WHAT I WAS NOT TAUGHT IN LAW SCHOOL
I have an Economics Degree and a Law Degree.
Ever since George Floyd, I have learned more about what it means to be an American than I did getting those two Degrees.
The founding of the United States of America in 1776 coincided with the publication of Adam Smith's - An Inquiry into the Nature and Causes of the Wealth of Nations. The work is a refutation of Mercantilism, which is essentially the imperialist/colonialist accumulation of gold and silver through maximizing exports and minimizing imports through tariffs.
The Wealth of Nations is famous for the Invisible Hand of the Marketplace producing public good through the pursuit of private interest. What was radical was this concept of the public good being the Wealth of a Nation. The standard of living of the largest number of people and their capacity to sustain and recreate that standard was Wealth - not gold and silver.
The United States was White Supremacist at its founding and remains so.
White Supremacy found it's most brutal expression:
(1) in the "Manifest Destiny" largest genocide in the history of the world, which was the killing of millions of the Native Peoples of the Americas; and
(2) in over three (3) centuries of enslavement of the Peoples of Africa.
America is not a Nation of Immigrants. America is a Nation of the Descendants of Immigrants who took by lethal force the land of Native Americans and the Labor of African Americans for over 300 hundred years.
White Supremacy is fundamentally opposed to the Wealth Adam Smith described. White Supremacy seeks to continue the imperialist/colonialist way of life that existed for centuries before Adam Smith wrote about another way to think of Wealth. Colonialism didn't die after Adam Smith; it just changed form. Neocolonialism involves shifting the costs of private profit profit onto the Public, whether that public is at home or abroad.
Adam Smith's Wealth is the kind the Amish have in which if a barn burns down, the community builds another barn. Respect for the the Earth, and all life, sustains standards of living which provide food, work, education, healthcare, housing, transportation, recreation & leisure, and close families and communities that look out for each other.
Germany has a culture of admitting and never forgetting their past. Germany is committed that nothing like the Holocaust ever happen again. What Germany has done as a Nation over generations is much bigger than feeling guilty - it is about facing the capacity in all of us to do evil under certain circumstance and to work to prevent those circumstances from coming into existence. America needs to admit and never forget our past regarding Native American and African American people and commit that the circumstances that led to these atrocities stemming from the original sin of White Supremacy do not continue to exist. Such circumstances clearly still do exist in America. Those circumstances include Indian Reservations and Black Ghettos.
Descendants of victims can never be made whole. To think so would be as insulting as giving money to an innocent man who spent twenty years in prison as if any amount of money could compensate for two decades of a person's life. What is not insulting (in my view) is to do what we can in terms of returning art stolen by the Nazi's and returning property stolen by terrorizing black people that is proven to be stolen. The theft of an entire continent and over three centuries of labor is so vast as to make compensation impossible. It is like Hitler's "Big Lie;" if the "BIG STEAL" is big enough you will "get away with it." But, at what cost? Hitler was a big fan of America. That should give us pause as to who we are. Hitler took eugenics from us. Hitler took the concept of the "Master Race" from the White Supremacy developed over centuries in the American South. Hitler took one of chemicals used in the gas chambers from the American Southern Border where it was used on Mexicans in lower doses than Hitler used to kill. Hitler took American ideas and increased the dosage to produce Nazi Germany.
What we owe to Native American people and African American people, who are now our fellow citizens (America has no classes of citizenship), is acknowledgement of the truth of their unimaginable pain.
What we owe to Native American people and African American people is equality of opportunity.
We owe it to Native American people and African American people and we owe it to all American citizens to stop discriminating on the basis of brown or black skin.
If we do not pay what we owe, we will continue to reap the bitter harvest of strange fruit.
America is a Republic, if we can keep it. At the founding there was one multinational corporation, the East India Company. Thomas Jefferson in particular was very concerned about monopoly power and wanted protections against it in the Constitution. He was, unfortunately for us, outvoted. The conglomeration of multinationals today and their associated Monopoly Power (Microsoft) and Oligopoly Power (90% of American Media controlled by 6 companies) threatens us all daily. These immortal legal "Persons" who can plead guilty to felonies in the stead of the Officers of the Company pleading guilty (Perdue Pharma) have used the 14th Amendment Equal Protection Clause much more than the African Americans it was enacted to protect.
People and the Earth itself must be put ahead of Profit. If Multinationals are People with unlimited money influencing our elected representatives (Citizens United) then we have created a system dedicated to our own destruction. Is the Humanity itself suicidal? Looking at Human History and the number of things we have done and continue to do that undermine our survival interest, it is hard to escape that possibility.
A good example of a (suicidal?) failure to understand economics and the role of the law in protecting the Earth and it's people is the Berkeley Pit in Butte, Montana. It is a Superfund Site in which many billions have been (and continue to be) spent cleaning up the mess created by Copper Mining. The cleanup costs have already exceeded the value of all of the Copper extracted plus all of the payroll of the miners who extracted it. In other words, the way mining occurred was a net loss to society. Profit was privatized; the costs were shifted onto the public. That is the well known business model that Government must counter. If it doesn't, then the Earth and Taxpayers will continue to suffer. Butte was known at one time as the "Richest Hill in the World." We need to rethink what rich means because currently it means private profit at public expense, which is an insidious form of poverty in the guise of riches.
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Bhutan measures "Gross National Happiness." America should as well.
Happiness cannot be measured directly, so proxies for Happiness are measured.
Those proxies must include the necessary conditions to sustain life on Earth, and to sustain healthy communities, and to sustain healthy relationships among communities.
How can anyone be happy knowing they are slowly killing themselves?
Before describing what can be measured and why, I think it is important to understand the sinking feeling that many law students have (myself included) when they realize that the U.S. Constitution is all about negative rights limiting Government. It was written by rich, white, Protestant men for themselves at the expense of African Americans, Native Americans, Women, Immigrants, the Poor, the Disabled, the Disadvantaged, and the Earth itself. The U.S. Constitution is a great document nonetheless. Being with America's greatness and America's grave failings at the same time is key to understanding America. America is not one or the other. America is both, and then some.
It is the Amendments to the Constitution, the Bill or Rights, Freeing Slaves, Giving African Americans and Native Americans Citizenship and the right to Vote, & Giving Women the right to Vote that begin to broaden America to include more of its people. We can be proud of these Amendments, but they don't go far enough in guaranteeing positive rights. For example, the U.S. Supreme Court ruled in Bush v. Gore that American Citizens do not have the legal right to vote for President of the United States. This is a tragedy that needs to be corrected. Voting should be an affirmative right of all citizens in a robust democracy. America is a struggling democracy for obvious reasons, but we don't need to be.
Below is list of some of the things that could be measured. The overarching idea is that Government should be constantly looking at what the Invisible Hand of the Marketplace is doing - and not doing. A continuous cost/benefit/risk analysis regarding Government intervention with the philosophy of "First, Do No Harm" is needed. Government should not being doing things the market does better and more efficiently, but should be doing things where the Market harms the Public such as Private Prisons involving lobbying for longer sentences in the Country with the largest number of incarcerated people in the World.
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(1) Clean Unpolluted Air, Water, Soil, & Space such that life is sustainable and climate is not changed unfavorably to life on Earth. Remediation of harm done such as planting trees and returning parts of the Earth to their natural state without human presence. Countries working together to mitigate the tragedy of the commons of near earth orbit space debris. There is not a National recognition and honoring of the fact that America stole 98% of the land of Native Americans and left them with 2% of largely unfavorable land. To honor this would be to focus on the creation of opportunities for Native Americans.
Preservation of the necessary conditions for life is not a right of Americans (or anyone for that matter). It should be a Universal Human Right. If maintaining the climate to support human life was a Right then Americans could expect Government policies to balance that Right with Profit. Why would any Rational Human Being create an institution that does not even have the basic duty to protect the survival interest of the Human Being?
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(2) Not Overfishing; Not Over Harvesting Trees; Not Over Extracting Oil, Gas, Coal, Minerals, Metals, and all that is Precious within the Earth such that renewable resources remain renewable and planning is done for increasing scarcity of non-renewable extraction. It is not enough to simply reduce the rate of harm, we must actively work to remediate past harm.
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(3) Food. Is the supply of Food sustainable and equitably distributed? How much Food is wasted? Is the Market harming the Public Health? If so, what interventions are appropriate and which descend into the "Nanny State."
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(4) Employment & Leisure. There is not a National recognition and honoring of the fact that America was built on the stolen labor of slaves and the exploited labor of immigrants. To honor this would be to focus on the creation of opportunities for African Americans and immigrants.
There is no right to work for the ready, willing, and able. The U.S. does not give a tax break for hiring employees, we simply give a tax break and hope it "trickles down." This is especially important because of the low tax rates of corporations themselves and the amount of tax burden shifted to employees. America does not have National Standards for unemployment insurance tax rates. Instead, States compete to attract business by lowering tax rates and underfunding their systems requiring Federal assistance. A job is a job is a job. Jobs making weapons are counted the same as any other job. Jobs overfishing or overharvesting trees or over extracting fossil fuels are counted the same as any other.
The 13th Amendment excepts from involuntary servitude those convicted of crimes. This must be changed. This racist exception is what allows the prison labor industry to exist. This, coupled with disenfranchisement for felony convictions, is the second barrel of the White shotgun that has been blasting away at Black People for generations and must stop.
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(5) Housing. There is no right to decent housing in America. If you are an addict or mentally ill you may be living outside in America. Ronald Reagan said doing so was a choice, but did not examine the capacity of the decision maker who makes such a choice.
The majority of mortgages in America are guaranteed by the Federal Government in programs that until 1965 excluded people of color by law, and continue to exclude them in fact today. We owe it to our brother and sister citizens of color to provide fair housing opportunities. The White Supremacist allotment of housing cannot be undone, but we should not pretend that some reparations for this egregious harm that created the White Suburbs all across America (where I have lived my entire 53 years of life) is not owed.
Government regulation must play in role in stabilizing housing in America so that the mortgage backed securities derivative fueled global destruction of trillions in value in 2008 does not recur.
In America, taxpayers who itemize can claim the mortgage interest deduction up to $1 million. So, taxpayers subsidize housing for citizens who pay $1 million in mortgage interest while some Americans sleep in tents. I claim the deduction every year, even though I am deeply philosophically opposed to the existence of the deduction. The deduction should be eliminated and revenue devoted to decent affordable housing for all Americans. Why should taxpayers subsidize a lawyer, me, to live in a $1.6 million dollar house?
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(6) Education & Training. There is no right to quality education or job training in America. Higher education costs have outstripped inflation for decades leaving behind more low income talented and deserving students every year. If America was a meritocracy like Julliard or sports, then we would be scouring everywhere for promising young doctors, engineers, scientists, mathematicians, and computer scientists and not just looking for talented musicians, actors, dancers, and athletes. We should be looking for all talent of every kind and nurturing it without regard to race, ethnicity, religion, disability, sex, income, wealth, or any other factor unrelated to what a person can contribute with whatever reasonable accommodations are necessary to allow the growth of talent and ability.
India has a very successful decades long program for getting people out of poverty by promoting STEM education. Why doesn't America have something similar? By putting STEM schools in low income black and brown neighborhoods like East Harlem or on Indian Reservations, we would all be better off. If a low income white student went to such a school, then the education would be much deeper than science and math and would include a broader social awareness. Perhaps some solidarity regarding improving one's chances in life might transcend race.
When I was in law school in Spokane, there was a need blind racial diversity scholarship. There was a black man who drove a BMW 750, who was much richer, smarter, and more capable than I am. He was not disadvantaged. I talked to him about this issue and he said he thought the scholarship should be need based, but if they were stupid enough to give it to him he would take it. He was just like me taking the mortgage interest deduction even though I think it is bad public policy.
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(7) Healthcare, Childcare, & Elder Care. There is no right to Healthcare in America. There is no National Health Service. Medicare is age restricted. We need a continuous cost/benefit/risk analysis to know why costs are so high and outcomes are not as good as other countries. America is a big country. Why can't we have the private system we have plus a National Health Service plus expanded Medicare?
The Government's role should be to notice needs not met by free market capitalism, and to meet those needs. At a minimum, Government needs to address the fact that medical debt is the leading cause of bankruptcy in the U.S. (I practice bankruptcy law) and medial bills are slowly bankrupting America itself.
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(8) Health of Media. Freedom of the Press. The Watchdog Role of the Press. The Fourth Estate (the other three being Executive, Legislative, & Judicial). Media Matters. The People must know what their Elected Representatives are doing on their behalf, and how they are doing it. The People must know of breaches of the Public Trust whether they be trust in Government or Trust in companies and private institutions to treat them fairly. Before 1996, many television stations, radio stations, & newspapers were locally owned by families. Today, virtually none are. The Billionaire Class Rules American Media. Multinationals and the Billionaire Class have so much money to spend litigating, and the Federal Government has so much Classified information and prosecutes for its release, that fear of reprisal for whistleblowing on injustice is very real.
I watch John Oliver's program on HBO. HBO lawyers review the content of the program for risks before airing. John Oliver was still sued frivolously by the owner of a mining company. The suit was dismissed, but much money and time was spent, the aggrieved party was not made whole, and the message was received. Rich people can abuse the legal system, and get away with it. Speaking of rich people abusing the legal system, why is it legal to use Non-Disclosure Agreements (NDA) to cover up felonious sexual assault as Donald Trump did (and apparently still does) repeatedly? If I went into Court and tried to enforce an NDA regarding the sale of heroin laced with Fentanyl, that suit would be (and should be) dismissed at the least. However, if a serial rapist tries to enforce an NDA that may be allowed. Why? Shining a light on the dark mold of injustice and disinfecting it is what a healthy media does. Without the Media, the mold will spread and spread until finally we will be like the fish who asks "What's water?". We will ask "What's mold?" because it is everywhere.
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(9) Health of Government. Measuring the effects of the highest marginal tax rate of society clearly shows that it's lowering dramatically increases wealth and income inequality. Tax breaks follow an inverted U curve such that they can stimulate growth at first, then become neutral, and then bend down to increase inequality.
Continuous and vigorous protection of voting rights is essential for the functioning of a democracy. Free and fair elections are the bedrock of authority of our representative Government. The Electoral College must be eliminated, D.C. must be given statehood, and all elections should be held by mail with postage and costs paid by the Federal Government to even out access to the polls. The USPS is required to serve every address in the United States regardless of cost. We should use the USPS to transport all ballots, which would add the Federal crime of tampering with the mail to any other Federal crime associated with ballots. Only the Federal Government can prevent States from disenfranchising their own citizens through polling restrictions. America has a long history of racist voter suppression. Enough is enough.
America is the largest multicultural multiethnic democracy in the World. America is an experiment. No other country in the history of the World has done what America is attempting to do. Our experiment is under threat from within and without. Fascism is the seizure of the State apparatus for private wealth and power gathering at public expense. That is exactly what was happening when Donald Trump became President. The Postmaster General reduced the ability to handle ballots. The EPA Director stopped enforcing environmental laws. The Attorney General stopped enforcing white collar crime laws and consent decrees with Police Departments regarding civil rights violations (I believe this helped foster the culture that lead to the death of George Floyd).
China actively rejects the United Nations Universal Declaration of Human Rights, which is part of the proud legacy of Eleanor Roosevelt. China has the largest electronic surveillance state in the world and exports its expertise to increase its wealth, power, and influence. Because of the WTO rules secretly enforced in Geneva, the United States cannot refuse to import clothing made by the slave labor of in concentration camps.
America needs to wake up to the fact that it is not just foreign terrorism caused in large part by our military and economic hegemony that threatens us. We have much more dangerous domestic terrorists and enemies of democracy and much more dangerous foreign under miners of freedom and democracy.
America can be, and should truly be, that "shining city on a hill" that Ronald Reagan described. Only Justice will get us there. Social Justice (an end to White Supremacy and a celebration of the fact that America is the most diverse Nation in the history of the world); Economic Justice (more wealth & income equality); Political Justice (voting rights); Justice for All Life and the Conditions Necessary to Support Life (stewardship of the Earth and all of the plants, animals, fish, and creatures great and small).
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(10) Health of the Financial System. States should have Sovereign Wealth Funds (SWF) and State Banks. The SWF would be entirely funded with voluntary gifts - no tax dollars. 5% of the Fund would be sold every year and used for Education. That way the tax burden could be alleviated and elected officials would have more money to direct money to the needs of their constituents as they were elected to do. Many wealthy people would donate to such a protected Fund. Citizens could create widespread Charitable Remainder Trusts for the benefit of their children and grandchildren. For example, 5% of $1 million is $50,000. So, for $1 million a parent or grandparent could give guaranteed minimum income for life with the remainder to go to the SWF upon death. The recipient pays taxes on the $50,000 in income and can give some of that income to charities, churches or other non-profits. That way there is an ever increasing cycle of private benefit and security as well as public benefit and security and not for profit benefit and security. $10 million would give $500,000 a year for life guaranteed. There is no limit. $100 million would give $5 million a year guaranteed. That would have been a much better use of the money that Fred Trump illegally transferred to his adult children in order to avoid estate tax. A Charitable Remainder Trust avoids estate tax legally and benefits society instead of being a crime with private benefit and tax evasion.
The State Bank would conduct all government business and pay all State benefits to accounts at the bank. Checking would be free for all; Direct Deposit would be free for all. People receiving Social Security, retirement, or pensions would have Exempt Accounts such that no other funds could be deposited and no creditor could attach the funds. All Marijuana business funds could be kept in the State Bank because it would not be FDIC insured, but self-insured. The purpose of the State Bank is to meet the needs of low-income citizens and citizens not currently served by banks instead of paying for the use of private banks with public funds that could be better spent.
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(11) Transportation. People operating in a free market produce a wide variety of gas and diesel vehicles. There are some things that the market does not do well without some government intervention. For example, the low cost of leaded gasoline drove the market for decades before scientists sounded the alarm that the health costs far outweighed any savings. That is why all gas is unleaded today. Without the connection between scientists and legislators with the support of a knowledgeable public (See Health of Media), we would still be poisoning ourselves.
I grew up riding in a leaded gas V-8 when the National Speed Limit was 75 mph and there was no such thing as day running lights or air bags. Why don't we speed govern all vehicles in America at 90 mph? Doing so would save thousands of lives per year. Why don't we have always on lights in every vehicle? Doing so would save thousands of lives per year. Why don't we have true autonomous breaking so that collision is impossible? Doing so would save thousands of lives per year. The point is to have public discourse regarding the costs, benefits, and risks of Government Intervention.
Tesla is profitable because the company sells its emissions credits to other companies that manufacture large trucks and SUVs. Big business and Big Government interact and need each other. Tesla is an example of the public interest in zero emission electric vehicle proliferation being made possible by government emissions standards.
At one time there was a tax break only for the largest gas guzzling vehicles, which was the result of lobbying. Media attention on this misuse of public funds ended the tax break. That is an example of money corrupting temporarily and a healthy media shining a light on that corruption and putting a stop to it. That is the way the system should work. Lobbyists will continue to vigorously attempt to get every benefit possible for their clients. If the media is healthy, the public will decide (and change through their representatives) what is too much of a public expense for too great a private benefit. If you believe as Ronald Reagan did that Government is the problem and Media is the problem, then you are most likely wealthy and privileged because it is the Billionaire Class for whom Government and Media are the problem. For the rest of us, Government and Media are our only hope for change.
There is no positive public right in America to transportation. If there was, then there would be much more and better investment in cleaner buses, trains, and subways for the people who need public transportation the most.
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(12) Family, Community, & Meaning. Impossible to quantify. However, if churches, charities, and non-profits are a source of meaning for many people and the Government exempts them from taxes, then the Public has an interest in the conduce subsidized by the Public.
The Catholic Church (I was raised Catholic and my Aunt was a Nun) pays no taxes but exerts considerable political influence including 6 of the 9 current Supreme Court Justices and the Al Smith Dinner.
Why does the U.S. have a system where "churches" like Scientology that were created for the purpose of avoiding taxes are allowed their taxpayer subsidized existence without providing discernable benefit to the taxpaying public?
Why does the U.S. give a tax break to Bill Gates for gifts overseas through his Foundation that amount to taxpayer subsidized private exercise of foreign policy? I agree that the gifts are desperately needed and should be made. I loudly applaud Bill Gates for doing so. I just do not think that unelected private citizen billionaires should be using tax breaks to do so.
All tax exemptions for churches, charities and non-profits should be eliminated - and tax paid. The tax break would be for those who donate to the payment of the tax of such organizations. The more tax breaks an organization (or Church such as the Catholic Church) gets the more Government Scrutiny it should receive to ensure that the public interest is in fact being served. I believe that system would protect the public better, and provide more accountability and transparency. Gifts would not be limited to the amount of tax, of course, but because tax is being paid from donations that allow non-profits to keep more of their revenue the public interest would be served by both the mission of the non-profit and its tax payments instead of being subverted.
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America gives tax breaks (and tax penalties) based on the number of children and marital status. Government should get out of this business. Rewarding overbreeding in an overpopulated world of over 7 billion people largely reliant on non-renewable extraction of fossil fuels is not something Government should be doing. Penalizing people for getting married is not something Government should be doing. All tax should be individual regardless of marital status. Married people each report half of the joint income. All retirement contributions of married people should be automatically divided in half so that each spouse always has the exact same contribution. A ridiculous amount of time and money is spent in divorce dividing up retirement accounts, and it is often done incorrectly. A simple automatic system would reduce anxiety. The payroll deposits of married people should also automatically be divided in half. If everyone in the State has a State Bank account, this is simple to do. I have seen many cases in which the husband used money to control the wife and is abusive. A simple automatic system could do a lot for women.
I am a big fan of Married Separate Property Trusts for married women (I also practice Estate Planning). A woman who has a Married Separate Property Trust account can receive gifts throughout the marriage and can receive inheritance in a manner unaffected by the marital community. Husbands have to be nicer to wives who have their own money. Generations of women fought long and hard for the right to own property and to vote, instead of being voiceless chattel property. I encourage my female clients to embrace these rights, and to rejoice that no longer does a wife's inheritance belong to the husband. No longer is that inheritance managed by a male relative if the husband dies.
Instead, America should have a much more robust negative income tax system. One of the most important functions of Government is income redistribution. An essential aspect of politics the challenge of making this redistribution palatable to those from whom the redistributed income comes.
Negative Income Tax is a variation of Universal Basic Income. If the system was an electronic monthly payment and integrated with a State Bank that had an account for every low-income person in the State, then a regular flow of income would be directed at the poorest neighborhoods in America.
