The War against Workers

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    On March 9, 2015, Wisconsin Gov. Scott Walker signed into law a measure that prohibited unions from requiring non-union members for whom they bargained to pay agency fees, striking another blow against organized labor four years after the state effectively ended collective bargaining for public-sector employees. The new law, effective immediately, made Wisconsin the 25th right-to-work state and the first to do so since Michigan and Indiana enacted similar laws that were intended to hobble the ability of employees to bargain collectively for wages and for better working conditions. 

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Mark Mix, president of the National Right to Work Committee, claimed the action then put pressure on other Midwest states to follow suit.  "Every worker deserves freedom of choice when it comes to union membership and dues payment, and if states like Michigan and Wisconsin can pass Right to Work then Illinois, Minnesota, Missouri and Ohio can too," Mix stated.

            Mix's professed concern for the freedom of workers is little less than disingenuous propaganda since the economic evidence and historical record show that "right-to-work laws" have significantly weakened unions, and that the decline of a viable labor movement is  inextricably linked to rising economic inequality among Americans. As employers inevitably engage in a collective "race to the bottom" the ability of employees to negotiate and demand higher wages and better conditions for work declines. 

As of 2018, twenty-four states had agency fee requirements for public employees. While 28 states have so-called right-to-work laws that prohibit mandatory agency fees, Wisconsin and Michigan had exceptions for police officers and firefighters that permit agency fees covering those workers. In those right-to-work states, unions still represented workers but membership rates were significantly lower. Agency fees, paid by public-sector workers who decline to formally join their unions, provided millions of dollars annually to unions. The loss of that revenue further weakens the power of unions to create better working conditions and to improve the standard of living for employees. 

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The unremitting war against unions and the right of employees to bargain collectively for better compensation and working conditions has remained under attack by a well-funded and orchestrated cabal of right-wing pro-business groups since the end of the New Deal. In 1977, the U.S. Supreme Court decided Abood v. Detroit Board of Education. In a unanimous decision, the Court affirmed that the union shop, legal in the private sector, was also legal in the public sector. The Court held that non-members may be assessed agency fees to recover the costs of "collective bargaining, contract administration, and grievance adjustment purposes" while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.  

In the 2018 term of the U.S. Supreme Court that decision was contested anew. In Janus v. American Federation of State, County and Municipal Employees, the Supreme Court agreed to consider - for the second time in two years -a suit brought by anti-union groups. The nominal plaintiff, a disgruntled social worker in Illinois, challenged the legality of fees that workers who are not members of unions representing teachers, police, firefighters and certain other government employees must pay to help cover the costs of collective bargaining with state and local governments. Janus' lawsuit was funded by The National Right to Work Foundation which  is part of a right -wing network funded by corporate billionaires and ideological opponents of unions. 

In Abood as well as in Janus, the plaintiffs argued that requiring them to pay agency fees to unions whose views they may not share, violated their rights to free speech and free association under the First Amendment to the U.S. Constitution. Ironically, two prominent conservative law professors, Eugene Volokh and William Baude, had previously debunked that argument as nonsensical. In an amicus brief that they submitted on behalf of the AFSCME, they argued that even Abood was wrongly decided: "Where Abood truly went wrong... was not in how it applied the new First Amendment objection it recognized. Rather, Abood erred by recognizing that objection in the first place. Compelled subsidies of  others' speech happen all the time, and are not generally viewed as burdening any First Amendment interest. The government collects and spends tax dollars, doles out grants and subsidies to private organizations that engage in speech, and even requires private parties to pay other private parties for speech-related services--like, for example, legal representation. To be certain, these compelled subsidies are subject to other constitutional restrictions. For example, the government cannot compel payments that violate the First Amendment's Religion Clauses or the Equal Protection Clause. But a compelled subsidy does not itself burden a free-standing First Amendment interest in freedom of speech or association." 

For their part, the unions contended that mandatory agency fees were needed in order to eliminate the problem of what they call "free riders" - non-members who enjoy the benefits of union representation i.e. - such as increased compensation and better working conditions obtained in through collective bargaining -  while simultaneously refusing to pay for the costs of that representation. In addition, depriving unions of agency fees could thwart their ability to spend money in political races. Historically, because of the long-standing antipathy of the GOP to unions, unions have endorsed and supported  Democratic candidates.

In 2016, the Supreme Court considered a similar case, and after hearing arguments appeared poised to overturn a 1977 Supreme Court precedent, but the death of conservative Justice Antonin Scalia the following month left the court with an even split of conservatives and liberals, and its 4-4 ruling in March 2016 did not resolve the legal question. Republican President Donald Trump's appointment of Justice Neil Gorsuch in 2017 restored the Supreme Court's 5-4 conservative majority. In the spring of 2018, after the appointment of Neil Gorsuch, by a vote of five to four, the Supreme Court's reactionary majority sided with the plaintiff and, in reversing the Abood decision, held that even the collection of agency fees by public sector unions violated the First Amendment rights of employees who opposed unions.   

"This case is about power," American Federation of Teachers President Randi Weingarten said. "The funders of this case want a new Gilded Age, this time on steroids," Weingarten added, referring to a period in the late 19th century known for its concentration of wealth among industrialists.

The union membership rate among public-sector workers was nearly 35 percent in 2017, more than five times higher than the unionization rate for workers in the private sector, U.S. Bureau of Labor Statistics figures show. Taking away mandatory agency fees could have profound implications for public-sector union coffers. Unions in New York state, for example, 
would lose an estimated $110 million per year without mandatory fees from non-members, according to the business-backed Empire Center for Public Policy.  The loss of this revenue to unions would be especially damaging since unions have historically been the agents that have promoted a higher standard of living, income equality, job security, and equal treatment of all employees in the workplace.  

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The private sector analogue to Janus v. AFSCME is Epic Systems v. John Lewis, a series of cases that U.S. Supreme Court also decided in its 2018 term. The employees in the Epic cases complained that their employers underpaid them in violation of the wage and hour provisions of the Fair Labor Standards Act of 1938,  and that, under §7 of the National Labor Relations Act,  they were entitled to engage in concerted action - such as class action arbitrations -  to vindicate their rights.

Supported by the U.S. Chamber of Commerce and a virtual smörgåsbord of right-wing funded institutions and "public interest" groups with deliberately deceptive names such as the Equal Employment Advisory Council, as well as by the Trump administration, the plaintiffs in Epic argued that the Federal Arbitration Act - that was passed in 1925 - should be construed to ignore and override the statutory provisions of the National Labor Relations Act. 

The NLRA, which was passed in1935 during the New Deal, was enacted to counter widespread strikes and labor violence between employees  - who were denied the right to organize and to bargain collectively - and business owners. These workers and their families were also often the victims of thugs and special police hired by employers. Many others were required as a condition of their employment to sign "yellow dog" contracts - agreements between workers and employers in which the employees - who lacked equal bargaining power - agreed not to join or support a union.  
 
The NLRA, at 29 U.S.C.  §151 -"Findings and declaration of policy" - explicitly states "[I]t is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions of the free flow of commerce ...by encouraging  the practice and procedure of collective bargaining..." In response to the plaintiffs' claims, the unions replied, "The right to engage in  concerted protected activity is ' a bedrock principle of federal and policy' that has repeatedly been invoked by the Board and the courts over the past eight decades....Just as an employer cannot deprive its workers of that substantive statutory right by insisting that they agree to arbitrate all workplace disputes instead of picketing, striking, or engaging in any other form of legally protected protest activity, neither can it opt out of the core, substantive worker-protected right established by Norris-LaGuardia and the NLRA by requiring workers to prospectively waive their statutory right to improve workplace conditions through collective adjudication."

At issue in Epic was the question of whether employers could, as a condition of employment, require employees to sign arbitration agreements that require them to submit all work-related disputes to individual arbitrations, contrary to §7 of the National Labor Relations Act; irrespective of whether they belonged to unions; and irrespective of whether existing negotiated collective bargain agreements required that work-related disputes be adjudicated between the unions, as the freely -chosen agents of the employees, and the employers through the grievance and collective arbitration process.  

In another five-to-four decision, writing on behalf of the Court's reactionary majority, Justice Gorsuch ignored the well-established canons of judicial interpretation, the unambiguous legislative history of both acts , and the plain wording of the Federal Arbitration Act. As Justice Ginsberg noted in her dissent, the Federal Arbitration Act was explicitly passed to provide a forum to resolve disputes among merchants, not disputes involving workers who are explicitly excluded from the act. By contrast, the National Labor Relations Act and its immediate predecessor, the Norris-LaGuardia  Act, were passed to guarantee the rights of all employees to organize unions, to bargain collectively to improve wages and working conditions, and to engage in collective actions to achieve those and related ends.   
     
The decision in Epic Systems may very well spell the death of organized labor in the private sector and will harm millions of Americans who work for wages, whether they belong to unions or not since they would now be reduced to the status of indentured servants.

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              The labor history of the United States in the nineteenth century and the first three decades of the twentieth century was often violent and bloody. Most state courts treated labor unions and strikes as illegal conspiracies in restraint of trade and labor organizers and striking union members were regularly arrested, imprisoned and often shot by Pinkerton detectives,private militias raised by employers, and National Guard soldiers who were mustered into service by business-friendly governors in many states.

              Ever so slowly, the tide began to turn. In the 1930s, as the effects of the Great Depression became more pronounced, industrial unionism, organized under the auspices of the Congress of Industrial Organizations (CIO), emerged. With the enactment of the National Labor Relations Act in 1935, the right of all workers "to organize and bargain collectively through representatives of their own choosing" was pronounced for the first time to be national public policy. Other New Deal legislation included the Walsh-Healey Government Contracts Act, which required the payment of prevailing wages on government contracts in excess of $10,000; the Railroad Retirement Act; and the Fair Labor Standards Act of 1938, which provided for the first time, with certain exceptions, a nationwide minimum wage floor and maximum workweek of 40 hours per week within three years of its enactment date.

            Courageous individuals such a Bill Haywood, Mother Jones, Eugene Debbs, John L. Lewis, and Walter and Victor Reuther, among thousands of others, struggled to secure social and economic justice for American workers. Organized labor brought to America the right to grieve mistreatment in the workplace, "just cause" termination standards, the eight hour day, weekends off, overtime and rest break regulations, workers' compensation, unemployment insurance and pensions. 

            Since the 1940s, the American labor movement has been forced into retreat. After the death of Franklin Roosevelt and the election of a Republican Congress in 1946, right-wing liberalism and laissez-faire economics one again became resurgent. The first great success of New Deal critics was achieved with the enactment of the Taft-Hartley Act in 1947, that was passed over President Truman's veto. The effect of this legislation was to outlaw "closed shops" and to permit individual states to allow "open shops"--i.e. shops in which elected unions could not require all of the employees to belong to the unions, irrespective of whether the non-union employees also received and enjoyed the benefits of collective bargaining.

            As a result of that legislation, corporations began an inevitable migration to the South where welcoming state legislatures hastily enacted "right-to-work" laws. The migration of these manufacturing companies away from the unionized urban centers of the Midwest and North left hundreds of mill towns impoverished and desolate, and the union movement, over time, has been effectively eviscerated.

            By January, 2018, the number of wage and salary workers belonging to unions stood at  14.8 million in 2017, which was an slight increase of 262,000 from 2016. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 percent and there were 17.7 million union workers.  

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Many non-union employees still do not seem to understand that their ability to influence working conditions and wages, as solitary individuals who lack comparable bargaining power with managers and owners of business, is virtually nil. Apparently, however, the myth of the autonomous, self-made individual who can receive recognition, remuneration and advancement solely by dint of one's own hard work continues to resonate in the workplace to the present, notwithstanding all of the evidence to the contrary. 

This myth now resonates at the top level of the federal government as Andrew Puzder, a fast food executive and opponent of minimum wage and other labor laws, was chosen by Donald Trump to become the Secretary of Labor. A fierce critic of government regulation and an Ayn Rand enthusiast, Puzder has expressed a preference for automation in the workplace. As he noted, machines are much easier to deal with than humans: "They're always polite, they always 
upsell, they never take a vacation, they never show up late, there's never a slip-and-fall, or an age, sex, or race discrimination case."

            Even among the few unionized workers still employed in manufacturing, downward economic pressures have forced many unions to acquiesce to a two-tier pay system imposed by management: younger workers now make substantially less per hour than more senior employees who perform the same work. The effect of this two-tier system denies younger workers upward mobility and divides workers based solely upon dates of hire: "The changing job market is undercutting entry-level wages for those who do not go to college. In the 1960s and 1970s, you saw high school graduates getting good jobs at Ford and AT&T, jobs that in inflation-adjusted terms were paying $20 or $25 in today's wages," said Sheldon Danziger, a professor of public policy at the University of Michigan. "Nowadays most kids with just high school degrees will work in service-sector jobs for $10 or less..."
                                          
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The decline of unions explains in large part why wages have remained stagnant for  decades. As the power of unions has eroded, companies have gained the upper hand and are able to unilaterally dictate to individual employees the terms and conditions of their employment. A survey conducted by Evan Starr, a management professor at the University of Maryland, found that one in five employees in the U.S. were subject to non-competition agreements in 2014.   Matthew Marx, a professor at M.I.T's Sloan School of Management, found that employers typically present  workers with  non-compete contracts when the employers lacked negotiating leverage. The use of  non-competition agreements has been expanded to restrict the ability of even low-wage workers to accept successor employment at "competitors" for higher wages in a wide range of jobs from sales to technical services.

Besides non-competition agreements, many companies have increasingly used their economic clout to impose non-poaching agreements that eliminate or severely restrict the ability of franchisees to hire workers from other locations within the same franchise. The "non-oaching"  agreements are widespread among franchises as diverse as  Burger King, H.R. Block and Jiffy Lube, among others. 

Eric Posner and Alan Krueger have pointed to the existence of  non -competition and anti-poaching agreements as evidence of  "monopsony power." The term is used by economists to describe the ability of an employer to suppress wages below the efficient or perfectly competitive level of compensation. This is done  through the use of non-compete clauses and non- poaching agreements that are aimed at the most vulnerable workers.

As Posner and Krueger note, "The studies show that common features of the labor market give enormous bargaining advantages to employers. Because most people sink roots in their communities, they are reluctant to quit their job and move to a job that is far away. Because workplaces differ in terms of their location and conditions, people have trouble comparing them, which means that one cannot easily 'comparison shop' for jobs. And thanks to a wave of consolidation, industries are increasingly dominated by a small number of huge companies, which means that workers have fewer choices among employers in their area." They conclude that, ''When employers exercise monopsonistic power, wages are suppressed, jobs are left unfilled, and economic growth suffers. Unions used to offset employer monopsony power, but unions now represent only 7 percent of the private sector."

             Harold Meyerson has described the correlation between union membership and economic equality in article in the American Prospect in 2012. He observed that "From 1947 through 1972, productivity in the United States rose by 102 percent, and median household income rose by an identical 102 percent. In recent decades, as economists Robert Gordon and Ian Dew-Becker have shown, all productivity gains have accrued to the wealthiest 10%. In 1955, near the apogee of union strength, the wealthiest 10 percent received 33 percent of the nation's income. In 2007, they received 50 percent."  

            Colin Gordon, a Professor of History at the University of Iowa, has argued that "One hallmark of the first 30 years after World War II was the 'countervailing power' of labor unions (not just at the bargaining table but in local, state, and national politics) and their ability to raise wages and working standards for members and non-members alike. There were stark limits to union power--which was concentrated in some sectors of the economy and in some regions of the country--but the basic logic of the postwar accord was clear: Into the early 1970s, both median compensation and labor productivity roughly doubled. Labor unions both sustained prosperity, and ensured that it was shared."

The pervasiveness of anti-union bias remains so potent in right-to-work states and so ingrained in the false consciousness of its citizens that, as recently as February 2017, Boeing employees in South Carolina voted against their own best interests. The National Labor Relations Board announced  that 74 percent of the 2,828 workers cast ballots voted against joining the International Association of Machinists and Aerospace Workers (IAM).  In a statement, IAM lead organizer Mike Evans said: "We're disappointed the workers at Boeing South Carolina will not yet have the opportunity to see all the benefits that come with union representation."    

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          The mythology behind "right-to-work" laws and companion efforts have largely succeeded in gutting this country's labor laws but they have produced results quite different from the economic theory their proponents endorse. As Isaiah Berlin sagely noted, "Freedom for the wolves has often meant death to the sheep."  In a world of unrestrained competition, only the few, the wealthier, the more powerful, the more resourceful, the better educated, the more mobile, will be able to maximize their opportunities; everyone else gets left behind or becomes "road kill."

If unregulated market economies are the answer to economic progress, as corporate CEOs and their lobby of sycophants and enablers insist, how then does one explain the implosion of Wall Street and the related financial scandals that destroyed trillions of dollars of wealth possessed by ordinary Americans?  Conversely, if government regulation of the economy is the problem, how do we explain the growing economic inequality in the U.S? Why is it that, despite what right-wing libertarians claim is a confiscatory tax code, the wealth of the top 1% continues to grow exponentially?

  Massachusetts Senator Elizabeth Warren has been criticized by the Republican noise machine and its right-wing media outlets for stating the obvious: that each of us has depended for our success, to some degree, upon the help, assistance and inspiration that we received from others. Further, she has emphasized the obvious: that public goods - rail, road and airport infrastructure, public education, government support for R&D, public health, food and safety regulation, environmental regulation,  civil rights protection, consumer protection, anti-trust regulation, protection of intellectual property - are essential  prerequisites for economic success. Consider, for example, the rewards reaped today from the government funding and research to create satellite/GPS technology and the internet.

  Market economies are affected by the frailties and foibles of human actors. Many of these actors are motivated by selfish, short-sighted concerns; but the consequences of their actions harm everyone. It is for that reason that regulation in the public interest and investment by the government - as the agent of the people in a democracy - are essential antidotes to the temper the excesses of capitalism and to create the foundations for a truly just society.

The continued clamor to reduce public regulation and investment is a siren call that is orchestrated by corporations and the wealthy elite who want free reign to continue to game the system. Ordinary citizens need to resist that clamor and to understand that their true, long-term interests have little in common with the interests of the top 1%.  As Nicholas Kristof reminds us "If you're infatuated with unfettered free markets, just visit Waziristan." 


Work Until Dead: The Pension Crisis

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During Superbowl LII, on February 5, 2018, E-Trade ran a commercial that depicted elderly life guards, fire fighters and disc jockeys' struggling on the job and singing, "I'm 85 and I want to go home" to the tune of Harry Belafonte's "Banana Boat."  The ad correctly noted that over one third of Americans aren't saving any money for retirement. 

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Roberta Gordon is a case in point. In an interview with The Atlantic, she stated that she never thought that she would still be alive at age 76 and, if she were, she didn't think that she would still be working. Now, she spends every Saturday at a grocery store and hands out samples for which she is paid $50 a day. She states that she needs the money. Throughout her life, Gordon worked dozens of odd jobs  -  as a house cleaner, a home health aide, a telemarketer, a librarian, a fund raiser. Often, however, she didn't have steady job with an employer that  paid into Social Security and she doesn't receive a pension. Gordon states that she earns $915 a month through Social Security and through Supplemental Security Income, or SSI, a program for low-income seniors. Her rent is $1,040 a month and she's been forced to take on credit-card debt to cover the gap, and to pay for utilities, food, and other essentials. She often goes to a church food bank for supplies. 

  Ms. Gordon plight is typical of many Americans who have struggled throughout  their lives to make ends meet, but E-Trade's invitation to invest with it is no solution to their travail. 

From 1940 to 1960, the number of American workers in the private sector by traditional pension plans increased from 3.7 million to 19 million, or to nearly 30 percent of the labor force, according to the Employee Benefit Research Institute, or EBRI, and by 1975, 103,346 plans covered 40 million people.  By the early 1970s, many of those retired workers in the United States who were the beneficiaries of traditional pension plans were able to enjoy a comfortable retirement for themselves and their spouses in contrast to the impoverished experiences of previous generations of retirees. Their pensions were supplemented by Social Security benefits that were enacted in the New Deal, and were greatly augmented  by the medical coverage provided by Medicare which was enacted as part of President Lyndon Johnson's Great Society legislation.  

By 2014, only 15% of retired workers in the private sector were enrolled in defined benefit plans. By contrast, many of the defined contribution plans that the Employee Retirement Income Security Act of 1974 [ERISA} permitted employers to create provide retirees with benefits are based on the amount and investment performance of contributions made by the employee and/or employer over a number of years. Many of those401K plans make minimal contributions to their employees and opt to pay benefits in a  lump sum rather than as a lifetime pension. 

The key event that precipitated a clamor for pension reform occurred in 1963 when the pension plan of the South Bend, Indiana-based car manufacturer Studebaker Corporation  collapsed because of the company's bankruptcy. That event led in a 10-year Congressional effort to enact federal legislation to regulate pension plans. That effort - which was largely shaped by  the lobbying efforts of banks and money managers  -  culminated in the passage of , ERISA. ERISA, amended several times since, ostensibly requires companies to adequately fund their pension plans and mandates that workers vest their pension benefits after a minimum number of years.


Ostensibly, ERISA was enacted to create minimum national standards for pension plans in the private sector.  At the time it was enacted,  a majority of employees were enrolled in traditional pension plans - aka defined benefit  plans. Under those plans, many of which were joint union-employer pension plans, the trustees and administrators were held to a fiduciary duty to exercise prudent judgment to protect the assets invested on behalf of the covered employees.

At the behest of the financial industry, ERISA permitted the creation of defined contribution plans - individual  retirement plans - e.g. 401Ks, etc. Such plans are ultimately controlled by plan administrators and asset managers whom ERISA conveniently exempted from any fiduciary duty to act in the best interests of the employees whose assets they managed.  As a result of ERISA, a majority of American companies abandoned traditional pension plans during the past five plus decades and opted to create defined contribution plans, most of which significantly reduced the employers' financial responsibilities to contribute to their employees retirement plans.  

Subsequent legislation amended ERISA and increased the responsibilities of Employee Benefits Security Administration ( EBSA), including the creation of the Pension Benefit Guaranty Corp. In 2009, that agency guaranteed payment of basic pension benefits earned by 33.6 million workers and retirees participating in about 27,650 single-employer pension plans, according to the EBRI. And in 2010, the agency was paying benefits to 1.3 million workers from 4,140 terminated plans.

The overall effect of ERISA has been an unmitigated disaster for ordinary employees and their families. Historically,  long-term employees in the United States who retired after 30 or 40 years at a company received pensions with a guaranteed lifetime income stream.   By contrast, those who own 401(k)s and individual retirement accounts - defined contribution plans - are burdened by two impossible-to-control risks: stock market volatility and uncertainty about their own longevity.

As the 2018 E-Trade television commercial correctly noted, about one-third of Americans really don't have anything saved for retirement, according to a 2016 survey by the finance website GoBankingRates.  Other studies, such has one produced by the Economic Policy Institute, a left-leaning think-tank, have documented similar results. Prior to ERISA employer-sponsored pension plans, combined with Social Security benefits and, more recently, defined contribution plans, had truly turned retirement into the "golden years" for millions of 
workers. So until the past decade, workers didn't put much thought into saving for retirement, much less worrying about it.
Since the passage of  ERISA, corporate America has opting out of defined-benefit pensions for decades, and many experts agree that is a major cause of our retirement security crisis Jerry Gazelle, in an article for Workforce reported that, as of June 30, 2012, only 30 percent of Fortune 100 companies still offered a defined benefit plan to new salaried, a figure that was down from 33 percent at the end of 2011, 37 percent in 2010 and 43 percent in 2009.  Gazelle noted that, as recently as 1998, defined benefit plans were the norm among the nation's argest employers, at a time when 90 percent of those Fortune 100 companies offered traditional pension plans to new salaried employees.


By 2017, the future retirement benefits of employees held in union pension plans were at also at risk.  One financial analyst described as it as an "emerging financial crisis among multi employer pension plans in America. These plans are a subset of private sector defined benefit pensions covering 10 million workers and retirees. Most critical are the projected bankruptcies of the Teamsters Central States and the United Mineworkers of America plans, making front page news for the last several months. These plans and many others were undermined by two financial market crashes between 2000 and 2009, corporate bankruptcies, de-regulation, and over-regulation."

Whether even those few, long-term, unionized employees who remain in traditional defined benefit plans will enjoy then pensions for which they worked throughout their lives 
remains an open question. Increasing corporate debt and a lack of pension oversight have exacerbated the problem. 

Tops Super Market chain is one such sad example. In March, 2018, as reported by The New York Times, the chain was cutting prices even though it had filed for bankruptcy the previous month.  In March, 2018, the parent company of the Southern stores, Winn-Dixie and Bi-Lo, announced that it too would file for Chapter 11 protection by the end of that month, and would close 94 stores. 

The private equity firm Lone Star distributed  $980 million in dividends from Winn-Dixie's parent company since 2011, according to Moody's Investors Service. Most of the payments were made by taking out debt on the chain, leaving less money to invest in stores. Marsh Supermarkets, an Indianapolis regional grocer that had also been backed by private equity, laid off more than 1,500 workers and required a federal takeover of its pension plan in 2017.

  Amid the intense competition, the number of supermarkets around the country increased from 2010 to 2015, but the number of supermarket operators declined slightly.  The collapse of many retail supermarket chains implicates the fate of thousands of cashiers, cake decorators and meat cutters, many of whom belong to labor unions and are owed pensions when they retire. Tops, for example, employs more than 12,000 unionized employees at about 160 stores in New York, Pennsylvania and Vermont. 

  The international food giant Ahold acquired Tops in 2001. The company was sold to Morgan Stanley's private equity team six years later.  Under the firm's ownership, Tops loaded up on debt and paid out roughly $300 million in dividends to its investors, according to Moody's. Even though Morgan Stanley no longer owns the company, Tops never overcame the debt burden. And like other unionized supermarket chains, Tops has had to deal with steep pension expenses. 

When it filed for bankruptcy, Tops said it expected to operate "as normal'' throughout the bankruptcy, but union officials are bracing for closings. "I have never seen a bankruptcy that doesn't lead to closing stores," said Frank DeRiso, president of U.F.C.W. Local 1, which represents Tops workers in New York.

These changes have exacted a toll on unions. Membership in United Food and Commercial Workers, the largest grocery union, decreased by more than 9 percent between   2002 and 2016 to about 1.2 7million members, according to the Labor Department.  "The private equity owners try to drain every last ounce of blood from these companies," said John T. Niccollai, president of Local 464A of the U.F.C.W., which represents grocery workers in New York and New Jersey. "Their feeling is if it goes bankrupt, so be it." 

When Mr. Niccollai started working at the union in the late 1970s, the A & P grocery chain had about 7,000 stores. By the time A & P had filed for its second bankruptcy, in 2015, it was down to about 125. Mr. Niccollai found jobs elsewhere for 3,500 workers who had been displaced by the bankruptcy, but 1,500 of his members were out of work. He recently added membership by organizing some of the warehouse workers at the Peapod grocery delivery 
service, but it is challenging when the industry is increasingly dominated by nonunion employers like Walmart and Amazon."We are fighting hard," Mr. Niccollai added.
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Not surprisingly, financial planners and investors have waxed ecstatic about the impact of ERISA: "ERISA had an effect on traditional pension plans and killed some of them, but overall it was good legislation," according to James van Iwaarden, consulting actuary with Minneapolis-based Van Iwaarden Associates. "When defined contribution plans were first introduced in the late '70s, they were never intended to replace defined benefit plans, but to supplement them." Today, "Defined benefit plans are dead," says Bob Pearson, CEO of Pearson Partners International in Dallas. "No company I know offers them even as a means to attract senior executives."

As a result of the  demise of traditional pension plans, Wall Street financiers and their enablers have reaped billions of dollars in fees from "administering" and churning 401k plans since the passage of ERISA. The losers have been the ordinary people who work and live on Main Street. Equally indefensible has been the failure of federal oversight to ensure that traditional pension plans are adequately funded and that pensioners are paid before investors. Lastly, corporations should not be permitted to renege on their obligations to employees through the ruse of bankruptcy, the effect of which is to transfer many of the pension obligations to the Federal Pension Benefit Guaranty Corporation which is subsidized by the taxpayers of the United States. These continuing abuses show that, in our current political and economic system, the concerns of ordinary citizens ring hollow while voices of the 1% sound loudly.   

The Myth of the Free Market

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The mythology of capitalism and the market economy that it has spawned have been successfully invoked by critics to emasculate unions and to compromise the ability of workers in the private and public sectors to demand higher wages and better working conditions. Yet that mythology continues to exert a bizarre intellectual stranglehold over so many Americans who should know better. 

The question that needs to be asked about this orthodoxy - as with all other orthodoxies - is, does it, in fact, explain existing social reality? If the markets for goods and services, absent public regulation, naturally seek to move into equilibrium, as advocates of unbridled market economics assert, why then have the annual median incomes of Americans, as of 2018, fallen precipitously since 1999?  

Why have "fair trade" policies, despite increasing levels of education in the U.S., caused a net migration of millions of U.S. jobs overseas during the past four decades, while the U.S. has continued to accumulate ever increasing balance of payments deficits caused by ever increasing purchases of foreign-made goods that were previously made and still could be made in this country?  

  Charles Duhigg and Keith Bradsher reported in the New York Times that nearly all of the 70 million iPhones, 30 million iPads and 59 million other assorted products sold by Apple sold in 2011 were manufactured overseas, primarily in China by third-party vendors with whom Apple contracted for services and products. Apple employs only 43,000 people in the United States and 20,000 overseas but, as a result of its exploitation of workers through third-party 
vendors, Apple made a profit of $400,000 per each of its actual employees, a sum greater than that made by Goldman Sachs, Exxon Mobil and Google. 

Despite the hyperbole, there is one question that is rarely asked in the popular media.  Is Apple, Inc. a model of corporate efficiency and success that should be praised and emulated in business schools throughout the U.S., or is it a corporate pariah that should be roundly condemned and criticized for its unconscionable greed?

      At a White House dinner in February of 2011, President Obama reminded the late and much heralded Apple CEO Steve Jobs that, once upon a time, Apple boasted that its products were made in America and he asked, "Why can't that work come home? Mr. Jobs's reply, according to other guests present, was terse. "Those jobs aren't coming back," he replied.
 That same year, Apple earned in excess of $400,000 in profit per employee - a sum that was vastly greater than the per employee profits of Goldman Sachs, Exxon Mobil or Google.

             In March of 2013, Apple announced that it held $40.4 billion in untaxed earnings outside of the United States as of September 29, 2012, and should it repatriate that cash, the company estimated it would owe $13.8 billion in taxes, or slightly under the federal 35 percent tax rate.

  The company also disclosed a worldwide annual revenue in 2013 in the amount of  $171 billion. In addition, during the five quarters prior to March 1, 2014, Apple officially reported total acquisition investments of $11.12 billion, in addition to the $1.02 billion in cash "business acquisition" payments.

  All of these grim statistics were called to mind again in the light of a fawning and uncritical article by Rebecca Ruiz that appeared in the Business Section of The New York Times on March 4, 2014.  The purported news story informed readers that Peter Oppenheimer,  Apple's senior vice president and chief financial officer, announced his plans to retire this coming in September, after an 18-year career with Apple.

            Ruiz's article was effusive in her characterization of Oppenheimer's performance as senior vice-president of Apple. She noted that "As chief financial officer for the last decade, Mr. Oppenheimer, who started in 1996 as controller for the Americas, helped oversee a shrewd global financial strategy, with Apple garnering record profit and building a significant pile of cash."

            Ruiz also found it a sign of Oppenheimer's business acumen that "As part of the strategy, Apple set up a web of subsidiaries around the world, allowing the company to legally avoid billions of dollars of taxes in the United States. In 2013, Apple raised $17 billion to fund a shareholder payout, a move that potentially helped the company save on taxes."

            Ruiz quoted Lawrence Isaac Balter, chief market strategist at Oracle Investment Research, who stated that Oppenheimer's "done a fantastic job building the war chest," and repeated a statement by Timothy D. Cook, Apple's current chief executive, who credited Mr. Oppenheimer with "managing the company's finances during a period of significant international expansion and revenue growth."

            At the end of Ruiz's column, we discovered that in fiscal year 2012, Mr. Oppenheimer was lavishly rewarded for his success in having helped to devise Apple's multifarious and ingenious schemes for corporate tax-evasion, and in his having enabled Apple to garner obscene 
profits for its shareholders on the backs of an exploited third work-force: Oppenheimer earned $68.6 million in total compensation package. Not surprisingly, Mr. Oppenheimer stated "I love Apple and the people I have had the privilege to work with and after 18 years here, it is time for me to take time for myself and my family," and it was announced that he had been named to the board of Goldman Sachs.

Apple is only one example of why the United States is no longer a net-exporter of goods and services. U.S. trade and tax policies since the 1970s have incentivized the out-sourcing of goods and services. By the end of 2017, China's trade surplus with the United States rose to a record  $347 billion deficit. The U.S. trade deficit with Canada amounted to $11 billion; with Mexico, a $63 billion deficit; with Japan, a $69 billion deficit; and with Germany, there was a 
$65 billion deficit. The data showed that the U.S. imported $2.2 trillion. Automobiles, petroleum, and cell phones were the largest categories. 

The U.S. is a consumption-driven economy. For that reason, in the long run, the migration of jobs to China and other third-world countries will prove to be self-defeating: An increasingly impoverished middle class here in the U.S. will eventually be unable to purchase the high-end goods that out-sourced manufacturers such as Apple and other U.S. based corporations import and try to sell to domestic consumers.

Inevitably, over time, as economic inequality continues to grow and purchasing power erodes, the life-styles of perhaps a majority of Americans will be reduced to that of most Chinese and Indians today. The problem is that, by and large, entrepreneurs and the boards of directors of corporations don't care about the long-run consequences of their behaviors, no matter how 
ill-advised or self-defeating. Perhaps they have accepted too blithely, as a corporate credo, John Maynard Keynes' observation that in the long-run we will all be dead.

            The sole goal of most corporations is to maximize profits to please their shareholders. In distinct contrast to their own employees, almost all of whom as at-will employees may be discharged from employment for no reason or any non-discriminatory reason at all, the shareholders' interests are protected by the boards of directors and, unlike employees, have a seat at the corporate table. To further protect the interests of shareholders,  the laws of the fifty 
states and the federal government  impose a fiduciary duty upon corporations to their  shareholders. 

An increasing body of evidence suggests that the traditional model of the market economy no longer behaves in the way that its most ardent proponents have predicted. As competition has given way to consolidation, and equal opportunity to plutocracy, the anomalies have now begun to overwhelm the paradigm. Whatever comes next, more of the same is not the answer. Given a mindset that sincerely believes that the pursuit of self-interest is somehow a public good, entrepreneurs and the other vaunted Masters of the Universe remain utterly uninterested in problems such as poverty and pollution, and they have no idea of how to reconcile basic principles of social justice with their desire to make a living.

Prayers Are Not the Answer

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This past Friday's mass shooting in Aurora, Illinois followed with a year and a day the massacre at Stoneman Douglas High School n Parkland, Florida. Every day, 342 people in the United States are victims of gun violence in murders, assaults, suicides and suicide attempts, unintentional shootings, and police intervention, according to the Brady Campaign to Prevent  Gun Violence. 


Between  1968 and 2017, more than 1.5 million Americans have died in gun-related incidents, according to data from the U.S. Centers for Disease Control and Prevention. This number exceeds the approximately 1.2 million service members who have been killed in every war in U.S. history, based upon estimates from the Department of Veterans Affairs.

        The emotional and economic losses caused by these gun deaths and injuries, as well as the emotional travail and suffering inflicted upon the families, friends and neighbors of the victims, are incalculable and the cumulative effects of this violence upon our entire society are pervasive. After the mass shooting in Las Vegas that left 59 dead and hundreds wounded, CBS Moneywatch's Aimee Picchi wrote that, "gun violence in the U.S. also has an enormous financial cost, rippling through the economy in the form of lost wages, medical bills, higher taxes for law enforcement and lower property values, among other factors. Some estimates put the total annual tab of shootings at well over $100 billion, while others put it even higher." A senior staff attorney at Giffords Law Center to Prevent Gun Violence, Michael McLively, was quoted by Picchi, "The usual discussion is: There's a mass shooting, we talk about political inaction, and then everyone turns to the next thing that's happening or next disaster. The cost of gun violence goes undiscussed, and it's super important because it's silently affecting everyone." According to the    Law Center, researchers conservatively estimate that gun violence costs the American economy at least $229 billion every year, including $8.6 billion in direct expenses such as for emergency and medical care. 

The inability of this country's political and judicial institutions to address this problem has been exacerbated by the U.S. Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008). Prior to the Supreme Court's 5-4 decision in Heller, the Second Amendment had always been held by the federal courts to  grant to the people--and not to individuals--the right to keep and bear arms as members of a well-regulated militia (today's National Guard) as previously confirmed by the U.S. Supreme Court. See,  for example,  U.S. v. Miller, 307 U.S. 174 (1939). 

Sadly, the late Justice Scalia's tortured constitutional analysis and his inability to comprehend the grammatical interconnection between a subordinate clause in a sentence --"A well-regulated Militia, being necessary to the security of a free State..."--and the main clause--"... the right of the people to keep and bear Arms, shall not be infringed"--were an unfortunate consequence of the eighteenth-century ideological bias in which his legal analysis was mired.  In the name of an abstract right of the individual and his putative right to own a gun, Scalia denied the right of concrete human beings--who have died and will continue to die because of handgun violence--to be safe from harm: "We are aware of the problem of handgun violence in this country," Scalia piously intoned, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

          Scalia's unbridled defense of anti-social individualism has since given license to gun nuts and Second Amendment absolutists to thwart every rational effort to control the continuing slaughter of innocent citizens. While most GOP legislators at the federal, state and local levels have enthusiastically embraced the mantra of the NRA that "guns don't kill people, people do," too many Democratic legislators have been cowed into submission.

          How does one explain this insanity?  Part of the problem undoubtedly stems from the liberal ethos of the country in which the Founders intentionally constructed a constitutional system that emphasized the rights of solitary individuals over those of the community and, by means of checks and balances, separation of powers, and a diffusion of political power across a porous, largely unaccountable federal system, signaled a permanent distrust of government and its ability to act as an positive instrument for the public good.       
            
  Protecting the lives and safety of innocent citizens the paramount duty of any democratic government. The right of citizens to live meaningful and productive lives without the fear or threat of senseless violence perpetrated by sociopaths and the deranged is a basic human right that trumps any narrow, inflexible interpretation of the Second Amendment.   

  Unless the problem of gun violence is addressed honestly, openly and courageously by judges and politicians, the number and severity of incidents of senseless gun violence will continue to increase. Will this country then descend into the kind of dystopia described by Hobbes, in which the "life of man is poore, nasty, brutish and short?"  If  that dark, future world should come to pass, those jurists and politicians who now oppose all rational forms of gun control will ruefully be remembered as craven cowards who spawned a culture of dearth,

  As citizens of a putative democracy we, too, now have a solemn responsibility. We must demand  through collective action,that local officials, law enforcement, including police  departments and their unions, support sensible  gun control. In addition, we should support all legislative efforts by Democratic candidates for Congressional office and for President to increase the size of the U.S. Supreme Court to eleven or thirteen judges.  Such a change would help to ensure that the Heller decision is reversed and that the Supreme Court would become more responsive to the will of the American people rather than  than the right-wing ideological  agenda of the Federalist Society. 

The Dismantling of Public Education

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  In 1647, the Massachusetts General Court required every town in the colony with a population of more than fifty people to found, operate and fund schools. Today, public education in the United States today has grown to encompass more than 15,000 separate school districts across the United States. According to the National Center for Education Statistics, as of 2013-14, there were 98,000 public schools. The Center also reports that total expenditures for public elementary and secondary schools in the United States in 2013-14 amounted to $634 billion, or $12,509 per public school student enrolled in the fall (in constant 2015-16 dollars). 

Image result for cartoons about the privitization of  public education

           Lately, much has appeared in the print media about the malaise of public education in the United States. Numerous reforms have been proposed, many of which involve empowering school administrators, testing students regularly, eliminating collective bargaining rights and tenure for teachers, holding teachers accountable for student performance, and creating more charter schools. None of these proposals, however, address the root problems of public education in the United States.

The compensation paid to public school teachers is one indicator of the low-esteem in which public service and public education is held. Long before the Great Recession of 2007, the salaries paid to public school teachers in the United States lagged fair behind similarly educated employees in the private sector.  As previously discussed, at a time when the public sector is being gutted, the top 25 hedge fund managers earned more than all kindergarten teachers in U.S.  The estimated1 58,000 kindergarten teachers in the United States earned an average teacher salary of $53,480 for a collective income of about $8.5 billion for 2012.  By contrast, the 25 top hedge fund managers found were paid $11.62 billion in 2014.

  As of 2017, at the higher end of the pay scale, teachers in Alaska and New York were paid an average salary of  $77,843 and $76,953. At the other extreme, teachers in Mississippi and Oklahoma were paid an average salary of $42,043 and $42,647, respectively. As result of the tax breaks and budget cuts in public spending enacted in many of the GOP controlled  legislatures, the plight of public school teachers and the schools in which they teach have  worsened in many of the red states. In desperation, teachers in West Virginia and Oklahoma staged state-wide wild-cat strikes in the in the spring of 2018 while a similar threat confronted GOP legislators in Kansas.  

In Arizona, another state where  teacher- inspired protests spread in 2018, teachers' salaries are $10,000 below the national average of $59,000 per year.  Rather than increase taxes, the Pendergast Elementary School District, a district that includes parts of Glendale, Avondale and north Phoenix, has recruited more than 50 teachers from the Philippines since 2015 who were given J-1 visas.  Patricia Davis-Tussey, the district's head of human resources director, was effusive in endorsement of the recruiting process, "In these times, you have to be innovative and creative in recruiting. We embrace diversity and really gain a lot from the cultural exchange experience. Our students do as well."

  In 2011, during a time when states across the nation drastically slashed spending for public education budgets, 41 states introduced 145 pieces of private school choice legislation. The net effect of the more extreme proposals would be to remove education from public oversight and regulation, and permit unlicensed, poorly-paid and poorly-educated individuals to teach creationism, others forms of pseudo-science, extremist religious doctrines, and right-wing politics, history and economics without fear of censure and without any accountability whatsoever.

  Some of the more outrageous measures would dismantle public education almost entirely and taxpayer funds to replace it with a system of vouchers for use in private schools and for-profit schools. By 2017, "private school choice" programs, as these vouchers are called by the Alliance for School Choice, have been enacted in 13 states and the District of Columbia. 

         The amendments to the 529 "educational savings plan" that President Trump signed into law in 2018 are  by far the most drastic attack to date upon public education in the United States.  Christianity Today was effusive in its praise:" Parents now have another way to save for Christian school tuition--and this one comes with tax benefits. Thanks to the GOP-led tax reforms, the 529 college savings vehicle--so named for the relevant section of the Internal Revenue Code--can now also be used to save money to pay tuition at any "elementary or secondary public, private, or religious school."

  A number of the reforms that have gained cachet in the mainstream media were touted by President Obama's Secretary of Education, Arne Duncan, by the Bill and Melinda Gates Foundation, the Walton Foundation, the Broad Foundation, and former D.C. Superintendent of Schools, Michelle Rhee, among others. Interestingly, none of these proponents of public school reform ever taught in a public school or had any direct experience in trying to challenge students, particularly students under stress, to learn. The larger question, however, is: will any f their proposed reforms actually improve public education in the United States or will they further undermine it?
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At the post-secondary school level, the crisis is equally dire. A report from the Brookings Institution documents so many young people with extraordinary debt. Between 2000 and 2014, the number of students holding education debt increased to 42 million, and their total outstanding debt outstanding quadrupled  to a staggering sum in excess of $1 trillion. In 2000, there was only one for-profit institution among the 25 colleges and universities where students held the most student-loan debt. In 2014, there were thirteen such institutions with the University of Phoenix at the top of t he list. The amount of debt owed by those attending for-profit colleges grew from $39 billion in 2000 to $229 billion in 2014. 

These for-profit  colleges, through the use of sophisticated and unscrupulous advertising and recruiting, preyed upon the most vulnerable part of are young adult population - those who were poorly prepared for success in work force and often didn't have the skills, the finances or the time to attend a local college or university. Between 2000 and 2011, the total enrollment at for-profit colleges increased from grew from 3 percent of total fall enrollment to 9 percent of total fall enrollment.

President Trump's Secretary of Education, Betsy DeVos, is a zealot who disguises her antipathy to public education by insisting that she is an advocate of education "reform." A Michigan billionaire and conservative activist, she decries public education as a"state monopoly," and she has spent millions of dollars in successful efforts to expand voucher programs and to use taxpayer dollars to enable families to pay for private and religious chools. Ms. DeVos - who never attended a public school and home-schooled her children -  would reform public education by privatizing it. 

In February of 2018,  DeVos called on Americans to embrace a vision of "education freedom" that would, she said, empower students and parents with a "multitude of pathways" toward new opportunities. Appearing at the right-wing Conservative Political Action Conference, Ms. DeVos advocated the use of educational savings accounts to benefit military families who didn't want to send their children to "failing public schools." "For too many decades" Americans have had a singular focus on going to a four-year college or university," DeVos said during the exchange with Kay Coles James, president of The Heritage Foundation. "But there is [sic] a multitude of pathways [with] many opportunities beyond high school."

Consistent with her antipathy to public regulation of education, in July of 2018, Ms. DeVos announced  plans to eliminate regulations that forced for-profit colleges to prove that they provided gainful employment to the students they enrolled. Those gainful employment regulations were put in place by the Obama administration and were designed to preclude  federally guaranteed student loans to colleges if their graduates did not earn enough money to pay them off. Ms. DeVos's announcement was intended to placate the many for-profit colleges nd universities whose economic fortunes were jeopardized  because too many of their alumni were too poorly educated to find decent jobs.  In stark contrast to the Obama administration,  by December, 2017, DeVos' department had approved only a fraction of the applications for student loan forgiveness.
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  Nicole Allen has documented the travails of American public education in the Atlantic magazine. Students in the United States ranked 21st among counties in Science; 14th in reading skills, and 30th in Mathematics skills, according to the International Student Assessment for 2009. By contrast, students in Finland ranked 2nd in Science, 3rd in reading sills, and 6th in Mathematics skills. 

  Many might argue that any comparison between Finland and the U.S. is meaningless, given the size of the population and racial diversity of the U.S. in contrast to Finland. But is it possible that the example of Finland can still instruct, and if so, how?   
First, Finland has created uniformly high standards for all of its students and those standards are supported and insured throughout the entire country. This is in stark contrast to he U.S. where the federal government and the states impose, at best, minimal requirements upon local school districts.

  Secondly, only 7% of the applicants to the University of Helsinki's teacher programs are accepted. Upon completion of their education and practicum, teachers in Finland are paid more than 80% of the average of full-time earnings of college-educated adults in that country. By contrast, in the United States, teachers are uniformly poorly paid and are often recruited  from the bottom quartile of college graduates. As the Atlantic data shows, even in more selective education programs such as those at Johns Hopkins School of Education and at olumbia University's Teachers College, 53% and 56% of the applicants respectively are accepted.

  Third, teachers in Finland, as recognized and valued professionals  - all of whom are also unionized - are given great latitude in their methods of teaching; and collegiality, rather than a top-down management model, governs decision-making in the schools. By contrast, here in the United States, the GE management model of public execution and intimidation  - exemplified by the likes of Michelle Rhee - controls educational discourse.

  Lastly, and most importantly, Finland's education system succeeds because its students are ready and prepared to learn. As a social democracy, Finland has perhaps the Western world's most extensive safety net. The country has universal medical care, strong family-support, child welfare, nutritional programs, minimal poverty and its population 
would never tolerate the kind of extreme economic inequality that is blithely accepted as inevitable in the United States.
  By contrast, the evidence shows that here in the United States the problems caused by a decentralized, unequally-funded system of local public education are compounded by the existence and tolerance of widespread economic and social inequality which also explains, in large part, the uneven outcomes in America's decentralized education system and the dismal performance of so many of the children who are enrolled.
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David Berliner, Regents Professor at Arizona State University, analyzed those "out-of-school factors" (OSFs) which "play a powerful role in generating existing achievement gaps" that continue to undermine the purpose of the federal "No Child Left Behind" act.  Berliner, in a wide-ranging review of the existing data and summary of the educational literature, identified six significant factors among poor children that adversely affected their health and learning opportunities and which therefore "limit what schools can accomplish on their own: (1) low birth weight and non- genetic prenatal influences on children; (2) inadequate medical, dental, and vision care, often a result of inadequate or no medical insurance; (3) food insecurity; (4) environmental pollutants; (5) family relations and family stress; and (6) neighborhood characteristics."

         These six factors, Berliner concluded, "are related to a host of poverty- induced physical, sociological and psychological problems that children often bring to school, ranging from neurological damage and attention disorders to excessive absenteeism, linguistic under-development, and oppositional behavior." Berliner further observed that, "Because America's schools are so highly segregated by income, race, and ethnicity, problems related to poverty occur simultaneously, with greater frequency, and act cumulatively in schools serving disadvantaged communities. These schools therefore face significantly greater challenges than schools serving wealthier communities, and their limited resources are often overwhelmed."

  The data which Berliner cites showed that, in 2006-2007, the average white student attended a public school in which about 30 percent of the students were classified as low-income. By contrast, the average black or Hispanic student attended a school in which nearly 60 percent of the students were classified as low-income, while the average American Indian was enrolled in a school where more than half of the students were poor. "These schools," Berliner concluded, "are often dominated by the many dimensions of intense, concentrated, and isolated poverty that shape the lives of students and families."
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  Horace Mann believed that education had the potential to become  "the great equalizer in the conditions of men." For that reason, he became an early advocate of the importance of public education for all citizens. Later, John Dewey insisted that "Since a democratic society repudiates the principle of external authority, it must find a substitute in voluntary disposition and interest; these can be created only by education."   

The growth of the charter school movement and the use of vouchers, non-taxable educational savings accounts, the increasing popularity of home schooling and on-line learning epitomize the fragmentation of American public education. These trends threaten to further cripple one of the few remaining institutions that has historically enabled many Americans to share common experiences, develop friendships across the race and class-divides, and acquire commonly-held civic values. The resulting social and intellectual isolation - coupled with the relentless, continuing assault upon teachers and their unions, the imposition of management models dawn from the private sector, the continued dumbing down of curricula, and proposals to turn public education over to religious zealots, entrepreneurs and for-profit foundations  - are precisely the wrong direction for this country to meet the challenges posed by a global economy. Sadly, these trends underscore how far this country has strayed from the grand visions of Horace Mann.

  Our democracy is fragile and an educated citizenry is essential to its preservation.  Every sentient person should be alarmed about the continued corporatization and privatization of American public education. But concern alone is not sufficient to defeat the tidal wave of dark money that is bent on shaping the vision of  American that, if unchecked, will increasingly resemble the kind of dystopia described by Thomas Hobbes of life outside of society in which the "life of man was solitary, poore, nasty, brutish and short."



The Decline of Literacy in the Media

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Ok, I'll confess that as a former English teacher and as a trial attorney, I have been accused of being pedantic. I plead guilty. I'll also admit that the English language, with its irregular verbs,  - i.e.   homonyms (air, heir; ale, ail;  patience; patients, etc) and homophones - i.e. lead (to go in front of)/lead (a metal); wind (to follow a course that is not straight)/wind (a gust of air); bass (low, deep sound)/bass (a type of fish) can be extremely confusing. There are also a litany of nouns that sound similar when pronounced aloud but mean very different things -  try to enunciate, for example, feudal and futile. 

I also admit that, in contrast to Spanish and German, languages in which most words are pronounced as they sound, many nouns in English are pronounced with silent letters and without memorization can not be properly spelled (or spelt, if you're British): as in knife, write, comb, castle, sword, know and hundreds of other words.  But the number of such words is significantly less than in French.

The German language, in contrast to English, has three different definite articles to distinguish the gender of male, female and neuter nouns - Der Soldat, Die Frau, Das Fraulein  -  and the definite articles change in the normative,  dative,  genitive and accusative cases. In addition, the placement of nouns and verbs change where subordinate construction is used as with auxiliary verbs and past participles - e. g. Ich glaube, dass  Ihre Aussage wahr ist. (I believe that your statement has been truthful),

    English, by contrast, does not differentiate gender among male, female and neuter nouns and, because of that, the form of the definite article "the" never changes, regardless of whether the nouns are used as direct objects, objects of prepositions, or in the dative or possessive cases. Further, the use of subordinate construction does not change the sequence of nouns and verbs in a sentence.   
I will also concede that there is a sound distinction to be made between informal English  and its relaxed grammatical rules and formal English. The former is perfectly fine for conversations among friends and in social circles, but the later is required in public speaking and in written commentary lest the speaker or author be dismissed as semi-literate. 

Not surprisingly, as a certified curmudgeon, I have a number of pet peeves. I refuse to excuse the inability of allegedly educated  writers to know the difference between the contraction "You're" and the possessive pronoun "Your. "  Equally inexcusable, is the inability to know when to properly use the comparative  adjectives "less" and "fewer."  And why do so many media commentators not understand know the difference between the prepositions "between" and "among"or  the need to use objective case pronouns as the objects of the prepositions --e. g.  such as "between you and me," not I, and "among the three or four of us," not we? 

But my indignation has been raised to new levels of agitation since the ascent of 24 hour cable television. In order to fill time, the services of endless panels of bloviators and talking heads have been hired as "analysts. " Hardly any are journalists who would know how to do independent  research and have little  to recommend themselves other than their opinions and political pedigrees. Sadly, a number of them seem unaware of the basic rule of subject and predicate agreement. On a number of occasions, I have heard commentators say "There is many sources." Is this too difficult a rule to get straight?

Perhaps as distressing, the repetitive use of objective case pronouns before the use of gerunds  -  where possessive pronouns are required  - has become ubiquitous. It is "his thinking"and "their deciding," not him thinking or them deciding. Is it asking too much of  MSNBC, CNN and Fox News that they require their highly paid panelists to familiarize themselves with the basic rules of English grammar before they embarrass themselves or cause us to cringe in disbelief.

Basic literacy and a commitment to report matters accurately and truthfully are under assault on a daily basis. Words are the vehicles by which we as sentient beings express our thoughts. The improper attention to the use of words and to the rules that govern their use are indicative of sloppy thinking. It behooves us all to try to use words - and the rules that govern their use - properly.  

Ronald Reagan's Policies Are Still Killing Americans

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     Decades before Donald Trump became President, the GOP had already issued a declaration of war against the interests of ordinary Americans. A 2013 study released by the journal Health Affairs reported a decline in life expectancy for women in about 43 percent of the nation's counties. The research showed that women age 75 and younger were dying at higher rates than in previous years in nearly half of this country's counties. Most of these counties were located in rural areas throughout the South and the West.


    Historically, on average, the life expectancy for women has exceeded that of males in the United States by six years, but that disparity has been narrowing according to data from the Centers for Disease Control and Prevention. The reduction in life expectancy for some women appears to have begun in the late 1980s, although studies have begun to report upon it only during the past few years.

    The researchers, David Kindig and Erika Cheng of the University of Wisconsin, analyzed federal death data and other information for about 3,141 U.S. counties over the past 10 years. They calculated mortality rates for women aged 75 and younger. They found that nationwide, the rate of women who died younger than would be expected fell overall from 324 to 318 per 100,000 women. However, in 1,344 of the counties studied, the average premature death rate rose from 317 per 100,000
deaths to about 333 per 100,000.   A similar study led by the University of Washington's Dr. Christopher Murray surveyed county-level death rates. It also found that women were dying earlier than life, especially in the South.

    The two studies by Murray and Kindig underscore important regional differences. The Southern states have the highest numbers of people who still smoke. In addition, the proportion of women who did not graduate from high school is also highest in the South. Since the 1980s, the percentage of people living in poverty and those who also lack access to basic medical and dental care in the United States has soared exponentially. This increase is directly attributable to the policies of Ronald Reagan and the "trickle-down" economics that he espoused. 

    Equally a cause for concern, in June of 2018, the University of Wisconsin-Madison released a study which showed that, as of 2016, more non-Hispanic whites died than were born in twenty-six states; more than at any time in U.S. history. The study reported that about 179 million residents - or approximately 56 percent of the U.S. population - lived in those 26 states. By contrast, white deaths exceeded births in just four states in 2004 and seventeen as recently as 2014.

    As reported by the New York Times, many of the states in which these declines in birth have been documented are in rural states that voted for Donald Trump. For example, Martin County, in eastern North Carolina, first experienced the decline in white births in the late 1970s, a phenomenon that is now state-wide. The Times quoted Michael Brown, 66, a retired hospital maintenance worker in Robersonville whose two daughters went away to college and never moved back - a pattern typical for young people throughout the county, "There are just hardly any young people in the county anymore "We are the last generation who stayed with their parents," said Mr. Brown.   

    There is also more than anecdotal evidence that the opioid crises that continues to  decimate American communities is fueled by an increasing perception, endlessly reiterated by Reagan, that we should not look to our government to do for us what we can not do by ourselves. As one West Virginia academic  opined, " he opioid epidemic is merely a symptom of a much larger crisis, one we as Americans must learn to solve: the crisis of isolation, despair and hopelessness."
    
    Wheaton College economist John Miller observed that the economy grew much more slowly in the 1980s than during the 1960s, and that Reagan's tax policies especially harmed low income families.  Many of these families, especially white voters in the South and West, were among Reagan's most ardent supporters. By the end of Regan's administration in1988, the bottom 40% of households paid a larger share of their income in federal taxes in 1988 than they did in 1980. Miller noted that the increases in the payroll taxes that financed Social Security and Medicare were greater than the minuscule benefit these taxpayers received from lowered income tax rates.

    Not surprisingly, the richest 1% were the lottery winners as their effective federal tax rate was reduced from 34.6% to 29.7%, according to the Congressional Budget Office. Simultaneously, as Reagan increased the military budget, he slashed social spending. By 1988, domestic discretionary spending had declined from 4 .7% of GDP in 1980 to 3.1%. Miller reported that the most adversely affected were programs for vulnerable low-income Americans that experienced an extraordinary 54% reduction in federal spending from 1981 to 1988. After correcting for inflation, subsidized housing had lost 80.7% of its budget, training and employment services were cut by 68.3%, and housing assistance for the elderly suffered a 47.1% decrease.

    These programs, Miller concluded, never returned to their pre-Reagan spending levels. In the meantime, as taxes on corporations have declined precipitously since the 1950s, the growth of corporate welfare and tax loopholes has deprived the government of vital sources of additional revenue that could be used to expand essential public services for ordinary Americans.

     In a similar vein, Mary Williams Walsh and Louise Storey, report that as of 2013 corporations then enjoyed billions of dollars in tax-free financing because of a 1986 change in the tax code supported by Ronald Reagan. They report: "In all, more than $65 billion of these bonds have been issued by state and local governments on behalf of corporations since 2003, according to an analysis of Bloomberg bond data by The New York Times. During that period, the single biggest beneficiary of such securities was the Chevron Corporation, which issued bonds with a total face value of $2.6 billion, the analysis showed. Last year it reported a profit of $26 billion." And, "At a time when Washington is rent by the politics of taxes and deficits, select companies are enjoying a tax break normally reserved for public works. This style of financing, called 'qualified private activity bonds,' saves businesses money, because they can borrow at relatively low interest rates. But those savings come at the expense of American taxpayers, because the interest paid to bondholders is exempt from taxes."   
 
    In a paper first published in 2010, now released as a book,  Kate Pickett and Richard Wilkinson reported that one in ten people in Japan and Germany suffered from some form of mental illness, compared to one in four Americans. The explanation for this disparity, according to those researchers, is increasing U.S. inequality: As income distribution becomes increasingly
unequal, the society fabric is ripped apart, which adversely affects, to varying degrees,  the mental health  of everyone who lives within the society.

      The American Dream is being plundered before our open eyes while politicians and pundits ominously warn that "entitlements" must be severely reduced. But the only programs they propose to gut are the ones that have provided a measure of dignity and social justice for ordinary Americans since Franklin Roosevelt's New Deal. These are the 99% of the population who owe their misfortune to the poor political choices that we have collectively made as a Americans. 

    Politics has consequences. Those who choose not to become informed or involved do so at their peril.    

The Federal Courts Pander to the 1%

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      The unanimous decision of the United States Supreme Court in the matter of Integrity Staffing Solutions, Inc. v. Busk, et al ,  574 U.S. ___ (2014) is compelling evidence that the self-proclaimed  commitment of the American legal system to equal justice is little more than a sham embellished by platitudes.

           The question before the court was whether the employees - warehouse workers who retrieved inventory and packaged it for shipment to Amazon customers - were entitled, as hourly, non-exempt  employees - to be paid for time that they were required to undergo antitheft security screenings before they were allowed to leave the warehouse in which they worked each day.

          The record before the court showed that the class of employees who brought suit under the Federal Fair Labor Standards Act of 1938  (FLSA) were routinely required to submit  to security inspections  and screenings that amounted to "roughly  25 minutes per day" after they had checked out but before they could go home. The employees alleged that the screenings were conducted "to prevent employee theft" and they were intended solely "for the benefit of the employers and their customers." The additional uncompensated time, based upon a five day work week, amounted to an additional 6.8 hours at the workplace each week.

  In proceedings below, the U.S. District Court for Nevada dismissed the complaint of the employees for a purported failure to state a claim under Fed. Rule Civ. Procedure 12. The court held that "the time spent waiting for and undergoing security screenings was not compensable under FLSA" because the employees could not show that the screenings were an indispensable and principal part of the activities that the employees were required to perform."

          The United States Court of Appeals for the Ninth Circuit reversed the district court's decision, finding that "postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principle activities if postshift activities are necessary to the principal work performed and done for the benefit of the employer," as the record before the court showed. 

Inexcusably, the Obama administration - despite the consistent support that it received from organized labor - joined the employer's appeal and urged that the decision of the Ninth Circuit Court of Appeals be reversed. Writing on behalf of court, Justice Thomas disagreed with the Court of Appeals. In an extensive and tortured exegesis of the language of the Portal-to-Portal amendments to the Fair Labor Standards Act that were passed by a Republican-controlled Congress in 1947 to exempt employers from liability for future claims for "activities which are preliminary to or postliminary to said activities or principles," Thomas insisted that question was the sole question before the court.

             The Court's holding was not surprising, given Justice Thomas' narrow definition of what he and the other eight judges agreed was the sole issue before the court. Thomas opined that "the security screenings at issue here are noncompensable postliminary activities" because "Integrity Staffing did not employ its workers to undergo screenings" and that the "screenings were not integral and indispen-sable"' to the employees' duties as warehouse workers. 

Left unanswered were the obvious questions: What would have happened if the employees refused to wait for the screenings and insisted upon their right to go home immediately after they finished work? Would they still be employed the next day?

 

Historically, those nominated as justices to the Supreme Court, with precious few exceptions, have had little experience litigating cases on behalf of employees or fighting for the rights of the downtrodden. With one or two exceptions, this is true of the current court. In addition, as graduates of elite law schools with successful prior careers in the private and public sectors, Supreme Court justices have cultivated scores of influential and well-heeled friends and acquaintances over the years whose values they share. One also suspects that they have never forced to stand in a line to purchase concert tickets or have ever shopped at Walmart. 

For their efforts, the eight associate justices are paid $213,000 per annum; the chief justice receives a salary $223,500. The justices enjoy life tenure for good behavior; their pensions will never be lower than their exiting salary should they choose to retire; they enjoy the same generous healthcare available to all federal employees; they have opportunities to travel to all judicial districts throughout the United States and its overseas territories at taxpayer expense; and they enjoy a minimum of 3 full months of vacation each year. For those reasons, the chasm between the nine judges in the court and the hard-scrabble hourly mployees who toil for Amazon in its warehouses is vast, but is it asking too much to expect a little empathy? 

            The American legal system has long been a captive of the powerful, the wealthy and the well-connected, and almost uniformly hostile to unions and to the rights of workers. Throughout the nineteenth century, most state and federal courts treated labor unions and strikes as illegal conspiracies in restraint of trade. In addition, during the later part of the nineteenth century - in an era dominated by the Social Darwinism espoused by William Graham Sumner and Herbert Spencer - U.S. courts created out of whole cloth the doctrine of employment-at-will. That doctrine was a legal fiction that repudiated the long-standing presumption set down by Blackstone in his Commentaries that any indefinite employment contract was for one year. Forty-nine states - with the exception of Montana (which has abolished at-will employment by statute) - still subscribe to that legal concept.

           The legal fiction of at-will employment essentially posits an equality of bargaining power between individual employers and employees: Each is free to accept or reject employment, resign or be fired without cause or restriction. However, since employers in "union-free" environments are legally permitted to unilaterally impose, almost without restriction, whatever conditions of work they require as to hours, compensation, and often restrictions on re-employment after discharge in the form of non-competition agreements, the relationship is most often one of inequality in which the employees are burdened and the employers benefitd.

In the latter part of the nineteenth century, the Supreme Court also chose to grant the equal protection of the laws to corporations long before the same civil rights were accorded to black Americans in the Southern States. In Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394(1886),  the Supreme Court, in some inscrutable way, divined that corporations were persons within the meaning of the Fourteenth Amendment. (Incredibly, that decision was introduced into the report of the decision by the case law reporter in the syllabus, and it appears nowhere in the text of the decision.) According to the observers, Justice Waite simply pronounced from the bench, sua sponte, before the beginning of argument that "This court does to wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the law, applies to these corporations. We are of the opinion that it does."

That decision was especially perverse in that the court was generally hostile to all claims for the enforcement of equal rights claims of the those recently freed slaves, as guaranteed by the Fourteenth Amendment, and ten years later would decide the infamous case of Plessy v. Ferguson,  163 U.S. 537 (1896).  Once again the protection of property rights was held to be more vital than the protection of living human beings.

             At the beginning of twentieth century, the United States Supreme Court enthusiastically adopted Herbert Spencer's unequivocal defense of the rights of free contract in the infamous case of Lochner v. New York, 198 U.S. 45 (1905).  Writing for the majority, Justice Peckham struck down a New York statute which prohibited employers from requiring employees to work in excess of a sixty hour work week. Disingenuously, the Court found that, "The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it. The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer..." 

             Justice Holmes, in dissent, unsuccessfully sought to remind his colleagues that the law was supposed to be an even, impartial instrument, blind to prevailing ideology: "This case is 
decided upon an economic theory which a large part of the country does not entertain....The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

            Later, the administration of Franklin Roosevelt found itself engaged in a tug-o-war with equally reactionary federal jurists. After three adverse decisions in Humphrey's Executor v. United States, 295 U.S. 602 (1935), Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935),  and  Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), in which the Supreme Court struck down New Deal legislation, Roosevelt filed legislation to increase the size of the court. In response to that threat, a majority of the jurists wisely chose to reverse course and opted not challenge subsequent legislation. 
 
  Since the 1970s especially, an increasingly reactionary federal judiciary has repeatedly announced its hostility toward government regulation, civil rights, and legislation in the public interest. The net effect of this jurisprudence has been to unravel the gains of the New Deal and the Great Society, to empower corporations and the disproportionately influential while ratifying the status quo.

Perhaps the most influential of these right-wing judges was Lewis Powell, Jr. who was appointed by President Nixon as an Associate Justice in 1972. Powell, who wrote over 500 opinions, was especially instrumental in helping to orchestrate the court's pro-corporate reconstruction of the First Amendment in the area of campaign finance law, which culminated years later in the 2010 Citizens United decision.  Months before his appointment, Powell wrote a confidential memorandum to his friend and neighbor,  Eugene Sydnor Jr.,  who  was the chairman of the U.S. Chamber of Commerce education committee. Powell's memorandum was entitled "Attack on American Free Enterprise System." In that memorandum he wrote, "No thoughtful person can question that the American economic system is under broad attack," Powell began his analysis. "There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism)." "But now what concerns us," he continued, "is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts." 

To respond to this crisis, Powell recommended a stealth agenda of incrementalism to roll back environmental and work place regulations, and to counter the civil rights and anti-war movements. His memorandum and  proposed agenda were enthusiastically embraced by the Charles and  David Koch and Richard Mellon Sciafe who, through their enormous, tax-free contributions to the Heritage Foundation and the CATO Institute, advanced Powell's policy goals and inspired a right-wing insurgence.

Other influential right-wing federal judges have used other forms of sophistry to rationalize their hostility to government regulation in the public interest. The late Antonin Scalia espoused an almost theological commitment to the legal fiction of "original intent." A recent invention, the doctrine of "original intent" is especially destructive. As articulated by its proponents, it attempts to impose a requirement that laws must be analyzed within the framework of an eighteenth century worldview.

In the guise of a purported respect for the understanding and interpretation of the U.S. Constitution which the Founding Fathers evinced, the doctrine of original intent is, in actuality, a most radical form of judicial activism since it ignores the explicit language of the "necessary and proper clause" of Article 1,§ 9, c.18 of the U.S. Constitution; and it imposes the dead hand of the past, in the form of a fossilized litmus test, upon an instrument which, since time of John Marshall, had been viewed as a living, evolving document. 

"Original intent" thus represents a kind of constitutional death-wish. It would, if routinely applied, induce rigor-mortis in the country's legal institutions and perpetuate the advantages which the advantaged already enjoy. Through the use of "original intent," apologists for the status quo have devised an analytical technique that is designed to emasculate this country's foundational document; it also condemns the federal judiciary to the role of a negative, obstructive partisans. The judges and legal scholars who espouse the "original intent" doctrine have thus forged a judicial hammer to batter down any legislative efforts to level the playing field or to promote equality of opportunity.

Although many of these right-wing jurists profess consternation about exercise of power by the federal government in a professedly democratic society, they appear to have few concerns about the exercise of political and economic power by private unelected interests. Rarely have Justices Thomas, Roberts, retired Justice Stevens, Alito or Gorsuch ever expressed any qualms about oligopolies, the growing specter of monopoly capitalism, or their increasingly anti-competitive and predatory practices, nor have they demanded the vigorous enforcement of existing U.S. anti-trust laws. Witness the Court's extraordinary decision n Ohio v. American Express, (No. 16-1454. Argued February 26, 2018--Decided June 25, 2018).  In that five to four decision , the Supreme Court held that American's Express's antisteering provisions - which, by contract,  forbade merchants from attempting to  dissuade cardholders from using Amex cards at the point of sale-  a practice known as "steering" - did not violate federal antitrust laws.

President Trump's selection of Neil Gorsuch, an ardent proponent of original intent, as Justice Scalia's successor, and Brett Kavanaugh, as Justice Kennedy's replacement, are vivid illustrations of the legal influence that the rightwing Federalist Society continues to exercise over federal jurisprudence. Their selections will, in all likelihood, over time seriously undermine the work of regulatory agencies such as the EPA, the FCC and the EEOC since he has questioned the legal precedent known as Chevron deference.

That doctrine stems from a 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984), in which the Justice Stevens held, without any dissenting opinions,  that " If... the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute which suggests that courts  should defer to federal agencies when it comes to interpreting vague or ambiguous laws defining their responsibilities." 

In contrast to Justice Stevens and Kennedy, Judge Gorsuch and Judge Kavanaugh have well-documented difficulties reconciling their 18th century notions of  jurisprudence with the regulatory regime necessitated by the legal demands of the twenty-first century. Gorsuch is critical of the growing body of administrative because the Founding Fathers, who did not anticipate the evolution of administrative law, neglected to mention it in text of the Constitution. For his part, Judge Kavanaugh has been a vocal  critic of the Affordable Health Care Act and, true to his partisan roots as an unapologetic supporter of corporations and their prerogatives, has consistently voted as a judge D.C. Appeals Court to uphold challenges to environmental and labor laws.

Nether Justice Gorsuch nor Kavanaugh are alone in their hostility to the idea of government regulation, especially by the federal government, that is intended to protect and promote the public interest. As the editorial board of the New York Times warned, "The court's pro-corporation decisions are widening the chasm in power and wealth between the country's elite and everybody else." 

Over the past decades, a majority of the Supreme Court have chosen to breathe new life into the Tenth Amendment, the effect of which is to further drive American jurisprudence back into the early decades of the nineteenth century when even the idea of minimal government regulation, ostensibly in the public interest, was unimaginable. See, for example, Justice Rehnquist's decision in U. S. v. Lopez,115 S. Ct. 1624, 131 L. Ed 2626 (1995).  In that decision, by a 5-4 struck vote, the U.S. Supreme Court struck down a San Antonio gun conviction which occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply. See also U.S. Term Limits, Inc. v. Thornton, et al,  514 U.S. 779 (1995),  a case in which Justice Thomas came within a "whisker" of returning American constitutional jurisprudence to the Articles of Confederation. 

Despite their professed admiration for the Tenth Amendment, however, a majority of  Supreme Court judges since the 1970s have not hesitated to impose their personal political preferences for free-market, anti-regulation policies through the judicial feat of federal preemption of state laws and regulations to the contrary. Most of the laws and regulations preempted were designed by state legislatures to protect the rights of workers and consumers. In Marquette National Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299 (1978), for example, the U.S. Supreme Court declared state usury laws to be unavailing against credit card companies engaged in interstate commerce. The effect of that decision, therefore, was to permit credit card companies to exact whatever interest rates they wanted, to the detriment of ordinary Americans.

As another case in point, the U.S. Supreme Court's decision in Buckley v. Valeo, 424 U.S.1 (1976), has severely undermined public confidence in the political system. In that decision, the court upheld some modest limits imposed by the U.S. Congress upon individual campaign contributions. More importantly, however, the court held that campaign contributions by corporations and other large entities were protected by the U.S. Constitution. Congressional attempts to impose restrictions on the financial contributions by corporations and other organizations, because they conflicted with First Amendment guarantees of free speech, would, henceforth, invite strict scrutiny by the court and would require that a compelling state interest had to be shown to pass judicial muster. In First National Bank of Boston v. Bellotti,  435 U.S. 765 (1978), authored by Justice Powell, held that corporations have a First Amendment right to support state ballot initiatives.

Thirty years after the Buckley decision, an even more reactionary court declared that any restrictions upon campaign financing by corporations violate the free speech provision of the First Amendment. In  Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010),
 Justice Kennedy, writing for the majority in a 5-4 decision, reversed two previous precedents that  had upheld modest campaign finance regulations. Justice Kennedy opined that the Court had previously recognized that First Amendment protection extended to corporations and that "under the rationale of these precedents cited, political speech does not lose First Amendment protection 'simply because its source is a corporation;" further "corporations and other 
associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster."

Finally, the five member right-wing majority of the Supreme Court, after the appointment of fellow-traveler, Judge Gorsuch, in Epic Systems v.Lewis, , 584 U.S. ___ (2018), has gutted the ability of employees in private sector to engage in concerted activity to improve wages and the conditions of work free from individual compulsory arbitration agreements. In Janus v. AFSCME,   585 U.S. ___ (2018),  the five ideologues simultaneously delivered a body-blow to the ability of public sector to require non-union members - whom they must still represent - to pay for their fair share of costs of administration, collective bargaining and grievance procedures. As Justice Kagan noted in the dissent, the Court's five member majority were "weaponizing the First Amendment." 

Justice Kagan's observation is prescient for, in the long run, the continued elevation to individual rights to the detriment of the public interest will exacerbate the growth of anti-social individualism and further erode the bonds that have historically united Americans and hobble the ability of government, at all levels, to promote the general welfare. 

             Students of the law understand that there has always existed a tension between fidelity to the letter of the law and the dictates of justice. The ancients remind us that as citizens of a political community we are obliged to seek the summum bonum - i.e., the highest good, the ultimate end -  which is synonymous with justice.

             As the primary object of all human aspiration, true justice is something that can be achieved only through the law acting as an instrument of the social order. Thomas Aquinas, quoting Isodore, reminds us that "Laws are enacted for no private profit, but for the common benefit of citizens."  Further, "A law, properly speaking, regards first and foremost the order of the common good..." Finally, Aquinas invokes Cicero to the effect that "'the object of justice is to keep men together in society and mutual intercourse.' Now this implies relationship of one man to another. Therefore justice is concerned only about our dealings with others."

             Jacques Maritain, the French Catholic philosopher who followed in the footsteps of  Thomas Aquinas, has emphasized that "the primary reason for which men, united in political society, need the State, is the order of justice. On the other hand, social justice is the need of  modern societies. As a result, the primary duty of the modern state is the enforcement of social justice." Measured by that exacting moral standard, the federal courts have failed to protect the public interest and have become pawns of the 1% and the flawed market ideology that promotes and advances their interests to the detriment of everyone else. 

How Values Determine Public Policy

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In 2015 former New York Times food critic Mark Bittman wrote a column in which he asked "Why would you buy a processed food that tastes worse than what it was designed to replace, doesn't exist in nature, and helps kill you?" Bittman reminded readers that the Food and Drug Administration, an agency of the executive branch of the government, had finally decided to ban food containing trans fats, but only years after overwhelming evidence and litigation made the dangers of those substances clear beyond peradventure. He further noted that "partially hydrogenated oils have benefited no one except their manufacturers and the producers of the junk that includes them" but he lamented that "the three-year phase out means more deaths from people consuming a substance that should have been taken off the market at least a decade ago."

            "Why wait three years?" Bittman asked, "Why not get these heart-stopping products off the shelves now, as we do when food is contaminated with E. coli? If the evidence is that trans fats are more harmful than other fats, and other fats exist, why delay? Protecting Big Food's profits is the only possible answer."

In a prior column, Mark Bittman presciently identified the source of the problems that afflict our political system: our values. As Bittman observed, "It's clear to most everyone, regardless of politics, that the big issues -- labor, race, food, immigration, education and so on -- must be "fixed," and that fixing any one of these will help with the others. But this kind of change must begin with an agreement about principles, specifically principles of human rights and well-being rather than principles of making a favorable business climate....Shouldn't adequate shelter, clothing, food and health care be universal? Isn't everyone owed a society that orks toward guaranteeing the well-being of its citizens? Shouldn't we prioritize avoiding self-destruction?"  

Bittman went on to observe that, "Defining goals that matter to people is critical, because the most powerful way to change a complex, soft system is to change its purpose. For example, if we had a national agreement that food is not just a commodity, a way to make money, but instead a way to nourish people and the planet and a means to safeguard our future, we could begin to reconfigure the system for that purpose. More generally, if we agreed that human well-being was a priority, creating more jobs would not ring so hollow. .... Increasingly, it's corporations and not governments that are determining how the world works. As unrepresentative as government might seem right now, there is at least a chance of improving it, whereas corporations will always act in their own interests."  

Bittman concluded that "more than minor tweaks are needed to improve life for most people...The big ideas are not a set of rules handed down from on high. To develop them for now and the future is a major challenge, and we - progressives and our allies -have to work harder at it. No one is going to figure it out for us."  

  Bittman is right. In large part, the values that we hold - our worldviews - determine the politicians we endorse, and the public policies that we support or oppose. Unlike religious dogmas, however, political philosophies are neither true nor false per se. Rather, political philosophies reflect the values that govern our public discourse and define our views about the proper role of government, including its responsibility to address economic issues and social needs. 

Our political philosophies also help us to define our understanding of ourselves as political beings. As the expression and embodiment of our social and moral values, they epitomize who we think we are and what we think we can or cannot achieve as citizens through participation in the political process. As Michael Gerson has observed. "Democracy is not merely a set of procedures. The values we celebrate or stigmatize eventually influence  the character of our people and polity. Democracy does not insist on perfect virtue from its leaders. But there is a set of values that lends authority to power: empathy, honesty, integrity, and self restraint." A political philosophy inevitably suggests specific programs and policies. For that reason, the political, economic and ethical effects of the policies and programs that are enacted based upon that philosophy can be measured, scrutinized and evaluated. Once implemented as public policy, over time, they enable us to see whether the effects are beneficial or inimical to the health and vitality of civil society as well as who benefits and who loses.

  Equally important, as Bittman suggests, ignoring the problem of root values inevitably leads to unproductive and frustrating political discussions. Whether, for example, one believes that access to quality publicly-funded health care is a human right, as opposed to a commodity that should be sold by private insurers and purchased in the marketplace, will prompt the proponents of these two diametrically opposed perspectives to endorse entirely different public policy proposals. Unless the underlying root value can be identified and challenged through rational discussion, it will remain impossible to effectively address the issue of health care reform.  

Similarly with foreign trade, the rights of workers to organize and to bargain collectively, and the issue of climate change, a belief that the values of the marketplace - the desire to maximize profits - should control, will lead to one set of policy proposals that endorses a minimalist view of government. On the other hand, those who believe that the public interest should control will advocate specific policies to protect workers and to ensure safety and protect against environmental degradation through rigorous public regulations. In addition, values that we not do share or which are absent from our worldviews and political vocabulary also help to define us; they rule out  a universe of other possibilities that remain unknown or alien to us; and they constrain our ability to imagine other alternatives. 

Conversely, the absence of specific policies and proposals that are designed to address specific public needs help to unmask pious rhetoric as little more than cant or hypocrisy. This last observation is useful when the discussion turns to a discussion of this country's well-documented and exponentially increasing economic and political inequality. Although Americans of every persuasion claim to profess as a bedrock principle, a commitment to some kind of equal opportunity or equality of opportunity, there has been little serious public debate about how we can give substance to our ideals.   

  The question of values becomes one of singular significance in the wake of Donald Trump's election as president of the United States. A few weeks before his election, Trump   proclaimed, "We are cutting the regulations at a tremendous clip. I would say 70 percent of regulations can go." One week later, he went one step further, suggesting perhaps 80 percent of existing government regulations could be eliminated during his administration. Left unsaid by President Trump is an acknowledgment that regulations are the vehicles through which government protects all of us, including the most vulnerable, from predatory and unscrupulous business practices, ensures public safety and protects against health and environmental hazards. 

When Economists Become Theologians

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The University of Paris economist Thomas Piketty has marshaled a wealth of impressive data in his book Capital in the 21st Century. From an historical  perspective, the data shows that the market-based economies in the Western World - save for the brief, unique period caused by the economic disruptions of two world wars - have spawned increasing economic inequality.

Piketty also predicts that, without vigorous public intervention in the marketplace - as the rate of return on investments continues to exceed the rate of economic growth - economic inequality will continue to accelerate. Not surprisingly, Piketty has been denounced on the right as a neo-Marxist or a dangerous social democrat because he has had the audacity to suggest, as a basic proposition of democratic governance, that economic policy should be subordinate to political policy.  

Simultaneously, Piketty's colleague and collaborator at the London School of Economics, Gabriel Zucman, has reported in one of his many studies, Tax Evasion on Offshore Profits and Wealth, that U.S. corporations now declare 20% of their profits in tax  havens - a  tenfold increase since the 1980s - and that tax avoidance policies have reduced corporate tax revenues by up to a third.  At the global level, Zucman argues that 8% of the world's personal financial wealth is now being held offshore, costing more than $200 billion to governments annually and that decisions to shift to tax havens and offshore wealth havens are increasing.

  In the current economic debate, Piketty and Zucman - along with a few other prominent exceptions such as Paul Krugman and Joseph Stiglitz - remain the outliers in a profession that is overwhelmingly dominated by defenders of the status quo and conventional economic wisdom.

One such pathetic example of the latter is Tyler Cowan, an economist at George Mason University. Cowan enthusiastically cited a study which noted that, although economic inequality was rising in countries such as the U.S., "the economic surges of China, India and some other nations have been among the most egalitarian developments in history."
      
  Cowan piously concluded that "the true egalitarian should follow the economist's inclination to seek wealth-maximizing policies, and that means less worrying about inequality within the nation... [C]apitalism and economic growth are continuing their historic roles as the greatest and most effective equalizers the world has ever known."   
     
   In a prior book, Average is Over, Cowan extolled the rise of what he chronicles as the "big earners" in the emerging meritocracy that he foresees. He also argues that, rather than expand the safety net, governments should curtail spending.
  
      As an alternative and to maintain civic peace, Cowan suggests that local governments might offer engaging distractions to those whom he has identified in his Darwinian dystopia as the "big losers" and the "zero marginal product" workers. These "big losers" and "zero marginal product" workers presumably include the 162,000 U.S. architects and engineers whose jobs were shipped to third-world counties between 2000 and 2009, according to Bureau of Labor Statistics, and the 180,000 computer IT and programming professionals who, according to Yale University's Jacob Hacker, lost their jobs between 2000 and 2004.
   
     Perhaps taking an unconscious cue from Aldous Huxley's Brave New World, Cowan proposes a palliative that he suggests would enable the 49% mooching class that Mitt Romney decried to live contented lives, albeit with reduced means and with substantially reduced expectations: "What if someone proposed that in a few parts of the United States, in warmer states, some city neighborhoods would be set aside for cheap living? We would build some 'tiny homes' [that]...might be about 400 square feet and cost in the range of $20,000 to $40,000. We would build some very modest dwellings there, as we used to build in the 1920s. We would also build some makeshift structures there, similar to the better dwellings you might find in a Rio de Janeiro favela.  The quality of the water and electrical standards might be low by American standards, but we could supplement the neighborhood with free municipal wireless..."  

        Cowan's paen to globalization and the onward march of capitalism blithely ignores the systematic, well-documented failures of the capitalist system he extols. His apologia offers small solace to the millions of Americans whose jobs have been lost to out-sourcing and the de-industrialization of the U.S.; his soothing entreaty that, in the long run, everything will work out nicely - some fine day - ignores Keynes's sage observation that "In the long run, we will all be dead."  One also suspects that Cowan would be less sanguine about the economic landscape he surveys if he were informed that his tenured  position at George Mason University were about to be converted into an adjunct faculty position.  

  All of the empirical evidence, Cowan and other apologists notwithstanding, suggests that out-sourcing, deregulation, austerity, the commitment to the myth of "free-trade," -i.e. "laissez-faire" in trade policies - and reduced government regulation have been major contributing factors to the loss of manufacturing, stagnating wages and the growing impoverishment of the former middle class.

  The net effect of current economic policies - sadly endorsed by Democrats as well as Republicans-  has been an extraordinary concentration of wealth and power into the hands of financiers and other moneyed interests who have become the winners in this game of  economic Russian roulette. As a result, the decisions and predilections of fewer and fewer individuals now determine the outcomes in the American economy, while the overwhelming majority of Americans have little ability to influence macro-economic trends or economic and political policies.

         The contrast between "private affluence" and "pubic squalor" in America has only grown worse in the subsequent decades since Galbraith first used those terms to describe what he foresaw as evolution of inequality in the U.S. economy. The disparity between the few who are wealthy and the many who are poor has widened alarmingly in the United States since the advent of the Reagan era and the kind of "trickle-down" economics to which he and his advisers subscribed.
         In his General Theory, Keynes observed that "the ideas of economists and philosophers, both when they are right and when they are wrong, are more powerful than commonly understood. Indeed, the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influences, are usually the salves of some defunct economist....But, soon or late, it is ideas, not vested interests which are dangerous for good or evil." 

           The classical liberal paradigm of the market economy has long since ceased to explain present day economic reality, but the intellectual chains of that received wisdom from long since dead economists continue to control the public narrative. Unfettered competition, based upon allegedly free market decisions made by solitary actors in which goods and services are sold to the most willing buyers, is a myth that does not create individual opportunity for the vast majority of Americans, nor has it maximized business opportunities. 

         Ultimately, the entire process is self-defeating and creates a negative-sum game: As entrepreneurs seek to maximize their profits by paying the lowest possible costs for labor and materials, the middle class is hollowed out. As the income of the middle class contracts, aggregate demand is reduced. As domestic spending contracts, the purchase of goods and services contract. Without the intervention of the government into market economies, as Hyman Minsky has argued, the buyers and sellers of goods and services become locked in mutually destructive death throes.

In addition, given a shared mind-set that sincerely believes that the pursuit of self-interest is somehow a public good, the defenders of the economic status-quo remain oblivious to the adverse effects of poverty, the lack of health care, pollution, climate change and to basic principles of social justice.  Further,  the insecurities of the marketplace persuade those who are successful to institutionalize their advantages. Monopolies and plutocracy are the inevitable result and, as the Forbes 400 list shows, economic inequality becomes more pronounced.

Market economies are affected by the frailties and the foibles of human actors. Although many of these actors are motivated by selfish, short-sighted concerns, the consequences of their actions harm everyone else. It is for that reason that regulation in the public interest and investment in public goods by the government - as the agent of the people 
in a democracy - are essential antidotes to the temper the excesses of capitalism and to create the foundations for a truly just society.