Category: Law and Inequality

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Sun on Katrina’s Lessons for Haiti

This is a guest post from Professor Lisa Sun at BYU Law School.  She is the author, along with Daniel Farber, Jim Chen, and Robert Verchick, of Disaster Law and Policy, from Wolters Kluwer.  Lisa writes:

News reports emerging from the devastation of the 7.0 earthquake that struck Haiti last Tuesday suggest that street violence is growing and that local and international officials fear widespread looting, rioting, and the breakdown of civil order.  For example, the U.K. Telegraph reported on Saturday that  “[a]s anger and fears of violence grew amid desperate shortages of food, water, and medical supplies, bands of machete-wielding earthquake survivor [stet] yesterday roamed through the ruins of Port-au-Prince.”  The paper likewise reported incidents of violence against rescuers.

These media reports evoke similar reporting about New Orleans in the aftermath of Hurricane Katrina in fall 2005.   Feverish reports of widespread looting and violence painted a picture of a city sinking, not only into the sea, but also into the depths of anarchy.  The New Orleans Police Chief told Oprah Winfrey that “little babies [were] getting raped” in the Superdome.  Numerous media outlets reported that Katrina survivors were firing on their would-be rescuers.   Widespread looting was reported with headlines such as “The looters, They’re Like Cockroaches.” Read More

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An Egalitarian Argument for Punishing Poor People More Harshly

Consider the following argument: The same punishment for different people is not in fact the same. Thinking of a criminal fine is the easiest example. A $1000 fine levied on an offender who is a millionaire is simply not as serious of a sanction as a $1000 fine leveled against a poor criminal. The millionaire can pay the fine without noticing it, while the poor criminal may be subjected to considerable economic hardship. The result is that the $1000 fine will not have much deterrent effect against the millionaire. To get his attention we require a much harsher punishment. So far so good. Read More

Will Obama Join the New Democrat Coalition on Financial Regulation?

A series of interesting journalistic takes on financial regulation have suggested that, after the hyperpartisan brawl over health care reform, financial reform may be a more bipartisan affair. For example, according to Alison Vekshin and Dawn Kopecki, it appears that House Democratic leaders have put a large contingent of moderates on the House Financial Services Committee:

In the House of Representatives, where the debate on regulatory reform started, the New Democrat Coalition has 68 fiscally conservative, pro-business members who fill 15 of the party’s 42 seats on the House Financial Services Committee. And with just a 38-member voting majority over Republicans (who often vote as a block in the House), Frank and Pelosi can’t push legislation through without the New Democrats’ support. . . .

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“Please Tase Me, Boss”

Recently Arianna Huffington and Rob Johnson proposed that individuals angered by bank bailouts move their money from “too-big-to-fail banks” to community banks. As Zephyr Teachout and Paul Volcker have noted, economic power can inexorably lead to outsized political influence. Huffington and Johnson worry that “The government policy of protecting the Too Big and Politically Connected to Fail is badly hurting the small banks, which are having a much harder time competing in the financial marketplace. As a result, a system which was already dangerously concentrated at the top has only become more so.” As I work my way through Karen Ho’s excellent ethnography Liquidated, I thought I might mention a few stories about a noted hedge funder that give a human face to Huffington/Johnson’s worries about Wall Street.*

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Inequality & Media Decline

There have recently been a number of conferences on the future of journalism. I think a whole panel could focus on the following factoid, observed by Michael Massing:

Katie Couric’s annual salary is more than the entire annual budgets of NPR’s Morning Edition and All Things Considered combined. Couric’s salary comes to an estimated $15 million a year; NPR spends $6 million a year on its morning show and $5 million on its afternoon one. NPR has seventeen foreign bureaus (which costs it another $9.4 million a year); CBS has twelve. Few figures, I think, better capture the absurd financial structure of the network news.

In a winner takes all economy, rewards to those at the top often have little to do with the value of what they create. That’s one reason Massing thinks it’s important for some of the big winners of the digital economy to help those they displace.

Google Books and the Limits of Courts

GoogleBooksThe Google Books litigation has inspired a lot of commentary on the web. As an early October fairness hearing approaches, a consensus appears to be building: the proposed settlement is too important and complex for a court to approve in its current form. Agent Lynn Chu has complained that “No one elected the[] ‘class representatives’ to represent America’s tens of thousands of authors and publishers to convey their digital rights to Google.” Pamela Samuelson, by all accounts one of the leading academics in American intellectual property law, has this to say:

The Google Book Search settlement will be, if approved, the most significant book industry development in the modern era [emphasis added]. . . . The Authors Guild has about 8000 members. OCLC has estimated that there are 22 million authors of books published in the U.S. since 1923 (the year before which books can be presumed to be in the public domain). Jan Constantine, a lawyer for the Authors Guild, is optimistic that authors and publishers of out-of-print books will sign up with the Registry, but there are many reasons to question this.

For one thing, the proposed settlement agreement implicitly estimates that only about 750,000 copyright owners will sign up with the Registry, at least in the near term. Second, many books are “orphans,” that is, books whose rights holders cannot be located by a reasonably diligent search. Third, many easily findable rights holders, particularly academic authors, would much rather make their works available on an open access basis than to sign up with the Registry. Fourth, signing up with the Registry will not be a simple matter, since the Registry won’t just take your word for it that you are the rights holder. You are going to have to prove your ownership claim.

The non-representativeness of the class is one ground on which it is possible to object to the proposed Book Search settlement. Other reasons to object or express concerns will be explored in subsequent articles. Objections must be filed with the court by September 4, 2009.

A suitable platform for hosting public discussions of the deal only launched a few weeks ago, thanks to the diligent efforts of James Grimmelmann (who is also organizing an academic conference on the issue in October). The proposed settlement raises a number of issues, which may only be addressed by extensive regulation of the project — or a public alternative dedicated to serving those marginalized by the current proposal.
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Modern Day McCarthyism

I was recently listening to a program on the rise of “red-baiting” in some Vietnamese-American communities. It’s apparently becoming a common rhetorical strategy:

On April 16, 2009, the Thurston County Court ruled in favor of a Vietnamese man who sued for defamation. This case was the first of its kind in the state of Washington. . . . The court found the five defendants . . . guilty for wrongly accusing the plaintiff . . . of having communist sympathies.

[I]n this case, both the defendants and plaintiffs fought against communism during the Second Indochina War. All those interviewed invoked a word commonly used within the Vietnamese émigré community to describe the act of wrongly accusing someone of communist sympathies: chụp mũ. As this trial brought to light, chụp mũ is a widespread practice among Vietnamese community leaders. However, it is very rare for a person who has been chụp mũ to sue his/her accusers.

This might be an interesting precedent for those accused by shock jocks of being socialist, Marxist, Bolshevik, or in favor of concentration camps.
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Compensation Caps and Relative Deprivation

Former Fed Vice Chair Alan S. Blinder’s column “Crazy Compensation and the Crisis” offers a sensible perspective on some origins of the current economic crisis:

Take a typical trader at a bank, investment bank, hedge fund or whatever. . . .[W]hen they place financial bets [they face the following odds]: Heads, you become richer than Croesus; tails, you get no bonus, receive instead about four times the national average salary, and may (or may not) have to look for a new job. These bright young people are no dummies. Faced with such skewed incentives, they place lots of big bets. If tails come up, OPM [other people’s money] will absorb almost all of the losses anyway.

[Now] let’s consider the incentives facing the CEO and other top executives of a large bank or investment bank (but, as I’ll explain, not a hedge fund). For them, it’s often: Heads, you become richer than Croesus ever imagined; tails, you receive a golden parachute that still leaves you richer than Croesus. So they want to flip those big coins, too.

After this flash of insight, Blinder retreats into quietism, counseling that “fixing compensation should be the responsibility of corporate boards of directors and, in particular, of their compensation committees.” I don’t know why he doesn’t consider the power of an income tax system that’s much more progressive at the very top income levels. As David Leonhardt observes,

Today . . . the very well off and the superwealthy are lumped together. The top bracket last year started at $357,700. Any income above that — whether it was the 400,000th dollar earned by a surgeon or the 40 millionth earned by a Wall Street titan — was taxed the same, at 35 percent. This change [from the past] is especially striking, because there is so much more income at the top of the distribution now than there was in the past.

Of course, we may need to be sensitive to the rising costs of living for the wealthy.
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Online Symposium: Citron’s Cyber Civil Rights

From tomorrow through Thursday, Concurring Opinions will be hosting a number of scholars invited to discuss Danielle Citron’s work Cyber Civil Rights. Responding to controversies over online attacks, Citron argues the following:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations. . . .

Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond. General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

As I’ve noted before, I think this piece breaks new ground in applying venerable laws to the online environment. In this cyber-symposium, we propose to discuss the following issues:

What can the law do to respond to these threats?

How we deter harassment while promoting legitimate speech?

How do we balance the privacy rights of speakers and those they speak about in the new communicative landscape created by sites like AutoAdmit, Juicy Campus, Facebook, and anonymous message boards?

A list of scholars invited to discuss these issues appears below:

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