Essentially Contested America @import url( http://essentiallycontestedamerica.org/wp-content/themes/LoveBlogECABlue/style.css ); Essentially Contested America Home AboutGuest BloggersRecommended TitlesSelected Scholarship Subscribe to our RSS Feed Homepage Widener Law The Second Great Depression? Written by Robert Justin Lipkin on October 10th, 2008 The contrast between a regulated market and an unregulated market is just the sort of shibboleth that has brought us to the brink of the second g reat depression. Any political, social, or economic institution must be structured in a various ways. This structure defines, empowers, and regulates the operations of the institution. It is literally impossible for these institutions to operate without regulations. As indicated in ECA before, most recently here, the question should not be whether to regulate the economy, but which regulations to adopt. Do we want regulations that permit unfettered growth but risk the possibility of catastrophic loss and the devastation of the lives of millions of people or instead should we seek an economy with regulations that may produce somewhat lesser growth, but is more stable and where wealth is more fairly distributed? The current economic crisis should be an object lesson forcing us to confront the changes needed in the economy of the twentieth century. We must change the paradigm from one which incessantly argues against regulations to one that seeks the sort of regulations that permits as much growth as is compatible with economic stability and fairness. Will we ever learn this lesson? No Comments Capitalism, Democracy, Economics The Judicial Activism of the Roberts Court Written by Rebecca Zietlow on October 9th, 2008 It is the first week of the United States Supreme Court’s 2008-2009 term. What should we expect this year from the Roberts Court? More judicial activism.If the central meaning of “judicial activism” is the willingness of courts to second guess political bodies, then the Roberts Court is an “activist” Court. In just the last three weeks of the Court’s last term, the Court issued opinions striking down acts of Congress, the President, state courts and local governments. What is the focus of this Court’s activism? Not protecting the equality rights of minorities. Last year, in Parents Involved v. Seattle, the Court held that the Equal Protection Clause prevents local school districts from using race as a factor in school assignments in an attempt to integrate schools. In Enquist v. Oregon Department of Agriculture, the Roberts Court created a new limit on Equal Protection claims of public employees. The Court held that the Clause did not prevent public employees from being treated unfairly. The ruling is not surprising given the “emlpoyment at will” doctrine. Engquist would not have even had a claim except for the Court’s earlier ruling in Village of Willow Brook v. Olech that an individual can bring a “class of one” claim under the Equal Protection Clause to challenge discriminatory government action. The plaintiff in Olech was a property owner who was required to give a larger easement on her property than all other applicants in order to receive a permit.As Olech illustrates, in recent years the Court has been “activist” in protecting liberty and property rights. In the case that marked the past term, DC v. Heller, the Court interpreted the Second Amendment to estabilish an individual right to bear arms and struck down a DC regulation of handguns as violating that amendment. In Exxon v. Baker, the Court held that the Due Process Clause limits the amount of punitive damages that a jury can impose on a multi-national corporation. In Davis v. FEC, the Court held that the First Amendment prevents Congress from limiting the amount of one’s own money that a wealthy candidate for office can spend on his own campaign. Boumediene v. Bush, in which the Court held that Congress could not prohibit prisoners held in Guantanamo Bay from exercising the fundamental right to habeas corpus, stands out as a ruling where the Court protected the liberty rights of “discrete and insular minorities.” So, what should we expect from the Roberts Court this year? We should expect more activism in the protection of property rights, with little sympathy to those who lack property. No Comments Government, Law, Rights, U.S Supreme Court, Uncategorized Now the Dark Side Written by Robert Justin Lipkin on October 8th, 2008 Recent events indicate that the dark side of the McCain campaign may be running at full-bore. Twice within the past two days we’ve heard the campaign stress Obama’s middle name. Barack Hussein Obama. Racism? Xenophobia? Or is it only child’s play compared to what’s to come? We know, of course, that Obama “pals around” with terrorists. What’s next? It’s astonishing to see self-righteous Christians abandon the moral content of their religion in order to win an election. No Comments Uncategorized John McCain’s New Bailout Proposal - UPDATE Written by Henry L. Chambers, Jr. on October 8th, 2008 During last night’s debate, John McCain unveiled a new bailout proposal called the McCain Resurgence Plan. That plan would require that the Treasury Department buy certain individual subprime mortgages then reissue affordable fixed-rate, government-backed mortgages to homeowners based on the home’s current market value. McCain’s stated goals, to stabilize home prices and help people who may otherwise lose their house, are laudable. However, the Resurgence Plan is nothing new.McCain’s proposal is no bold stroke. The Emergency Economic Stabilization Act of 2008 (the Bailout) already allows the Treasury Department to buy troubled assets - including mortgages - when the Secretary deems such a purchase to ”promote[] financial market stability.” Presumably, Sen. McCain’s point is to issue a plan that reflects his priorities. He appears to want to guarantee that much of the $700 billion for the bailout goes directly to help homeowners stay in their houses. Helping people who could afford to stay in their home if their mortgages reflected the market price of their homes is a good idea. However, it is a good idea that many people have had for a long time and was on the table when he suspended his campaign to ostensibly help Congress deal with the economic crisis. Ironically, had he pushed to guarantee that some of the money would be spent in this way, as a number of others - including Barack Obama - already had, he could have been seen as a maverick who reached across the aisle to put country first. Of course, many in the Republican Party would have disowned him, but such is life. One can only ask if it would be too Palinesque to suggest that John McCain would rather lose an economy than lose an election. UPDATEIt looks like I was both overly fair and somewhat unfair to John McCain in my prior post. I was overly fair because I assumed that his Resurgence plan was structured to buy mortgages at or near their market value then replace the old mortgages with new mortgages issued at market value. As noted in the original post, that plan would be unoriginal and tardy, but sensible at heart. Conversely, I was unfair to McCain because his plan is to buy homes at their souffle prices with taxpayer money then issue new mortgages on those homes at their current deflated market value. In fairness to McCain, his plan (as I understand it) is new and mavericky. Of course, it is also bizarre and gimmicky given the current economic climate. It is a gift to banks that bet on the souffle and lost. In fairness to myself, when I heard McCain propose his Resurgence plan during the debate, I asked my wife if she could hear the sound of thousands of economists screaming. I had assumed that the plan he proposed was in fact the plan he proposed. However, I convinced myself during the debate that a fiscal conservative or even a sane person could not possibly have proposed what I thought he had proposed. Hence, I wrote the original post. Now that I know that McCain really proposed what he said he proposed, I wonder how long it will take for some number of his economic advisers to fold up their tents and go home. Conversely, how long will it take for McCain to distance himself from his Resurgence plan by claiming that he really meant something completely different than what he said? No Comments America, Campaigning for President in 2008, Economics, Elections, Republicans, Wealth Will You Vote For the Right Candidate? Written by Robert Justin Lipkin on October 6th, 2008 Word has it that thirty-eight percent of the American electorate vote for the wrong candidate. “Wrong candidate”? Isn’t it hubris in the extreme to condemn someone for voting for a candidate for whom they wish to vote? That’s just the point. These voters cast their ballots for candidates whose views they disagree with. That’s pretty scary. Isn’t it? No Comments Campaigning for President in 2008, Elections More on Palin Written by Robert Justin Lipkin on October 4th, 2008 For more on Bob Herbert’s criticism of Sarah Palin click here. No Comments Campaigning for President in 2008 The Final (?) Word on Sarah Palin Written by Robert Justin Lipkin on October 4th, 2008 Take a look at Joe Conason’s piece on Governor Sarah Palin on in Salon.com. “Sarah Palin’s debate performance should signal the beginning of the end of her fad. But for the moment it is worth looking at the meaning of her nomination, without the prote ctive varnish of what conservatives usually dismiss as political correctness. . . . Why should we pretend not to notice when Gov. Palin’s ideas make no sense? Having said last week that ‘t doesn’t matter’ whether human activity is the cause of climate change, she said in debate that she ‘doesn’t want to argue’ about the causes. It doesn’t occur to her that we have to know the causes in order to address the problem. (She was very fortunate that moderator Gwen Ifill didn’t ask her whether she truly believes that human beings and dinosaurs inhabited this planet simultaneously only 6,000 years ago.) . . . Why should we ignore her inability to string together a series of coherent thoughts? As a foe of Wall Street greed and a late convert to the gospel of government regulation, along with John McCain, Palin promised to clean up and reform business. But when her programmed talking points about ‘getting government out of the way’ and protecting ‘freedom’ conflicted with that promise, she didn’t notice.” Continue reading here. No Comments Campaigning for President in 2008 Capitalism & Democracy Written by Robert Justin Lipkin on October 3rd, 2008 Check out David Sorota’s piece at TomPaine.com. Here’s a sample: “The United States has always struggled to balance its capitalist economy with its democratic ideals. We’ve spent the last many years telling ourselves that the two go hand in hand, only to watch capitalism thrive in China in the absence of democratic freedoms. Indeed, if there’s been any lesson the last few years, it is that authoritarian capitalism - rather than democratic capitalism - may be the dominant ideology of the 21st century.” To continue reading click here No Comments Capitalism, Democracy From Fear comes Opportunity Written by Rebecca Zietlow on October 2nd, 2008 “The only thing we have to fear is fear itself.” Given recent economic developments, I feel that I now truly understand these words, uttered by President Franklin D. Roosevelt in his first inaugural address in January 1933. Roosevelt spoke as our country was in the depths of the Great Depression, the worst economic crisis ever in the history of our country. Today, fear is causing our stock markets to decline, and worse, our banks to be reluctant in loaning money to businesses and to each other, threatening to dry up the credit markets. If that happens, the current economic crisis will rival that of the Depression – ordinary people will be unable to buy cars and houses, small businesses will be unable to take out loans to cover their expenses, and massive job losses could result.I live in Toledo, a town where people well remember the Great Depression. In Depression-era Toledo, the unemployment rate surged above 50%. Ordinary families burned their furniture to keep warm and gathered apples from the ground to feed their children. This deprivation left its mark on Toledoans, and it now contributes to the fear that we feel.The Great Depression left other lasting and more positive marks on Toledo as well. Toledo is the site of a memorial to the heroism of the Auto-Lite factory workers who went on strike to establish what they saw as a fundamental human right to join a union. Though violent and bloody, that strike was a catalyst that helped inspire Congress to enact the National Labor Relations Act, which protects the right of workers’ to join a union. More concretely, several of Toledo’s best-loved institutions came into being in their modern configurations during the Depression — the Toledo Zoo, the downtown library and post offices, and even the University of Toledo’s football stadium. All of these local monuments were built by unemployed workers participating in the New Deal Works Progress Administration (WPA) programs, which provided jobs building and improving our nation’s infrastructure for millions of Americans.These New Deal Era monuments ought to remind us that our current time of fear is also a time of opportunity. The New Deal not only helped our country escape the Depression, but it also was a time of economic development and expansion of fundamental human rights. Along with the right to join a union, Roosevelt and his allies created the Social Security system — so that people who had worked all of their lives would not suffer the indignity of poverty when they became unable to work any longer — and an economic safety net that included unemployment insurance and Aid to Families with Dependent Children. New Deal era economic regulations limited corporate greed, restructured the American financial system, and restored confidence in the economy.The Depression and the New Deal were followed by three decades of economic prosperity in our country. Roosevelt’s anthem, “Happy Days are Here Again,” was played at thousands of political functions – thinking about FDR, the benevolent leader who had charted a course out of economic ruin — made people feel happy and secure.For the past three decades, however, FDR’s “chicken in every pot” philosophy has been replaced by an ethic of selfishness couched in a false libertarianism. In the last 25 years, Congress has busied itself with repealing many of the New Deal Era regulations that created a stable and prosperous financial industry, virtually eliminated welfare, and, at the urging of President Bush, even considered privatizing Social Security (imagine how everyone would feel now if he had succeeded and their guarantee of subsistence benefits had been replaced by a stake in the tanking stock market!) Now the chickens of selfishness have come home to roost, and the American taxpayers are going to pay the price for the “me first,” anti-regulation years.As this reckoning inexorably unfolds, this should not be merely a time for fear and anger – we should recognize it as a time of opportunity, and a time to re-think the economic policies of the last 25 years. Along with new regulations to protect consumers against corporate greed, and investment in our crumbling infrastructure and new energy technologies, Congress should ask the question that Roosevelt answered so well: For whom do we have an economy?For too long, we have measured the success of our economy by the stock market and the income of the very rich when what really matters is whether ordinary people can find jobs that earn a living wage, whether people can afford to buy a home and save for their future and the future of our children. Since the mid 1970s, the wages of ordinary Americans have stagnated even as the very rich have gotten richer.As during the New Deal, our economic recovery today depends on establishing new economic rights, including strengthening the right to organize and creating a right to affordable and accessible health care, and a decent wage. This creates an opportunity for our next president – rebuild our infrastructure, invest in energy independence, and above all, rebuild the economic rights of the working people of America. No Comments Congress, Economics, Government, Politics, Presidency Bailout Written by Henry L. Chambers, Jr. on October 1st, 2008 There has been so much written on the bailout/rescue plan that it almost seems pointless to write anymore. However, the confusion that has accompanied much of the writing on the bailout suggests that a quick post is in order. The point of the bailout can be understood by recognizing two simple points. First, if you are in business to make money, you do not loan someone money unless they believe they will return it with interest. When people start defaulting on loans at a much higher level than banks projected, banks lose a lot of money and they stop loaning so much money or they stop loaning it at such low rates. Second, borrowed money often fuels useful economic activity. Whether it is buying a house or starting a small business or investing in eco-friendly technology, unless the purchaser has cash, economic activity will be fueled with borrowed money. Less money to lend and less money to borrow tends to lead to less economic activity. Certainly, less economic activity will lead to less unprofitable economic activity. However, it will also lead to less profitable economic activity. Less economic activity may not lead us into another Great Depression, but given how recessions and depressions are defined - as less economic activity than in prior quarters - it is much more likely to lead us in that direction than more economic activity would.At base, lending requires capital plus the confidence to loan it. The bailout is designed to help both the capital part and the confidence part. Could Congress get the bailout horribly wrong? Certainly. Could taxpayers be left holding the bag? Certainly. However, we should not kid ourselves. The bailout of toxic assets, if done correctly, will inflict some pain (though possibly not enough) on Wall Street while also helping to avoid a certain amount of pain on Main Street. No Comments America, Capitalism, Economics, Wealth « Older Entries Recent Scholarship  Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism (Duke University Press, 2000) Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, 28 Cardozo L. Rev. 1055 (2006) The Harm of Same-Sex Marriage: Real or Imagined? 11 Widener Law Review 277 (2005) Going Courting: How same-sex marriage opponents came to love the courts, Slate.com, Friday, September 9, 2005 Federalism as Balance, 79 Tulane L. 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