A Beautiful Legal Mind... Getting Clowned

Recently (somewhat), Jack Balkin, an esteemed Constitutional Law Professor at Yale, Dean Don Durkett look alike, and blogger at the eponymous Balkinization, wrote a post that suggested that the Occupy Wall Street movement co-opt the strategy of the Tea Partiers and make their point in light of the Constitution. Specifically, he feels that their struggle should couched in terms that reflect Article IV's "Guarantee Clause," which, essentially, guarantees a republican form of government. In his estimation, the OWS movement is arguing that our system of government is broken and no longer truly republican as corporate interests and the "1%" have taken over (i.e., we have an oligarchy, I guess).

Anywhooo, this brought a response from Tim Zick, a former professor of mine (not at William and Mary and who I did not particularly like) in the Concurring Opinions blog (I SWEAR this is the last dorky legal theory plug I'm plugging today). Prof. Zick argues that if OWS really wants to become a Constitutional movement, it has to look no farther than the Preamble. In his own words,

“We the People“ . . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.” 

These fundamental principles seem to reflect what the protesters are most concerned about.  This is a nascent populist movement.  I’m sure if they were polled, the ”99 percent” would embrace the notion of a ”Republican form of government.”  But they would embrace that principle because it is supposed to produce ”a more perfect” union, justice, tranquility, general welfare, and the “blessings of liberty” across generations.

As much as it pains me to say this, Professor Zick seems to nail it dead to rights and totally clowns JB. What the hell is happening? My world is getting turned upside down. (Pardon the coming legal theory nerd out) Professor Balkin is getting clowned by Professor Zick? This follows his former co-blogger Marty Lederman leaving for the Office of Legal Counsel, after years of beating the Bush administration up for expansion of executive powers, and promptly okays the targeted assassination of a US citizen in a secret memo. The same OLC that is basically continuing the expansion of executive power started by Bush is now headed by former Yale Law Dean Harold "Hanju" Koh. Harold, bro, what happened to my dude who practically got into a physical altercation in regards to the expansion of executive power at a national security and the law forum? I seens it with my own eyes. We miss you...

Listen, I shed no tears over Anwar Al-Awlaki but I also cannot stand blatant hypocrisy. Jumping from criticizing, vituperatively, the Bush administration for writing secret memo for actions possibly outside the Constitution, and then turning around to do the exact same for the Obama administration? Duuudddeeessss...

(RANT OVER). On a happier note, hey there Jack Goldsmith. 'Sup buddy? How's Harvard treating you? That's coooolll. So, wanna be best friends now? Excellent! Say hello to ya motha for me.

From the Annals of Common Sense- The Sense Strikes Back...

An article in the New York Times detailed how, despite raucous clamoring from various corners for reduced corporate taxes, 280 of the biggest publicly traded firms paid about half of the official corporate tax rate. In full disclosure, the study is based on a report from the liberal leaning Citizens for Tax Justice but it is still clear that many corporations use any loophole they can find to limit their tax exposure. A money quote from the article:

American corporations are paying a smaller share of taxes than in previous decades. They paid a total of $191 billion in federal income taxes in 2010, the Internal Revenue Service said, representing about 1.3 percent of the nation’s gross domestic product. That is down from about 6 percent during the 1950s (although some of the decline is because a smaller percentage of businesses now file as corporations).

It seems, considering the facts from this article and the GOP reluctance to raise taxes, the easy solution would be to lower the corporate tax rate, say by 10% to a total of 25%, and close the loopholes. Thus, you would not have some corporations paying 10% (or 0%) and some corporations paying 35% (the actual rate) for an average 18.5% corporate tax rate. Instead, everyone pays a lower rate of 25%, which actually brings up revenue by 6.5%. And, as an added bonus, all corporations are treated fairly with none getting screwed for creative accounting. Seems fair, no? And would satisfy both political parties, no? Getting to the meat and potatoes of the matter...

But the Citizens for Tax Justice study found that two-thirds of  the American companies with significant profits overseas actually paid more in taxes to foreign governments than they did in the United States. Rather than lowering the corporate rate more, the study said, the federal government should end the subsidies and shelters that favor companies that game the system. 

“Closing the loopholes will have real benefits, including a fairer tax system, reduced federal budget deficits and more resources to improve our roads, bridges and school — things that are really important for economic development here in the United States," the report said.

Worrrdddd. Again, I do not understand why this is even an argument. You cut taxes (and give Grover Norquist a boner) while raising revenues. What's not to love? Yo, POTUS... I'm ready to head the Council of Economic Advisers. Or you can slap me into that supposed Super Committee. Whenever you're ready. Just for the record, I play ball (in terrible shape, but decent court vision... classic PG) and recently gave up cigarettes (and we can cheat together. I'll never tell. I'm like a lock box). We can do this sir. YES WE CAN!

(Image from rally requesting NoMas Paine for C.E.A. Or a random Google Images pic. None of us have any way of knowing...)

When Is Just Showing Up Enough?

In an opinion article comparing India's anti-corruption hunger striker, Anna Hazare, with the Occupy Wall Street protesters, there was the following quote:

“Occupy has been, to my mind, an engaging movement, and it’s driving home the message, to the banks, to the Wall Street circles,” Bedi said. “That’s exactly the way Anna did it. But we had a destination. I’m not aware these people — what is their destination? It’s occupy for what?”

I’m prepared to celebrate when the Occupiers — like the lone hunger artist of India — accomplish something more than organizing their own campsite cleanup, demonstrating their tolerance for tear gas, and distracting the conversation a little from the Tea Party. So far, the main achievement of Occupy Wall Street is showing up.

Though I agree that many (most?) of the OWS protesters are not completely sure of what they are trying to accomplish, at least partially because there are so many voices that want different things, why is a unified goal necessary? What if the main achievement of showing up is just what is necessary? Despite not accomplishing much in the eyes of the media, the conversation for the better part of a month has been OWS, what it means, what they are trying to accomplish and how it stems from dissatisfaction with the banks and political system, and the bailout without proper regulation following, etc. The fact that these issues have been forced into the political debate, and into the wider public eye where the general sentiment behind OWS is widely supported, is an accomplishment in and of itself. As anyone in the Northeast knows, the fact that so many people are still camping out in Zucotti Park, despite NYC not allowing generators or heaters, means that even if there are a multitude of beliefs about what their movement means... they believe in them wholeheartedly. Moreover, it also means that the discussion on OWS in the media and political circles is not going away anytime soon. And maybe that is exactly the accomplishment we need.

On Occupy Wall Street and "Inside Job"; Or How I Learned to Stop Worrying and Love the Financial WMDs

There is a lot of discussion on all sides of the political debate about what is exactly going on in Zucotti Park with all the tree hugging hippy crap. They are either a potentially unruly, anti-Semitic mob fomenting class warfare or a group of unfocused kids with legitimate issues who need to publicize their demands and specific legislative goals. These guys and gals really cannot catch a break.

Though this is hardly groundbreaking and has been stated by others before, I think what they are protesting is quite clear and I think a main issue was presented quite clearly in the 2010 documentary "Inside Job". The film examined the causes and aftermath (or, rather, the continued consequences) of the Great Recession. Personally, I found it very interesting but thought that it went a little heavy in the demonization of Wall Street. Specifically, the attempts to link risky investing behavior with wide spread cocaine use and fun with high priced hookers after hours, on the banks' dime, were patently ridiculous IMHO (I know many i-bankers and cannot say I've see that once). What "Inside Job" nailed though, and what I think is the main issue for many, many OWS protesters, is the incestuous nature of Wall Street, the government and academia. In theory, Wall Street is supposed to be both a self-regulating body as well as regulated by government agencies with those in academia providing an additional, unbiased, check. In reality, all of these are interrelated with government officials moving back and forth between government and banking and professors at eminent educational institutions such as Harvard and Columbia making large sums of money writing papers financed by interested parties and serving on the boards of many banks and Fortune 500 companies. Everyone has a personal interest in the status quo leading to numerous conflicts of interest that are rarely addressed (don't even get me started on rating agencies... this post is running long enough).

Considering that the Great Recession is a product of a system rife with conflicts of interest that led to failures in both outside and self regulation, it is not surprising that a mass of people (those 99 percenters) would be generally angry that any and all attempts of renewed regulation are being shot down. Dodd-Frank is rife with holes and the GOP is constantly trying to defund agencies integral to reform. The banks scream about how regulation will cut into (record) profits and a return to Glass-Steagall is seen as beyond the pale despite the fact that it prevented such recessions for the better part of 60 years (more on this in the future most likely). It's enough to make anyones blood boil.

Long story short (well, not really), 1. watch "Inside Job" (as long as you take some of the rhetoric with a grain of salt) and 2. everyone should give the OWS protesters a break. They have some legitimate beefs and they are expressing their constitutionally protected right of (peaceful) free speech. Only hostage takers make demands ('Sup Mitch McConnell?).