Saturday, February 22, 2014

What would Matt Dillon do?

Protesters in Ukraine have managed to wrest the world's attention away from the Olympic Games in Sochi, and direct it a bit to the west, to their capitol in Kiev.  There, at the cost of at least 77 lives cut short by police sniper fire, citizens in that country ousted the president who planned to link them to Vladimir Putin's new "Eurasian Union," the latest iteration of the old Soviet Union.  Memories of their treatment by the old Russia fueled protests against the politician who planned to climb into bed with the new Russia.

All of which makes me wonder: How many people would have died at the hands of the police in this country, if the citizenry had decided to  protest the Republican engineered "Brooks Brothers" riot that ended the Florida recount vote, essentially installing George W. Bush as president. (See ) Or to demand that Congress act to legislatively overturn the Citizens United decision, which held that inanimate corporations are entitled to the same First Amendment right to free speech as actual people.  Or to protest the lack of prosecution, imprisonment, and impoverishment of the bankers, brokers, and other Wall Street types whose greed manufactured the Great Recession of 2008.

If real life were a Gunsmoke episode, Marshal Matt Dillon would defend the right of townsfolk to have a fair election.  The mean spirited and avaricious cattle baron who attempted to intimidate voters with hired thugs would be defeated by the marshal and his band of citizen-deputies, hauled before the judge for trial, and sentenced to a lengthy stay in the territorial prison.

The power hungry politician who tried to squelch the opposition by having his minions torch the local newspaper and destroy the printing press, would find himself on the wrong side of the marshal's posse.

And the outlaws who robbed the stage coach and stole the company payroll would have their bullet-riddled bodies slung over their horses' saddles and brought back to town for burial by the undertaker.

Unfortunately, history demonstrates that government police power is rarely exercised on behalf of those who seek to change the status quo.  The law abiding marshal who seeks to protect the underdog makes for good Hollywood theatre, but in today's world of SWAT Teams and militarized police forces, the people who decide when and where force will be used are not the Matt Dillons of this world, but are those who Matt Dillon would have arrested or shot.

Thursday, February 20, 2014

At least slaves got room and board

While perusing one of my favorite news sources yesterday, I came across a longish article describing the difficulty college graduates are having in securing paid employment.  Supposedly, the economy is so bad, that companies are not hiring the newly diplomaed.  Which is not the same thing as saying that companies are missing out on the intelligence, energy, and education that those youngsters can bring to the workplace. No.  Not at all.  Rather, businesses have devised a way to have the cake without paying the baker by offering unpaid internships.

Internships are nothing new.  They've been around since at least the middle of the last century and serve the dual purpose of allowing an employer to assess the performance of a potential employee, while permitting a student to try out a potential career.  Typically, internships provided either money or academic credit -- or sometimes both -- in exchange for the student's labor.  In legal terms, internships amounted to a quid pro quo: work in exchange for compensation.

The unpaid work being offered to today's college graduates fits neither the modern model of scholarly internships, nor the ancient models of slavery, apprenticeship, or indentured servitude.  In the latter, individuals were provided at least food, shelter, and clothing in exchange for their labor.  Many of today's college graduate interns, however, provide labor in exchange for nothing: not room, not board, not even educational credit.

Anyone who is familiar with the struggles of workers and unions in the last two centuries, can only marvel at the giant steps backwards that the labor movement in this nation is experiencing, as evidenced in the plight of today's unpaid interns.

At one time, it was common for indentured servants to work on farms or in factories to repay the cost of steerage to the New World.  Miners toiled long hours, putting both their health and safety at risk, in exchange for "scrip" that had no value outside the company store.  Workers sweat, and bled, and died in a multitude of horrific working conditions; in exchange, they were rewarded with delayed pay days, if they were lucky, and no pay if they weren't.  For in the heyday of company towns, workers frequently ended up owing the employer by the time the cost of housing, food, tools, and other equipment was deducted from their pay.

Through agitation and unionization, workers managed, by the 1950's, to level the playing field between labor and management.  Mining and timbering states like West Virginia enacted laws requiring employers to pay workers in U.S. currency and at least every two weeks.  Workers unionized, and those unions organized safety committees to improve working conditions.  Federal laws were put in place to protect workers who reported unsafe or unhealthful work practices.  Other laws protected employees' right to unionize and to bargain collectively with their employers.

By the time all the commencement speeches are finished this year, graduates should be walking into a work world that is at least as safe and economically productive as that which existed in the days of their grandparents.  But they aren't.  And they aren't because the crowd that has been dubbed "the one percenters" have managed to hijack the electoral process and undo a good portion of the legislation that was designed to protect the right to unionize and bargain collectively.  We won't even get into the ill-advised trade agreements that decimated manufacturing in the United States, and repeal of banking and investing laws needed to prevent the Great Recession.

Nope.  This generation has found itself launched back in time to a much less employee-friendly place.  But history is a good teacher.  And it teaches that sometimes you have to break a few windows, start a few fires, bruise a few knuckles to make yourself heard and taken seriously.  Whether this generation has the gumption to wrest back that which had already been hard won is yet to be seen.  But I'm thinking it might be time to start lighting the torches, sharpening the pitchforks, gathering the feathers, and boiling the tar.




Monday, February 10, 2014

Confessions of an industry lacky

When I practiced law at a firm that defended companies and corporations, my particular department specialized in coal industry matters.  We were the go-to guys for arguing that coal companies should face minimal responsibility for accidents or explosions that maim or kill, impoundment dams that flood, or dust and waste water that pollute.  We specialized in arguing that miners who develop coal workers pneumonconiosis should not receive the black lung benefits authorized for them or their surviving widows and children by Congress.

The lawyers in our firm worked closely with the local trade associations to draft state laws favorable to mining interests.  The original drafts for such laws typically originated either with the local trade group, or in the form of a template obtained from a larger, national entity. Our job was to massage the wording in the template to reflect local conditions, and to assure that the wording in the proposed legislation, if it could not specifically benefit the coal industry, remain as ambiguous as possible.

Yes, you read that right.  Our clients often wanted us to deliver a deliberately ambiguous document, for when it comes to laws and regulations, ambiguity is the mother of litigation.  And the next best thing to having a law worded in a way that furthers an industry's goal, is having the law worded so ambiguously that it cannot be used against an industry -- at least, not until it is tied up in litigation before trial and appellate courts for years and years, while judges struggle to determine the intent and meaning of law.

Which brings us to Senate Bill 417, the new legislation passed by the West Virginia State Senate, and forwarded for consideration and debate by the West Virginia House of Delegates.  The proposed law is a response to the pollution of the Elk River by a leaking chemical tank, and the resulting deprivation of potable water to 300,000 residents in a nine-county area.

In on-camera interviews and during public meetings, law makers state that the purpose of the new law is to assure that the rivers, springs, and wells that provide water to the state's residents are protected from any pollution like that which occurred during the Elk River disaster.  However, when the very first words of the proposed law state that  "The Legislature recognizes that industrial businesses are vital to our economy, create good-paying jobs with benefits for our citizens, and ensure that commerce will continue to flourish in West Virginia(,)" law makers have essentially told judges that they may place the needs of industry above those of human residents when attempting to interpret and resolve ambiguities in the law and regulations promulgated to enforce that law.

Furthermore, when the law goes on to state that "The Legislature also recognizes that many factors go into an industrial facility's selection of a site to do business, including, but not limited to ... a state's regulatory environment ... (,)" lawmakers have provided industry with a strong basis for arguing that courts may interpret the law and apply regulations in a manner that places the health of industries' bottom line over the health of individual citizens.

All of which is a long way of saying that passing a new law, by itself, will not prevent future incidents like the Elk River disaster.  Nor will passing a law that has a feel-good -- but misleading -- name that is at odds with the legislative findings or history set forth at the beginning of the law.  Every word, clause, paragraph, and section of a law must support its publicized purpose.  And once the law is passed, there must be individuals in the executive branch with the political guts to assure that the law is implemented and penalties enforced.