Why Harvard Law School Matters: A New Critique

As Harvard Law School celebrates its 200th anniversary with two days of events attended by hundreds of alumni, some law students, led by Pete Davis (’18), are inviting the Law School to engage in extraordinary introspection as it looks toward its third century.

Mr. Davis, after two years of observation, participation, conversation and research, has produced a major report titled “Our Bicentennial Crisis: A Call to Action for Harvard Law School’s Public Interest Mission.” Over the past sixty years, many of the beneficial changes at the law school were jolted, driven or demanded by a small number of organized students calling for clinical education, for women and minorities to be admitted as students and faculty, for more affordability, for more realism in their legal education and for more intellectual diversity among the professors. (The critical legal studies scholars obliged them up to a point.) Over time, the law school administration, with faculty persuasion, responded.

The bicentennial report by Pete Davis asks important questions about the law writ large square in the context of the law school’s long declared mission statement: “to educate leaders who contribute to the advancement of justice and the well-being of society.”

Out there in the country, the rule of law and justice is relentlessly overwhelmed by concentrated, unjust power. Just consider the stark reality that our profession’s legal services are unaffordable to most Americans and, as retired Justice Sandra Day O’Connor has been tirelessly arguing, legal aid resources for access to justice are consistently pathetic.

But the reality of raw economic, political and technological power over a just legal order has broader consequences. From the lawlessness of presidential war-making exercised abroad daily, to the plutocrat-shaped and dominated corporate state, to stifling the fair usage of our two pillars of private law ― contracts and torts ― there is an undeniable crisis outside of Harvard Law School that Davis factually and normatively contends is aided and abetted by the culture, incentives and practices at our alma mater.

The underlying moral basis of law has been supplanted by the commercial motivations and their tailored analytic skills. For most students, Harvard Law has long been a finishing school (a farm team, if you will) for lucrative corporate law practice in service to ever larger global corporations. The corporate attorneys weave strategies that mature the authoritarian corporate state (recall President Eisenhower’s warning about the military-industrial complex as one example) to undermine a weakening democratic society and support corporate supremacy.

As institutionalized lawlessness robs our country of its potential and promise, the opportunities for Harvard Law, a well-endowed, proud historic law school, to be a leading institution for justice, become ever more significant and urgent. The civic jolt, as always, comes from the rising of the deprived, denied, excluded and disrespected citizenry, from an informed and motivated student body ― seeking higher estimates of their own significance in contemporary history and drawing on their forebears’ finest initiatives ― and a faculty that lifts its horizons beyond its specializations and moves from knowledge to action ― as a few Harvard professors have done. It helps to nourish a media that recognizes law schools as heavily underutilized but very important national resources. In short, law schools need a constant dose of demands and invitations that come from higher public expectations.

Looking at HLS 200: HLS in the World ― Friday’s numerous sessions ― one wonders about key subjects left out, such as corporate crime, consumer protection and the role of large corporate law firms.

“Our Bicentennial Crisis” was written by Pete Davis to be discussed, analyzed and amplified by the Harvard Law School community, including its alumni, and the affected public at large. Copies will be distributed to all the law schools in the country and other civic and public organizations.

The law school administration, so historically adept at waiting out its student and alumni critics, would do well to engage with an open and sensitive mind. With Dean John Manning taking the helm, a fresh attitude, unencumbered by past decisions, can encourage constructive engagements in the coming weeks. Our country’s crises are worsening, the needs are great and the existing capacities at HLS should rise to meet, in the words of Oliver Wendell Holmes Jr., “the felt necessities of our times.”

(“Our Bicentennial Crisis” is available online here.)

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Why Is Nobel-Winning Economist Richard Thaler So Jovial?

When Professor Richard Thaler of the University of Chicago received the news that he had won the Nobel Memorial Prize in Economic Sciences for “contributions to behavioral economics,” he faced an eager press with unusual mirth. What’s the story behind Professor Thaler’s jovial response?

Maybe he is laughing because the joke is finally on the empirically-starved economists whose dominance of the field is finally being challenged by a handful of increasingly noticed “behavioral economists.” In turning the tide of mainstream economic thought, Thaler and his colleagues reject the myth of the hyper-rational consumer – “homo economicus” – who are primarily motivated to maximize utility. It has been a struggle for these less dogmatic economists who for almost three decades have incurred ridicule and condescension by the mathematical economists of the Chicago School of Economics, before people started questioning theories of consumer behavior that are absurd on their face.

Years ago, I asked my Econ 101 professor after class whether the basis of economics is psychology. He gave me an incredulous look and asserted that economics was far too precise a discipline to be so vaguely rooted.

Perhaps Professor Thaler had a similar inquiry as a student watching his economics professors mark up the blackboard with intricate models of how markets and consumers work. Perhaps he was struck by a clear contradiction; He would ask, “Really?” Repeatedly, he would ask “Really?” because this was not how consumers he knew, including himself, operated when they bought or didn’t buy goods and services.

Thaler’s skepticism helped him produce books and articles showing an obvious but powerful truth: that people are consistently and predictably irrational and will act in a way that undermines their own self-interest. And contrary to the dogma of mainstream economics, the market overall doesn’t filter out such irrationality to avoid messy realities.

It’s a small wonder Dr. Thaler is jovial. He has reproduced what the much deprecated Home Economists and later the leading consumer advocates have documented ad infinitum. He built with more bracing analyses concise narratives involving many examples taken directly from consumer protection studies, together with his own common sense observations and candid descriptions of his own irrational behavior. For this he receives his profession’s most coveted prize, while home economists and consumer advocates keep toiling away, their heroism unsung to the majority of consumers who would benefit from this consumer-based wisdom regarding  buying and saving smarter than they have been doing  (e.g., avoiding frauds and harmful irrational choices) so as to protect their health, safety and pocketbooks.

The Nobel Committee praised Thaler as “a pioneer on integrating economics and psychology.” Maybe this is true in the case of the ‘dismal science’ of economics, but it does not account for the thousands of people who have worked to advise people to buy more nutritious foods, choose safer cars and medicines, be more savvy in buying insurance and borrowing and reject the deceptive ads from avaricious vendors flooding the airwaves.

Many mainstream economists got their kicks, promotions and consultantships by playing with complex numbers having concern for human experience, whether manipulated, gouged or drawn from ignorance, despair, fear, lack of time or gullibility. No matter their irrelevance to the real world, these economists were remarkably arrogant toward any of their “soft-headed” colleagues who worked in what was once called the ‘political economy’ or in the field of ‘consumer economics.’

I recall sharing a dinner table in the late nineties with Federal Circuit Judge Frank Easterbrook (an adherent of the Chicago School of Economics), who sneeringly described Derek Bok of Harvard as someone who wouldn’t recognize a regression analysis if it hit him between the eyes.

Getting closer to reality, to on-the-ground evidence of the many human behavioral variables that cannot be quantified by computers so smugly, is the real challenge of social science. Thaler et al. now have the ‘prestige’ to press these other corporate economists to jettison their myths, climb down from their abstraction ladders and face the facts, urgencies and injustices of their time. Getting a grip on the way things really are may deny them some riches from their corporate patrons, for whom they so often shill. But it may encourage economists to embrace what their profession should be about: independent thinking, expanding knowledge and service to the public.

In a backhanded slam against his pompous or indentured (take your choice) brethren, Professor Thaler made a key point (quoted in the New York Times) in a presidential address at the American Economic Association in January 2016: “I think it is time to stop thinking about behavioral economics as some kind of revolution,” adding that, “all economics will be as behavioral as the topic requires.”

In an important sense, however, behavioral economics is a revolution – a revolution against the pitiless abstractions that have shaped the phony cost-benefit equations of corporatist economists who still work to undermine regulatory law and order in the fight against serious corporate misbehavior.

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Obama: Too Cool For Trump’s Crises

Back in the 1970s, there was a best-seller, widely read in the business community, called “Winning Through Intimidation.” Barack Obama should pick up a copy, because that is what Donald Trump may be doing to him. Obama stays mostly silent as the belligerent Trump rolls back or destroys the legacies of Obama’s eight years in office. The mere thought of tangling with the Trumpster’s foul, prevaricatory, sneering tweets offends Obama’s own sense of civil discourse between politicians.

Given the present crises, this revulsion is just another form of self-indulgence by the former, self-described community organizer, senator and president. There is no other political leader, in our celebrity culture, as well known or so high in the polls. Consequently Obama owes a different attitude and level of engagement to the American people.

In a previous column, I described some of these engagements, none of which involve a Twitter fight with Trump. They provide focal points for Americans to rally around agendas and opposition to the politics of anxiety, dread and fear generated by the unstable occupant of the White House. That is, a way to respond to Trump’s raging tantrums, fact-impairment, loss of self-control and ego-centric vanities.

Obama could, for example, work to strengthen civic groups and help substantially to create new organizations to address urgent needs (such as averting wars); he could back opposition to Trump’s destructive policies that are running America into the ground while shielding Wall Street and the dictatorial corporate supremacists whose toadies Trump has put into high government positions.

Obama is a big draw and can raise hundreds of millions of dollars faster than most. Furthermore, he has the unique ability to fill the void the mass media is desperately looking to fill by serving as a counterweight to Trump. Hillary, hawking her latest book, doesn’t fit the bill here.

Instead, Obama, besides raising funds for his presidential library (about $1 billion), is getting press primarily for being paid $400,000 or more per speech before Wall Street and other big business audiences. Most recently, the “New York Times” located him in Sao Paulo, Brazil, speaking generalities to businesspeople who were charged from $1,500 to $2,400 to hear him say essentially nothing of note. The speech title was grandly cheerleading: “Change the World? Yes, You Can”—a nod to his unofficial 2008 campaign slogan, “Yes We Can.”

Obama’s spokesman would not say how much Obama gets to keep of the approximate $2 million generated by this event, which was sponsored by the Spanish bank Santander and Brazilian media conglomerates. The paying attendees were attracted to his celebrity status and didn’t care about the sizable tab probably picked up by their companies. One attendee was quoted by the Times as saying, “It was a bit disappointing. I don’t feel like he said anything new.”

There is plenty to be said in the U.S. that is both new and significant by Obama. However, apart from a few words here and there on bigotry and immigration, Obama has preferred to bounce between high-priced lecture gigs and wealthy watering holes where he is a guest of the super-rich, and to work on his book, for which he is receiving over $30 million. Michelle Obama is receiving many millions of dollars for her book and has also been attending celebrity-filled gatherings. When asked at one such event, whom she would most like to be if she had another career, she answered, Beyoncé.

Meanwhile, down at the grassroots level, where people live, work and raise their families, tens of millions are without living wages or health insurance. Underemployment and people dropping out of the labor market in frustration over their rejected skills, mask what is in reality a deceptively low unemployment rate, and yet poverty indicators are everywhere. Under Trump, families will be exposed to more hazards in the workplace, the environment and the marketplace, and they will face rip-offs by companies that have been liberated from regulatory law and order.

The list of protective programs and responsible business laws destroyed by Trump’s wrecking crew of a cabinet grows longer every week.

It isn’t as if Barack Obama doesn’t realize what he is doing and what is happening to him in this self-enriching bubble he has shaped, post-presidency. He can’t seem to help himself, and going to nearly 500 fat-cat political fund-raisers outside Washington, D.C. as President didn’t help to change or expand his chosen circle.

In his best-selling 2006 book, “The Audacity Of Hope,” then Senator Obama admitted:

I found myself spending time with people of means — law firm partners and investment bankers, hedge fund managers and venture capitalists. As a rule, they were smart, interesting people. But they reflected, almost uniformly, the perspectives of their class: the top one percent of the income scale.

Classic Obama: Say the right thing, and the people won’t mind so much when your words don’t match your deeds.

Think of your millions of supporters, Mr. Obama. They want you to regularly stand up for them and fight the Trump-led assault on our weakening democracy.

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How Big Corporations Game Our Democracy Into Their Plutocracy

A major chapter in American history–rarely taught in our schools–is how ever larger corporations have moved to game, neutralize and undermine the people’s continual efforts to protect our touted democratic society. It is a fascinating story of the relentless exercise of power conceived or seized by corporations, with the strategic guidance of corporate lawyers.

Start with their birth certificate–the state charters that bring these corporate entities into existence, with limited liability for their investors. In the early 1800s, the Massachusetts legislature chartered many of the textile manufacturing companies. These charters could be renewed on good behavior, because lawmakers then viewed charters as privileges contingent on meeting the broad interests of society.

Fast forward to now. The charter can be granted online in a matter of hours; there are no renewal periods and the job is often given over to a state commission. Over the decades, corporate lobbyists have had either the legislatures or the courts grant them more privileges, immunities and concentration of power in management, rendering shareholders–their owners–increasingly powerless. The same corporate fixers work for corporations and their subsidiaries abroad to help them avoid U.S. laws, taxes and escape disclosures.

Remarkably, the artificial creation called the “corporation” has now achieved almost all of the rights of real people under our “We the People” Constitution that never mentions the words “corporation” or “company.”

Corporations cannot vote, at least not yet; only people can. That was seen as a major lever of democratic power over corporations. So what has happened? Commercial money to politicians started weakening the influence of voters because the politicians became increasingly dependent on the corporate interests that bankrolled their campaigns. The politicians use their ever-increasing corporate cash to saturate voters with deceptive political ads, and intimidate any competitors who have far less money, but may be far better representative of the public good.

To further shatter the principle of voter sovereignty, corporations have rewarded those politicians who construct restrictive political party rules, gerrymander electoral districts and obstruct third party candidate ballot access. By concentrating political power in fewer and fewer hands, corporate influence becomes more deeply entrenched in our democratic society. Politicians quickly learn that political favors will attract more corporate campaign cash and other goodies.

Institutions that are supposed to represent democratic values, such as Congress and state legislatures are meticulously gamed with the daily presence of corporate lawyers and lobbyists to shape the granular performance of these bodies and make sure little is done to defend civic values. These pitchmen are in the daily know about the inner workings of legislative bodies long before the general public. They often know who is going to be nominated for judicial and executive branch positions that interpret and administer the law and whether the nominee will do the bidding of the corporate bosses.

Then there is the press. Thomas Jefferson put great responsibility on the newspapers of his day to safeguard our democracy from excessive commercial power and their runaway political toadies. Certainly, our history has some great examples of the press fulfilling Jefferson’s wish. For the most part, however, any media that is heavily reliant on advertisements will clip its own wings or decide to go with light-hearted entertainment or fluff, rather than dig in the pits of corruption and wrongdoing.

What of the educational institutions that purport to convey facts, the lessons of history and not be beholden to special interests? The corporate state – the autocratic joining of business and government – exerts its influence all the way down to the state and local levels, not just in Washington. It works through boards of education and trustees of colleges and universities, drawing heavily from the business world and its professional servants in such disciplines as law, accounting and engineering.

Moreover, the most influential alumni, in terms of donations, endowments and engagements, come from the business community. They know the kind of alma mater they want to preserve. The law and business schools are of particular interest, if only because they are the recruiting grounds for their companies and firms.

Their subversion even extends to the sacrosanct notion of academic freedom – that these institutions must be independent centers of knowledge. For example, Monsanto, General Motors, Exxon and Eli Lilly are only a few of the companies that have pushed corporate, commercial science over academic, independent science through lucrative consultantships and partnerships with professors.

The unfortunate reality  is that the wealthy and powerful are driven to spend the necessary time and energy to accomplish their raison d’etre, which are profits and the relentless pursuit of self-interest. Citizens, on the other hand, have so much else on their minds, just to get through the day and raise their families.

The path forward is to learn from history how citizens, when driven by injustice, organized, raised the banners of change and concentrated on the ways and means to victory. These initiatives require civic self-respect and an understanding that the status quo is demeaning and intolerable.

The requisite to such an awakening is the awareness that our two precious pillars of democracy – freedom of contract and freedom to use the courts – are being destroyed or seriously undermined by corporate influence. The contract servitude of fine-print contracts, signed or clicked on, is the basis of so many of the abuses and rip-offs that Americans are subjected to with such regularity. Add this modern peonage to the corporate campaign to obstruct the people’s full day in court and right of trial by jury guaranteed by our Constitution. The plutocrats have succeeded in gravely doing just that. Tight court budgets, the frequency of jury trials and the number of filed wrongful injury lawsuits keep going down to case levels well under five percent of what the needs for justice require.

Some fundamental questions are: Will we as citizens use our Constitutional authority to reclaim and redirect the power we’ve too broadly delegated to elected officials? Will we hold these officials accountable through a reformed campaign finance system that serves the people over the plutocrats? Will we realize that a better society starts with just a few people in each electoral district and never requires more than one percent of the voters, organized and reflecting public opinion, to make the corporations our servants, not our masters?

See my recent paperback, Breaking Through Power: It’s Easier Than We Think.

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Big Institutions: Immunities, Impunities and Insanities

One of the first times I used the phrase “institutional insanity” was in 1973 to describe the behavior of scientist Dixy Lee Ray, chairperson of the presumed regulatory agency, the Atomic Energy Commission (AEC). I pointed out that her personal and academic roles were quite normal. But her running of the AEC—pressing for 1,000 nuclear plants in the U.S. by the year 2000 (there are 99 reactors left in operation now), and going easy on a deadly, taxpayer subsidized technology that was privately uninsurable, lacked a place to put its lethal radioactive wastes, a national security risk, replete with vast cost over-runs, immunities and impunities shielding culpable officials and executives, should a meltdown occur and take out a city or region (all to boil water to produce steam to make electricity)—was a case study in “institutional insanity.”

Both the AEC and its successor, the Nuclear Regulatory Commission (NRC), captured by the atomic energy industry, operate this way to this day, no matter the near misses, the spills, growing corporate welfare outlays, and the inadequate maintenance of aging nuclear power plants.

Our moral and ethical codes and our civil and criminal laws were originally designed to hold individuals accountable. The kings of yore operated under a divine right of being above the laws.

With the rise and proliferation of ever more multi-tiered governmental and corporate bureaucracies, methods of immunity, impunity and secrecy were built into these structures to shield them from moral/ethical codes and laws. Increasingly, we are ruled by no-fault big corporations and their no-fault toady governments.

Some comparisons are in order. If your neighbor entrusted you with her savings and paid you a fee for doing so, you then purchased stocks for her account while you’re selling them for your account, deceiving the cheated neighbor in the process, would you escape the law? That is just some of what the Wall Street Barons did on a massive scale about ten years ago. No one was prosecuted and sent to jail for this corporate crime wave.

Suppose you hired a security person for your defense who, at the same time, wasted your money and couldn’t account for your payments because his books were unauditable. Would you keep doing business with him? Wouldn’t you demand an audit? Well on a hugely larger scale, this is the Pentagon contracting system and your tax dollars. Why not demand that the defense department stop violating federal law, as it has since 1992, and provide Congress with auditable information so that its accounting arm, the Government Accountability Office (GAO) can audit the notoriously porous Pentagon books.

Suppose the head of your neighborhood association kept sugar coating problems, kept lying to you, kept describing conditions that weren’t so and kept doing things that would enrich himself in conflict with his duties. Would you keep supporting him in that position? Probably not. Well, that is your president, day after day.

What if your neighbor kept dumping polluted water and solid waste pollutants on your lawn and all around your house? Would you demand that your town or city stop this contamination, or sit quietly and accept this abuse because you don’t believe in regulation? Well, Trump’s EPA wrecker, Scott Pruitt, is busily weakening environmental protections and even taking away environmental crimes investigators and forcing them to be his personal security guard.

Let’s say your farmers’ market vendors sensed that you were very dependent on the food they provide and they proceeded to triple the prices, it’s not difficult to predict your reactions. Yet that is what the drug companies have done with many of your important medicines over the past 10 years. Yet where are the outraged demands for the government to have the power to negotiate volume discounts, facilitate generics, restrain prices for drugs rooted in your taxpayer funded research by the National Institutes of Health (NIH) and allow imported competition from Canada?

You get into a bus or cab and the driver regularly cheats you into paying several times more than you should pay and then covers it up. When you find out about it, all hell breaks loose next time you confront him. What about Wells Fargo bank—they knowingly created unauthorized, false credit card and auto insurance accounts, wrongly billing customers millions of times. Imagine: no criminal prosecutions yet, no wholesale resignation of the well-paid Board of Directors, and very few customers are leaving the bank. Wells Fargo keeps reporting great profits while hassling victims into settlements. What’s one takeaway? The bigger the crook, the bigger is our surrender. Too big to fail or jail!

The neighbor in charge of the rural, communal drinking water well knows it’s being contaminated by a party that was his previous employer and expects to be hired back by his old boss. Your children as well as their parents are at risk. Well, welcome to Trump’s deregulations of food, drug, auto pollution, and workplace investor safety. They’ve come from the industries’ payroll and expect to come back with a big raise.

There are just a few contrasts between individual and institutional crimes and wrongdoing and our different responses toward them. Facebook, Google and Equifax can misuse your personal information to your perceived disadvantage and they repeatedly get away with it.

The White House under Bush/Cheney can unconstitutionally ignite wars, lie to the people about the reasons, produce millions of casualties and untold destruction of innocent peoples’ homelands, get re-elected and later retire with huge speech fees without being chased by the “sheriffs.”

It is doubtful whether you would allow your hamlet’s political leaders to get away with such violent assaults, even if they wanted to do so.

If our moral/ethical/legal codes cannot reach up to the tops of these institutions on behalf of wronged, injured individuals and communities and societies, we’ll get what we’ve been getting, which is worse and worse immunities/impunities with each passing decade.

Isn’t this a fault/no fault paradox worth thinking about?

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The Censorious Vortex Of The ‘Flash News’ Barons

For decades, the factors that decided what noteworthy stories would not find their way into print or on the air came down to the media’s ignorance, laziness or from advertising restraints. How else can one explain the many years that passed before the tobacco, auto and junk food industries became the subject of regular consumer reporting? For too long, the explosive material for good journalism in these and other areas had remained hidden in plain sight.

With the intensification of soundbite journalism, fueled by audiences’ increasingly short attention spans, Twitter addiction, the stupefaction of video culture and a willful disregard of both history and contemplation, a new form of censorship has emerged. The domination of “breaking news” — increasingly defined by episodes of violence, natural disasters and celebrity/political outrages and lurid scandals — is rampant.

When any one of these sensationalized episodes is seen as the “big story,” its massive over-coverage crowds out much of what normally would be communicated through the media. At their most frenetic periods, Fox News and CNN represent the worst of these lucrative culs de sac.

More and more, this phenomenon of fewer and fewer types of stories crowding out diverse and crucial reporting has become contagious. Our self-selecting social media bubbles further isolate us by validating, but not challenging, our opinions. Sunday morning network television “news” shows display the same subject, the same invited guests that were in that week’s newscasts. It has become almost impossible to introduce any subject matter, especially fresh disclosures and reports, outside of this tightening circle of opinion oligopolists.

Notice the near maniacal focus on Trump during the 2016 presidential campaign, which amplified his insults, falsifications, howls of outrage and damaging rhetoric. Shut out was any attempt by civic groups to widen the election period’s public discussions of important topics that were taken off the table by the two parties and unchallenged by a dittohead media.

When I ask modestly liberal syndicated columnists why they are not writing about what in earlier times would have been their chosen stories, they tell me that editors demand that they address what has already been “in the news.”

I began to notice our various citizen groups experiencing difficulty in getting “newstime” or “newsprint” because their subjects—clearly newsworthy and affecting people directly—weren’t already in the corporate news media by some high profile story. Among the many severely neglected topics are looted pensions, food and auto safety, hospital malpractice, a predatory pharmaceutical industry, massive billing frauds, the dark sides of corporate welfare, an unauditable Pentagon budget and the devastation caused by stock buybacks. The paucity of “beat” reporters due to ever-winnowing newsroom populations has worsened this spreading blackout. Meanwhile, thousands of commercial radio stations using our public airwaves for free are increasingly syndicated and automated.

This contagion has spread to public radio and public broadcasting. They too have to be, to use the current euphemism, “contemporary.” More experienced and thoughtful perspectives, expressed in paragraphs rather than Tweets, are not “contemporary.” Former regular guests on NPR and PBS, if they are not part of the commentariate for the day’s “breaking news” are no longer regular. Even the prime national and state programs for NPR and PBS are falling in line. Check out the exclusion on Charlie Rose and Judy Woodruff’s Newshour.

Last year, the mass media declined to cover any part of eight days at our “Breaking Through Power” convocations at Constitution Hall in Washington, DC. These were gatherings of more accomplished civic doers and advocacy leaders—many having fundamentally shaped our country for the better— mobilizing around more reforms and redirections than ever brought together in modern American history. They came prepared to share their compelling stories, warnings and plans for action with an eager press. They were not seen as breaking news and therefore “not contemporary” (see breakingthroughpower.org).

Even the estimable Minnesota Public Radio has narrowed its vision. I had complained about the cessation of interviews for my books, reports and commentaries in recent years. Nancy Cassutt, executive director of news and programming for Minnesota Public Radio explained: “we prefer to pick show topics using our editorial judgment about what is in the national conversation, once we do that we search for the voices with diverse opinions and backgrounds to build the show.”

Unfortunately it is not Minnesota Public Radio that determines what is in the national conversation. That choice comes from a very select group of producers, editors, performers and corporate advertisers from Washington, DC and New York City.

In today’s media ecosystem, I could not, for example, have been invited on Meet the Press to introduce my charges against the auto industry’s unsafe vehicles. Scientist Michael Jacobson could not have gotten national media for his revelations concerning the lethal effects of sugar, fat and salt in processed, non-nutritious foods. Likewise Dr. Sidney Wolfe could not have reached millions of people through national news networks and the Phil Donahue Show to alert the public about dangerous medicines. Because they were able to reach and inform the public, their groups expanded and changed America for the better.

Alas, no more such access. The fractured, increasingly cluttered and trivialized Internet is no substitute. The trends are getting worse, especially for younger people. Enough of us, individually or in new organizations, must reclaim the use of our FCC-licensed public airwaves, demanding conditions for serious programming in our community cable contracts and creating a climate for reading and contemplation in our educational institutions.

Remember the high points of American history. Major justice movements were achieved with one percent or less of the population serving as active citizens reflecting majority public opinion. That is what will lead to a more serious media and redefine for them what is truly “contemporary,” because what is portrayed as “contemporary” in the media should reflect the necessities of the people, and not the whims of media executives and advertisers.

If you want a different example of what is newsworthy, tune in to my weekly radio show, the Ralph Nader Radio Hour.

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Destructive Stock Buybacks—That You Pay For

The monster of economic waste—over $7 trillion of dictated stock buybacks since 2003 by the self-enriching CEOs of large corporations—started with a little noticed change in 1982 by the Securities and Exchange Commission (SEC) under President Ronald Reagan. That was when SEC Chairman John Shad, a former Wall Street CEO, redefined unlawful ‘stock manipulation’ to exclude stock buybacks.

Then after Clinton pushed through congress a $1 million cap on CEO pay that could be deductible, CEO compensation consultants wanted much of CEO pay to reflect the price of the company’s stock. The stock buyback mania was unleashed. Its core was not to benefit shareholders (other than perhaps hedge fund speculators) by improving the earnings per share ratio. Its real motivation was to increase CEO pay no matter how badly such burning out of shareholder dollars hurt the company, its workers and the overall pace of economic growth. In a massive conflict of interest between greedy top corporate executives and their own company, CEO-driven stock buybacks extract capital from corporations instead of contributing capital for corporate needs, as the capitalist theory would dictate.

Yes, due to the malicious, toady SEC “business judgement” rule, CEOs can take trillions of dollars away from productive pursuits without even having to ask the companies’ owners—the shareholders—for approval.

What could competent management have done with this treasure trove of shareholder money which came originally from consumer purchases? They could have invested more in research and development, in productive plant and equipment, in raising worker pay (and thereby consumer demand), in shoring up shaky pension fund reserves, or increasing dividends to shareholders.

The leading expert on this subject—economics professor William Lazonick of the University of Massachusetts—wrote a widely read article in 2013 in the Harvard Business Review titled “Profits Without Prosperity” documenting the intricate ways CEOs use buybacks to escalate their pay up to  300 to 500 times (averaging over $10,000 an hour plus lavish benefits) the average pay of their workers. This compared to only 30 times the average pay gap in 1978. This has led to increasing inequality and stagnant middle class wages.

To make matters worse, companies with excessive stock buybacks experience a declining market value. A study by Professor Robert Ayres and Executive Fellow Michael Olenick at INSEAD (September 2017) provided data about IBM, which since 2005 has spent $125 billion on buybacks while laying off large numbers of workers and investing only $69.9 billion in R&D. IBM is widely viewed as a declining company that has lost out to more nimble competitors in Silicon Valley.

The authors also cite General Electric, which in the same period spent $114.6 billion on its own stock only to see its stock price steadily decline in a bull market. In a review of 64 companies, including major retailers such as JC Penny and Macy’s, these firms spent more dollars in stock buybacks “than their businesses are currently worth in market value”!

On the other hand, Ayes and Olenick analyzed 269 companies that “repurchased stock valued at 2 percent or less of their current market value (including Facebook, Xcel Energy, Berkshire Hathaway and Amazon). They were strong market performers. The scholars concluded that “Buybacks are a way of disinvesting – we call it ‘committing corporate suicide’—in a way that rewards the “activists” (e.g. Hedge Funds) and executives, but hurts employees and pensioners.”

Presently, hordes of corporate lobbyists are descending on Washington to demand deregulation and tax cuts. Why, you ask them? In order to conserve corporate money for investing in economic growth, they assert. Really?! Why, then, are they turning around and wasting far more money on stock buybacks, which produce no tangible value? The answer is clear: uncontrolled executive greed!

By now you may be asking, why don’t the corporate bosses simply give more dividends to shareholders instead of buybacks, since a steady high dividend yield usually protects the price of the shares? Because these executives have far more of their compensation package in manipulated stock options and incentive payments than they own in stock.

Walmart in recent years has bought back over $50 billion of its shares – a move benefitting the Walton family’s wealth – while saying it could not afford to increase the meagre pay for over one million of their workers in the US. Last year the company bought back $8.3 billion of their stock which could have given their hard-pressed employees, many of whom are on welfare, a several thousand dollar raise.

The corporate giants are also demanding that Congress allow the repatriation of about $2.5 trillion stashed abroad without paying more than 5% tax. They say the money would be used to grow the economy and create jobs. Last time CEOs promised this result in 2004, Congress approved, and then was double-crossed. The companies spent the bulk on stock buybacks, their own pay raises and some dividend increases.

There are more shenanigans. With low interest rates that are deductible, companies actually borrow money to finance their stock buybacks. If the stock market tanks, these companies will have a self-created debt load to handle. A former Citigroup executive, Richard Parsons, has expressed worry about a “massively manipulated” stock market which “scares the crap” out of him.

Banks that pay you near zero interest on your savings announced on June 28, 2017 the biggest single buyback in history – a $92.8 billion extraction. Drug companies who say their sky-high drug prices are needed to fund R&D. But between 2006 and 2017, 18 drug company CEOs spent a combined staggering $516 billion on buybacks and dividends – more than their inflated claims of spending for R&D.

Mr. Olenick says “When managers can’t create value in the business other than buying their own stock, it seems like it’s time for a management change.”

Who’s going to do that? Shareholders stripped of inside power to control the company they own? No way. It will take Congressional hearings, a robust media focus, and the political clout of large pension and mutual funds to get the reforms under way.

When I asked Robert Monks, an author and longtime expert on corporate governance, about his reaction to CEOs heavy with stock buybacks, he replied that the management was either unimaginative, incompetent or avaricious – or all of these.

Essentially burning trillions of dollars for the hyper enrichment of a handful of radical corporate state supremacists wasn’t what classical capitalism was supposed to be about.

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Needed: An Educational Institute To Extend Dick Gregory’s Legacies

On hearing about the loss of Dick Gregory, at age 84, political analyst and former White House counselor Bill Curry said, “He was the first successful black comedian who insisted on having opinions.”

Until Dick Gregory—with his pioneering, satiric, audacious humor on stage and on national TV, which made white audiences laugh their way into reality—African-American comedians were expected “to do minstrel skits in baggy pants and outsize shoes and use slapstick humor,” in the words of Mel Watkins, author of On the Real Side: A History of African American Comedy.

Breaking through the national media in the early 1960s—from Time Magazine to the famous Jack Paar’s TV show, Tonight—Dick Gregory showed America that he could connect comedy with a myriad of important social justice causes even at the expense of his career.

Watkins describes Gregory well: “He was sharp. He was urbane. He smoked a cigarette onstage. He was very calm in demeanor but very outspoken in what he said … He brought in current political and social issues into his comedy—which was astounding to most white Americans at that time. It was during a time when blacks were considered incapable of doing this.”

Before an audience of white southern business executives, he hit at segregation, saying “I know the South very well. I spent 20 years there one night.” Unruffled by hecklers shouting racial epithets at one night club, he responded calmly that his contract with the club stipulated a $50 bonus each time someone used ‘the N word’ and invited the audience to keep on saying it. Moreover, he titled his 1964 memoir, Nigger: An Autobiography—coauthored with Robert Lipsyte—so that every time the slur was spoken, it was advertising the book which became a bestseller.

In a 2000 interview with NPR, a serious Dick Gregory said this about ‘the N word’: “Let’s pull it out of the closet, let’s deal with it, let’s dissect it. It should never be called ‘the N word.’”

One of his classic jokes that showed his wit, timing and imagery went like this: He walked into a restaurant in the segregated South where a waitress declared “We don’t serve colored people here.” Mr. Gregory replied: “That’s alright, I don’t eat colored people. Just bring me a whole fried chicken.”

But the former high school and college track star, Army veteran and father of 11 children was much, much more than a searing comedian whose humor exposed deeper truths behind inhuman conditions around the country and the world. No one showed up at more rallies, demonstrations, pickets, conducted more fasts, was arrested for non-violent protests more times—sometimes beaten and spat upon—over half a century, than this wiry, bearded advocate for a world without malice and hate.

The last time I saw Dick Gregory was in 2014. We were participating in a rally for D.C. statehood with Mayor Vincent Gray. I came to the stage and tapped him on the shoulder saying, “Mr. Gregory, is this your first protest?” He turned around and, for an instant gave me a quizzical, speechless expression, before we both broke out laughing.

In a long, front-page obituary recognizing his impact, the New York Times’s Clyde Haberman writes: “There seemed few causes he would not embrace. He took to fasting for weeks on end, his once robust body shrinking at times to 95 pounds. Across the decades, he went on dozens of hunger strikes, over issues involving the Vietnam War, the failed Equal Rights Amendment, police brutality, South African apartheid, nuclear power, prison reform, drug abuse and American Indian rights.” His commitment to civil rights did not keep him from being an opponent of all injustices, such as mass hunger and lack of universal access to health care.

Indeed, Mr. Gregory battled on all possible fronts. In 1967 he ran for mayor of Chicago to challenge longtime Mayor Richard J. Daley for his harsh crackdown on peaceful protesters. A year later he traveled the country running for president against Richard Nixon. He joined causes with John Lennon, and In 1980 he went to Tehran to try and free the U.S. Embassy officials being held by the new revolutionary regime that toppled the U.S.-backed dictator. He fasted down to 97 pounds before being compelled to leave the country.

Amidst increasingly trivial and frivolous (and not a little ageist) mass media, his formerly publicized fasts were increasingly ignored as were his other activism and actions. Unfazed, Dick Gregory became a five-day-a-week popular presence on the college campus lecture circuit and continued putting out albums and writing books.

Along with the white comics Lenny Bruce and Mort Sahl, Mr. Gregory was all about breaking taboos, defying stereotypes and combating entrenched modes of oppressive power.

Unlike other high-profile comedians, Dick Gregory refused to deliver profanities or obscenities to get his points across or to provoke his audience’s attention. He was unique, using current events and social tensions to fuel his incisive imagination.

He still has millions of fans, most of them now over 45 and some with ample discretionary income, not to mention the affluence of the leading comics for whom he paved the way. Can a determined core of Gregory devotees organize to start a center or institute in his name to extend his examples of civic courage, remarkable communication skills, and the combination of humor and steadfast seriousness that induce people to listen and open their minds? Our tense, manipulated society needs the kind of clean, contemporary new satire that such an Institute, among other purposes, can engender with a new generation of comedians showing that “in humor there is truth.”

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What’s Obama Waiting For?

The most popular Democratic leader by far is still former President Barack Obama. Despite this popularity,  many of the signature accomplishments of his modest legacy are being brutishly unraveled – being repealed , suspended or slated for extinction – by the Trumpsters. Donald Trump seems to revel in the destruction of consumer, investor, environmental, work and public land protections and standards. Whether at the Environmental Protection Agency, the Food and Drug Administration or the Securities and Exchange Commission, Trump’s big-business friends are running the very agencies tasked with regulating them.

Trump vehemently supports breaking the Iran nuclear accord – one of Obama’s highpoints that cooled off what could have been a rush to military conflict in that turbulent region. Abysmally ignorant about its contents, Trump is nonetheless impulsively determined to do just that in last year’s presidential campaign, alarming leading military experts.

What should Barack Obama be doing about the unfolding Trumpian nightmares dangerously enveloping so many defenseless and anxious Americans?  Tradition has it that outgoing presidents go quietly, do not assail their successor in office, if only because the latter is in a position to strike back. Already, Trump has been actively waging war against his predecessor’s legacy.

But there are many other ways in which Obama can respond without getting into a messy Twitter war with the unstable Tweeter-in-Chief. Granted, Obama is spending time laying the groundwork for his presidential library to preserve his past. It is the future of this country that needs his high profile attention. Word has it that he is working with his former Attorney General, Eric Holder, to get candidates and voters ready for next year’s crucial Congressional elections. If so, he needs to be more media-visible to get the attention of millions of people.

Here are some ways Obama can strengthen the people’s resistance to many of Trump’s destructive efforts which harm his own voters as well as those citizens who opposed his candidacy.

  1. He can raise funds to expand the staffs and programs of existing citizen organizations straining to preserve and defend conditions that help people from all backgrounds. Obama, as president, went to nearly five hundred major fundraisers outside Washington to court campaign donors. By contrast, fundraising for civic action groups, ranging from civil rights/liberties to consumer, environmental and health initiatives, will not be dissipated on gouging political consultants, empty television ads and cowardly candidates unwilling to speak truth to power.
  2. He can elevate already declared positions to block Trump and his Wall Street collaborators from words to action. For example, earlier this year over 100 outdoor-recreation companies – led by Patagonia and REI – paid for full-page advertisements telling Trump in no uncertain terms to lay off the public lands. Obama can nudge them to hire some full-time lobbyists on Capitol Hill to provide them with early alerts and guidance as the looming assault on national forests, wilderness areas and national parks gets underway. Big majorities of Americans agree with these companies, but they are not organized to focus on a handful of Senators and Representatives who need some firm education.
  3. Obama can help start new civic advocacy groups. He has close contacts with people who are very rich and share his views. For example, there needs to be new organizations filling important vacuums on such important matters as what the Trump FCC wants to do to the Internet (end net neutrality), to increase concentration of ownership in the mass media – which is already in a few giant corporate hands – and to deliberately ignore the 1934 Communications Act which conditions licenses on providing public interest programming.

There needs to be additional civic groups to propose good directions and to oppose Trump’s forthcoming reduction of taxes for the rich, and, very importantly, to organize prominent retired military, national security and diplomatic officials who are against aggressive wars and seek dynamic diplomacy to wage peace, and to move toward full Medicare for all with free choice of doctor and hospital – with more efficient and better outcomes.

The reality is that Barack Obama is a big draw. No one comes close to playing such a role. He can get big media, attract large audiences and raise large sums of money for the civic groups. The civil society has built and protected our democracy throughout history. Moreover, he can surely elevate public morale in an era of Trumpian gloom, flakery and attract new leadership to invigorate a leaderless Democratic Party down to the local levels.

If you agree, start petitions with your own ideas for Obama getting with America’s future and not just chronicling his eight year presidency’s past. His silent withdrawal has been astonishing and disturbing. He doesn’t yet realize what a historically crucial role he can play in the next few years.

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The 16-Year War In Afghanistan – Headlines Tell The Story

Since 2001 the US has been at War in Afghanistan – the longest war in US history. Headlines concisely tell the story of this cruel boomeranging quagmire of human violence and misery. Below are some newspaper headlines from 2010 to the present to show that a militarized foreign policy without Congress exercising its Constitutional duties and steadfast public engagement will drift on, costing our soldiers’ lives and limbs, nearly three-quarters of a trillion taxpayer dollars, hundreds of thousands of Afghani lives and millions of refugees, with no end in sight.

Here we go – year by year:

2010

Setbacks in Afghanistan Aggravate Fissures Over Obama Administration’s Review Strategy, Magnifying Differences

US Money Financing Afghan Warlords for Convoy Protection, Report Says

Afghan Base Tests US Exit Plans

In Bank Scandal, Kabul Struggles to Recover Missing Money

Afghanistan Halts Taliban Peace Initiative

US Slows Troop Pullout in Afghanistan

2011

Six Children Are Killed by NATO Airstrike in Afghanistan

Airstrike Ravages US-Pakistan Ties

In Afghanistan, a Sweeping Ambitious Effort to Gather Biometric Data

US General Defends Afghanistan Night Raids

US Secretly Met Afghan Militants

American Soldier is Convicted of Killing Afghan Civilians for Sport

Karzai: Plot Had Roots in Pakistan

Afghans Say Assistance Will Be Needed for Years

US Faces New Afghan Test

Taliban Fighters Attack Afghan Government Center

US-Taliban Peace Talks Reached Tentative Accord

Outspoken Afghan Rights Official Ousted

US General in Afghanistan Says Troops May Stay Past ‘14

US Shift May Push Afghans Into Lead Role

US’s Afghan Headache: $400-a-Gallon Gasoline

Karzai Says Foreigners Behind Afghan Corruption

2012

Under Obama a Drone Network

Police Undermine Fight Against Taliban

Taliban Suggests Peace Talks with US

France Ponders Afghan Pullout

US Drone Strikes Are Said to Target Rescuers at Sites

US Seeks to End Afghan Combat Mission in 2013

US, Afghans in Taliban Talks

Airstrike Killed Children, Karzai Says

Afghanistan Targets Flight of Cash

Taliban Gaining More Resources From Kidnapping

Iran-Afghanistan-Pakistan Summit Closes

Quick US Exit Gains Support Among Afghans

GI Kills Afghan Villagers; Children Among 16 Dead

How to Get Afghans to Trust Us Once Again

New Poll Finds Drop in Support For Afghan War

General Says Afghans Need Big US Force Beyond 2012

Afghan Officials Stress Need for Long-Term Role for US

In Poppy War, Taliban Aim to Protect a Cash Crop

A Stable Afghanistan is Still Possible

No End to Drug Traffic in Sight as US Nears Afghanistan Exit

Afghan Army’s Defiance Grows

Afghanistan Slows Huge Cash Exodus

Afghan Refugee Children Perish in Harsh Winter

In Afghan War, Dooming History to Repeat Itself

US Begins Packing Its Afghan War Gear for the Movers

Report Questions Afghan Strategy

7 Officials in Afghan Investment Agency Quit, Protesting Graft

Afghans Protest Vengeful Militias

Afghans to Spy on own Forces

Taliban Hit a Region Seen as Safest for Afghans

Away from Kabul, Wide Rift Looms Between Afghans and Americans

[Taliban] Bomb Attack Outside Afghan Mosque Kills 41, Injures 56 on Muslim Holiday

Afghanistan Says US Broke Pact on Prisons

Administration Presses to Resume Peace Negotiations with Taliban

Afghanistan Seeks Taxes from Contractors to US

2013

Anti-Torture Efforts in Afghanistan Failed, UN Says

Afghan Amnesty Program Falls Short, Leaving Ex-Insurgents Regretful and Angry

Afghanistan Moves to Curb US Forces

US Faces Fire As It Pulls Out of Afghanistan

Afghan Leader Says US Abets Taliban’s Goal

General Says 20,000 Troops Should Stay in Afghanistan

For Afghans, Peace Appears More Distant Than Ever

11 Afghans are Kidnapped While Working to Clear Land Mines

Afghanistan’s Karzai says US wants to Keep 9 Bases

Karzai’s Office Gets Bags Full of CIA Cash

Report: Millions of US Assistance for Afghan Health Projects Being Wasted

Afghanistan Karzai Officials Meet Secretly with Taliban

Taliban are Said to Attack Afghan Police

Violent Censorship on Rise in Afghanistan

Taliban Attacks US Consulate in West Afghanistan

US Forced to Take Costly Route to Move Gear Out of Afghanistan

Afghans Demand that US Admit Military Errors

US, Afghans Near Security Accord

Afghans Flee Homes as US Pulls Back

US Trains Elite Afghan Units Before Exit

Afghans Look Warily at Future Without US

Attacks on Aid Workers Rise in Afghanistan UN Says

2014

Military Plans Reflect Afghanistan Uncertainty

Tensions Between Afghanistan and US Increase As Airstrike Kills Civilians

3 Reasons for Optimism on Afghanistan

Hard Talk Aside, Little Desire by the West to Leave Afghanistan

Aid Group Sees Daunting Obstacles to Health Care for Afghans

Foreigners in Afghanistan Consider Fleeing As Attacks Rise

Killing of US General Points to Afghan Troops Troubled Past

After Losing Province in 2010, Afghan Taliban Strike Back

Taliban Attacks Kabul Airport as Vote Recount Begins

2015

The Many Failures in Afghanistan

Afghan City’s Fall to Taliban Belies Earlier American Hopes

New Refugees in a Shifting Afghan War

Afghanistan, Taliban Begin Talks on Peace

Afghan Forming Militias to Fight Against Taliban

Taliban Talks Stir Hopes for Afghan Peace

Rising Dangers and Foreign Exodus Hollow Out Afghan Capital

Afghan Gas Station Cost Pentagon $43 Million

Afghan Forces Straining to Repel Taliban Attacks

Taliban Kill at Least 22 Afghan Police Officers

Afghan Province, Teetering to the Taliban, Draws in Extra US Forces

Afghanistan, Pakistan Seek to Restart Talks with Taliban

CIA Runs Shadow War Using Afghan Paramilitary Forces

2016

US to Fight Islamic State in Afghanistan

Taliban Step Up Urban Assaults, Testing the mettle of Afghan Forces

Another District in an Afghan Province Falls to the Taliban

Taliban Rejects Peace Talks with Afghan Government, Cites US ‘Occupation’

Afghan Troops Retreat Under Pressure from Taliban

From Cold War to Cold Shoulder: Russia Cools on Aiding US in Afghanistan

Afghan Refugees Shivering in Frigid Settlements

Exit Strategy for Afghanistan Fades

Taliban Militants Strike in the Heart of Kabul

Face-Off Between Strongmen Exposes Afghanistan’s Deep Political Riffs

Afghanistan’s Taliban Push into New Media

1,000 Afghans Each Day are Fleeing Their Homes

Huge Protest Against Afghan Government Brings Kabul to a Halt

Taliban Cut off Major Afghan Highway Linking Kabul to Northern Gateways

Number of Displaced Afghans Soars

US-Built Roads Take Afghanistan Nowhere

2017

US General Favors Boost in Troops in Afghanistan

Selling Trump a New Afghan Commitment

Taliban Tap New Income Stream: Collecting Bills for Afghan Utilities

U.S. Military Drops 22,000-Pound Bomb on Islamic State Forces in Afghanistan

America Keeps on Failing in Afghanistan

Taliban Seize Two More Afghan Districts in Sustained Fighting

A Peace ‘Surge’ to End War in Afghanistan

Blackwater’s Founder Wants Trump to Outsource the Afghanistan War

Joint Taliban-ISIS Attack Kills Dozens, Afghan Officials Say

Trump Finds Reason for the U.S. to Remain in Afghanistan: Minerals

No Way Out: Trump’s Crude View of Afghanistan Won’t Solve U.S.’s Longest-Running War

The final headline is as appropriate now as it was when it was printed in 2011: “Futility in Afghanistan.”

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