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Conscious Commitment: The Trust in Your Pantry

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Trian.jpgPart 5 of 5 in a series, "The History of Antitrust"

In the one hundred and twenty-seven years that have elapsed since the passage of the Sherman Act, our nation has experienced countless social and political changes and enforcement of this law has fluctuated with the times. The administration of Theodore Roosevelt marked the pinnacle of public awareness of the subject; after ten years of unfettered consolidation resulted in the Great Depression, uncompromising regulation of the trusts became a staple of New Deal policy; and in the prosperity of postwar America, though the public largely lost interest in the issue of antitrust, it remained a significant mainstay of our capitalist economy. However, during the social upheaval that took place in the 1960s, the goal of a truly free market lost its place in the platforms of both parties.

The Democrats adopted the vision of Lyndon Johnson's "Great Society;" though the facets of this policy dealing with civil rights, education, and environmental protection were undoubtedly beneficial, its economic framework virtually ignored the issue of monopolization and instead relied on welfare programs and public spending to achieve equality. This system effectively relieved corporations of their core social responsibilities - to provide citizens with stable employment at fair wages and quality goods at fair prices - and instead shifted those responsibilities to the taxpayer. The Republicans, meanwhile, entirely abandoned their traditional emphasis on fiscal freedom and prioritized the interests of consolidated industry above those of their constituents. In the decades that followed, the viewpoints of these factions grew increasingly entrenched and the fundamental incompatibility of the two perspectives led to our present polarization. In 2017, as Democrats call for socialistic measures such as single-payer health insurance or a $15 minimum wage and Republicans doggedly maintain the status quo of rampant oligopoly in the healthcare, national defense, agriculture, and communications industries, the breach between both sides is steadily widening - and the solution that restored prosperity in the 1930s and allowed for the economic well-being of the mid-century, that protected both citizens and legitimate enterprise from untrammeled restraint of trade, has been isolated in the center of the political spectrum.

This trend affects society at all levels - from things that only indirectly affect most Americans, such as the cost of federal projects such as the improvement of cell phone networks or the maintenance of the military, to matters that impact local communities, such as the exorbitant amount your state pays each year for school lunches or highway repairs, to your own personal range of choices every time you restock your pantry.

The story of your groceries begins with an obscure investment company, Trian Partners, incorporated in Delaware and principally conducting business in New York. This firm is headed by billionaire and Wendy's Chairman of the Board Nelson Peltz and run by a tight-knit group of individuals prominent in the grocery industry. Peltz himself, in addition to his control of Wendy's, is a director of Kraft Heinz and its spin-off group Mondelez International. Together, these companies own products such as the Nabisco line of snacks, including Oreos, Ritz crackers, Fig Newtons, Nilla wafers, Premium saltines, Wheat and Vegetable Thins, Nutter Butter, Honey Maid, Cheese Nips, and even French cookie brand LU; candies and desserts including Cadbury chocolates, Trident gum, Swedish Fish, Jet-Puffed marshmallows, Toblerone, Sour Patch Kids, Twist, Mallomars, Stride, Dentyne, Milka chocolates, and Jell-O; meat brands such as Oscar Mayer, Ball Park hot dogs, and Lunchables, as well as the popular Boca line of vegetarian alternatives; drinks such as MiO, Tang, Wyler's, Kool-Aid, Crystal Light, Country Time and Capri-Sun; Gevalia and Maxwell House coffee, as well as all Starbucks products sold in stores; condiments like Heinz ketchup, A1 sauce, Kraft salad dressings, and Miracle Whip; dairy products including Cracker Barrel, Kraft Macaroni and Cheese, Cheez Whiz, Easy Cheese, Kraft Singles, Philadelphia Cream Cheese, Velveeta, and a nearly complete monopoly on parmesan cheese; Ore-Ida fries; and Planters nuts. In addition, Mondelez board member Josh A. Frank and former Heinz CEO William R. Johnson are now partners at Trian, further cementing this group's control over the snack titan.

However, Trian's dominance does not end there. Its partners are heavily involved in other aspects of the supply chain as well - Peltz and Frank are both directors of food-service giant Sysco, and Trian also owns over two million shares of national retail store Family Dollar. In addition, they are also a major player in the soft drink industry. Their control over the Dr. Pepper Snapple Group (DPSG) has been well-documented in securities filings and acquisitions over the past decade. By the beginning of this century, products such as Royal Crown Cola, Snapple, and Stewart's Root Beer were owned by the parent company of Wendy's, of which Peltz, his son Matthew, and his son-in-law Edward Garden are all directors. These assets were sold in 2000 to Cadbury Schweppes - notably, the buyer is an important portion of the Mondelez/Kraft/Heinz conglomerate, indicating that this group may have been simply shuffling their subsidiaries rather than selling them - before the drink brands were eventually acquired by the parent company of Dr. Pepper. However, this second sale did not end Trian's interest in these products. Documents from 2008 show that 18.2 million shares in the DPSG were distributed among Peltz, Garden, several "straw" companies with names such as "Trian Partners Parallel Fund I" (the numeral in the name signifying that there are at least four of them), and two other Trian subsidiaries incorporated in the Cayman Islands. During these same years, Cadbury Schweppes also bought the entirety of the Dr. Pepper/7 Up Bottling Corp. and added it to the Kraft portfolio - though this acquisition was spun off in 2007 with Peltz' full support, there is no evidence that Trian members have significantly divested from it in the following years.

Recently, Trian has further strengthened their oligopoly of the consumer snack industry by quietly accumulating a significant stake in PepsiCo and subsequently utilizing that interest to eliminate competitors. Though PepsiCo is best known for its line of sodas, it is also the parent company of Frito-Lay, Quaker cereals, Tropicana, and Gatorade, assets that could complete Trian's virtual monopoly on the snack industry if controlled by Trian. The group's fiscal choices and personal connections vividly illustrate that a close bond was in fact forged between the companies in recent years. As of 2013, Trian had reportedly invested $1.3 billion dollars in PepsiCo, and was publicly using their role as shareholders to attempt to control the latter. Interestingly, Trian's employees are also closely connected to the soft drink titan - former PepsiCo CEO Michael D. White, who had worked there for twenty-nine years before becoming a partner at Trian, reported ownership of over two hundred thousand shares in the company after his most recent sale of PepsiCo stock. Another partner, William R. Johnson of Heinz, is a PepsiCo stockholder and a current member of the board. These influential members of the Trian ring may have influenced a 2009 agreement between PepsiCo and the Dr. Pepper Snapple Group, in which PepsiCo agreed to pay DPSG $900 million dollars for the privilege of bottling their products. Though the companies claimed that this contract would reduce the cost of soda to the consumer and be "mutually beneficial," independent company Mahaska Bottling sees the matter differently.

In a complaint filed under the Sherman Act last year, Mahaska alleges that collusion between PepsiCo, the Dr. Pepper Snapple Group, and Trian investment Family Dollar has led to price-fixing and monopolization. According to the plaintiffs, the increase in commerce experienced by PepsiCo after the DPSG deal gave them an unprecedented market share in soft drinks, and PepsiCo subsequently attempted to use this power to eradicate competition. As part of this plan, Family Dollar - of which Trian partner and Peltz' son-in-law Edward Garden was then a director - agreed last year to temporarily lower its soda prices to below bottling cost, refusing to carry any Pepsi or DPSG products until these new prices were met. The only bottlers capable of producing under those conditions happened to be directly owned by PepsiCo, and consumers' demands were supplied by them until Mahaska was driven from the market entirely. The words of the complaint concisely summarize this scheme:

"PepsiCo and PBC entered into an unlawful pricing arrangement with Family Dollar covering not only PepsiCo products but also DPSG products and unlawfully instructing Mahaska to discontinue all DPSG service to Family Dollar... so that they can subsequently raise prices in Mahaska's territories."

This case is still pending in the Southern District of Iowa, and is expected to go to trial at some point this year. Though at first glance, it may appear to be a relatively routine pricing dispute, even the most cursory investigation of the circumstances reveals that such concerted actions are not consistent with healthy competition - rather, the Mahaska dispute is one of the few visible instances of a decades-long, industry-wide attempt to corner the American supermarket.

Read the fourth installment of this series, "The New Deal and a New Start"

Conscious Commitment: The New Deal and a New Start

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NewDealheader.jpgPart 4 of 5 in a series, "The History of Antitrust"

Nearly all historians agree that the crash that took place on October 29th, 1929, was inevitable. The noninterference of the Harding, Coolidge and Hoover administrations, combined with a trend of reckless investing choices, formed an environment in which national prosperity was unprecedented but not sustainable. However, it was not speculation itself that led to the Great Depression - it was the rampant consolidation in the market. Investors poured their resources into companies such as U.S. Steel, General Electric, the Union Pacific, and other organizations which did not face substantial competition; if the one of these corporations wavered, as they began to do in September of 1929, the market was not balanced out by gains in the value of others in the same industry. This lack of choice increased the risk to stockholders and was a major catalyst of the economic collapse.

When President Roosevelt began his revolutionary New Deal program upon assuming office, however, his focus was primarily upon raising prices and wages. He accomplished this goal partially by federal subsidies and large government purchases of commodities from grain to gold, and partially by enabling and encouraging businesses to promulgate agreements of "fair practices," which artificially inflated prices, limited manufacturing, and operatively curtailed competition. For a time these programs proved effective, but when the government began to scale back its spending in 1937 the economy slumped again. By the following year two million laborers had lost their jobs, production had come to a virtual standstill, and the stock market had precipitously declined, undoing much of the progress of the past four years. Clearly, despite the appearance of progress that the first phase of reforms had generated, some important ingredient was missing in the "alphabet soup" of the New Deal agencies.

On April 29th, 1938, Roosevelt delivered his fifty-ninth message to Congress. This time, he recognized that stringent regulation and massive spending could only serve as temporary fixes for the underlying economic problem; in order for a free economy to begin supporting itself again, it would have to be a truly free economy. In his address he announced a renewed commitment to the core principles of antitrust, suggested revision of the relevant statutes, authorized a massive study of current conditions, and declared that anticompetitive conduct would no longer be tolerated: 

"It is a program to preserve private enterprise for profit by keeping it free enough to be able to utilize all our resources of capital and labor at a profit... It is a program whose basic thesis is not that the system of free private enterprise for profit has failed in this generation, but that it has not yet been tried. Once it is realized that business monopoly in America paralyzes the system of free enterprise on which it is grafter, and is as fatal to those who manipulate it as to the people who suffer beneath its impositions, action by the government to eliminate these artificial restraints will be welcomed by industry throughout the nation."

TArnold.jpgThe main writers of the speech were also the men tasked with honoring this pledge over the next months. Thurman Arnold, a plainspoken professor from Wyoming whose approach to the antitrust laws focused almost solely on the interests of the consumer, and Robert Jackson, a former prosecutor who had recently concluded the celebrated tax evasion case against multimillionaire Andrew Mellon, quickly began acting to enforce the Sherman Act. They established an unprecedented pattern of instituting criminal proceedings, procuring indictments against both companies and individuals, and settling the majority of cases with nolo contendere pleas and stringent but fair consent decrees. In May a suit was commenced against Ford, Chrysler, and General Motors: a grand jury investigation into the coercive practices of these three titans returned eighty-six indictments, and while the other two companies quickly consented to cease their unlawful conduct, General Motors was criminally convicted. The dairy industry, which for years had kept milk off the shelves of retail stores and hiked the price of door-to-door deliveries by over two-fifths in the preceding years, came under scrutiny the following month: this investigation broadened until collusion was demonstrated between farm cooperatives, suppliers and jobbers, labor unions, and even local government officials. The construction conglomerate came next, and a massive effort ensued to ensure competition at all levels and lower both the cost of labor and the prices of commodities such as lumber, windows, gravel, sand, roofing, pipes, and even paint - by Arnold's estimate, this flurry of litigation saved individual Americans a total of $300,000,000. Chemical companies DuPont and Monsanto were accused of inflating the prices of various compounds sold to industries, researchers, and the government. The American Medical Association was sued for illicitly attempting to curb the availability of group health plans, duly convicted and fined, and defeated unanimously upon appeal to the Supreme Court. Under Jackson's direction, the primary players in the energy industry were indicted for a conspiracy to buy up all oil entering the market and reselling it at prohibitive rates to any companies attempting to compete with this cartel; the case made its way to the Court and resulted in another resounding antitrust decision. Several major pharmaceutical companies were prosecuted for restraining sales of antitrustradio.jpggeneric medicines. Prioritizing free competition above the possibility of negative publicity, the DOJ under the leadership of Arnold and Jackson filed complaints and criminal charges against major Hollywood producers for unfairly restricting showings of movies. The Associated Press was accused of geographical market division, and though it responded by denouncing Arnold as, among other things, an "idiot in a powder mill" (a term of opprobrium he proudly repeated at every opportunity for the next thirty years), on final appeal this case was also decided unequivocally in favor of the government. The record of this administration reflects an attempt to protect competition in industries receiving little public attention as well as those impacting nearly all Americans - tobacco cartels, meatpackers, tire makers, clothing fabricators, owners of petroleum pipelines, cheese companies, nearly every major railroad, optical equipment patent holders, produce distributors, shoe manufacturers, trucking conglomerates, gas station chains, glassware manufacturers, the radio broadcasting oligopoly, and even a popsicle stick monopoly were among the defendants in antitrust suits brought by Jackson and Arnold. Additionally, the renowned Alcoa prosecution was ongoing throughout these years.

Initially brought in 1937, the Alcoa case had been undertaken by Jackson to test whether "a 100 percent monopoly with the absolute power to exclude others constitutes an illegal monopoly per se under Section 2 of the Sherman Act." Although Roosevelt was dubious at the time, suggesting that a case of this magnitude could shift focus away from the central programs of the New Deal and hinting that a solution could be worked out in other ways, the Division persisted, and the following year the aluminum giant was brought to trial. The trial was the longest in American history at the time, lasting from June 1st of 1938 to August 14, 1940, and though heavily covered by the press in its first days, quickly dropped out of the public's eye. Over these twenty-five months, the government introduced over five thousand pages of exhibits and successfully proved that Alcoa had unlawfully restrained trade by entirely monopolizing commerce in pure aluminum ingot; slowly gaining control over the supply of raw ore until competition became impossible; entering into a conspiracy with a shady entity known only as "Limited" to restrict imports of raw aluminum and bauxite; selling selectively to two manufacturing companies in which it owned a large stake; and unlawfully pooling patents until it owned the rights to every automobile piston design in the nation. During the course of the case the DOJ not only presented the factual basis of their case, but also the  social and political importance of unhindered competition. As Jackson declared in December of 1937:

"The trend toward concentration is also a very real threat against the individual competitive system. This private socialism, this private regimentation of industry, finance and commerce, if not stopped, is the forerunner of political socialism. Our democratic forms of government offer a periodical chance at election time to check and change political administrations. But there is no practical way on earth to regulate the economic oligarchy of autocratic, self-constituted and self-perpetuating groups. With all their resources of interlocking directors,... with all their power to giver or withhold millions of dollars worth of business, with their power to contribute to campaign funds, they are as dangerous a menace to political as they are to economic freedom."

The government's vision of economic freedom was eventually rewarded. Though the federal district judge before whom the case was tried rejected their arguments and the Supreme Court could not muster a quorum to hear a direct appeal, the Second Circuit Court of Appeals reversed the lower decision and enjoined Alcoa from any future anticompetitive practices in an enduring decision authored by Judge Learned Hand. United States v. Aluminum Co. of America, 148 F. 2d 416. One seemingly unexceptional case had redefined our body of antitrust law to read not only that "unreasonable" trusts were illicit, but that any deliberate attempt, action, or conspiracy to restrain trade was impermissible. For the first time since the beginning of the antitrust movement, more than sixty years before, the goal of a truly free market seemed within reach.

Then, in 1941, the United States entered World War II. Almost all the products and commodities in which the Division had finally ensured fair trade practices were suddenly in short supply, and the need for a constant flow of manufactures to aid the Allied powers was prioritized above the economic rights of citizens and small businesses. As Arnold observed in 1943, "the war is being used as an excuse to soften provisions of the antitrust laws to pave the way for domination of industry after the war." The same year Roosevelt offered him a judgeship on the D.C. Circuit, and though many suspected this maneuver was less to reward Arnold for his work at the Division than to remove him from his post when rigorous implementation of the Sherman Act was no longer politically exigent, he did accept. His judicial career lasted only three years before he left to form a partnership with his trusted friend (and future Justice) Abe Fortas. Together, Arnold and Fortas pioneered the private civil suit as a tool of antitrust enforcement, as well as taking on several important civil liberties cases such as Gideon v. Wainwright, 372 U.S. 335 (1963). Jackson had long since left the DOJ for a seat on the Supreme Court, where he served for eleven years. Though the blueprint of successful prosecution which the pair had pioneered is still followed to this day, Arnold's departure still marked the end of any serious attempt to prevent unhealthy consolidation and coercion in American industry. The temporary suspension of free competition beginning with the war would not be fully lifted until the Eisenhower administration ended our involvement in Korea; and by then, politicians and the public had all but forgotten about the existence and importance of the Sherman Act.

Read the last part of the series, "The Golden Age of Antitrust"

Conscious Commitment: The Golden Age of Antitrust

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Part 3 of 5 in a series, "The History of Antitrust"

No mollycoddling.jpgFor the first ten years of its legal life, the Sherman Antitrust Act did not receive much attention from regulators or from the public. The two presidents of the 1890s, Grover Cleveland and William McKinley, emphasized sound tariff policy as a means of lowering prices and promoting competition and did not attempt to utilize the Sherman Act as a major tool to attain those same goals. However, their efforts proved highly ineffective, and at the turn of the century the country was conscious of the need for antitrust enforcement as it has never been before or since.

The activists of the day, commonly known as the Progressives, espoused an economic reform plan fundamentally dissimilar to the liberalism of today in several important respects. For example, though the Socialist party did gain some traction in these turbulent years under the leadership of dynamic, persuasive labor organizer Eugene Debs, the core of the movement sought to protect rather than overthrow the system of free market capitalism. Most prominent agitators of the day emphasized the responsibilities of corporations to offer fair wages to employees and fair choices to consumers, but did not contend that government ought to assume those responsibilities. As a result, attention centered on monopolization and its injurious effects. Reform magazines such as McClure's and LaFollette's stirred public sentiment against the trusts by highlighting individual cases of wrongdoing and by bringing complex economic debates directly to the public forum. Though this "muckraking" journalistic genre could include factually inaccurate or overly sensational serials, it also comprised works as enduring as Ida Tarbell's History of the Standard Oil Company, a meticulously detailed study of the methods used to restrain trade, and Louis Brandeis' Other People's Money, a scathing look at the banking industry that demonstrated how "The fetters that bind the people are forged of the people's own gold." The literary sphere contributed pioneering novels such as Upton Sinclair's The Jungle, the tale of an immigrant laborer who experiences firsthand the duplicitous practices of the meatpacking industry, and Frank Norris' The Octopus, a scathing indictment of the Central Pacific Railroad. The ringing words of Theodore Roosevelt's first State of the Union recognized this tide of public sentiment and epitomized the principles underlying it:

"There are real and grave evils, one of the chief being over-capitalization because of its many baleful consequences; and a resolute and practical effort must be made to correct these evils. There is a widespread conviction in the minds of the American people that the great corporations known as trusts are in certain of their features and tendencies hurtful to the general welfare... It should be as much the aim of those who seek social betterment to rid the business world of crimes of cunning as to rid the entire body politic of crimes of violence. Great corporations exist only because they are created and safeguarded by our institutions; and it is therefore our right and our duty to see that they work in harmony with these institutions."

The central tenets of antitrust policy were as much a part of popular culture as of law; and this, in turn, spurred the authorities to take further action at almost every level. The federal Department of Commerce and Labor, Interstate Commerce Commission, and Federal Trade Commission were all creatures of this period, as was the Antitrust Division of the Justice Department. In 1904, the Supreme Court declared that the Sherman Act was a lawful measure designed to preserve and not encumber freedom of contract, in a landmark decision that compelled the Northern Securities railway conglomerate to dissolve: "If, in the judgment of Congress, the public convenience or the general welfare will be best subserved when the natural laws of competition are left undisturbed by those engaged in interstate commerce, that must be, for all, the end of the matter if this is to remain a government of laws, and not of men." Northern Securities v. United States, 193 U.S. 197 (1904). Additionally, the lawmakers of the several states repeatedly endeavored to address the problem of interstate monopolies affecting commerce within their borders. One commission report from the New York state legislature succinctly summarizes the importance of maintaining free commerce:

"1. Competition between buyers of the raw material enhances the price to the producer.
2. Competition between sellers of the manufactured article reduces its price to the consumer.
3. Reduction of price multiplies the number of consumers.
4. Increase of consumption stimulates production to supply the increased demand.
5. Increase of production implies an increase in the employment of labour.
6. Competition between the employers of labour enhances the wages of labour.
7. Enhancement of the wages of labour involves the material and moral amelioration of the condition of the labouring class.
8. Competition to sell stimulates to improvements in the quality of the article offered.
9. Competition to sell urging reduction in the cost of the article, ingenuity is quickened to the invention of expense-saving and labour-saving machinery, and so a stimulus is applied to the progress of the useful arts and sciences. In short, competition ministers to the welfare of all classes of the community, and augments the resources and power of the state." 


Roosevelt Taft.jpgThe first decade of the twentieth century was the zenith of antitrust enforcement in the United States. Citizens' mounting discontent with untrammeled oligopoly had finally found its voice in the progressivism of the Roosevelt administration, and the rare harmony between official policy and public beliefs led to real change in many cases. Yet these conditions could not last indefinitely. The special interests had been unable to maintain their hold over the popular presses and had even suffered major defeats in the courts such as that in Northern Securities - yet they did not quietly acquiesce to the societal shifts threatening their prominence. In 1912, they succeeded in wresting the Republican nomination away from Roosevelt, who had a majority of the popular vote, and instead supporting William H. Taft, whose record showed only unsuccessful, indifferent attempts to enforce the Sherman Act - and the resulting schism in the Republican party caused the election of little-known New Jersey governor Woodrow Wilson. He had made vague promises about economic liberty during the campaign, but did not actively protect that right once in office and failed to effectively enforce the Clayton Act of 1914. As Roosevelt complained from the stump, "The chapter describing what Mr. Wilson has done about trusts... would read precisely like a chapter describing snakes in Ireland, which ran: 'There are no snakes in Ireland.' Mr. Wilson has done precisely and exactly nothing about the trusts." 

The so-called golden age of the free market had clearly ended. Three years later America entered World War I, and the resulting shortages of many commodities enabled corporations to justify all manner of monopolistic actions in the name of the war effort. A decade of laissez-faire tolerance of the trusts followed, when the lack of competition was justified by an unsustainable illusion of prosperity. As subsequent events would prove, nothing short of complete economic collapse could reawaken the United States to the importance of antitrust enforcement.

Read the second part of this series, "Against Public Policy, Unlawful and Void"

Conscious Commitment: "Against Public Policy, Unlawful and Void"

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Buccaneers.jpgPart 2 of 5 in a series of posts, "The History of Antitrust"

Much of the social and economic landscape of our modern nation was shaped during the latter half of the nineteenth century. The Civil War had ended, and sectional interests and prejudices gave way to a growing consciousness of the United States as a unified world power. The continent grew progressively smaller as the East and West were linked by rail and by telegraph wire, enabling news, ideas and commerce to flow unhindered through established metropolises and territorial outposts alike. All these factors led to the centralization of industry: changes which initially increased national efficiency and opportunity, but which quickly resulted in monopolization and oppression. By 1888, this unprecedented trend of consolidation had led to widespread calls for drastic reform and governmental regulation of American business.

Ohio icicle.jpgThat same year, U.S. Senator John Sherman introduced a bill that addressed these worsening conditions. Reserved and diffident to the extent that he was commonly referred to as the "Ohio Icicle," moderate in most of his policies - the perfect antithesis to his gregarious, aggressive brother William Tecumseh Sherman (of the notorious March to the Sea) - Sherman was an unlikely trustbuster. However, twenty-three years before members of the Senate were even elected by the popular vote of their constituents, he was one of the few politicians with both the willingness and the authority to attempt to rectify the situation. The bill itself, with its clear wording and unequivocal prohibition of all forms of oligarchy, met with determined resistance from conservatives claiming by turns that Congress had no constitutional authority to prohibit monopoly, that protective tariffs and not corporate wrongdoing was culpable for the lack of healthy competition, that no such problem currently existed, and that the proposed legislation would infringe upon and not help to secure the civil liberties enumerated in the Bill of Rights. After lengthy debates on the issue, Sherman's opponents succeeded in postponing any action on his bill for two full sessions. When the merits of the measure finally reached the floor in 1890, the Senator offered an eloquent exposition on the evils of monopolization: "The sole object of such a combination is to make competition impossible... If anything is wrong this is wrong. If we will not endure a king as a political power we should not endure a king over the production, transportation, and sale of any of the necessaries of life. If we would not submit to an emperor we should not submit to an autocrat of trade, with power to prevent competition." This appeal proved ineffective, however, and the bill was referred to the Senate Judiciary Committee for revision.

When it came back to the floor, both its text and its meaning had been eviscerated. The original text of the proposed legislation, designed to protect farmers' cooperatives and labor unions while specifically and unmistakeably banning corporate restraint of trade, read:

"That all arrangements, contracts, agreements, trusts, or combinations between two or more citizens or corporations, or both, of different Sates, or between two or more citizens, or corporations, or both, of the United States and foreign states or citizens or corporations thereof, made with a view or which tend to prevent full and free competition in articles of growth, production, or manufacture of any State or Territory of the United States with similar articles of the growth, production, or manufacture of other State or Territory, or in the transportation or sale of like articles, the production of any State or Territory of the United States, into or within any other State or Territory of the United States: and all arrangements, trusts, or combinations between such citizens or corporations, made with a view or which tend to advance the cost to the consumer of any such article, are hereby declared to be against public policy, unlawful, and void."

When directly contrasted with the forceful, unambiguous terms of the original statute, the impact of the familiar first section of the revised version, commonly known now as the Sherman Antitrust Act - "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal" - is considerably lessened. Sherman himself was acutely aware that his landmark legislation had survived two long years of inaction and conflict only to be entirely vitiated a week before its passage. Perhaps he foresaw the disputes that would arise over the meaning of this vague sentence and the numerous court decisions that would deprive the law of much of its remaining force of the law in coming years; for, when a reporter asked him about the legislation bearing his name, he deprecated it as "totally ineffective in dealing with combinations and Trusts. All corporations can ride through it or over it without fear of punishment or detection." The first prosecutions brought under it illustrated the accuracy of his misgivings.

However, even though it was far from ideal, the Sherman Act was the law of the land and would now have to be enforced. The effort to do so would permanently transform American industry and do much to shape politics and law as the twentieth century approached.

Read the first part of this series, "The Trusts Take Control"

Conscious Commitment: The Trusts Take Control

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Grange Awakening the Sleepers.jpgPart 1 of 5 in a series of posts, "The History of Antitrust"

Economic liberty - the unfettered ability to maintain one's own property and earn one's own living by pursuing any lawful calling - has always been a vital part of American political tradition. It can be argued that the Revolutionary War itself was waged primarily to preserve this freedom, and the Fifth and Fourteenth Amendments to our Constitution inextricably wove it into our legal framework. However, although property rights are mostly safe from governmental despotism in this nation, we continue to face the complex problems arising when a private individual or corporation infringes on the rights of another. The history of antitrust legislation and litigation is the story of countless attempts to solve these problems.

Long before the populist movement of the late nineteenth century galvanized public sentiment in favor of regulating commerce to promote competition, the common law recognized monopolization as inherently illegal and immoral. Contracts "in restraint of trade," such as those in which parties agreed not to engage in a certain industry within a certain area or pledged not to directly compete with each other for customers while both remaining in business, have traditionally been held to be against public policy and therefore void. In England in 1689, it was concisely declared: "The law now is, that total restraints of trade are absolutely bad, and that all restraints, though only partial... are presumed to be bad: therefore if there be simply a stipulation, though in an instrument under seal, that a trade or profession shall not be carried on in a particular place, without any averments shewing circumstances which rendered such a contract reasonable, the instrument is void." Hunlocke v. Blacklowe, 2 Wm. Saund. 156. American courts also consistently enforced this rule well into the nineteenth century: in Jerome v. Bigelow, 66 Ill. 452 (1872), an acquisition deal between two physicians was voided as an unreasonable impediment to free competition; in Callahan v. Donnolly, 45 Cal. 152, a contract providing that a yeast manufacturer refrain from entering the yeast market for eight years was struck down; and in Harkinson's Appeal, 78 Penn. 196 (1875), a mother who sold a bakery and promised as part of the transaction not to "engage in the same business directly or indirectly" - and thereafter opened another bakery with her son in the same area - was not liable to the second owners of the establishment because the clause in question was unconscionable. This principle effectively protected consumers and small businessmen as long as trade was conducted on a largely local scale, but as nationwide and eventually worldwide commerce burgeoned, stronger prohibitions of anticompetitive conduct would clearly be needed.

The transcontinental railroads were probably more responsible for these societal shifts than any other industry. Built using millions of dollars of government subsidies and land cessions instead of private financing, the newly laid tracks were almost immediately profitable, as rail shipping between opposite coasts quickly proved far more efficient than previously used ocean routes. However, not content with the highly lucrative traffic that naturally fell to them, the railway corporations resorted to various forms of oligarchy and chicanery in the attempt to extract every last cent from the nation their lines now spanned. Partisanship and discrimination became rampant. In order to ensure that all direct and incidental profit was collected directly by railroad executives, freight and passenger rates to "company towns" was often drastically cheaper than to independent settlements, even when the latter were fifty miles nearer to a given starting point. Ticket costs plummeted whenever a new competitor emerged and rose again when the threat to the large roads' monopoly was either acquired or bankrupted. In some instances, packages were routed to major rail terminals such as St. Louis, San Francisco, or Omaha, and then sent on to their true destinations - which were often the same stations the incoming train had already stopped at. The public was understandably umbrageous, and several attempts to regulate this untrammeled extortion, including the repeated introduction of antitrust bills in federal and state legislatures, were mounted over the next decades. As one reformer, inveighing against the unjust practices of the Central Pacific, proclaimed twelve years before the passage of the Sherman Act: "I assert that discrimination against one place and in favor of another, or against one man and in favor of another, or against one corporation and in favor of another, is unjust upon the face of it, and not to be justified under any possible contingency." Countless editorials, orations, and exposes reiterated these sentiments, but while the railroad corporations continued to profit they were impervious to common opinion.

Similarly heedless of the rising clamor against monopolization, other companies were quick to follow its example. One of the most flagrant instances of such monopolization occurred in Nevada during the heyday of the Comstock Lode, when an enterprising engineer named Adolph Sutro proposed to construct a tunnel under the lode to adequately ventilate the mines and extract ore in a manner that would be both safer and cheaper than the current method hauling it up the shafts to the surface. Due to its obvious benefits, Sutro's plan initially enjoyed the backing of both the workers themselves and many of the mines. Yet he lost this support when prominent businessman and U.S. Senator William Sharon, who controlled virtually all of the region's ore mills and was an important shareholder in many of the mines, realized that the completed tunnel would allow new mills to spring up at the mouth of the tunnel and compete with his current cartel. Almost immediately the funding that had been promised to Sutro was withdrawn, he was denounced in local newspapers heavily influenced by Sharon, the state legislature even came close to revoking his easement, and he was bankrupted in his efforts to push ahead with construction in the face of these obstacles. Senator Sharon's monopoly continued unchallenged and it looked as though the tunnel project was defeated - until the early morning hours of an uneventful spring day four years later, when a wholly preventable tragedy occurred. The first shift of the day had just descended into the Yellow Jacket mine when it suddenly erupted in uncontrollable flames, killing forty-eight men and injuring hundreds who breathed the toxic smoke. It later emerged that the inferno could have been forestalled simply by providing better airflow in the subterranean passages, precisely what Sutro's tunnel would have done. Though Sharon continued his opposition to the undertaking, many recognized his partial responsibility for the fire, and excavation of the tunnel slowly but steadily continued. In 1878 it was finally completed.

By then, the antitrust movement was gaining traction in the political arena. Just one year before the completion of the tunnel, the Supreme Court decided in Munn v. Illinois, that corporations possessing a "virtual monopoly" over their given markets were subject to more stringent regulation than other businesses. By depriving consumers of other options, reasoned the Court, the owner of such a company "devotes his property to a use in which the public has an interest, [and] he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good." 94 U.S. 113 (1877). Organized labor was becoming a major national force, and Terence Powderly, president of the Knights of Labor, defended Americans' right to a free market both by defending his position in speeches and debates and by pressuring the legislature to act on the matter before democracy itself was irreparably injured. In Congress, the Interstate Commerce Act was introduced, debated at length, and finally passed: the first significant national attempt to restrict railroads' discretion in setting fares and freight charges. On the lecturing circuit, renowned populist Mary Elizabeth Lease was declaring: "Wall Street owns the country. It is no longer a government of the people, by the people, and for the people, but a government of Wall Street, by Wall Street, and for Wall Street. The great common people of this country are slaves, and monopoly is the master." Across the U.S., citizens were beginning to realize that oligopoly had palpable and highly harmful consequences to them personally and collectively, and it was apparent that the present economic oppression could not continue for much longer. The only question remaining was precisely how it would be curtailed.

Is Gerrymandering Finally Over in the N.C. 12th District?

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Gerrymander.jpgYesterday, the Supreme Court affirmed the Middle District of North Carolina in Cooper v. Harris, 15-1262, deciding that the 1st Congressional District and controversial 12th District were impermissibly drawn for the purposes of political and racial gerrymandering. The 1st District encapsulates a comparatively contiguous expanse of territory in the northeast of the state, but also includes several highly irregular strips of land designed to contain predominantly Democratic and minority communities. The other zone before the Court in Cooper is the N.C. 12th, a chronically contorted district that is, according to the majority opinion, "making its fifth(!) appearance before this Court" (emphasis in original). The 12th is an extraordinarily narrow corridor one hundred and twenty miles in length, though no more than twenty miles wide at its broadest point in the vicinity of the city of Charlotte - its singular design has been varyingly described during its long career in the courts as "questionable" (Easley v. Cromartie, 532 U.S. 234 (2001)), "serpentine" (as it was in Shaw v. Hunt, 517 U.S. 899 (1996)),"snakelike" with "knobs" (the new and improved version before the Court today), "tortured," (appellees' brief in Cooper), and simply "bizarre" (Hunt v. Cromartie, 526 U.S. 541 (1999)).


In declaring the deliberate dilution of minority votes evinced in Districts 1 and 12 unconstitutional, the Court may be returning to its long history of protecting voters' right to cast a meaningful ballot. Prior to 1962, the judiciary was inclined to view such inequities as political and not legal problems, but as Justice Brennan expostulated in Baker v. Carr: "Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question." 369 U.S. 186. Two years later, the Court per Chief Justice Warren conclusively established that "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." Reynolds v. Sims, 377 U.S. 533 (1964), see also Miller v. Johnson, 515 U.S. 900 (1995). The Court has also long maintained that the Constitution was designed to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles." West Virginia v. Barnette, 319 U.S. 624 (1943). In 2013, the Court notoriously departed from this tradition of protecting the integrity of Americans' voting rights in Shelby County v. Holder, in which it invalidated a key section of the Voting Rights Act. However, its holding yesterday may signal a restoration of its prior jurisprudence.


In a meticulously detailed, lively decision authored by Justice Elena Kagan, the Court unilaterally rejects the North Carolina redistricting system as unjustifiably discriminatory. The opinion begins with a clear standard by which the plan is to be judged: "The Constitution entrusts States with the job of designing congressional districts. But it also imposes an important constraint: A State may not use race as the predominant factor in drawing lines unless it has a compelling reason." It goes on to eliminate the State's contention that the plaintiffs, local voters David Harris and Christine Bowser, lack standing due to an earlier lawsuit in state court by the local NAACP. The merits of the case were then clearly dealt with. In striking down the new lines of District 1, Justice Kagan denounced North Carolina's unlawful scheme and unequivocally held that the Court will not "approve a racial gerrymander whose necessity is supported by no evidence and whose raison d'etre is a legal mistake." The final portion of the opinion clarifies the meaning of Easley v. Cromartie, which the State interpreted as requiring plaintiffs in redistricting cases not only to prove that a contested plan dilutes the votes of minority citizens, but also to propose an alternative plan achieving greater balance. Cooper concisely debunks that notion: "The reasoning of Cromartie II belies that reading. The Court's opinion nowhere attempts to explicate or justify the categorical rule that the State seems to find there... And given the strangeness of that rule - which would treat a mere form of evidence as the very substance of a constitutional claim... - we cannot think that the Court adopted it without any explanation. Still more, the entire thrust of Cromartie II runs counter to an inflexible counter-map requirement." By renewing the Court's commitment to ensuring the preservation of fundamental voting rights and clearly expounding the elements of a gerrymandering claim, Cooper appears to mark a return to the tradition of Reynolds and its progeny.

Conscious Commitment: Trump's Pick for Antitrust Division

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Octopus.jpgFour days ago, the Senate Judiciary committee held a confirmation hearing for Makan Delrahim, President Trump's nominee to head the DOJ Antitrust Division. The varying policies of each incoming administration can profoundly impact both the livelihoods of thousands of American workers and the prices of hundreds of commodities nationwide - and regardless of prevailing political ideology, it remains a vital responsibility of the Justice Department to ensure that the Sherman and Clayton Acts are stringently and equitably enforced.

Despite his earlier work as a Division prosecutor, Delrahim's complete record on the subject is deeply troubling, as he has helped to orchestrate and obtain regulatory approval for several major mergers. Though he has promised to recuse himself from participation in any action on the merger between Anthem and Cigna due to his earlier representation of Anthem, his involvement with many other conglomerates - Blue Cross and Blue Shield, Google, Merck, U.S. Airways, Johnson & Johnson, Pfizer, and Comcast, to name a few - presents a myriad of other conflicts of interest. Furthermore, his comparatively laissez-faire approach to preserving the free market makes him a questionable choice to be charged with that very task. In the past he has criticized European regulators' rigorous enforcement of their antitrust laws and successful prosecution of foreign-based trusts as "protectionist" abuses of power, comments which suggest that he may not be willing to protect the American free market from the threat posed by alien monopolies engaged in widespread commercial activity here. He has also expressed his belief in virtual immunity for the holders of patents, trademarks, and other intellectual property rights, even when such companies are clearly marketing their products in violation of the Sherman Act. In a climate where increasing oligopoly in the pharmaceutical industry restricts the availability of potentially life-saving medications and raises health insurance premiums even further, and where agribusiness mergers such as Bayer's ill-advised acquisition of Monsanto and ChemChina's notorious purchase of Syngenta could further monopolize the seed industry, it is crucial that regulators remain prepared to challenge these deleterious consolidations. Delrahim has shown no proof that he will adequately do so, and therefore Conscious Commitment cannot endorse his nomination.

Monsanto Executives Sell Off Company Stock

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moneyandrun.jpgSomething is evidently astir inside renowned manufacturer of chemical herbicides and purveyor of unconscionable seed contracts Monsanto, judging by the massive sales of company securities by several prominent executives.

Recently, Monsanto CEO Hugh Grant disclosed in an SEC filing that he has sold 149,230 shares of stock at an average price of $116.15 each, raking in a total of 17.3 million dollars from the transaction and lowering his stake in the corporation by roughly twenty-eight percent. Others at Monsanto have also attempted to divest somewhat: vice president Steven Mizell sold off twenty-one percent of his shares for approximately 1.6 million dollars last April, and sales of Monsanto stock by other company officials and employees, in the past three months alone, have exceeded ten million dollars.

Monsanto's financial prospects have been shaky over the course of the past year. Just this week, it was compelled to withdraw from a deal with John Deere providing for the sale of its Precision Planting assets after the Justice Department challenged the acquisition on antitrust grounds. Even before these latest stock sales, the prices of Monsanto securities had fallen considerably since Bayer AG agreed to pay $128 per share in September. There is currently a multi-district class action litigation pending, alleging that Monsanto knowingly falsified scientific data to conceal the cancer-causing properties of its popular herbicide Roundup. Since the filing of this lawsuit, initial steps have been taken by the State of California to label Roundup as a possible human carcinogen. In addition to all these recent developments, Monsanto has engaged for decades in a pattern and practice of deliberate deception as to the extent of its patents on genetically modified agricultural seeds, and the public is slowly becoming aware of this cozenage. It is unknown whether one or all of these factors influenced the extraordinary actions of Grant, Mizell, and other Monsanto employees with detailed knowledge of the corporation's internal affairs. However, their anxiousness to lessen the connection between their personal finances and the fortunes of the company largely speaks for itself.

Another Broken Promise: The Repeal of NAFTA

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Assembly line.jpgWhen I voiced my support for President Trump shortly before the election back in November, I did so because of his stance on one crucial issue: trade. During the campaign, he unconditionally pledged to repeal NAFTA and work to bring manufacturing jobs back to the United States. However, since then, he morphed this obligation into an effort to "renegotiate" the baneful deal to protect U.S. interests to a greater extent, and only scrap it entirely if that proved impossible; and just this week, he removed even that possibility, promising only to renegotiate NAFTA in a limited way that would be unlikely to materially improve this country's economy.

Trump's renegotiation program is no longer expected to address the wider problem of American corporations outsourcing jobs to foreign factories - rather, it will merely further the chimerical goal of "fair competition" between domestic factories subject to stringent environmental regulations, labor laws, and taxes, and foreign sweatshops in which workers currently earn as little as $3.94 per day. Also, it is unlikely that anything will be done to curb Mexico's deleterious pattern of re-exporting goods, such as clothing or furniture, that originated in the United States as raw materials, such as cotton or timber.

Any changes to the trade deal are likely to affect only a few industries, without any significant impact on the attrition of domestic manufacturing or the availability of American-made products. The renegotiation may lead to the abatement of unfair trade policies placing tariffs upon U.S. dairy products but allowing the untrammeled duty-free flow of Canadian soft lumber into this country; and, possibly, the percentage of North American content required in untaxed auto parts could be raised. However, as time passes and the commitments of the campaign transform into conciliation and compromise, actual reform or repeal of the North American Free Trade Agreement - and actual performance of the promise that got Donald Trump into the White House - seems increasingly improbable.

A Funny Thing Happened on My Way Through Title 42

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Title 42.jpgThis week, on President Trump's precise hundredth day in office, the federal government is (yet again) set to go broke unless an appropriations bill can be approved. The main conflicts preventing a funding compromise are the White House's insistence that federal subsidizing of sanctuary cities come to an end, the Democrats' refusal to block bailouts to the insurance industry written into the text of the Affordable Care Act, and the attempts to reconcile the President's $30 billion defense spending request with the mounting national debt. However, while the debate over these controversies continues in Congress, a much larger question is also implicated - how much should the United States of America actually cost?


The issue shouldn't actually be that complex. We don't need to analyze Gross National Product and skyrocketing income disparity and our current trade balance: one look at the United States Code should be enough to convince anyone that some serious spring cleaning is in order.


The U.S.C., which contains almost all federal Congressional enactments, is currently 5,759 Constitutions, 74,870 pages and fifty-two titles long. The first of these is deceptively straightforward, at twenty-seven pages which mostly define words used throughout the Code. This one is the place to go if you've ever wondered what the phrase "products of American fisheries" or the word "person" means (respectively. Seafood comes at §6, and humans will just have to wait until §8). The shortest of these is Title 9, which covers Arbitration in eleven pages and is probably one of the briefest documents pertaining to arbitration ever published (say what you will about mandatory ADR, but you've got to love any statute more straightforward and concise than the subject with which it deals). The longest, by far, is #42, which comes in at 13,385 pages and contains some things worthwhile, like the Civil Rights Act of 1964. And some things of more questionable merit, to say the least, like §12705c., "Grants for Regulatory Barrier Removal Strategies and Implementation." You read that right - they've apparently taken to spending money on plans to regulate overregulation1. Making matters worse, this behemoth comes with no index, just a four-page list of its one hundred and fifty-nine chapters.


Personally, I don't trust anything with a table of contents that long2. Even the overview is a little staggering - it does tell you where to find the things you might expect, like Social Security and the Clean Air Act, but it also contains chapters with intriguingly irrelevant laws defining the mathematical term "average" (42 U.S.C. §2992c) and providing for space exploration (somehow, Congress thought this item fit better here than in Title 51, which is devoted exclusively to outer space). When there are this many individual ideas and policies thrown pell-mell into one document, it's inevitable that some will be forgotten about and enforcement will be a complete nightmare.


Don't believe me? Well, let's hunt up something everyone knows about, that should be fairly easily accessible. You might suppose that Obamacare, for example, would be a frequently referenced and therefore clearly marked section. Half of it is indeed filed under the identifiable if somewhat specious heading "Quality, Affordable Health Care for All Americans" - that is, the second half. The notorious Act actually begins at 42 U.S.C. §300gg 3, which I assure you is an actual component of Title 42 and not just a random letter-number combination generated by a hyperactive squirrel scampering across my keyboard. 42 U.S.C. §300 is eight hundred and thirteen pages long, and deals mostly with health services and partly with drinking water4. However, just when it starts resembling a cohesive, orderly piece of legislation, it disappears like a subterranean river under mountains of vitally important documents such as those defining the word "governor" or dedicated to "Soil Information Assistance for Community Planning and Resource Development," then magically reappears at §18011, where it finally gets a proper label. If you do manage to get Congress' copy - which, despite its manifold faults, can at least be perused in one piece - the entire title really can to seem like a jigsaw puzzle someone put together wrong.


Also complicating matters is the sheer number of laws dealing with precisely the same problems under slightly different headings, and funded out of completely different sections of this country's coffers. There are chapters 25 and 50, "Federal Flood Insurance" and "National Flood Insurance," respectively (admittedly, the former has been all but repealed - all but the part that costs money, which is still going strong and still has up to five hundred million dollars at its disposal). There are chapters 98 and 99, "Ocean Energy Thermal Conversion Research and Development" and its successor "Ocean Energy Thermal Conversion," both of which deal with precisely the same subject, except one of them covers its territory in nine fairly straightforward sections while the other verbosely provides desperately needed clarification on the subject through such enlightening enactments as yet another definition of "governor" (over the course of the Title, we are educated as to the meaning of this word a grand total of eleven times). And then, of course, there are "Intergovernmental Personnel Program," the closely related "Advisory Commission on Intergovernmental Relations," and "Intergovernmental Cooperation" - these are much more difficult to ascertain the merits of, however. On the one hand, the most cursory examination of the Code reveals the redundancy of a significant number of statutes, and it seems impossible to believe that this many federally funded programs could possibly be simultaneously necessary. On the other, though, the most cursory examination of the Code reveals that Congress barely keeps tabs on the laws it passes itself, and probably needs all the intergovernmental cooperation it can get.


I'll admit, this confusion can partially be attributed to the fact that half the contents of Title 42 have nothing to do with its stated purpose. There are things such as "School Lunch Programs" and some scholarship opportunities that should probably be located in Title 20, "Education;" there are "Criminal Justice Identification, Information and Communication" guidelines, "Community Safety Recidivism Protection," and legislation pertaining to just about every crime in the calendar5, which might be more appropriately moved to Title 18, the federal criminal code - and all this gives one the strange sense that this title would be more appropriately captioned "Congress' Grand Article I, Section 8 Grab Bag" than "Public Health and Welfare," like it is now. But the problems with the United States Code are too significant to be solved by mere rearranging or streamlining. Every line in our law that is not absolutely essential to the fulfillment of federal Constitutional obligations could be costing taxpayers, and diverting scarce funds that could otherwise be allocated to necessary and productive programs.


1 Before long, we'll hear of the establishment of the Overregulation Elimination Agency, vested with the power to enforce their conclusions through appropriate rule-making, and when we do it will doubtless be located in Title 42. You heard it here first.


2 Neither does Adobe Reader, apparently, which took a brave stand against governmental overreach by "Not Responding" every time I tried to locate any particular thing inside this Brobdingnagian document. So I tried to see what methods the government itself had come up with to speed the research process along a little, but apparently they've got problems of their own:


USCtimeout.jpg


3 Don't believe everything you hear on the news: this right here is the real reason why Congress didn't repeal the "Affordable" Care Act when it got the chance. Once you've managed to find a place for the darned thing and fit it snugly into what has to be the most complicated single law ever promulgated, who would have the heart to take it out again and re-number everything that comes after it?


4 Even though it deals with some of the same subject matter, it is definitely not to be confused with "Water Resources Planning," "Water Resources Research," "Secure Water," or Title 33, which deals mainly with "Navigable Waterways." I wasn't actually even looking for our nation's policy on H2O, but suddenly I'm drowning in a veritable sea of surplusage - I suppose next time I need something from the Code, I'll just wait until the clouds roll back and the waters part.


5 This expression is truly quite baffling, if you think about it too hard. I mean, we've all seen planners adorned with pictures of tropical beaches or flower-themed date books, but have you ever encountered a fifty-two week Gregorian crime calendar? I didn't think so.


Balanced Budget Amendment Introduced

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Ickes bandwagon.jpgOn April 8th of this year, H.J. Res. 48 was introduced by Congressman John Ratcliffe and referred to the House Judiciary Committee, officially introducing a proposed twenty-eighth amendment to the Constitution which would limit allocable federal funding to actual government revenue. This measure would effectively prohibit Congress from adding to our existing spending deficit of nearly $20 trillion dollars, curtailing the extravagant and extraneous expenditures currently rampant throughout federal agencies and departments. The amendment reads in full:

"1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two-thirds of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.
2. Total outlays for any fiscal year shall not exceed 18 percent of economic output of the United States, unless two-thirds of each House of Congress shall provide for a specific increase of outlays above this amount.
3. The limit on the debt of the United States held by the public shall not be increased unless three-fourths of the whole number of each House shall provide by law for such an increase by a rollcall vote.
4. Prior to each fiscal year, by not later than such date as Congress may by law require, the President shall transmit to Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts. If the President fails to transmit to Congress a proposed budget which meets the requirements of the previous sentence by the date required by Congress, the President may not receive any compensation for his services for any month which follows that date until the President transmits to Congress a proposed budget which meets such requirements.
5. For each fiscal year, by not later than such date as Congress may by law require, Congress shall consider and approve a budget for the United States Government which meets the requirements of section 4 of this article. If Congress fails to approve a budget which meets such requirements by the date required by Congress, Members of Congress may not receive any compensation for their services for any month which follows that date until Congress approves a budget which meets such requirements.
6. A bill to increase revenue shall not become law unless two-thirds of the whole number of each House shall provide by law for such an increase by a rollcall vote.
7. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law. Any such waiver must identify and be limited to the specific excess or increase for that fiscal year made necessary by the identified military conflict.
8. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.
9. A court may not enter an order in any action, including for purposes of enforcing this article, that results in an increase in the collection of revenue.
10. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.
11. This article shall take effect beginning with the seventh fiscal year beginning after its ratification."


Harrison debt.jpgOver the past decades and centuries, those concerned with Washington's culture of wastefulness have repeatedly endeavored to enact similar legislation. When confronted with the massive deficits created by the Revolutionary War and subsequent inflation, Thomas Jefferson hoped that contemporary lawmakers would "render the immortal service of introducing this practice not that it is expected that Congress should formally declare such a principle. They wisely enough avoid deciding on abstract questions but they may be induced to keep themselves within its limits." In 1982, the Senate achieved the required two-thirds majority but the amendment was voted down in the House, and in 1995, it passed the House but failed to garner a single vote in the Senate. However, as our nation finds itself approximately $19,900,000,000,000 in debt and American citizens grow increasingly frustrated with the corruption and inefficiency of their government, any concerns about the effects of widespread budget cuts must give way to the imperative of ending our insouciant spending patterns. Perhaps the recognition that the present situation simply cannot continue will provide the impetus necessary to navigate the amendment through the Committee to the House and Senate floors and then the states, finally writing fiscal responsibility into our Constitution.

82 Days In, and the Swamp's as Deep as Ever

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Swamp.pngWhen Donald Trump was elected to the presidency last November, voters were willing to take a chance on a political outsider in the hopes that he might take a stand against endemic corruption and inefficiency of the federal government. However, after eighty-two days, very few of his campaign pledges have actually been honored:

1. The Repeal of Obamacare
After the American Health Care Act debacle, the White House has apparently reached a detente with the rampant oligopoly established by Obamacare. While this inaction may effectively prove a political point - that the current bureaucracy cannot be sustained and will inevitably collapse if left in place - it does nothing to remedy the current situation faced by millions of Americans whose premiums have skyrocketed and who are forced either to pay exorbitant rates to monopolistic insurance providers or go on public assistance. By deciding to do nothing while citizens continue to suffer the consequences, Trump has reneged on one of the most vital planks of his platform.

2. Withholding Funds from Sanctuary Cities
Every year, billions of taxpayer dollars go to fund the municipal governments of so-called "sanctuary cities," which purposefully ignore federal immigration rules in order to harbor illegal immigrants. These localities routinely refuse to punish any crimes committed by illegal entrants into the country, often releasing the perpetrators back into society without requiring any expiation for deeds ranging from drug possession to domestic violence. Trump consistently denounced sanctuary cities throughout the 2016 campaign, but has failed to stem the flow of U.S. dollars to support their defiance of U.S. laws.

3. Condemning China's Currency Manipulation
China's intentional devaluation of the yuan has resulted in sharp trade imbalances which are highly deleterious to U.S. manufacturers and workers, by making Chinese imports cost less in the United States than American exports cost in China. Just today, though, the President has announced that he will not be honoring his promise to officially designate China as a currency manipulator and exert international influence to curb their practices. This will effectively eliminate any chance that domestic industries could begin to compete with cheap foreign labor on the world stage.

4. Build that Wall
This was one of Donald Trump's most iconic commitments: to construct a wall along the Mexican border to deter illegal immigrants. However, the anticipated cost of this project has steadily risen since he took office, and it is becoming increasingly unlikely that it will actually be completed using American labor and at a price that remains lower than the benefits for U.S. citizens. Furthermore, the federal agencies tasked with working out the details of this undertaking have merely proposed a fence of the type already existing - without results - along much of our southern border.

5. Bring Jobs Back
Almost immediately after taking office, the President did officially reject the proposed Trans-Pacific Partnership, thereby eliminating an additional threat to the American workforce. But since then, Trump has done nearly nothing to repeal existing free trade agreements or counteract the influx of goods from China - even facilitating the latter practice with his decision not to take action against currency manipulation. The attempt to renegotiate NAFTA has also been repeatedly stalled, leaving American citizens wondering when or if their Chief Executive will decisively protect their livelihoods from rampant outsourcing.

The Redundancy of Obamacare

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Senate bosses 2.jpgToday in Washington, the battle over the impending repeal and replacement of Obamacare will culminate when the House votes on the proposed American Health Care Act - but everywhere else, skyrocketing costs and lack of competition in the health care industry continue to impact us all, and the GOP's latest plan to supplant the Affordable Care Act (ACA) fails to adequately address these deleterious effects. However, closer scrutiny of the relevant statutes reveals that the ACA is not only inefficient but entirely unnecessary.

The individual mandate that formed an integral part of the law was promoted on the basis that it enabled consumers with pre-existing medical conditions to obtain coverage which had long been denied them. Indeed, it is hard to believe that citizens of a free nation could be compelled by their government to pay private entities in the absence of the ethical imperative to eliminate this type of discrimination. Yet, per 42 U.S.C. §12102(2), part of the well-known Americans with Disabilities Act, discrimination against anyone with impaired "operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions" was already prohibited as of 1990. Even though this statute was not always followed by health insurance companies, the protections enshrined in this provision do apply to the industry; see Chrysler Outboard Corp. v. Dept. of Independent Labor and Human Rel,  Sterling Transit v. Fair Employment Practice Comm'n. Furthermore, in Doe v. United Services Life Insurance Co., the Civil Rights Act of 1964 was held applicable to the life insurance market despite the defendant's insistence that underwriting policies for certain classes of consumers came with an elevated risk that justified higher premiums (see also Benitez v. North Coast Women's Health). This statute is clearly analogous to the ADA, and it is highly unlikely that the insurance industry's discriminatory practices prior to the implementation of Obamacare would have survived review under §12102(2)'s unambiguous terms.

Furthermore, the strangling regulations and geographically narrow markets established by the ACA artificially raise prices and render free competition between insurance companies all but impossible, canceling out any cost-distributing effect the individual mandate may have had. Under current conditions, only a limited number of insurance providers can directly compete within the constraints of the official exchanges, and one in five Americans has no choice between companies whatsoever. This problem can be mitigated in two ways, neither of which require the creation of even more supererogatory legislation. Firstly, removing the bureaucratic barriers that hinder competition in interstate commerce will automatically dismantle the local monopolies that have flourished under Obamacare. Secondly, replacing the government's haphazard and inconsistent antitrust enforcement policy with clear and rigorous standards would ensure that the free market stays free - a goal the proposed American Health Care Act does virtually nothing to work towards.

Clearly, the trust-busting Sherman Act and the ADA establish the necessary climate of competition and nondiscrimination to ensure equity and equality in a free market. The Affordable Care Act and its cousin the American Health Care Act are redundant and deeply flawed statutes which do little to remedy the situation and much to obfuscate the actual issues with technical and superfluous regulations. Perhaps a more effective legislative solution to consumers' current quagmire would read, in total:

" Voluntary, Free Market Insurance Coverage for All Americans
42 U.S.C. §300gg and 42 U.S.C. Chap. 157, styled "Affordable Health Care for All Americans" and comprising §18001-§18121, are hereby repealed. See 15 U.S.C. Chap. 1, styled "Monopolies and Combinations in Restraint of Trade," and comprising §1-§38, also 42 U.S.C. Chap. 126, styled "Equal Opportunity for Individuals with Disabilities," and comprising §12101-12213."


That's really all we need.

The DOJ's Executively Under-Privileged Claim in the 9th Circuit

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Yesterday afternoon, the Ninth Circuit Court of Appeals heard oral arguments in Washington v. Trump, (17-35105), considering whether to stay a temporary injunction halting the President's controversial executive order curtailing immigration from seven countries known to harbor substantial terrorist threats to our nation.

Plaintiffs, the states of Washington and Minnesota, contended that the order is unlawful and "unconstitutional" because it leaves their university students in limbo, separates families within their borders, and is allegedly in violation of the Establishment Clause; the federal government countered that the states do not have standing to sue on behalf of either their citizens or foreign nationals, and also that no irreparable harm will result from the issuance of a stay. However, in light of the importance of our immigration policy to ensuring our national security, the aspects of the case the DOJ declined to mention may turn out to be the most vital.


No Mention of Reynolds Endangers National Security


Throughout the hearing, the panel repeatedly questioned Justice Department lawyer August Flentje about potential limitations of judicial review of the imperiled order. At one point, when he briefly invoked the reservation of power to the President and the difficulty of assessing the validity of a critical security decision, presiding judge Michelle Friedland asked outright: "Are you arguing, then, that the President's decision in that regard is unreviewable?" (12:51-12:56). Flentje agreed after a long pause, but immediately reverted to the question of standing and entirely ignored the sensitive nature of our ongoing fight against international terror. This choice could cost the government heavily in subsequent phases of this case, as Flentje effectively waived any privilege the U.S. could otherwise claim during discovery.


Under United States v. Reynolds, 345 U.S. 1 (1953), the federal government retains the privilege - and the obligation - to protect the public's safety by withholding documents containing classified or confidential material, such as military intelligence relating to the activities of extremist groups within the affected nations. The primacy of the privilege is exemplified in the text of Reynolds itself - "Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake" - and specific invocations of its protections have always been treated deferentially by the courts. As the Supreme Court wrote per Justice Field in the wake of the Civil War, "It may be stated as a general principle that public policy forbids the maintenance of any suit in a court of justice the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential and respecting which it will not allow the confidence to be violated." Totten v. United States, 92 U.S. 105, 107 (1875). One hundred and twenty-six years later, the D.C. Circuit recognized the validity of this "privilege and prerogative of the Executive," writing further that courts cannot "compel a breach in the security which that branch is charged to protect." National Council of Resistance of Iran v. Dep't of State, 21 F.3d. 192 (2001), see Global Relief Foundation v. O'Neill, 315 F.3d 748 (7th Cir. 2002) and People's Mojahedin Organization of Iran v. Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003). In Jabara v. Kelly, it was similarly concluded that "[i]n the case of claims of military or state secrets' privilege, however, the superiority of well-informed advocacy becomes less justifiable in view of the substantial risk of unauthorized disclosure of privileged information." 75 F.R.D. 475 (E.D.Mich. 1977). As the Fourth Circuit recognized in 1972, "The courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." United States v. Marchetti, 466 F.2d 1309, 1318, cert. denied at 409 U.S. 1063 (1972), see also Black v. United States, 62 F.3d 1115 (8th Cir. 1995), Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236 (4th Cir. 1985). The court in Heine v. Raus espoused an expansive view of the privilege, holding that "if the two interests cannot be reconciled, the interest of the individual litigant must give way to the government's privilege against disclosure of its secrets of state." 399 F.2d 785, 791 (4th Cir., 1968). See Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975), Cresmer v. United States, 9 F.R.D. 203 (1949) and Zuckerbraun v. General Dynamics Corp., 935 F.2d 544 (2nd Cir. 1991). Lastly, in Halkin v. Helms, the D.C. Circuit acknowledged the heightened importance of the privilege in the modern era:


"It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate." 598 F.2d 1, at 8 (1978).


In this case, however, the DOJ opted not to assert the rights contained in Reynolds, and therefore may be compelled to disclose any relevant intelligence during discovery or risk the automatic loss of this lawsuit. Either alternative could place the government at a disadvantage when promulgating new immigration regulations and severely jeopardize our collective security in the interim.


The Dormant Naturalization Clause


Additionally, even though Flentje emphasized Washington's lack of standing in the instant suit, he did not challenge its attempt to interfere with U.S. foreign policy. The Constitution explicitly reserves the power "To establish an uniform Rule of Naturalization" to the federal government in Article I, Section 8, an assignment of authority which plainly indicates that only the United States can control its rules pertaining to immigration. This is made clear in Edwards v. California, 314 U.S. 160 (1941), in which the respondent unconstitutionally attempted to curb migration from the Midwest by penalizing those aiding indigent travelers, and in State v. Steamship "Constitution," 42 Cal. 578 (1872), in which a California statute that sought to deny admission to international immigrants was struck down as infringing on the sole right of the U.S. government to regulate entry to this nation.


It is a long-standing principle that certain rights enumerated as belonging to the federal government in the Constitution cannot be usurped by the several states. Our national jurisprudence concerning the Dormant Commerce Clause best illustrates this. In Quill Corp. v. North Dakota, the Supreme Court declared: "The [Commerce] Clause, in Justice Stone's own phrasing, 'by its own force' prohibits certain state actions that interfere with interstate commerce. South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177, 185 (1938)." 504 U.S. 298 (1992), see also Tyler Pipe Industries v. Washington State Dept. of Revenue, 438 U.S. 232 (1987), Nat'l Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753 (1967), Toomer v. Witsell, 334 U. S. 385 (1948). In this case, Washington contends that it sues on its own behalf and to protect its own interests; however, it is still unlawfully arrogating the functions of the United States government under Brimmer v. Rebman, where it was held that "a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to all the people of the States, including the people of the State enacting such statute." 138 U. S. 78 (1891). So long as a state possesses the intent to appropriate the plenary powers of the federal authorities, "that legislative effort is clearly impermissible under the Commerce Clause of the Constitution." Philadelphia v. New Jersey, 437 U. S. 618 (1978); Leloup v. Port of Mobile, 127 U. S. 640, 648 (1888); Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662 (1981); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10 (1928). Finally, as the Court once asserted per Chief Justice Marshall:


"It has been observed that the powers remaining with the states may be so exercised as to come in conflict with those vested in Congress. When this happens, that which is not supreme must yield to that which is supreme. This great and universal truth is inseparable from the nature of things, and the Constitution has applied it to the often interfering powers of the general and state governments, as a vital principle of perpetual operation. It results necessarily from this principle that the... power of the states must have some limits. It cannot reach and restrain the action of the national government within its proper sphere." Brown v. Maryland, 12 Wheat. 419 (1827).


Conclusion


A decision in this case is expected by the end of the week, and the lawsuit will proceed regardless of whether the emergency stay is granted or denied. However, the hearing yesterday provided us with a revealing glimpse of both the Justice Department's contentions and the important concepts left unmentioned - which could effectively shape the future of this litigation over the next weeks.

A New Tariff in Town? Not a Bad Idea

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Recently, opponents of President Trump's plan to construct a wall along the Mexican border and finance its construction with a protective tariff on Mexican imports have voiced a concern that this tariff will lead to increases in the prices of automobiles, groceries, and many other necessary goods. However, in their haste to criticize these proposals, they have overlooked several facts that make both the wall and the import tax a national imperative.

First, the argument that tariffs will raise the cost of living in America is based on the specious assumption that our manufacturing and agricultural requirements will continue to be outsourced at the same rate after these plans go into effect. This exhibits a fundamental misunderstanding of the purpose and practical impact of protectionist measures. Clearly, the border tax is designed not to penalize U.S. consumers but to reverse the rapid attrition of the national labor market. Furthermore, the slowing of international trade may actually reduce the cost of many food items, since domestic farmers will easily be able to meet our consumers' needs and American purchasers will no longer have to compete with Chinese and Mexican wholesalers willing to buy up U.S.-grown grain at exorbitant rates. The return of well-paying manufacturing jobs will also increase the availability of basic necessities by restoring employment to pre-NAFTA levels and creating real career paths for Americans currently stuck in the service sector due to the paucity of domestic jobs. For all of these reasons, the imposition of protective tariffs will boost the national economy.

Additionally, those criticizing these plans on the grounds that they are allegedly inimical to our democratic ideals are ignoring one of our most important national values: self-reliance and the willingness to prioritize our common interests over the convenience of luxury imports. Leading up to the American Revolution, our ancestors were prepared to sacrifice their own comfort as consumers in order to further the cause of our independence by boycotting British-made goods and products subject to arbitrary taxation. Nearly two and a half centuries later, it is hard to believe that our citizens have not inherited their devotion along with their achievements; that during the short period of economic transition that will follow the implementation of these proposals, we will not gladly invest in our collective prosperity and accept any temporary inconveniences caused by the preservation of American jobs.

Scott Pruitt's EPA: Don't Forget Our Rights

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On Wednesday, Trump transition team officials announced that E. Scott Pruitt, Oklahoma Attorney General and longtime ringleader of corporate and state resistance to the Clean Power Plan, will be named Administrator of the Environmental Protection Agency. As an affected citizen troubled by this appointment, I decided to directly ask the nominee some of my lingering questions about his policies.


Dear Mr. Pruitt,


This letter is probably not going to have any impact on the policy of the Environmental Protection Agency for the next four years. It's not going to save any lives that thousands of pages of scientific studies and legal arguments couldn't protect. I know it's not going to change your mind. But it's all I can do.


I was a supporter of President-elect Trump during the campaign, and the events of the past weeks largely validated my faith in his promises, but the laissez-faire environmental policy you have long espoused has me concerned, quite frankly. Your past positions in the ongoing lawsuits over the Clean Power Plan show great solicitude for the pecuniary cost of the EPA's regulation of the energy sector; but the plenary constitutional powers of the United States government and the human cost of inaction, though harder to quantify, must not be forgotten in the quest to revitalize the economy.


What is the paramount vision the agency under your direction will promote? For decades now, we have compared ourselves to the Chinese, envied their GDP and their rapid rise while watching from our slow, nearly imperceptible decline. But is the image of prosperity really the photograph of throngs waiting for a streetlight to change, just their eyes visible, their countenances concealed by surgical masks? Is the symbol of economic rejuvenation truly the footage of a cargo ship puffing blindly ahead in the space between the ocean of tainted green below and the sea of miasmic gray above, struggling to find the vague red glow of a safety beacon? Will these images be of our sidewalks, our ports, our lives? That choice is entirely in your hands, now. How much do you estimate the gold disc of sun to be worth, and what benefit compensates the citizens of Beijing who can no longer see it in the sky overhead? How many cents is each act of respiration valued at, and how much would a man suddenly unable to breathe give to have the privilege restored for just an instant? How many dollars does each individual's stake in our common atmosphere - the right to suspire freely and to enjoy a clear sky, a prerogative Justice Brandeis once called "an easement of light and air" - represent? These are your decisions to make. This is the arithmetic of the air, just as much as any costs of implementation can be.


Those regulatory effectuation expenses incurred can be assailed as unreasonably burdensome, or they can more simply be acknowledged as the cost of living. The government of a free nation is bound to respect the rights of natural and juristic persons within its borders against adscititious, unjustifiable regulation. But it does not have to do so at the price of the health, safety and lives of its citizens. It does not have to do so by relinquishing its sovereign authority to regulate interstate commerce and the airspace over which it retains sole control.


The exclusive authority of Congress over commerce between the several states is unambiguously set forth in Article 1, Section 8. The issue of environmental protection may be a comparatively new incarnation of the same conflict among the levels of our government that the Constitution was written and ratified to resolve, but it cannot be exempted from the univocal wording meant to cover all interstate commerce. The establishment of federal control over navigable waterways resulted from the recognition of a river's inconstancy, the impossibility of imposing political borders on the formless flow of fluid. See Gibbons v. Ogden, 22 U.S. 1, Transportation Co. v. Chicago, 99 U.S. 635, Pennsylvania v. Wheeling Bridge Co., 18 How. 421, Yesler v. Washington Harbor Line Commissioners, 146 U.S. 646, and Gibson v. United States, 166 U.S. 269 ("Although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the federal government by the Constitution"). As was said further in Gilman v. Philadelphia, 3 Wall. 713:


"The power to regulate commerce comprehends the control... of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist, and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders."


The federal government is vested with the same control over United States airspace for much the same reasons. The notion that each state can set and enforce its own emissions standards - without materially affecting the air quality of another state and the health and safety of its residents - is clearly as chimerical as any supposition that the states' riparian policies are not inevitably interlinked. As the Supreme Court noted per Justice Ginsburg in EPA v. EME Homer City Generation, 134 S.Ct. 1584 (2013):


"Some pollutants stay within upwind States' borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. 'The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.' The Holy Bible, John 3:8 (King James Version). In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind." See also Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004), 49 U.S.C. §40103.


The constitutional assignment to Congress of the regulation of interstate commerce thus ineluctably vests the United States government with undivided control over air and water. We cannot allow this fundamental framework to be subverted due to policy disagreements or concerns of economic expediency. The principal objections to the Clean Power Plan are the fiscal impact of its implementation, and the heightened impact felt by states with an economy centered on the production of oil and natural gas; but this cost of our constitutional system cannot be permitted to take precedence over the Constitution itself. As President Andrew Jackson famously proclaimed during the Nullification Crisis in South Carolina in 1832:


"If the unequal operation of a law makes it unconstitutional and if all laws of that description may be abrogated by any State for that cause, then, indeed, is the federal Constitution unworthy of the slightest effort for its preservation. We have hitherto relied on it as the perpetual bond of our Union. We have received it as the work of the assembled wisdom of the nation... We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defense and support... Were we mistaken, my countrymen, in attaching this importance to the Constitution of our country?"


The contentious nature of the Clean Power Plan litigation has been replaced now by your delicate responsibility of ensuring our citizens' safety - the land and our lives are in the balance of every cost-benefit analysis the Agency will conduct under your leadership. I ask you Jackson's enduring question now in the hope that the overriding authority over our natural resources granted to the federal government by the Constitution will not be misused or eroded during your tenure.

Respectfully yours,
Kate Brisack

Say No to TPP at the Polls

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UPDATE: It's nearly been a year since we first launched our "Say No to TPP" initiative on PlanetGreen, and voters have indeed made the security of American jobs a priority in this election. The people have spoken -- Donald Trump is now officially our next President-elect, and it's high time we all put aside the vitriolic rhetoric of the past months and rally around our nation's new opportunity for renewed international prominence and economic regenesis. Thank you all for reading our varied perspectives on the election.

The election is rapidly approaching, and the race is still closer than anyone expected. In these final days both candidates are stating their concluding reasons why they are better suited for the presidency than their adversaries: Hillary Clinton stresses her foreign policy shrewdness and her opponent's volatility, while Donald Trump returns to his core messages of bringing back our jobs and strengthening our national economy.

The vital issue of trade has proved to be a priority for voters this election cycle, and for good reason. Past deals such as NAFTA continue to fuel both the exodus of American manufacturing and the influx of immigrants from Mexico, and these disastrous effects do impact our daily lives - by hindering true economic recovery, by diminishing our international status, and by flooding our store shelves with imported products posing risks to our health and safety.

These threats to our persons and our collective prosperity are real, but not only has the Obama administration has refused to acknowledge the failure of NAFTA, it has proposed an even larger-scale repetition of that mistake, commonly known as the Trans-Pacific Partnership. This would allow unlimited free trade with Australia, Brunei, Chile, Japan, Malaysia, New Zealand, Peru, Singapore, and Vietnam, and leave open the possibility that China or Russia could potentially join the agreement in future years. An incomplete sampling of the TPP's unconscionable provisions:

→ A mandatory arbitration system would be instituted, in which foreign companies could challenge U.S. laws without ever setting foot in United States courts. The adjudicatory panel, known as the Investor-State Dispute Settlement system, would be composed of corporate lawyers who would rotate between the roles of practitioner and judge. However, even though alien businesses could remotely strike down our statutes, the government would have to resort to a foreign judiciary to enforce the few regulatory safeguards in the agreement.
→ Pharmaceutical companies holding United States patents would be given longer terms of monopoly than provided for anywhere in our patent law. This would artificially raise the prices of many lifesaving medications and obstruct free competition by prohibiting the production of generic alternatives.
→ The United States would lose its sovereignty, supplanted by the foreign rule of the ISDS, and citizens would lose many rights guaranteed them by our national legislation: the Wagner Act, fracking regulations, food safety measures, the Mercury and Air Toxics Standards, and even the Sherman and Clayton Acts are in danger. Adding insult to injury, taxpayers could be forced to compensate extrinsic businesses for profit "losses" engendered by these essential measures.
→ Private Internet service providers would not only be allowed to monitor users' activities, they would be granted the authority to remove consumers' content and cut off web access without any semblance of due process.

Even though Hillary Clinton was forced by Bernie Sanders' supporters to rescind her support for these measures, she initially backed the TPP, and her running mate Tim Kaine has since stated that both are "flexible" on trade issues; and Virginia governor Terry McAuliffe has corroborated that she will not abide by her promise if elected. Donald Trump, however, has consistently opposed both TPP and NAFTA and pledged to restore fair international trade standards if elected. The election will decide this crucial controversy, and with it the future of our declining cities; the safety of the food on our tables; our right to national sovereignty; the personal security promised us by the Fourth Amendment; and the economic liberties of the free market.

That's why it's imperative that we can't support a candidate that may have halfheartedly promised fair trade, but has repeatedly wavered on that vow and whose record distinctly demonstrates the duplicity of her assurance. In two days, we will decide our fiscal future for decades ahead - and we must have the courage to reject the deleterious provisions of the TPP and stand up for national self-determination.

That's why I, for one, am not ashamed to say that I'm putting my eggs in the "basket of deplorables" this year.

Why I'm a Textualist (Loosely Speaking)

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"We must always remember that it is a Constitution we are expounding."

So spoke Chief Justice John Marshall in 1819, delineating for almost the first time the plenary powers of the federal government. Our country was then in its infancy. The boundary between state and national authority was still unclear; the promise of "liberty" in the Bill of Rights was still a new, ambiguous, unexplained provision; our union was composed of only twenty-one states; and the crucial document in question only had twelve amendments. For over one hundred and ninety-seven years, we have read that ubiquitous decision and cited those ringing words; but somewhere along the way, we appear to have clean forgotten.

The Supreme Court was the first issue brought up in the last Presidential debate, and both candidates were asked how they interpreted our nation's founding charter. Hillary Clinton answered that she saw its articles as flexible, adaptable guidelines changing with the times; Donald Trump indicated that he thought the forefathers' intent should govern their phrases, and it should be construed "as it was meant to be." These views of the Constitution may typify the standpoints of the presidential hopefuls' respective political parties, but both involve a significant amount of reading between its every carefully written line. In light of the ongoing national polemic over the future of our country and the Court, I have re-examined my own perspective on these vital issues - and, once again, have concluded that the Constitution simply means what it says.

The trouble with the Democratic vision of an ever-changing, living document is that simple words are routinely lifted out of their ordinary, relatively constant meanings and given entirely new definitions to further a particular social aim. For example, the case of Goldberg v. Kelly determined that welfare benefits were the rightful property of recipients and therefore cannot be terminated without a full adjudicatory hearing. The motive for this decision was doubtlessly the worthy desire to strengthen the legislative and judicial framework of social reform measures, but the result entirely ignored the nature of the "property" in question - benefits, designed to help an individual get back on his feet without entitling him to an interminable supply of free money. And not only did the holding corrupt our understanding of the word "property" in the Due Process Clause, it continues to cost both the government and its citizens: every time gratuitous payments are made to persons no longer requiring assistance, or the unnecessary expense of holding these hearings is incurred, taxpayer "property" funds the furtherance of this misreading.

That's not to say the Republican conception of a Constitution exactly as the forefathers meant it is perfect either. To think that the authors of any statute, much less the supreme law of the land, wrote down and ratified conclusive, binding words simply because they sounded good; or to think that our fundamental law is to be interpreted like modern poetry, and meaning is to be extrapolated from unspoken undertones and the climate of the time it was written, drastically underestimates the foresight of the Framers. Surely they didn't intend for their broad ringing guarantees of liberty to be straitjacketed by the very institutions they created, just as certainly as they must have realized they were enumerating the central tenets of an enduring nation and therefore must communicate their purposes very clearly. (And if they couldn't figure out that much, then it probably doesn't matter what their master plan for our country was. But personally, I give them more credit than that). Compounding this problem is another dilemma: exactly which Founding Father gets to determine the meaning of the Constitution for all time, anyway? Are we going with Thomas Jefferson's original intent, John Marshall's, Alexander Hamilton's, Benjamin Franklin's, or Gunning Bedford Jr.'s? Because Gunning Bedford Jr. doubtlessly had his own opinion on the matter, and has just as much right to decide on the significance of the sentences he signed as do any of those other estimable persons.

That's where we're left in the dark. The debate on constitutional interpretation is as old as the Constitution itself - it was to the Framers what each of them believed it to be. In 1787 there were as many varied perspectives on these vital issues as there are today, and it ignores the very idea of pluralism our country was founded to foster to suppose that there is one true, correct "originalism." Perhaps to James Iredell, the First Amendment only prohibited prior restraint, just as to James Madison it protected citizens' freedom of expression under nearly all circumstances. Any cursory examination of contemporary essays and speeches reveals these differences and the fallacy of supposing there was any solitary, conclusive opinion on the division of rights between state and federal government and the individual.

They gave us only one place to look to find their final compromises, the one clear statement of their unified purpose: the unambiguous wording of the Constitution itself. Whatever they each understood the phrases to mean, they eventually agreed that those were the phrases that should govern our nation for coming decades and centuries, and we ought to live by that. Each clause shouldn't be constricted or stretched to accommodate a particular political climate, but should be read in its natural and everyday context, meaning no more and no less than it plainly says.

For starters, let's dispense with the misbegotten notion of a Dormant Commerce Clause. All the Constitution itself says on the matter is that Congress retains the right "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." That's it. It says nowhere that states have to accept hazardous waste originating in other states. Or that lower tax rates for local small businesses are unconstitutional, while "incentive packages" for massive out-of-state factories are perfectly fine. Or that a state doesn't have the freedom to contract to sell its own property, adding the simple condition that raw timber currently on its own land be processed in the state before being exported. (Better believe it. Philadelphia v. New Jersey, 437 U.S. 617 (1978), South-Central Timber Development v. Wunnicke, 467 U.S. 82 (1984)). "Dormant Commerce Clause" aside, all of those measures are lawful uses of the States' police power to protect citizens and further their economic development (and far better ways to do so than the Goldberg v. Kelly approach, if you ask me). The Constitution's plain language does not admit of the subtle inferences that have allowed large corporations to nullify the most basic rights reserved to the states.

While we're at it: the Ninth Amendment, true to its wording, does not mean any one thing in particular. That's the beauty of it. Rather, it recognizes that the Constitution doesn't mention everything and provides the needed elasticity for an enduring document designed to be interpreted literally. A charter riddled with such seldom-invoked protections as the right not to have soldiers quartered in your home (haven't yet found a use for that one myself), while missing vital liberties like freedom of choice or freedom of travel, would not last very long without the Ninth Amendment. But it, like all other constitutional provisions, shouldn't be interpreted either strictly or broadly: it should simply be construed to say exactly what it does. Which boils down to one fundamental tenet on which our national conception of freedom is based:

You have the right to do whatever it is that you want to do, as long as you're not hurting anyone or making anybody pay for it.

Simple enough?

At least it's got to be simpler than the chaos resulting from tailoring straightforward language to promote even the best of political agendas, and/or trying to decide which Founding Father's personal understanding of his government ought to be the law of the land. As Hugo Black once said, "The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation." Our country would do well to remember that now.

Bayer-Monsanto Buyout: Dangerous Waste of $66B

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finalsign.jpgPost the premerger notice and let the bells ring. German pharmaceutical and pesticide titan Bayer and controversial seed giant Monsanto have finally tied the knot for $66 billion, in a deal complete with a $2 billion breakup fee owed to Monsanto if the deal is disallowed by the authorities. Not only is this deal a blatant attempt to monopolize the agricultural industry; upon closer scrutiny, Bayer may have dramatically overestimated the value of their newest purchase.

This buyout will be highly advantageous for Monsanto, which has routinely defrauded the growers of its genetically modified seeds for decades by vastly overstating its protections under U.S. patent law. The corporation speciously claims that patents on its asexually created plants forbid farmers from saving and replanting second-generation seed produced by a GMO plant, an assertion that clearly contradicts the unequivocal text of 35 U.S.C., Chapter 15. By using this deception to force farmers to repurchase seed every year, Monsanto has collected millions of dollars in unlawful profits - but, however lucrative that practice may prove at present, there remains the distinct possibility that regulators could at some point curtail such cozenage. By walking away with a cushion of some $66 billion dollars and handing Bayer the responsibility for this precarious operation, Monsanto's executives have ensured that they are never held accountable for their illegal restraint of trade.

Because of those legal uncertainties, this acquisition could prove to be a mixed bag for Bayer. The recently passed "Dark Act" overruled more comprehensive state-by-state GMO labeling laws that required notices to be placed physically on grocery packages, instead allowing manufacturers to obscure this information by posting it on websites or providing phone numbers consumers must call to learn the truth about their foods. This poorly veiled boost to the agribusiness industry is expected to increase the prevalence of GMO crops by making avoidance nearly impossible, and therefore would render Monsanto a desirable purchase. However, Monsanto's duplicity regarding its patents could prove to be more of a burden than a boon to Bayer if its claims are ever disputed. In addition, in an entirely separate controversy, an ongoing Justice Department suit against both Monsanto and John Deere over a partial merger of their machinery divisions (orchestrated prior to this buyout) could result in substantial penalties. Taking all these things into consideration, it is unlikely that Monsanto's products are worth the massive investment Bayer has just made in the company.

No matter what the outcome for the entities involved, one thing is clear: this merger will have a decidedly negative effect on American farmers and consumers. The two largest GMO seed companies are now both foreign-based: the Monsanto brand will now be German-held, and primary competitor Syngenta was recently purchased by ChemChina, a state-owned Chinese chemical developer. This could complicate an eventual challenge to Monsanto's interpretation of the patent laws by embrangling regulators or a class of growers in a drawn-out fight over the legitimacy of US jurisdiction; see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), Asahi Metal Industry, Co., Ltd. v. Superior Court of California, 480 U.S. 102 (1987). In addition, the merger gives the new conglomerate unprecedented market power over the price of seed and the herbicides most GMO plants have been specifically engineered to withstand, costs that will further repress small farmers and will be passed on to the consumer through increases in the prices of basic necessities.

The premerger notification will soon be available for public comment, and it is imperative that anyone ever having grown staple crops, eaten corn, soy or sugar, or worn cotton clothing unite to stand up against this plainly wrongful attempt to restrain the free market. So speak now or forever hold your peace.

Update: Monsanto Agrees to Disagree, Basically

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Monsanto has finally responded to the argument I shared with you a few weeks ago, which posits that their scheme of licensing agreements for their GMO seeds egregiously overstates the protections they enjoy under U.S. patent law and is therefore a fraudulent attempt to unlawfully restrain trade. Their cursory one-paragraph letter duly recognizes that their corporate policy differs from our plain reading of the relevant statutes, but seemingly does not bother to counter the contentions I set forth:

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Their continuing reliance on Bowman and J.E.M. to vindicate their practices, even though both are materially irrelevant to the current controversy, may imply that they believe this dispute too trivial to require their further attention -- or it may signal that those two inapplicable precedents are the only legal foundation for their shaky scheme. Either way, it appears that Monsanto and "Conscious Commitment" have reached an impasse.

Conscious Commitment: My Response to Monsanto's Mendacity

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Earlier today, I posted Monsanto's response to a consumer complaint I filed with the Arkansas Attorney General's office, to report their routine practice of fraudulently overstating the protections they enjoy under United States patent law. Here is my reply to their arguments.

On July 29th, I received Monsanto Technologies, LLC's response to my consumer complaint, docketed #16-04415, alleging that Monsanto has engaged in a routine pattern and practice of misleading growers of its genetically modified, patented seeds as to the protections it enjoys under these patents. The gravamen of its answer appeared to be that Bowman v. Monsanto, 133 S.Ct. 1761 (2013), and J.E.M. Ag. Supply (dba Farm Advantage) v. Pioneer Hi-Bred, 534 U.S. 124 (2001), settled this matter by unilaterally granting Monsanto the right to prevent others from reproducing these patented seeds. However, even a cursory reading of those opinions reveals that those holdings have no significant relation to the controversy at hand, and Monsanto's entire contention therefore rests on obiter dicta and its own erroneously loose construction of the patent laws.


STATEMENT OF FACTS


Monsanto Technology, LLC, is a corporation organized under the laws of the state of Missouri. Monsanto is engaged in the development, licensing, and conditional sale of genetically modified agricultural seeds in interstate commerce. The natural biological and chemical makeup of these seeds has been tampered with in several ways, primarily to increase resistance to insect pests and Monsanto-made herbicides, and these changes have been patented. Monsanto routinely compels growers of the seeds to sign a uniform Technology/Stewardship Agreement ("MT/SA," the full text of which is appended below). In the MT/SA, the farmer agrees (among other things) to limit his use of the seeds to a single planting, to use only Monsanto herbicides on his crops, to allow Monsanto unbridled access to his property and Internet records, to use only Monsanto-approved cotton gins, and not to conduct or allow any independent studies of the safety or properties of the genetically modified technology. The MT/SA does not mention the applicable patent statutes, and there is no indication that signers are made aware in any way of the content of those laws. Monsanto holds hundreds of these contracts, nationwide and in Arkansas.


I. AN ASEXUALLY REPRODUCED PLANT, BY ANY OTHER NAME...


Over the past decades, Monsanto has fabricated several new varieties of genetically modified seeds. These are initially produced by an asexual process known as genetic recombination, in which DNA segments responsible for certain characteristics are isolated from widely varying organisms. These exogenous genes are subsequently injected into the DNA of a common agricultural crop such as corn, soybeans, or cotton. Monsanto has attained several U.S. patents on these mutated organisms, and under color of those patents asserts that it retains the right to prohibit growers from saving and replanting seeds or beans descended from the modified plants.


However, the relevant federal statute does not unilaterally grant Monsanto power to impose these restrictions. 35 U.S.C. §161 conclusively indicates the manner in which the United States Congress intended to protect the inventors of asexually created plant varieties:


"Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title." (Emphasis supplied).


The position of this provision provides an important insight into how Congress envisioned asexually reproduced plants could be patented. Placement of a statute within a certain title or chapter of a federal law, though not necessarily dispositive, is a valid indicator of the legislature's intent in enacting certain measures and employing certain phrases. See Kansas v. Hendricks, 521 U.S. 346 (1997), Kellogg, Brown & Root v. United States ex rel. Carter, 575 U.S. ___ (2015). This law is located at the beginning of Chapter 15, which pertains to patents on asexually reproduced plants, indicating that the "conditions and requirements" imposed on holders of patents for these asexually reproduced plants are those contained in the sections immediately following in the same chapter. The relevant "condition and requirement" is found in 35 U.S.C. §163, which dictates that patents on these materials "shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States."


Monsanto contends that this chapter is inapplicable, since its patents are formally classified as "utility" patents and not "plant" patents. However, the plain text of §161 and §163 states that Congress intended all patents on plant varieties produced by asexual means to be issued within the parameters it unequivocally set up in this chapter. That unambiguous purpose, supported by decades of established case law, must not be frustrated by Monsanto's misplaced confidence - as evinced in its response to my initial complaint - that the mere denomination of its patents as "utility" patents completely immunizes it from the clearly enunciated will of the legislature. As the Supreme Court has continually held since 1819, "It would be dangerous in the extreme to infer... that a case for which the words of an instrument expressly provide, shall be exempted from its operation." Sturges v. Crowninshield, 4 Wheat. 122 (1819). There can be no question that the plants were asexually reproduced, and their nomenclature cannot be prioritized above their nature in an attempt to subvert the law.


II. MONSANTO'S LEGAL LEGERDEMAIN, CONTRASTED WITH ESTABLISHED INTERPRETATION


Not only is Monsanto's crafty construction of this clear, concise statute a transparently deliberate misunderstanding designed to enlarge its profits while unlawfully curtailing traditional farming practices, it is blatantly inconsistent with accepted interpretation of American law. As Justice Brewer once wrote for a unanimous Court:


"The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator... No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute." United States v. Goldenberg, 168 U.S. 95 (1897)


That enduring dictate has been postulated in the past by almost every court, and reaffirmed consistently up to the present. In United States v. Public Utilities Comm'n, Justice Frankfurter noted that courts should not "extrapolate meaning from surmises and speculation and free-wheeling utterances, especially... in disregard of the terms in which Congress has chosen to express its purpose." 345 U.S. 295 (1953). The decision of Alexander v. Worthington conclusively held: "We are not at liberty to imagine an intent and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence." 5 Md. 485. Here as in Bidwell v. Whitaker, "In the statute before us, the language admits of but one construction. No doubt can arise as to its meaning. It must, therefore, be its own interpreter." 1 Mich. 469 (1850). Since 1874, it has been universally accepted that:


"The rule in pari materia does not, however, go to the extent of controlling the language of a statute by the supposed policy of previous enactments. Goodrich v. Russell, 42 N. Y. 177; nor can other statutes in pari materia be resorted to where the language of the one under consideration is plain and explicit. Ingalls v. Cole, 47 Me. 530." T. Sedgwick, Treatise on the Rules which Govern the Interpretation and Construction of Statutory and Constitutional Law 210 (2nd ed. 1874).


More recently, the Supreme Court reiterated: "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court... must give effect to the unambiguously expressed intent of Congress." Chevron v. National Resources Defense Council, 467 U.S. 837 (1984). Twenty-four years later, it reminded those interpreting a law to "Start, as always, with the language of the statute." Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662 (2008), see also Oneale v. Thornton, 6 Cranch 53 (1810). In Lynch v. Alworth-Stephens Co., it was said: "A "plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." 267 U.S. 364 (1925). And in Connecticut National Bank v. Germain, a unanimous Court famously set forth per Justice Thomas:


"In interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there... When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249 (1992)


This echoed the rule once articulated by Lord Tenterden: "We think it much the safer course to adhere to the words of the statute construed in their ordinary import, than to enter into any inquiry as to the supposed intention of the persons who framed it." The King v. The Inhabitants of Great Bentley, 10 Barn. & Cres. 520, see also Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U. S. 1 (1878), and Landreth Timber Co. v. Landreth, 471 U.S. 681 (1985). In Everett v. Wells, we find it again: "It is the duty of all courts to confine themselves to the words of the Legislature-- nothing adding thereto, nothing diminishing." 2 Scott N.C. 531, see also Waller v. Harris ("Words are to be taken in the natural and obvious sense, and not in a sense unnecessarily... enlarged." 20 Wend. 655). Just last year, it was ingeminated that "even the most formidable argument concerning the statute's purposes could not overcome the clarity of the statute's text." Klockner v. Solis, 568 U.S. ___ (2012), cited in King v. Burwell, 568 U.S. ___, ___ (2015). And in Pennington v. Coxe, Chief Justice Marshall set forth the governing rule in these univocal terms:


"That a law is the best expositor of itself... and that the details of one part may contain regulations restricting the extent of general expressions used in another part of the same act, are among those plain rules laid down by common sense for the exposition of statutes which have been uniformly acknowledged." 2 Cranch 346 (1804).


It is a long-standing principle that "where Congress includes particular language in one section of a statute but omits it in another... it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion," yet Monsanto's interpretation of the patent laws outright ignores their monosemous language. Keene Corp. v. United States, 508 U.S. 200 (1993), see also Russello v. United States, 464 U.S. 15 (1983). We must remember in this case that neither the judiciary nor Monsanto enjoys a "roving license... to disregard clear language simply on the view that... Congress 'must have intended' something broader." Michigan v. Bay Mills Indian Community, 572 U. S. ___ (2014). "As long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of a statute" - and it is therefore beyond the authority of any party involved here to question the wisdom of the statutory system Congress has established for the patenting of asexually reproduced plants, but it remains our obligation nevertheless to ensure that this system is obeyed as written. United States v. Ron Pair Enterprises, 489 U.S. 235 (1989). Similarly, in Wright v. Denn, Justice Story held that "the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of intention." 10 Wheat. 204 (1825). Nearly two centuries later the Court reaffirmed: "It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Roberts v. Sea-Land Servs., 132 S. Ct. 1350 (2012).


In United States v. Pulaski Co., it was held that "there is a strong presumption that the literal meaning is the true one, especially as against a construction that is not interpretation, but perversion." 243 U.S. 97 (1917). That statement seems equally applicable here. The pellucid provisions of 35 U.S.C., Chapter 15, show that the legislature clearly did not envision the near-absolute control over agricultural development now held by Monsanto. The chapter does not grant free rein to the holders of patents on asexually reproduced plants, a Congressional choice that was clearly intentional and must not be undermined. Instead, it strikes a carefully considered and delicate balance between agribusiness' incentives for new development and citizens' interest in ensuring that essential staple foods would not fall under the exclusive control of a handful of companies or inventors. The fact that Monsanto's patents are classified as "utility" patents cannot change the fact that their subject matter - asexually reproduced plants - are protected "subject to the conditions and requirements" set out in §163. The location of §161 and its transpicuous language both decisively testify to this.


III. MONSANTO'S MISREADING OF THE PLANT VARIETY PROTECTION ACT


7 U.S.C. §2402, part of the Plant Variety Protection Act of 1970 ("PVPA"), dictates that "The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety, or the successor in interest of the breeder, shall be entitled to plant variety protection for the variety." However, this provision does not pertain to the question at hand for two reasons.


Firstly, the Act only applies to "sexually reproduced" plants, those created by controlled cross-pollination or other techniques to promote desirable characteristics by natural procreation. This description clearly does not cover the complex, synthetic process of manually altering an organism's innate genetic structure. As in the patent laws, the evidence that the legislature intended this logical division is apparent in the words of §2402 itself.


In the context of §2402, "sexually reproduced or tuber propagated" is a highly specific phrase, and its removal would have no effect on the clarity or grammatical structure of the sentence. If its inclusion had been supererogatory, Congress would doubtlessly have removed it during its 1994 or 1996 revisions of the section (found at Pub. L. 103-349 and Pub. L. 104-127, respectively). Instead, it made minor linguistic changes to the section and slightly altered the filing requirements for tuber propagated plants. When these two amendments were passed, asexually reproduced, genetically modified organisms had already existed for years. If Congress had meant these to fall under the PVPA they could simply have deleted the phrase "sexually reproduced or tuber propagated" - or, alternatively, replaced the phrase sexually reproduced" with the phrase "seed" so that the revised section began, "The breeder of any seed or tuber propagated plant variety..." This would have provided Monsanto's asexually reproduced plants lawful PVPA protection. But the legislature chose not to make that change, and therefore the PVPA only offers benefits to "sexually reproduced" plants. Any other reading of these terms would render the word "sexually" in §2402 mere surplusage, and therefore should be rejected. As the Supreme Court stated in Connecticut National Bank v. Germain, "Courts should disfavor interpretations of statutes that render language superfluous." 503 U.S. 249 (1992) (see also Gustafson v. Alloyd Co., 513 U.S. 561 (1995)).


Secondly, even if the PVPA does protect Monsanto's creations to a limited extent, the provision of the MT/SA proscribing farmers from saving and replanting seed still vastly exceeds the PVPA's protections. The vast majority of the soybeans, corn and cotton grown on American farms is not produced for horticultural purposes, and therefore 7 U.S.C. §2543 states:


"It shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm of the person, or for sale as provided in this section. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement."


This unmistakeably protects the right of Monsanto's customers to continue the traditional propagation of ancient and basic cultivated crops. Yet under this framework of laws, Monsanto would retain its rights as the exclusive seller of seeds containing its genetic traits, and these rights do adequately further "the Progress of Science and the useful Arts" as outlined in the Constitution.


IV. IRRELEVANCE OF J.E.M. AND BOWMAN


In its response to my complaint, Monsanto relies on J.E.M. Ag. Supply v. Pioneer Hi-Bred, 534 U.S. 124 (2001), and Bowman v. Monsanto, 133 S.Ct. 1761 (2013), to support its erroneous belief that it possesses unbridled power to use its patents to prevent its growers from saving and replanting seed. It contends that the core of this complaint is a res adjudicata, but in doing so it blatantly overstates the holding of those two relatively narrow cases. I respectfully submit that a pleading reliant on such irresponsibly loose construction be rejected by Arkansas, as reasonable examination of those opinions demands.


The ruling in J.E.M. does not deal with asexually reproduced plants at all and is clearly insufficient to judicially overrule the provisions of Congress in 35 U.S.C., Chapter 15. That case only establishes that "sexually reproduced plants" are intellectual property and are entitled to some patent benefits, and decides that the unauthorized resale of protected seed "for reproductive purposes" is unlawful. See 7 U.S.C. §2543, supra. Neither of those avouchments are at issue here, and therefore any reference to J.E.M. as though its words settled the contentions of this complaint is a manifest attempt to distract from the actual controversy.


Secondly, even though Monsanto raises Bowman as a defense of the MT/SA against any and all objections to the contract's validity, the patent exhaustion doctrine dealt with there has no bearing on this complaint. However, in its haste to apply this case to these unrelated circumstances, it appears to have wholly forgotten the hornbook rule that the judiciary can rule only on the questions brought properly before it. Neither Bowman nor the Federal Circuit ever questioned the scope of Monsanto's patents in light of §161, and therefore the Court that ruled on his claims was procedurally bound to remain silent on that issue. See, e.g., Duignan v. United States, 274 U. S. 195 (1927); California v. San Pablo & Tulare R. Co, 149 U.S. 308 (1893); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Lovasco, 431 U. S. 783 (1977); Little v. Bowers, 134 U.S. 547 (1890); Ashwander v. TVA, 297 U.S. 288 (1936); Wood-Paper Co. v. Heft, 8 Wall. 333 (1868); United States v. Ortiz, 422 U. S. 891, 898 (1975); or even Monsanto's own contentions in Organic Seed Growers and Trade Ass'n v. Monsanto, 718 F.3d 1350 (2013). Favorable court decisions, even those issued from our nation's highest tribunal, have never been treated as blanket commendations or condonations of all the operations and practices of any corporation. I see no reason why their invocation for that purpose should begin now.


V. MT/SA NOT A VALID OR ENFORCEABLE CONTRACT


In §4(f)-(i) of the MT/SA, all growers of Monsanto seeds must agree:


"f. To use Seed containing Monsanto Technologies solely for a single planting of a commercial crop, except in the case of Genuity® Roundup Ready® Alfalfa where a single planting may be used for multiple cuttings.

g. Not to save or clean any crop produced from Seed for planting, not to supply Seed produced from Seed to anyone for planting, not to plant Seed for production other than for Monsanto or a Monsanto licensed seed company under a seed production contract.

h. Not to transfer any Seed containing patented Monsanto Technologies to any other person or entity for planting.

i. To plant and/or clean Seed for Seed production, if and only if, Grower has entered into a valid, written Seed production agreement with a Seed company that is licensed by Monsanto to produce Seed. Grower must either physically deliver to that licensed Seed Company or must sell for non-seed purposes or use for non-seed purposes all of the Seed produced pursuant to a Seed production agreement." MT/SA at 1.


These terms are grounded in the assertion found in section 5(b) of the MT/SA, infra, that "Monsanto Technologies are protected under U.S. patent law." However, Monsanto's extraordinarily loose construction of these patent laws is plainly repugnant to their actual meaning. This deceptive statement appears highly likely to mislead growers as to the rights they actually retain under the vaguely invoked laws, and defraud them into waiving liberties they are unaware they have.


The mere fact that the growers signed the MT/SA fails to validate its usurious terms. Any threadbare defense that Monsanto enjoyed an unrestrained freedom to contract with its growers has been contradicted by the Supreme Court in its decisions dating back to 1908 (Muller v. Oregon, 208 U.S. 412). In Norman v. Baltimore & Ohio R. Co., it opined that "Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them." 294 U.S. 290 (1935). In Nebbia v. New York (291 U.S. 502 (1934)), it wrote that "government cannot exist if the citizen may at will use his property to the detriment of his fellows," thereby sustaining Justice Holmes' 1923 view that


"Contract is not specifically mentioned in the text we have to construe. It is merely an example of doing what you want to do, embodied in the word 'liberty.' But pretty much all law consists of forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts." Adkins v. Children's Hospital, 261 U.S. 525.


In Chicago, Burlington & Quincy R. Co. v. McGuire, it held: "There is no absolute freedom to do as one wills or to contract as one chooses... Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." 219 U.S. 549 (1911). In 1943, it described American law as "a soil in which the laissez-faire concept or principle of noninterference has withered, at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." West Virginia v. Barnette, 319 U.S. 624. And in 1937, it enunciated per Chief Justice Hughes:


"The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people." West Coast Hotel Co. v. Parrish, 300 U.S. 379.


See also Holden v. Hardy, 169 U.S. 366, Crowley v. Christensen, 137 U.S. 89, Patterson v. Bark Eudora, 190 U.S. 169, Jacobson v. Massachusetts, 197 U.S. 11, Mondou v. New York, N.H. & H.R. R. Co, 223 U.S. 1, Knoxville Iron Co v. Harbison, 183 U.S. 13, Booth v. Illinois, 184 U.S. 425, and McLean v. Arkansas, 211 U.S. 539.


Not only is freedom of contract a relative concept, its invocation requires a valid contract at the very least - and the MT/SA fails to meet that standard. The requirement that assent to a binding agreement be an informed and rational choice is one of the oldest and basic tenets of contract law. A waiver of any protections or privileges by contract or otherwise, particularly those economic and social liberties secured by the Due Process Clause, must be made "voluntarily, knowingly and intelligently." Miranda v. Arizona, 384 U.S. 436 (1966), see also Culombe v. Connecticut, 367 U.S. 568 (1961). A promise or bargain made in the absence of this mutual educated voluntariness - frequently referred to as consensus ad idem or a "meeting of the minds" - is no contract at all.


This simple rule is not in any way negated by the rise of mass commercial contracts, such as the MT/SA, that corporations enter into with hundreds or even thousands of their consumers. If this new social reality has any effect on established common law at all, it only renders the requirement more essential, lest large entities like Monsanto abuse their inherent advantage in the bargaining process. As was asked in Henningsen v. Bloomfield Motors: "Where can the buyer go to negotiate for better protection? Such control and limitation of his remedies are inimical to the public welfare and, at the very least, call for great care by the courts to avoid injustice through application of common-law principles of freedom of contract." 32 N.J. 358 (1960). See also Siegelman v. Cunard White Star, 221 F.2d 189 (2nd Cir. 1955) ("Standardized contracts have been described as those in which one predominant party will dictate its law to an undetermined multiple rather than to an individual. They are said to resemble a law rather than a meeting of the minds").


These contracts are also deemed unenforceable by Arkansas law, which says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." Uniform Commercial Code, §2-302. The accompanying official commentary provides a comprehensive definition of "unconscionable:"


"This section is intended to allow the court to pass directly on the unconscionability of the contract or particular clause therein and make a conclusion of law as to its unconscionability. The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract."


The apposite statutes have remained unchanged since 1998, but Monsanto continues to peddle the MT/SA despite their unambiguous prohibition of such behavior.


The MT/SA clearly does not meet these requirements. In a society where criminal suspects must be diligently educated as to their rights to remain silent and to the advice of counsel - information most Americans already know - any expectation that farmers should be intimately acquainted with the terms of obscure legislation seems inconsistent and unreasonable. As Justice Jackson noted from the bench in Federal Crop Ins. Corp v. Merrill, "No farmer worth his salt would waste any time reading a dreary publication like the Federal Register." 332 U.S. 380 (1947). It is doubtful that most American growers are any more likely to be acquainted with the minutiae of the patent laws.


VI. MONSANTO'S MONOPOLIZATION


Most cases brought under the antitrust laws require arduous discovery and a flurry of subpoenas before a prima facie case of monopolization begins to emerge. However, the evidence of Monsanto's attempts to restrain trade is much more publicly available - simply enlarge the "fine print" of MT/SA from its actual size (at which the font of the contract is less than one-fifth of a centimeter high), and the conspiracy becomes clear.


In §4, the farmer agrees to all of the following conditions, without any ability to bargain or negotiate the terms of the pact:


"d. To acquire Seed containing these Monsanto Technologies only from a seed company with technology license(s) from Monsanto for the applicable Monsanto Technology(ies) or from a licensed company's dealer authorized to sell such licensed Seed.

e. To acquire Seed only from authorized seed companies (or their authorized dealers) with the applicable license(s)...

g. Not to save or clean any crop produced from Seed for planting, not to supply Seed produced from Seed to anyone for planting, not to plant Seed for production other than for Monsanto or a Monsanto licensed seed company under a seed production contract.

j. Grower may not plant and may not transfer to others for planting any Seed that the Grower has produced containing patented Monsanto Technologies for crop breeding, research, or generation of herbicide registration data. Grower may not conduct research on Grower's crop produced from Seed other than to make agronomic comparisons and conduct yield testing for Grower's own use. Monsanto makes available separate license agreements to academic institutions for research...

m. Grower agrees... to deliver Genuity® Roundup Ready® Flex Pima cotton to an Arizona, California, New Mexico, or Texas gin that is on Monsanto's approved list...

n. To provide Monsanto copies of any records, receipts, or other documents that could be relevant to Grower's performance of this Agreement... Such records shall be produced following Monsanto's actual (or attempted) oral communication with Grower and not later than seven (7) days after the date of a written request from Monsanto.

o. To identify and to allow Monsanto and its representatives access to land farmed by or at the direction of Grower (including refuge areas) and bins, wagons, or seed storage containers used or under the control or direction of Grower, for purposes of examining and taking samples of crops, crop residue or seeds located therein. Such inspection, examination or sampling shall be available to Monsanto and its representatives only after Monsanto delivers or mails to the Grower a written notice at least seven (7) days in advance, and Monsanto also has reasonably attempted to discuss the visits with the Grower in advance of the visit.

p. To allow Monsanto to obtain Grower's internet service provider ("ISP") records to validate Grower's electronic signature, if applicable. To use on crops containing Roundup Ready®, Roundup Ready® 2 Technology, or Roundup Ready® Flex only a labeled Roundup® agricultural herbicide or other authorized non-selective herbicide which could not be used in the absence of the Roundup Ready® gene."


In light of the actual meaning of 35 U.S.C. §161 and 7 U.S.C. §2402, these terms are a flagrant violation of antitrust law and an infringement of growers' rights to the due enjoyment of their own property. As was said in Federal Trade Commission v. Algowa, "Fair competition is not attained by balancing a gain in money against a misrepresentation of the thing supplied. The courts must set their faces against a conception of business standards so corrupting in its tendency." 291 U.S. 67 (1934). Therefore, Monsanto's routine fraud, harassment, and policy of prosecuting groundless lawsuits on the basis of its thinly disguised chicanery must be terminated.


VI. STANDING


Lastly, in the final paragraph of its answer, Monsanto disputed my standing to file the complaint at the heart of this matter. Their argument on this issue seemingly insists that, in order to properly make the appropriate law enforcement authorities - in this case, those charged with the responsibility of preserving Arkansas growers' economic and social rights - aware of wrongdoing within their jurisdiction, a complainant is required to be a victim of the fraud or crime. I submit that this supposition is so objectively unreasonable that it does not require further refutation. See, generally, 4 W. Blackstone, Commentaries 12, Carpenter v. State, 62 Ark. 286 (1896), State v. Wilson, 80 Vt. 249 (1907), Suell v. Derricott, 161 Ala. 259 (1909), State v. Biddle, 124 Atl. 804 (Del. 1923), 18 U.S.C. §4.


CONCLUSION


The unequivocal wording of 35 U.S.C. §161 admits of no doubt that Congress intended patents on asexually reproduced plants to be issued "subject to the conditions and requirements" found immediately thereunder. The MT/SA, though masquerading as an attempt to ensure the security of Monsanto's scientific innovations, is actually an exorbitant contract that significantly exceeds the protection afforded to the inventors of asexually produced plants under federal law, and therefore should be nullified under the Uniform Commercial Code. As then-Judge Cardozo said in 1928, courts should decide cases "not [on the basis of] what has been done under the statute, but what may reasonably be done under it." In re Richardson, 247 N.Y. 401. Grave injustice would inevitably result from allowing Monsanto to continue mongering their unconscionable "agreements," and therefore Arkansas must act promptly to prevent the perpetuation of Monsanto's patently false claims within its borders.

Conscious Commitment: Monsanto Has Spoken

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Over the past months I have told you about my campaign to end Monsanto Technologies' unlawful monopoly on genetically modified agricultural seed, largely attained through its fraud as to the ambit of its United States patents. This objective has led me, at various stages, to enlightening calls with family farmers, conversations with former plaintiffs, consultations with First Amendment experts, correspondence with journalists, and complaints directed to federal and local antitrust and consumer protection officials. The authorities' response has varied widely - some states, like Missouri (where Monsanto is incorporated), disclaimed any jurisdiction to act over the matter - but Arkansas has acted to protect its growers from this deception, and recently referred my complaint to Monsanto.

Their response:

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I'll share my response - and the actual law of this controversy - with you shortly.

Conscious Commitment Officially Endorses...

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The Republican convention is now in full swing, and the GOP is coming around to the idea of the Trump family. Hillary Clinton is now unavoidably the Democratic contender, and is vetting potential veeps as she prepares for her own party's powwow in a few days. Since the lines are now drawn and the general election draws nearer, it is the logical time for the Conscious Commitment campaign to announce its support for...

...Nobody.

Here's why. Hillary Clinton might have revamped her rhetoric to include progressive platitudes about her allegiance with the consumer, but her record reveals her actual political priorities. Her prolonged consideration of Tom Vilsack - a notorious agribusiness lackey who has previously used his official capacity as Iowa Governor to bail out combined GMO/pharmaceutical corporations in the face of federal fines - highlights her readiness to allow the industry's deception to continue uncurbed. But her own actions in 2014, when she accepted $335,000 to speak to Monsanto's lobbying group and subsequently gave them their money's worth, signal her support for their lawless practices even more clearly:

Hillary Monsanto.jpgDonald Trump, though his brashness may have offended even the brazen biotech industry, has been no more courageous in opposing their fraud. During the primaries this characteristically puerile but undeniably anti-GMO tweet briefly appeared on his feed:

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He quickly backed down from even this trivial statement, deleting the post when Monsanto expressed its displeasure and blaming a hapless intern for its appearance. We would like to note that there would be nothing wrong with the post's removal if it had been taken down because of its inappropriate tone -- however, his willingness to repeatedly post similarly jejune messages after the incident signals that he was merely kowtowing to the crops cartel. 

Clearly, neither of these candidates has the fortitude to either turn down Monsanto's generous oratorical invitations or stand by their sentiments and staff in times of controversy, and therefore "Conscious Commitment" cannot endorse either in good conscience.

(Our blog expresses thanks to Food Democracy Now for the graphic with Hillary's event flyer)

Why Barratry Should be Legalized

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Recently, there have been reports that members of several progressive grassroots organizations involved in campaigns against the pharmaceutical industry's fraud, such as the National Consumers League, are being investigated for attempted barratry. This is the crime of inciting a lawsuit by contacting a potential plaintiff who might not otherwise be inclined to sue, usually without any financial benefit for the guilty party. Most states have a statute prohibiting such activity to discourage ambulance-chasing and other questionable practices. However, in the past century these laws have been invoked almost solely as a tactic to suppress legitimate causes from the litigation connected to the Montgomery bus boycott to the campaign to hold tobacco companies accountable for false advertising. Not only is this selective enforcement unethical, the concept of barratry as a crime subverts some of the most elementary tenets of our justice system.

Firstly, this system provides a person who knows of such duplicity with the illegal choice to make affected citizens aware they are being deceived, or the more inequitable alternative of allowing an unlawful practice to continue untrammeled. Often in cases of widespread corporate wrongdoing, the facts are deliberately couched in esoteric phraseology which renders the affected consumers entirely unable to form a clear picture of their own rights and obligations. Therefore the continuance of square business dealings is to some extent reliant on the willingness of citizen activists to broadcast their discoveries to those impacted by chicanery, so that due action may be initiated.

Secondly, the courts' strict requirements for standing to sue are partially to blame for this quandary. The case of Organic Seed Growers and Trade Ass'n, et al. v. Monsanto, No. 13-303, is an illustration of this. The controversy arose from GMO seed company Monsanto's pattern of prosecuting organic farmers for alleged patent infringement because of cross-pollination from neighboring fields and other forms of inadvertent contamination. The Association and co-plaintiffs sought an injunction on behalf of their 300,000 growers seeking an injunction against this harassment, but the Federal Circuit dismissed the case because Monsanto had never threatened suit against or demanded payment from the Association itself. Not only did this decision hamper any relief in these particular circumstances, it ended one of the only unquestionably safe means to coordinate legal action. Since an organization's right to protect its interests in its own name were thus denied, such institutions are effectively compelled to reach out to individual members in order to organize court challenges - and thereby expose themselves to barratry charges.

Finally, the long-standing principle that neglect to report knowledge of a crime already (or about to be) committed also deepens the dilemma - especially where public officials have declined to act on a matter of grave public importance, such as the overreach of Monsanto or the pharmaceutical cartels. In many instances justice would never be served if injured parties were not made aware of their rights, leaving the unlucky fact-finder with the choice to become either the principal in an instance of barratry or an accessory after the fact in an instance of corporate chicanery. That action on these widespread issues is discouraged or even punished is deeply ironic. If the perpetrator of a common larceny were skillful enough to convince his victim, when his crime was discovered, that he was legally entitled to commit that felony - in such a case as that, any bystander who failed to intervene would doubtlessly find himself the recipient of universal censure for his disregard of basic justice. Cases of corporate fraud, wholesale denial of civil rights, or egregious injury are no different, and yet an observer who speaks out in those instances will be rewarded only with the fear of prosecution.

The prohibition on barratry will probably remain law for the foreseeable future, but simply because it is jurisprudence does not mean it is justice. In my opinion, something is fundamentally wrong with a judicial and legislative organization that has readily overturned or repealed policies such as the strict corporate liability doctrine or the Glass-Steagall banking responsibility law, but leaves this outdated provision on the books to the detriment of true social and economic equality

Update: Missouri's Inaction on Monsanto

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Almost two months ago, we informed you of the duplicitous practices of Monsanto, Inc, which sells its genetically modified seeds to its growers on the condition that they sign a uniform contract in which Monsanto propagates the supposal that its patent protection extends farther than it does under federal patent laws. Once farmers sign this agreement, even though it is predicated on a fraudulent pretense, they are barred from saving and replanting seed grown from Monsanto crops - even though they have the right to do so under 35 U.S.C. §163.

Since then, I had reported Monsanto's misconduct to the Consumer Protection Division of the Missouri Attorney General's office, in the hope that they could put an end to this chicanery. Since Monsanto is incorporated in Missouri and actively selected that state in the "Choice of Law" provisions of their unconscionable contract, it follows that the Division has ample jurisdiction over this pattern and practice of misconduct. Yet, in responding to my complaint, they disavowed any authority to act on the matter:

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I understand that the State's decision to pursue the issue or not is a matter of prosecutorial discretion -- I am simply sharing the rather interesting grounds they chose to justify their inaction.

Roberts (R-Monsanto) and Stabenow (D-Syngenta) Pass Deal

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After years of dismissing activists' ongoing initiative to create consistent GMO labeling standards, the Senate has finally exercised its plenary power and approved a measure that would impose uniform requirements on the food industry.

There's only one little problem.

The proposed law, known as the Roberts-Stabenow bill, does not actually replace the comprehensive state laws it strikes down with any provision for the clear labeling of genetically altered ingredients directly on the package. Instead, it allows corporations to withhold this information by substituting a web address, telephone number or QR code - a form of barcode that can only be scanned and interpreted by certain cell phone apps - for the simple text advisory that already appears on many boxes due to state statutes. This impractical loophole is clearly designed to keep consumers from accessing the very information the Senate supposedly just recognized their right to, and as such is an unreasonable restriction on citizens' liberty to make free and informed personal choices. Even wealthy shoppers will face the considerable obstacle of having to consume minutes, data, and inordinate amounts of time to scan a box, find the correct page on a provided corporate website, or navigate an automated phone system for every article in their carts, when in many states they could formerly turn the package to read the desired statement.

The implications for lower- and middle-class consumers, whose freedom to choose is already hampered by the exorbitant pricing and limited availability of organic foods, are even worse. Many families simply cannot afford the unlimited cellular plans that such incessant telephone calls, usage of phone browsers, and scanning of QR codes would involve; and some do not possess the necessary technology at all. And the alternatives - remembering the corresponding URL for every purchase and visiting every appropriate website, or dialing a long list of numbers at home to listen to robotic messages - cannot possibly take place prior to purchasing the products in question, and therefore do not serve in any way to inform the customer's purchasing decision. This disparate impact is yet another reason that the compromise contained in Roberts-Stabenow has no practical positive effect on the shopping process, in reality.

Obviously, our elected officials have once more chosen duplicitous corporations like Monsanto over the well-being of their constituents. This Senatorial sellout can still be rejected by the House of Representatives, though, and it is imperative that they do so. Passage of the law would hinder any future attempts to close the technological loopholes, and place an unfair burden on the consumer in the simple endeavor to retain some authority over our own bodies.

Say No to TPP: Brexit and US Trade Policy

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It's official. 51.9% of British citizens decided to leave the European Union in a landmark referendum, choosing national sovereignty and control of their own policies over their forty-three year bond with continental Europe. This decision was definitely influenced somewhat by the ongoing migrant crisis, but also stemmed from widespread frustration with the trend of globalization. Britain decided that the benefits of closer integration with foreign countries - the job creation and international harmony that free-trade deals were supposed to create, but that never materialized - were outweighed by the costs - the loss of many jobs, an influx of imported goods, and the partial loss of national independence.

Here in the United States, we are facing a similar decision on the future of our jobs as a vote on the proposed Trans-Pacific Partnership looms, but what we may not realize is that we as citizens have the same power Britons just exercised.

According to this document's preamble, it "promotes economic integration to liberalize trade and investment, bring economic growth and social benefits... reduce poverty and promote sustainable growth." Apparently, our government and the corporations it is speaking for here do not expect us to read further. Because if we do, we will notice that this, too, was likely generated in the same specious slippery spirit as all those other things that don't deceive us. We will refuse to be fooled. We will realize that this agreement does nothing to prevent the mass exodus of our American jobs; it merely bids them adieu as the gangplank goes up and they go puffing away. It does nothing to protect the foreign laboring class, give them decent hours or the right to improve their situation through collective bargaining; it merely gives the dignified speech at the cornerstone laying of another faraway sweatshop. It does nothing to hinder the commonplace crimes against our persons, the toxic air and corrupted foods we accept for lack of a choice; it merely sanctions the conspiracy of silence keeping us ignorant of what we're doing to ourselves. And it sets up a subtle satire of the justice system, allowing corporate lawyers to eviscerate our progressive statutes without ever setting foot in U.S. courts, while simultaneously subjecting regulators to the twists and turns of tangled, undeveloped foreign legal systems if they want to enforce the more liberal provisions.

They insist that all this will do us a service, provide a much-needed boost to our economy. But by doing away with the vilified Reign of Tariffs, they are only enabling foreign governments and corporations to encroach on our independence. But we can defeat this if we pull together to remind Congress that they ultimately answer to the people that trusted them to serve us - even if all we could contribute to their campaigns was our support.

We can continue to fight for our economy and our rights as consumers. We can Say No to TPP.

Conscious Commitment: Inmar, Inc.

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coupon.jpgYour wallet speaks for itself. Evidence of Inmar, Inc.'s dominance in the coupon industry is everywhere. Blazoned under the colorful trademarks of everything from breakfast cereal to batteries; stacked beneath the flashing lights of that dispenser on the grocery store aisle shelf; inserted in the newspaper curled up in that mailbox; folded and crumpled in that disorganized folder; printed on glossy vibrant paper and plastered onto the boxes composing that supermarket display.

Just last April, Inmar released a statement announcing that it had taken over coupon processing services for Procter & Gamble brands. This development cements the existing diarchy Inmar and its supposed competitor but actual collaborator, Valassis Communications, enjoy over this industry. In the statement, Inmar asserts that P&G formerly handled its own coupons, but this has not always been the case. A 2006 10-K form Valassis filed with the SEC states that P&G accounted for over 10% of that company's income the previous year, indicating that P&G has merely shuttled its business between the two corporations instead of comprising a third major player in the coupon-clearing market.

In the same 10-K form, Valassis names Inmar as one of its main competitors, but this claim is plainly refuted by the business relations they openly sustain. In its capacity as the owner of RedPlum, a mailing distributing coupons held by various companies directly to consumers, Valassis openly and actively aids Inmar in disseminating its coupons. Clearly this is not the aggressive competition one would expect from two companies which jointly "control approximately ninety-five percent (95%) of the total vendor coupon redemptions" (Compl. §16, 15-4434 (JLL), Dist. NJ (1015)).

The pattern of monopolization does not stop there, however. Though Inmar's coupon redemption and product return business is its most visible enterprise to consumers, it is certainly not its only venture. It is actually the predominant figure in the pharmaceutical returns market as well, and our research into its practices indicates that the leverage it enjoys as a result of its prominence could have far-reaching consequences for citizens compelled to trust it with their health.

It was a minor incident, and never should have been the major controversy it turned into. In November of 2008, Johnson & Johnson and its affiliate, McNeil Consumer Healthcare, noticed that several lots of their product Motrin failed to satisfy their manufacturing standards and were defective. This news immediately followed a string of recalls of other popular Johnson & Johnson products, including widely used cold and allergy medicines. Presumably to avoid the negative publicity that would result from expanding the recall to include the faulty Motrin, Johnson & Johnson decided to keep their findings secret. To do this, they formed a plan to send operatives into retail stores posing as customers, who would then buy back as much Motrin as possible. However, consumers who had already bought the defective Motrin would not be notified in any way of the problems.

Johnson & Johnson then hired Inmar to carry out this clandestine design, rejecting bids from several companies to handle the recall openly. Inmar promptly mobilized its employees and contractors, instructing them:

"You should simply 'act' like a regular customer while making these purchases. THERE MUST BE NO MENTION OF THIS BEING A RECALL OF THE PRODUCT! If asked, simply state that your employer is checking the distribution chain of this product and needs to have some of it purchased for the project."

Approximately five thousand convenience stores were searched in this fashion. The first two hundred and fifty stores yielded 595 vials, but the actual number of defective Motrin remaining on the market was dramatically higher - in one state alone, seven hundred and eighty-seven packages remained missing even after Inmar's feeble attempts to rectify the situation.

The recall was finally made public in February of 2010, over a year after Johnson & Johnson became aware of the problem and over ten months after Inmar became involved in the cover-up. Congressional hearings, civil lawsuits and criminal prosecutions ensued, but though Johnson & Johnson was made to take responsibility for its misconduct, Inmar escaped any meaningful penalty.

Now, five years after the federal firestorm subsided, Inmar is still in the pharmaceutical returns business, a job mostly composed of disposing waste, juggling returned or expired merchandise, and managing recalls. On its website, it proudly boasts that it provides these services to twenty-four thousand retail pharmacies (out of approximately twenty-eight thousand in the country), giving it control over 86% of the market. As Inmar has proven in the past, this anticompetitive situation could prove injurious to consumers which may never have heard its name, but still entrust it with their well-being every time they purchase the simplest of medications.

My Conscious Commitment to a Free Market

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thosedays.jpgCapitalism.

The word conjures up mental images of vast fields of low-lying factories turning out various commodities at unprecedented speeds. A board of directors, assembled on the fourteenth floor of some glass-and-steel temple of merchandising, discussing annual returns. A network of spidery railroads and ship routes and interstate highways, spun first around the continent and then the globe. A 3D model of the "next big thing," revolving slowly in circles on brightly lit screens. Firm handshakes, locked vaults, and indecipherable numbers and abbreviations whizzing by in a procession of green and red lights. An entire culture built around the acquisition of assets and influence alike, a fast-paced game with few rules and a universally coveted prize of market dominance.

However, this conception - of industries dominated by billion-dollar enterprises - cannot rightly be called by the term "capitalism." That word, in its pure and original context, denotes a free market, an economic environment requiring only ingenuity, efficiency, and hard work for success. That was conceived in a time of greater opportunity and untapped resources, when competition and the human drive to improve products, methods and ideas were essential to continued national expansion. That was reality before the age of consolidation, prior to the protracted decline of interpersonal commerce.

The national struggle to preserve capitalism as it was initially envisioned began in earnest in 1890, with the passage of the landmark Sherman Anti-Trust Act. This officially criminalized "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations" (15 U.S.C. §1), and was the first significant recognition of the right to a free economy. Corporate actions such as price-fixing, collaborating to eliminate competitors, and merging to dominate an entire field were thereafter prosecuted as infringements of this right. In the years following the law's enactment, it was used against railroad titans, banking institutions, manufacturers of overpriced necessities, and those seeking to further augment their inherently unequal bargaining power in the making of employment contracts. In 1914, it was buttressed by the Clayton Act, which protected labor unions from the threat of antitrust suits while strengthening the provisions targeted at corporate offenders and their powerful executives. Since then, the government's vigilance in ensuing compliance has fluctuated based on a number of factors, primarily the political climate and the courts' ideological tendencies.

Even though antitrust has dropped out of the national spotlight in the past decades, fair but uncompromising enforcement remains vital to the collective prosperity of both citizens and businesses, spreading wealth across an industry and its workers that would otherwise be concentrated in the coffers of a solitary company.

I. Monopoly Eliminates Jobs

In twenty-first century America, unemployment and low wages are major obstacles in the effort to restore the economy. Deleterious deals such as NAFTA and the proposed TPP shrink the domestic market by exporting jobs, but they are only part of the problem. Consolidation is another major factor in the stagnation of salaries and the dearth of available employment. 

Monopolization is a relatively simple phenomenon: two separate companies, each engaged in the manufacture of the same materials, separately employ approximately five hundred workers each. Then a merger is agreed on, and the number of workers necessary to operate one process, even if it turns out more products than one of the original two lines at a faster rate, will still be significantly lower than the combined total of the existing two companies' workforce. This reduction in the number of open jobs affects a living wage in two ways. Firstly, it lowers the wage outright by increasing the number of willing candidates for extant positions and denying dissatisfied applicants the opportunity to work for a nonexistent competitor. Secondly, it gives the new conglomerate increased power over the prices of its products, decreasing the purchasing power of the already substandard rate.

Though the political promises of the 2016 campaign have largely revolved around statutory increases in the minimum wage and the expansion of welfare benefits, these measures only serve to shift the costs of unlawful corporate practices onto the government. The monopolies have grown secure in their own dominance and lost all incentive to develop or maintain quality products, fair prices and wages, and accountability for any defects in their services, and these surface symptoms of a fundamentally blighted economic system cannot be remedied by relieving corporations of their core social functions and responsibilities.

II. Competition as a Civil Right

The relation between a free society and a free economy has been trivialized in recent years by the classification of antitrust enforcement as a regulatory matter. Violations of the Sherman Act are treated as mala prohibita - acts which are made illegal by statute, but which are not inherently immoral - and corporate convicts can officially expiate their wrongdoing with insignificant fines, suspended or nonexistent sentences, lenient civil settlements, and a complete lack of censure from their peers. The quiet and comparatively painless resolution of cases in an administrative and private, rather than adversary and public, venue fails to discourage recidivism and prevent similar transgressions by other companies. Therefore, though the streamlining of the process has facilitated secretive and speedy settlement, it has led to grave mistakes in the way monopolization is perceived and prosecuted.

The Due Process Clause of the Fifth and Fourteenth Amendments explicitly safeguards "life, liberty, and property," unequivocally prohibiting unreasonable encroachment on the right to acquire and maintain private assets. This is a double-edged statement, however, and its meaning has varied with the vicissitudes of over two hundred years of social changes. In the past it has been interpreted to preclude any regulation interfering with absolute "liberty of contract," even such essential measures as the minimum wage, the eight-hour day, and the Sherman Act (see Lochner v. New York, 198 U.S. 45 (1905), Morehead v. New York ex rel. Tipaldo (298 U.S. 587 (1936)). After the ensuing corporate lawlessness and rampant monopoly led to the Great Depression, this dogma was re-examined, and it was conclusively established that "the Constitution does not make conspiracy a civil right." Dennis v. United States, 341 U.S. 494 (1952). In its modern meaning, the Due Process Clause simply preserves the right to economic as well as political pluralism.

The liberty to conduct business without interference or intimidation from larger and more powerful private entities remains a vital constitutional right, however. See Vietnamese Fishermen's Ass'n v. Knights, 543 F.Supp. 198 (S.D. Tex 1982). Title 42 U.S.C. §1983, part of the Civil Rights Act of 1964, conclusively provides:  "Every person who... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."  The elimination of racial discrimination, the Act's main purpose, has largely been achieved - but its broader objective, the protection of equality on all fronts, requires a freedom of enterprise incompatible with the industrial oligarchy that defines our current economic landscape. The fight for our fundamental civil rights has resulted in monumental progress on multiple fronts, but it is far from over; our country cannot be truly free as long as this neglected element of due process is violated openly and daily.

Conclusion

To meet the burden of proof in antitrust cases, plaintiffs must "present direct or circumstantial evidence which reasonably tends to prove that the [defendants] and others had a conscious commitment to a common scheme, designed to achieve an unlawful objective." Monsanto Corp. v. Spray-Rite Serv. Corp, 465 U.S. 752 (1984). To honor the provisions of the Sherman Act by showing an equal level of "conscious commitment" towards a lawful and progressive objective, I am hereby launching a series to expose monopoly, explore the statutes that govern it, and examine the enforcement process in this country.

Of Stolen Cartoons, Unsigned Indictments, and Denied Petitions

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Just yesterday, the Supreme Court denied review in Brooker v. Alabama, the Eighth Amendment case of a seventy-six year old man condemned under Alabama's "three strikes" law to life in prison on nonviolent charges. Despite compelling briefs from the petitioners and the obvious inequity of the sentencing practices, the Court chose continued inaction over a much-needed second look at our outdated, largely ineffective justice system.

This is not the first time that our nation's highest tribunal has declined to address the problem and consider all the relevant constitutional issues. However, it is still highly surprising that it would avoid the issue amid both the ongoing national debate over mandatory minimums and the changing political reality of criminal justice reform.

$150 = 50 Years


In November of 1995, an Army veteran named Leandro Andrade walked into a California Kmart store and left with five children's videotapes, which he had not paid for. Fourteen days later, he repeated the performance at another Kmart location, and was charged with shoplifting nine tapes worth, in all, roughly one hundred and fifty-three dollars. The theft of Batman and Casper is not usually worthy of much mention in the important debate over the criminal justice system, and it should never have been a major issue. After all, petty theft is a misdemeanor that usually carries only six months in jail - not two consecutive terms of twenty-five years to life, which is what Andrade got.

But he had two prior convictions on his record, and therefore was a casualty of the "three strikes" laws. These statutes impose mandatory minimum penalties on those already convicted of two felonies, no matter how trivial the third infraction is. Their proponents argue that they effectively deter habitual offenders and increase accountability for crime; but, in reality, they often result in blatantly disproportionate sentences that hinder the goal of eventually reintegrating transgressors into society.

In a later challenge, the Ninth Circuit granted relief to Andrade on the grounds that his sentence was "cruel and unusual punishment," and the Supreme Court subsequently agreed to hear the case. It appeared to be a clear-cut example of inordinate, unrealistic penal practices, and the lower court's decision was almost universally expected to stand. However, the Court chose to reverse, reasoning per Justice O'Connor that because a possibility of parole still existed (in 2046, when Andrade would be eighty-seven years old), the sentence was not "contrary to, or an unreasonable application of, clearly established Federal law" (28 U.S.C. §2254). By invoking an ordinary statute to avoid addressing a constitutional question, the Court narrowed its own ability to grant relief further, resulting in the untrammeled long-term incarceration of relatively petty offenders across the country.

However, even though the Court may have rejected the Eighth Amendment argument against mandatory sentencing, the Constitution and common-law decisions interpreting it still indicate the illegality of the practice.

Separation of Powers

Despite the ruling in Lockyer v. Andrade, the courts have always recognized that the ability of a judge to tailor the law to the facts of a case is essential to substantive justice. As Justice Holmes famously observed: "The life of the law has not been logic; it has been experience... and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics" (The Common Law, 1881). Justice Frankfurter seconded this from the bench when he called due process "the least frozen concept of our law -- the least confined to history and the most absorptive of powerful social standards of a progressive society" (Griffin v. Illinois, 351 U.S. 20-21 (1956)). Now, though, the legislature encroaches on that judicial function through its ill-considered mandatory minimum laws. Not only does this interfere with the historical procedure of the courts, but it violates the constitutional system of checks and balances.

The 1965 case of United States v. Cox concerned a U.S. Attorney threatened with contempt of court after he refused to sign an indictment, even though he was acting under the direction of then-Attorney General Nicholas Katzenbach. In a landmark decision, the Fifth Circuit Court of Appeals decided that the prosecutor was a member of the executive branch, and therefore that the contempt order unlawfully infringed upon the separation of powers (342 F.2d 167). The mandatory minimum laws have a similar effect, forcing judges to impose heavy penalties regardless of the dictates of individualized justice.

As Blackstone once noted in his Commentaries, "In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty." 1 B.C. 146. In today's system of compulsory inclemency, it appears that this basic tenet has been forgotten.

Eight Men In - Garland Stonewalled By Reckless Republicans

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herblockcp.jpgJust yesterday, President Obama nominated appeals judge Merrick Garland, currently of the D.C. Circuit Court of Appeals, to replace the late Antonin Scalia on the Supreme Court. This nomination, made while the Court was on break, immediately rekindled debate over whether a lame-duck President should be allowed to appoint candidates of his choice to the Court. Ironically, though, while Judge Garland has been publicly cast as an unpredictable centrist, it is the GOP's politicians who have done the majority of the swing-voting in this situation: first supporting him and praising his qualifications for years, then vowing to keep him off this country's highest bench at all costs.

However, in refusing to even consider Judge Garland, these conservatives have failed to realize that they could be worsening their own party's position. With each new contest, it seems increasingly unavoidable that Hillary Clinton will be the Democratic nominee. For the Republicans, Donald Trump is likely unstoppable, having already aggregated 673 out of 1,237 necessary delegates (that's a 119-delegate lead over both his opponents combined). In all probability, however, the billionaire insurgent will perform poorly in the general election, forcing the hard-liners to confirm a potential Justice named by a Democrat. And if they succeed in compelling Obama to withdraw Garland's name, they could face an even more liberal appointee.

Another misconception about this development is that Democrats should be unhappy with the choice simply because he was not the farthest-left candidate on the short list. To be sure, his experience as a federal prosecutor in many high-profile domestic terrorism cases may have helped to shape his views on criminal procedure, which would probably be solidly to the right of the Court's current liberal wing. However, his record on the D.C. Circuit still evinces a more progressive viewpoint on those issues than that of Sri Srinivasan, who has never overturned a single criminal conviction.

In labor law cases, Judge Garland has consistently upheld the NLRB's decisions and safeguarded the liberties of workers and the right to collective bargaining. His environmental record shows a similar deference to administrative rulemaking, even when taking these stands entails creating disparities between circuits or even weakening the effect of a deleterious Supreme Court decision. This regard for substantial justice could only benefit the Court and the nation.

In a final note, the Republicans regularly attribute to their own party a profound concern about governmental overreach and a deep belief in the separation of powers, but their refusal to perform a necessary part of the political process belies their rhetoric. In this polarized climate, both parties would do well to heed Justice Frankfurter's comments on the comparatively minimal political gridlock existing in 1952: "It would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world." (Youngstown v. Sawyer, 343 U.S. 579). Or they could start by simply acknowledging that, as Justice Jackson (who once occupied the now-vacant S.C. seat) once said, "Process which is a mere gesture is not due process." (Mullane v. Hanover, 339 U.S. 306).

While There Is a Criminal Element...

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serverpic.jpg...Socialists have, historically, been lumped in with it. Many liberals have noted the uncanny parallels between Bernie Sanders' current campaign and the Presidential bid that Eugene Debs made from his prison cell in 1920, after being incarcerated in the Red Scare crackdown on the political left. As he famously declared after his conviction, he was only jailed for his belief in the equality of all people: " Your Honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it, and while there is a criminal element I am of it, and while there is a soul in prison, I am not free." This time around, however, it isn't Sanders who faces a potential run-in with the law on his road to the White House; rather, it is his opponent, establishment favorite Hillary Clinton.

Though Hillary herself does not seem very concerned about the potential indictment of herself or her close associates for her mishandling of classified information, it remains a distinct possibility. If there are charges, prosecutors have multiple options for how to pursue the case, and rampant speculation concerning possible counts against the Secretary has clouded the conversation. Realistically, though, an indictment concerning the server incident would probably be based in the following statutes:

hillary.jpgThe most straightforward avenue is the Espionage Act, which subjects "Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States... any classified information" to up to ten years in prison. Title 18 U.S.C. §798. Though a sentence containing any prison time is highly unlikely, Hillary would have to turn over the servers if convicted - a dramatic consequence that her opponents would have no difficulty converting into a campaign spectacle. Even though she is unlikely to receive anywhere close to the prescribed penalty, an eventual prosecution would doubtlessly draw off this section because of its unquestionable relevance to the facts. Ironically, this is also the same law that Debs was imprisoned under another portion of, but no serious constitutional challenges have yet been sustained.

Prosecutors will likely compound that count with 18 U.S.C.
§1519, an obstruction-of-justice law which, for most of its career, has been restricted to instances of paper shredding. However, its actual language is quite broad, criminalizing conduct that "alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object." Interestingly, the Supreme Court ruled last Term in Yates v. United States (13-7451) that an illegally caught grouper fish was not a "tangible object" within the meaning of the statute, because it was not analogous to the corporate records the legislature intended to preserve by passing the law. This could result in a drawn-out challenge on the grounds that emails are not technically "tangible objects" either, potentially redefining the rule yet again.

Given the prospective infirmities of §1519 and the fact that Hillary has long been the establishment candidate in the Democratic race, a conviction is not expected. Rather, this controversy will probably resolve itself in either dropped charges, an inconclusive plea deal that does not distinctly assign fault to the Secretary or, if such a deal is not offered, in lengthy litigation over the technical wording and application of the apposite laws. Whichever occurs, however, this story will indubitably continue to dominate political headlines in the coming months.

Reversed and Remanded - and Reversed

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Last year, in Michigan v. EPA (14-46, 576 U.S. 14), the Supreme Court ruled that the EPA incorrectly neglected to thoroughly consider the economic costs of its lifesaving Mercury and Air Toxics Standards (MATS). Expanding on that ruling, the Court deviated from its usual procedure and granted an application to stay enforcement of Obama's Clean Power Plant just last month.

Now, just yesterday, Chief Justice Roberts unexpectedly denied Michigan's request to stay enforcement of the MATS. After the Supreme Court handed down its ruling in Michigan, the cause was remanded to the D.C. Circuit, which (in the petitioners' words) "refused to vacate the unauthorized Rule, and instead left it in place with the effect of binding law." On Thursday, one of the S.C.'s most conservative members declined to take any action on that.

This case is important to the entire legal and environmental community, but it is also personally relevant to me. Ever since the certiorari petition was filed in Michigan, I had followed that case intently, and when it was granted I attempted to write and file an amicus curiae brief in support of the respondents. I was fourteen years old at the time, as enthusiastic as I was inexperienced and still more than a decade away from satisfying the S.C.'s bar admission requirements. My chances of procuring consent to file the brief were exceedingly slim.

The chances of everything that happened next were even slimmer.

I had listened to the recordings of almost every Supreme Court oral argument for years, but my familiarity with the cases and advocates only made it more surreal when I made one last phone call and, much to my surprise, found myself talking to Roman Martinez about the bar-admission situation. Far from dismissing my brief, as I fully expected, he took the time out to write me over the course of the next days, forward my pleading to Solicitor General Verrilli, and even invite me to attend the hearing.

The respondents' argument, on March 25th of 2015, was among the most forceful and engaging presentations I have read or listened to. General Verrilli opened for the EPA, carefully navigating hostile questions from Chief Justice Roberts and Justice Kennedy before launching into an accessible, cohesive explanation of the rules' background and effects in a manner strongly reminiscent of Louis Brandeis' renowned Muller v. Oregon (208 U.S. 412 (1908)) brief. To conclude, he outlined the EPA standard for reasonable administrative action, and deftly dealt with the preclusion undertones B&B v. Hargis had introduced. Then Paul Smith took over, speaking for industries supporting the regulations. He dealt mainly with the more technical aspects of the EPA's studies before subtly and effectively invoking the mootness question by describing how the majority of emissions sources had already implemented the MATS.

The decision in the case did not come down until June 29th, the last day of the Term. The D.C. Circuit's earlier ruling in favor of the EPA was reversed and remanded without vacatur 5-4, the late Justice Scalia speaking for the majority. The Circuit, pursuant to that disposition of the case, allowed the MATS to remain in force until the Agency was able to update them taking costs into consideration. Subsequently, Michigan et al. sought this stay of the rules, employing the preclusion and mootness angles to make their claims appear urgent. These arguments, however, were just sanctioned by Roberts in his denial of their application, unexpectedly strengthening administrative discretion instead of weakening it further.

Through all the twists and turns of this case, from the excitement of a pending litigation to the disappointment of what appeared to be final defeat and, now, to Roberts' surprising decision to render the earlier opinion unenforceable, I remain extremely grateful to everyone at the Department of Justice, and especially to General Verrilli and Mr. Martinez, who allowed me to feel like a small part of this unforgettable ride. Thank you for the incredible experience I call my first case.

K letter.png(Katrianna posted the text on this entry and left out this image, so I went maverick on her and added it. -Her big sister)

Say No to Financial Ruin

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bubble.jpgThe proposed Trans-Pacific Partnership is not only deleterious to our national health and safety, our labor laws, and our justice system: it could also hasten the disappearance of America's middle class.

For starters, the agreement heavily favors Wall Street and expressly bans financial transaction taxes. These are meant to stabilize the often volatile trade in stocks and securities by taxing money exchanged on the stock market and thereby discouraging improvident speculation. A seventeenth-century British innovation first brought over to this country by John Maynard Keynes in the wake of the Great Depression and implemented successfully in forty countries, this strategy has proven itself as a highly effective but not prohibitive way to reduce market crazes and the economic collapses they trigger. Now, even this mild measure is threatened. (Perhaps it might not be such a bad thing if Barack Obama followed in the footsteps of his infamous predecessor just once, to declare under these special circumstances: "I am now a Keynesian.")

Also, even if the Glass-Steagall Act is finally reinstated under a liberal administration, it would have almost no chance of surviving the ISDS. This renowned New Deal measure helped bring down the Money Trust by ordering that there must be some separation between banks and securities firms, before being repealed in 1999. This deregulation and the banks' subsequent spending spree was in large part responsible for the 2008 financial meltdown, but still Congress rejected reviving the law's provisions as part of Dodd-Frank. With the TPP in place, it would be impossible to take care of our citizens by restraining the unlawful power banks derive from our own money: as future Supreme Court Justice Louis Brandeis memorably put it in his 1914 work Other People's Money, "The fetters that bind the people are forged of the people's own gold."

In short, the Trans-Pacific Partnership would deprive governmental authority of the right to ensure domestic prosperity or at least avoid a remake of the Recession - yet corporations preferring profits to our welfare and even their own have convinced a remarkable number of our elected officials to choose a vicious cycle of bubbles and bailouts over a stable, fair economy.

S.C. Gives Free Rein to Corporate Polluters

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opinionpic.jpgJust last Tuesday, the U.S. Supreme Court surprised the legal community by issuing a preliminary injunction to stay the enforcement of sections of the Clean Air Act and the EPA's corresponding regulations. This stay effectively renders our government powerless to stop the release of hazardous substances into federal airspace for as long as there are still legal challenges pending in the courts. Although the Court treated this unexpected move as a routine procedural nicety, in reality its effects on both the atmosphere and the law could be disastrous.

Penny Pinching

It all started last June with Justice Scalia's opinion for the Court in Michigan v. EPA (14-46), in which the Agency was chastened for not adequately considering costs when promulgating these lifesaving rules. As the learned tribunal put it: "By EPA's logic, someone could decide whether it is 'appropriate' to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system." (576 U.S. __ (2015)).

However, this comparison entirely ignores the vital importance of controlling these pollutants. By the EPA's uncontested estimate, the regulations could prevent up to 11,000 instances of premature death and 130,000 respiratory attacks annually. In the natural world, they would also reduce acid rain (caused by the toxic gas hydrogen chloride, eighty-two percent of which can be traced back to power plants) and the poisoning of fish in our waterways (caused by mercury, which if ingested in fish tissue can cause cancer and irreversible birth defects).

The most conservative quantification of these restrictions' costs and benefits places the resulting national profit at $24 billion dollars. This estimate leaves out environmental preservation, untreated medical conditions, and increased agricultural productivity altogether, and for those reasons it cannot be claimed that the EPA thoroughly considered costs. Yet it remains abundantly apparent that administrative action on this literally life-or-death issue is hardly an indulgence to be indefinitely invalidated by an injurious injunction

Furthermore, the order is formally known as an interlocutory or "temporary" injunction, but its unusual lack of an expiration date will only encourage corporations to pursue frivolous and expensive lawsuits against the government in the attempt to extend the ruling indefinitely. In all probability, industry lawyers will be able to make this sanctioned lawlessness last until our next President takes office - and, unless a genuine liberal does manage to overcome the odds, this one simple measure could result in the undoing of one of this country's most crucial regulatory frameworks.

So Much for Equity

Throughout our American history, the injunction has been used repeatedly as a tool for the repression of citizens' voices and the circumvention of constitutional principles. Notable examples include In re Debs, (158 U.S. 564 (1885)), in which the Pullman strike was brutally crushed through the use of such a decree, or Walker v. Birmingham, (308 U.S. 307 (1967)), in which it was held that civil rights demonstrators were lawfully imprisoned pursuant to an order prohibiting a planned march. However, it is important to note that these results do not characterize the injunction as an institution, but rather mark a departure from its historical role.

Much of this nation's legal tradition is inherited from ancient English customs, one of which is the dichotomy between general and equity jurisdiction. The first closely resembles our modern conception of civil procedure, in which the law governs the facts and stare decisis is closely followed. The second, however, was a kinder and gentler version of the judicial process, designed more to ensure fair play than strict adherence to statutes. These cases were adjudged by the Lord Chancellor, (hence the name "chancery" jurisdiction), who was almost always a cleric, and therefore the decisions were heavily influenced by canon law and the dictates of conscience. By the 16th century, this method of decision-making was already deeply entrenched in British political culture, and therefore the Reformation did not significantly alter the function of equity courts. This arrangement even accompanied our ancestors across the Atlantic, and lasted in both countries until the widespread overhaul of the judiciary in the mid-1800s.

Even after the two systems merged, however, the special reasoning was preserved to some extent. Because common-law cases and their chancery counterparts were sometimes hard to separate under the new rules, the relief pleaded for became the main way to differentiate the two: monetary damages, which were and still are the standard form of redress, or declaratory and injunctive remedies, a more abstract solution with its origins in equity.

This is important because the complainants in these new challenges to the Clean Air Act and associated regulations are actually seeking equitable relief, but the Supreme Court's preoccupation with technicalities is contrary to the cardinal principles used to determine this variety of case. In traditionally equitable causes, courts are still justified in prioritizing social welfare and substantive justice over strict adherence to rules. As Blackstone observed in his famous Commentaries, "Equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, Equity is synonymous with justice; in that, to the true and sound interpretation of the rule." 3 B.C. 429. This interpretation has been confirmed repeatedly and resoundingly in our common law. In the landmark decision West Coast v. Parrish, we find: "The liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." (300 U.S. 379 (1937)). As Justice Holmes observed in 1896: "The true grounds of decision are considerations of public policy and social advantage, and it is vain to suppose that real solutions can come from... propositions of law which nobody disputes." Vegelahn v. Guntner (167 Mass. 92).

I remember Justice Jackson once said: "If ever we are justified in viewing a statute not narrowly as through a keyhole, but in the broad light of the good it aimed for and the evils it hoped to prevent, it is here." U.S. ex rel Marcus v. Hess, 317 U.S. 537 (1943). Given the countless human lives and priceless natural resources at stake in these circumstances, that statement seems equally apposite now.

Say No to Imported Poisons

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Fourscore and thirty years ago, the Pure Food and Drug Act passed Congress and the first thorough regulations of food production, sales and labeling went into effect. This law was, in many ways, a lone beacon of liberalism in an age characterized by "liberty of contract" and other manifestations of corporate anarchy. A New York statute providing for a twelve-hour work day had been struck down just the year before. Corrupt legislatures had been allowed to openly grant monopolies in recent memory. Bans on unionizing were commonplace conditions of employment. Yet even a nation so apparently unconcerned with the welfare of its citizens realized that humans do have the right to be reassured that they are not consuming toxins or contaminants along with their daily meals.

Now, after all this time, the Trans-Pacific Partnership is poised to strike down all the progress we've made on this front. According to the office of the U.S. Trade Representative, the parties are merely agreeing "to cooperate to ensure that technical regulations and standards do not create unnecessary barriers to trade;" however, in reality, even the most basic requirements are now imperiled. Foreign exporters will have to state that their standards of purity and cleanliness are comparable to ours, but we will no longer have the authority to make them actually comply with our regulations. In addition, other provisions of the TPP weaken our country-of-origin legislation, rendering it practically impossible for consumers to find out what if any rules were followed in the making of a particular product.

For example, many of the eleven foreign states we are prepared to sign over our safety to rely on seafood exports as a crucial part of their economy. However, sea creatures are highly likely to ingest mercury and other runoff in both foreign and domestic waters, and fish from contaminated sources have been linked to birth defects, cognitive decline, cancer, and other serious and irreversible injuries. Under the TPP, alien companies would be allowed to import these fish without any significant restrictions or inspections, compelling U.S. regulators and consumers to take their word for it that they have followed procedures equivalent to our own.

Also, any standards the pact does not outright invalidate would still be subject to challenge as "illegal trade barriers," and taxpayers could be forced to hand over exorbitant damages to corporations which have no jurisdictional ties to the United States. Under NAFTA, for example, Canada was coerced into giving the Virginia-based Ethyl Corporation 13 million dollars in recompense and a statement that certain carcinogenic gasoline additives were not harmful after all. There is no reason to believe that our government will not be railroaded into these same forced confessions about hormones, pesticides, preservatives, and other substances currently banned or tightly regulated.

The proposed Trans-Pacific Partnership does not streamline safe and cooperative commerce; rather, it forces us to drink our glass down to the bottom and then reimburse corporate criminals for the cost of the poison they poured in it.

On Certiorari With Michael Carvin

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SC.jpgJust this month, the Supreme Court heard argument in Friedrichs v. California Teachers Association, (14-915), a high-profile case about whether or not "agency shop" arrangements between a labor union and a public-sector employer violate the First Amendment. This question has not been brought in front of the Court as a broad constitutional issue since 1977, when these bargains were adjudged permissible in Abood v. Detroit Bd. of Education (431 U.S. 209) - and the legal landscape has undeniably shifted since then. The membership of the Court has changed entirely, and its interpretation of free speech has evolved almost as drastically.

The question presented in this new challenge is rather vague, partly because it is so precisely tailored to the circumstances of the cause. The decision, however, will definitely affect more than this individual dispute between an elementary-school teacher and the association she doesn't believe she should be forced to subsidize - so I tried to find out how the petitioners' main lawyer, Michael Carvin, envisions the legacy of their case.

Their brief gives us a fairly good idea of what they are specifically asking the Court to do. The surefooted style is the first thing that strikes you about Mr. Carvin's latest Supreme Court creation, which weaves punchy lines from familiar opinions such as Citizens United v. FEC (558 U.S. 310) and West Virginia v. Barnette (319 U.S. 624) in with a direct, uncomplicated argument. However, neither it nor the recent oral arguments provide much political perspective on the question or indicate the extent to which a reversal might impact other areas of labor law.

Therefore, I reached out to Mr. Carvin for answers to some of the questions that occurred to me while I was reading and listening to his positions. According to him, the vital element of this delicate constitutional equation is the government as the employer. Similar agreements between a union and a private corporation would be allowed, as would contracts requiring a worker to become a member of a specific union. Interestingly, though, he did not rule out the possibility that victory on his part could open the door to "yellow dog" conditions in public sector jobs (that is, contracts which prohibit union activity by employees, so named because early unions looked on signers as being "lower than yellow dogs"). He justified this by pointing out that both the S.C. and President Franklin D. Roosevelt believed that, in his words, "there is no constitutional right to collective bargaining with a public employer."

Both sides have legitimate concerns as to the application of the eventual ruling, and their worries are far from premature. The decision is unlikely to be rendered anytime before June, but its heritage as a precedent and the issues it deals with will continue to influence American politics and law for decades after that. Yet, as incontrovertibly important as the right to organize remains, the implications of forcing public workers to subsidize private interests of any kind could prove disastrous.

Say No to Jurisdictional Limbo

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The proposed Trans-Pacific Partnership trade deal would authorize outsourcing to Asia on an unprecedented scale. Widespread job loss and tax evasion would obviously result - however, an unforeseen consequence might also be the loss of U.S. jurisdiction over the wrongdoing of foreign corporations.

This side effect of international commerce is far from coincidental. Rather, for both the alien manufacturers contracting to supply goods to this country and the domestic distributors of the imports, it has long been the perfect arrangement to insure that neither has to pay the cost of any negligence that may have occurred in the construction of the product.

The problem began, on its current scale, in 1987, with the Supreme Court's decision in Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987). This case involved a motorcycle accident attributable to defects in the vehicle's rear tire, which injured Gary Zurcher and killed his wife Ruth. The maker of the tire tube, Asahi, did not even bother to dispute the facts in a products liability suit brought the next year. Rather, it claimed that California courts could not exercise jurisdiction over it because its base of business was Taiwan and it had no contacts with California. Shockingly, the Court agreed with this claim, reversing the lower courts even over the objection of local businesses who felt that their decision to remain in this country had gone unrewarded.

If the facts of this case inspire a strange sense of deja vu, that might be because similar injustices continue to occur on an everyday basis throughout this country. Currently, the Japanese-based company Takata is attempting to escape liability for its lethal airbags under similar logic. In our recent memory, airplane owners and operators have shirked responsibility for preventable crashes, fabricators of foodstuffs, cosmetics, and medicines have marketed toxins with impunity, and factories selling their wares here have pointedly refused to comply with the most basic of our regulations. Far from the safeguard of "fair play and substantial justice" the Asahi decision claimed itself to be, it has caused our international economy to deteriorate into a lawless, deceitful exchange of tainted or dangerous goods.

However, we are far from helpless in the face of this judicial anarchy. Many states have adopted comprehensive "long-arm" statutes which locally overrule Asahi and similar decisions, restoring some sense of accountability to their commercial law. Massachusetts extends its reach to any company or individual who "derives substantial revenue from goods used or consumed or services rendered, in this commonwealth." New York takes it even further, not even requiring that the "substantial revenue" come from within the state as long as it originates from "interstate or international commerce" of any sort. The U.S. law, though, is not nearly so comprehensive, largely restricting federal jurisdiction to situations either of waiver or "in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere." 28 U.S.C. §1605. This will offer almost no protection against defects in the millions of imports that will flood our market if the TPP indeed goes into effect.

I recall that Justice Cardozo once said that "it is possible to use almost anything in a way that will make it dangerous if defective" - and clearly such faulty global policy will indeed be highly hazardous. Therefore, instead of opening the door even further to a practice already costing millions in unpaid damages and an inestimable amount of distress, injury and grief, maybe our government should focus on repairing the laws already in place.

Falling Barrels, Manganese, and A Rule Ignored All Too Often

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pic.jpgRecently, the Northern District of Ohio has been the scene of the latest segment in a drawn-out and well-publicized corporate liability saga. Michael Abrams and his fellow plaintiffs live in close proximity to a welding plant operated by Nucor Steel Marion, and allege that manganese from the plant has landed on their property. They further claim that this phenomenon has devalued their homes and potentially jeopardized their health, and are suing for trespass and private nuisance.

This and other similar cases against the welding industry have been plagued by rumors and allegations of bribery, champerty, and other forms of corruption on the part of plaintiffs or their counsel -- under-the-table behaviors which landed one renowned trial lawyer in prison for six years and thrust the issues into the spotlight for all the wrong reasons. But though the plaintiffs' misconduct might distract from the defendant's chemicals, it doesn't change the fact that corporations are not legally allowed to strew hazardous materials all over their neighbors' yards.

Sadly, the facts of this case are not unusual. The only newsworthy thing about it is that Nucor has somehow managed, despite established case law providing for its incontestable liability, to convince the District that the facts are even at issue.

This tradition of general responsibility to the public began in 1863, with the British decision in Byrne v. Boadle, 159 Eng. Rep. 299 (Exch. 1863). In that case, Byrne was walking down the street when a barrel of flour fell from the second-story window of a shop and struck him. At trial, the shop's proprietor, Boadle, argued that there was no proof a negligent act of his employees caused the barrel to fall out the window and therefore no sufficient evidence existed for Byrne to recover against him. This notion was rejected: as the court put it, "res ipsa loquitur, " or "the facts speak for themselves." (The irony of coining a Latin phrase to say that was obviously lost on the solemn, bewigged judges of the day). This was subsequently established in American law, and has since been instrumental in holding companies from Buick to Coca-Cola to some standard of care.

Fifteen-letter, dead-language, respectable words for "duh" aside, there is also the older and more specific doctrine that a party is absolutely liable for injury he even indirectly causes his neighbors. Since Roman times, the escape of wild animals (such as lions or bears) was held to be the fault of the creature's owner; this was extended to dams and retention ponds in the landmark 1868 case of Rylands v. Fletcher, and applied to other unorthodox forms of trespass over the first half of the twentieth century. It is hard to believe that rules this basic and well-known would fail to cover the spreading of deleterious metals into the lawns, water, and air of ordinary neighborhoods.

Yet, in the twenty-first century, Abrams v. Nucor Steel Marion remains an unexceptional, undecided case.

Richard Martin, "Humanity Dick"

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Renowned in his day as a daring duelist and an outspoken advocate of Irish tenant farmers' rights, Richard Martin is now remembered for his tireless efforts to end animal cruelty. One of the SPCA's charter members, Martin pushed the first successful bill forbidding cruelty to animals through the House of Commons. Although he was an Independent MP, his diverse group of friends included the royal family, Prime Minister William Pitt and many other prominent figures. His tireless efforts to abolish poverty and suffering caused George IV to nickname him "Humanity Dick."

In 1822, Martin brought forth his "Ill Treatment of Cattle Bill." While other figures, such as Lord Erskine and William Johnstone Pulteney, had previously introduced similar bills, their attempts had been unsuccessful. The new law, quickly dubbed "Martin's Act," subjected those who abused livestock -- especially horses -- to two months' imprisonment or fines of up to ₤5. To attract attention to the law, Martin delivered speeches in crowded London streets. The comedians and political cartoonists had a field day, making up ditties and depicting Martin with a pair of donkey's ears.

Soon after the act's passage, Martin gave the comedians even more material. The MP spotted Bill Burns, a man who sold fruits and vegetables in the streets, beating his donkey. When Martin brought charges against Burns, however, the magistrate was bored by the testimony and tried to look the other way. The prosecution came up with a new tactic: why not let the donkey's injuries speak for themselves? When the donkey was led into the courtroom, everyone, including the magistrate, noticed its obvious wounds. Burns was immediately found guilty.

Many people thought Martin's Act and its enforcers targeted only working class violators, while the wealthy were permitted to abuse animals scot-free. Eager to counteract this image, Martin credited Burns' apology. He asked the judge to fine Burns the minimum of ten shillings -- and ended up paying half. This trial gave Martin all the publicity he wanted. Not only was he in the news, but an artist named Matthews painted a picture of the trial and the comedians made up a new song:

Richard Martin.jpgIf I had a donkey wot wouldn't go,
D'ye think I'd wallop him? no, no, no!
But gentle means I'd try, d'ye see,
Because I hate all cruelty;
If all had been like me, in fact,
There'd have been no occasion for Martin's Act
Dumb animals to prevent being crack'd,
On the head.

He attained fame as an orator due to his storehouse of anecdotes and his habit of switching arbitrarily between an elite English accent and his Irish burr. Nettled by a Morning Post article poking fun at his brogue, Martin waited outside the newspaper offices until the editor came out. Gesturing to the objectionable passage, Martin cried, "Sir! Did I ever spake in italics?" Actually, he took a lot of raillery from the press. The Dublin Star dubbed him "Brahmin," The Chronicle called him "Don Quixote," and Blackwood's Edinburgh Magazine referred to him as "that blustering and blundering blockhead."

His flaring temper prompted his political opponents -- who burst out laughing whenever Martin stood up to deliver an oration -- to dub him "Hair-trigger Martin." Flaunting this reputation, Martin engaged in over 100 duels. George IV visited Ireland during one of Martin's parliamentary campaigns. When the king wondered who would win the election, Martin bowed and replied, "The survivor, sire!"

Martin encouraged animal rights supporters to resort to unconventional (to say the least) means of enforcing their statutes. He personally fought a duel to avenge the shooting death of a friend's wolfhound. Unbeknownst to Martin, the dog's killer was wearing bulletproof clothes. Consequently, he went unscathed although Martin hit him twice before receiving an injury in the chest -- after his recovery, Martin enjoyed showing off the scars. Years later, sixty-seven year old Martin noticed a London man whipping his horse in Ludlow Hill. A few minutes later, two men showed up, jerked the man away from the horse and showered blows on him. They had been paid five shillings each -- compliments of Richard Martin, who proudly told the story in Parliament.

Richard Martin house.jpgRichard Martin remained in Parliament for twenty-five years. Always vociferous, Martin brought forth hundreds of bills. He continually sought to add amendments to the Ill Treatment of Cattle Bill requiring regulations on slaughterhouses and banning dogfights, bull- and bear-baiting. Although animal rights were his primary focus, he was also dedicated to representing his constituents' best interests. For instance, he was a chief proponent of Catholic Emancipation. (At that time, only Church of England members were granted basic civil rights.) Born into an ancient Irish family, Martin inherited a beautiful seaside estate that encompassed over a hundred miles. Known as the "King of Connemara" for his seemingly limitless fortune, Martin was a benevolent landowner who supplied his tenants with adequate food and shelter. The only rule he adamantly enforced decreed that farmers could not hitch plows to horses' tails.

Eighty years old and deeply in debt, Martin lost his estate in the Irish Potato Famine and his seat in 1826, due to charges of voter intimidation. Previously, his creditors had been powerless to act because MPs couldn't be prosecuted. Denied this protection, Martin fled to France to avoid going to debtor's prison. In 1829 -- three years after Martin had escaped to Boulogne -- Parliament finally passed the Catholic Emancipation bill. Soon afterwards, they also approved Martin's amendments to the Ill Treatment of Cattle Bill. Even though his career was over, the Irish statesman's influence lived on.

Easy Vegetarian Stir-Fry Wraps

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Ingredients:
1 small zucchini
3 stalks celery
5 oz. black beans
2 tortillas
4 oz. frozen corn
Shredded cheddar cheese
Butter
Pinch salt
Dash seasoned salt

1. Wash and slice the zucchini, cut off both ends, and (if necessary) cut horizontally in half. Vertically cut both halves into quarters. Cut lengthwise parallel to the skin, leaving a strip about ⅓ of an inch wide and eliminating all of the seed pulp.
2. Cut each strip vertically in half.
3. Rinse the celery and slice it horizontally, each cut about a centimeter apart.
4. Pour the corn (approx. 1/3 of a 12-oz. package and 1/4 of a 1-lb. package) into a microwaveable bowl. Cover and microwave for 3 minutes on high.
5. Wash and open a can of black beans. Rinse until water is clear. Strain.
6. Turn the stove dial between 4 and 5, or on moderate flame. Heat frying pan and spread small amount of butter in the base.
7. Place tortillas in the pan, warm them, and remove them onto plates.
8. Pour all the vegetables into the pan, and fry until hot.
9. Spread shredded cheese on the tortillas.
10. Place vegetables in the tortillas and wrap them. If necessary, hold with a toothpick.

Putting the GOP on Cruz Control

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cruzlemming.jpgSpending two weeks without national parks, or any sort of government for that matter, tends to make you think. Here are some of my musings on the subject:

Night of a fateful September 31st. Crickets chirping. I am tucking my quilts around me, and my mother stands in the lighted doorway.

"Goodnight," she says.

"Goodnight, Mom," I reply. "Goodnight, Mikaela." And then, as an afterthought, I add: "Goodnight, government."

You really don't know what you've got till it's gone, I guess. It certainly took Uncle Sam to call in sick before I realized just how much I didn't know about our democracy. (Yep, this has been a useful "Know Your Government" lesson - and an impromptu dramatization of Gibbon's "Decline and Fall.")

For starters, this has awakened my interest in our case law. Who knew that anarchy is a "substantive evil that Congress has the right to prevent practice?" (Congressionally authorized alteration to 249 US at 47 (1919)) Or that the maintenance of our government's account books is not a "business affected with the public interest" that Supreme Court Justice Devanter wrote of preserving?

My ignorance is truly astounding.

-

On a more learned note, if I had been called upon to provide a means of negotiation between the two parties, I would have locked the congresspeople into the Capitol and not let them out until they'd reopened our government. Of course, this weasel-in-a-barrel situation would have led to countless personal exigencies for our "public servants," such as missing the premiere of American Idol, carefully rationing the remaining half of a life-sustaining Twix bar, or asking a bombastically rightist colleague in a hushed whisper: "Hey Rep, whoodya think is going to win the Super Bowl?"

Oh, and I can just see Senator McCain running out of cell phone charge while beguiling the weary hours with another internet poker game. What a pity too - he'd just gotten a full House!

And then, as one by one they snuck off to the bathroom, ruefully searched a greasy brown paper lunch bag for remaining crumbs, cast about the Neoclassical chamber for an electric outlet, or finally got bored of playing all-nighter sleepover games, they would begin to wonder whose brainwave this whole thing was.

-

And so finally, after these two harrowing weeks, the Republicans gave in, locked themselves into the cellar, and waved their white flag. I guess they finally realized they were Cruz-ing for a bruising. Now that they've shushed Ted Texan up, they're sitting around singing a mournful rendition of "The Conquered Banner" and assuring themselves of their uncompromised integrity, all while surreptitiously whispering to their comrades: "You better hurry it up quick, or else we're all gonna miss tomorrow night's game!"

And that would surely be an unprecedented emergency to our national welfare.

-

So it's over at last - and I learned a lot: 1) the Tea Party really is presided over by Mad Hatters, and 2) as political adviser Tommy Corcoran once sang, "The GOP, it ain't what it used to be."

And now I'll be happy to go take a hike and leave Washington alone.

State Butterfly Crossword

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Butterfly-Crossword.jpg

ACROSS
1.    This butterfly, the ________ Hairstreak, is an official emblem of Wyoming
2.    The state butterfly of Kentucky shares its name with a synonym for "governor"
3.     The state butterfly of Oklahoma is the Black _______ (Hint: it has a tail like that of a bird)
4.    New Hampshire chose the ______ Blue as its representative butterfly.
5.    The Colorado ________ is the emblem of its namesake state.
6.    The Zebra _______ of Tennessee is named for its large wings.
7.    Hawaii's state butterfly is the tropical-sounding __________ .

DOWN
1.    This state butterfly of New York shares its name with a naval commander.
2.    Arkansas' state butterfly is the Diana _________.
3.    The California _______ is named for its canine-like appearance.
4.    Maryland's symbol is the Baltimore _________.
5.    Six states from Alabama to Idaho boast the regal ________ butterfly as their emblem.
6.    Mississipi chose this flavorful-sounding swallowtail as its state butterfly.
7.    The swallowtail representing Tennessee shares its name with a black-and-white striped equine.
8.    The butterfly that symbolizes Delaware, Georgia, North Carolina, South Carolina, and Virginia is named after an orange jungle cat.
9.    New Mexico's state butterfly is the _____ Hairstreak.
10.  The Mourning _______ butterfly of Montana is named for its dark coloring.

The answers are beneath - no peeking!

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Animal Groups Word Search

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agwsprev.jpg    If you just can't figure out what a lavish group of tacky pink birds is called,or a pious crowd of crocodilians, then check out this list of Animal Groups (or, if you want the full-size, printer-friendly version, click here). Another game, by both me and my sister, is available at New Moon Magazine. (No peeking beyond this point, as the answers are beneath).

AGansw.jpgNote: The text and images on this post are copyright of Katrianna Elizabeth, 2012, and cannot be used for anything except educational purposes.

Using Special Relativity to Solve Cosmic Puzzles

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lagoon-nebula.jpgQuantum Fluctuations in the Early Universe
     In the very early universe, there were no particles, only photons zipping about at immense speeds. Those photons must have collided with each other at some point or other, resulting in one of them absorbing the other and therefore creating slightly higher energy densities in certain areas (that is, quantum fluctuations in the early universe). Then energy cooled and the photon concentrations turned into tiny concentrations of mass (which particles later began to form atoms as the universe cooled). As the cosmos expanded, the mass concentrations began to form nebulae as they were spread out over the increasing distances -- and gravity began to draw more matter to them and shrink them into the first stars.

How Particles Acquire Mass

    The mass-energy equivalence states that as a photon is emitted from an electron or any other particle, the mass of the particle increases, because the energy (e) is equal to the mass (m) times the speed of light squared (c). This is because the net mass (the energy + mass) needs to stay the same to prevent a particle from changing, say, from an electron to a quark and so forth. This creates a logical explanation for  how mass is acquired, and the Higgs mechanism is not required.

Animal Poems

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lion-sketch-final.jpg

Look! I see a shape of tawny,

Its eyes may be kind, but it's fierce and brawny,
On the savanna it blends in so it can hide away,
Never is it seen in the grasses scorched by hot day.


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Great and tall, yet in the plains this animal abides,
In the low grasses it can find no place to hide,
Reaching up to 20 feet off the ground,
Automatically no cover is to be found.
For their safety they have to have spots and to run,
Few are caught by predators  -- almost none!
Evidently they're doing alright, for they are still within our sight!





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The jungle cat I speak of is striped of orange and black,
In hunting and in swimming it does have a knack.
Gazelles it can easily overpower once it is fully grown,
Each and every cat a stripe pattern has its own,
Roaming in the jungle lightly, never leaving a track!


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That there is a green reptile

Under the sea, there's no denial.
Red or brown (green, most often of all)
These creatures swim beautifully, but awkwardly crawl,
Land is where it lays its eggs, but at no other time
Ever does this animal above the tide-line climb.




camel-sketch.jpg


Carrying a pack through the desert dusty gold,
As it has all its days and shall until it's old.
Meandering ever through the dunes of sand,
Ending never, always forward caravanned,
Lumbering always in the desert dunes and folds.



Florida Backyard Birding

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pterydactyl.jpg    On vacation in Florida, we saw a surprising variety of wild birds. There were ospreys, great and little blue herons, roseate spoonbills, white ibises, limpkins, bald eagles, moorhens, coots, vultures abounding, sandhill cranes, and all varieties of egret -- great, snowy, and cattle.

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    Many of our opportunities occurred close to home, like the pier in Venice, which hosted several anhingas and pelicans. One pelican appeared to have a hurt wing, so we rang the local Save Our Seabirds. They took the pelican and we saw him again (looking better but still favoring his hurt wing) in the Sarasota branch.There was also a church very near to our house with a cross atop it which adornment was the favorite haunt of a bald eagle who evidently hadn't been acquainted with the separation of church and state yet. At the nearby Myakka State Park we saw a stray flamingo flying overhead, along with many roseate spoonbills and some black-crowned night herons as well. Magnificent frigatebirds are rare, but we saw them flying overhead twice (they can be easily identified by their throat pouches, while are still conspicuous when not inflated). The crested caracara is harder to identify, but it flew over occasionally.
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  But best of all was the lake back of our house. Almost every evening we would hear our resident pair of sandhill cranes "chortling" across the lake and then flying off to roost. But one day they began to build a nest in a clump of reeds opposite us -- tweaking the grasses with their bills and inquisitively sitting on it. Then, one morning, we found them incubating their eggs, and they never flew away at night again. One chick hatched about a month later, and was quickly nicknamed "Junior." He was at first inside the nest for the most part, but then he gradually began to walk about the lake with his two parents, as viewed with our binoculars. As he grew his appearance changed from that of a small downy chick to a small tawny bird the size of a chicken, with inordinately long legs. One day we decided to go across the lake for a close-up view of the cranes, and we walked across the subdivision to the nest site. They were calmly feeding there, and they showed no signs of being afraid of us. Junior kept running from one of his parents to the other to be fed on the grubs they were digging from the ground, and now and then one of the parents would rise for a moment to see if they detected any intruders, and then resume foraging. The chick gradually grew until his fledging stage arrived -- we would see the two parents walking along the lake and flapping their wings, and Junior following, anxious to keep up with Mom and Dad. By the end, Junior was larger than his mother, and only lacked a red cap to resemble his parents almost precisely.
   The little blue herons and the white ibis seemed to get along relatively well with each other -- we'd see them making rounds across the pond, filing one by one and digging in the Great Blue Heron.jpgpond bed and grass slopes on the bank. Their heads would bob comically up and down. The ibis typically walked much faster than the herons, however, so they would generally end up at least twenty yards away. Juvenile white little blue herons would also sometimes be seen. Little and Great Blue Herons (the latter could sometimes be seen feeding on the lake, occasionally the Wurdemann's or Great White varieties) both flew with their necks bunched up in a comical fashion. Limpkins are relatively rare; they only showed themselves a few times at our pond. They would generally stand near the bank with the herons and ibises.
    Wood storks would sometimes land on the other side of the pond in the late afternoon to feed, and occasionally roost in the tall pines (very seldom, on our side of the pond), but most of the time they would fly off. Also, sometimes we would see a mysterious phenomenon; a group of birds would be flying in the distance, and then they would disappear, often when they went in front of a cloud. We then discovered it was the wood storks flying, and tilting themselves midair until we could not see the black bottoms of their wings.
    Ospreys and eagles frequented a large tree just to the left of our house, and you would sometimes see the ospreys diving for fish, flapping, hovering -- then diving. A juvenile eagle and his parent would sometimes be seen in the tree, attempting to establish authority over a raven that persisted in irritating them. There were regular battles for supremacy (in the bird world, that's the higher branch).
    We also had a chance to view the lives of moorhens, coots, and ducks in detail. In the small-bird world, there was a mockingbird pair who built a nest in our shrub, but theirs was a fussy baby who emitted regular sounds almost like a timer beep when hungry (and sometimes just as irritating). We never got to see much of the chick, who was hidden away in the foliage, but we saw the two parents entering the shrub with food and singing their melodious songs.

Good luck birdwatching and always remember these tips:
-Never get too close to a bird that it might become nervous
-Never at any time litter: a bird might learn to feed in developed places and be run over.
-If you see a hurt bird, always call the nearest wildlife rescue center. Never touch the bird, however.
-Be extra respectful of a bird with a nest.

Pennies For The Planet: Giant Pandas Face Extinction

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pndabmboo.JPGIn only two or three generations, pandas could go extinct. Because of recent development in what used to be the pandas' habitats, the bears don't have enough room. While enough land was set aside for 1,000 pandas 30 years ago, the area is not sufficient for the 1,600 pandas now living in the wild. In addition to this, the pandas are being fenced off by water projects and roads. They cannot find enough food or a mate. Pandas travel long distances to find mates because if the genes are too similar the babies will be very susceptible to diseases. But now the pandas are unable to do that. If this continues, the pandas will only be seen in zoos and other places where captive animals are kept. And it will happen in the next sixty years (one panda's lifespan is twenty years), if the building on the pandas' land is not stopped.

When I was five, I became a big-time environmentalist. I raised a hundred dollars (mostly through presents, but I did ask for them instead of other things...) to give to Jane Goodall. And I collected 1,690 pennies for Pennies for the Planet, a program by the World Wildlife Fund (WWF) which raises money for different projects (although I thought that I was helping to save pandas due to the logo, my donation went to a program for the conservation of black rhinos).

It was Halloween night. Katrianna and I dressed up in our matching lion costumes, and I carried a sour cream jar that had been covered in yellow paper and decorated. That would hold my pennies. Mom took Katrianna and I outside and we began trick-or-treating. My campaign was a huge success. Nearly all of my pennies came from that expedition. Later, Mom and I drove to the nearest coin machine and donated all of my pennies to the WWF.

Today, there are whole kits made for Pennies for the Planet trick or treating. They didn't exist when I did it within the first couple years of the twenty-first century. Now there are environmental coin jars in most elementary classrooms. Mom told me that when I did it a neighbor, also a teacher, whom I had asked for pennies on Halloween night, added Pennies for the Planet to her curriculum. This program sponsors new projects each year and is a reputable environmental charity, although it might have to change its logo in the next sixty years if the panda population continues to dwindle.

John James Audubon -- Environmentalist?

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gerfalconaudubon.jpgJohn James Audubon's images may be beautiful, but they were created at the heavy cost of avian lives. 

Take the example of a majestic, 3-foot female eagle in his studio. It was not enough that it was captive in a small cage (making it easy to draw), but he wanted to kill it. 

So he put it in an enclosed, dark closet with a coal fire to suffocate the wonderful creature. After hours, he opened it. Her head swung toward him. It looked at him. It was alive. Then he put the eagle back into the closet, added sulphur to the fire, and closed the door. This time the fumes smelled so strongly he and his brother left the house. For a long time the eagle was perched alone in that dark, extremely hot and unbearably toxic closet. Audubon entered the house and made his way to the flaming confinement.

Again, the yellow beak and imposing eyes belonging to the bird of prey swung his way. The eagle was alive. So once more he attempted to kill the eagle. He tried to electrocute it, but the biggest battery he could find could not inflict enough current. He took a piece of pointed steel in his hand. The eagle's life ended, after many forms of inhumane torture. 

He described this in his own diary, which was known as his "Ornithological Biography," even though several times he considered letting it go. 

And there is no need to believe that the so-called "conservationist" did this sort of thing to only one bird of a species. For his portrait of a flamingo, approximately fifty flamingos were used as models -- and killed. 

Despite the fact that his artwork may be picturesque and beautiful, it is not near worth the lives of hundreds of birds -- and the allowance of animal cruelty. 

The Endangered Snow Leopard

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Snow-Leopard.jpgIn the deep dark chasm,
Upon the sides of the walls,
Motion with lightning's shape and speed,
And before it the swift deer falls. 

Its color blended ever light,
Gray white and shades of dun,
Streamlined shape and hunter's eye,
And incredible speed to run. 

Against a snowy background,
Imposing yet serene,
The fearsome leopard of the snow,
Can hardly yet be seen. 

-Katrianna Sarkar

Snow leopards are endangered from causes such as the trade in its pelt and global warming. The fur is made into coats and hats, and their bones and other body parts are also used in traditional medicine. Tigers are supposed to be used in the practice of traditional medicine, but they are already so rare (their populations have lessened from this too) that the more common snow leopard is substituted. 

Their numbers are hard to estimate, due to the fact that snow leopards live in rugged, remote terrain. This makes conservation more difficult, so an interesting device was employed. With as few snow leopards as there are, you can tell the individual leopards by their spots.  As a result, pictures taken by a remote camera are compared to those in a photo library. In that way, they can estimate how many there are.

As elusive as snow leopards are, we still know quite a bit about them:

Wild sheep and goats are the snow leopard's main food, as well as an occasional buck or rabbit.

A snow leopard can leap thirty feet.

Snow leopards have enormous, furry tails. They use them for balance, but if they get cold they can wrap their tail around themselves.

Snow leopard cubs have blue eyes. When they get older, snow leopard eyes get grayer.

Let's hope we can save them. We should start conserving energy by using solar power and stop buying coats made from snow leopard, or, for that matter, any other kind of fur.

Tasmanian Devils

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Taz.jpgThe Tasmanian devil is a bearlike marsupial native to Australia. It is the size of a small dog. Young are called joeys, imps or pups. They were killed until the 1990s because they were seen as a threat to sheep and other livestock. Occasionally a pack of tasmanian devils would eat a weak sheep. So, in 1923 alone, 900,000 devils were killed.

At Lake Nitchie, a 7000-year-old human skeleton was found wearing a devil's-tooth necklace. This was mistakenly interpreted to mean that Aboriginal Australians killed off the Tasmanian devil in mainland Australia. But there is no evidence that the Aboriginal Australians ate any carnivorous animal, so it is unlikely that hunting caused the extinction. 
Tazpic.jpg

Their closest relative is the thylacine, which looks like a dog. It is now extinct. The thylacine, like the Tasmanian devil, was accused of hunting livestock and a bounty was given out by the government for each thylacine killed. No attempts were made to save even the last wild thylacine. They were only protected 59 days before the last captive thylacine died. 

Even though populations of Tasmanian devils in the wild are slowly growing again, unfortunately a disease has been among them and they are having to quarantine most healthy specimens. Despite their name, Tasmanian devils can be very cute (like the one above), and we want to save them. (They are not normally considered "nice," but they are only following their instincts.) So now it's time to watch some Taz cartoons!

Why Chimps Are Intelligent

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Chimpanzees are great apes with dark fur. They are the closest relatives to humans, and have almost as much mental capacity. 

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They use a wide variety of tools: from primitive ones, such as grasses or sticks for catching termites, to advanced tools like branches, sharpened with their teeth and used to spear a bushbaby or a squirrel out of a tree. Chimps are also quite refined and use napkins (in other words, leaves). 

Here are some stories that prove chimps are more intelligent than we give them credit for:

A chimpanzee named Peter was sitting quietly in a zoo one day when some paint, brushes, and canvas showed up in his enclosure. So he painted a few paintings. Then a man named "Dacke" Axelsson picked the four best, and exhibited them in the museum under the name "Pierre Brassau." There were mixed responses: "Brassau paints with powerful strokes but also with clear determination" or the more critical "Only an ape could have done this." For the full story, check Wikipedia's article on Pierre Brassau

Once a chimp, named Nim Chimpsky, was taught to use sign language. At ten days, he was taken from his ape family for research. He was quoted carefully: "Apple me eat. " "Eat grape eat Nim." "Play me Nim play." "Finish hug Nim." His longest quotation was written as "Give orange me give eat orange me eat orange give me eat orange give me you." Unfortunately, smart little Nim was transferred from his human family and ended up at a medicine company, and later in Black Beauty Ranch in Texas. 

Bonnie the orangutan (who lives at the National Zoo) suddenly began whistling, after seeing her zookeeper do it. It is reported that she only does it because she likes to hear it, not because it might earn her a reward. Click here to listen to Bonnie whistle.

Unfortunately, chimps for circus acts and television commercials, like in the CareerBuilder Super Bowl ad, often are mistreated. Several people, I was pleased to see, were arguing over whether it was fair or not to use chimps in ads. Watch the commercial: the use of chimpanzees is rather unnecessary. 

Butterfly Word Scramble

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Bear in Terrain

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bear.jpg"Look," Mikaela cried as we glimpsed a furry, brown leg, "A bear!"

We all ran out onto the smaller balcony and looked out. A young black bear was gazing at us, puzzled. Mom was leaning out the bedroom window taking photos with her new camera, and I was taking some pictures as well.

He was young. The year before we had discovered him, just an overgrown cub, at the fork in the unpaved road where our steep driveway met the neighbor's. Now he was bigger, we noticed, as he crossed the "animal highway." This was where deer and coyotes, but never before a black bear, made their crossing behind our house.

He loped off the other way and disappeared into a myriad of bushes and berries. He was gone.

Black bears are smaller than grizzly bears and do not have as defined a shoulder hump as their relatives. Grizzly bears' humps are shoulder muscles useful for digging up roots. Grizzly claws, partly for the same reason, are larger than black bears' claws. Signs that a bear has been somewhere are digging sites, clawed trees, and tracks which have five toes and look heavy. (The main hand is a thin egg shape with a little triangle at the end.)  A black bear is eighty-five percent vegetarian, and most of the carnivorous percentage consists of bees, ants, and yellow jackets.
 
Kermode Bear Planet Green.jpgThere is such a thing as a Kermode or Spirit Bear. These are rare, white subspecies. Only one in ten are completely white, and some are tan with patches. It is very special to see a Kermode bear. They are not albino, however, and are white because of a recessive gene. Other subspecies include the Eastern black bear, the Florida black bear and the Newfoundland black bear. The Florida black bear deserves special attention because it is threatened. At first, the Fish and Wildlife Department declared it threatened except in areas where it was a game animal. This was a rather hypocritical statement, as a bear could be passing a hunting area, though it was born in a refuge. Probably the Fish and Wildlife Department realized that after the criticism that they got. The Florida black bear is listed as threatened wherever it occurs.

In the case that you meet a black bear on a trail, rangers advise you to put up your hands and raise a backpack (if you have one) above your head to frighten it off. Do not do this unnecessarily, like if you hear rustling in the bushes a ways off the trail. However, do talk or clap your hands in such cases. Finally, if a black bear attacks you, fight back.

Why Are Clouds White?

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clouds2.jpgWhen you look at the sky on most days, you'll see a few clouds slowly drifting past, pushed by the wind. You might see the shape of a camel in one and a flower in another. You probably already know why clouds exist: water evaporates in the sunlight and rises into the sky, where it again forms tiny water droplets. When the droplets are too large to stay in the air, they fall to the ground as rain and the cycle begins again. But did you ever wonder why clouds are white, and why they become gray during a storm?

Katrianna wrote about why the sky is blue in a previous article, which explained how light is made up of many different colors. White light is a combination of all of the colors. Clouds are white because the water droplets or ice crystals (at a certain altitude, the water freezes to become ice) reflect all of the colors of light in a process called Mie scattering. (All of the colors are reflected in the same way, so they combine to become white light.)

Clouds are dark when they are so thick that the sunlight is blocked by the moisture. When you look down on dark clouds through an airplane window, the clouds will always look bright white. This is because the water or ice on the surface of the cloud is still reflecting the light. Thus, every cloud will have a silver lining -- if you view it from an airplane!

Octo-pi (R) Squared

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In Germany, an octopus is given two flags and a ball: it places the ball on whichever side’s flag it thinks will win the upcoming World Cup game. This time, it picked Spain instead of Germany in the semifinals by dropping tokens into square containers.  Paul the octopus was right again.

Octoballsoccer.jpgOctopuses are smarter than you think. They can also be smaller than you’d expect. In an aquarium, an octopus living in its own enclosure was stealing crabs from a neighboring tank, although the scientists could not figure out how. So they gave it a jungle gym of tubes which were coin-size in diameter and discovered the reason. Watch here.

A common trick that octopuses are capable of is opening jars. They press their body against the lid, and grip the sides with their tentacles. The following shows an octopus performing the feat:


So next time you have a hard time opening a jar, ask an octopus to lend a tentacle. 

Less Fog Means Withering Redwoods?

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rdwd1.jpgBesides the obvious issues that global warming introduces, like the melting of the polar icecaps or the rising ocean levels, issues affecting smaller areas are still disastrous. They are determining the future of our everyday lives and the land set aside permanently as national parks. According to a recent National Geographic news article, redwood trees, the world's tallest living things, may go extinct. We might have seen them just in time.

When we were staying in CA, sometimes we would be driving in at night. We lived about 45 minutes away from the beach, so the fog would drift in over the road and make it nearly impossible to see. We would cross over Golden Gate Bridge and look down at the gently rolling mists. While they made it harder to drive, they were also essential to the survival of these botanical giants.

The clouds kept the conifers moist, at exactly the climate they required. A hundred years ago, there was no threat from global warming. A university study said that there has been a 33 percent reduction in the amount of coastal fog produced today when compared to the data from a century ago.

The redwoods only live in the humid areas near the coast, where the fog keeps them watered. Because they have adapted to this ecosystem, they cannot live long in a drought by shutting down their systems to conserve water, as other desert plants do. This means that if there is nothing that can be done, the redwoods may dry out and wither. Some other species of tree, however, can adjust to living with less fog by not growing as quickly as they do in years when water is plentiful.

We went to Humboldt State Park on a mostly overcast, cold day. Logging had thinned many of the forests; the largest existing piece of hewn redwood, made into one person's RV, is on display at the park's visitor center. Early environmentalists had preserved large groves, which have been turned into state parks. To this day, the groves bear names like "Founders Grove," or "Rockefeller's Grove," after these early conservationists.

The tallest tree blew over in a storm a few years before and became a "nurse log." Nurse logs are decaying trees that provide the necessary nutrients for other plants to grow. Saplings, fungi, ferns, and lichen are common plants that sprout from the reddish-brown bark. Insects, like beetles and ants, live in the log's crevices. In places humid enough, these are also home to banana slugs and snails.

As well as being an impressive species themselves, these trees are essential to many other kinds of life. The terrible fact that they are in danger means that if they do not live, their ecosystem will be seriously disrupted. This issue is another reminder that the choices we make in our everyday lives do have consequences and therefore we need to decide to do everything in a manner that will not harm the planet. The fate of these giants is uncertain, the fate even of our planet is uncertain, and it's our actions that will determine it.

Baby Animal Names Match-up

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Every kind of baby animal has a particular name. Some of them make sense -- a baby goose is called a gosling -- and some don't -- since when was calling a baby kangaroo a joey logical? See if you can pair each species of animal to its particular name!

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HINT: Many species of baby animals are referred to as the same thing: for instance, a baby cow and a baby rhinoceros are both called calves. So while some of the following animals can be called the same thing, no two animals can be connected to the same name.

Answers.jpgNOTE: This image may be printed for educational purposes, but cannot be sold or printed for commercial reasons. © Mikaela Sarkar 2010

Penguins, Big and Small

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   Penguins live in the wild on every continent in the Southern Hemisphere. But since they naturally live near cold ocean currents, the only penguins to be seen in the North are in zoos.

    Four species of penguin are endangered, but some of the others might be if we don't stop global warming and the melting of their ice shelves. There are 17 penguin species:

Penguins-planetgreen.jpg

Emperor Penguin
Gentoo Penguin
Adelie Penguin
Chinstrap Penguin
King Penguin
Royal Penguin
Macaroni Penguin
Rockhopper Penguin (endangered)
Little Penguin
Fiordland Penguin
Snares Island Penguin
Erect-Crested Penguin (endangered)
Yellow-Eyed Penguin (endangered)
African Penguin
Malleganic Penguin
Humbolt Penguin
Galapagos Penguin (endangered)

   


There is a movie about Emperor Penguins named March Of The Penguins. It is about how they breed. They have to march 70 miles to the Adelie coast. Then, (if the female gets a mate), she lays a single egg, taking almost all of her energy. She then goes to sea to eat again, leaving the male on the ice to guard the egg. The egg has just hatched when the female comes back, and the male goes to sea. The penguins huddle in "turtles" to keep warm.

    Penguins eat fish, squid and krill, and are preyed upon by leopard seals and giant petrels. They have been noted to use sign language to communicate with each other. They have glands which get filled with salt, and they crash their beaks against a boulder to empty them (largely because they drink saline water). Emperor Penguins live 20 years. They first evolved during the Eocene epoch.

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    Recently a man was lucky enough to capture an all-black penguin on film at National Geographic.

Tiger Tiger Burning Bright: Reintroduction For The Year Of The Tiger

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     In honor of the year of the tiger, 13 nations have agreed to reintroduce the tiger and double its numbers by the next year of the tiger, 2022.
   
    Tigers are endangered due mainly to habitat loss and hunting. Tigers have been hunted over the years for traditional medicines. Even though hunting tigers has been made illegal, that doesn't stop poachers; their condition is so critical that they were put on the endangered species list.
     

     Habitat loss is mostly attributed to logging and palm oil production. Palm oil is environmentally destructive because people drain the rainforest marshes to plant the palm groves.  


This image from World Wildlife Fund shows why the tiger is threatened with extinction:


    We must make an effort to save these magnificent creatures according to the Tx2 Program which WWF launched. They are hoping to double the number of wild tigers to help this species make a comeback.
    
    If there are roughly 6,000 wild tigers, then the goal is to breed 500 cubs per year. After 2022, this program will not continue, but there will be 12,000 wild tigers. If we are going to double the number of wild tigers, the original tigers had better not go missing. Watch this on National Geographic Kids.

Bengal Tiger.jpgTiger Facts Q&A:

Q: Does a cross between a lion and a tiger exist?
A: Yes. A so-called "liger" is a cross between a Panthera tigris and a Panthera leo. A tigon is a cross between a tiger and a lioness, whereas a liger is a tigress and a lion. 


Q: Can there be a tiger without stripes?
A:  The Golden Tabby variation of tiger has unnoticeable orange stripes. If you breed it with a white tiger, you get a white tiger without stripes.

Q: Are white tigers albino?
A: No. Their coloration is due to a recessive gene. Very rare, it only occurs in 10,000 births in the wild. They are bred more commonly in captivity. 

Laudable Lepidoptera

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Although they have several differences, moths and butterflies are surprisingly similar.

For instance, they both belong to the order Lepidoptera. They both have wings. They both have antennae. They both have bodies smaller than their wings.

But they do have differences. Butterflies have long antennae without hairs, whereas moths have furry ones. Butterflies prefer to be outside in the day. Moths are nocturnal, which is why they often appear at night. And moths have fat and slender bodies, but butterflies have long, slender ones.

See if you can solve these "Moth or Butterfly?" Puzzles using the clues:

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Butterfly vs. Moth.jpg

Spot The Difference: Coral Reef

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Find five differences between these pictures:


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Coral-Reef-Photoshop.jpg

The Colossal Explosion: Yellowstone's Massive Volcano

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       When Wyoming was still a territory, Lieutenant Gustavus Doane, head of an exploring expedition, noticed something strange when looking out from the top of a mountain. He noticed that there was a giant volcano. But the Lieutenant, even though he made a good guess, thought wrong: in his mind, the ancient crater was extinct.

    ldfthflgysr.jpgTwenty craters have been in existence since mighty sheets of ice covered Yellowstone National Park. The volcano is known to be the cause of all the geysers, mud pots, terraces, and hot springs in the park.

When we went to Yellowstone, we liked seeing the mud pots (even though they smelled like rotten eggs) and we saw Old Faithful erupt three times. Then we went to Morning Glory Pool (a multicolored hot springs.) But, while we were there, we didn't see any symptoms that the supervolcano's blast was going to happen soon.

    Earthquakes have been happening recently (which is a sign that the park could explode soon). However, scientists say the eruption could happen anytime from next week to the next millennium. The future is anybody's guess!

   

For More Information:
USGS Volcano Facts
Discovery's Yellowstone Insights   
National Geographic's "Under Yellowstone"


Top Ten Things To Do For The Environment

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1. Cut up 6-pack rings because animals can choke on these.
lbd.jpg2. Avoid balloons or other flimsy plastic items. Turtles can choke on these because they mistake them for jellyfish and eat them.
3. Recycle everything that can be recycled. Buy recycled paper or notebooks at the store.
4. Try to reduce use of heat or air conditioning. Instead, turn on the fan or don a handy sweater.
5. Try to get out of using your car. Instead you can buy a bike or, if it is a short distance, walk.  
6. Plant trees in your garden. That reduces pollution in the air and gives shade.   
7. Reduce usage of water by not turning it on full blast in the sink or turning it off while you wash in the shower.
8. Turn off lights or the television when you leave a room: it saves electricity.  
9. Don't throw any food out the car window. That teaches animals to hunt by the road and eventually they get run over.
10. If you don't need bags at the grocery store, say it. That reduces plastic usage (see above) and saves paper. Another option is reusable bags.   

Pangolins: A Species on the Brink of Extinction

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Pangolins are scaly animals similar to anteaters and armadillos that are found in Southeast Asia and Africa... but not for long. Two of the eight species of pangolins are endangered, but all of them are declining due to habitat loss and hunting. The Chinese use them as medicine: pangolins were once thought a remedy for skin disease and today they are used as a cancer cure. Not only are they used as medicine, they are also eaten as food and turned into jewelry and leather. Their future does not look very favorable.

Ninety-eight pangolins and almost seven pounds of pangolin scales were discovered in the home of a Malaysian poacher and taken away by officials. The guilty poacher could have up to twenty-three years in jail and have to pay a fine. But the pangolins' plight continues.

An Indian pangolin, a third species that will soon be endangered at the current rate, was found in a garden in a city that was expanding rapidly last August. The pangolin was taken to an animal rescue center and later released in a nearby national park. That was the first pangolin to be found in someone's home, but many more will follow into the city built on land that was once the wilderness they roamed.

Although these creatures are in serious danger, they are also interesting and so odd that they're cute. Their scales never stop growing, eventually making up twenty percent of their weight. Pangolins have a sticky tongue that is sixteen inches longer than they are (they range from six to three feet). It is the longest tongue of any mammal (in proportion to size) and is used for their exclusive diet of ants and termites (one pangolin eats up to seventy million insects per year). They compensate for not having teeth by eating stones, which, like birds' stone-filled gizzards, grind their food. So that the ants don't bite them, pangolins have ear and nose covers and thick eyelids. Baby pangolins ride on their mom's tail, hanging on as their pangolin parent wobbles along. These harmless, shy animals will either survive or go extinct depending on what happens. Today they aren't faring very well, and it's up to you to change that. There is even a site dedicated to saving them, with information about this interesting and endangered species.


Arctic Tale: The Sad Story Of Global Warming

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Arctic Tale is the story of a polar bear named Nanu and a walrus named Seela. They start as babies. Nanu and her brother hunt on ice, but Seela spends the days when she's young going on clam hunts. The clams can even "fly" away, leaving Seela and her mother, helper Auntie, and the rest of the herd to catch the ones that stay on the ocean floor.

Then Global Warming begins to disturb the life of these arctic animals. The adorable Ringed Seal pups are left on the ice to the male polar bear's advantage (he later eats them). There is not enough snow for digging birthing caves. The ice is too thin for Nanu's mother to go hunting. An entire walrus herd struggles to survive on a tiny melting iceberg. Finally, they take refuge on Rock Island, which doesn't have much ice, until it is time to go home when the ice has frozen back again. Then, Nanu finally contacts a male polar bear after avoiding them most of her life (in a very playful way), and Seela gives birth to a walrus of her own.


Legal Yet Unlawful: Wolf Hunting Begins in Montana

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Wolves in Montana and Idaho aren't going to remain there very long. They have been taken off of the Endangered Species list, and it is now legal to kill them. On September 1, the first wolf (in Idaho) was killed. Today, Montana's wolf hunting season officially opens. Last year, there were 39 pairs of breeding wolves in Idaho, while Montana only supported 34. But that's only 146 wolves, and although the younger ones aren't included, that is not nearly enough. Idaho is allowing 255 wolves to be killed, and Montana 75. According to Earthjustice, an environmental site that reported on this issue, "...the Fish and Wildlife Service authorized Idaho and Montana to reduce their wolf populations from a current population of roughly 1,500 wolves to only 200-300 wolves in the two states."  Earthjustice went to court to reverse the wolf hunting policy and, although the court agreed that taking them off of the Endangered Species list was unlawful, they would not stop it.

But more wolves than that will be killed. Farmers also kill wolves because they are supposedly interfering with their livestock, or because they are merely on their land. In Idaho, there is no limit to how many wolves farmers can kill because of their animals. In the state of Oregon, they had three pairs of wolves. But one pair got into trouble because farmers were upset because the wolves had killed some of their livestock. So they tried putting up fences, but the farmers still viewed them as threats. The wolves were killed, and now Oregon has only two pairs of wolves. The 330 wolves legally permitted to be killed are not including those totals, nor are they counting the wolves that will die naturally. Taking them off of the Endangered Species list would have been terrible, but allowing them to be killed will put them right back on it. It is yet another tragedy which conservationists are trying to stop, but wolves are already dying. Soon it will be too late for the recovery of this disappearing species.

About Us: Katrianna and Mikaela Brisack

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The environment is in serious danger. Around the world, trees are being logged and the resulting habitat loss is making increasing amounts of species endangered. The pines of North America are being eaten by pine beetles and the mountains are graying, leaving local residents waiting for a forest fire. Global warming is melting the frozen ground of the Arctic, leaving polar bears stranded on the cracking ice. Elephants, pandas, lions, tigers, and hundreds of other animals are being illegally poached worldwide. Twenty-five percent of all mammals are predicted to go extinct; thirty-three percent of all marine mammals are expected to soon vanish. It is a critical predicament and one that will not be easily stopped.

We started this blog to oppose the ongoing injustices done to animals and plants throughout the world. More and more people are concerned about what is happening, but few actually make the necessary changes to the current plight of the environment. This is a very important issue, and the choices you make daily may eventually lead to a lifeless world or a perfect planet, depending on how you take action. That's why it's essential to consider what you are doing before you do it to prevent making an ecological mistake. And that's why we are blogging.

Mikaela Brisack is an environmentalist, a writer, a vegetarian, and an older sister. She enjoys hiking, reading books, especially classics (Jane Austen and George Eliot are her favorite authors, and she's read all of the Louisa May Alcott books), solving word puzzles, taking pictures on her digital camera, and playing games with Katrianna, her little sister (although Mikaela has only won Monopoly once in her entire Monopoly-playing career). Mikaela's mom, who was a teacher, homeschools them, and they are traveling the world, hiking and sight-seeing.

Katrianna Brisack is an environmentalist. She became interested in apes when, as a toddler, she watched a monkey TV show called Zoboomafoo. She turned vegetarian at 5 years old. Environmental experiences include watching logging trucks carry their once-living cargo to factories to be used around the world, looking on as miners destroy entire mountains for things that we don't really need, and seeing pine beetles destroy entire mountainsides that were once green. She likes to hike, watch wildlife, talk to birds and cultivate houseplants, as well as watch the stars and come up with theories about how the universe evolved.

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