“Courting Business”: Scalia Worked Hard To Deny Ordinary Citizens Their Day In Court
In Antonin Scalia’s thirty years on the Supreme Court, his name became a byword for social conservatism. And when Senate Majority Leader Mitch McConnell announced that the Senate would refuse to consider any replacement President Obama nominates it was natural that opponents of same-sex marriage and abortion were relieved. Yet Scalia’s death will have only a limited impact on the culture wars, because regarding many social issues he was already in the minority on the Court. But there is one area where the question of his replacement has huge consequences: business. As a member of the Court’s conservative majority, Scalia played a key role in moving American law in a more corporate-friendly direction. Now that majority is gone, and a huge amount rides on what happens next.
Under Chief Justice John Roberts, the Court has not gone as far in limiting government power over the marketplace as many conservatives would have liked. But the Roberts Court has been the most pro-business of any since the Second World War, according to a paper by the law professors Lee Epstein and William Landes and Judge Richard Posner that looked at decisions from 1946 to 2011. Its five sitting conservatives, including Scalia, ranked among the ten most business-friendly Justices of that period. The Roberts Court hasn’t just made a lot of pro-business rulings. It has taken a higher percentage of cases brought by businesses than previous courts, and it has handed down far-reaching decisions that have remade corporate regulation and law. In Citizens United, it famously ruled that corporations had free-speech rights and that many restrictions on corporate spending in elections were therefore unconstitutional. It has overturned long-standing antitrust restrictions. It has limited liability for corporate fraud and made it harder for workers to successfully sue for age and gender discrimination. It has made suing businesses and governments more difficult, especially in class-action suits.
This is no accident. Since the Reagan Administration, Republican Presidents have filled the Court with Justices steeped in the ideology of the conservative legal movement. As Brian Fitzpatrick, a law professor at Vanderbilt who once clerked for Scalia, told me, “Conservative Justices start from a world view that says we have too much litigation in general and it’s a sap on the economy.” Conservative nominees to the Court have been far more worried about government overreach than about corporate misbehavior. They have been skeptical of the use of class-action suits to achieve social goals or enforce regulations. And, once corporations recognized that the Court was predisposed to favor their interests, they began pursuing those interests more aggressively. As the legendary N.Y.U. law professor Arthur R. Miller told me, “The business community smelled blood and went after it.” Most notably, the Chamber of Commerce has become assiduous in pushing corporate cases to the Court.
A few of these cases have received a lot of attention, but the most consequential work of the Roberts Court in protecting corporate rights has been in cases that have gone mostly unnoticed, including a pair (A.T. & T. v. Concepcion and American Express v. Italian Colors) in which Scalia wrote the majority opinion. In these cases, both of which turned on an interpretation of a once obscure 1925 law, the Court ruled that companies could require customers to give up their right to sue in open court, with disputes to be settled by a private arbitrator instead. “These cases don’t get people’s attention the way things like abortion and same-sex marriage do,” Miller said. But, if the decisions stand, Fitzpatrick argues, “they have the potential to literally wipe out the class-action lawsuit.”
That might not sound like a bad thing—we’re always hearing that Americans are too litigious—but, in an era when regulators are routinely falling down on the job, lawsuits play a crucial role in deterring corporate misbehavior. Miller calls them a “private enforcement of public policies.” And when it comes to big corporations class-action suits are often the only kind that make any economic sense. If every individual defrauded by a company loses fifty dollars, the collective harm can be immense, but it’s not worthwhile for any single victim or lawyer to bother. Fitzpatrick says that obstacles to filing class-action lawsuits make it more likely that “companies will not be held accountable for hurting people, for cheating people, for defrauding people, for discriminating against people.” In that sense, the battle over access to the courtroom is, as Miller puts it, “a kind of class conflict between ordinary individuals and corporate power.” And in that conflict there’s no question which side Scalia was on.
Of course, there’s no guarantee that his death will change things. But many of the Roberts Court’s most important business cases were decided by a 5–4 margin, with the five conservative Justices voting as a bloc. And, as Fitzpatrick points out, “Scalia has done more than any other justice in making it difficult for consumers and employees to bring class-action suits. So his absence alone may make a difference.” There have already been signs of this: just last week, Dow Chemical settled a major class-action suit, saying that Scalia’s death increased the chances of “unfavorable outcomes for business.” It’s unlikely that Scalia will be replaced anytime soon. But let’s hope that, when a successor is finally appointed, it is someone willing to give ordinary citizens the day in court that Scalia worked so hard to deny them.
By: James Surowiecki, Financial Page, The New Yorker, March 7, 2016 Issue; Posted March 1, 2016
“People, Places And Things”: Donald Trump Sued Everyone But His Hairdresser
Future United States President Donald Trump sued Univision last week, after the Spanish-language network said it would not be airing Trump’s Miss USA and Miss Universe beauty pageants due to his claim that illegal immigrants are “rapists.”
Trump, who says Univision is suppressing his freedom of speech, is seeking $500 million in damages. Meanwhile, Univision is dismissing the complaint as “factually false and legally ridiculous.”
It’s a familiar predicament for Trump.
Over the past few decades, the self-proclaimed “very rich” businessman has sued people, businesses and entire cities and countries. He’s sued a newspaper, his ex wife, a quaint business card store in Georgia and a Native American tribe. He’s cried breach of contract, government favoritism, fraud and libel.
Trump sues when he is made to feel small, insufficiently wealthy, threatened or mocked. He sues for sport, he sues to regain a sense of control and he sues to make a point. He sues as a means of saying “you’re fired” to those he does not employ.
But he sues, most of all, to make headlines and to reinforce the notion that he is powerful. Below, I picked some of the highlights, through a review of news coverage of filed and threatened lawsuits.
If you haven’t yet been sued by Trump, don’t worry, the odds suggest your day might yet come. I expect to be sued for this article.
People Donald Trump Has Sued
In 1988, Trump sued Jeopardy! and Wheel of Fortune creator Merv Griffin for $250 million for fraud and interference with his contract negotiations with Resorts International Inc., an Atlantic City casino company. Trump ultimately sold his controlling interest in the company to Griffin, who died in 2007.
Trump sued his ex-wife, Ivana Trump, for $25 million in 1992–because she talked too much. Trump accused Trump of fraud and “willful, deliberate and surreptitious disclosure” of details relating to his finances, despite having signed an agreement that she wouldn’t talk publicly about their relationship.
In 1993, Trump and his then-wife, Marla Maples, sued Chuck Jones, Maples’ former publicist, for $35 million. They charged Jones with extortion, theft, fraud and harassment–after Jones had sued them, as well as Trump’s security staff and Maples’ mother. “The only stalking that I’m aware of was when Marla Maples was stalking somebody else’s husband,” Jones said of the counter-suit at the time.
In 2003, Trump’s son, Donald Junior, was assaulted at the Comedy Cellar in the West Village. Trump responded by threatening to sue the men charged with the crime, Anthony Pozzolano and Joseph Derrico, from Brooklyn and Staten Island, respectively. “Donald is soft spoken and wouldn’t hurt a fly,” Trump said of his son, according to the Mail on Sunday.
In 2006, Trump threatened to sue Rosie O’Donnell, then a co-host on The View, after she said he was bankrupt. Trump retaliated in an interview with The Insider, by labeling O’Donnell “disgusting, both inside and out.” He told People “Rosie will rue the words she said. I’ll most likely sue her for making those false statements—and it’ll be fun. Rosie’s a loser. A real loser. I look forward to taking lots of money from my nice fat little Rosie.” He never sued, and ultimately, they seemed to make peace. In 2012, after O’Donnell suffered a heart attack, Trump Tweeted to tell her to “get better fast. I’m starting to miss you!” She replied, “well thank you donald—i must admit ur post was a bit of a shock … r u trying to kill me ? xx”
In 2011, rapper Mac Miller released a song called “Donald Trump,” which included the lyrics, “Take over the world when I’m on my Donald Trump shit; Look at all this money, ain’t that some shit?” Trump Tweeted at Miller to threaten a lawsuit: “Now I’m going to teach you a big boy lesson about lawsuits and finance.” Miller responded by calling Trump an “ungrateful dog!” before apologizing and asking him to be friends.
That same year, Trump threatened to sue MSNBC’s Lawrence O’Donnell for suggesting he was worth less than $1 billion. Trump Tweeted that he was actually worth “substantially more than 7 billion dollars” with “very low debt, great assets.”
In 2012, Trump sued Miss USA contestant Sheena Monnin after she claimed in a Facebook post that the pageant was “rigged,” because the five finalists were chosen before the pageant took place. Trump called her “a beautiful young woman who had sour grapes because she wasn’t a top-15 finalist,” according to The Atlantic. A court ordered Monnin to pay Trump $5 million in damages.
In 2013, after Trump said he would donate $5 million to charity if President Obama would release all of his personal documents to the public, Bill Maher appeared on The Tonight Show and joked that he would give Trump $5 million if he could prove that his father was not an orangutan. Trump sent Maher a copy of his birth certificate. When Maher didn’t pay up, Trump sued him for the $5 million. He eventually dropped it.
The same year, Trump threatened legal action against Angelo Carusone, who had organized a petition to force Macy’s to stop selling Trump-branded products. Trump didn’t sue. Macy’s cut ties with Trump this week.
News Outlets Donald Trump Has Sued
In 1984, Trump sued The Chicago Tribune for $500 million after the publication’s architecture critic, Paul Gapp, penned an item suggesting Chicago’s Sears Tower, then the world’s tallest building, would remain as such, despite Trump’s plan to build a taller structure in downtown Manhattan. Trump claimed the story “virtually torpedoed” his dreams, according to The Associated Press, by depicting his would-be tower as “an atrocious, ugly monstrosity” even though, Trump said, he hadn’t even yet hired an architect or drawn a plan.
Trump threatened to sue ABC in 2005, after he learned the network was planning to produce a 2 hour biopic about him and his family. Trump said he would “definitely sue” if the film was “inaccurate,” according to The Washington Post, but “as long as it’s accurate, I won’t be suing them.” The biopic never happened, and he never took legal action.
In 2006, Trump sued New York Times reporter Timothy L. O’Brien, author of “A TrumpNation: The Art of Being the Donald” as well as the book’s publisher, Warner Books, for saying Trump is worth $150 million to $250 million when Trump claimed, at the time, he was worth $2.7 billion. Trump said the error was “egregiously false,” according to Agence France Presse.
In 2009, the suit was dismissed. Trump now claims he’s worth “$8,737,540,000.”
Places Donald Trump Has Sued
In 1989, Trump threatened to sue Palm Beach County if it couldn’t figure out a way to muffle the loud noises coming from Palm Beach International Airport.
Trump sued New York State in 1995, when a video game, Quickdraw, based off the casino game Keno, was introduced in New York restaurants and bars. The game presented a rival to Trump’s Atlantic City casinos where Keno was played, but he claimed he was really just worried that the game’s presence in New York would bring “tremendous amounts of crime” and “destroy businesses in New York,” according to CNN, because gambling addiction would render residents unable to pay their rent.
In 1997, Trump sued the state of New Jersey. At the time, Trump wanted to prevent Las Vegas casino magnate Steve Wynn from encroaching on his Atlantic City territory with the construction of a $330 million tunnel leading to Wynn’s very own resort. Trump filed suit against the state, claiming it was illegal for New Jersey to aid Wynn’s tunnel project in any way with money it collected from casinos. The Star-Ledger reported Trump claimed that if the state used casino funds to support the tunnel, it would be”taking money from widows and orphans” the elderly, and people with disabilities.
In 2002, Trump sued New York City for $500 million, claiming that a tax assessor scandal had forced him to sell apartment in his 72-story Trump World Tower near the United Nations for below market prices.
Trump sued the town of Palm Beach, Florida in 2006 for $10 million after he was cited for violating zoning codes by flying a too-big (for non-patriots) American flag over his club, Mar-a-Lago. The lawsuit claimed “a smaller flag and pole on Mar-a-Lago’s property would be lost given its massive size, look silly instead of make a statement, and most importantly would fail to appropriately express the magnitude of Donald J. Trump’s and the Club’s members’ patriotism,” according to The Associated Press. Trump promised any damages awarded to him would be donated to Iraq war veterans. In 2007, Trump and the town settled. The Tampa Bay Times reported the town dropped the fines, and Trump donated $100,000 “to various charities for veterans of the war in Iraq, the American flag or veterans’ hospitals.”
In 2011, Trump sued Scotland. Trump claimed the government had assured him a planned offshore wind farm would never actually be constructed, and so he built a golf course and made plans for a neighboring hotel. When the wind farm was built, Trump sued the government. He ultimately lost.
Businesses Donald Trump Has Sued
Trump purchased Eastern Airlines’ shuttle service in 1988 for $365 million and planned to relaunch it as “Trump Shuttle.” But a problem arose—a different company, Trading and Finance Corp. Ltd., was already using the name. In 1989, Trump sued for the rights to the name.
In 2008, Trump sued Crescent Heights Diamond, a real estate developer, because, Trump said, they had licensed his name for a 70-story building in Ramat Gan., and then cut him out of the profits.
In 2011, Trump sued H. Pixel International Trade Ltd., an Israeli company he discovered was using his name and likeness on vodka bottles without his consent. Trump has over 700 trademarks and as of 2011, his name was commercially protected in 80 countries.
In 2014, Trump sued Trump Entertainment Resorts, which he holds a 10 percent stake in, to remove his name from the Trump Taj Mahal and Trump Plaza casinos in Atlantic City, which he said did not live up to his standard of quality.
Misc.
In 2003, Trump announced that he planned to sue the Eastern Pequots, a Native American tribe of less than 1,000 from southeastern Connecticut. Trump claimed he had spent close to $10 million helping to promote the tribe’s brand in exchange for the right to negotiate the tribe’s casino agreements. Ultimately, the tribe selected a different developer to handle their deal, which was the source of Trump’s ire.
By: Olivia Nuzzi, The Daily Beast, July 6, 2015
“Why The Confederate Flag Fell So Suddenly”: A Fully Engaged, Energized Activated Group Of Voters
Within just a few days of Dylann Roof’s racially motivated murder of 9 African-American worshippers and clergy in Charleston’s historic Emanuel A.M.E. Church, a sea change appeared to be under way with regards to the Confederate flag — this after decades of tense and slow-moving debate about whether the symbol deserves any kind of place in modern public life.
In short order, the governors of South Carolina and Alabama asked for the flag to be taken down from their respective Capitol grounds, other southern states showed a sudden willingness to reduce the visibility of the flag, and Amazon and Walmart stopped selling it. All this occurred against the backdrop of a loud chorus of online activists arguing that it was time to take the flag down once and for all — a few days after the shooting, the #takeitdown hashtag was tweeted 12,000 times in one day. Why all the sudden movement on an issue that had been a sore culture-war sticking point for decades? Yes, Roof’s massacre was horrific, but it obviously wasn’t the first racist violence to have occurred in a state where the Confederate flag flies.
“The pace of this change has been quite staggering,” said Dr. Jonathan Knuckley, a political scientist at the University of Central Florida who studies southern politics. The why ties into some basic, vital aspects of how Americans’ political opinions are formed and expressed. Foremost among them is the idea that most Americans simply aren’t all that informed about most policy issues, and when they do form opinions, they look around for highly visible cues to guide them toward the “right” opinion. (The notion that most Americans simply aren’t savvy when it comes to politics and policy may whiff of elitism, but it’s also one of the more durable findings in political science — in 2011, for example, about a third of Americans couldn’t name the vice-president.)
Dr. Timothy Ryan, a political scientist at the University of North Carolina, explained that until recently, this was true of the Confederate flag as well. “The typical citizen, if you asked them what they thought about the Confederate-flag issue in South Carolina two or three weeks ago, they would be making up their opinion on the fly in that moment,” he said. “Whereas now people have had some time to think about it, have had a push to think about it.”
As a result of this push, these voters will use whatever available cues come to mind to generate an opinion — a news segment they saw, a recent conversation with a friend. And those who sit somewhere in the middle and who are giving serious thought to the Confederate-flag issue for the first time are awash in anti-flag sentiments, whether delivered via Twitter, on news reports of anti-flag protests, or on radio spots covering Walmart and Amazon’s decision. These days there are tons of cues to draw upon, and very few of them would nudge one to support the Confederate flag.
Perhaps the most potent of such cues is the now-infamous photograph of Roof posing in front of the Confederate flag. “It doesn’t take much to process,” said Knuckley. “It’s kind of one of those gut, visceral, I-don’t-even-have-to-think-about-this-issue [images].” This cue, and others like it, affects voters on both sides of the issue. “The other side of that coin — it becomes a lot more difficult to be for [the flag],” said Knuckey. “Just a month or so ago, someone could have made a perfectly, in their mind, rational argument. It’s the kind of issue now that’s difficult to be in favor of.”
That doesn’t mean that support for the flag is now going to drop to zero, Knuckey emphasized. Ryan agreed. “I bet you haven’t changed so many minds among the people who are really strong, meaningful supporters,” he said. But that’s not the point — the point is those folks on the middle, say, third of the Confederate-flag-opinion spectrum. Those who supported the flag, but just barely, are now seeing all sorts of highly visible cues indicating that the country is turning against them,while those who were just barely against it will have their preference intensified.
The end result? A shift in polling, perhaps (there haven’t yet been any surveys released that allow for apples-to-apples comparisons on the flag issue from before and after the church attack), but, just as important, a group of “antis” who are much more engaged and vocal than they were before the shooting — in part because they’re feeding off the sense that, nationwide, people are moving against the flag. Political scientists call this “preference intensity,” and it’s incredibly important: A minority of citizens who are stridently opposed to a new bill can, in the right setting, “beat” a majority of voters who are slightly for it but don’t care all that much.
To Knuckey, all this negative attention will likely affect not just voters being surveyed, but southern legislators themselves. Those legislators have always been aware that they represent a loud contingent of pro-flag folks, but now, in the wake of the A.M.E. shooting, they have to factor in the existence of a fully engaged, energized activated group of voters on the other side of the issue as well. So all the negative attention the flag has gotten “makes a vote to take it down easier now than it would have been a month ago,” he said.
In the long run, of course, the AME shooting will fade from the news. And David Paleologos, director of the Suffolk University Political Research Center, which just released a poll showing the nation to be about evenly divided on the question of whether the flag is racist — it was the first time Suffolk had polled on this issue, and results therefore can’t give any sense of the trajectory of opinion on this issue — said that there’s a chance that opinion will bounce back in favor of the flag. That is, fewer cues could mean a reversion to old, less strongly held opinions.
In the meantime, though, what we’re witnessing isn’t just a shift in opinion, but policy change — albeit minor ones, in some cases — on the part of multiple state houses and huge retailers. Even if public opinion reverts back to where it was before the shooting, a new status quo is in place and it’ll be difficult, in those places that have responded to this sudden surge in anti-Confederate-flag sentiment, for the flag to once again be raised — or sold.
By: Jesse Singal, New York Magazine, July 1, 2015
“Wingnuts’ Confederate Flag Crisis”: Why They Can’t Admit Who’s Really Responsible For Dixie’s Latest Defeat
Even before eBay followed Walmart, Sears and Amazon’s lead by banning “rebel-flagged” items from its giant virtual yard sale, I realized that what I was watching was not a typical consumer revolt.
The Confederate battle flag — that bellicose assertion of a Southern “heritage” otherwise known as “white supremacy,” that defiant, “fuck you” of a symbol in whose honor the blood of far more than nine people has been shed — it wasn’t suddenly toxic because of last week’s massacre in Charleston. Multinational corporations, and the politicians they keep on retainer, weren’t disowning the flag because of a popular movement. The people hadn’t had the time to organize. The pavement on this road to Damascus was still wet.
Instead, what was actually happening, behind the scenes, wasn’t nearly so romantic. No one was breaking from their usual habits. Everyone, in fact, was doing what they always did. The profit-seeking entities were trying to maximize future earnings; and the state-level politicians were following their demands. This wasn’t a case of the powers-that-be doing something they resented. No one was pushed here; everyone was ready to jump.
Not for the first time in 2015, the conservative movement has found itself on the losing side of a culture war battle it once routinely won. And just as was the case in Indiana, when a petty and combative anti-gay law inspired national boycotts and a business-sector backlash, movement conservatives cannot fathom how liberals aren’t to blame. It’s conservatives, after all, who man the ramparts to protect capitalism and big business. As he was ranting about “the left’s” war on the Confederate flag on Tuesday, one could almost hear Rush Limbaugh transform into Walter Sobchak from “The Big Lebowski,” bellowing, “Has the whole world gone crazy?!”
He wasn’t alone, of course. And despite what you might expect, his tribal loyalty to the “Stars and Bars” (a misnomer, by the way) wasn’t exclusive to conservatives of his age. A young woman at Breitbart was similarly incensed by the flag’s sudden toxicity, blaming a “howling mob of both liberals and brown-nosing conservatives” for Amazon’s betrayal of the Confederacy’s trademark. A Generation X editor at the Federalist railed against the media for asking businesses if they planned to stop selling the flag, calling it “heretic hunting” and activism disguised as reporting. An evidently impatient colleague of hers took it one step further, likening calls against romanticizing the Confederacy to the Nazi regime.
As these spasms of inchoate rage overtook movement conservatives, it was almost funny how desperate they were to find someone — anyone — besides capitalists to blame. Bill Kristol, the self-styled Hébert of neoconservatism, trolled his way to sophomoric analogies involving a Cliff Notes version of the French Revolution; and then tumbled into the 19th century, saying,“today’s liberals would surely have been Copperheads.” One of the lesser lights at Hot Air, Michelle Malkin’s former haunt, provided a nice example of the “whataboutism” that became widespread on the right, asking no one in particular how the Confederacy could be bad so long as angsty teenagers still thought Che Guevara was cool?
Beneath their caterwauling and free-floating resentment, though, conservatives evinced a level of disorientation and fear that was in some ways sympathetic. It was like watching a millenarian sect discover the new Jerusalem was actually a suburban cul-de-sac. If liberals could not be blamed for this new dishonor, if it wasn’t liberals’ fault that the cultural norms of 2015 and 1995 were no longer the same, then what was the answer? Lefties might note how, under capitalism, “[a]ll that is solid melts into air, all that is holy is profaned,” and say that the signifiers of the Confederacy were no different. But that’s of little to use to those who’d describe President Obama as a Bolshevik.
Yet for all the right’s professed belief in “common sense,” the reason why businesses were, metaphorically, setting the flag to the flame continued to elude conservatives, even when it was staring them in the face. As CNN, the Associated Press and others reported, the Amazons, eBays, Sears and Walmarts of the world weren’t acting out of fear or sentiment. Their motivations were straightforward, cold, and rational. Walmart wants to shed its reputation as a Red State phenomenon; Sears wants to prove it’s not exclusively for dads; Amazon’s politics are, if anything, probably “liberaltarian”; and it’s hard to imagine eBay’s pro-Confederate market was ever that big.
All of these companies, and the others like them surely to follow, were simply looking at the future; and what they saw was an America where a business implicitly legitimizing the flag had more to lose than to gain. As Jonathan Chait rightly argued, an old understanding of what it means to be American — an understanding profoundly bound to a certain definition of whiteness and constructed on a foundation of racist, revisionist history — is fading. “I know we’re going to lose eventually,” one pro-Confederate South Carolinian told the New York Times. His ranks, and the influence of his kind on the American mainstream, shrink a little more every day.
By: Elias Isquith, Staff Writer, Salon, June 25, 2015
Share This Blog
mykeystrokes.com- “The Unrelenting Hostility Of Washington’s Courtier Press”: The Media’s Crusade Of Scandals Against Hillary Clinton
- “Endorsing This Philistine”: The Christian Right Has Surrendered To Trump
- “Cop Killers Serve No Cause”: It’s Getting To The Point Where No Lives Matter
- “We’re Not Post-Racial Yet”: The Demons Of Our Racist Past Still Haunt Us
- “Ghosts Of History”: Why America Recoils From Donald Trump
mykeystrokes.com 