Katrianna Brisack: February 2016 Archives

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down the Money Trust by ordering that there must be some separation between banks and securities firms, before being repealed in 1999.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.

About this Archive

This page is a archive of recent entries written by Katrianna Brisack in February 2016.

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