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Friday, February 17, 2012

Gay Marriage in New Jersey

Just after New Jersey’s legislature passed a law legalizing gay marriage, Gov. Chris Christie followed through on his promise to reject the bill by quickly vetoing it and renewing his call for a ballot question to decide the issue. In returning the bill to the Legislature, Christie reaffirmed his view that voters should decide whether to change the definition of marriage in New Jersey.
"I am adhering to what I've said since this bill was first introduced – an issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide," Christie said in a statement. "I continue to encourage the Legislature to trust the people of New Jersey and seek their input by allowing our citizens to vote on a question that represents a profoundly significant societal change. This is the only path to amend our State Constitution and the best way to resolve the issue of same-sex marriage in our state.” Why stop at issues requiring a constitutional amendment? Although technical legislation requires representatives to wade through and discern specific ramifications pro and con, broad policy questions could also be subject to binding referendums. That is to say, representatives could be seen as doing only what the electorate cannot viably do.

Whether enacted by a legislature or by direct democracy, a law that takes basic rights away from a minority such as gays could be illegitimate even though passed democratically. According to the New York Times, Democrats in the New Jersey legislature argued “that same-sex marriage is a matter of civil rights, and that civil rights should not be subject to referendum.”  In other words, there are limits even to direct democracy, and the courts have a legitimate role in interpreting whether individual rights have been inordinately oppressed by the will of the majority.

In terms of legitimacy, passing gay marriage by referendum is the most legitimate, and without any need for the courts to step in to look at the matter of individual rights. Next legitimate would be such a law passed by a legislature. Again, the judiciary would not need to look at whether a minority is being tyrannized by a majority. Where a referendum or legislature passes a law or constitutional amendment forbidding gay marriage, as in 30 of the American republics at the time of Christie’s action, the democratic rights of a majority are pitted against the civil rights of a minority. Courts could look at existing constitutional articles to assess whether an amendment is constitutional. However, it is conceivable that such articles could be changed such that an amendment that refuses the right of a minority could not be touched by a court.

To take another example, all of the federal and state constitutional articles that prohibit slavery could be repealed and a new amendment making the practice legal would make it constitutional. No court could touch it because courts are limited to interpreting constitutions. In the case of gay marriage, the current equal protection language could be used to declare a federal amendment barring gay marriage unconstitutional. What if the due process language were changed by amendment and an anti-marriage amendment added? The U.S. Supreme Court could be forced to defend the new amendment if nothing else in the U.S. constitution could render the addition unconstitutional. Where the amendment is to a state constitution, planks from the federal constitution could be used, as was the case in California on Proposition 8 a week or two before the New Jersey legislature passed gay marriage.

From this “case study,” we can take away the following points:

1.      On matters of broad policy, in which ideological judgment is more salient than technical knowledge, direct democracy is more legitimate than representative democracy. Such policy need not be limited to matters requiring constitutional amendment. Invading Iraq and extending the federal debt ceiling are two cases in point.

2.      The majority acting to protect minority rights by legislative means or a referendum is the best case scenario in a republic because no constitutional interpretation by judges is necessary. 

3.      Where legislation or a referendum bars a minority from exercising a right, the legitimacy of majority rule is pitted against that of individual rights. Accordingly, the judiciary has a legitimate interpretive role as such matters must be judged.

Kate Zernike, “Gay Marriage, Passed, Awaits Veto by Christie,” The New York Times, February 17, 2012. http://www.nytimes.com/2012/02/17/nyregion/veto-awaits-new-jersey-bill-allowing-gays-to-wed.html

Angela Santi, “New Jersey Gay Marriage Bill Vetoed By Chris Christie,” The Huffington Post, February 17, 2012. http://www.huffingtonpost.com/2012/02/17/new-jersey-gay-marriage-b_0_n_1284641.html

Democracy and State Governments at the E.U. Level

In mid-February 2012, Mario Monti of the E.U. state of Italy addressed the European Parliament. In his speech, he advocated increasing the legislative body's power. The Parliament's 754 representatives represent E.U. citizens just as the members of House of Representatives represent U.S. citizens. The representatives in both of the legislative chambers are democratically elected to represent the people in local or regional districts rather than states more generally. The chambers are “national” in that they bypass the state governments. The latter are represented in the European Council of Ministers and in the U.S. Senate, both of which are legislative in nature and thus can be stylized as the “upper chamber” in federal lawmaking.

The complete essay is at Essays on Two Federal Empires.

Thursday, February 16, 2012

Sanctity of Contract Breached on Mortgages

According to The New York Times, an audit by San Francisco county officials of about 400 foreclosures “determined that almost all involved either legal violations or suspicious documentation. . . .  The improprieties range from the basic — a failure to warn borrowers that they were in default on their loans as required by law — to the arcane. For example, transfers of many loans in the foreclosure files were made by entities that had no right to assign them and institutions took back properties in auctions even though they had not proved ownership. . . . About 84 percent of the files contained what appear to be clear violations of law, it said, and fully two-thirds had at least four violations or irregularities.” The problem seems to be systemic, suggesting that judges should be able to modify mortgages on the basis of nullified contract.
The full essay is in Cases of Unethical Business, available in print and as an ebook at Amazon.com.  

Wednesday, February 15, 2012

The Profitable Aristocracy: On the Conditionality of the Managerial Elite

Downton Abbey, a series that began in 2011 on PBS’s Masterpiece Classics, depicts through narrative life in a British manor beginning with the sinking of the Titanic in 1912. For European viewers and more generally for the rest of us, the program proffers a glimpse of the world a century back. The advent of the telephone and phonograph seem to pierce through the manor’s socio-economic hierarchy that had undoubtedly been in place for centuries. It is the sheer social distance between the servants, almost regardless of their particular rank within their hierarchy, and the nobility in the house that is so striking to me. Moreover, the “Your Lordship” and “Your Ladyship” are not contingent on the manor’s owner employing or even paying the servants.

                            Lady Mary between the man she was to marry and the man she loves. Carnival/Masterpiece

In other words, nobility is by birth and is therefore not contingent on any financial arrangement. Indeed, after being fired, servants at Downton continue to address their former employers by their respective noble titles. This can easily be distinguished from the business or commercial culture wherein respectful demeanor is typically contingent on being paid. A worker who is fired is apt to quickly drop the former air of respect—even turning downright disrespectful. Even a longstanding regular customer can find the respectful demeanor of a waiter or front desk clerk quickly turned into something else entirely if a tip is not judged to be sufficient or there is a dispute on a reservation or room charge.
An acquaintance of mine who is from India was staying at a Staybridge for a number of months on business. As per the hotel’s policy, any of the long-term “guests” could invite friends or co-workers to the weekday late-afternoon receptions at the hotel. He invited me to a few of the receptions. Arriving before him on one occasion, I was stunned at the rude conduct directed at me by the front desk employee and another employee who was helping with the reception. It was ironic that they referred to their paying customers as “guests” yet could not have been of lower class in how they treated a real guest. The man helping at the reception ignored me and the front desk employee stood behind me bragging about how she had just thrown out a “non-guest.” When my friend arrived, I had to inform him that I would not be able to join him at the reception. He too was shocked at the employees’ behavior. “I live here!” he said still astonished.
From my own experience, Days Inn is far worse with respect to a low-class approach to management.  In reading reviews by customers, the lack of accountability at Days Inn is truly astounding. In Downton Abbey, Granny remarks that once the little people get a taste of power, it goes to their heads like strong drink. Hearing this line, I was reminded of when I made a noise complaint while at a Days Inn. Actually I made one early one morning, then another a night later because the noise above had gotten worse. The front desk employee refused to act on both occasions, so I phoned the police the second time. Even that did not end the noise, which lasted until 6am. From what the Days Inn centralized customer service dept representative later told me, the manager had retaliated against me by reporting to that dept "several altercations with front desk staff including profanity." Days Inn itself refused to come down on the local manager as the hotel was a franchise (they could have demanded a video recording as proof of the alleged altercations). As it was, I was left with the impression that the corporate office was impotent while the manager was utterly corrupt and beyond virtually any accountability. I was stunned that insult could be so easily added to injury as a manager was allowed to turn on a customer in the wake of his own failure. In the context of Downton Abbey, the manager  had completely lost touch with the fact that even as a manager he was a servant, rather than nobility. Management, in other words, is not of nobility. We allow managers to presume far too much, and all too often they get away with it because of their power in their respective organizations.
My point is that the “nobility” in a commercial society is utterly fake, as shown through the extent of conditionality. Customers and employers doubtless regard the perfunctory manners of managers as fake—i.e., as something we are expected to pretend is authentic rather than contrived simply to get something. Social respect in a non-noble, commercial society is simply a means of manipulation fueled by greed.
In watching Downton Abbey, I had the sense that “Your Lordship” and “Lady Mary” are expressions from a felt obligation that does not depend on getting anything in return because the nobility are due it regardless of any monetary transaction. In America at least, where such a thing does not exist, viewing nobility in another time and place makes the contrived nature of social respect in the American commercial society all the more apparent. Far too much in terms of behavior is assumed to legitimately be conditioned on money.
In fact, the American aristocracy could be said to be Wall Street, with lower “counts” being the professional caste (lawyers, CPAs, physicians), while the aristocracies of clerics and scholars operate without the requisite currency and thus must appeal to another place and time. The clerics and scholars have more in common with the nobility than with rich CEOs and professionals, whose basis is utterly contingent (i.e., being wealthy). In other words, the motives in how the respective aristocracies are addressed differ. Respect for a cleric or scholar is rooted in obligation, whereas respect for a business executive or a profession is based on the commercial element (i.e., wealth being valued, as well as self-interest).
It is no accident that clerics and scholars are not highly valued in American society—its values being so commercial in nature. Typically an executive or lawyer will dismiss a cleric or scholar for not being “in the real world.” Indeed, some “professionals” even presume that their undergraduate degree in a professional school makes them scholars, or able to evaluate scholars. Barak Obama, for example, has been characterized as a “legal scholar” simply because he taught in a law school as an instructor with one degree in law. I have read plenty of law journal essays written by people having earned a degree in law. Let’s just say the writing reflects the undergraduate degree. In Europe, by the way, a law professor must have the doctorate in law (JSD).
In some ways, having a doctorate (i.e., nobility in academia) is like being an earl or count because the title does not depend on the size of a bank account or any commercial transaction. After having been hooded, a doctor (this is not properly a medical designation) is forever designated as such, meaning unconditionally. The same applies to a member of the European aristocracy. Also, that aristocracy prides itself on its good manners, while I have wondered if a lot of education renders one more refined as well. Perhaps it is simply a function of being socialized for so long at university. Particular at good or excellent seats of learning, the context does not exactly reflect society as a whole.
I contend that an educated refined demeanor is superior to the conditionality of commercial relationships. It is no surprise, therefore, that the educated aristocracy is so slighted by the American society at large—including the moneyed “aristocracy,” which after all has a vested interest in doing so. As if to circumvent the true scholars, the “aristocracy” of professionals even sought to portray its undergraduate degrees as if they were doctorates, and thus among the scholarly nobility too. Nice try. Such games put the nobility as depicted at Downton Abbey at quite a distance.
The over-reaching and conditionality—both of which are indicative of low class—may have been made possible because hereditary nobility had been eliminated long ago in the U.S. In other words, American society is reductionist in terms of its notions of aristocracy—reducing it to being a function of money. How could anything truly noble be so conditional? Moreover, how could it be so low class and still be aristocratic? Our nobles must be pretenders. Might our forefathers have left us vulnerable to such hypertrophy (i.e., the over-extension of one part) by extirpating nobility? Is there nothing whatsoever to distinguish “well, he wasn’t raised right” from “he came from a good family”? A person of the latter rightfully recoils at the presence of a person of the former who is being rude “without a clue.” What of this natural hierarchy, or aristocracy? Surely it is not conditioned on a monetary transaction. A suddenly rude front desk employee “was not raised right,” I would wager. An innate sense of “with power comes responsibility” over “it’s the customer’s responsibility” is missing from America’s commercial aristocracy and its epigones (i.e., formerly servants now as managers).
In other words, Americans allow servants to over-reach in claiming authority on the basis of running something. The managers of Downton Abbey were classified as among the servants, rather than as among the nobility of the house. Yet the modern manager is seldom viewed as a servant—especially by the employees. “Labor/Management” is itself within the servant hierarchy. As much as I disapprove of a hereditary basis for any social privilege because it is unearned (although acting on a noble obligation of service over years could make it so, as illustrated by Queen Elizabeth II), I find the commercial variety even more distasteful and certainly not noble. In fact, I look at the conditionality based on commerce as rather low class. Its own lack of respect for clerical or scholarly nobility simply confirms my judgment. Conditioning one’s attitude on money is unquestionably banal. Even so, because we have nothing to compare our “aristocracy” too, it is virtually unquestioned in American society. We view the CEO as a noble rather than as being at the top of the servants’ hierarchy simply because the CEO is wealthy.
In fact, basing so much social value on money can even been seen in how the American “safety net” for the poorest of the poor is nevertheless all too contingent on job history. From the American sense of nobility, survival itself is presumed rightly conditioned on having participated in the commercial life of the society. The human rights to food, shelter, medical care, medicine, and even survival itself have been inherently conditional throughout American history. Perhaps having a non-conditional aristocracy would ironically have implied a non-conditional basic human right.

Monday, February 13, 2012

Russian Private Property: Based on Fairness or Legality?

In a move to shore up popular support before the presidential election in 2012, Vladimir Putin called for a windfall levy on the dishonest privatisations of the 1990s. “We need to close the problems of the 1990s, of what, speaking honestly, was dishonest privatisation,” he told tycoons meeting at a congress of Russia’s big business lobby. He went on to say, “We need to establish the social legitimacy of private property itself and social confidence in business.” The implication is that just acquisition is requisite to private property being recognized as legitimate, societally.
Directly contradicting Putin’s assumption, Mikhail Prokhorov, the Russian billionaire who was running at the time against Putin for the presidency, said, “To review the [privatisation] results now would destroy the legitimacy of all property rights in the country. The problem is fundamental—everything that was done then was legal even if it wasn’t just.” In other words, the acquisition need not be just for the property to be legitimate. In fact, it is the taking of private property that was acquired legally that undercuts the legitimacy of private property. If this is because such a taking is unfair, then why wouldn’t the unfairness in the privatisations in the 1990's also negate the legitimacy of the private property?

Catherine Belton, “Putin Calls ForWindfall Levey on “Dishonest” Privatisations,” Financial Times, February 10, 2012. 

Sunday, February 12, 2012

Distinguishing Entitlements from the Safety Net

Congress has lost sight of the fundamental purpose of a safety net, extending it beyond the difference between life and death. By zeroing in on the purpose of a safety net, Congress can both save money and better provide for the survival of those who are not providing it for themselves. Of such people, where survival itself is at stake, questions of being deserving pale in comparison to society’s obligation to fend off starvation, sickness and homelessness. Ironically, by extending the safety net beyond survival, Congress has undercut its role in providing for its citizens’ survival.

According to the New York Times in February 2012, the “government safety net was created to keep Americans from abject poverty, but the poorest households no longer receive a majority of government benefits. A secondary mission has gradually become primary: maintaining the middle class from childhood through retirement. The share of benefits flowing to the least affluent households, the bottom fifth, . . . declined from 54 percent in 1979 to 36 percent in 2007,” according to a Congressional Budget Office analysis published in 2011. Making the secondary mission primary undercuts the primary mission by putting it at risk.

Objections to the secondary mission as unnecessary can spill over as criticism of the primary mission as if it too were not necessary. “Many people say they are angry because the government is wasting money and giving money to people who do not deserve it. But more than that, they say they want to reduce the role of government in their own lives. They are frustrated that they need help, feel guilty for taking it and resent the government for providing it.” A wealthy retired person drawing social security insurance ought to feel guilty; the insurance program is not a savings account. Criticism of this category mistake can impact politically the funding of social security for those who need it. For example, even as wealthy retirees draw on social security, the social security disability program is work-based, meaning that a minimum number of quarters of work are necessary even for one to apply for benefits. Making a safety net dependent on a work history cuts off the long-term ill from the safety net. Moreover, the requirement implies that a person who has a disability does not deserve to survive independently of work. For a safety-net program to be dependent on anything means that the program is not part of the safety net, as safety nets are by definition not conditional. Yet where a society so values work as a source of a person’s value (e.g., “I am a plummer”), a program can easily be assumed to be part of the safety net without actually being part of it.

Related to the political cost of criticism of superfluous programs (i.e., beyond survival) is the refusal to fund true safety-net programs sufficiently. Congress has “expanded the safety net without a commensurate increase in revenues, a primary reason for the government’s annual deficits and mushrooming debt. In 2000, federal and state governments spent about 37 cents on the safety net from every dollar they collected in revenue, according to a New York Times analysis. A decade later, after one Medicare expansion, two recessions and three rounds of tax cuts, spending on the safety net consumed nearly 66 cents of every dollar of revenue.” One “benefit” of tax cuts is that they “starve” entitlements, which are all grouped together and presumed to be unnecessary rather than serving a true safety-net function.

The result of the prejudice and related starvation is that over the next 25 years from 2012, “as the population ages and medical costs climb, the budget office projects that benefits programs will grow faster than any other part of government, driving the federal debt to dangerous heights.” In other words, safety-net programs are fair game on the chopping block without respect to whether people die without them or are merely inconvenienced. The failure to distinguish between these two is dangerous to the abject poor. Were the distinction made, corporate welfare and even middle-class welfare could be cut by more, I submit, than the additional funds needed to provide the least well-off with sustenance. In other words, we as a society can have a solid survival-oriented (and limited) safety net that is not conditional while actually saving money as benefits are narrowed to people who really need them.

The key is focus in place of upward drift. As just one example, money saved from a means test for social security retirement insurance could be spent in expanding social security disability such that its benefits are not conditional on the long-term ill somehow having worked thirty or forty quarters in the last ten years. How exactly is a retarded adult supposed to find and hold a job for that many quarters?  Making the benefits unconditional with respect to work history is crucial, as the social security supplemental income program is insufficient to meet sustenance needs. It is unconscionable to expect the long-term disabled to have worked in order to receive enough to live on while the middle class receives entitlements classified as “safety net.” The key to making survival a human right is recognizing the need both to expand programs at that level and severely restrict programs aimed at higher levels. Whereas middle- and high-income beneficiaries of government largess can justifiably be blamed, it is sheer cruelty to blame those who are not able to meet even their own basic needs from work for receiving subsidies.

In my rather ignorant, presumptous hometown, an unemployment rate of around 20% went with the recession of 1980 as the machine tool industry went to Europe. The city had the highest unemployment rate in the state in the post-September 2008 recession, and yet the first vote the re-elected U.S. House representative made in 2010 was to cut off unemployment compensation. His claim was that people should get off the dole and work for a living. It was apparently beside the point that there were no jobs; the unemployed were supposed to have them anyway. This is like telling people that the empty space on a table is to be imagined as spaghetti and then getting mad at them for not eating it—as if they should be expected to eat air. Such warped, illogical thinking as the Congressman evinced in 2010 in the rustbelt of America can be linked to reducing a true safety net to a society of entitlements. To hold the poorest of the poor to such warped thinking is utterly cruel as well as ignorant. I hope American society has not come to such a selfish and short-sighted end. The society is only as good as we treat the least among us, for such treatment reveals our true colors.

Binyamin Appelbaum and Robert Gebeloff, “Even Critics of Safety Net Increasingly Depend on It,” The New York Times, February 12, 2012. http://www.nytimes.com/2012/02/12/us/even-critics-of-safety-net-increasingly-depend-on-it.html