Bloomberg news today has an article highlighting the plight of a case pending against Massey Coal and its successor, and also providing a good explanation of how the recent Noel Canning decision allows employers a way to delay justice for workers in all sorts of cases. For a silver lining, I want to add that I think it says something good about America that an article in a plutocrat's eponymous newspaper could have such a forceful headline and message: "Workers Die Awaiting U.S. Justice as Companies Make Limbo".
Monday, March 25, 2013
Monday, March 4, 2013
Inequality on the rise, and the Sisyphean task of a labor lawyer
In conenction with posting this incredible chart,
the Maddow Blog concludes, "I don't imagine Republicans want to hear this, but slashing investments in 'Obamacare,' education, aid to the poor, and foreign aid may advance a far-right vision, but these aren't the policies that are responsible for the existing budget shortfall." The first commenter says that Republicans just don't "get it." Maybe, just maybe, it's no accident, no failure of political comprehension, that certain politicians are promoting policies that "advance a far-right vision" whilst claiming that they serve a different purpose. Call me a conspiracy theorist, but I think a lot of those folks know exactly what they're doing.
You see, after watching this viral video, I can't help but look at everything - everything - as part of this larger picture. (The video is so good I'm embedding it here:)
I saw a few people, pages, movements post this to Facebook before I finally watched it. You see, I thought I already knew enough about wealth inequality that this wouldn't show me anything new. I was wrong. Somehow, the presentation here blew my mind. After seeing this, I can't help but see the driving forces behind this increasing inequality in everything. EVERYTHING. Congressional budget cuts? Check. The "far right vision" promoting the cuts described above? Check. The forces behind those Bush tax cuts? Bailing out banks but not homeowners? No raise to minimum wage in decades? Student loan debt? Check, check, check. It's all leading to this sorry, shameful, devastating state of affairs. Even less directly economic things... Criminal justice system? Check (privitized jails, prison labor, among others). War? Check (See Eisenhower on the military-industrial complex, or Rachel Maddow's Drift.)
Its not so much a conspiracy theory, exactly. In my mind, it goes more like this: of course the wealthy and powerful want to hold onto their wealth and power, it's human nature, greed, something less deliberate than a "conspiracy." This country used to have certain counter-balances to those forces. We had government regulations on banks and stock trading, minimum wage laws and labor laws, we had unions that consolidated the power of workers to offset the power of companies. Now, it seems that so many forces are coming together creating the situation you see in the video. Laws are being taken off the books, regulators are being defunded, unions are weakening. Companies are consolidating, too, and these larger companies (say, Walmart) and their power over their enormous supply chains and networks of subcontractors creates even greater power that is more difficult to fight against. Citizens United. More and more money in politics, and more need for politicians to fundraise, and more need to listen to lobbyists. The minimum wage wasn't intended to keep up with inflation, and hasn't been raised in decades. There are so many forces contributing to where we are now.
So then, the next thing that comes into my mind - as I'm sitting here in front of a computer because I'm supposed to be working, so work is on my mind - is that the the trajectory of my career has been to move from helping the powerful consolidate their power (as a Big Law lawyer) to having a job where I am fighting against this trend. Co-workers in my federal labor law agency are constantly bemoaning our lack of power, the right's incessant assault on our agency despite that lack of power, the sad fact that our process and remedies so often fail to help the workers we are meant to protect. I have taken a more optimistic view, but have struggled to articulate it in a way that doesn't sound purely naive in these conversations. But I think this finally gives me a framework to understand the positives and the limitations of my job. You see, in putting all my energy into enforcing the remnants of a law meant to protect workers' collective power, I am at least moving the right direction in the Sisyphean task of fighting against rising inequality. (When I say this, I actually envision a little guy trying to keep a boulder from sliding down a hill, and he exerts all his effort just to hold the boulder in place, but at least it doesn't run over him and go crashing down the hill.) If your goal is provide quick and certain remedies for workers who are wronged by their employer, my agency will disappoint you. But if you view federal labor law as a lucky anachronism, a law supporting a movement that both should have been erased years ago, but despite all odds, still exist, then your view will be different. To me, it seems that just doing my job, and doing it well, is a step in the direction of supporting the New Deal-era notions of collective worker power against the increasing consolidation of power among the powerful.
By looking at my job in these terms, I can take a step back and ask whether there is a place where I can fulfill this goal more effectively, or whether I'm contributing something where I am (or again, whether I'm being naive, or just trying to justify making a comfortable government salary instead of a less comfortable non-profit one).
My father worked in a steel mill in upstate New York until the once-vibrant steel industry was finally put on its knees. He survived takeovers by Koreans, Spanish, and some other foreign-owned companies I'm forgetting, until he was one of the last employees remaining. I'm a little afraid that this will be my fate as a labor lawyer: that I'll duke it out as Republicans and the Chamber of Commerce wage war on my little agency, until one day, the whole thing will finally be shut down and I'll go out with it. And join my fellow 99-percenters, I suppose, who were rendered redundent by the changing forces of our economy. But until then, there are some workers who need some justice, however delayed, and an employer that needs to answer to me, whatever that's worth, for the war it is waging against its employees.
Wednesday, November 7, 2012
What a week (or two) ....
The last ten days have been such an emotional rollercoaster! I spent the last few days in Florida, but today was the first time in ten days that I came home to an apartment with electricity, heat, water, hot water, cable, and internet. It was about eleven days ago that Hurricane Sandy hit New York; with it, my apartment, my office, and the rest of lower Manhattan, lost power. With the loss of electricity came the failure of pumps to send water to higher floors like mine and the loss of steam to provide heat to the building. The elevators didn't function and the stairwells had no emergency lighting, so I used a flashlight to illuminate the eighteen flights I learned to skip down and trudge up.
On the first day, my concerns were light: we packed up our fridge, filling three bags with things like frozen wild-caught salmon and the autumn stew I'd cooked the day before (preparing to huddle at home but without thinking through the implications of power-loss), and brought them to a friend's restaurant in midtown. We had a car, we drove uptown, spent the day with friends, found a hot shower and watched tv; returned home to our dark - yet romantic - apartment. The next day was similar, only we spent it in Brooklyn instead of uptown. The day began well; we enjoyed brunch in Fort Greene (on a Wednesday!), but by evening I was in a state of culture shock. Williamsburg was celebrating Halloween while I worried where to sleep that night. My husband was leaving that night for a business trip, and we were worried about my safety in our very dark apartment building in our very dark neighborhood. Would I be safe walking up eighteen flights of a pitch-black stairwell to a pitch-black hallway with many of my neighbors gone? We decided I'd be safe enough to sleep at home and went for a quick dinner in the closest neighborhood with power, just over the Williamsburg Bridge. In W'burg, people were dressed in halloween costumes and laughing drunkenly. They felt very far away.
On the third day of no power, I headed uptown by myself. My husband had successfully flown out, from a surprisingly-functioning JFK airport, and I braved the city on my own. Driving uptown was like passing from third-world to first-world country; the analogy that comes to mind - though I can't vouch for its accuracy - is travelling from East Berlin to West Berlin. Except here, we didn't need passports and there were no border guards; I was freely let into this other part of town that felt a world apart. Downtown had no traffic lights, and at each intersection I slowed and amicably negotiated with the pedestrians, bikers, and other cars for the right of way, happy to stop and let the pedestrians cross where I saw them. Our system worked smoothly and I grew comfortable with the opportunities to do favors for others, and felt cooperative with the other cars on the road, and made good time getting uptown. And then, I passed 39th street and suddenly, there were traffic lights and horns honking and pedestrians carrying shopping bags still in the crosswalk after the light had changed. The city was back to normal here, but I didn't feel normal and I didn't feel ready to be aggressive and fast and confident. But here I was, exiled to this place because I couldn't stay in my world. I hadn't felt this kind of culture-shock since returning home from a semester abroad in Mexico in 1997. But I spent the day with a good friend and her adorable kids, and though disorienting, it was nice to spend so much time with them.
It was getting colder, and with my husband gone, I was getting lonelier, so I spent the night with friends in Brooklyn. They'd had to return to work at their offices in midtown, so I picked them up at their offices and then picked up my food I'd left in my friend's walk-in cooler, and happily went to their apartment and had a home-cooked (my home! my cooking!) meal and wine and I felt warm and happy. I realized that there's something nice - always, but especially after you are married - about needing to rely on people, and about the opportunity to spend time with friends relaxed in their homes. I've always been a little too independent and self-reliant, and now that I am married, I seem to only rely on my husband and rarely have occasion to seek help and comfort from others.
The next day I drove them to work, because they needed transportation and I needed to have two other people in my car to be allowed back into Manhattan, thanks to the Mayor's new HOV requirements. But really I had also discovered how comforting it was to be able to help my friends, especially when they were helping me and we could be there for each other. That next day, I finally felt settled enough to look outward and try to figure out how to help others who were really suffering in the storm. I'd been disoriented and unsettled for a few days, but I knew I was incredibly blessed to have a car, and money to eat in restaurants, and friends who had opened their homes to me (and who had homes that they could share), and an apartment that had survived the storm intact, and the strength and health to go up and down 18 flights of stairs. How absurdly privileged I was that my chief concern on the first day was for my salmon and gourmet ice cream. So I decided to try to help my neighbors.
There are lots of elderly people here, most of whom bought apartments here back when the building was limited-equity, affordable housing. I was prepared to get involved in food distribution efforts by climbing the stairs that they were unable to climb. My volunteer work took a different turn, however. I began inquiring about how to help, and the next thing I knew, I was in the middle of a group of National Guardsmen distributing FEMA food (which is apparently the same as military food and looked pretty disgusting) to the hungry and devastated and low-income people in my neighborhood. When I arrived, there were ten long empty tables set up, a line of people stretching down a long block, and a tape dividing the people from the tables. Within the tape, next to the tables, were about ten civilian volunteers, about twenty-five National Guardsmen in fatigues, and one Salvation Army Captain in full regalia. They were waiting for a military truck to arrive with the food, and once it did, the Guardsmen got to work unloading boxes and stacking them on, under, and next to the table. We made quick work of organizing the boxes on the table and opening them, and then a policeman cut the tape and my neighbors began arriving to eagerly pick up their food.
In all of this, I somehow discovered a sort of leadership role for myself, not in a "bossy" way (which I always fear), but in a doing-what-needs-to-be-done sort of way. When I learned that each person would receive three food packets, I helped communicate to the other volunteers down the long tables. When I learned that each person would get 3 packets for each family members they were picking up for, I communicated that information. When I saw that many volunteers and Guardsmen hadn't understood this and didn't realize people could take food for more than just themselves (and were refusing to give them food for their family members), I tried to explain to them and then sought out the Salvation Army Captain to suggest that he clarify to everyone. When the National Guardsmen (they were so young and hard-working and earnest!) had trouble doing the math on how many packets of food per household, I helped them: a whole box! a box plus these three! remove three then give them the rest of the box! One guy, apparently stressed by this kind of math, said so genuinely, "Boy, I'm so glad you're here!" It wasn't a volunteer-task anyone would ever dare to predict ahead of time, but I'm sure that I helped make the procees run more efficiently. New volunteers arrived and approached me - me! - to ask how to get involved. When we were done, I brought one of these new volunteers to the food distribution in my building, and got involved there, similarly helping the process run smoothly. My involvement never required me to go up and down stairs, as it turned out. I felt satisfied when it was done; I had found a way to use my skills to be useful to these projects.
The next day, I flew to Florida, away from the cold and strangeness of storm-hit New York City, to warmth and to the other reality of being just a few days away from the 2012 Presidential election. I offered my services at the local Obama campaign office, and wondered how that experience would compare to my day of post-Sandy food distribution. As it turned out, in Florida there was no organizational, leadership role that I needed to search out: the campaign was well-organized, and I was one of the soldiers pounding the pavement. I got to work canvassing, knocking on doors to people identified by the campaign as Obama supporters but sporadic voters, to "get out the vote" as they say. I haven't done a lot of canvassing in my life, and learned that it is pain-staking, laborious work. This was very different than the hour I'd spent handing out FEMA food to hundreds of people. Here, I could count a handful of apparent, small victories after hours on the road: an older man who intended to vote but didn't know where his polling place was; a few people who seemed to want that additional encouragement to go vote; and going off-list to a house full of Obama yard-signs and stickers to successfully recruit another volunteer. I felt what they mean when they talk about Obama's ground-game and army of volunteers, because this kind of work requires an army to reach everyone on the extensively-analyzed lists. Each day I walked with a partner and learned more about these other Obama-supporters - two middle-aged blue-collar women. I learned more about Central Florida communities (one with mid-size homes and large trees, another with mobile homes and tiny yards) and who the Obama-supporters are in those places: nearly all white, and among the folks who were home when I knocked, many were middle-aged or senior citizens. My work and time in Florida was spent in counties that voted almost 60% for Romney, and I felt like part of a small club that looked out for its few members. As I learned, when you wear an Obama button in public in Central Florida, people approach you in restaurants to thank you for supporting the President. And when the results came in and Obama was re-elected, I felt so gratified to have been a small part of that victory, among the many, many people who put in a few hours or more to help make this happen.
The next day, this morning, I got on a plane to come back home to my apartment, now with heat and hot water. I bought a New York Times because it seemed that I ought to have a souvenir of the election results, and an airport employee approached me about it. In the end, I gave him the special Election section, which he said was excited to read on his lunch break, since I only really wanted the front page. New York still wasn't back to normal: the A train wasn't running to Manhattan, and another airport employee helped me figure out which subways I could take back to the City. (In thirteen years, I haven't admitted to needing any help navigating the subways - I can read the map! - so receiving some advice felt both unusual and comforting.)
And then, my journey nearly over, I stepped off the subway into my neighborhood and collided with the cold rain and wind of today's Nor'easter. Fortunately, this time I am comfortably secluded in a home with power, heat, and all the comforts of my home back again. And tomorrow, I'll go back to work for the first time in eleven days, and the President will still be our president, and yet I feel like so much has changed, or happened, or transformed in this time. In some ways, those changes are out there in the world, and in other ways, it is me who has been changed. I want to make sure that I remember what this topsy-turvy week felt like, even when New York, and the country, and my life seems to go back to normal.
On the first day, my concerns were light: we packed up our fridge, filling three bags with things like frozen wild-caught salmon and the autumn stew I'd cooked the day before (preparing to huddle at home but without thinking through the implications of power-loss), and brought them to a friend's restaurant in midtown. We had a car, we drove uptown, spent the day with friends, found a hot shower and watched tv; returned home to our dark - yet romantic - apartment. The next day was similar, only we spent it in Brooklyn instead of uptown. The day began well; we enjoyed brunch in Fort Greene (on a Wednesday!), but by evening I was in a state of culture shock. Williamsburg was celebrating Halloween while I worried where to sleep that night. My husband was leaving that night for a business trip, and we were worried about my safety in our very dark apartment building in our very dark neighborhood. Would I be safe walking up eighteen flights of a pitch-black stairwell to a pitch-black hallway with many of my neighbors gone? We decided I'd be safe enough to sleep at home and went for a quick dinner in the closest neighborhood with power, just over the Williamsburg Bridge. In W'burg, people were dressed in halloween costumes and laughing drunkenly. They felt very far away.
On the third day of no power, I headed uptown by myself. My husband had successfully flown out, from a surprisingly-functioning JFK airport, and I braved the city on my own. Driving uptown was like passing from third-world to first-world country; the analogy that comes to mind - though I can't vouch for its accuracy - is travelling from East Berlin to West Berlin. Except here, we didn't need passports and there were no border guards; I was freely let into this other part of town that felt a world apart. Downtown had no traffic lights, and at each intersection I slowed and amicably negotiated with the pedestrians, bikers, and other cars for the right of way, happy to stop and let the pedestrians cross where I saw them. Our system worked smoothly and I grew comfortable with the opportunities to do favors for others, and felt cooperative with the other cars on the road, and made good time getting uptown. And then, I passed 39th street and suddenly, there were traffic lights and horns honking and pedestrians carrying shopping bags still in the crosswalk after the light had changed. The city was back to normal here, but I didn't feel normal and I didn't feel ready to be aggressive and fast and confident. But here I was, exiled to this place because I couldn't stay in my world. I hadn't felt this kind of culture-shock since returning home from a semester abroad in Mexico in 1997. But I spent the day with a good friend and her adorable kids, and though disorienting, it was nice to spend so much time with them.
It was getting colder, and with my husband gone, I was getting lonelier, so I spent the night with friends in Brooklyn. They'd had to return to work at their offices in midtown, so I picked them up at their offices and then picked up my food I'd left in my friend's walk-in cooler, and happily went to their apartment and had a home-cooked (my home! my cooking!) meal and wine and I felt warm and happy. I realized that there's something nice - always, but especially after you are married - about needing to rely on people, and about the opportunity to spend time with friends relaxed in their homes. I've always been a little too independent and self-reliant, and now that I am married, I seem to only rely on my husband and rarely have occasion to seek help and comfort from others.
The next day I drove them to work, because they needed transportation and I needed to have two other people in my car to be allowed back into Manhattan, thanks to the Mayor's new HOV requirements. But really I had also discovered how comforting it was to be able to help my friends, especially when they were helping me and we could be there for each other. That next day, I finally felt settled enough to look outward and try to figure out how to help others who were really suffering in the storm. I'd been disoriented and unsettled for a few days, but I knew I was incredibly blessed to have a car, and money to eat in restaurants, and friends who had opened their homes to me (and who had homes that they could share), and an apartment that had survived the storm intact, and the strength and health to go up and down 18 flights of stairs. How absurdly privileged I was that my chief concern on the first day was for my salmon and gourmet ice cream. So I decided to try to help my neighbors.
There are lots of elderly people here, most of whom bought apartments here back when the building was limited-equity, affordable housing. I was prepared to get involved in food distribution efforts by climbing the stairs that they were unable to climb. My volunteer work took a different turn, however. I began inquiring about how to help, and the next thing I knew, I was in the middle of a group of National Guardsmen distributing FEMA food (which is apparently the same as military food and looked pretty disgusting) to the hungry and devastated and low-income people in my neighborhood. When I arrived, there were ten long empty tables set up, a line of people stretching down a long block, and a tape dividing the people from the tables. Within the tape, next to the tables, were about ten civilian volunteers, about twenty-five National Guardsmen in fatigues, and one Salvation Army Captain in full regalia. They were waiting for a military truck to arrive with the food, and once it did, the Guardsmen got to work unloading boxes and stacking them on, under, and next to the table. We made quick work of organizing the boxes on the table and opening them, and then a policeman cut the tape and my neighbors began arriving to eagerly pick up their food.
In all of this, I somehow discovered a sort of leadership role for myself, not in a "bossy" way (which I always fear), but in a doing-what-needs-to-be-done sort of way. When I learned that each person would receive three food packets, I helped communicate to the other volunteers down the long tables. When I learned that each person would get 3 packets for each family members they were picking up for, I communicated that information. When I saw that many volunteers and Guardsmen hadn't understood this and didn't realize people could take food for more than just themselves (and were refusing to give them food for their family members), I tried to explain to them and then sought out the Salvation Army Captain to suggest that he clarify to everyone. When the National Guardsmen (they were so young and hard-working and earnest!) had trouble doing the math on how many packets of food per household, I helped them: a whole box! a box plus these three! remove three then give them the rest of the box! One guy, apparently stressed by this kind of math, said so genuinely, "Boy, I'm so glad you're here!" It wasn't a volunteer-task anyone would ever dare to predict ahead of time, but I'm sure that I helped make the procees run more efficiently. New volunteers arrived and approached me - me! - to ask how to get involved. When we were done, I brought one of these new volunteers to the food distribution in my building, and got involved there, similarly helping the process run smoothly. My involvement never required me to go up and down stairs, as it turned out. I felt satisfied when it was done; I had found a way to use my skills to be useful to these projects.
The next day, I flew to Florida, away from the cold and strangeness of storm-hit New York City, to warmth and to the other reality of being just a few days away from the 2012 Presidential election. I offered my services at the local Obama campaign office, and wondered how that experience would compare to my day of post-Sandy food distribution. As it turned out, in Florida there was no organizational, leadership role that I needed to search out: the campaign was well-organized, and I was one of the soldiers pounding the pavement. I got to work canvassing, knocking on doors to people identified by the campaign as Obama supporters but sporadic voters, to "get out the vote" as they say. I haven't done a lot of canvassing in my life, and learned that it is pain-staking, laborious work. This was very different than the hour I'd spent handing out FEMA food to hundreds of people. Here, I could count a handful of apparent, small victories after hours on the road: an older man who intended to vote but didn't know where his polling place was; a few people who seemed to want that additional encouragement to go vote; and going off-list to a house full of Obama yard-signs and stickers to successfully recruit another volunteer. I felt what they mean when they talk about Obama's ground-game and army of volunteers, because this kind of work requires an army to reach everyone on the extensively-analyzed lists. Each day I walked with a partner and learned more about these other Obama-supporters - two middle-aged blue-collar women. I learned more about Central Florida communities (one with mid-size homes and large trees, another with mobile homes and tiny yards) and who the Obama-supporters are in those places: nearly all white, and among the folks who were home when I knocked, many were middle-aged or senior citizens. My work and time in Florida was spent in counties that voted almost 60% for Romney, and I felt like part of a small club that looked out for its few members. As I learned, when you wear an Obama button in public in Central Florida, people approach you in restaurants to thank you for supporting the President. And when the results came in and Obama was re-elected, I felt so gratified to have been a small part of that victory, among the many, many people who put in a few hours or more to help make this happen.
The next day, this morning, I got on a plane to come back home to my apartment, now with heat and hot water. I bought a New York Times because it seemed that I ought to have a souvenir of the election results, and an airport employee approached me about it. In the end, I gave him the special Election section, which he said was excited to read on his lunch break, since I only really wanted the front page. New York still wasn't back to normal: the A train wasn't running to Manhattan, and another airport employee helped me figure out which subways I could take back to the City. (In thirteen years, I haven't admitted to needing any help navigating the subways - I can read the map! - so receiving some advice felt both unusual and comforting.)
And then, my journey nearly over, I stepped off the subway into my neighborhood and collided with the cold rain and wind of today's Nor'easter. Fortunately, this time I am comfortably secluded in a home with power, heat, and all the comforts of my home back again. And tomorrow, I'll go back to work for the first time in eleven days, and the President will still be our president, and yet I feel like so much has changed, or happened, or transformed in this time. In some ways, those changes are out there in the world, and in other ways, it is me who has been changed. I want to make sure that I remember what this topsy-turvy week felt like, even when New York, and the country, and my life seems to go back to normal.
Monday, June 18, 2012
Nimby is ugly, democracy is messy, but somehow it all works
As I just mentioned on facebook, after an hour or so of community board 3 subcommittee on liquor licensing, I am astounded that anyone ever bothers and manages to open bars and restaurants in new York City, let alone the sheer number that we see. The forces of not in my backyard negativity are astounding. As this issue has emerged concerning our immediate neighborhood, my husband and I have been commenting to each other that we moved to the Lower East Side from the suburbs of Jersey because we wanted the vibrant, mixed-use neighborhood we could only find in Manhattan. We thought it was obvious that all Manhattanites thought like us, but I am seeing just how wrong that assumption is. For example, I am now watching a request for a tiny Japanese restaurant on an East Village side street. Some of the commentators opposes to the license are remarking that there are so many Japanese restaurants in the area, we don't need another. To me, this point is more a threat that this business won't survive than a reason to discourage it in the first place. Why not let the market decide if, in fact, we need another Japanese restaurant? I am embarrassed to note that another concern voiced was that the owner, a Japanese woman, does not speak English very well so who can these people complain to? Is that not flat out nativist? What happened to the American dream, and the beautiful diversity of New York City?
As for the bar application that brought me here in the first place, my neighbors complained that we are a residential neighborhood and should stay that way; they complain that opening a bar will guarantee drunks and criminals; that the noise will disturb them; that it should be denied simply because it is a block away from schools and churches. This is New York City! I had no idea this went on here. The fact is that in our particular few-block radius, there are very few bars and restaurants. This fact is what drives many of the supporters who want more neighborhood nightlife spots. But even more so, this fact makes me impressed that these particular proprietors are willing to take the risk of opening a new business in a neighborhood that does not have a bar-going reputation. I have heard that 1 out of every 3 new restaurants in NYC fails within a year. Given this, I am amazed at the uphill battle people go through to even bother trying.
But the fact is, if you look around the city, it appears that somehow this mix of business and democracy works. People are able to have their say, perhaps even to encourage and persuade business owners to make certain concessions in the way they operate - schedule, offerings, noise control - and businesses are able to open and, with any luck, thrive. I'm just observing for now, but with an eye toward getting more involved in the community governance and institutions soon.
My questions: Just how, and how well, does this balance of democracy and business work? How much of these community reactions are simple inertia and fear of change and how much is legitimate concerns about changes that should not be permitted or concessions that should be made before a business can open? Do these community boards ultimately have any power over the licensing authority? How much influence do they have? If I were to get involved, what would be the purpose really, in terms of what I might hope to accomplish for the community (and for myself of course)?
As for the bar application that brought me here in the first place, my neighbors complained that we are a residential neighborhood and should stay that way; they complain that opening a bar will guarantee drunks and criminals; that the noise will disturb them; that it should be denied simply because it is a block away from schools and churches. This is New York City! I had no idea this went on here. The fact is that in our particular few-block radius, there are very few bars and restaurants. This fact is what drives many of the supporters who want more neighborhood nightlife spots. But even more so, this fact makes me impressed that these particular proprietors are willing to take the risk of opening a new business in a neighborhood that does not have a bar-going reputation. I have heard that 1 out of every 3 new restaurants in NYC fails within a year. Given this, I am amazed at the uphill battle people go through to even bother trying.
But the fact is, if you look around the city, it appears that somehow this mix of business and democracy works. People are able to have their say, perhaps even to encourage and persuade business owners to make certain concessions in the way they operate - schedule, offerings, noise control - and businesses are able to open and, with any luck, thrive. I'm just observing for now, but with an eye toward getting more involved in the community governance and institutions soon.
My questions: Just how, and how well, does this balance of democracy and business work? How much of these community reactions are simple inertia and fear of change and how much is legitimate concerns about changes that should not be permitted or concessions that should be made before a business can open? Do these community boards ultimately have any power over the licensing authority? How much influence do they have? If I were to get involved, what would be the purpose really, in terms of what I might hope to accomplish for the community (and for myself of course)?
Wednesday, April 4, 2012
Disenchantment and the Supreme Court
Where have I been for the last month? What happened to practice, practice, practice? I'm sure there are a host of factors - laziness, distraction, premature spring making me want to be outside - but the one worth talking about is disenchantment, disillusion, however you want to call it. The events of the last month tend to inspire me to something more akin to crawling under a rock than to the critical engagement that writing requires. Shall I count them? Let's see, there was the Trayvon Martin shooting, with the less-than-inspiring conversations it begat of Florida gun laws, seemingly-backwards law enforcement, President Obama's reaction, and ... ahem... hooded sweatshirts. There has been the GOP primary, with its plethora of depressing candidates and discussion topics apparently trying to distract voters from the dismal economic situation. (Reproductive rights becoming a priority during the Great Recession? Really?) And...steeling myself...the health care arguments at the Supreme Court.
Question: What is a clear signal that you have been feeling disillusioned?
Answer: When the most refreshing voice you've heard in weeks belongs to John McCain.
So I'm listening to this week's This American Life episode and it is uber-depressing (enlightening in a "now I know about the pink slime in my hamburgers" kind of way. Oh yeah, I forgot to put that one on the list of uninspiring news topics). First they talk about how lobbying has worked in Congress in recent years, with choice facts like: Nancy Pelosi attended 400 fundraisers in 2011, typical lobbyists dodge phone calls from Congress members who are calling them to ask for fundraising and contributions (not the other way around), and the return on investment for lobbying over the American Jobs Creation Act was 22,000 %. And this is only Act I. After the break, the show goes on to discuss how Citizens United makes all of this even worse. How it ups the ante - exponentially - for Congress members' fundraising goals. How Karl Rove's super PAC is expected to spend $300 million on the various races of 2012. How Rove's Super PAC's ad-buy of $700,000 in a 2010 congressional race single-handedly increased the Republican campaign's spending by 1/3 in a single day - and of course, the Democratic was defeated.
So, into this morass comes this really great - but too brief! - interview with John McCain and Russ Feingold, sponsors of the legislation evicerated by Citizen United. After the antagonism I have felt toward John McCain since the 2008 election, it was such a surprise to feel like this guy was on my side of this dismal issue. John McCain, saying that Citizens United was "beyond ridiculous." John McCain, saying that Scalia's "arrogance" and "sarcasm" was "stunning." John McCain, calling the Supreme Court "clueless."
Ok, I realize that McCain is really the representative of a dying breed of Republicans, being pushed aside by the Tea Partiers and their Santorums. But it's refreshing to remember that it is not entirely an us-against-them world, that there are some folks on the right that have the same critiques of the Supreme Court that I have. And not just critiques, but anger, frustration, dismay.
Feingold then said something that gives a glimmer of hope to all of this. He said, "One thing that John and I experienced was that sometimes the corporations that didn't like the system would come to us and say, you know, you guys, it's not legalized bribery, it's legalized extortion. Because it's not like the company CEO calls up to say, gee, I'd love to give you some money. It's usually the other way around. The politician or their agent who's got the Super PAC, they're the ones that are calling up and asking for the money." - this quote was entirely consistent, by the way, with the reporting in part 1 of the episode - "So a lot of businesses, I think, are going to help us rebel against this and say, you know, we don't want to be a part of this mess."
Let's stop and think about that for a minute. Amidst all the cynicism I have felt that corporations will just buy government and destroy any semblance of democracy, Feingold suggests this alternate reality: businesses don't want to buy government - not at these prices anyway! - and they will become allies in the fight against the new reality. Could it be, even just a little bit, possible?
So this brings me back to the Affordable Care Act. I could devote pages to this - along with the attendant agonizing - but I'll try to be brief here.
As a lawyer, my belief in the legal system is an article of faith, a core value that I thought I shared with the other members of the legal community, and especially our leaders at the pinnacle of the profession, the Supreme Court: separation of powers, federalism, stare decisis, judicial restraint, constitutional avoidance, deciding only cases and controversies and avoiding "advisory opinions", avoiding political questions. In law school, I had the privilege of taking "Federal Courts" with Professor Shapiro, a student of the original authors of the seminal textbook on this study, Hart & Wechsler. Thinking about all I learned there makes me feel the roots of my disenchantment acutely. Fed Courts, as it is known to law students, is a notoriously "gunner" class, taken by everyone on law review, by anyone who aspires to a federal appellate clerkship, and was the most challenging class I've taken since AP calculus in high school. It is always hard to explain what makes it so challenging, but what makes it challenging is exactly what makes it so crucial to my faith in the legal system. The point of Fed Courts, as I learned it, is about how the Supreme Court has shaped the role of the federal judiciary in the American system, and much of it is about the limits on that power - deferring to the political branches on political questions, deferring to the states on state questions, not rendering opinions on constitutional questions unless absolutely necessary to deciding a case (this is the doctrine of "constitutional avoidance"), not rendering opinions on anything unless necessary to deciding a "case or controversy" before it (this is the doctrine of avoiding "advisory opinions). In recent years, the Supreme Court seems to have turned all this on its head. (I realize in my quick "research" for this blog post that for many years now scholars have been arguing that the "Hart & Wechsler paradigm" "no longer serves us well either as an account of what the Supreme Court does in Federal Courts cases or as a guide to what the Court ought to do." Perhaps I am coming to agree with that view, or the first part of it, anyway.)
These principles are part of the outrage amongst lawyers over Bush v. Gore - that the Supreme Court would ignore the centuries-old "political question doctrine" in that decision. Citizens United continues this trend. To me, steeped in the law of the Hart & Wechsler fed courts paradigm, it is the constitutional avoidance problem that has me most baffled: the statute at issue could have been construed far more narrowly to avoid the constitutional question of whether corporations have free speech rights. There was just no need to reach that issue, except to flex the Supreme Court's muscle in a manner that had been studiously avoided for, again, centuries.
And now comes the Affordable Care Act. (What is that case called, anyway? . .[quick search] . . It is two consolidated cases, the easier of which is HHS v. Florida.) In this case, precedent appears to dictate - as Obama recently noted - upholding Congress's commerce clause authority. Congress's enactment of economic laws has not been questioned since the Court's review of New Deal legislation about 75 years ago. And then there are the questions. Argh...the questions! Asking about Congress's other options, why Congress chose this method of dealing with the health care problems, asking about the costs of the program. When your understanding of the federal court is shaped by an intense study of doctrines created by the Court itself to limit its power, these questions feel like nails on a chalkboard. They are not the kind of questions the Justices are supposed to ask; they are precisely the questions they are supposed to avoid. (Click here for a good article on the Supreme Court arguments.)
The entire basis of these doctrines is that this small, unelected, tenured-for-life group - without the power of the purse or the military - secures its legitimacy only by the citizenry and the rest of government maintaining a kind of faith or trust in its legitimacy, and it maintains that respect by limiting its powers. The 5 members of the current conservative wing seem to have a different set of principles at work, and I fear that they are taking a knife to their own legitimacy. Oh what a great relief it will be if they uphold Obamacare! But based on what I've seen so far, from Citizens United to the oral arguments in HHS v. Florida, the wound has been inflicted, and whether the knife is turned remains to be seen.
And as a lawyer, as a lawyer with a tremendous faith in the deepest principles of the federal judicial system, the carving away at those tenets causes me greater disillusion than all of those other events.
Question: What is a clear signal that you have been feeling disillusioned?
Answer: When the most refreshing voice you've heard in weeks belongs to John McCain.
So I'm listening to this week's This American Life episode and it is uber-depressing (enlightening in a "now I know about the pink slime in my hamburgers" kind of way. Oh yeah, I forgot to put that one on the list of uninspiring news topics). First they talk about how lobbying has worked in Congress in recent years, with choice facts like: Nancy Pelosi attended 400 fundraisers in 2011, typical lobbyists dodge phone calls from Congress members who are calling them to ask for fundraising and contributions (not the other way around), and the return on investment for lobbying over the American Jobs Creation Act was 22,000 %. And this is only Act I. After the break, the show goes on to discuss how Citizens United makes all of this even worse. How it ups the ante - exponentially - for Congress members' fundraising goals. How Karl Rove's super PAC is expected to spend $300 million on the various races of 2012. How Rove's Super PAC's ad-buy of $700,000 in a 2010 congressional race single-handedly increased the Republican campaign's spending by 1/3 in a single day - and of course, the Democratic was defeated.
So, into this morass comes this really great - but too brief! - interview with John McCain and Russ Feingold, sponsors of the legislation evicerated by Citizen United. After the antagonism I have felt toward John McCain since the 2008 election, it was such a surprise to feel like this guy was on my side of this dismal issue. John McCain, saying that Citizens United was "beyond ridiculous." John McCain, saying that Scalia's "arrogance" and "sarcasm" was "stunning." John McCain, calling the Supreme Court "clueless."
Ok, I realize that McCain is really the representative of a dying breed of Republicans, being pushed aside by the Tea Partiers and their Santorums. But it's refreshing to remember that it is not entirely an us-against-them world, that there are some folks on the right that have the same critiques of the Supreme Court that I have. And not just critiques, but anger, frustration, dismay.
Feingold then said something that gives a glimmer of hope to all of this. He said, "One thing that John and I experienced was that sometimes the corporations that didn't like the system would come to us and say, you know, you guys, it's not legalized bribery, it's legalized extortion. Because it's not like the company CEO calls up to say, gee, I'd love to give you some money. It's usually the other way around. The politician or their agent who's got the Super PAC, they're the ones that are calling up and asking for the money." - this quote was entirely consistent, by the way, with the reporting in part 1 of the episode - "So a lot of businesses, I think, are going to help us rebel against this and say, you know, we don't want to be a part of this mess."
Let's stop and think about that for a minute. Amidst all the cynicism I have felt that corporations will just buy government and destroy any semblance of democracy, Feingold suggests this alternate reality: businesses don't want to buy government - not at these prices anyway! - and they will become allies in the fight against the new reality. Could it be, even just a little bit, possible?
So this brings me back to the Affordable Care Act. I could devote pages to this - along with the attendant agonizing - but I'll try to be brief here.
As a lawyer, my belief in the legal system is an article of faith, a core value that I thought I shared with the other members of the legal community, and especially our leaders at the pinnacle of the profession, the Supreme Court: separation of powers, federalism, stare decisis, judicial restraint, constitutional avoidance, deciding only cases and controversies and avoiding "advisory opinions", avoiding political questions. In law school, I had the privilege of taking "Federal Courts" with Professor Shapiro, a student of the original authors of the seminal textbook on this study, Hart & Wechsler. Thinking about all I learned there makes me feel the roots of my disenchantment acutely. Fed Courts, as it is known to law students, is a notoriously "gunner" class, taken by everyone on law review, by anyone who aspires to a federal appellate clerkship, and was the most challenging class I've taken since AP calculus in high school. It is always hard to explain what makes it so challenging, but what makes it challenging is exactly what makes it so crucial to my faith in the legal system. The point of Fed Courts, as I learned it, is about how the Supreme Court has shaped the role of the federal judiciary in the American system, and much of it is about the limits on that power - deferring to the political branches on political questions, deferring to the states on state questions, not rendering opinions on constitutional questions unless absolutely necessary to deciding a case (this is the doctrine of "constitutional avoidance"), not rendering opinions on anything unless necessary to deciding a "case or controversy" before it (this is the doctrine of avoiding "advisory opinions). In recent years, the Supreme Court seems to have turned all this on its head. (I realize in my quick "research" for this blog post that for many years now scholars have been arguing that the "Hart & Wechsler paradigm" "no longer serves us well either as an account of what the Supreme Court does in Federal Courts cases or as a guide to what the Court ought to do." Perhaps I am coming to agree with that view, or the first part of it, anyway.)
These principles are part of the outrage amongst lawyers over Bush v. Gore - that the Supreme Court would ignore the centuries-old "political question doctrine" in that decision. Citizens United continues this trend. To me, steeped in the law of the Hart & Wechsler fed courts paradigm, it is the constitutional avoidance problem that has me most baffled: the statute at issue could have been construed far more narrowly to avoid the constitutional question of whether corporations have free speech rights. There was just no need to reach that issue, except to flex the Supreme Court's muscle in a manner that had been studiously avoided for, again, centuries.
And now comes the Affordable Care Act. (What is that case called, anyway? . .[quick search] . . It is two consolidated cases, the easier of which is HHS v. Florida.) In this case, precedent appears to dictate - as Obama recently noted - upholding Congress's commerce clause authority. Congress's enactment of economic laws has not been questioned since the Court's review of New Deal legislation about 75 years ago. And then there are the questions. Argh...the questions! Asking about Congress's other options, why Congress chose this method of dealing with the health care problems, asking about the costs of the program. When your understanding of the federal court is shaped by an intense study of doctrines created by the Court itself to limit its power, these questions feel like nails on a chalkboard. They are not the kind of questions the Justices are supposed to ask; they are precisely the questions they are supposed to avoid. (Click here for a good article on the Supreme Court arguments.)
The entire basis of these doctrines is that this small, unelected, tenured-for-life group - without the power of the purse or the military - secures its legitimacy only by the citizenry and the rest of government maintaining a kind of faith or trust in its legitimacy, and it maintains that respect by limiting its powers. The 5 members of the current conservative wing seem to have a different set of principles at work, and I fear that they are taking a knife to their own legitimacy. Oh what a great relief it will be if they uphold Obamacare! But based on what I've seen so far, from Citizens United to the oral arguments in HHS v. Florida, the wound has been inflicted, and whether the knife is turned remains to be seen.
And as a lawyer, as a lawyer with a tremendous faith in the deepest principles of the federal judicial system, the carving away at those tenets causes me greater disillusion than all of those other events.
Monday, February 27, 2012
Bad Calls
I found this story interesting about how the a boys' basketball team from a Jewish day school in Texas will have to forego its earned-berth in the state finals tourney of the Texas Association of Private and Parochial Schools ("TAPP"). The Director of TAPP - an association of religious schools, mind you - did not sound particularly convincing to me when he said, "If the schools are just going to arrange their own schedule, why do we even set a tournament?" But I found the spirit of the team - as described by their coach and a dad - quite refreshing. As the coach said, "We have a pretty mature group of guys . . . They knew this could happen down the road.” According to the dad, "It’s disappointing, . . . I think the kids will be disappointed, too, but the team has this attitude of when there are bad calls, you just move on."
Digging a little further, I see that the Beren Academy's situation stems directly from the fact that the Jewish Sabbath falls on different days from the Christian Sabbath. According to this Houston Chronicle article, "Neither TAPPS nor UIL teams are allowed to play any sports on Sundays, when Christians traditionally worship." (UIL appears to be another Texas-based athletic conference.)
Is this a case of some kind of religious discrimination? The coach/athletic director says no (not altogether convincingly, though): "I don't think it has anything to do with our school being Jewish . . . We were well aware it could come to this. But one thing that gave us hope that our game time might be changed was a Seventh Day Adventist school had games rescheduled in a TAPPS state soccer tournament a few years ago." (Click here for full article.). Even the Anti-Defamation League is exercising diplomacy: "ADL recognizes that many of the private and parochial schools with TAPPS membership are faith-based institutions where religion is an extremely significant part of the education process and the lives of students who attend. . . . We are hopeful the leadership of TAPPS will keep that in mind when making a decision about Beren Academy’s request ....” (full press release here)
I am definitely not a sufficiently informed observer to attempt to draw any conclusions here about basketball and religion in Texas (or anywhere for that matter.)
But I can tell you that I appreciate how the lesson the team draws from this is not to cry foul, but to move on after a bad call.
Digging a little further, I see that the Beren Academy's situation stems directly from the fact that the Jewish Sabbath falls on different days from the Christian Sabbath. According to this Houston Chronicle article, "Neither TAPPS nor UIL teams are allowed to play any sports on Sundays, when Christians traditionally worship." (UIL appears to be another Texas-based athletic conference.)
Is this a case of some kind of religious discrimination? The coach/athletic director says no (not altogether convincingly, though): "I don't think it has anything to do with our school being Jewish . . . We were well aware it could come to this. But one thing that gave us hope that our game time might be changed was a Seventh Day Adventist school had games rescheduled in a TAPPS state soccer tournament a few years ago." (Click here for full article.). Even the Anti-Defamation League is exercising diplomacy: "ADL recognizes that many of the private and parochial schools with TAPPS membership are faith-based institutions where religion is an extremely significant part of the education process and the lives of students who attend. . . . We are hopeful the leadership of TAPPS will keep that in mind when making a decision about Beren Academy’s request ....” (full press release here)
I am definitely not a sufficiently informed observer to attempt to draw any conclusions here about basketball and religion in Texas (or anywhere for that matter.)
But I can tell you that I appreciate how the lesson the team draws from this is not to cry foul, but to move on after a bad call.
Monday, February 20, 2012
Big News on Craft Foods
(Yes, Google, that's "craft" with a C, thank you very much.)
First, here's an interesting article on this topic. Just a couple of weeks after I posted on small, artisan foods, Adam Davidson of Planet Money wrote an article for the New York Times on artisan, craft foods. "Don't Mock the Artisanal-Pickle Makers," it's called. Davidson says, "Contrary to popular belief, the revival of craft manufacturing isn’t just a fad for Brooklyn hipsters," and describes how some artisan food craftmen are able to scale up and run a healthy American manufacturing business. Davidson makes a compelling case that "craft business is showing how American manufacturing can compete in the global economy." Specifically, craft businesses avoid "direct competition with low-cost commodity producers in low-wage nations" and instead, create "customized products for less price-sensitive customers." This is a very hopeful article, and I like economic optimism.
Second, my big artisan food news is that my husband and I have decided to try our hand at becoming "artisanal food craftsmen" ourselves! We have just launched a new company, Flying Granola - as you can learn in my other blog, http://flyinggranola.blogspot.com/ - and hopefully we will be making our debut at a local craft/food fair sometime this spring. Stay tuned!
And bringing it all together, here's a link to the story of Bear Naked Granola. Personally I just like to cook, eat, and feed others, but certain other founders of Flying Granola are very inspired by success stories like this. Success in this case being 0 to 60 - that is, $60 million - in less than six years.
First, here's an interesting article on this topic. Just a couple of weeks after I posted on small, artisan foods, Adam Davidson of Planet Money wrote an article for the New York Times on artisan, craft foods. "Don't Mock the Artisanal-Pickle Makers," it's called. Davidson says, "Contrary to popular belief, the revival of craft manufacturing isn’t just a fad for Brooklyn hipsters," and describes how some artisan food craftmen are able to scale up and run a healthy American manufacturing business. Davidson makes a compelling case that "craft business is showing how American manufacturing can compete in the global economy." Specifically, craft businesses avoid "direct competition with low-cost commodity producers in low-wage nations" and instead, create "customized products for less price-sensitive customers." This is a very hopeful article, and I like economic optimism.
Second, my big artisan food news is that my husband and I have decided to try our hand at becoming "artisanal food craftsmen" ourselves! We have just launched a new company, Flying Granola - as you can learn in my other blog, http://flyinggranola.blogspot.com/ - and hopefully we will be making our debut at a local craft/food fair sometime this spring. Stay tuned!
And bringing it all together, here's a link to the story of Bear Naked Granola. Personally I just like to cook, eat, and feed others, but certain other founders of Flying Granola are very inspired by success stories like this. Success in this case being 0 to 60 - that is, $60 million - in less than six years.
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