Canary in a Coal Mine

January 20th, 2012

I will miss the end of the Republican primary debates. Almost nothing compares in terms of raw entertainment value.

The only problem is that these are supposedly serious political events, not competition to Jersey Shore. I try to forget this fact, because it is just so damn depressing. Really, this is the best the country can summon up to be one of the two candidates for President?

Let’s consider the debate in South Carolina last night. We know that this is a critical primary, because the infotainment media has told us so. “Can Mitt Romney be stopped?” an announcer asks in a deep, ominous tone, as if we were watching a show about invading aliens. Well, maybe we are, come to think about it.

But it only makes sense that South Carolina should have a pivotal role in selecting the candidates for national office. After all, with four and a half million people, it represents almost a full 1.5 percent of the country’s population. It’s also an economic powerhouse, ranking 39th out of 50 states in per capita income. Of course we want the good people of South Carolina telling the rest of us who we get to vote for as President.

It would be appropriate to begin this paragraph with something like “I noticed something strange while watching the debate.” It would also be redundant, tautological. The whole thing was strange. From beginning to end. Alright, I didn’t watch it until the end, but I didn’t have to. I know it was strange.

From time to time the camera panned the audience. I paid close attention, sometimes stopping the DVR just to get a good look. Who are these people, I wanted to know, who took the trouble to get dressed up and sit through this whole awful affair. Not just sit through it, but apparently enjoy it, not in the same ironic way that I did, but enjoy it because they approved and believed the ridiculous nonsense that emitted from the oral cavities of the clowns on the stage.

And here is what I noticed. With one or two exceptions, they were all White. South Carolina is about a third Black. According to my research, only three or four states have a higher percentage of African Americans. Think about this. These men propose to lead this country, and yet, the message that they have, what they stand for, is of no interest and has no relevance to the African American community. How can that be? To me, that is a very telling sign.

Michele Bachmann and Communism, Part II

November 16th, 2011

I’m still fascinated by Michele Bachmann commandeering a communist slogan in her stump speech. The thing is, the slogan made sense when the communists used it, but it makes no sense coming out of Bachmann’s mouth. No surprise there.

The slogan, reduced to its simplest terms is “if you don’t work, starve.” Yes, I know, it’s understood that this refers to the able bodied, not the infirm, but that’s not my point. My point is that the slogan made sense for the communists, because they were actually offering the opportunity for the able bodied to work. What the communists were saying was this: “We (“society”) have the food, and if you want some, you have to do some work. There’s lots of work to be done, you just pitch in and do your share of the work, and you will be given food.”

Capitalism, which Bachmann endorses, does no such thing. A certain level of unemployment is built into capitalism. Capitalism needs unemployment, because if employment ever reached 100 percent, the cost of labor would be prohibitively high. Most economists agree that unemployment can never fall below 4 or 5 percent in a capitalist society. At that point, the cost of labor increases to the point that employers stop hiring.

So think about what it means when a capitalist says “if you don’t work, you don’t get to eat.” It’s like musical chairs, there are more people than chairs. Same thing in a capitalist society: there are more people than jobs. So when a capitalist, like Bachmann, says: “if you don’t work, you starve,” she really means “some of you are going to starve.”

Seen in this light, it’s infinitely better to live in a communist society than a capitalist one, because at least the communists will offer you the job.

Of course, all of this assumes that Michele Bachmann is really serious and also understands what she is saying. In reality, she’s just a clownish politician. Michele Bachmann understands economics about as well as my dog understands algebra. What’s scary is not the level of Bachmann’s ignorance, but that the slogan has appeal to some of the knuckle draggers who would vote for her. There are a lot of people who would let the unemployed starve, who believe that people are in a bad way because of their own laziness or some other fault for which they now deserve punishment. That is scary, and the fact that an ostensibly mainstream politician would pander to them is a sad commentary on the state that we are in.

Closing the Circle

November 14th, 2011

Extreme right wing-ism is fascism, and extreme left wing-ism is communism, right?  Or so the common wisdom goes.  I think of it as more of a circle, and if you go far enough in one direction, you end up looping around to the other side.  It’s sort of like California is west of New York, but if you go east from New York and just keep going, eventually you will get to California.

Compare an extreme right wing state — Nazi Germany — with an extreme left wing state — The Soviet Union.  In both cases you end up with an authoritative state.  If you think about it, this makes sense.  It’s pretty hard to get a whole population to adhere to extreme principles unless you use a lot of force.

Michele Bachman is an extremist.  An extreme charlatan, an extreme buffoon, an extreme you name it.  Do we have a word for someone who will say almost anything to get attention and votes?  Oh that’s right, politician.  She’s an extreme politician, Republican flavor.  She hasn’t been doing to well in her quest for the nomination to run for President, so naturally she keeps going more extreme, looking for more attention and hopefully more votes.  The other day she came up with a doozy, saying that self reliance meant that those who do not work should not eat.

I wonder whether the uber-capitalist Bachman realizes that she shares views with extremists of a different color.  Chapter 1, Article 12 of the 1936 Soviet Union constitution stated that:   In the U.S.S.R. work is a duty and a matter of honor for every able-bodied citizen, in accordance with the principle: “He who does not work, neither shall he eat.”

 

The Law is An Ass

June 9th, 2011

You’ve probably heard this expression before.  It’s from Charles Dickens’ Oliver Twist, and it is a comment on the doctrine of coverture, the now defunct legal fiction that husband and wife were one person, and that person was the husband.  Under this doctrine, a married woman was presumed to be acting at all times under the direction of her husband.  When told that “the law supposes that your wife acts under your direction,” Bumble, the Dickens character, answered that “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

That expression often comes to mind when I see the absurd results that the law sometimes produces.  More often than not, the law in question is the product of misinformed judicial decisions that interpret the law.

Case in point: 11 U.S.C. § 525(b) of the Bankruptcy Code provides that “No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt . . ..”

Let’s convert this to (almost) plain English:  No employer may “discriminate with respect to employment” against anybody who has declared bankruptcy.  Seems pretty simple, doesn’t it?  Important, too, considering the current rates of unemployment and that in the last 12 months alone nearly 1.5 million individuals declared bankruptcy.

Many prospective employers in fact do run credit checks on job applicants.  It’s legal in most states.  So what happens when the credit check shows a bankruptcy in the applicant’s past?  If the employer declines to make the job offer (or as in many cases, withdraws the offer already made) because of the bankruptcy, hasn’t the employer violated 11 U.S.C. § 525(b) of the Bankruptcy Code?  Isn’t that discrimination “with respect to employment.”  You would think so.

In fact, you would think it a no brainer.  You would be wrong, however, if you lived in that part of the country comprising the Third, Fourth and Eleventh Circuits of the Federal Courts.  If you don’t know what circuit you are in, here’s a map.  This doesn’t mean that you are protected if you live somewhere else, it only means that the Circuit Court covering your state has not decided the question.  (The Circuit Courts are the courts of appeals for the Federal District Courts, and they establish legal precedent until an issue is decided by the Supreme Court.  It is not uncommon for Circuit Courts to decide identical issues differently, meaning that Federal Law is not the same across the country until the Supreme decides the issue.  Crazy, I know.)  The fact of the matter is that every court decision that I have seen on the issue has reached the same result.  And what they have decided is that “discrimination with respect to employment” doesn’t mean discrimination in the hiring process.

Can this really be what Congress intended when it passed this law?  After all, discrimination is discrimination.  If it is illegal to fire an employee who declares bankruptcy, and everyone agrees that it is, why should it be legal to refuse to hire somebody for the same reason?  The idea is that nobody should be prejudiced with respect to employment because he or she has declared bankruptcy.  Hiring, firing, or anything in between.

The reason the Courts give for this perverse result is 11 U.S.C. § 525(a), which prohibits discrimination by government employers.  That section includes the phrase “deny employment to” in addition to the “may terminate the employment of, or discriminate with respect to” language of 11 U.S.C. § 525(b).  Thus, say the Courts, if Congress used different language, it must have meant different things.  If it expressly prohibited the denial of employment in 11 U.S.C. § 525(a), and not in 11 U.S.C. § 525(b), it could only mean that it did not intend 11 U.S.C. § 525(b) to prohibit discrimination in hiring.

There is a certain logic to this, just as there was a certain logic to the doctrine of coverture:  if a husband and wife are one person, then only one person can be responsible for the actions of them.  Or something like that.  Experience, however, tells us otherwise, and the reasoning of both accounts is faulty.  In the case of bankruptcy discrimination, the result is wrong because the proposition is wrong:  Congress, like anybody else, often uses different words to mean the same thing.  There are dozens of federal laws that prohibit discrimination in employment, and Congress has never standardized the language among the statutes.  In fact, 11 U.S.C. § 525(a) and 11 U.S.C. § 525(b) were enacted at different times and they contain other, unimportant, differences in their language.  The first and foremost rule of interpretation is to give words their plain, ordinary meaning whenever possible, and discrimination with respect to employment is a very broad, all encompassing proscription against discrimination and that is how it should be interpreted.

Unfortunately, the Courts in their wisdom (or more likely, their desire to reduce the number of lawsuits filed) see things differently.  Eventually the issue will be decided either by the Supreme Court or by Congress amending 11 U.S.C. § 525(b).  Until then, the law is an ass.

Cat Got Your Paw?

March 3rd, 2011

Yesterday, the Supreme Court issued its long awaited decision in Staub v. Proctor Hospital, the so-called cat’s paw theory case.  The cat’s paw question can be expressed like this:  what happens when a supervisor, motivated by discrimination, makes an employee look bad so that the employee is eventually terminated by somebody who has no discriminatory animus and is (theoretically) unaware of the supervisor’s motivation?  The Supreme Court did not have much trouble reaching a decision, essentially holding that if a supervisor, motivated by discrimination, gets an employee fired, then that’s discrimination.  This is not hard to understand, and in my view, a complete no brainer.  All of the justices agreed with the result, although only six agreed with the opinion.  Kagan did not participate, and Alito, joined by Thomas, agreed with the result but had their own (crackpot) idea of how the issue should be analyzed.

It’s hard to know what importance the decision will have.  As a practical matter, a pure “cat’s paw” situation does not arise very often.  Usually there is a great deal of communication between the discriminating supervisor and the ultimate decision maker, and often the role of the decision maker is so obviously influenced by the input of the supervisor (who often lobbies for termination) that there just isn’t much room to argue that the discriminating supervisor did not cause the termination.  The other thing that we see a lot is a dispute between the employee and the company over who really made the decision.  Again, practicalities generally shape the issues.  If a supervisor wants an employee fired, he or she will find a way to get that done, and very few companies will force a supervisor to work with somebody they think ought to be fired.

The crackpot idea of Alito and Thomas was that if the company conducts an “investigation” before firing the employee, that the company should be let off the hook.  Don’t ask me to explain this nutty theory.  I’ve seen hundreds of so-called investigations, and if you give corporations the power to immunize themselves from liability for discrimination by creating a theoretically isolated decision maker supported by a dime store investigation, watch out!  But don’t take my word for it.  Even Scalia and Roberts, who never met a corporation they didn’t like, recognized this idea as nonsense and would have no part of it.  Good for them.  Baby steps in the right direction.