental change.”
In 2007, in the Bush Administration, the USDA's Office of Inspector General designated civil rights as a major management challenge for USDA. In 2008, the Government Accountability Office (GAO) provided testimony to Congress that USDA was still was unable to effectively address discrimination complaints or to provide accurate data to report to Congress on its efforts. GAO suggested that these deficiencies called in the question “USDA's commitment to efficiently and effectively address discrimination complaints.”
Early in his tenure, Secretary Vilsack pledged to address these problems head on and "turn the page" on discrimination at USDA. He has worked very hard to do so. As noted in the Times article, not everyone at USDA appreciates his efforts. The settlement process has not been perfect. But, casting the story in the cynical tone of political agendas is profoundly insensitive to the many, many deserving claimants who just wanted their government to treat them the same way that it treated a white male farmer. The Times article missed the opportunity to accurately acknowledge the difficulties in righting past wrongs, the complexities of the different cases, and the inability of some in agriculture to move forward. I applaud Secretary Vilsack for his efforts, though imperfect. Others may not have even tried.
“The struggle for the 8-hour day reached a significant moment on May 1, 1886 as the Knights of Labor and numerous other labor organizations called for a national work stoppage on this day to demand that the 8-hour day become the law of the land. Thousands of workplaces shutdown across the country and capital trembled. Linked to the issue of shorter hours was the question of child labor as depicted in this 1908 Lewis Hine photo of a few of the doffers and sweepers in the Mollahan Mills in Newberry, South Carolina. In the U.S. serious legislation governing the hours of work and child labor was a long, long time coming as workers fought and died well into the 1930s before an upsurge in organization pressured the government into making a handful of modest reforms.”—From the Facebook page of the Bread & Roses Centennial (1912-2012) Committee.
Prior May Day posts (including an historical introduction to the holiday in the first of the two links are here and here.
Several years ago ago at Slate, Robert Pinsky discussed two poems by William Blake that serve to fill out the meaning of this holiday, both titled “The Chimney Sweeper,” from Songs of Innocence (1789) and Songs of Experience (1794) respectively.
—At least 3,000 people are believed to have been in the building on Rana Plaza at the time the building collapsed. More than 380 bodies had been recovered by Monday morning. Hundreds are still missing. And with every day that passes, the chances of finding survivors grows dimmer.
The deadly incident in Savar has already been called the worst industrial accident in the country’s history. It serves as a reminder that nothing has changed when it comes to the inhumane conditions under which clothes are made in Bangladesh for European and American textile companies and clothing chains. And the same can be said about the culture of corruption that is rampant in Bangladesh, the abundance of illegally procured construction permits and the lax attitude factory owners take toward safety standards. —Hasnain Kazim, Nils Klawitter and Wieland Wagner, from their piece for Der Spiegel (April 29, 2013), available here.
—The disaster refocused attention on the dangers facing workers in the booming Bangladeshi garment industry, ramping up calls for stricter regulation. Western brands whose labels were found in the wreckage faced new pressure to sign on to a safety agreement.
“Brands can no longer justify any further delay.... The lack of action demonstrated by brands amounts to criminal negligence,” Ineke Zeldenrust of the Clean Clothes Campaign said in a statement Monday.—From the Los Angeles Times (April 30, 2013)
—These tragedies could not have come at a worse time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on. The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. [….]
A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”
In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country. [….] — Roger Alford at Opinio Juris (April 26, 2013)
“On Wednesday, April 24, a day after Bangladeshi authorities asked the owners to evacuate their garment factory that employed almost three thousand workers, the building collapsed. The building, Rana Plaza, located in the Dhaka suburb of Savar, produced garments for the commodity chain that stretches from the cotton fields of South Asia through Bangladesh’s machines and workers to the retail houses in the Atlantic world. Famous name brands were stitched here, as are clothes that hang on the satanic shelves of Wal-Mart. Rescue workers were able to save two thousand people as of this writing, with confirmation that over three hundred are dead. The numbers for the latter are fated to rise. It is well worth mentioning that the death toll in the Triangle Shirtwaist Factory fire in New York City of 1911 was one hundred and forty six. The death toll here is already twice that. This ‘accident’ comes five months (November 24, 2012) after the Tazreen garment factory fire that killed at least one hundred and twelve workers.
The list of ‘accidents’ is long and painful. In April 2005, a garment factory in Savar collapsed, killing seventy-five workers. In February 2006, another factory collapsed in Dhaka, killing eighteen. In June 2010, a building collapsed in Dhaka, killing twenty-five. These are the ‘factories’ of twenty-first century globalization – poorly built shelters for a production process geared toward long working days, third rate machines, and workers whose own lives are submitted to the imperatives of just-in-time production. Writing about the factory regime in England during the nineteenth century, Karl Marx noted, ‘But in its blind unrestrainable passion, its wear-wolf hunger for surplus labour, capital oversteps not only the moral, but even the merely physical maximum bounds of the working-day. It usurps the time for growth, development and healthy maintenance of the body. It steals the time required for the consumption of fresh air and sunlight…. All that concerns it is simply and solely the maximum of labour-power that can be rendered fluent in a working-day. It attains this end by shortening the extent of the labourer’s life, as a greedy farmer snatches increased produce from the soil by reducing it of its fertility’ (Capital, Chapter 10).
These Bangladesh factories are a part of the landscape of globalization that is mimicked in the factories along the US-Mexico border, in Haiti, in Sri Lanka, and in other places that opened their doors to the garment industry’s savvy use of the new manufacturing and trade order of the 1990s. Subdued countries that had neither the patriotic will to fight for their citizens nor any concern for the long-term debilitation of their social order rushed to welcome garment production. The big garment producers no longer wanted to invest in factories – they turned to sub-contractors, offering them very narrow margins for profit and thereby forcing them to run their factories like prison-houses of labour. The sub-contracting regime allowed these firms to deny any culpability for what was done by the actual owners of these small factories, allowing them to enjoy the benefits of the cheap products without having their consciences stained with the sweat and blood of the workers. It also allowed the consumers in the Atlantic world to buy vast amount of commodities, often with debt-financed consumption, without concern for the methods of production. An occasionally outburst of liberal sentiment turned against this or that company, but there was no overall appreciation of the way the Wal-Mart type of commodity chain made normal the sorts of business practices that occasioned this or that campaign. [….]
In the Atlantic world, meanwhile, self-absorption over the wars on terror and on the downturn in the economy prevent any genuine introspection over the mode of life that relies upon debt-fueled consumerism at the expense of workers in Dhaka. Those who died in the Rana building are victims not only of the malfeasance of the sub-contractors, but also of twenty-first century globalisation.”
Addendum: See too this timely Forum discussion at Boston Review: Can Global Brands Create Just Supply Chains? The lead article addressing corporate responsibility with regard to industrial workers involved in the geography of global manufacturing is by Richard M. Locke.
Last week, the New York Times published an article that was highly critical of USDA efforts to settle longstanding discrimination claims and to compensate African-American, Native American, Hispanic, and Women farmers who showed evidence of discrimination under the farm loan programs. U.S. Opens Spigot After Farmers Claim Discrimination, by Sharon LaFraniere. The article alleged widespread fraud in the Pigford case settlement with African American farmers.
I have submitted an editorial to the New York Times that corrects some of the errors and misleading inferences contained in the article. If the Times declines my editorial, I will be posting it here.
In the meantime, the Federation of Southern Cooperatives produced a point-by-point analysis that refutes some of the specific allegations about Pigford contained in the article. As the Times article is getting widespread coverage, I reprint the Q&A portion of the Federation's response below. The original issuance and the press release is available on the Federation's website.
"Sharon LaFraniere got it Wrong!" Response to the coverage of the Pigford Settlement in the
April 26, New York Times . . .
Article: "From the start, the claims process....encouraged people to lie"
Response: False. Claimants and the attorneys had to sign the claim form under penalty of perjury. Frivolous claims by underage individuals were screened out by the claims facilitator. While few documents existed, every claim was subject to scrutiny be a team of USDA officials. The claims were decided by experienced neutrals and, in the end, 30% of all claims were denied.
Article: "But critics, including some of the original black plaintiffs, say that is precisely what the government did when it first agreed to compensate not only those who had proof of bias, but those who had none."
Response: Every claimant had to prove bias to prevail on a claim, including identification of a similarly situat[ed] white farmer who received more favorable treatment than the black farmer.
Article: "Justice department lawyers worried about false claims....it was better to err on the side of giving money to people..."
Response: This was no giveaway. Initially 40% of all claims were denied. Some of these people appealed and, in the end, 30% of all claims were denied.
Article: "Claimants described how, at packed meetings, lawyers' aides would fill out forms for them on the spot, supplying answers..."
Response: This never happened at the 250+ meetings conducted by class counsel. They were instructed not to sign claim forms under penalty of perjury unless they believed that the individual had a valid claim. On average, they turned away 25% of the claimants and were criticized by many who believed that the claim process was too rigorous.
Article: "Accusations of unfair treatment could be checked against department files if claimants had previously received loans...but there was no way to refute what they said."
Response: Local USDA did refute claims even where no documentation existed. They often submitted affidavits disputing a claim that the person had applied for loans.
Article: "In Maple Hill .....dozens of other families shared addresses, phone numbers or close family connections."
Response: All claims were carefully screened by the EPIQ Systems, one of the foremost class action administrators in the country. Only one claim per farming operation was allowed. Multiple claims by family members were consolidated into one claim. Claims with same last names, same addresses, same telephone numbers were carefully screened to enforce the limit of one claim per farm operation.
Article: "But four-fifths of successful claimants had never done so [previously received loans]."
Response: What basis does the reporter have for making this claim? There is no data analysis on this issue. By implying that those persons are unworthy of relief or should be disregarded to avoid the possibility of fraud, that statement strikes at the very heart of this claims process-its goal of providing compensation to farmers who were excluded from USDA's programs. Of course, people who were excluded would not have previously received loans.
Article: But some critics, including some of the original black plaintiffs, say that is precisely what the government did [open up a Pandoras box] when it first agreed to compensate not only those who had proof of bias, but those who had none (emphasis added).
Response: That is incorrect. Each claim in Pigford I, to be successful, had to establish sufficient facts by the claimant's own declaration (which is proof in court like any testimony) that he or she suffered discrimination, including the names of white farmers who got the specific farm loan benefit he or she was denied. Then, USDA could, and in many cases did, submit evidence that it believed contradicted the claimants declaration. All this evidence was evaluated by a trained adjudicator. This process simply cannot be described as one in which the farmer can win without any proof of bias.
Article: Just five months after the lawsuit was filed, and without the investigative step of discovery, the Justice Department opened settlement negotiations.
Response: That statement suggests there was no discovery or litigation after five months. That is wrong. Both sides engaged in discovery and typical pre-trial motions practice for a year before substantive settlement negotiations commenced in August 1998. And the negotiations really got serious only after plaintiffs won their motion for class certification in October 1998, some 14 months after the case was filed.
And finally,
• The story is largely anecdotal - sure there are people at USDA who are vested in the system who refuse to admit the undeniable legacy of discrimination at the department.
• The presentation of data is misleading. The number of farms operating in 1997 is essentially irrelevant. The case covers a 16 year period during which there were over 125,000 African Americans engaged in farming at one time or another.
• Minimal documentation was required because 1) USDA destroyed the denied loan applications and civil rights complaints; 2) the case went back to 1981 so many folks had lost or destroyed their own records. It went back to 1981 because USDA shut down its civil rights office in the arly 80's so minorities were denied the opportunity to present their claims at a time when they would have had records.
• Out of 503 cases referred to the FBI, they chose to investigate 60 - 3/10 of 1 percent of the 22000 claims. That is minuscule.
• The denial of credit and benefits has had a devastating impact on African American farmers. According to the Census of Agriculture, the number of African American farmers has declinedfrom 925,000 in 1920 to approximately 18,000 in 1992. [USDA Civil Rights Action Team Report] CRAT Report at 14. The farms of many African American farmers were foreclosed upon, and they were forced out of farming. Those who managed to stay in farming often were subject to humiliation and degradation at the hands of the county supervisors and were forced to stand by powerless, as white farmers received preferential treatment.
With a huge hat tip to The Food Dialogues, the BIO International Convention, and BIOtechNOW, Agricultural Law is pleased to rebroadcast the April 22, 2013, Food Dialogues, presented at the 2013 BIO convention in Chicago, by the U.S. Farmers & Ranchers Alliance®.
The North Dakota Law Review has jut published an article called "Rural Inheritance: Gender Disparities in Farm Transmission." This is a thoughtful gendered critique of why sons rather than daughters tend to inherit family farms. It concludes that families and rural society groom boys to farm, but do not cultivate this interest in nor pass the know-how on to girls in the same way. Gender stereotyping and its consequences remain the culprit, even in the face of changes to the Uniform Probate Code that made it gender-neutral.
The author of "Rural Inheritance" is Hannah Alsgaard, a 2012 graduate of the University of California, Berkeley, School of Law (Boalt Hall), who is currently clerking for Judge Roberto Lange of the District of South Dakota, in Pierre. Ms. Alsgaard grew up in Yankton, South Dakota, so she knows well the milieu of which she writes. The abstract for the article follows, and you can download the full text here:
Farmers are farmers’ sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers’ sons, not farmers’ daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farmland. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting land inheritance and ownership, culminating with the Equal Protection Clause’s extension to gender discrimination and the gender-neutral Uniform Probate Code. Social changes have also been tremendous, but even legal and social developments have been unable to correct gender disparity in farm inheritance. After exploring many legal and social factors, I conclude it is grooming – at the familial, governmental, and social levels – that plays the most vital role in training future farmers and mainly accounts for the gender difference in farm inheritance and the farming profession. This Article ultimately proposes girls must be groomed to farm in order to rectify the vast gender disparity in the ownership and management of family farms. A three pronged approach will be needed to remedy the situation, specifically: changing the role of lawyers, educating girls and women, and educating testators. What remains most important is that daughters are given the same opportunity as sons to farm based on merit, rather than being excluded from farm inheritance merely because of their gender.
Yesterday, I posted on the Strawberry Sustainability project underway at the University of Arkansas, Regrowing a Regional Food System. My post included a particularly well done video that tells the story. I wanted to emphasize the importance of agricultural research directed toward sustainable production and local farming efforts.
Today, I offer a follow-up post. Additional information about the project reveals that the Walmart Foundation donated $3 million to the University of Arkansas Division of Agriculture for the project. The goal of the donation is "fresher strawberries for consumers and an economic boost for local farmers throughout the country." A related goal could be more local strawberries sold at Walmart. That seems like a win-win to me.
The donation went to the Center for Agricultural and Rural Sustainability, (CARS). The center will create and manage a national competitive grants program, awarding money to other public universities with agricultural research and outreach programs with projects to "expand where strawberries can be grown, enabling shorter trips for the berries between farm and consumer."
CARS involves interdisciplinary efforts across campus, beyond the horticulture experts mentioned in the video, and the strawberry project is similarly collaborative. "The ongoing collaboration between land grant universities, agricultural producers, food companies, and retailers is critical to improving quality, safety and efficiency, and reducing negative impacts across the agricultural supply chain," said professor Marty Matlock, engineering program director for CARS. Marty is also the Executive Director of the Office of Sustainability at the University of Arkansas; his commitment to sustainability runs deep.
CARS will seek project proposals through its strawberry sustainbility initiative and will award grants in May to coincide with National Strawberry Month.
Quantitative finance traces its roots to modern portfolio theory. Despite the deficiencies of modern portfolio theory, mean-variance optimization nevertheless continues to form the basis for contemporary finance. The term "postmodern portfolio theory" expresses many of the theoretical advances in financial learning since the original articulation of modern portfolio theory. Any complete overview of financial risk management must address all aspects of portfolio theory, from the beautiful symmetries of modern portfolio theory to the disturbing behavioral insights and the vastly expanded mathematical arsenal of the postmodern critique. This article surveys portfolio theory, from its modern origins through more sophisticated, “postmodern” incarnations, according to the first four moments of any statistical distribution: mean, variance, skewness, and excess kurtosis. Mastery of these quantitative tools and associated behavioral insights holds the key to the efficient frontier of risk management.
Strawberries don't have to come from California in plastic boxes. We can grow this delightful fruit in many different areas. In fact, a number of other regions, including Northwest Arkansas, used to be known for fruit production.
Researchers are now trying to help recreate that regional food supply while also expanding the growing season to meet consumer demand. This excellent short-takes video from the University of Arkansas talks about the current research to restore and expand regional strawberry production. To me, these folks are heros - and their work reminds me of how important agricultural research can be as we try to chart our way forward to build a more sustainable food system.
“Even those who think that death is a continuation, and not an ending, can benefit from contemplating the implications of annihilation. That annihilation would be bad for them explains why it is important to live forever: it is the only way to avoid the evil of annihilation. If, on the other hand, annihilation would not be bad for them, the question arises as to why they value the prospect of immortality.”—Steven Luper [1]
“The human species is only partly natural. It is the only species about which that can be said.”—George Kateb [2]
“Philosophers tend to think that precision is always important, but they have known since Aristotle that that may not always be wise. Sometimes the quest for precision blinds us to certain insights that we can as yet only formulate haltingly; sometimes it blinds us to the importance of pursuing certain questions (and linking them to other questions) even when there is not yet an answer in sight.”—Jeremy Waldron [3]
At Concurring Opinions a couple of weeks ago, Professor Taunya Banks penned a delightfully provocative post titled “Fortune’s Bones: Is There Dignity after Death?” Banks introduces three different historical cases: the 1995 Body Worlds exhibit by Gunther von Hagens; the skeleton of an enslaved man (whose name was Fortune) who died in 1798 and was being studied by the anthropology faculty and students at Quinnipiac University; and perhaps the best known of the three, the story of Henrietta Lacks as recently discussed by Rebecca Skloots in her book The Immortal Life of Henrietta Lacks (2010), that together raise for her the question of whether or not the concept of dignity can be applied to deceased individuals, in other words, “Is there dignity after death?” The following paragraphs conclude her discussion, followed by my attempt to address her question:*
[….] “Scientists and anthropologists might argue that the cases of Fortune and Mrs. Lacks are distinguishable from Gunther von Hagens’ Body Worlds exhibit because the educational value is clearer in the former than the latter. They might also argue, as one Johns Hopkins researcher told me, that the HeLa cell is not part of Mrs. Lacks but has morphed into something quite different.[4]Thus it does not matter that her family consider the cell to be a living part of their deceased family member. Still others like academic Stephen Bates ask whether human corpses are different from skeletons or human cells. (Prenates, Postmorts and Bell-Curve Dignity, Hastings Center Reps. 2008) The more human-looking the remains, Bates writes, the more concerns about dignity seem to arise.
According to my colleague Leslie Henry, there are strong arguments for dignity after death as well as some laws that arguably recognize some type of dignitary interest. Physicians usually are required to secure consent from the deceased’s next of kin before using a cadaver to teach medical students. There are statutes that penalize the desecration of grave sites (beyond trespassing). There also is the Native American Graves Protection and Repatriation Act (NAGPRA) which required federal agencies to return ‘cultural items’ including human remains, to the descendants of Indian tribes and Native Hawaiian organizations. Granted none of these laws directly touch on the cases of Fortune and Mrs. Lacks.
In the end I offer no suggestions. But I am concerned because too often the people denied dignity in death, were also denied dignity in life.”
* * * * * * *
I’ve been pondering Professor Banks’ thoughtful and moving post for some time now and have arrived at the point at which temerity prompts me to share my tentative thoughts on (explicit and implicit) questions raised by her piece. I think it is true that there is something to the notion of a “dignitary interest” with regard to the dead (as individual persons). This is not my preferred term, however, as it suggests the decedent herself has post-mortem “interests,” which is eminently arguable and, I believe, not true.[5] But if we understand this dignitary interest as having something to do with the attitude and respect of the living toward the decedent as a previous embodiment or incarnation of transcendent value, a value which transcends sentience, then it’s possible to articulate a stipulative or précising definition which allows for the possibility (in some sense) of “disrespecting the dead” but not harming them. It is not that the dead person’s bones or cremated ashes, or some scientific sample of cells, as such, that incarnates the transcendent value of dignity; so we cannot speak, literally at least, of “continuing assaults on the dignity of the deceased.” Rather, with death, it is our memory of the fact that a person, with a unique narrative history, a person of intrinsic dignity and incomparable value or worth has passed, and death, as the converse of life, is an occasion for our individual and collective reflection on—as remembering, commemorating, and honoring—the precious nature of personhood, the powerful concept of dignity, and the nature of human normative agency. Our treatment of a dead person’s remains will reveal our ability to respect and to honor, and is therefore symbolic of, a human being who, for a brief period of time, was locus of the dignity of humanity in his or her own person, an individual who was, at one time, the incarnation of transcendent value.
In addition to or apart from recognizing the expressed preferences of the decedent about what to do with her remains, or attempts at inferring the wishes (e.g., by way of immediate family, closest friends, or end-of-life caregivers) of the decedent, and sans any traditional burial or after-death treatment and (ritualistic) practices associated with a decedent’s worldview, I think we might somehow express, reveal or evoke something of the dignitary attitude of respect in the manner in which we respond to the death of an individual and treat their remains. Such expression can come not only from those who knew or were close to the decedent, but also from those whose task is to handle the remains. We might, for example, mandate a period of memory and commemoration for the decedent that recognizes an individual of incomparable worth, of inherent dignity has died (regardless of whether such dignity was respected in the person’s lifetime or what kind of life that person lived; hence, again, this is not about any post-mortem interest as such), and deserving of acknowledgment and remembrance if only for this reason. I believe the manner in which we handle the remains can and should be the occasion for honoring or celebrating the dignity of personhood, for ritual remembrance of therespect owed humanity in the individual person. The remains can become the occasion or means whereby we honor the transcendent value of dignity that we failed (or may have failed) to recognize and respect during the person’s lifetime. This demonstration of respect I imagine to be very close—similar or analogous—to the Confucian understanding of the proper performance of li.[6] As Banks notes in her second paragraph above, there are somelegal rules for particular situations or occasions that can be viewed as (directly or indirectly) permitting or encouraging demonstration of this respect. The question then becomes whether or not we can find some means whereby we generalize such an attentive and focused demonstration of dignitary respect for all decedents, perhaps through engagement in a (secular) ritual celebration or honoring of the dead person in a way that affirms and reinforces our belief in human dignity and the incomparable value of normative human agency. After Stephen Darwall, this takes the form of recognition respect, distinguished from appraisal respect insofar as the former lacks the latter’s conceptual connection to merit and esteem: “Recognition respect concerns, not how something is to be evaluated or appraised, but how our relations to it are to be regulated or governed.” Following the performance of such a secular ritual (at least in the case of those whose wishes are not known or whose worldview does not prescribe some kind of funeral service), which might be as simple as a published or public proclamation (that speaks to the dignity and inviolability of the human person), perhaps in conjunction with or followed by a period of time in which the remains are not in any way disposed or used for scientific research, the decedent’s remains—be they bones and teeth, cremated ashes, or simply cells—could then be buried, scattered, or enlisted for scientific research. At this point in time, that part of ourselves which belongs indissolubly to the natural world (for a ‘transcendental’ or non-reductionist naturalist like Grant Gillett, this ‘part’ would be a human being absent the narrative ‘space’ of reason and will) and by which we make sense of the notion of embodiment, can now return to the natural world (including the natural world as understood in the sciences), no longer a locus of transcendent value in the form of human dignity. This (so to speak) return to the natural world upon the fulfillment of such conditions represents one point along the continuum of dignitary respect for the dead, for the living, and for those who follow us as loci of transcendent dignity. To leave our “human world” and return to the greater natural world is something the psalmist and secularist, the Muslim and the man-in-the-street, the Daoist and the Buddhist, can alike appreciate in a language that connotes spiritual, metaphysical and aesthetic sensitivity and sensibilities in speaking to the grandeur, the sublimity, the harmony, proportion, and beauty of nature. (Bear in mind that things are a bit different in the case of Mahāyāna Buddhism because, after Nāgārjuna, nirvāna and samsāraare said to be ‘not different’ when viewed from the ultimate nature of the Dharmakāya, for an individual can attain nirvāna in this lifetime by following the Buddhist path. Their duality is only (a) conventional (truth), for if they were ultimately different (or expressed an absolute truth) this would be impossible. By implication, this speaks to the conventional duality of life and death as well, hence a ‘return’ to nature is only true conventionally speaking, and thus for any of us who have not had the requisite spiritual realization that establishes the non-difference between nirvāna and samsāra…or life and death, it will appear as absolutely true. Something comparable to this might also be the case in Daoism.) But as a condition of this return to nature, a ritual or solemn acknowledgement of transcendental dignity and intrinsic inviolability of the human person in reference to the decedent, including a proscribed period in which the decedent’s remains are not to be used for any educational or scientific purposes, could go some way toward communicating the all-important value of human dignity and our respect for the nature of personhood as indicative of the manner in which our species transcends the natural world.
Now, for various reasons, some of them of Kantian provenance or inspiration, showing respect for such dignity has been taken to mean acknowledging the person’s (normative) human agency (as a capacity), in the sense that the ways of being (a) human (animal) distinguishes us from our nonhuman animal relatives. This means honoring both our “being” and “willing.” David Luban, who prefers a naturalistic and non-metaphysical account of dignity—albeit one with “ontological heft”—believes Kant was speaking more about “willing” than “being,” but I think he’s mistaken on this point. In any case, Luban’s discussion of dignity is largely intended for legal ethicists (although it has wider value outside that application, as he himself suggests and demonstrates), and in this context he speaks of the lawyer listening to the client’s “story,” every person having a “story” to tell insofar as they are “authors” in some measure or another of their lives (and, as characters, part of the narrative accounts of at least some of those with whom they have interacted over the course of their lives). These stories revolve around “meaning” of various kinds, however inarticulate or disturbing we might, as outsiders, find them to be (think of those accused of the most heinous crimes), for to “have a story,” Luban writes, “means being the subject of experience, and it means existing in a web of commitments, however detestable or pathetic those commitments may be.” Luban’s naturalistic rendering of dignity appears unable to account for how we might accord dignitarian respect toward the decedent, after all, the author of the story, the subject of the experience, is no longer with us. And yet he or she may become a character or even protagonist in the stories of those who survive and follow the decedent, for we are, as has been said “inveterate story tellers” (folk psychological theory, say, like that proffered by Daniel Hutto, is here quite useful in accounting for this fact). These stories could be seen as functioning to remind us what it means to be human, involving questions of individual and collective identity, memory, and meaning, for example.[7] In short, we treat the dead with respect (more about this in a moment), as a reminder to the living what it means to live a human life, for death is a vivid and insistent reminder of the value and beauty of life (human and non-human), a value and beauty that becomes part and parcel of the best stories we tell. Luban’s approach might be filled out or simply supplemented with recent work in narrative ethics and narrative metaphysics, especially if we should want to employ it for treating the question of “dignity after death.”
For now at least (i.e., until we’ve come up with a richer—more broadly ethical and metaphysical—narrative account that might serve our purposes), I suggest we go back to Kant, for the respect we show the dead is more than their potential to become part of the stories we tell, or our willingness to listen to their stories, even if that is one way we show our respect for the dignity of others during their lifetimes. In fact, more than a few people die alone, without loved ones or others who will recall their lives as part of any narrative (Henrietta Lacks was fortunate to have her story eloquently written by Rebecca Skloot), however modest. It is about the respect we bestow upon the dead person because the dead remind us of the incalculable, intrinsic worth, and thus non-instrumental value of human dignity in the living person, of why, as Kant said, we should always treat people as “ends” (‘self-sufficient’ ends at that, and thus not in the sense of some thing or state of affairs to be brought about by us) and never merely just as “means” (the ‘Formula of Humanity as End-in-Itself’). Death, as we say, serves somehow to give meaning to life (of course the concepts of life and death are mutually—conceptually if not logically—dependent on each other). Kant’s concept of human dignity (as Martha Nussbaum and Michael Rosen each remind us, there are other forms of dignity) is “metaph
Each of the most recent accords of the Basel Committee on Banking Regulation, known as Basel II, 2.5, and II, has embraced a different primary measure of market risk in global banking regulation: traditional value-at-risk (VaR), stressed VaR, and expected shortfall. After introducing the mathematics of VaR and expected shortfall, this note will evaluate how well the reforms embraced by Basel 2.5 and III — stressed VaR and expected shortfall — have addressed longstanding regulatory concerns with traditional VaR.
Part I describes the calculation of VaR in its conventional form. For illustrative purposes, Part I will describe parametric VaR on a Gaussian distribution. Part II summarizes known weaknesses in VaR, from inherent model and estimation risk to VaR’s failure to perform under extreme economic stress and VaR’s failure to satisfy the theoretical constraints on “coherent” measurements of risk. Part III describes how to calculate expected shortfall as an extension of conditional VaR. It further describes how expected shortfall, but not VaR, provides a coherent measure of risk. Part III then reverses field. It explains how VaR, but not expected shortfall (or, for that matter, nearly every other general spectral measure of risk), satisfies the mathematical requirement of “elicitability.” Mathematical limitations on measures of risk therefore force regulators and bankers to choose between coherence and elicitability, between theoretically sound consolidation of diverse risks (on one hand) and reliable backtesting of risk forecasts against historical observations.
Today, the Supreme Court will hear oral arguments in Association for Molecular Pathology v. Myriad Genetics, in which the principal question is whether human genes -- here, genes indicating a predisposition to ovarian and breast cancers -- can be patented. Like several other cases this term, this one seems to require the Court to venture into uncharted waters, as Justice Kennedy said last month in the same sex marriage cases.
But in reality, the issues raised here have been considered by other constitutional courts around the world. And as is true with the waters of same-sex marriage, voting rights, and affirmative action, the legal status of the elements of human development has not only been charted in other countries; it has been defined and analyzed in varied contexts, and often by reference to the concept of human dignity. Two cases illustrate how the constitutional value of human dignity has helped to frame the legal questions in similar cases.
In 2002, the Canadian Supreme Court decided that the genes of higher life forms were not patentable subject matter because they weren't encompassed within the statutory definition of "manufacture" or "composition of matter" -- the very question at issue in the Myriad case. Following the guidance of a scientific advisory body (the Canadian Biotechnology Advisory Committee), the Canadian Court said that even if patents are permitted for some higher life forms, "human bodies at all stages of development should be excluded" because of the "universal principle of respect for human dignity, one element of which is that humans are not commodities." The Court explained that "'what is disturbing about objectifying a person or organism is not so much the exchange of money as it is the notion that a subject, a moral agent with autonomy and dignity, is being treated as if it can be used as an instrument for the needs or desires of others without giving rise to ethical objections.'" (citation omitted). The use of even a part of a human being for someone else's purposes violates the first principle of human dignity -- that humans can not be used as means to someone else's ends.
Brazil's Federal Supreme Tribunal has considered the bounds of medical research in a different context . In 2008, the Tribunal upheld the nation's biosecurity law, which permitted research on embryonic stem cells, against a challenge that such research violated the constitutionally protected right to life. The court said that such research was permitted because it violated neither the right to life nor the principle of human dignity. In fact, such research, the court said, actually furthers human dignity insofar as it can lead to cures for diseases and conditions that diminish or challenge people's ability to live with others in dignity. "There is no offense to the right to life and human dignity," the court said, "because research with embryonic stem cells (whether created biologically or for other purposes) signifies a social celebration ("celebração solidária") of life and breath for those who find themselves barely able to exercise in a concrete way, their inalienable right to happiness and to live with dignity."
Indeed, the court said, the biosecurity law dealt with "a set of norms that assumes the intrinsic dignity of all forms of human life, or of life that has that potentiality." Here, the court was thinking not only in technical terms about the conduct of the research itself, but in very practical terms about the value that advances in medical knowledge have for those who depend on it for their dignity, their enjoyment of life, and indeed their very survival.
It would be refreshing to see the United States Supreme Court follow suit, and recognize the implications of its decision for those whose survival and dignity depend on advances in medical research and access to the most effective diagnoses.
In late March, Congress was finally able to agree on budget legislation that would avoid a government shut down and provide funding for 6 months. The Consolidated and Further Continuing Appropriations Act, 2013 was passed by both Houses of Congress and signed by the President.
Section 735 of the bill - now known as the "Monsanto Protection Act" was one of several unrelated "riders" that were tacked on to the appropriations bill in the Senate. It's inclusion prompted a firestorm of criticism about the ability of powerful industries to influence the government and provoked numerous write-in campaigns.
The text of the now infamous provision is as follows:
In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.
Unpacking the legalese, the provision applies in a situation where the USDA has approved a genetically-engineered crop by granting it "non-regulated" status, but a federal court finds that it is likely that the USDA action was inappropriate or at least premature under the applicable federal statutes. In this situation, a court would ordinarily have the authority to decide whether or not to issue a temporary injunction that would essentially stop the effect of the agency action until the case was resolved. Section 735 provides that regardless of what the court holds, the USDA must immediately grant any farmer's request for "temporary permit(s) or temporary deregulation" to "authorize the movement, introduction, continued cultivation, [and] commercialization" of the product.
My comments here on Section 735 relate directly to process, the checks and balances built into our legal system, and the danger of using inappropriate means to achieve political ends.
Checks and Balances: The Authority of the Courts
The ability of the federal courts to review the actions of administrative agencies such as the USDA is a fundamental component of the checks and balances that make up our legal system.
Consider, for example, the Administrative Procedure Act (APA), 5 U.S.C. § 501 et seq., the hallmark of U.S. administrative law since it was enacted in 1946. The APA specifically sets up a process for U.S. federal courts to directly review agency decisions, determining whether they are "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."
Any law that interferes with the ability of a court to enjoin an agency action that is unlawful disrupts the careful balance of our legal system. If a federal court determines that the law has been violated with respect to the approval of any new product or substance, that court should have the ability to enjoin the release. Any decision regarding the balance of harm and injury that might be caused by an injunction should be left the authority of the court. To deny the court this authority is to completely undercut the review process.
An Offense to the Legislative Process
Congress's practice of slipping unrelated provisions into massive appropriations bills is not new. But, it is a practice that should be severely limited. The facts that underlie the enactment of Section 735 provide a bold and egregious example of a process gone awry.
Section 735 was anonymously slipped into the bill during committee. Senator Mikulsi, chair of the appropriations committee was initially blamed for the inclusion, but she denied involvement. The Baltimore Sun reported that she "understands the anger over this provision. She didn’t put the language in the bill and doesn’t support it, either." Mikulski says she doesn't support 'Monsanto rider' in funding bill.
Lawmakers on both sides of the aisle disavowed any knowledge of Section 735 despite the fact that Senator Tester, joined by Senators Boxer, Gillibrand and Leahy attempted to delete Section 735 by amendment. They were unable to obtain a vote on their amendment. Senator Tester's impassioned plea to reject Section 735 on the Senate floor has been reprinted in a number of blogs. See, e.g., Natural Capital by Duncan Gromko, Section 735 of the 2013 Appropriations Act: AKA The Monsanto Protection Act. Eventually, Politico reported that Senator Roy Blunt from Missouri owned up to having authored Section 735 and other ag-related riders. Big Agriculture Flexes its Muscle, by David Rogers. After the fact, lawmakers argued that they had no choice to pass the entire bill, including Section 735, or risk government shutdown.
To understand the public's reaction to this type of Congressional shenanigans, one needs only watch the Jon Stewart Daily Show discussion of this issue. It's the first segment in the episode available here on hulu, The Daily Show with Jon Stewart, April 3 and is embedded below. Does anyone need wonder why public approval ratings for Congress are so low?
The Dangers of Using Inappropriate Means to Achieve Political Ends Consider the far reaching powers of administrative agencies. Environmentalists and anti-regulation advocates alike have both used the authority of the courts to challenge agency action.
In this case, the provision that undercuts the authority of the court is favored by many in the biotechnology industry and opposed by those who seek additional regulation. The tables could easily be turned. Consider an effort to challenge a regulation or to seek court action to stop an agency from regulating any activity. Should Congress be allowed to pass a law that would hamper judicial authority and force the agency to continue with its challenged activity while the matter is tied up in court?
The ability of a court to decide a particular matter, including the issuance of a temporary injunction, on the merits of the case is not a matter with which Congress should interfere. Particularly when Congress is unable or unwilling to openly debate the matters that it passes into law.
I think the presence of most if not all of the following “characteristics” helps us clarify what we often (and perhaps should) mean by the term “religion” or religious worldview (these might even serve as criteria for identifying ‘religion’ for legal purposes). It is capable of encompassing both “Western” and “Eastern” religious traditions, theistic and nontheistic worldviews, as well as many new (although not necessarily ‘New Age’) religions. The assumption here is that there is no readily or agreeably identifiable “essence” to religion, even if we often focus on certain dimensions or characteristics, say, a core set of beliefs (as a central set of truth-claims), the “transcendence” of religion, certain sorts of religious experience: of the “numinous” or “mystical” or “revelatory” and so forth. Our next task would be to identify what it means to cleave to a non-religious worldview.*
1. Belief in supernatural beings (spirits, gods, etc.), God, or a supreme divine principle or force (in the latter case, comprehensive or ‘holistic’ in structure).
2. A distinction between sacred and non-sacred (or ‘profane’) objects, space, and/or time. 3. Ritual acts centered upon or focused around sacred events, places, times, or objects.This includes such activities as worship, prayer, meditation, pilgrimage, sacrifice (vegetable, animal, or human; literal or figurative), sacramental rites, lifecycle rituals, and healing activities.
4. A moral code (ethics) or “way of life” believed to be sanctioned by the gods or God, or (in an informal sense: logically) derived from adherence to the divine principle or force. (There is no assumption here that morality need be religious, indeed, morality is conceptually distinct from and independent of religion.)
5. Prayer, worship, meditation, and other forms of “communication” or attunement with the gods, God, or the divine principle or force. 6. A worldview that situates, through (usually mythic) narrative, the individual and his/her community and tradition within the cosmos, world, and/or history. It is a significant, if not primary source of one’s identity, both in its individual form and group aspect. The worldview articulates the meaning—makes sense of—the group’s cultural traditions: its myths, history, rituals, and symbols. This often involves treating questions of the meaning of life and death (and what, if anything, follows death for a human being), of suffering and evil, of what philosophers term questions of personal identity, of humanity’s relation to the cosmos and natural world, its relation to nonhuman animals and perhaps a “spirit” world or “other worlds.” The worldview articulates the fundamental values of a religious community so as to affirm its most important values and/or its “ultimate value.” 7. Characteristically religious emotions or attitudes associated with that thought to be of divine provenance or endowed with “spiritual” power: a peculiar form of awe and fear, “dread” or angst, existential anxiety, sense of mystery, adoration, reverence, love, devotion, hope, a sense of guilt or shame, serenity, compassion, bliss, etc.
8. A more or less total organization or structuring of one’s life or individual lifeworld based on an understanding (hence interpretation) of the religious worldview (the ‘lifeworld’ may include beliefs, values, and practices not directly linked to or associated with a religious worldview). This understanding does not necessarily coincide with the normative pictures painted by those with religious authority or the “official” worldview of the religion, indeed, it may be rather idiosyncratic or even cognitively crude or fairly sophisticated, psychologically and philosophically speaking. Prima facie evidence reveals the religious adherent believes in or is attempting to live in accordance with the worldview. 9. A social group wherein personal and collective—cultural—identity is forged by the aforementioned factors. 10. Artistic or creative expressions related to any of the above characteristics.
We might keep in mind that the sort of analytical clarity sought in philosophical circles or the desiderata of semantic legal precision may not be applicable if by that is meant a definition (or something very close to a definition) of religion. Why? The late B.K. Matilal provides one reason from the philosopher A.N. Whitehead:
“Insistence on clarity at all costs is based on sheer superstition as to the mode in which human intelligence functions. Insistence on hardheaded clarity issues from sentimental feeling, as it were, a mist cloaking the perplexities of fact.” * This list of characteristics is inspired by and in part follows that first provided by William P. Alston in the volume he edited, Religious Belief and Philosophical Thought: Readings in the Philosophy of Religion (Harcourt Brace Jovanovich, 1963): p. 5.
Addendum: In response to a comment to this post at Religious Left Law, I thought the following might be of interest: There has long been a recognition among anthropologists, sociologists, and historians (and even a few political scientists) that nationalism is often intertwined with religion and that nationalist and political ideologies frequently possess religious or religious-like characteristics: the radical break with tradition sought in the French Revolution resulted in a new political culture filled with rhetoric, symbols, images, and festivals with mythological and religious precedent or resemblance. The cases are varied and widespread: Zionism in Palestine, Maoist Marxist-Leninism in China (which functioned like a state religion), and what Robert Bellah famously (or infamously in some quarters) defined as “civil religion” in this country, to cite several of the more conspicuous examples. In the words of my teacher and mentor in the study of religions, Ninian Smart, “It is a not uncommon observation that modern nationalism functions like a religion.” So too the late Marxist historian Eric Hobsbawm notes in his work on “nations and nationalism,” the “links between religion and national consciousness can be very close, as the examples of Poland and Ireland demonstrate,” and as is often noted today with regard to Islam in the Arab world. Yet we should also point out, with Hobsbawm, “that the prevalence of transnational religions, at all events in the regions of the world in which modern nationalism developed, imposed limits on religio-ethnic identification.” Finally, again with Hobsbawm, and perhaps indicative of the complexities of the historical entanglement of religion and nationalism, sometimes religious conversion has led to the creation of two distinct nationalities: “for it is certainly Roman Catholicism (and its by-product, the Latin script) and Orthodoxy (with its by-product, the Cryllic script) which has most obviously divided Croats from Serbs, with whom they share a single language of culture.”
The University of Nebraska College of Law will be offering a course in May that was formerly taught at the University of Oklahoma College of Law, under the direction of Drew Kershen. This course is designed to help students understand the existing legal structure and theory involved in modern animal production. The types of animal production we will examine include those which serve anthropocentric ends, including medical research and meat consumption.
This is a valuable preparation course and learning experience for students interested in agriculture and the ongoing debate about agriculture as a production system. Students will learn how to analyze legal arguments, statutes, regulations, and judicial opinions related to animals and agricultural production. Students will learn how to respond in a professional and accurate fashion to the legal, public policy, and scientific issues involved in the use of animals in agricultural production. Such issues are often at the forefront of the animal rights movement.
Eligible students include those enrolled in accredited law schools who have completed their first year. Enrollment is limited to 24 students. Twelve will be accepted from the University of Nebraska College of Law. The remaining twelve will be accepted from the law schools at the University of Oklahoma; the University of Arkansas, Fayetteville; Penn State University; and Drake University. These students will be admitted on a first‐come, first‐served basis. Registration begins on March 26th. If seats remain available after April 15th, students from other law schools in the U.S. may seek enrollment before April 30th, when all registration will end.
There is a disturbing trend in state legislation - laws that attempt to criminalize efforts to expose animal abuse in the raising and slaughtering of livestock. See, e.g., the recent New York Times article,The Taping of Farm Cruelty is Becoming a Crime.
I understand that a business may feel betrayed when a worker takes a position with ulterior motives. But, the agricultural industry is making a huge mistake if they believe that this issue is about vegan activists, as some mistakenly claim. The livestock industry needs to step back, engage in some soul-searching self reflection, and listen to their customers.
Do producers and processors really want their message to be - "yes, all these illegal activities are going on, but the problem is that no one should be taking pictures?" Is that really the problem?
The video exposes that have involved workers have provided evidence of illegal activity. State legislatures that "go after" those who took the pictures are, in effect, stating that there is illegal activity going on - we just don't want anyone to alert the press or the officials. Is that really the message the meat industry wants to send?
The issue of animal welfare in livestock production has been on a path destined for conflict for a number of years.
Animal science in the larger sense has been producing phenomenal studies that show that animals have far more sentience, cognition, and even emotion than ever before realized. These studies are not just being reported in the science journals and espoused by animal welfare advocates. Consider last week's Wall Street Journal article, The Brains of Animals, with the headline, "New research shows that we have grossly underestimated both the scope and the scale of animal intelligence."
Meanwhile the livestock industry has catapulted in the opposite direction. We have devised ways to crowd animals into even smaller spaces, concentrate them into larger and larger flocks and herds, and developed new methods of containment. When disease and behavior problems result, we confine them more rigorously, clip and trim them, and feed them antibiotics. From an economic standpoint, it has worked. It has produced the cheapest meat that the world has ever purchased. There are problems other than animal welfare, such as antibiotic resistance and concentration of manure, but let's just consider the animal welfare issues.
What the industry needs and what consumers are asking for is an honest discussion of how we can reconcile these very different trajectories. What does it mean to raise an animal humanely? The livestock industry can bury its head in the sand and pretend that this issue is all about vegetarians, or it can wake up and engage in the issue with honesty, transparency, and self-reflection. And, the animal science world can and should debate why there is such a wide divergence between scientists on the issues of animal welfare.
I know many farmers that have become uncomfortable with the way that they were raising their livestock. They are not vegetarians; they are not animal rights activists. They are farmers who want to be good stewards of the animals under their care, and they are being pushed by economic pressures to operate in ways that they are uncomfortable with. Some have gone out of the livestock business because of this.
This week's Supreme Court oral arguments in Hollingsworth v Perry and US v. Windsor give us yet another occasion to consider the role that human dignity might play in the adjudication of constitutional rights. Courts from around the world that have considered the question of same sex marriage have consistently decided that rules that prohibit lesbians and gays from marrying one another violate their right to human dignity. (Legislatures have too: see, for instance, the Canadian Civil Marriage Act (2005), finding that civil unions "as an institution other than marriage" would "violate the[] human dignity" of same sex couples.)
This is probably the area where the multiple dimensions of human dignity come into starkest relief. In some cases, courts highlight that aspect of human dignity that that the American Supreme Court has protected as privacy under the Due Process Clauses, while in other cases, courts protect couples' interest in non-discrimination. As is often the case in the US (see e.g. Romer v Evans and Lawrence v Texas), courts tend to conflate the two strands of rights.
Typical is the South African Constitutional Court's language inMinister of Home Affairs v Fourie(2005), where the Court wrote that the prohibition on marriage "denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity’ namely that ‘all persons have the same inherent worth and dignity’, whatever their other differences may be."
In other cases, courts have identified in human dignity values that are not routinely recognized in American constitutional jurisprudence. In a 2011 case from Brazil, the Supreme Court recognized that sexual preference emanates directly from the principle of human dignity; that is, from the sense of self-esteem that is the highest point of individual consciousness.In a 2010 Mexican case allowing adoption by same-sex couples, the Court acknowledged human dignity as a fundamental superior right in Mexican jurisprudence, deriving from the free development of the personality; so important is this right that it requires doing what is necessary to promote respect for the dignity of children and the full exercise of their rights -- hence, the right to be adopted by same-sex couples.
The South African court, in the Fourie case, focused on the expressive quality of law in saying that "The sting of past and continuing discrimination against both gays and lesbians was the clear message that it conveyed, namely, that they, whether viewed as individuals or in their same sex relationships, did not have the inherent dignity and were not worth of the human respect possessed by and accorded to heterosexuals and their relationships." Moreover, in a direct refutation of the Brandeis formulation, Justice Albie Sachs wrote that dignity in South Africa, "is not the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law." In this view, it is not enough for the state to get out of the way (because even in the context of marriage and family, the state never really is out of the way); rather, dignity is fulfilled only if the state affirmatively acknowledges and embraces —or at least respects — the individual.
Human dignity has found its way into the current litigation in the US, though more as a value than a right, and almost always in conjunction with the ill-defined notion of "respect," and without further elaboration.
[P]eople don’t simply kill and die for a cause. They kill and die for each other.—Scott Atran
Militancy in insurgent organizations and involvement in suicide attacks seem to be connected to the economic cycle, to downward social mobility processes, and, most of all, to particularly traumatizing personal experiences, such as the killing of friends and relatives, imprisonment, and isolation due to emigration.—Luca Ricolfi (discussing suicide terrorism in the Palestinian struggle for self-determination beginning in 1981)
Much of post-war ‘terrorism’ [in the twentieth century] was linked to specific situations of decolonization and dissipated on independence.—Ben Saul
After reading an important article by Phillip Carter and Deborah Pearlstein in Foreign Policy, “The Appeal of the Courts,” concerning the counterterrorism strategies of states (individually and in concert) and the reasons why a “blended, postwar approach” in which “the military plays a supporting, not a leading, role” has of late become the dominant model and should in fact be the preferred model generally for such strategies, I thought to respond with the following questions:
I only wish as much thought and attention was devoted to the nature and causes of terrorism, especially non-State terrorism in the context of political struggles, for example: why do rational individuals (psychological evidence testifies to the predominantly ‘normal’ cognitive and rational orientation of these individuals) involved in groups resort to such tactics? What are the dominant motivational variables involved in the choice for terrorist acts? Why do these individuals and groups attempt to provide moral justification for their acts? What are the factors (beyond sheer State repression) responsible for “de-radicalization” of terrorist groups? How do we make those factors more salient and probable so actors find sufficient reason to abandon terrorist tactics (which need not necessarily mean a corresponding commitment to liberal democratic principles and practices, but it is certainly a worthwhile achievement nonetheless and might portend such commitment)? What does the history of terrorism teach us about such groups vis-à-vis their socio-economic and political (local, national, and global) environments? What does it mean to notice that one-time terrorists have later become “respected” statesman or political actors in democratic processes (e.g., in Israel, South Africa, and Ireland) or would-be democratic societies? How do we cool the highly volatile and counter-productive passions that acts of terrorism stir among elites and members of the public alike (and lead to all manner of violations of due process and habeas corpus, among other legal and human rights violations)? Why is counter-terrorism conceived solely in legal and/or military terms (be it predominantly military or the ‘blended, post-war approach’ discussed in the article)? Why is “counterterrorism” primarily about and preoccupied with non-State actors and largely neglectful of state or state-sponsored terrorism, the latter causing immensely more deaths and harms than the former (which of course does not imply we need ignore or trivialize the former kind, only that we view it in proper perspective)?
And, while it should go without saying, asking and endeavoring to systematically and sincerely answer these and related questions (which require cross-disciplinary collaboration among those involved in law, the social sciences, psychology, and moral and political philosophy) of course in no way represents an attempt to morally or politically justify terrorism (setting aside for the moment a definition of terrorism and terrorist acts, although I’ve found C.A.J. Cody’s definition* useful if not persuasive for most purposes).
In a future post I’ll address what some researchers have said by way of framing and beginning to answer these questions.
An early draft of my select bibliography on terrorism is found here (should you want an updated version, please contact me).
* “A political act, ordinarily committed by an organized group, which involves the intentional killing or other severe harming of noncombatants or the threat of the same or intentional severe damage to the property of noncombatants or the threat of the same.”
“‘Politics’ is not some strange activity conducted by ‘them’ rather than ‘us.’ The fruits of democracy are best seen through the lens of ‘everyday politics,’ in the schools and the hospitals, in the roads and the trains, in the courts and the shops, in community groups and social protests, in bars and sports clubs, in work and play, and in most of all the freedom to question and challenge. From the nursery to the nursing home ‘everyday politics’ improves people’s lives.”
“Democracy revolves around the possibility of collective decision making about collective action for the common good but we have allowed it to become redefined as the freedom of individuals to pursue their own selfish interests and decide upon their own actions. The real failing of politics [in societies like ours] is therefore the manner in which it has cultivated societies in which everyone believes they have a divine right to ever-rising living standards irrespective of their own personal endeavor, and if life fails to deliver then it must be those loathsome politicians who are to blame. No politician has the magic to satisfy a world of greater expectations, and the world does not have the resources to satisfy those expectations. Demonizing politicians might contribute to the myth of collective innocence but at the end of the day we are all complicit.”
“Politics is, at base, a moral activity and therefore a lack of trust in the capacity of political institutions, political processes, and politicians reflects a much deeper lack of faith in ourselves and in each other. This is because the nature of politics defines the nature of any society. [….] We might also understand that politics delivers rights and responsibilities and from this reflect just a little on whether we have all become a little too good at taking and demanding but possibly less good at giving and offering. ‘Politics’ does not simply involve the conduct and decisions of politicians but also creates a set of expectations regarding the behaviour and decisions of the public. [….] The reduction of everything to financial value or a market-like relationship has arguably shaped our sense of entitlement while dulling our sense of belonging to a broader political community.”—Matthew Flinders, Defending Politics: Why Democracy Matters in the Twenty-First Century (Oxford University Press, 2012).
With the above by way of backdrop, I’d like to draw your attention to the recent death of what was—for want of a better expression—an old-school politician from the Democratic Party from my home state, Nicholas C. Petris (February 25, 1923 - March 20, 2013). As noted in his Wikipedia entry, Petris “was a California State Senator from 1966 until 1996. A Democrat, he represented the 11th district from 1966 to 1976 and the 9th district from 1976 until he was termed out in 1996. He was previously in the California State Assembly, representing the 15th district from 1958 until 1966.”
“Nicholas C. Petris, who was a leading liberal voice for nearly four decades as a California state senator and assemblyman representing his hometown of Oakland and other East Bay cities, has died. He was 90. [….] A Greek American known for his eloquence from the floor of the state Senate, Petris championed a host of liberal causes during his career, offering legislation on behalf of the poor, the sick and the elderly. A Democrat, he also wrote laws that increased environmental protections and expanded the rights of farmworkers and tenants.
‘He was the last of the real giants of the old Senate,’ former state Sen. John Burton, now chairman of the California Democratic Party, said Thursday. ‘He never compromised his principles and was true in what he believed — a real intellectual liberal.’
Legislation that bears Petris’ name, the 1967 Lanterman-Petris-Short Act, bars the involuntary commitment to psychiatric hospitals of most people with mental illness. He also wrote laws that required redevelopment agencies to build housing for low- and moderate-income residents, and prohibited smoking on airplanes, trains and buses in the state. As an assemblyman, he was also the co-author of legislation that was credited with saving San Francisco Bay from overdevelopment.
‘He felt that government was for people who needed help, that the wealthy are good on their own,’ said [Felice] Zensius, who worked for Petris for 25 years, the last 10 as his chief of staff. ‘So when crowds of lobbyists came to our office, it was people advocating for the mentally ill, the farmworkers, the elderly. That’s what he cared about.’ [….]
Nicholas Christos Petris was born in Oakland on Feb. 25, 1923, the son of Chris and Mary Petris, who were both Greek immigrants. He spoke mainly Greek until he started school. He earned a bachelor’s degree in journalism from UC Berkeley and a law degree from Stanford University. He served with the Office of Strategic Services during World War II, then worked as a lawyer before he was elected to the Assembly in 1959 and to the state Senate in 1967.
Petris was known for his oratory and for peppering his Senate speeches with quotations from Greek philosophers and politicians. ‘For Christ’s sake, Nicky, you’re doing Pericles,’ Burton said he would tease Petris, a reference to the great statesman of ancient Athens.
In 1991, Petris was among the many who lost their homes in the Oakland Hills to a devastating wildfire that destroyed more than 2,700 residences. The blaze also claimed his beloved personal library, filled with volumes of Greek philosophy, Greek history and English literature. Soon after, his colleagues in the Senate lined up and one by one presented him with books to help fill the bookshelves in his new library. ‘I was in tears the whole time,’ he told the Modesto Bee several years later.” [….]
I hope we might one day soon once again deserve politicians of such integrity and stature.
Addendum: There’s a wonderful oral interview conducted by Gabrielle Morris (Regional Oral History Office, University of California, Berkeley) and transcribed for the State Government Oral History Program available (in different formats) in the California State Archives here (or here).
Today is the 50th anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963), a landmark case in U.S. Supreme Court history in which the Court “unanimously ruled that state courts are required under the Fourteenth Amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorneys, extending the identical requirement made on the federal government under the Sixth Amendment.”
The constitutional right to effective assistance of counsel to indigent defendants remains unmet, in the words of Stephen Bright, “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.” As Monroe H. Freedman, among others, has noted again and again, paltry compensation has failed to attract competent lawyers and court-appointed lawyers are frequently incompetent, more often than not valued by judges for their ability to “move the courts’ calendars quickly by entering hasty guilty pleas in virtually all cases. In those few cases the accused insists on his right to trial by jury, the trials typically move rapidly because the court-appointed lawyers generally file no motions, conduct no investigations, and do little to impede the speedy disposal of the case from charge, to guilty verdict, to imprisonment.”
A “background summary” of the case, courtesy ofStreet Law:
“Between midnight and 8:00 am on June 3, 1961, a burglary occurred at the Bay Harbor Pool Room in Panama City, Florida. Someone broke a window, smashed the cigarette machine and jukebox, and stole money from both. Later that day, a witness reported that he had seen Clarence Earl Gideon in the poolroom at around 5:30 that morning. When Gideon was found nearby with a pint of wine and some change in his pockets, the police arrested him and charged him with breaking and entering.
Gideon was a semi-literate drifter who could not afford a lawyer, so at the trial, he asked the judge to appoint one for him. Gideon argued that the Court should do so because the Sixth Amendment says that everyone is entitled to a lawyer. The judge denied his request, ruling that the state did not have to pay a poor person’s legal defense unless he was charged with a capital crime or ‘special circumstances’ existed. Gideon was left to represent himself.
As might be expected, Gideon did a poor job of defending himself. He had done no preparation work before his trial; his choice of witnesses was unusual—for instance, he called police officers who arrested him to testify on his behalf, not having any reason to believe they would help his case. He had no experience in cross-examining a witness in order to impeach that person’s credibility, so his line of questioning was not as productive as a lawyer’s would have been.
Gideon was found guilty of breaking and entering and petty larceny, which was a felony. He was sentenced to five years in a Florida state prison, partly because of his prior criminal record. While in prison, he began studying law in the prison library, believing that his Sixth Amendment rights had been violated when he was denied a defense lawyer paid for by the State. His study of the law led him to file a petition for habeas corpus with the Supreme Court of Florida, which asked that he be freed because he had been imprisoned illegally. After the Supreme Court of Florida rejected his petition, he handwrote a petition for a writ of certiorari to the Supreme Court of the United States, asking that it hear his case. The Court allowed him to file it in forma pauperis, which meant that the Court would waive the fees generally associated with such a petition.
Generally, the Court dismisses most of these petitions; Gideon’s was among those that it did not dismiss. In state criminal trials, are indigent defendants entitled to a lawyer, even in noncapital cases? That was the question the Court agreed to decide when they accepted Gideon’s petition. It was not merely a question of whether Gideon had been treated fairly; the Court’s ruling would affect many other people who faced similar circumstances. In a previous decision, Betts v. Brady (1942), the Court had held that in state criminal trials, an indigent defendant must be supplied with an attorney only in special circumstances, which included complexcharges and incompetence or illiteracy on the part of the defendant. Since Gideon had not claimed special circumstances, the Court would have to overturn Betts in order to rule in Gideon’s favor. (Florida’s state law provided indigent defendants with lawyers only in capital cases; many other states had laws providing lawyers to most or all indigent defendants.)”
[….] Guilty pleas account for about 95% of all criminal convictions. In many courts, poor people are processed through the courts without lawyers or moments after speaking for few minutes with lawyers they just met and will never see again. This is called ‘meet ‘em and plead ‘em’ or ‘McJustice.’ Fifty years ago this week, one of the Supreme Court’s most celebrated cases, Gideon vs. Wainwright, established the right of criminal defendants to have a lawyer. The cases above are stark examples of how that right is violated every day across the nation.
A 2004 American Bar Assn. study reached ‘the disturbing conclusion that thousands of persons are processed through America’s courts every year either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation.’ Since that study, the number of cases has increased, but the number of available lawyers has not. Many poor people are detained in jails after arrest without lawyers for weeks or months. This may cause them to lose their jobs and homes, even if they are eventually not convicted of anything. Even when there is some representation for the poor, the lawyers are often struggling to handle more cases than is humanly possible.
Most states, which are responsible for more than 95% of all criminal prosecutions, have treated the Gideon decision as an unfunded mandate to be resisted. They have little incentive to provide competent lawyers to represent the people they are trying to convict, fine, imprison or execute. Many focus on minimizing costs, awarding the defense of poor people to the lowest bidder, compensating lawyers at meager rates and underfunding public defender programs. This facilitates pleas, speeds up cases and heightens the chances of conviction for anyone accused of a crime.
The cost of disregarding the right to a lawyer is enormous. Innocent people are convicted while the perpetrators remain at large. Important issues, such as the system’s pervasive racism, are ignored. A justice system in which the key actors routinely ignore one of its most fundamental constitutional requirements lacks legitimacy and credibility.
Several things must be done to comply with the constitutional right to counsel and ensure fairness. Adequate funding is essential. One example of what states can accomplish with adequate funding is Colorado’s statewide defender system, in which lawyers are thoroughly trained and supervised and have reasonable workloads and access to investigators, interpreters, social workers and experts. Courts must enforce the right to counsel instead of being complicit in its denial. Trial judges must stop orchestrating ‘meet ‘em and plead ‘em’ processing of people, which involves little or no legal representation. Courts must be responsive to lawsuits challenging deficiencies in representation.
Prosecutors — the most powerful actors in the system — should not exploit the poor quality of defense representation as a strategy for winning cases, as some do. They should instead support efforts to improve it, as Atty. Gen. Eric H. Holder Jr. has done by pointing out the deficiencies in representation and urging reforms. Finally, the legal profession, the media, law professors, law students and others must hold the system up to public examination until both the spirit and letter of the law in the Gideon ruling is upheld. People facing the loss of life or liberty are entitled to more than McJustice.
(Stephen B. Bright teaches at Yale Law School and is president and senior Counsel of the Southern Center for Human Rights in Atlanta. Sia Sanneh is a senior fellow at Yale Law School and an attorney with the Equal Justice Initiative in Alabama.) A forthcoming essay from Bright and Sanneh: “Fifty Years of Defiance and Resistance after Gideon v. Wainwright.”
Addenda: The virtual silence on this anniversary in the legal blogosphere (at least the dozen or so blogs I routinely visit) is disappointing and disconcerting. However, here are several items worth reading:
A just published book: Karen Houppert,Chasing Gideon: The Elusive Quest for Poor People’s Justice (New York: The New Press, 2013). Our younger readers or novice students of the law should first read Anthony Lewis’s “warm, intimate and moving account of a lowly man’s case that became a Constitutional landmark” (Paul A. Freund): Gideon’s Trumpet (Random House, 1964).
“Though Francis of Assisi is the most popular saint in a long history of tortured bodies and souls, the fact that no pope until Cardinal Jorge Bergoglio would take his name says a lot about the timeless shadow from the 12th century to the 21st. The legacy of the first Francis is almost too much to bear.”
And, at the National Review, the editors engage in what John Holbo at Crooked Timber terms “preemptive damage control,” anxious to inform their readers that the new Roman pontiff’s understanding “of poverty as a social ill should not be misconstrued as sympathy for statist solutions to it or, indeed, as support for any determinate political program.”
In light of the above, we might consider the fate of Liberation Theology and theologians like Leonardo Boff in the recent history of the Church. Boff, author of a biography of St. Francis (1981, in English, 1982), was of course one of those responsible for Liberation Theology and praxis[1] of the sort Ratzinger was instrumental in silencing in his former role as Prefect of the Congregation for the Doctrine of the Faith. Boff writes of the saint’s life and faith as linked to “leaving imperialism” and the “integral liberation of the oppressed.” Boff tells Catholics that “Poverty is not only a problem of moral conscience; it is fundamentally a political problem.” He reminds them that “Today’s dominant classes, successors to the slave owners as well as the slave traders (English, Portuguese, Dutch, and North American), have inherited a profound scorn for the poor. They consider them to be socially disqualified [think of the reaction of actual and aspiring neo-liberal elites to the Bolivarian revolution]; they avoid contact with them, going around them, insensitive to their misery.” The Church has often had a difficult time understanding with Francis that “being poor” means no only the “voluntary” sort motivated by vicarious identity and solidarity, but rather the poor experienced by the poor themselves, which is the bitter “fruit of impoverishing and exploitative mechanisms. To accept poverty in solidarity with the poor implies opting for social justice, committing oneself to the poor in the integral liberation of all for a more just and fraternal society.”
Catholics and their Church are often blinded to the fact that “we are living in a society of classes with antagonistic interests. Objectively, the poor are poor because the way society is organized, since they have the strength to work but not the capital, they are placed on the margin.” Boff explains to his readers the categorical need for the “structural change of society” [hard to imagine that without State direction or support or sans any ‘determinate political program’]. For Boff, the Church must come out in full support of “movements that are born of the base–free unions, people’s associations” that defend those without power, which includes their culture and rights. Many Catholics and their Church are loath to admit freedom for the poor involves struggle, what Boff understood as nonviolent revolution, not trickle-down reform, and such “Freedom is never freely granted; it must be attained in an arduous process of freedom.” As Boff writes, “Everything in Francis invites practice: exire de saeculo, leaving the imperial system in an alternative act that makes more real devotion toward others, more gentleness with the poor, and greater respect for nature.” The “spirit and way of life” of Francis of Assisi is no mere “formula, idea, or ideal,” but made manifest in social and political practice, individually and collectively.
Read too the works of the late Penny Lernoux (1940–1989) to see why there has never been a pope to take the name of Francis of Assisi. And take a look at the comparative significance of The Catholic Worker movement in Catholicism generally to begin to see why the faith of Francis has been and remains a considerable distance from the Church.
[1] See, for example, Phillip Berryman’s classic introduction, Liberation Theology… (Pantheon Books, 1987). Liberation theology and praxis was able to critically absorb analytical insights from the Marxist tradition, as well as ideas and methods from such individuals as the philosopher Enrique Dussel, and Paulo Freire, a philosopher of education.
Further Reading:
Barbé, Dominique. Grace and Power: Base Communities and Nonviolence in Brazil. Maryknoll, NY: Orbis Books, 1987.
Barbé, Dominique. A Theology of Conflict and Other Writings on Nonviolence. Maryknoll, NY: Orbis Books, 1989.
Berrigan, Daniel. The Steadfastness of the Saints: A Journey of Peace and War in Centraland North America.Maryknoll, NY: Orbis Books, 1985.
Boff, Leonardo. St. Francis: A Model for Human Liberation.New York: Crossroad, 1984.
Coles, Robert. A Spectacle Unto the World: The Catholic Worker Movement.New York: Viking, 1973.
Coy, Patrick, ed. A Revolution of the Heart: Essays on the Catholic Worker. Philadelphia, PA: Temple University Press, 1988.
Douglass, James W. The Nonviolent Cross: A Theology of Revolution and Peace. New York:Macmillan, 1968.
Douglass, James W. Resistance and Contemplation: The Way of Liberation.Garden City, NY: Doubleday, 1972.
Dussel, Enrique. A History of the Church in Latin America: Colonialism to Liberation (1492-1979). Grand Rapids, MI: Wm. B. Eerdmans, 1981.
Ellis, Marc. A Year at the Catholic Worker. New York: Paulist Press, 1979.
Ellis, Marc. Peter Maurin: Prophet in the Twentieth Century.New York: Paulist Press, 1981.
Ellsberg, Robert, ed. By Little and By Little: The Selected Writings of Dorothy Day. New York: Alfred A. Knopf, 1983.
Freire, Paulo. Pedagogy of the Oppressed. New York: Herder and Herder, 1972.
Gutiérrez, Gustavo (Caridad Inda and John Eagleson, tr.). A Theory of Liberation: History, Politics, and Salvation. Maryknoll, NY: Orbis Books, 1973.
Lernoux, Penny. The Cry of the People: The Struggle for Human Rights in Latin America—The Catholic Church in Conflict with U.S. Policy. New York: Penguin Books, 1982.
Míguez Bonino, José. Toward a Christian Political Ethics. Philadelphia, PA: Fortress Press, 1983.
Musto, Ronald G. The Catholic Peace Tradition. Maryknoll, NY: Orbis Books, 1986.
O’Connor, June E. The Moral Vision of Dorothy Day: A Feminist Perspective.New York: Crossroad, 1991.
Roberts, Nancy L. Dorothy Day and the Catholic Worker. Albany, NY: State University of New York Press, 1984.
Rowland, Christopher, ed. The Cambridge Companion to Liberation Theology. New York: Cambridge University Press, 2007.
Smith, Christian. The Emergence of Liberation Theology: Radical Religion and Social Movement Theory. Chicago, IL: University of Chicago Press, 1991.
Addendum: For the Church’s position on the indispensable and urgent role of the State with regard to the poor and vulnerable, please see here. As is noted there, “when there is question of defending the rights of individuals, the poor and badly off have a claim to especial consideration. The richer class have many ways of shielding themselves, and stand less in need of help from the State; whereas the mass of the poor have no resources of their own to fall back upon, and must chiefly depend upon the assistance of the State. [....] The obligation to provide justice for all means that the poor have the single most urgent economic claim on the conscience of the nation. [....] The needs of the poor take priority over the desires of the rich; the rights of workers over the maximization of profits; the preservation of the environment over uncontrolled industrial expansion; the production to meet social needs over production for military purposes. [....] The obligation to provide justice for all means that the poor have the single most urgent economic claim on the conscience of the nation.” The Democrats for some time now have given rhetorical (in campaigns) and strategic priority (in public policy) to appeals to the middle class and their interests, rarely giving voice to the needs of the poor, a lamentable development for a party that once was conspicuous for its role as a defender of the downtrodden. This is yet further evidence of how the spectrum of political discourse has clearly foreshortened in deference to the Right.
However, my interest peaked when I read the news reports that our "no-cost" federal sugar program may cost U.S. taxpayers a significant amount of money this year. And yet, I recently heard from a friend in Minnesota that sugar beet profits are way high - great crop last fall. So, I wanted to explore -
The sugar program has been around for a long time. Although sugar support goes back to the 1934 Sugar Act, the origin of our current policy is found in the Agriculture and Food Act of 1981. The focus is on supporting the domestic sugar industry. For an excellent critique of the program, packaged within a clever illustration of trade policies affecting the "American coffee service" (coffee, cream and sugar), see Jim Chen's article, Around the World in Eighty Centiliters, 15 Minnesota Journal of International Law 11 (2006).
Part of its longevity is that the program is continually touted as operating "at no cost to the federal government." Marketing allotments restrict the amount that sugar processors can sell and import quotas restrict the quantity of foreign sugar allowed to enter the U.S. market. This keeps sugar prices high and ensures farmer and processor profitability. For a good description of how this is supposed to work, see the USDA Economic Research Service Sugar and Sweeteners policy webpage.
As Remy Jurenas of the Congressional Research Service wrote in the report, Sugar Program Proposals for the 2012 Farm Bill, "[s]ince the program records no outlays, its future did not receive attention among the proposals submitted to the House and Senate Agriculture Committees for revising the farm safety net and reducing farm program spending."
However, as the 2000 GAO Report pointed out, and as the food manufacturing industry has long argued, keeping sugar prices high means that the cost is passed on to consumers. The GAO estimated the program's cost to the U.S. economy at $700 million in 1996 and $900 million in 1998. The Wall Street Journal reports that "[t]he National Confectioners Association, which represents about 350 candy companies, including Mars, Hershey and Nestlé, estimates that the U.S. Sugar Program has cost consumers about $14 billion since the Farm Bill's passage in 2008."
Should we care that sugar is too expensive? I have long been an advocate for farm policies that are based on good food policies. So, generally, no, I don't mind that the price of sugar is higher than it would otherwise be.
However, here are some of the related problems. First, high sugar prices are often listed as a factor in the ubiquitous use of high fructose corn syrup as a sugar substitute. We have created an entire industry supported by high sugar prices.
Second, the environmental problems associated with the domestic sugar cane industry raise serious questions about the wisdom of providing support. Wetland drainage and flood control efforts by the sugar cane industry (often supported with other federal subsidies) have been devastating to the Everglades in Florida. As sugarcane production is very chemically intensive, agricultural pesticides and fertilizers have significantly worsened the water quality problems there. For an informative rant on the government favors and the problems associated with sugar cane production, see Big Sugar, see Timothy Carney's opinion piece on the American Conservative blog, Not So Sweet: How Big Sugar Made Slaves out of Guest Workers (June 5, 2006).
Third, the sugar beet industry has been very profitable, some argue, too profitable. While the processors fend off labor complaints, other farmers complain that sugar beet farmers drive farm rent prices too high, pricing others out of the market. The GAO report expressed concern that "[e]conomic inefficiencies" occur because "the sugar program’s artificially high domestic prices encourage[] farmers to grow sugar beets instead of another crop, such as wheat."
So, here we are, once again, encouraging farmers to use our precious soil and water resources to grow a crop that we now realize is not good for us.
The situation becomes even more complex when you recognize that sugar beet farming is a closed universe. Not everyone gets to grow sugar beets. You have to belong to the sugar beet cooperative in order to have a market for your product. Coop membership is a very valuable asset in and of itself. It is a pretty sweet system (pun intended), at least if you are a sugar beet grower or processor. Even aside from whether or not we should be "growing sugar," shouldn't this be the kind of set up that could work in a free market?
Well, maybe or maybe not - add to the list a new problem - this year, there may be a direct cost associated with the "no cost" sugar program. This brings us back to the current news. Bloomberg Businessweek reports that the U.S. has the "biggest [sugar] glut in more than a decade." Raw sugar prices are down 37%. This raises a problem with respect to the non-recourse loans that the USDA has made to the processors. Under the USDA non-recourse loan programs, loan recipients can elect to either pay back the loan, keeping the crop (if the price is high) or forfeit the crop (if prices are low). Based on current prices, the USDA may end up with a lot of sugar. While the Wall Street Journal references 400,000 tons, Bloomberg speculates that the number could be double that.
The financial cost comes from of a provision in the 2008 Farm Bill that requires the USDA to sell forfeited sugar to our corn-based ethanol producers.
According to the USDA economist quoted by the Wall Street Journal, "[t]o entice ethanol producers to buy sugar to mix in with corn, the USDA expects it will have to take a 10-cent loss on every pound of sugar it sells, bringing the total to $80 million if 400,000 tons are purchased."
Some days, I am really glad that I am not Secretary Vilsack, trying to sort this stuff out.
A lot of people talk about throwing away the complicated tax code and starting over. I think we could use a wholesale, thoughtful look at all of the farm programs. Even the "no cost" programs. What should we support, how should we spend limited dollars, how should we spend limited natural resources, and what kind of food do we want?
All too often the labels and categories routinely invoked for both descriptive and analytical political discourse in public fora bespeak the noxious effects of intellectual lethargy, ideological calcification, and even the crassness of black-and-white thinking. In part, this reflects the cumulative consequences of a journalistic diet of mass media junk food. This unhealthy dietary regimen has its origins in the mass media’s analogue to factory farming, the products of a “commercial media juggernaut” at once constrained and motivated by capitalist imperatives as politically sanctioned by the most powerful nation-states and enshrined in the globalization of neoliberalism.[1] Perhaps most of these labels and categories are indispensable, with a rightful place in our political language, particularly when discretely or properly applied, but on occasion they prevent or obscure our appreciation of history, of novel socio-economic and political ideas and movements, of the “messiness” or complexity of social reality, in the domestic case or, especially in this instance, in understanding events abroad.
For a host of reasons we won’t address here, contemporary commercial mass media structurally facilitates and encourages such lethargy, calcification and simplistic thinking, meaning that this need not be the direct result of the manifest individual or collective intentions of editors, and journalists, and even its managers and publishers, but the factors and variables at play in establishing and maintaining this structure assure a comparatively weak and democratically diminished Fourth Estate. For instance, Robert McChesney has noted the corresponding “decline and marginalization of…public service values,”[2] conspicuously evidenced in the precipitous decline of investigative journalism, hence the effort to address this void by an Internet-based non-profit journalistic endeavor like ProPublica. At its website, ProPublica proclaims that
Investigative journalism is at risk. Many news organizations have increasingly come to see it as a luxury. Today’s investigative reporters lack resources: Time and budget constraints are curbing the ability of journalists not specifically designated ‘investigative’ to do this kind of reporting in addition to their regular beats. New models are, therefore, necessary to carry forward some of the great work of journalism in the public interest that is such an integral part of self-government, and thus an important bulwark of our democracy.
It is true that the number and variety of publishing platforms are exploding in the Internet age. But very few of these entities are engaged in original reporting. In short, we face a situation in which sources of opinion are proliferating, but sources of facts on which those opinions are based are shrinking. The former phenomenon is almost certainly, on balance, a societal good; the latter is surely a problem.
More than any other journalistic form, investigative journalism can require a great deal of time and labor to do well—and because the ‘prospecting’ necessary for such stories inevitably yields substantial number of ‘dry holes,’ i.e. stories that seem promising at first, but ultimately prove either less interesting or important than first thought, or even simply untrue and thus unpublishable. Given these realities, many news organizations have increasingly come to see investigative journalism as a luxury that can be put aside in tough economic times. Moreover, at many media institutions, time and budget constraints are curbing the once significant ability of journalists not specifically designated ‘investigative’ to do this kind of reporting in addition to handling their regular beats.[3]
It’s been argued that the problem is far greater than that having to do solely with “investigative journalism, ” encompassing most of what generally falls under the heading of “news gathering” and “news reporting” in this commercial media juggernaut. Media ownership concentration[4] is one source of key structural factors and variables responsible for either causing or accelerating deleterious trends in this regard, making mincemeat of our designs and hopes for a media fashioned to serve the means and purposes of a democratic polity, one designed to address, in other words, the nutritional informational and knowledge needs of a democratic civil society struggling to free itself from servile and obsequious relations to the aristocracy of Capital and the dictates of the National Security State.
All of this by way of setting the table for an attempt to make sense of the Venezuelan presidency (1999-2013) and legacy—largely but not solely as Chavismo—of Hugo Chávez (28 July 1954 – 5 March 2013).[5] Two of the articles we’ll mention could be considered exceptions to the generalizations above: perhaps the foremost being the New York Times’ decision to publish a cogent, fitting and fair memorial op-ed by Luiz Inácio Lula de Silva, the former president of Brazil (2003-2010), and a short Los Angeles Times article on why Venezuela’s poor came to discover ample reason to demonstrate their loyal support and affection for a man whom pundits, intellectuals, and politicians of the privileged caricatured and derisively dismissed with a perfervid rhetoric that reveled in ritualistic references to a “tin pot caudillo,” a “conspiracy theorist,” a “megalomaniac,” a demagogic buffoon of authoritarian manner if not dictatorial pretension. Whatever the grains of truth found in such characterizations, they serve in the end to ideologically obscure and distort attempts to accurately assess the socioeconomic and political legacy of Chávez and Chavismo in Venezuela, including its possible enduring contribution to Leftist politics and movements throughout Latin America. The reality of that legacy is rather more complex and perhaps a bit fuzzy, and it is undoubtedly far more interesting than suggested by such rhetoric.
No less than Christopher Hitchens indulged in the assumptions and premises of this discourse, thereby precluding a full appreciation of the fact that, “especially in the areas of public health, housing and education, [Chávez] succeeded in improving the standard of living of tens of millions of Venezuelans,”[6] or that his “government reduced extreme poverty by 70 percent,”[7] or that (while not entirely successful) imaginative and courageous experiments were initiated by the State in the form of Community Councils constituted “to oversee local social-welfare projects…[that] quickly turned into sites of real democratic debate, electing delegates and empowering people who previously didn’t have any say over the decisions that structured their lives.”[8] Hitchens preferred instead to draw our attention elsewhere, homing in on the Venezuelan president’s putative “politicized necrophilia” (with regard to Simón Bolívar), serving his readers the journalistic equivalent of the social class and status converse of voyeuristic and vicarious slumming, narrating the juicy details of his up-close-and-personal verification of anecdotal evidence that “[Chávez] does have an idiotic weakness for spells and incantations, as well as many of the symptoms of paranoia and megalomania.”[9] Would it have been unreasonable to expect Hitchens to engage his journalistic prowess on behalf of old-fashioned slumming so as to give voice to the Venezuelan poor, as did the writers in our LA Times piece:
Maria Eugenia Mendoza, a 55-year-old special education teacher, held aloft a Chavez poster Wednesday afternoon and sported, like so many others, a bright red T-shirt, the sartorial symbol of Chavez’s socialist project. Before Chavez, she said, the children she works with had been marginalized. Their classroom was a run-down warehouse. Their school supplies were scant. ‘Poor, handicapped students were forgotten until he came to power. They suffered from a total lack of focus by the government,’ said Mendoza, a teacher for 25 years. ‘Under Chavez there was a complete change. We now have a new school, curriculum, diagnostic equipment, trips and even sports programs. ‘He gave us hope,’ she said. ‘That’s why I am a Chavista.’[10]
Had the good doctor Hitchens resisted the temptation to indulge in amateur diagnosis under the cover of tabloid journalism, he might have informed his readers that Chávez “filled bellies, stocked classrooms, and tended to the ill,”[11] in spite of his all-too-human shortcomings.
In The Nation, NACLA (North American Congress on Latin America) executive editor Greg Grandin shares another example of recalcitrant ideological obscurantism entrenched across the prevailing political spectrum of Mirabeau’s “geography of the Assembly:”
Latin American populists, from Argentina’s Juan Perón to, most recently, Chávez, have long served as characters in a story the US tells about itself, reaffirming the maturity of its electorate and the moderation of its political culture. There are at most eleven political prisoners in Venezuela, and that’s taking the opposition’s broad definition of the term, which includes individuals who worked to overthrow the government in 2002, and yet it is not just the right in this country who regularly compared Chávez to the worst mass murderers and dictators in history. New Yorkercritic Alex Ross, in an essay published a few years back celebrating the wunderkind Venezuelan conductor of the Los Angeles Philharmonic, Gustavo Dudamel, fretted about enjoying the fruits of Venezuela’s much-lauded government-funded system of music training: ‘Stalin, too, was a great believer in music for the people.’[12]
Bhaskar Sunkara, a senior editor at In These Times and the talented and articulate founding editor ofJacobinmagazine, one of the premier periodicals on the Left, wrote a piece last year, “Postmodern Perón: Hugo Chávez and the new face of Latin American populism,”[13] that properly located Chavismo within the history of the Left in Latin America and in particular within the region’s well known tradition of populism.[14] Sunkara rightly describes the electoral victory that brought Chávez’s fourth term as Venezuela’s president—a term diminished by his illness and shortened by his death—as a “victory for progressive forces in his country,” a significant cause for celebration even if the Bolivarian Revolution[15] is, at turns, erratic and contradictory, “both authoritarian and democratic, demagogic and participatory.”
With Sunkara, we can readily concede that “some of the criticism of Chávez is justified,” which should surprise no one. At the same time, it is “undeniable” yet eminently understandable “that facing hostility in the media and an entrenched elite, the president at times used executive power to circumvent political opposition.” And while Chávez was clearly a leftwing populist in the Latin American tradition, he was “one distinctly more radical—if less predictable—than those who came before him.” If, after Hitchens, we find Chávez exhibited “symptoms” of paranoia, we might forgive him, fully aware that the U.S. backed the coup d’état of April 11, 2002 which “appeared to spell the end of the Chávez moment.” In the words of Sunkara,
The hubris of the reactionaries was astounding, and mainstream Venezuelan media outlets, complicit to varying degrees, at the very least could not hide their delight. Pedro Carmona, president of the Venezuelan Federation of Chambers of Commerce, was installed as interim president, and the National Assembly, Supreme Court and 1999 Constitution were dissolved to rousing applause. The United States and Spain rushed to establish relations with the new government. The event, framed in Orwellian terms by much of the Latin American Right, was a ‘triumph for democracy.’ But the opposition underestimated the support Chávez still had among the Venezuelan poor. A spontaneous mass uprising by hundreds of thousands of people outside the Miraflores Palace and the revolt of Chavista officers within turned the table on the plotters. Within 47 hours the government was restored, but extra-parliamentary resistance to the regime continued.[16]
The palpable fear and hostility one senses from the usual strata and quarters in this country and in parts of Latin America is irrational to the extent it arises from Chávez’s (late-blooming) conversion to socialism, which found him “more committed to redistributing wealth and power than just about any Latin American who came before him” (Sunkara). Chávez, as Sunkara well explains, was neither a despot nor a saint, as sober assessments by Sunkara, Lula, and Grandin, among others, attest:
‘Chavez was more than just an image to us. He was a very human figure who worked to improve our lives,’ said information technology engineer Vicente Rodriguez, 47. ‘Before, I couldn’t have cared less about politics, but he got me involved and interested in working for the common good.’ Rodriguez said he donated part of his time as an adult-education consultant. [….]
‘The poor were the forgotten ones before Chavez took office. Now we are visible, and the government has given us power we never had before,’ said Francisco Umbria, a retired municipal employee who stood in the massive crowd, waiting for the casket to roll by. ‘Only people who are forgotten die, and Chavez will never be forgotten, not for 100 years.’[17]
Notes: [1] Some of the relevant literature can be gleaned from the compilation I made here: Mass Media: Politics, Political Economy, & Law—A Select Bibliography. [2] Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times (The New Press, 2000). [3] http://www.propublica.org/about/ . [4] There are several works one might cite here but see, for example, C. Edwin Baker’s Media Concentration and Democracy: Why Ownership Matters (Cambridge University Press, 2007). [5] A rather critical assessment: Tillman Clark, “Chavismo: The Re-Emergence of Progressive Populism in Venezuela,” (June 12, 2010) at Venezuelanalysis.com. At this site you’ll also find a wide array of articles (‘opinion & analysis’) discussing the life and legacy of Chávez. See too: Josh Watts, “The British Press on the Death of Chávez,” at the New Left Project, and from FAIR (Fairness & Accuracy in Reporting): “In Death as in Life, Chávez Target of Media Scorn.” [6] Luiz Inácio Lula de Silva, “Latin America after Chávez,” The New York Times (March 6, 2013). Available: http://www.nytimes.com/2013/03/07/opinion/latin-america-after-chavez.html?hp&_r=1&. [7] Bhaskar Sunkara, “Chávez: Despot or Saint?,” VICE (no date), available: http://www.vice.com/read/chavez-despot-or-saint . [8] Ibid. [9] Christopher Hitchens, “Hugo Boss,” Slate (posted March 5, 2013, originally written in 2010). Available: http://www.slate.com/articles/news_and_politics/fighting_words/2010/08/hugo_boss.single.html . [10] “Among Venezuela’s poor, Hugo Chávez ‘will never be forgotten,’” Los Angeles Times (March 6, 2013), available: http://articles.latimes.com/2013/mar/06/world/la-fg-venezuela-mourners 20130307. [11] Ibid. [12] Greg Grandin, “On the Legacy of Hugo Chávez,” The Nation (March 5, 2013), Available: http://www.thenation.com/article/173212/legacy-hugo-chavez# . [13] Bhaskar Sunkara, “Postmodern Perón: Hugo Chávez and the new face of Latin American populism,” In These Times (online) (October 10, 2012), available: http://inthesetimes.com/article/13983/hugo_chavez_postmodern_peron/ . [14] As Jorge E. Castañeda noted in his classic study, Utopia Unarmed: The Latin American Left after the Cold War (Alfred A. Knopf, 1993), “There is an abundance of literature on populism in Latin America.” Among the works in English listed as “most frequently quoted:” Torcuato di Tella, “Populism and Reform in Latin America,” in Claudio Veliz, ed., Obstacles to Change in Latin America (Oxford University Press, 1965), Ghita Ionescu and Ernest Gellner, Populism: Its Meaning and National Characteristics (Weidenfeld and Nicolson, 1969), and Paul W. Drake, Socialism and Populism in Chile, 1932-52 (University of Illinois Press, 1978). See too two titles edited by Michael L. Conniff: Latin American Populism in Comparative Perspective (University of New Mexico Press, 1982) and Populism in Latin America (University of Alabama Press, 1999), as well as Rudiger Dornbusch and Sebastian Edwards, eds., The Macroeconomics of Populism (University of Chicago Press, 1991). For a more recent collection of titles, see David Leaman’s review essay, “Changing Faces of Populism in Latin America: Masks, Makeovers, and Enduring Features,” Latin American Research Review, Vol. 39, No. 3 (October 2004): 312-326, available: http://lasa 4.univ.pitt.edu/LARR/prot/fulltext/vol39no3/Leaman.pdf. Finally, see Anastasia Moloney’s essay, “The Challenge of South America’s Populist Left,” World Politics Review (12 January 2009): http://www.worldpoliticsreview.com/articles/3146/the-challenge-of-south-americas-populist-left . [15] See, for example, Iain Bruce, The Real Venezuela: Making Socialism in the 21st Century (Pluto Press, 2008), Gregory Wilpert, Changing Venezuela by Taking Power: The History and Policies of the Chávez Government (Verso, 2006), Carlos Martinez, Michael Fox, and JoJo Farell, eds., Venezuela Speaks! Voices from the Grassroots (PM Press, 2010), and George Ciccariello-Maher, We Created Him: A People’s History of the Venezuelan Revolution (Duke University Press, 2013). [16] See supra note 13. [17] See supra note 10.
Addenda: I just finished reading a concise, incisive, historically sensitive and politically astute account of the accomplishments and the difficulties faced by the Bolivarian revolution in Venezuela with regard to its constitution, urban/rural issues, political leadership, poverty, democratic participation, cultural context, and the like, in Vijay Prashad’s indispensable volume, The Poorer Nations: A Possible History of the Global South (Verso: 2012): 258-278.
I see that Professor Campos is finished with his effort to expose the Law School Scam. I read his blog once or twice but felt like I knew and agreed with most of what he was saying so I did not keep up. Judging by some of his enemies, how wrong could he be?
Frankly, I am pretty much out of gas on my far more modest Classbias blog too. It has always had a goal that was a bit different than that of Professor Campos. Its goal was to reveal the persistent and destructive effects of institutions run by elites for their own ends.
Here is one more effort to explain the problem. The people I know can be placed along a continuum. At one end are the "demanders." These are the folks who feel entitled to virtually everything and "demand" that their desires be met. Slipping along the continuum we come to the "askers." What ever they can think of, they ask for. At the far end are the people who do not demand or ask. If you know anything about relative deprivation, you know that to demand or ask you have to be in a context in which things are perceived as possible for people like you. For example, I remember a few years ago when two new faculty hires were told they would be given a certain sum for moving expenses. The reaction of one way, "What? They will actually pay for me to move. What a great surprise." The reaction of the other was "I cannot possible move for such a small amount." The important thing to note is that there is no correlation between need, merit, productivity, student welfare or institutional success and a person's position on that continuum.
In addition, administrators say yes to these requests and demands for a host of reasons other than student or institutional welfare. For example, an administrator may say yes just to avoid the harassment or to make sure he or she is not accused of 'insensitivity" to one political group or another. Or, the administrator may be concerned that the asker/demander is capable influencing others to believe he or she has been unreasonable.
Here is my best try at using Venn diagrams to illustrate the problem. The larger two circles are things people ask for or demand and reasons administrators say yes. The smaller circles within each one show things asked for or demanded that are consistent with student or institutional welfare and the times administrators say yes for reasons related to student or institutional welfare. That tiny overlap in the middle shows how much these interest coincide. A much larger area indicates when requests and demands that have nothing to do with student or institutional welfare get a yes answer.
That is the title of Professor Olivier De Schutter's op-ed in the New York Times today, but it reminds me of another catchy (if depressing) phrase feminists coined a few decades ago: the feminization of poverty. As it turns out, De Schutter, the UN special rapporteur on the the right to food, brings together issues of gender equality and food security in his op-ed in a way that shows the link of both to, you guessed it, poverty. As most of us know, women are more likely than men to be living in poverty, wherever they are in the world. Turns out, according to De Shutter, as women get more and more responsibility for growing food in the developing world--partly as a result of male migration for work--women's poverty and hunger, along with that of their families, is exacerbated, not eliminated.
Specifically, De Schutter discusses a report released today to the United Nations Human Rights Council in which he calls for a "comprehensive, rights-based approach focused on removing legal discrimination and on improving public services — child care, water supplies, sanitation and energy sources — to reduce the burden on women who farm."
Noting women's increasing roles "on the front lines of the fight to sustain family farms," De Schutter asserts that gender discrimination and stereotyping lead to pervasive discrimination against women, hindering their ability to overcome poverty and hunger. Some manifestations of this discrimination "den[y] small-scale female farmers the same access men have to fertilizer, seeds, credit membership in cooperatives and unions, and technical assistance." Just as problematic, if not more so according to De Schutter, are the burdens associated with traditional gender roles that leave women expected to do "unremunerated household chores like cooking, cleaning, fetching water, collecting firewood and caring for the very young and the elderly." De Schutter notes that these activities are equivalent "to as much as 63 percent of gross domestic product in India and Tanzania," and that these endless tasks keep women from having the time they need to "attend classes, travel to markets to sell produce or do other activities to improve their economic prospects."
De Schutter provides success stories from Bangladesh, the Philippines and China, mostly about programs that look at first blush unrelated to farming and food. These programs have, among other things, provided obstetric and other health services, educated women about domestic violence, enhanced education for children, supplied clean water and latrines, and employed women on rural road maintenance crews. Yet as apparently unrelated to farming as these programs are, all of these have had the knock on effect of enhancing women's farm productivity and helping to alleviate hunger.
De Schutter does not mention the role that CEDAW--which includes specific rights for rural women--can play in all of this, but that is a topic I have written about extensively here, here, and here. This article is about empowerment of India's rural populations in particular.
Kudos to De Schutter--and the United Nations--for seeing food security as part of a much wider web that implicates women's agency and well-being.
The New York Times today ran an article about banks foreclosing on the homes of deployed military families. See, Banks Find More Wrongful Foreclosures Among Military Families. The Servicemembers' Civil Relief Act provides protections to military service members on important financial issues, including evictions and mortgage foreclosures, which should have prevented many of the reported cases. The SCRA is a key protection that perhaps needs further promotion to ensure that banks comply.
In mixed-sales transactions, those involving goods and services, most courts apply a predominant purpose test to determine if Article 2 of the UCC applies to the transaction applying sections 2-102 and 2-105. See, e.g., Warshaw v. QBE Ins. Corp., 78 U.C.C. Rep. Serv. 2d 434 (D. Mass. 2012)(providing that “where a contract implicates both goods and services, the test to determine the applicability of art[icle] 2 is whether ‘the predominant factor, thrust or purpose of the contract is . . . the rendition of service, with goods incidentally involved.’”). Under this test, Article 2 applies if the transaction is predominantly for the sale of goods, but does not apply if the transaction is predominantly for the provision of services. Courts continue to look at how this test works in individual cases.
For instance, in Audio Visual Artistry v.Tanzer, No. W2012–00216–COA–R3–CV, 2012 WL 6697600, at *1 (Tenn. Ct. App. Dec. 26, 2012), the court considered whether a contract for the installation of a “smart home system” during the construction of a new home was one for the sale of goods. Stephen Tanzer (“Tanzer”) and Audio Visual Artistry (“AVA) contracted for the sale and installation of electronic and entertainment equipment in Tanzer’s home, which was under construction. The contract, which was for a custom home theater, music, phone and lighting system, itemized the pricing for the contract into components that included equipment, labor, and cable, with the equipment forming the bulk of the price. A dispute developed over the functionality of some components of the Tanzer system. AVA filed suit for breach of contract to recover unpaid invoice amounts and Tanzer filed a counter-complaint. Accordingly, the court correctly ruled that Article 2 governs transactions where goods and services are bundled if “the goods element predominated.”
The court outlined four factors key to application of the predominant purpose test: (1) the language of the contract; (2) the nature of the seller’s business; (3) the purpose of the contract; and (4) the amounts paid toward the goods and services components of the contract. Although the AVA-Tanzer transaction involved a service, the installation of the smart home system during the construction phase, the court concluded that the contract was distinguishable from other construction agreements typically outside the scope of Article 2. The language of the contract, which repeatedly referred to the purchase of equipment and the installation of the components into the home, did not change the moveability of the goods sold. Moreover, AVA’s business was the sale of “smart home” components of multiple manufacturers, with installation being incidental to the sales aspect. Additionally, even Tanzer described the contract as one for electronic equipment and the contract amounts paid for the equipment far outweighed the installation charges, indicating that the contract was predominantly for the sale of goods.
Filmmakers Kristi Jacobson and Lori Silverbush’s new documentary examines the politics and possible ways out.
By John Horn, Los Angeles Times (February 28, 2013)
When people think of hunger, they might picture a starving Third World child. The makers of the new documentary ‘A Place at the Table’ suggest the face of undernourishment can be found much closer to home: Tens of millions of U.S. citizens go to bed hungry every night. ‘Americans are for the most part unaware of how vast the problem is,’ said Kristi Jacobson. She co-directed the film, which premieres in limited release this weekend, with Lori Silverbush, who added, ‘You can’t see hunger in America.’
In keeping with the modern wave of activist non-fiction filmmaking, ‘A Place at the Table’ is no impartial documentary — albeit without a Michael Moore-like rabble rouser. Instead, it is a combination primer and jeremiad, an investigation into how a country with so many resources nevertheless has 16% of its population living in households that struggle with hunger and how federal subsidies benefit agribusiness at the expense of the public’s well-being.
While laying out possible solutions, ‘A Place at the Table’ strongly suggests inaction is the worst possible path, particularly because of hunger’s grave health consequences. ‘The cost to the nation is astronomical,’ Jacobson said.
The movie’s genesis was a phone call Silverbush and her husband, the New York-based chef and ‘A Place at the Table’ executive producer Tom Colicchio, received from a middle school principal.
The couple were mentoring a 12-year-old, and the administrator was on the line to report that the student was rummaging through the trash looking for food. She was one of the invisibly hungry: To unsuspecting eyes, she looked well fed but was actually among more than 16 million U.S. children suffering from hunger or ‘food insecurity,’ a condition where the prospects of filling, healthful meals are doubtful. ‘She was absolutely the poster child for malnutrition,’ Silverbush said of the student, who had suffered from developmental delays and fell asleep in class. [….]
As the film (and a companion book) point out, the U.S. Department of Agriculture found that nearly 14 million Americans lived in such food deserts, where they have low access to supermarkets or large grocery stores. At the same time, low-income and even working-class families can’t afford to buy fresh produce and quality proteins to feed themselves. If you have only a few dollars to eat, in other words, processed foods will fill you up far cheaper than fruits and vegetables. Federal subsidies, the movie argues, help already profitable large farmers keep ingredient costs down for processed foods, while the smaller farmers who plant produce don’t enjoy similar support. ‘We are spending $20 billion a year on agriculture subsidies for the wrong foods,’ Marion Nestle, a nutrition professor at New York University, says in the film. ‘And $20 billion would go a very long way to promoting a healthy, educated population, starting with kids.’
Those facts combine to illustrate ‘A Place at the Table’s’ dramatic linking of obesity to the high cost and scarcity of nutritional food. Hunger and heft, in other words, are symptoms of the same problem. As the film points out, the price of fruits and vegetables has gone up about as much over the last three decade as the price of processed foods has declined. It’s why a single peach can cost about the same as a Whopper. And that, in turn, is partly driving the nation’s obesity epidemic. [….]
It seems at least Wells Fargo is now offering payday loans, though they call theirs a "direct deposit advance." (See Wells Fargo FAQ). A large number of states prohibiting payday loans and an even larger number opposed to any federal charter for payday lenders. (see Center for Responsible Lending). It seems that some lenders are turning to setting up shop on the Internet, states that allow these loans or even in foreign countries. (see Major Banks Aid in Payday Loans, New York Times). While there is plenty to dislike about this product, how its marketed, the price, etc., there are also complaints against major banks that have been permitting withdrawals on these loans, even where the loans are illegal in the first place.
Customers should be able to discontinue automatic withdrawals of any variety by a simple request to the bank. Banks that don't comply with customer requests do so that their own peril. Notice of a stop payment would seem to make any further transactions not properly payable under section 4-401 and prohibited under the Electronic Funds Transfer Act at the very least. There are some reports that the banks truly are attempting to increase overdraft fees by forcing customers on the edge to continue making auto-withdrawlas over a stop payment request. While I am not surprised that banks might overreach at times, customer persistence may help to stomp this out. Or at least an industrious attorney or law student who is able to remind banks of the rules of Article 4 and Regulation E under the Electronic Funds Transfer Act 205.10 (allowing customers to stop payment).
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