Diatribes of Jay

This blog has essays on public policy. It shuns ideology and applies facts, logic and math to social problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear.

28 December 2020

Gouging, Monopoly and the Power of Kings: the Unintended Consequences of Distributed Corporate Tyranny


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

Introduction
Gouging
Monopoly
Power and “Natural” Monopoly
Conclusion
Update on Institutionalized Corporate Racism (12/31/20)

Introduction

When our Founders wrote our Constitution, they focused on a single source of tyranny: the Monarchy of King George III. Even then, the King was hardly a complete tyrant, at least at home. Parliament was already busy wresting political power from the monarchy in domestic affairs. But things were different in England’s “external relations,” including those with us, its then Colonies. There the King was still as much of an absolute ruler as a then-industrializing society permitted.

Our Founders never dreamed that, over two centuries later, the chief threat to individual liberty, personal autonomy and democracy would change. It would no longer come from government, but from the so-called private sector.

Today private corporations own, control or provide all the necessities of our lives. They bring us food, clothing, shelter, and health care. They also provide things our Founders never imagined, like domestic electricity, telephones, radio, TV, motion pictures, personal computers, cell phones, air travel, and electric light. Our Founders likewise never dreamed that corporations would control almost all the information we receive. Yet here we are.

Virtually all of modern life’s considerable benefits come to us from corporations. They make our lives infinitely richer, safer, healthier, more pleasant, and more powerful than our Founders’. In comparison, government brings us various flavors of coercion, including taxes, policing, military service, war and defense, and mask and social-distancing mandates. Government’s direct benefits are few and far between: state- and local-funded education, Social Security, Medicare, interstate commerce and a national commercial and industrial infrastructure that has been crumbling for an entire generation.

Not only do corporations provide nearly all the things that make our lives rich, comfortable, safe and modern. While so doing, they also control them and so control us.

Our Supreme Court has let corporations erase all the “rights of Englishmen” and the “rights of Americans” with the stroke of a click, at least insofar as those rights involve corporations’ goods and services. For them, the “law” is written on take-it-or-leave-it flypaper contracts that corporations themselves write and post on line.

Law schools and jurists universally recognize these flypaper contracts for what they are. They call them “contracts of adhesion,” formed with only implied consent, without any realistic chance of bargaining. Within their scope, those contracts replace all the traditional civil rights of Anglo-Americans—including the right to a jury trial in civil cases—that Anglo-Americans have refined since Magna Carta. They substitute private, secret arbitration based on rules written on flypaper.

Their justification for this sleight of hand is familiar to law students. It arises from the same airy theory of “freedom of contract” that once justified child labor, brutal working conditions and inhumane work hours. Then courts supposed that individual workers, unprotected by law or by labor unions, could really bargain with their powerful corporate employers. Now they assume the same thing about online clickers.

Tim Wu is the only thinker I know who gets it. His penetrating insight has made him something of a celebrity among professors of law. But he’s far more than that. He’s the only pundit in our society who sees in detail how the gears, levers and pulleys of our distributed corporate tyranny work.

Sure, Bernie Sanders, Elizabeth Warren and their disciples have told us that “the system is rigged” against ordinary people. But they don’t tell us precisely how. It’s not just politics, a bought Congress, or a bought-and-paid-for “GOP” puppeteered by a would-be tinpot dictator. Our whole society has morphed from a focus on individual rights to a focus on corporate innovation, profits, and acquisitions. Individuals, as consumers and workers, are but cogs in a vast machine to make money and serve commercial and industrial “progress,” as defined by the oligarchs.

Let me be clear. All this is not the result of some diabolical design. No one decreed our utter domination by corporations. No one wrote a corporate manifesto. There has been no vast, nefarious conspiracy. Distributed corporate tyranny has just crept up on us, an unintended consequence of modern life. But it’s nevertheless real.

We are ruled in large measure by corporations precisely because they have given us enormous benefits. They allow the third of our species that has Internet access to communicate, one-to-one and many-to-many, in ways never before possible. They allow us to fly to the opposite side of the globe in less than a day and for less than an average month’s salary. (Compare that with seven years of indentured servitude to cross the Atlantic in our Founders’ day.) They let doctors peer into our innards to see what’s wrong with us, while we are awake and conscious. They let us develop vaccines against a new pandemic in less than a year.

We let corporations dominate and control us not because they are some satanic power, but because they do us so much wondrous good. Their distributed tyranny is an unintended consequence of vast human progress.

But precisely for that reason, growing corporate tyranny requires acute focus and attention, lest it subvert us unawares. There is no reason why we can’t have most or all of the benefits that corporations bring us without so much unintended subordination and domination of our individual lives, and without giving up our precious individual liberties.

At the end of the day, being tyrannized by a hundred private entities separately is not much better than subordination to a single government tyrant. It could even be worse, as the corporate threat comes in so many different forms and from so many different directions.

This essay catalogues just a few of the real ways that distributed corporate tyranny has crept up on us. It proposes a few solutions. More will have to await further essays and the penetrating insight of great thinkers like Wu. It was he, after all, who outlined on a single page just how much of our democracy’s recent escape from oblivion we owe to things unwritten and mostly unseen.

Gouging

One of my last bits of academic writing was, as it turned out, a recipe for price gouging. As a professor of intellectual property law, I got interested in the pricing of pharmaceuticals monopolized by dominant patents.

With a simple mathematical equation and some numerical tables, I proved a stark proposition. Any drug maker with an economically dominant patent can command, at its corporate whim, whatever rate of return it chooses on its drug-development investment. The only numerical limits, even in theory, are the number of patients who need the drug and the maximum amount each (or insurance) will pay to stay alive or stop their suffering.

With suffering or death at stake, the individual’s payment can be high indeed. To stay alive or stop suffering, wouldn’t each of us pay all we have? In dealing with healthy, overworked doctors, let alone their business bosses, individuals have negative leverage in “negotiating” payment. Isn’t extracting payment while holding all the cards the essence of gouging?

Unfortunately, my paper was not just academic. Mere years after it appeared, a man named Martin Shkreli raised the price of an old antibiotic for parasites over 55 times. There was no proportionate increase in the cost of raw materials or production. Shkreli gouged just because he could, and because doing so promised to make him rich. I have a dark fantasy (but no proof yet) of my paper being taught in business schools as a means of getting rich quick, or of better serving our modern ultimate goal of economic “good,” namely profit.

Shkreli is now in jail for other reasons, but he started a minor epidemic of price gouging in drugs. Drug patents, as it turned out, are not always necessary. Besides patents on the drugs themselves, there can be patents on delivery devices, such as Epi-Pens. Some drugs enjoy sleepy markets with a “weak” monopoly unprotected by patents. But any monopoly can be strong enough to permit price gouging.

As I have argued more generally, there is no “market” in health care. You may shop around for the best doctor, but you do not “bargain” over price, not when your life, health or freedom from pain is at stake. That’s why every developed nation but ours has a health system run by the government, or government-run insurance that pays the bills and negotiates pricing on behalf of patients.

That’s precisely what my more limited paper on patented new drugs concluded. I could see no “solution” to gouging in patent-dominated health-care markets but politics. I still can’t.

Monopoly

Gouging is easier for a seller who has a monopoly. If no one else sells the same thing, then the seller can charge more at whim, without constraint by rival sellers. When the item sold is non-discretionary—something needed for life or health—the gouging can be both highly effective and monstrous. That was Shkreli’s infamous example.

Economic theory tells us that when Shkreli arbitrarily raised the price of his antibiotic by over 55 times, he gave others a chance to enter his “market” under his “price umbrella.” But he could lower or close that “umbrella” at will. So who would undertake the investment to challenge him, let alone in a small market? In practice, hit-and-run monopolies like Shkreli’s can confer just as big (and just as undeserved) benefits as more durable ones. No law requires even a temporary monopolist to return the high prices he has gouged.

I recently had personal experience with just such a temporary monopoly. For years I’ve used N-95 masks for gardening, leaf blowing, sanding, other dust-producing household chores—even spraying aerosol lubricants and other chemicals. I know that N-95s are the best commonly available respiratory masks because they make breathing a bit hard. (The easier it is to breathe, the less a mask is working to protect your lungs or, in a pandemic, others’.)

But at the pandemic’s outset I was hospitalized for an appendectomy. So I didn’t have a chance to replenish my normal supplies of N-95 masks. As the pandemic wore on, those masks were (quite rightly) commandeered for health-care personnel and first responders. So I recently paid about $157 to a company called Clinical Supplies USA for a box of twenty N-95 masks advertised as made by 3M in the US. Before the pandemic, the same box cost about $24.

That was close to a seven-fold price increase. Had my vendor cornered the market in “free” N-95 masks not commandeered for doctors, nurses and first responders? Did it buy up supplies before the orders came down? Were the masks counterfeit? The 3M box and logo looked genuine to me, but I had no sure way of knowing. Maybe the high price was just a matter of high demand and low non-commandeered supply. But I’ll bet that 3M hadn’t raised its wholesale prices by a factor of seven, if only because masks are a tiny part of its huge product line.

So was my vendor taking advantage of a temporary monopoly resulting from unfortunate conditions? You decide. But it sure felt like price gouging to me.

Further examples of health-care gouging are open for any Medicare beneficiary to see. Take any “Medicare Summary Notice” of a claim. Usually beginning on page 3, it has four columns: (1) the “Amount Provider Charged” (2) the “Medicare Approved Amount,” (3) The “Amount Medicare Paid”, and (4) the “Maximum You May Be Billed.” Sometimes the charge (1) for service is the same as the approved amount (2). But mostly it exceeds the approved amount by various factors, ranging from two to multiples of four or even more.

What does this mean? Apparently it means that patients who don’t have Medicare or comparable private insurance can pay four or more times as much as those who do. Does that mean there is a real “market” for medical services? No, it means that patients without insurance, from Arab sheikhs to unfortunate Americans, are subject to price gouging by doctors, hospitals and medical groups. Only the shield of government price negotiation, or similar negotiation by private insurers, protects us favored ones with insurance. (Similar logic applies to the so-called “surprise medical bills,” mostly from emergency rooms, that the now-pending pandemic relief bill is supposed to control.)

The point of these stories is simple. The ideal of markets first proposed by Adam Smith is just an abstract, theoretical “model.” Even in his time, it often bore little or no relationship to practical reality.

Smith’s Wealth of Nations first came out around our Founding, in 1776. Today, his simple model of a “market” composed of numerous sellers of identical (“fungible”) things like carrots or potatoes is grossly inadequate to describe our infinitely more complex commerce, even in theory.

Every big supermarket has thousands of products on sale. Amazon offers infinitely more. They differ not just in brand name, but in ingredients, shape, features, methods of manufacture, shipping, availability and price. Every substantive difference creates an opportunity, and often the reality, of a mini, partial or temporary monopoly that permits price gouging, especially in hard times like now. And today a mere rumor on the Internet— whether true or false—can create a temporary market advantage that goes viral. Recall hydroxychloroquine after our president touted it as a cure for Covid-19. (And please don’t even get me started on toilet paper.)

Does this mean that the government should control the pricing of everything? No, of course not. The Soviet Russians and the “Red” Chinese once tried that approach. Both abandoned it of their own free will because it didn’t work. But equally inoperative is our national superstition that the “invisible hand” of unregulated private markets invariably determines a just and reasonable price in this “best of all possible worlds.”

In any event, modern regulatory bodies are, as compared to the old Soviet Commissars, like modern organic chemistry to ancient alchemy. They don’t regulate price directly; they regulate profit. They allow for all reasonable cost increases and the risk of innovation. They even permit regulated utilities to incur and depreciate the cost of more efficient facilities.

They make sure that corporations’ grand schemes make sense for customers and the general public. That is, they require proof of some discernible, rational public benefit, so that corporations’ plans are not just ways of building empires or increasing prices. They also reduce unintended harms like pollution, unnecessary depletion of scarce materials and global warming. What they don’t do is permit private firms to gouge the public like Martin Shkreli, just because market forces are too weak or non-existent to stop them.

Price gouging, both temporary and durable, is no paranoid fantasy. When markets fail, there is no alternative but a political solution.

Antitrust law is supposed to provide a corrective by keeping private firms from enabling price gouging by suppressing competition or refusing to compete. But sometimes antitrust law fails because the law alone cannot force private firms to compete. Sometimes markets fail all by themselves, without any nefarious intent on the part of corporations.

That’s an essential truth that Tim Wu has helped re-discover. It’s the central economic dilemma of our time. How can we avoid corporate oppression just by requiring competition when private firms don’t or won’t compete? We can prohibit certain types of anticompetitive behavior, such as exclusive dealing or buying up competitors, but we can’t force corporations to compete. We also can’t force markets to exist where there are none, as in most of health care.

Power and “Natural” Monopoly

A seller of anything in a market resembling a monopoly has tremendous power. Unrestrained power is the essence of both domination and oppression. That leads us to a central syllogism of modern life. The conclusion follows easily: as corporate monopoly power increases, corporate infringement of individual liberties and suppression of long-standing national values begins to supplant tyranny by government. Might this be why our corporate masters are trying so hard to get citizens to fear tyranny by government, even when it’s hamstrung by partisan gridlock?

This dismal syllogism is also part of the Internet’s central paradox. The domination of search, online sales, and social media—each by a single firm—makes our individual lives so much richer. But it also gives the three domineers—Google, Amazon and Facebook, respectively—unparalleled power over our commerce, economy, communication, society and politics. Tim Wu has made his reputation, quite rightly, by pointing out that this power and resulting oppression have little or nothing to do with Adam Smith’s primitive conceptions of economic markets.

Let’s start with Google and search. It would be easy, in theory, to break Google up by subject matter. You might, for example, have Google-A for science and technology, Google-B for recipes, Google-C for political news, Google-D for fashion and entertainment, and Google-E for instructions on home appliances.

But how would that feel to users? More like a bane than a boon. Google’s value lies in letting you search for literally everything on its single engine. In a single search, you can scan products and services for sale, obscure points of history, videos of how to grease or fix your automatic garage-door opener, or useful explanations of how unbidden updates to your software work.

I use Google for all these things and more. For me, it’s a modern answer to the ancient Greeks’ Oracle at Delphi. It’s even more: as far as we know, Delphi didn’t let its users check alternative, competing sources of information at the same time.

So Google is what economists call a “natural” monopoly. Just as you wouldn’t want alternative suppliers of water and electricity building redundant water- and electric-supply lines to your home, you don’t want to consult multiple different search sites to look up different things. Google is uniquely valuable precisely because it covers everything.

Similar analysis applies to Facebook, albeit less strongly. Would you rather have different social media for your friends’ and relatives’ personal announcements, your professional life, your purchases and sales, and your political views? I’ve deleted Facebook for a different reason: I think it’s inadvertently destroying our democracy, and I already had unsubscribed to anything related to Fox. But even I can see the convenience and efficiency of having all aspects of social media, all fields and subjects, under one figurative roof.

Yet modern economics also recognizes another essential truth. Monopoly is no less dangerous merely because it’s “natural,” i.e., because artificially building competition would be wasteful and inefficient. Monopoly produces the same dismal market effects—higher prices, lower output, less helpful service, slower innovation and less product variety—regardless of whether it is “natural” or contrived. That’s why natural monopolies are either government owned or government regulated, at least in the fields of public utilities (water, power, sewage disposal, other public works, and now even cable communication, both TV and Internet).

That, in my view, is just where we are today in addressing the distributed tyrannies of the four great online monopolists, Amazon, Apple, Facebook and Google.

All but perhaps Apple are really natural monopolies: they serve us better by being the sole or only source of what they do. We really don’t want each house or apartment to have multiple trunk lines for electricity and information, any more than we covet redundant water-supply lines and sewers. But to avoid the unfavorable natural consequences of “natural” monopolies, we must consider the only alternatives that two centuries of economic progress have conceived: (1) government ownership or (2) government regulation of privately-owned businesses.

Instead of doing this, we have let the monopoly firms themselves, in effect, dictate public policy. This they have done mostly by inattention and negligence, like Facebook trying vainly to control massive, repeated and inescapable lies on its platform.

In the process, these firms have accumulated unprecedented economic, political and social power. Amazon has virtually devoured online commerce—a process that the pandemic has shifted into high gear. Facebook, with the help of Fox, has made it impossible for about half of our population to distinguish lies and propaganda from reality. And Google and Facebook together have so hidden the economic value of private personal information, and the cost of its nearly unregulated commercial use, as to bring Big Brother a giant step closer.

In this respect, Google Facebook and also Apple have accomplished something new. They have partly replaced government-mandated monetary currency with an entirely new source of value: the unforeseen use of once-private personal information.

This unprecedented step has partially displaced the Greenback as a token of value. Private data’s rampant and mostly unregulated use is why lots of monopolists’ Internet services are “free.” Yet free use of private data also has facilitated the growth of mostly secret business, with unfathomable secret algorithms, to “mine” that value. This, too, has vastly increased our modern monopolies’ influence over not just commerce, but privacy, autonomy and personal liberty as well.

Remember those flypaper contracts? Virtually every online corporation uses them to wipe out the entire Anglo-American legal system in dealing with consumers. Among the things wiped out are class-action lawsuits, which make suing for small swindles and injustices economically feasible. Today, flypaper “click here” agreements replace class actions, as well as ordinary lawsuits, with secret, forced arbitration under terms and rules set by corporations’ lawyers.

All this, of course, gets worse when author of the flypaper contract is a monopolist. If there is a real market and real competition, the consumer has the option of seeking another purveyor with a different flypaper contact, at least in theory. But who in his or her right mind would choose a “competitor” to Google, for example, with its global market share of 88.14%?

It bears repeating that all this is not the fault of some vast conspiracy of the oligarchs. Corporations just took advantage of the Federal Arbitration Act and courts’ sympathy for the “efficiency“ of online “click here” agreements. But in the process, the rights of consumers to access the Anglo-American legal system, including class actions, virtually vanished on the Internet. Those rights died as thoroughly as if Congress had actually deliberated, and had agreed with our courts, that destroying the rights of free citizens handed down since Magna Carta is each individual consumer’s will.

At the bottom of it all is the profit motive. Notwithstanding the Business Roundtable’s recent recognition that there’s more to life than profit, the profit motive dominates most of the ways that corporations unintentionally subvert the liberties of citizens. The final ignominy is an assault on America’s most sacred value: free speech.

Unbeknownst to most Americans, our First Amendment simply does not apply to private entities. As every first-year student in constitutional law knows, our Constitution constrains only “state action,” i.e., acts of federal, state or local government. (California’s state-constitutional protection of privacy, which applies to the private sector, is the only significant exception of which I’m aware.) So private persons and firms, unlike government, are free to censor, slant, distort and lie to their hearts’ content, constrained only by the laws of defamation, which Communications Decency Act § 230(c)(1) wipes out for Internet platforms publishing others’ lies.

Have Rupert Murdoch and Mark Zuckerberg set out to destroy American democracy and extinguish the Enlightenment? As much as I believe that their actions may yet help cause those tragic results, my reason won’t let me believe they are doing so intentionally. Both men just wanted to build empires and make money.

Murdoch found bully-pundits spewing nonsense like this immensely profitable, the more so as Trump’s lies caught on among forgotten workers. Zuckerberg was too busy expanding his social-media monopoly and “monetizing” users’ supposedly private data to spend enough money or time to keep foreign and domestic spooks, trolls, agents provocateurs and propagandists off his platform.

The dismal results seem to be mere unintended consequences of the profit motive. But their unintentional character in no way dilutes their devastation of the practical rights of consumers, civilized politics, our foreign policy, our ability to function as a society and, in the end, our national sanity.

Nor does a profit motive invariably advance our national values—even in the still (so far) competitive business of video streaming. Netflix, Amazon Video and Disney+ all reportedly won’t touch an award-winning producer’s documentary about Jamal Khashoggi’s gruesome murder. The reason? Apparently they all covet Saudi Arabia’s business. In a society governed by private profit, human rights, facts, and common sense, let alone social cohesion, can get left behind.

Conclusion

Antitrust law is not just about competition, as conventional legal wisdom now proclaims. If you read the background of the 1890 Sherman Act and the progressive movement that pushed it, a much broader theme pops out. That theme was not hidden; it was quite overt. It was the crushing power of extreme and concentrated private wealth. It was the sheer economic power over workers and consumers that makes each industrial “baron,” at least within the scope of his business, a King.

The Sherman (Antitrust) Act hoped to keep the rich and powerful from dominating and destroying what purported to be a political democracy by accumulating and abusing economic power. The law was not—and was never intended to be—about something so narrow and technical as the mechanics of competition in an ever-changing economy. Regulating specific ways of competing (or refusing to compete) was only a means to an end: the people’s freedom from economic tyranny.

Yet for decades, so-called “conservative” ideologues of the “Chicago School” have sought to confine antitrust law to narrow and technical concerns. These are the same folks who argued, as did Alan Greenspan, that free markets always and automatically correct their own excesses. At least Greenspan was an honest man, if not always too bright: he publicly renounced that view after his adopting it as Fed policy helped cause the Crash of 2008.

Antitrust law was always about curtailing excessive real-world power gleaned from great wealth. It is today. It’s about the rich not just making money, enough so that eight men own half the world’s wealth. It’s about their exercising their power, like tyrants of old, to mold our society to their whim and at their pleasure. For examples, you need look no further than the Koch Brothers (one now deceased) and Sheldon Adelson’s fawning support of our would-be tyrant now soundly defeated in fair elections.

In comparison to the nineteenth and twentieth centuries, our new century has private power more widely distributed. There are no longer just two huge monopolies that threaten democracy: railroads and oil. There are at least four, and (in niches) maybe many more.

But this difference merely reflects the ever-increasing diversity and specialization of our industry and commerce. The dangers to our civil rights and our democracy are similar and the solutions much the same.

We must break up the big combines so they do not govern us while claiming only to buy and sell. Where they are “natural” monopolies whose breakup would be inefficient, we must control or regulate them for the public good, just as we learned to do with public utilities in the last century.

At very least, we must find some way to control “natural” monopolies that allow lies, propaganda, paranoid fantasies and made-up conspiracies to capture the public imagination, leading many voters to beg for tyranny. We cannot begin to rein those monopolies in by eliminating all liability for propagating lies, as does Communications Decency Act § 230(c)(1), thereby giving trolls and foreign spooks a global echo chamber without regard to truth, falsity or motive.

Tim Wu gets this. That’s why he should run our Antitrust Division. But it will take many more like him, who also understand our age, to bring us around. Today we face threats far more serious than the nineteenth century’s monopolies on rail transport, steel and oil. We face monopolies that influence, if not control, what we “know,” what is “truth,” and how we think. The fact that they do this mostly inadvertently nowise belies the catastrophic effects of their inattention and negligence as they drive for profit above all.

Endnote: the “bible” on regulation and natural monopoly. Supreme Court Justice Stephen Breyer is one of a minority of surviving justices not appointed for having a reputation as a “conservative” ideologue. He literally wrote the book on natural monopoly. (Ironically, its current price on Amazon—$49.50 for a new paperback and $47.02 for a digital Kindle version—appears to be an example of gouging.)

The book bears the title Regulation and its Reform. It’s a thorough, exquisitely impartial, and eminently scientific review of the theory and rationale for regulating natural monopolies.

Copyrighted in 1982, Breyer’s tour de force came fourteen years before the Internet’s birth and long before the advent of mobile devices. So it doesn’t directly address the Big Four’s natural monopolies today. Yet it does analyze the results of actual regulation in industries as varied as airlines, telephones, trucking, natural gas and rental dwellings. While Breyer’s thorough analysis debunks regulation as a panacea, it also reveals helpful examples of regulation ameliorating the unintended consequences of market failure.

I can’t say the book reads like a novel. But it comes as close as possible in treating such a dry and intricate subject, for which precision of language and expression is indispensable. All it requires for complete comprehension is a college-level course in basic economics or (in my case) familiarity with economics gleaned from studying and teaching antitrust law. To verify this claim, you can read—for free using Amazon’s “Look Inside” feature—a summary of the theory of natural monopoly, its application, and academic cavils against it in Breyer’s introductory chapter on pages 15-20.

Economics may be a “dismal” science. But it’s still a science. As such, it’s light-years ahead of the typical bumper-sticker thinking that passes for analysis in politics today.

Breyer’s book is the closest thing I’ve yet read to applying theoretical and observational science to social and economic problems at the highest level of our government. Every public servant with an interest in the social and economic impacts of the Internet, with its network effects and “winner take all” tendencies, should read it. Because the book long predated the Internet, readers will have to apply its lessons by analogy. But isn’t that what people trained in the law are supposed to do?

Update on Institutionalized Corporate Racism (12/31/20)

Among the many mostly-inadvertent evils of business corporations is institutionalized racism. What if some are unfairly milking Black and Hispanic communities for extra profit?

No one knew that the City of Ferguson, Missouri was doing that, with excessive policing and fines, until Eric Holder, as AG, proved as much with diligent fact-finding. If a whole city does it, with its government supposedly in the sunshine, why not a corporation that can hide its activity under the umbrella of trade secrecy?

That’s precisely what a recent story in the New York Times accused some home-insurance firms of doing in minority communities: systematically stiffing minority customers in adjusting claims and thereby increasing profit margins with institutionally racist policies.

Some workers in the industry believe the practice of discrimination is widespread, a sort of industry “culture” that harms both Black and Hispanic communities. But the evidence is mostly anecdotal. Why? Insurance firms hide their practices under claims of “proprietary” commercial strategy, i.e., trade secrecy.

Of course the law of trade secrets (which I taught for decades) was never meant to cover up institutionalized discrimination. Its purpose is to enhance competition among business firms by allowing them to keep their business strategies secret and so to complete better.

But what happens when an insurance firm tries to hide its statistics on milking minority communities for extra revenue through systematic discrimination? Is that practice a proper “trade secret”? Is it a proper “trade secret” if doctors and hospitals hide statistics on their below-par medical records in order to stay competitive?

As it turns out, that second question was something my selfsame paper on price gouging for patented pharmaceuticals, discussed above, later asked and tried to answer. (The paper has two parts.)

Of course there’s only one way for any just and proper society to answer both questions. Hiding evidence of wrongdoing for profit by claiming the wrongdoing as “proprietary” commercial strategy is simply wrong. Courts should not honor the wrongdoing by calling it a trade secret and letting corporations hide it.

I doubt the old common-law courts that developed the notion of trade secrecy would have done so. They kept their eyes on the ball of justice. But today a detailed statute—the Uniform Trade Secrets Act—governs the law of commercial secrets in nearly all of our 50 states. Highly skilled and highly paid corporate lawyers often get judges lost in the intricacies of the statutory language, so they lose the thread of justice.

Again, the harms are mostly inadvertent. Home insurers didn’t set out to harm minority communities any more than doctors and hospitals set out to harm future patients by depriving them of statistics needed to locate better care. They just wanted to make more money. Yet the end results were indeed harms that any just and rational society would avoid.

The crux of the matter is just common sense. If home insurers, doctors and hospitals have legitimate reasons for commercial secrecy, courts can accommodate them with finely tailored sealing of records or gag orders. But the wheels of justice must grind on. They cannot be diverted as excuses for hiding things like systematic discrimination or inferior medical-success records that future patients ought to know. In a society that valued justice over profit, those conclusions would be glaringly obvious.

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22 December 2020

The Gift of Silence


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

Today’s New York Times gave us a great gift for the holidays. The front page of the print edition had not a single story—nor a single headline—about Trump. The closest thing was in the lower left-hand corner: a bit about AG Bill Barr distancing himself from Trump while on the way out the door.

Even that story was only indirectly about Trump. It had to mention his lies to explain why Barr’s refusal to endorse them with formal, special-counsel investigations was newsworthy. Apparently, Trump’s made-up conspiracies now merit front-page coverage only as reflected in the words and acts of people deemed sane. That Bill Barr leads the pack of those people is a measure of just how low we’ve sunk.

The welcome vacuum of Trump’s nonsense sucked in real news. There were stories about the coming relief checks, misnamed “stimulus,” their political implications and fraught history, the virus’ mutation, Kelly Loeffler’s history as an entitled white workaholic and über-opportunist in both business and politics, and a curious series of online thefts of literary manuscripts.

This also was a great gift. To me, it felt like relief from a nagging headache or chronic pain. (For many months, I have only scanned, not read, the front page, ignoring worthless “news” about Trump.)

Once the initial shock of returning normalcy fades, you hardly notice it. To healthy people, the absence of pain is unremarkable. But it can be noteworthy nevertheless.

Now we can all feel the relief. The steady drumbeat of lies, falsehoods, insults, made-up conspiracies, taunts, broadsides, nicknames and epithets is gone. So are the rants and Tweets with ALL-CAPS nonsense. The Walter Winchell who has dominated our national speech and thought for five long years is off the stage he constructed. (People of a certain age, especially, those in show business, will know who Winchell was. Those who have to Google him are blessed.)

The welcome stories about the relief bill flowed naturally into this news vacuum. Released from the endless stream of high-volume distractions, our senators had gotten got back to work. They had begun to recall the reasons why they had run for office, why they had been elected, and what their jobs are. What better way to recall than to give voters relief from the worst pandemic in a century and (as a result) the worst economic depression in over seventy years?

So I think the relief bill arose out of cause and effect. The immediate cause was not all the suffering, which has persisted for months. It was the Silence of Trump.

Before that Silence, our public figures were like prepubescent children hurling insults at each other on a grammar-school playground. The quick riposte and cheap hit were all. When they had even a moment to think, they devoted it to “how can I protect myself” and “what’s in it for me”? How can I turn the latest distraction and false controversy to my advantage? How can I avoid the Wrath of Trump?

Then came the Silence. Then came the rediscovery that there’s a whole world out there. It may not be entirely to the heart’s desire. This year may be the worst in our national history since the depths of the Great Depression or the early, losing years of World War II. But it’s real.

Reality is not overrated. It’s the chief concern of the sane. For four years (five, including the candidacy) our news media, our public thinkers, our pols and even our bureaucracy have been focused on the outpourings of a single self-obsessed mind. Now they can focus on reality.

It was all a bit like what we used to call “Kremlinology,” or how we now focus on the Mind of Xi. But in this rare case, it was all directed at our own government and our own supreme leader. Who knew what new raven of derangement would fly out of his mouth or pen on any day? Who knew when it would change direction in mid-flight, often by 180 degrees?

Some day, a precocious graduate student or underemployed think tank will tote up all the hours of useless labor devoted to reading the Mind of Trump, deciphering his rants, and figuring how to respond. Some day they will put a price on that labor. Including the price of lost opportunities, the sum will no no doubt rise to trillions.

But for now, it’s enough to exult quietly. We can think again. We can plan again. We can address our real problems as if we were rational people deserving our self-awarded title Homo sapiens. We can congratulate ourselves on the survival of our democracy, which still might be temporary. We can hope that the relief bill will be only the first fruit of our return to the land of the real.

That may seem a small thing. It might seem overdue and delayed. But the return to sanity is never trivial. In this most dismal of all holiday seasons for those of us still living, it’s something to hold and to cherish.

Footnote: Times’ headline writers keep calling them “stimulus” checks, despite repeated admonishment by the the Times’ own columnist Paul Krugman, a Nobel Prize winner in economics. Maybe the people who write headlines should read their own newspaper. God forbid they should take a course in economics.

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16 December 2020

Eric Holder for AG, Again!


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

As a retired law professor, once Articles Editor on the Harvard Law Review (1977-78), I have a special perspective on the post of Attorney General. It makes me long to see Eric Holder return to his good work. This post explains why.

The practice of law has two equally vital aspects. The first is the law’s language: the words of the Constitution, statute or ordinance in question. The second is facts: the real-life situations to which the law applies.

Human language is inescapably abstract, vague and fuzzy. It’s even more so in our Constitution, ratified in 1791. Today, we have to apply its language to things like vaccines and large-magazine automatic weapons, which were beyond dreams at that time.

Language is always subject to interpretation and “spin.” So non-lawyers often take it to be the law’s principal preoccupation. But what non-lawyers often fail to appreciate is that the facts are equally important.

Our Constitution doesn’t let our courts rule or make law in the abstract. That is Congress’ bailiwick. Our courts can only apply the law to “Cases and Controversies,” that is, to specific sets of facts, determined by careful investigation and revealed in oral, written and recorded evidence.

In my 75 years, I’ve seen a few Attorneys General. I’ve seen criminal toadies like Nixon’s AG John Mitchell. I’ve seen professionals like Mike Mukasey, who bend their professionalism in the service of politics. And I’ve seen Bill Barr, who bent his lawyer’s license and his weak professionalism to the breaking point in disgracefully “spinning” the Mueller Report and obsequiously serving an imperial Executive. Hardly ever have I seen an AG like Holder.

Two things, I think, make him nearly unique. First is his calm, measured and invariably understated way of speaking. His personal manner befits a lawyer. Sometimes we want our pols to speak forthrightly and with emotion. But those of us trained in the law most want our chief lawyers never to overstate.

The second and most important thing about Holder is his approach to facts. When police killed Michael Brown in Ferguson Missouri, Holder didn’t mouth off. He didn’t make any assumptions. He didn’t grandstand or “view with alarm.” He assembled a team and went to Ferguson to find the facts.

After several months, Holder’s team produced two reports, which he summarized here. One found no basis to prosecute the officers involved in Michael Brown’s death. But the second report showed how Ferguson and surrounding communities had built a system— disproportionately affecting Black people—that milked citizens for revenue with excessive policing and fines for traffic, parking and other minor violations. This second report was so effective that eventually six city officials resigned or were fired, and the City of Ferguson agreed to a DOJ consent decree to reform its system.

This was lawyering at its finest. It wasn’t spinning legal language and obscure histories to speculate on what our Founders would have thought about modern developments of which they in fact never dreamed. It was finding out what was actually happening on the ground in our nation today.

Today facts and reality are under challenge as part of a wholesale political assault on truth. So what we most need in our law enforcement is a dogged and relentless emphasis on facts. Holder personifies that emphasis.

Lawyers like Rudy Giuliani and Bill Barr have become parodies of the legal profession, the butts of late-night comedy. In contrast, Holder is a professional’s professional. When you consider his low-key, pleasant, understated personality, you will find it hard, if not impossible, to find a lawyer with better qualifications and personal qualities, let alone such recent and successful on-the-job experience.

I, for one, will be disappointed if Holder doesn’t get the chance to build on the excellence he brought to Justice under President Obama. Our rule of law would be poorer without him: he has proved his mettle under fire.


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15 December 2020

The End of Rage


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

    “Think you are today what yesterday you were;
    Tomorrow you shall not be less.”—The Rubaiyat of Omar Khayyam
Once we were a great nation. We devised and built the Internet and gave the world its plans for free. We put men on the Moon. We invented nuclear power and nuclear weapons, in secret, during the most terrible war in history, working from bare theories imported by foreigners. We were the first to develop electric lighting, motion pictures, controlled flight, supersonic flight, lasers, transistors, integrated circuits and many other modern marvels.

We beat Yellow Fever and made the Mississippi Valley safe for civilization by tracking down and controlling the disease’s vectors: mosquitoes. Later we helped to conquer smallpox and polio with vaccines worldwide and to suppress AIDS with life-saving drugs.

Once we were a practical people. We trusted science and technology, and each other. A nation of farmers, small businesses and tinkerers, we fixed our own buggies and farm equipment. Our Wright Brothers, who invented both wind tunnels and controlled flight, were bicycle makers. They also invented the science of aerodynamics without calling it that. Like the rest of us, they lived and worked close to the practical realities of life. They worked with their minds but also with their hands.

Today we seem to have lost all that. We are no longer tethered to the reality of physical objects that each of us can hold, touch, and understand—that many of us could repair, build and even devise. We no longer can see cause and effect in the work of our own hands. We no longer have barns to raise and fields to clear from wilderness, so that whole communities can work together. Almost every physical thing that makes our lives easy is built, grown, managed, repaired, and controlled—and was nearly always invented—by someone else, often far away.

We live in an unimaginably specialized society. On any scale of history, it’s also unimaginably rich. But the price is high. Nearly all of us have lost control over the things we rely on to live.

A generation ago, farmers and teenagers could fix their own cars. (I, too, once rebuilt a Chevy piston engine.) But now cars have computer chips built in billion-dollar factories, often in Asia. These chips require thousand-dollar machines to test and diagnose.

How many people not in the business can fix their own computers or mobile devices and program their own software? Virtually none. And as cars shift to electricity from internal combustion, the ratio of visible mechanical stuff to closed-box electronic parts, stamped out in those billion-dollar plants, will only decrease. Now many of those billion-dollar factories are in China or Taiwan.

As with the things that make our life rich, so with society. The overwhelming richness and variety of our physical possessions would be impossible without corporations. They promote specialization and free productive activity from the intrigue of politics.

Yet corporations, too, are blindingly various, remote and complex. In theory, shareholders control them. But only about half of us own shares. Of those who do, how many have the time and expertise to attend shareholder meetings, organize other shareholders, and have any impact on corporate decisions? There are only a handful such nationwide. We call them corporate “gadflies.” They make interesting reading on the business pages, only occasionally breaking into the general news.

So in practice a small cadre of physically and socially remote oligarchs runs our productive machinery, perhaps a thousand people in all. In a nation of 331 million and counting, the bosses that call the shots are numerically little more than rounding error.

Not surprisingly, they arrange for most of the monetary benefits of the productive activity they supervise to flow to them. And so we have the 1% and the 0.1%. And so “monetize” has become a verb and a way of life.

So what’s the upshot? What have we become? We are a nation whose ordinary citizens, quite rightly, feel control over life, job, family, future and even community slipping away. And few, apparently, feel any confidence about getting it back.

There’s a common human answer to loss of control: rage. That’s what we’ve been experiencing the last four years: an explosion of blind rage.

Rage is one of the least helpful of emotions. It steps in when reason fails but pain persists. And so we have millions willing to obey speed limits and wear seat belts but not masks. And so we have tens of millions blaming others who don’t look like them, speak like them or pray like them for their pain.

Rage is not constructive. But because it’s blind, it can be directed.

Donald J. Trump has been a master at that skill, as was Caesar. Someday, someone should tally his Tweets and count the proportion that lay blame. It will no doubt be considerable, just as the raw number is astronomical.

Trump’s Tweets worked well for their intended purpose: to lay blame and direct rage. So we have spent that last four years in the echo chamber of his cunning but diseased mind, learning and expressing our rage.

Yet somehow, some way, reason and common sense prevailed. Enough of us sensed that rage is not a constructive emotion and voted for change. (As historian Allan Lichtman taught us, change is what presidential elections are all about. His theory explains every presidential election since 1860, including the last two in advance.)

Rage is a powerful emotion. It takes time to subside. After you curse your spouse or kids, strike someone, or put your fist through the drywall, you need time to recover. Sometimes it’s minutes; sometimes it’s hours; sometimes it’s days or years. Yet eventually reason and calm return.

That’s where we are now as a nation. We have picked a leader who personifies our recovery from rage. He himself has overcome the loss of a wife and two kids and the self-rage of intractable stuttering.

Joe Biden relies on faith, basic decency and the ability to solve problems practically—once notable characteristics of our nation. He has the experience in pre-presidential elective or appointive Executive public office (47 years) that perseverance demands, and that only two of our postwar presidents had: LBJ (26 years) and GHW Bush (17), as distinguished from Ronald Reagan (8), George W. Bush (6) and Trump (0).

So maybe we can hope. Controlling rage, like directing it, is a learned skill. We have a leader who knows it well.

We also have a people exhausted by rage. We have media which, one can hope, have learned their lesson. They will relegate Trump, once out of office, to the likes of Rush Limbaugh, Alex Jones and Tucker Carlson: madmen on the fringe who feed on rage.

When all is said and done, our problems are hardly insurmountable. We must provide relief from pandemic-caused job loss, eviction and destitution. We must get people who willingly obey speed limits and wear seat belts to wear masks, distance themselves and avoid crowds, at least until vaccinated. We must take better care of the groups and people who have unfairly been consistent objects of rage and neglect. We must bring our critical supply lines and some of our factories back from China. And we must help preserve our planet by converting our energy infrastructure away from fossil fuels—an activity that will provide good, skilled jobs for decades. While doing that, we must also repair and upgrade the rest of our infrastructure.

Above all, we must devolve control over local matters, as much as we can, to the local level. Only in that way can we revive the sense of personal power that our people seem to have lost.

None of this is rocket science. It’s just good organization and common sense. It’s what we can do well once the rage subsides. It’s the kind of thing we did well for most of our history. Tomorrow we should not do less.

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09 December 2020

Xavier Becerra, Lloyd Austin and the Politics of Diversity


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

President-Elect Biden’s selection of Xavier Becerra as his Secretary of Health and Human Services reportedly came as a surprise to many. He’s not a doctor or health expert, some thought. So why should he lead our response to the worst pandemic in a century? The answer lies both in practical reality and in politics.

By and large, we Americans talk the talk of equality while walking the walk of social and cultural domination. Black people have, by far, endured the longest and greatest suffering; but they not the only victims. The pandemic has sharpened our focus on this point: our minority groups are both pandemic victims and vectors.

Here, in tabular form, direct from our own CDC, are the dismal statistics for our minority groups, presented as multipliers, with rates for non-Hispanic whites normalized to one:

Minorities’ Covid Suffering,
as Multiples Compared to Non-Hispanic Whites’

MinorityCase RateHospitalization
Rate
Death Rate
Black People1.4x3.7x2.8x
Latinos/Hispanics1.7x4.1x2.8x
Native Americans1.8x4.0x2.6x
Asians0.6x1.2x1.1x
* Note: all minorities except Latinos/Hispanics exclude them.

As the endnote shows, the increased suffering of our two biggest minorities doesn’t begin to explain our utter national failure to cope with the pandemic as well as other nations have. But it does suggest how startlingly unequal our current society is in things that matter most to people: health, wellness and life itself.

To put our Latinos/Hispanics in perspective, we need one more number. How many of them are there? As of last year, they numbered 60.6 million people, or 18% of our entire population. That’s nearly half again our fraction of Black people. It’s also within ten percent of the entire population of the United Kingdom.

So Latinos/Hispanics are not our “second” minority. In size, they are our first. Our only larger racial/ethnic group is the presently dominant group, non-Hispanic whites. Latinos/Hispanics are not just our biggest minority. They are our fastest growing one, too.

One last fact is worth noting. Among the 60.6 million are about 11 million undocumented immigrants. As I’ve concluded before, they comprise a class of modern serfs. Their constitutional “rights” mean nothing because each of them can be deported at any time, with a single phone call by a boss or disgruntled neighbor. And even if their deportation is unlikely, their well-justified fear of it keeps them in the shadows. It stops them from exercising whatever human and legal rights they may possess.

With these facts in mind, we can now appreciate the justice, if not the brilliance, of picking Xavier Becerra to head the Department of Health and Human Services. We can start with his qualifications: three years as California’s Deputy Attorney General, two years in the California statehouse, 24 years in the US Congress, and four years as Attorney General of our most populous and most productive state, the world’s fifth largest economy. While in Congress, he served on the powerful Ways And Means Committee, chaired the House Democratic Caucus, and was Ranking Member of the Ways and Means Subcommittee on Social Security.

As my own table for notable presidents and pre-Trump candidates shows, few presidents had as much experience before entering the White House. Add to that Becerra’s recent zealous advocacy in protecting the Affordable Care Act and its beneficiaries in court, and his rightness for the job comes into focus. He’s smart and plugged-in enough to find, hear and heed the best experts that science can provide. As a grizzled veteran of Congress and the courtroom, he knows how to value and protect science in ways that scientists themselves cannot.

But the brilliance of Becerra’s appointment doesn’t stop with his fitness and qualifications. It involves politics, too.

Democrats are the party of the people, as distinguished from the oligarchs who finance and control the GOP. Trump’s ersatz “populism” was always a con job. It’s impact will fade along with his marginalization and increasing derangement. If he really had working people’s backs, his first big bill would have been a vast infrastructure bill to put millions of workers into solid, well-paying skilled jobs. Instead, his first (and only) successful legislative initiative was a huge tax cut, the vast bulk of which went to the rich and big corporations.

So think about the opportunities. We have a minority the size of Great Britain living among us. It includes 11 million serfs. About 32 million are eligible to vote, more than eligible Black people. But according to recent research, only a bit more than half express strong interest in voting.

That leaves about 16 million “forgotten” citizens who might vote if they saw reason to do so. That’s over twice Joe Biden’s winning margin in November.

Yes, the last Congress brought 38 Latinos/Hispanics into the present (outgoing) House. Yes, the present Senate has four. But the Congressional Black Caucus, representing a smaller minority (with some overlap), counts 55 members of Congress.

Anyway, half of the Latino/Hispanic Senators—and the most notorious—are Ted Cruz and Marco Rubio. Think their “whiter than white” and “pull the ladder of up after me” approach to immigration and politics in general can pull in the vast majority of Latinos/Hispanics suffering and struggling nationwide? Does their abject surrender to Trump’s inhumane “get it and get over it” Covid-19 policy meet these voters’ needs? Can it inspire their first, tentative and fearful entry into politics?

If, like me, you answer these questions with resounding “nos,” you can understand why Becerra’s appointment was not just a much-needed exercise in good government, but a brilliant political stratagem.

Lloyd Austin’s appointment as Secretary of Defense is another such stratagem. But it’s also much more. Ever since Harry Truman integrated our military in 1948, it has been an employment refuge for minorities. It has stayed a step ahead of the private sector in providing equal opportunity for diverse patriots.

Colin Powell’s 1989 ascent to Chairman of the Joint Chiefs followed, in a natural progression of color-blind meritocracy. In contrast, Trump’s lily-white top brass has sent the wrong message, at the wrong time, to a people just now awakening (once again) to the ravages of racial and ethnic injustice. It begs diversification.

More than that. White supremacists gravitate toward the military because they tend toward the violent side. In a nation becoming more diverse by the hour, there is no way supremacists can achieve their goals without violence. They are heirs to the Ku Klux Klan, the Night Riders and other white terrorists who obliterated America’s promise of equality for an entire century after a misguided president named in a disputed election pulled federal troops out of the South.

It’s no secret that pockets of white supremacism still exist in our military and that a few lower-level leaders tolerate and even coddle them. As Secretary of Defense, General Austin will quietly and gently squeeze them out, as will his personal example as leader. In a society that for four years has begun descending once again into bitter racial and ethnic division, that may be the most urgent job of our next Secretary of Defense.

Another vital job is bringing military discipline, honor and efficiency to the national rollout of Covid vaccines. (Has anyone ever associated the word “discipline,” “honor” or “efficiency” with Donald Trump?) As President-elect Biden wrote in a must-read Atlantic article, General Austin is a tested expert in logistics under pressure. He planned and executed the drawdown of 150,000 of our troops from Iraq, while they were still under fire. So he’s the right logistics man for the vaccine rollout, too.

There remains a congressional waiver of the statutory requirement that Secretaries of Defense not be made such within seven years of active duty. Before granting that waiver, Congress should be sure that General Austin understands and will live the tradition of civilian control of our military and its proper limits. Biden’s decades-long working history with General Austin leaves little doubt that Austin should pass that test, too.

Like me, most progressive whites are delighted to see minority members in high positions, as long as they are well-qualified, as Harris, Becerra and Austin self-evidently are. Yet for the minorities they represent, these selections are not mere happy symbolism. They’re life-changing, eye-opening events. They’re proof positive that “there’s room at the table for me, too.” They’re real people that parents can point to and say to their kids, “you can do it, too.” Think maybe those eye-openers might increase forgotten minorities’ interest in voting?

Joe Biden may be a moderate on policy. But personnel is policy, too. By his selection of superior leaders from among women and marginalized, long-suffering groups, Biden can expand the Democratic base, bringing forgotten people into politics. He can help insure that by 2024, more than just two-thirds of us will vote. Joe is, above all, a “people person,” and his people will change us the right way, one experienced and attractive exemplar at a time.

We can only hope that Harris, Becerra and Austin are just three of many picks for those purposes. With our malapportioned Senate and Electoral College, and with the GOP hell bent on voter suppression and gerrymandering to keep the oligarchy in power, our nation must instill as much hope in its forgotten people as quickly as it can.

It was hope—not fear or outrage—that brought us Obama as President. The hopes of tens of millions of new voters, riding on strong, visible leaders who look like them, can bring us home, whether or not DC and Puerto Rico ever become states.

Endnote on America’s Pandemic Disaster

Does the greater pandemic suffering of Black people and Latinos/Hispanics explain the US’ dismal performance in fighting the pandemic overall? Let’s see.

Black people and Latinos/Hispanics constitute 13.4% and 18.5% of our population, respectively. So the multiples in the table above raise the total national case rate by following fraction:

0.134 x 2.6 + 0.185 x 2.8 = 0.8664

They raise the total death rate by the following fraction:

0.134 x 2.1 + 0.185 x 1.1 = 0.4849

Thus the Black and Hispanic populations together raise the national case rate by a factor of 1.8664 and the national death rate by a factor of 1.4849.

Yet here are the case and death rates (per one million population) for a few selected properly responding countries, as compared to the US’, derived from this source:

Comparative Covid Suffering in Selected Nations

CountryCase RateDeath RateMultipliers
of US Rates (Case and Death Rates)
USA34,7817621 and 1
Germany9,7461543.57 and 4.94
Canada7,9802914.35 and 2.61
Australia1,0833532.1 and 21.77
Japan9351537.5 and 50.8
South Korea5611061.99 and 76.2

So the increases in case and death rates due to the US’ Black and Latino/Hispanic populations’ greater suffering come nowhere near to explaining the discrepancies between the US and nations that properly managed their response to the virus. In fact, the US is number one in both case and death rates on this worldwide chart of Covid suffering. The Trump Administration’s incompetence and mixed messaging has brought disaster to every one our many races and ethnic groups, killing 280,000 of us and counting.

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06 December 2020

Non-Voters: the Dog that Didn’t Bark


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

Three pieces in Sunday’s New York Times paint a dismal picture of our age. A front-page story lauds the huge voter turnout in the presidential election. Nearly 160 million Americans cast their votes. That’s the largest number ever and the highest percentage of eligible voters since 1900, before women got the vote.

But the same story also notes a strong counter-current. Republicans pushed and are still pushing to suppress votes and dilute their impact by gerrymandering and other dirty tricks.

Two other stories paint a much darker picture. A “White House Memo” by crack reporter Peter Baker portrays Trump as a deranged and failing tyrant in the mold of Macbeth, whose Shakespearean agony is yet to come. A third story cites statistics showing that Democrats in general, and Biden in particular, are losing the working class, i.e., non-college educated voters. Headlined “Joe from Scranton Didn’t Win Back the Working Class,” it reports:
“Of the 265 counties most dominated by blue-collar workers—areas where at least 40 percent of employed adults have jobs in construction, the service industry or other nonprofessional fields—Mr. Biden won just 15[.]”
It concludes that winning Congress and the presidency may get increasingly hard for Dems, and that a tectonic shift in workers’ political allegiance may be under way.

Together these stories justify a double dose of Zoloft. If an increasingly deranged president lost re-election only by virtue of workers’ allegiance to Democrats, and if that allegiance is shifting not just due to outrageous lies and propaganda, but to real demographic shifts, what chance does American democracy have?

Yet sometimes it pays to keep your eye on the ball. For quants, that means paying attention to the biggest number.

As the first story reports, the number of certified Biden votes exceeded votes for Trump by seven million. Maybe there’s reason to believe that number might be dropping. But there’s a much, much bigger number that nobody seems to be talking about. It’s the number of eligible people who didn’t vote at all.

The Times lead story happily reports that the recent turnout was an “eye-opening 66.7% of the voting-eligible population[.]” But that’s just two-thirds.

Let that sink in. In an existential election that drew nearly 160 million voters, one out of three simply didn’t bother to show up. That’s about 80 million people, well over eleven times the winning margin.

Isn’t that, and not some presumed and subtle shift in workers’ sentiment, the dog that didn’t bark?

What pollsters and poli-sci buffs ought to be laser-focused on is who those people are and why they didn’t vote. For they—not MAGA-hat wearers—are the key to America’s electoral future. Just imagine what might happen if the US had the same voter turnout as Australia, whose mandate for voting attracts turnouts over 90%.

I have my own hypotheses. Maybe educated people vote because they’ve been taught to believe in democracy and its power for change. Maybe Trump’s supporters vote because he, like Mussolini, has reduced a complex and confusing world to a simple formula. In effect, he says, “Vote for me. I’ve got your back. I’m smart and powerful, and only I can fix it.” And he’s such a riveting attention grabber that voters, trained by video media like Pavlov’s dogs, believe.

But what about the one-third who didn’t vote at all? Maybe they’re not well educated. Maybe they’re mostly poor or near-poor. Maybe they belong to groups on the margins of society, those who never saw (or trusted) a pol who claimed to have their backs. (Maybe some, like an acquaintance of my wife, are wealthy and just don’t bother. But how many are they?)

There are many reasons why workers might not vote. They might think the elite have stacked the deck against them—a proposition for which there is considerable cold evidence. But they might have rejected Trump, too, because (pick one): (1) he’s a miserable excuse for a human being; (2) he’s self-obsessed and doesn’t make much sense; (3) he’s out of touch with reality; (4) no one who brags as much as he does is credible; (5) he’s a plutocrat himself, or at least he brags he is; and/or (6) if he really had workers’ backs, he would have passed a huge infrastructure bill, not a huge tax cut, in his first six months in office.

These voters might not read or watch the news much. They’re probably not big on social media, where 10% of users produce 90% of the political smokescreen, including made-up conspiracies. They’re just trying to survive in a world that seems rigged against them—to make a living, raise a family, and get by with part-time work and maybe two or three jobs.

How do you reach these non-voters? You reach them the old-fashioned way, through persistent, direct personal contact. You reach them through friends and neighbors, people they know, people whom they trust. You reach them with retail politics, not by spending millions on media ads they may never see, or that they may have the good sense to reject just like commercial ads for defective products they can’t afford.

In short, you reach forgotten non-voters through on-the-ground “organizing” groups like Stacey Abrams’ Fair Fight Action.

I know, I know. There are a lot of other groups doing good work on the Abrams model. A recent New York Times article covered some of them, all but complaining about Abrams’ star power.

But Abrams herself is far from a spotlight grabber. She’s the antithesis of Trump. If she’s gotten notice it’s not because she seeks it, but because she’s been the first to achieve real results. After losing the Georgia governorship to vote-suppressor (now governor) Brian Kemp, she helped flip Georgia in the presidential race, for the first time since 1992, and for the first time for a non-Southern candidate since JFK in 1960.

To me, that’s proof of concept enough. The way for Dems to win is not to fight over the scraps of voters so brain-dead that they remained undecided in the most cataclysmic political Armageddon since our Civil War. It’s to motivate a good chunk of the one-third of all citizens who didn’t even bother to show up. It’s to reach citizens who’ve given up—just as did Barack Obama in 2008 and Joe Biden this year—but more systematically, forcefully and deliberately.

The big question that no one has answered so far is simple but profound: Does money or organizing win elections? To me, the Georgia runoffs are a simple test of concept. This year’s presidential race was ambiguous on this point because Dems, motivated by existential fear, managed to outraise the GOP by considerable margins. So it’s possible to conclude that spending hundreds of millions on vast media extravaganzas, while ignoring the ignored, actually worked, even though it didn’t work so well for down-ballot races.

But Georgia’s runoffs are different. Stacey Abrams, her group and others have been working there quietly and efficiently for over two years. That’s a microsecond in politics. But at the presidential level they flipped the state that, since Sherman’s march to the sea, has been the focus of Southern regional resentment for a century and a half.

In my view, if Democrats Ossoff and Warnock win Georgia’s runoffs, it won’t be because of incessant, expensive and clever media ads motivated that Dems’ “base.” It’ll be because Abrams and similar organizers got a big chuck of the forgotten to wake up and vote.

A victory for Warnock and/or Ossoff will help prove that patient, quietly effective door-to-door organizing works. It will reveal neighbor-to-neighbor cooperation as more vital than overpaid political manipulators.

Even if Ossoff and/or Warnock lose, I won’t despair. Nor will a loss refute this hypothesis. The reason: the pandemic has set back door-to-door organizing for almost an entire year. It has made 2020’s road to neighbors’ doors muddy and hazardous.

Now vaccines are on the way. The pandemic will recede. Stacey Abrams and those like her are forces of nature. They will persist. They will persevere, and eventually they will prevail. They will get forgotten citizens registered and to the polls.

That’s my belief, and I’m sticking with it. From now on, my money’s on the organizers, not the overpaid “operatives.”

Those of us who still love Obama know he started out organizing, too. He knew that voting is an act of trust, both in the system and in those you vote for.

Trust isn’t something commandeered, willy-nilly, by massive impersonal propaganda media like Fox and Facebook. The Soviets tried that tack and eventually failed, because trust is a gift of one human being to another. If American democracy is to survive, its future lies in people who believe that and put their belief into action.

Endnote: The Organizers. In citing Stacey Abrams by name, I don’t mean to ignore or belittle others. Despite keeping a low profile, she’s a national symbol and a standout leader of her group, Fair Fight Action.

But there are others. There’s Beto O’Rourke in Texas, who reportedly visited every one of Texas’ 254 counties in his pickup truck in his unsuccessful 2018 campaign for the Senate. Other Georgia organizations include: Helen Butler’s Georgia Coalition for the Peoples’ Agenda, Georgia Stand Up, and the New Georgia Project (led by Stacy Abrams’ protege Nse Ufot). Non-Georgia-focused organizations include: Black Voters Matter, Democracy for America, The People Campaign (Texas), Progressive Turnout Project, and Voter Protection. (It might be helpful if there were a national umbrella organization to keep records and a list, and so to funnel contributions from people like me who want to support these groups but aren’t in the daily maelstrom.)

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02 December 2020

Bring Exile Back


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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Cape Up!

Tired of political gridlock? Fed up with pols—even the ones you support—saying the same thing over and over? Wondering why even Dems can’t agree among themselves? Despairing for the future of our democracy?

Then I have two words for you: “Cape Up!” That is, listen to Jonathan Capehart’s eponymous Washington Post podcast. All by itself, it’s worth the price of a WaPo subscription.

An ex-engineer and ex-scientist turned lawyer and law professor, I’m an efficiency freak. I don’t listen when I can read: reading’s much faster. I’m also retired and don’t commute to work. So as a rule, I don’t listen to podcasts.

But after three mainline injections of hope, I’m making an exception for Cape Up. The first two were Capehart’s interviews with Jaime Harrison, who tragically just lost to Lindsey Graham in the South Carolina Senate race, and Julián Castro, former mayor of San Antonio and Obama’s HUD Secretary. The third and best, this Thursday, was Capehart’s interview with Ritchie Torres, the South Bronx’ new congressman-elect.

Both Harrison and Torres were raised in poverty by single moms. Both are Black. Torres is also Afro-Latino and openly gay.

But that’s not all that’s inspiring about them. Both are brilliant, practical and superbly articulate. Here’s how Torres responded to a pie-in-the-sky question about a possible interim Senate appointment before attending his first official day in the House: “As much as I respect you, Jonathan, I’m gonna resist commenting on fanciful hypotheticals.”

Responses like that, uttered without hesitation on the spur of the moment—not composed with painstaking care (and plenty of time) like this Blog—impress me.

If you listen to just one interview, pick the one with Torres, if only because he won. In January he’ll improve our Congress with his presence.

I won’t spoil the interview by giving away its gist; it covers a lot of ground. It reveals how “no one” from nowhere can win, why Pelosi is Speaker, why old-fashioned door-to-door campaigning still works, why the Dems are divided, how to defeat mental illness, how best to help poor people with kids, how to fix our nation’s biggest housing project, and how to be superbly progressive without once walking into a verbal minefield.

As a small-d democrat, I’ve always believed that great leaders can arise from the most unlikely circumstances. At 75, I still hope that new, diverse leaders will truly make America great again.

Cape Up has made that hope flesh. Thank you, Jonathan Capehart!


    “Now is no time for self-congratulation or complacency. We must act with the unique urgency and courage of those who know they are living on borrowed time.” — Susan Rice, “Our Democracy’s Near-Death Experience,” December 1, 2020.
We Americans think we live in history’s greatest democracy. If so, why does Susan Rice’s warning sound so apt and so right? The state to which President Trump has reduced us in four years is not going to vanish overnight, far less if the party that has become a cult of his personality still controls our Senate.

So it behooves us to search our species’ five-thousand year recorded history for something that might help. We ought to seek expedients that once worked well but that we might have forgotten.

One of them is exile. The two greatest ancient democracies—Greece’s and Rome’s—used exile to rid themselves of troublemakers.

Exile was a clever and sophisticated answer to troublemaking. Unlike murder, it’s not final. So it avoids martyrdom and all the consequences of martyrdom. (Just ask the Christians and Muslims.)

Instead, exile is supremely “civilized” and can be reversed. Unlike imprisonment, it reduces the troublemaker’s ability to make future trouble in the homeland. (How this might work in the Internet age we’ll get to.) Unlike execution or torture, it leaves no lasting scars. And it always leaves open the opportunity for bargaining among the exiled and the exilers.

How might exile work with Donald Trump and his family? We couldn’t just impose it by decree, or even by adjudication. Our Constitution and our legal system don’t work that way. But what if we could make the Trumps an offer they couldn’t refuse?

After January 20, the Trump brood will be in a world of hurt. The patriarch faces a reported debt of $421 million, ready for foreclosure. The infamous Department of Justice memorandum that immunizes a sitting president from federal prosecution will no longer apply. Even if Trump’s stacked Supreme Court eventually approves his “pre-emptive” pardons—an unlikely outcome!—the president’s federal pardon power does not extend to criminal actions by the states, nor to private civil lawsuits by anyone.

The soon-to-be-ex president’s tax returns are still under serious audit. Soon they will face a new administration far less eager to compromise and—with the pandemic still raging and McConnell maybe at the Senate’s helm—far more in need of tax revenue.

So after January 20, Trump and his spawn face debt foreclosures, federal prosecutions, state prosecutions, increasing tax scrutiny, and private suits by aggrieved parties (including big banks and other corporations) no longer worried about offending POTUS. Through its exercise of prosecutorial and executive discretion, the federal government will have the power to fast-track many of these actions, and to recommend that the states and their courts do the same. After all, what could be more compelling than to bring the law to bear, at last, on a loser president who did his best while in office to destroy the rule of law?

These would be the sticks. What about the carrots? The federal and state governments could slow-walk the prosecutions just as well as speed them up. They could even dismiss them, but without prejudice to their renewal, within the relevant statutes of limitations.

Yet the private sector would be quickest and most effective in providing carrots. Mike Bloomberg reportedly gave $100 million of his billions to the successful effort to elect Joe Biden president. Could he give (or raise) an equal amount to exile the Trump family and maybe save our democracy from incessant predation at home? What about other rich benefactors, like Warren Buffett, Bill Gates,or George Soros. What about small donors?

In ancient Greece and Rome, the idea of exile was to remove troublemakers from the field of action. They just couldn’t influence things from a distant land as much as they could at home.

That impotence is harder to arrange in the Internet Age than before the invention of the pony express. But it’s not impossible. The trick would be keeping the whole family on a short leash.

Offer them a stipend, say $ 2 million per month for the whole lot. Even they could probably live well on that. But make the stipend strictly subject to three conditions.

First, none of the exiles could visit the United States, its territories or possessions. Second, none could communicate in any way with anyone in the US, its territories or possessions, or with any news medium serving them. No Tweets, no Facebook posts, no dark Web, no interviews with or messages to any news source. Any communication of “news”—even a single Tweet or re-Tweet—would break this condition, which would be a principal purpose of the exile.

Third and finally, the exiles’ cars, planes, yachts, every room of their homes and offices, and their every communication device would be bugged and monitored for compliance by the best of our governmental and/or private security 24/7/365. No word could get out or in without the exile monitors knowing.

As long as the exiles maintained the conditions, all this surveillance data would be strictly secret. But at the first sign of any attempt to break the first or second condition, the stipend would cease, and so would secrecy. All exiles would sign a waiver allowing (in that circumstance) any archived surveillance data to be used for any criminal prosecution by the federal or any state government. Use in private lawsuits could be a bargaining point.

As for their US-based businesses, the exiles would have to put them into a blind trust, run at home by professional managers with no direction from the exiles. This would be no more than what they should have done, for ethical reasons, before storming the White House en famille.

Would this work? Would the Trumps accept their exile? We’ll never know without trying, will we?

A lot depends on how vigorously the private sector and (to the extent able) the federal and state governments exercise their powers to foreclose, sue and prosecute. Collectively, they can exert horrendous financial and legal pressure on the Trump family, which the Trumps could switch off simply by agreeing to the terms of their exile.

In ancient times, exile was both an expedient and a punishment. Then it was hard for anyone—especially the wealthy and powerful—to tolerate life outside centers of civilization, let alone far away in “barbarian” lands. But the world is much flatter today, and the Trumps could be comfortable in many parts of the world. There they could live in luxury, be suitably entertained, and spin it all (in their place of exile) as a “win” in which the US and its donors paid to let them live in wealth. They might even dabble in “local” politics.

Punishment would not be a purpose of this exile. However much we might desire retribution or vengeance (and I would!), getting this cancer out of our body politic is infinitely more important. Letting Trump and his brood live out their lives in anonymous and incognito luxury would be a small price to pay. (Hell, even I would give $1,000 to see their backs.)

The only trick might be finding a country that would take them, and that would help enforce the terms of their exile. Perhaps one of the lesser Arab powers—now threatened by the coming conflagration between a budding Israeli-Saudi alliance against an imperial Iran—might be induced to host them in exchange for a defense against Iran’s precision missiles. Maybe Trump’s buddy Putin would take him into the Kremlin, as an adviser on American disinformation. (If so, we should also require that Trump and his brood renounce their American citizenship.)

It’s certainly worth a try. Right now, no one knows what greater horrors Trump has in store for us. Probably not even he knows. But we’ve already seen enough of his fevered machinations to justify Susan Rice’s headpiece quote above.

Trump might just become an ever-more-deranged Tucker Carlson, with a bigger media presence, an unconscionable income, and the ability to raise a private “Brown-Shirt” army at the drop of a Tweet. Or he might continue to subvert the Republican Party, squeezing out all vestiges of courage, sanity and respect for democracy and science—in preparation for a final assault on the citadel in 2024.

Either way, having Trump and his brood safely and privately ensconced, incommunicado, in a remote foreign land might be the best way to handle the worst threat to democracy, science and the Enlightenment that our nation has ever faced. Exile worked well for the ancient Greeks and Romans. It helped protect their democracies from assault by gifted troublemakers. Maybe it could work for us.

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