(The following is from my 1994 book, Not In My Back Yard: The Handbook (Silvercat Publications). It’s dated but still accurate. The references are no longer current.)
Watch Out for SLAPPs
SLAPP, a term coined in 1988, refers to a Strategic Lawsuit Against Public Participation. A Wall St. Journal article, referencing consumer advocate Ralph Nader, provides a succinct summary of what SLAPPs are all about.
“Corporations and developers have filed hundreds of civil suits against individuals or community groups in the past decade, Mr. Nader said. Usually, the plaintiffs allege libel, defamation, or interference with business in an effort to stop protesters from voicing criticism.
Continue reading “SLAPPs Article from NIMBY (1994)”
SLAPPs: Effects, Defenses, Preventions
This paper on SLAPPs is written for non-lawyers by a non-lawyer. It is an attempt to familiarize the interested layperson with the nature of SLAPPs, defenses against them, and ways to prevent them. Special attention is given to provisions that may be effective in state legislation designed to protect the rights of citizens who participate in a public debate.
Continue reading “SLAPPs In Depth”
A Short Preface: The View from 2015…
The piece below, once available as a pamphlet, was written in 1998 to try to induce “activists” to pierce the invisible force field that seems to keep them from reading the history of corporate law. Whether or not it succeeds in that sense, it offers a perspective on current democratic efforts that I thought then and still think is essential before any real progress will be made in turning around national and world trends.
This pamphlet is an effort to help people do their own research on the history of corporate law in their own states. (And this is not the same thing as the history of corporations, the history of labor uprisings, or the history of ecological depredations.)
It sounds intimidating, but in fact it is liberating, because you realize how self-censoring and limited most “activism” is today. This was written while I was working with a group called POCLAD (my time there was 1995-2005), and I have retained references to that group and its work at the time.
In 1998 when this was written, most libraries were still mid-stream in their conversion to largely online materials, and this piece reflects that. But whether you’re doing it online, or turning the crumbly pages of your state’s first corporate charter, the principles of research and search remain largely the same.
This is pamphlet-length, longer than most articles you will read, but it covers not only a lot of history that is not fashionable now, but also, the basics of navigating around a law library. Even if you never intend to cross that threshold, you will learn a lot about how the legal-industrial complex operates.
And, no, I am not a lawyer. Three times I considered it, and I’m still not sorry I decided against it. That didn’t stop me from writing a well-reviewed book on the history of a constitutional clause, and it shouldn’t stop you from barging into the nearest law library. jam
This pamphlet is about how to use the dusty tomes in a law library to reconstruct part of the story of how corporations came to run this country.
This reconstruction will not be a rehash of tales of robber barons, swindlers, and the usual roster of ruthless greed mongers. It will be more like hearing about Adam and Eve, Isaac Newton, or apple pie — but from the apple’s point of view.
The story you are researching is the story of the dismantling of democracy by corporations. Environmental lawyers don’t know this story because they are busy with administrative law, chasing parts per million back and forth between the regulatory agencies and the courts. Corporate lawyers don’t know this story because they work with current corporation law to increase profits further and tighten corporations’ already vise-like grip on the political process. Activists up to their eyeballs in crises find themselves rushing around trying to do what needs to be done, leaving little time to explore why we limit our activism to arenas defined and designed by the corporate opposition.
Your efforts to reconstitute the story of the dismantling of democracy will be easier if you know what you’re looking for, and have some idea of how to use a law library. This guide provides some of both.
It is intended to be used in conjunction with other materials from the Program on Corporations, Law and Democracy (POCLAD). Taken together, they represent an effort to revitalize a perspective on the history of corporations in the U.S. that will help guide your research. (jam note: Today, I would urge you to explore the variety of articles in this Democracy Theme Park blog.)
POCLAD is a group of persons instigating democratic conversations and actions that contest the authority of corporations to define our culture, govern our nations, and plunder the Earth. We work in the tradition of people’s struggles to replace illegitimate and tyrannical institutions with democratic ones that disperse, rather than concentrate, wealth and power. (POCLAD signature statement, 1998.)
When people say that corporations are running the country (and the world), they mean that corporations have used their power to take over the role of governing that in a democracy belongs to the people.
But much current activism involves efforts to adjust corporate behavior without having to reduce corporate power. That’s worth a repeat: Much current activism involves efforts to adjust corporate behavior without having to reduce corporate power. That’s a major flaw in most leftish activism.
Adding a chemical to a list, taking a bird off a list, writing more letters to the Forest Service, putting a labor representative on a task force, or asking a corporation to employ more minorities in its quest to plunder the planet and enslave its inhabitants while enriching the fortunes of a few — will not alter the dominant governance role of corporations. Even if we had time to address each harm one at a time, we would be no closer to having a democracy because we would still not be in control.
The free flow of information and the ferment of public debate are prerequisites for democratic self-governance. Self-governing people do not dump toxic chemicals into their water supply. They do not destroy the resources that their future depends on. They do not blame this or that minority for conditions arising from and sustaining the greed of a few. Corporations do all of these things and more.
If we the people are to live in a sane and just world, we must do more than slow or stop particular corporate harms: we must assume the power of governance that in the United States corporations have usurped over the last century and a half.
The story of how corporations accomplished this usurpation has been hidden but not obliterated. It lives in the traditions of Native Americans, in the songs of labor struggles, and in the lore of immigrant families. Fragments are scattered among footnotes in history books. Much of it is outlined in black and white in the constitutions, laws, and court cases that fill the shelves of law libraries.
Most people who use law libraries today do so in order to preserve, defend, and expand corporate “rights,” corporate property, and corporate profits. Most current legal documents reflect the world view that it is “natural” that corporate “persons” have constitutional rights, that they play a governance role, and that they can and do make or break whole economies and topple governments.
But fifty years ago opinion wasn’t nearly so harmonious. A century ago there was still real debate. And before that, the corporate view was a decidedly minority opinion.
For instance, the Founding Fathers of this nation deserve Hall of Shame membership for failing to recognize Native Americans, Blacks, women and unpropertied white males as possessing the rights of natural persons and citizens. But to their credit, it never occurred to the framers of the Constitution that corporations have the right to due process and equal protection, or First Amendment rights, such rights belonging exclusively to “natural” (i.e., human) persons and having no sensible application to the legal fiction that is the corporation.
Similarly, it was once taken for granted that corporations exist only at the pleasure of the people, that their purpose is to fulfill a public need, and that if they exceed their specific purpose, or fail to adequately perform it, they are to be banished or dissolved by having their corporate charters revoked.
That these ideas seem so shocking today only underlines how much ideological authority we have ceded to corporations.
In your research you will uncover laws that defined corporations as subordinate entities with limited powers, always subject to further amendment to better fit the public interest. Then you will see how corporations responded.
Over a period of many generations, corporate lawyers, in drawing rooms, cloak rooms and courtrooms, worked over our imperfect but promising democracy clause by clause. In all too many instances, when a law got in the way of corporate power, the corporations either got rid of it, weakened it, prevented it from being enforced, got it declared unconstitutional, or influenced the judicial interpretation of it so as to render it inconsequential.
While the rights of most human persons were denied or diminished, corporations acquired by sleight-of-hand constitutional rights of “natural” persons. These newly anointed corporate “persons” claimed and gained constitutional protections for their “property,” which was first construed to be something tangible, expanded to include the intangible and now includes the imaginary.
And, just as the rights of “corporate” persons grew at the expense of the rights of “natural” persons, they grew also at the expense of the rights of “natural” persons who happened to have “jobs.” Workers’ rights to freedom of speech and of assembly, freedom of association, due process, and equal protection before the law, among others, were twisted and suppressed as corporations wrote the laws that defined not only themselves, but the labor “opposition.”
Corporations, once strictly defined by people acting through their legislatures, have since the late 19th century been defining themselves and redefining us. They write the laws and shape the government that supposedly “regulates” them. Corporations essentially define our economy, our society, our jobs, our educational system, and our leisure time. Our state legislatures once defined corporations as subordinate entities, yet now we the people find every aspect of our lives subordinated to corporate “needs.”
Corporation representatives worked a phrase at a time to deconstruct legal doctrines that protected persons, and transmute them through the alchemy of power into doctrines to protect and empower corporations.
In so doing they left a trail of tears in the fabric of democracy. The pattern of the violence they did to the democratic process is like a map that we can read to understand the nature of the damage, and then either work to repair it, or replace it with a more democratic weave.
What you can do in a law library is to trace this process in the context of your own state’s history.
The Special Role of Regulatory Agencies
The three branches of government, as outlined in junior high school civics books, work as follows. The legislative branch makes the laws; the executive branch enforces them; the judicial branch interprets them and determines their constitutionality.
But today, much of the shaping and flexing of corporate power, and activists’ efforts to control it, takes place in what appears to be a fourth venue, regulatory or administrative agencies. Though such agencies (such as OSHA, EPA, the FCC, and the NLRB) are often considered a “fourth branch” of government, they are technically (mostly) part of the executive branch, and the individuals or boards that run them are appointed by the president.
Though there have been administrative agencies since the earliest days of the U.S., regulatory agencies began to appear only in the 1870s, mostly in Midwestern states, where the growing authority of railroad corporations was wreaking havoc on regional economies.
The first federal regulatory agency was the Interstate Commerce Commission in 1887. Increasingly since that time, especially since the New Deal era, citizen activism has been channeled into the regulatory agency arena.
The standard myth to explain why this is so goes something like this.
With technological advances and the filling in of the frontier, life became much more complicated. Big corporations began to combine, form trusts, and stifle competition so that they could control markets. They also did other bad things to human beings and the environment, killed workers who stood up for their rights, and manipulated the economies of whole regions in their quest for huge profits. So, the government set up Regulatory Agencies staffed by objective experts to curb corporate excesses and protect the public.
The story you will see as you reconstruct the history around corporations in your state differs significantly from this convenient myth.
During the last quarter of the 19th century, corporations succeeded in getting the upper hand. Laws that had defined corporations were abandoned and more “enabling” legislation took their place. One example of the defining kind of law, once on the books in many states, is a prohibition against corporations owning stock in other corporations. This simple provision prevented a world of harm. It worked so well that “trusts” were invented as an end-run around it. Common in 1870, such provisions had disappeared by the turn of the century.
The emergence of regulatory agencies heralded the end of the age of defining corporations, and the beginning of the modern era of permitting corporations to define themselves, not the reverse as is commonly believed.
Regulatory agencies were set up with the cooperation, if not at the direct behest, of the biggest corporations, in industry after industry. These agencies functioned to eliminate small pesky rival corporations, stabilize markets and prices, and shield both elected officials and corporations from the wrath of the public.
Today regulatory agencies continue to perform these functions for corporations. In addition, they absorb the energy and resources of countless activist groups in endless wrangling over millions of lines of regulations — regulations which, even if finalized, would never be enforced.
Regulatory agencies, then, are a critical element of the strategy through which corporations downsized the democratic process while taking over governance functions. We are so attuned to the regulatory agency arena that it is often difficult to imagine what other forms our activism might take.
Your legal research will reveal some of the successful legal measures and judicial doctrines that defined corporations for decades before restrictive state corporation laws were replaced by “regulation” efforts that did more to eliminate public input than affect corporate behavior.
The body of law that covers what happens in regulatory agencies is called Administrative Law.
Administrative law, dull as it may sound, is at the core of the system that restricts citizen participation, puts decisions in the hands of supposedly unbiased “experts,” ties up critical issues of the health and welfare of our society in procedural marathons, and favors corporations that possess nearly boundless resources to dominate and obfuscate the administrative process.
Though not popular, regulatory agencies are often accepted as inevitable, as necessary evils. One justification for this view is that our society is now just too complex to do without them. A second justification offered is that the only real alternative to regulation as we know it is the “free market” as some imagine it to be.
As you delve into the early history of corporations in your state, it will become evident that much of the so-called “complexity” we deal with is not so much a cause of the era of regulation as a result of abandoning a defining style of corporate legislation. It will also be apparent that a pattern of huge government subsidies of corporations was well established by 1870, and that the mythical “free market” never existed.
Regulatory agencies give the appearance of placing limits on corporations but function as clever mechanisms to obstruct the influence of ordinary citizens. They are controversial across the political spectrum because they have a tremendous amount of discretion in making decisions. They unquestioningly accept corporate legal definitions of property and contract that place human beings at a tremendous disadvantage. Avenues of appeal, though present, are expensive, time-consuming, resource-intensive, and seldom rewarding to the ordinary citizen. A “victory” often means starting a long process all over again, with slightly changed rules.
In carrying out their duties, regulatory agencies do some things that are a lot like making laws (a legislative function); they enforce their regulations through penalties and other sanctions (an executive function); and they judge compliance with regulations and rules (a judicial function). That they partake of functions of all three supposedly separate branches of government is a second source of controversy about regulatory agencies.
The expansive discretion granted to regulatory agencies, and the concentration of legislative, executive, and judicial powers in them, exacerbates their already anti-democratic bias. In your research, you can contrast this situation to the restrictive and defining language commonly found in early corporation law.
The Corporation Code
In the first half of the nineteenth century, state legislatures created corporations one at a time. Each corporation was established by means of a Special Act of the state legislature. The special acts, or corporate charters, were detailed descriptions of exactly what the corporation could and could not do, often even including a statement of what rates the corporation was permitted to charge.
Most states then went through a transitional period during which there were more general (optional) incorporation laws that applied to certain types of corporations, such as manufacturers, mining corporations, railroad corporations, insurers, and so on. By the end of the 1870s, most states had developed general incorporation statutes that applied to almost all corporations. (Banks were often an exception). These general incorporation statutes underwent periodic reformulations as corporate lawyers shaped them to serve the needs of corporate management; the most recent overhaul occurred during the 1950s.
Research into the history of your own state’s incorporation laws will enable you to compare your state to this general pattern. Early corporation law defined corporations, often one at a time. Twentieth century corporation law (the corporation code) permits corporations to more or less define themselves. People’s influence over corporations withered as states moved toward general incorporation laws, later coupled with regulatory agencies which functioned to entrench large corporations and keep out public influence.
Current corporation codes of all fifty states are much alike, though it is generally recognized that Delaware is the “big easy” state for incorporation. More than half of the Fortune 500 corporations are incorporated in Delaware (where they are “domestic” corporations) and operate in other states as “foreign” corporations after obtaining the requisite “certificate of authority” to do business in that state.
The corporation code is at first difficult for the layperson to understand. Various parts of it will appear to be tedious, boring, unreadable, or incomprehensible by turns. One way to help keep your interest focused is to remember that every single word of a corporation code is there for a reason, and that reason is invariably to concentrate power while diffusing responsibility, or put differently, to internalize power and profits, and externalize responsibility and costs.
To help you understand the current corporation code, you can turn to one of a few kinds of secondary sources. Business Law textbooks can give you a good general picture, but various corporation manuals are better for clause-by-clause analysis.
Your Mission: To Go Where No One Has Gone Before
To get the most out of your research into the legal history of corporations in your state, you must set aside current myths and prevailing wisdom about how things are, how they got this way, and what can be done about them. For this reason we urge you to base your work on primary materials. Secondary materials such as books and articles will be useful, but their perspectives are inevitably shaped by the writer’s biases.
In order to get a picture of the history of corporation law in your state, you will have to examine three basic sources: the state laws, the state constitution, and case law (court cases in which issues concerning corporations are decided).
To a lesser extent, you will have to be familiar with the federal situation as well. The same triumvirate — law, constitution, and court cases — will guide your research. Congressional legislation, the U.S. constitution, and federal court cases all play a role in setting up the background against which your own state’s corporate history stands in relief.
When you go into a law library, you can leave behind the usual self-imposed limitations of conventional activism. You will be using your experience as an activist to analyze the defining law of corporations. You will be stepping outside of the minutiae of regulatory law, into the realm of the law that defines the participants and assigns basic rights. You will see how a citizenry that both welcomes and demands democratic self-governance, views that subordinate legal fiction that is its creation — the corporation.
You will undoubtedly use many sources in your quest to construct the history of corporations in your state, but your core materials are found in a law library. This guide is designed to outline some basic perspectives and questions, and then show you how the resources of a law library can be especially useful.
Law libraries are different from other libraries. No matter how many libraries you have been in, a law library offers special challenges, not the least of which is to avoid being intimidated by THE LAW. But law libraries have things you just can’t get anywhere else, and some of these tidbits are juicy as can be.
The rest of this pamphlet offers a user’s guide to a law library, with special emphasis on reconstructing the legal history of corporations in your state.
Overview of a Law Library
Law libraries are exceedingly well-organized. For example, the references that are used most frequently will be easily accessible, and often duplicate sets are available. There will be plenty of tables to set heavy books on, and there are copy machines all over the place.
A law library is one of the most intensely indexed and cross-referenced places on the planet. Even the indexes are indexed. This is both good news and bad news for the neophyte.
The good news is that if you find material on even the tiniest aspect of your area of concern, following references will lead you to the rest. Once you have learned to use what the library has to offer, you’ll be able to trace something backwards and forwards in time; to the left and right to related topics; inward toward more details or outward towards broader issues; in laws themselves or through specific court cases; and across geographical, political, and jurisdictional boundaries, among other things.
The bad news is that the amount of material available is overwhelming, and even the references are written in code. Sometimes even a single sentence of a statute will be followed by a dozen pages of fine-print references. Once you figure out the system, however, this, too, is good news and you can use it to your advantage.
Geography of a Law Library
Once you recognize a few of the tools that a law library offers, you will see that they are arranged in a handy way, like a chef’s wooden spoons and spatulas.
A law library will be divided into sections. One large section will contain materials about your state: statutes and constitution, court reporters, West’s corresponding digests, and Shepard’s citations.
Another section of the law library will contain federal materials, corresponding to the same categories as the state materials just mentioned.
In a prominent easily accessible place, you will find the encyclopedias, always including Corpus Juris Secundum (CJS) and American Jurisprudence (Am. Jur.) . The reference section will also include dictionaries and other useful secondary materials.
The periodical section of the library will contain law reviews and other law journals.
A law library will contain sections about each state in the country, so even if you are using a law library in Arkansas you will be able to obtain much information about the state corporation laws of Wyoming, should they prove relevant.
Regional clusters will also be apparent. West’s Pacific Reporter volumes are next to the Pacific Digest (West) and Shepard’s Pacific Reporter Citations.
Bills, Laws, Codes, Statutes, and Constitutions
A bill is a proposed law. If that bill is passed by a legislature (a state legislature or the U.S. Congress), and not vetoed by a governor or president, it becomes a law (often called an Act). Laws are published chronologically, by year or by legislative session. Then someone comes along and organizes them by subject or topic into statutes or codes. So, what was first published as (State) Session Laws 1956-7 will be later organized into (State) Statutes 1957 or (State) Code 1957.
Bills become laws (or acts) become codes or statutes.
Every once in a while a state may reorganize its code or statutes into a more accessible form. The new improved form will be called the revised statutes, often abbreviated as
(State) Rev. Stat 1964 or
(State) R.S. 1964
In addition to the plain old version of a state’s code or statutes, there will be an annotated version. This version will be labeled and abbreviated something like (State) Stats. Ann. (You can find much additional information in the annotated version — we will go into this later.)
For example, in Wisconsin
Wis. 1864 G.L. = Wisconsin 1864 General Laws
W.S. 1934 = Wisconsin Statutes 1934
W.R.S. 1951 = Wisconsin Revised Statutes 1951
W.S.A. 1992 = Wisconsin Statutes Annotated 1992
To compile a history of the corporation code in your state, go through the statutes chronologically and note changes. The current annotated state statutes (or code) will provide information about major changes and when they occurred.
Explore the era before your state even had a general corporation code. Read individual corporate charters, and see how they were amended and revoked. Note the ways that state legislature kept corporations on a short leash.
Among the corporate charters you will find acts of the state legislature that revoked or repealed corporate charters. This was common until after the Civil War.
Since the annotated codes or annotated statutes of each state contain the text of and commentary on the state constitution, you can use them to do a similar analysis of changes in your constitution.
The federal system is analogous to the state system. What starts out as a bill, once passed, becomes a law, often called an Act of Congress. Such laws and acts are periodically reorganized into the United States Code, abbreviated U.S.C. The annotated version, an excellent source of references about constitutional questions, is abbreviated as U.S.C.A. Be sure you know where it is; you will use it often.
Courts and Case Law
The collected wisdom of judicial decisions in court cases through the ages is called common law. It stands alongside legislative law (formalized in codes or statutes) and constitutional law in forming the foundations of our society’s legal system.
The court in which a matter is first heard is called a trial court. If a party is not satisfied with the treatment in the trial court, it may in some cases (depending on matters of law not relevant here) appeal to a higher court, often called a court of appeals. If matters are still not settled, the highest court within a jurisdiction comes into play. This high court is often called a supreme court.
This hierarchical structure — court of original jurisdiction, court of appeals, and supreme court — applies to both state and federal courts.
A case may be heard in a federal court as its original jurisdiction, or as a result of an appeal from the highest state court.
Court Cases: How to Find a Case
Let’s start with an example.
This is the case where the U.S. Supreme Court recognized “personhood” of corporations and opened the door for corporations to claim rights under the “due process” and “equal protection” clauses of the 14th Amendment.
Santa Clara County v. Southern Pac. R.R.
118 U.S. 394 (1886) official citation
30 L.Ed. 118 (1886)
6 S.Ct. 1132 (1886)
Here we see an official citation, followed by two parallel citations. These are the three different places where you can find this case.
Cases are reported in volumes called reporters. Cases may be mentioned or discussed in many places, but they are reported in reporters.
The number preceding the abbreviation (that is, 118, 30 or 6) refers to the volume number, whereas the number following the abbreviation (that is, 394, 118 or 1132) refers to the page number where the case begins.
A court case usually has an official citation that reflects its jurisdiction (here, 118 U.S. 394—a United States Supreme Court case). It may also have one or more parallel citations, often referring to unofficial commercial reporters. In this example, 6 S.Ct. 1132 refers to West’s Supreme Court Reporter.
(Do not be misled by the adjective “unofficial.” The unofficial reporters contain more useful annotations, analysis, and references than do the official reporters. A few states use a commercial reporter as their official reporter.)
Other federal courts (the U.S. Court of Appeals, and the U.S. District Courts) have no official reporter, and usually appear as F.2d and F.Supp., respectively.
Famous precedent-setting cases of the past, especially those more than a century old, may have odder-looking citations. Just find the general area on the bookshelves and go back in time.
Here is another favorite from corporation history, even older than the Santa Clara decision, wherein the Supreme Court began “deeming” corporations “citizens” of the chartering state, thereby interpreting the “diversity clause” [U.S. Const., Art. III. Sec. 2] to allow most corporation cases to be heard in the more sympathetic federal courts instead of in the states.
Louisville, Cincinnati & Charleston R.R. v. Letson
2 How. 497 (U.S. 1844)
11 L.Ed. 353 (U.S. 1844)
Go to the section of the library where the U.S. Supreme Court reporters are kept, and go backwards in time on the shelves until you find Howard’s court reports, volume 2, page 497. Or, you could also find this case reported in volume 11 of Lawyer’s Edition, page 353.
State court decisions can also be found in more than one place. They are almost always reported in official state reporters; usually also in unofficial commercial state reporters (like West’s); and always in West’s National Reporter System, which uses a regional approach. The regional divisions are not obvious, so check what region your state belongs to.
(Just to prove the point, N.W. includes Michigan but Pacific includes Oklahoma; N.E. includes Illinois but Vermont is in Atlantic; S.W. includes Kentucky but West Virginia is in S.E.)
Now we’ll turn to a citation of a state court case.
A 1991 Wisconsin court case holding a corporate officer personally liable for violations of the solid and hazardous waste laws is referenced as:
State v. Rollfink (1991)
475 N.W.2d 575 (1991)
162 Wis. 2d 121 (1991)
You can locate this case by going to the state (Wisconsin) reporter, second series, volume 162, or to West’s N.W. reporters, second series, volume 475. In that regional reporter on page 575 you will find a summary of the case and a discussion of other similar cases and secondary sources.
In the case cited above, the state sued Rollfink, so the state name is first as the plaintiff, Rollfink second as defendant.
Though the legal history you construct will be based on primary sources (statutes, constitutions, and case law), your search will be faster and easier if you use secondary materials — books, articles, and other references that summarize, analyze, or comment on primary sources.
Dictionaries and textbooks can help you clarify points or better understand what you are reading.
Law review articles are an excellent secondary source. These are focused discussions of aspects or issues in law, found in the journals of law schools.
Law encyclopedias are another excellent secondary source. One such encyclopedia is the Corpus Juris Secundum (CJS) . The CJS contains over 100 volumes and bills itself as “a complete restatement of the entire American law as developed by all reported cases.” Under “Library References” after each section, it gives sources of information in books and law review articles, as well as West’s key numbers. It also cites numerous cases with parallel citations. CJS is not much help regarding statutes, but these are cited in other secondary sources and in reporters.
Starting From a Key Phrase
Sometimes your research starts with a kernel of just a few words.
The phrase “commerce clause” is often mumbled in response to suggestions that states return to the stricter corporation codes and charters of the past, and more vigorously use their “police power” to protect their economy and environment against obvious corporate harms.
How to figure out the significance of the “commerce clause” mantra? Here is one possible route.
1. Look up “commerce clause” in Black’s Law Dictionary. (Getting involved with CJS or other detailed secondary sources at this point will drag out your search.)
Black’s (1990) gets right to the point.
“The provision of U.S. Const. (Art. I. § 8 Cl. 3) which gives Congress exclusive powers over interstate commerce. This power is the basis for a considerable amount of federal legislation and regulation.”
An excellent start. Now you may want to see the clause itself.
2. To do so, go to the U.S.C.A. (U.S. Code Annotated) to the volumes at the end that contain the U.S. Constitution. The clause is there, and dozens of pages of notes as well. There are plenty of references for later research. Scan them and note a 1971 law review article, specific sections of CJS, and the West’s key numbers for a discussion of commerce. (We’ll get to West’s key numbers in a moment.)
You may feel overwhelmed by the wealth of material available. To avoid that sinking feeling, you can find temporary refuge in a less intimidating secondary source.
3. Look up “commerce clause” in a business law textbook. There you will find a thumbnail sketch and a summary of an early case about Robert Fulton’s efforts to secure a monopoly over steamboat traffic. The case is:
Gibbons v. Ogden (1824)
22 U.S.(9 Wheat)1
(In the early days of the U.S. Supreme Court, reports were named after the counselor-at-law who recorded them. In this case, it was Henry Wheaton.)
Suppose now that you want to know if points of law based on this case are still in effect, and/or still cited, or whether the case has just faded away.
4. To find the future life of a decision, one does what is called “shepardizing.” Go to Shepard’s U.S. Citations, in the set that covers vol. 22, and find the case, followed by a list of hundreds of citations. Since this very handy reference looks like several hundred pages of a logarithm table, you must know what you want out of it.
(jam note, 2015: Online resources have largely replaced “shepardizing,” though the term persists. Enter in a case name, and on-screen will appear subsequent “treatment” of the case. Whether it was affirmed, questioned, overturned, and so on.)
The first citation is 6LE23, a parallel citation, abbreviated elsewhere as 6 L.Ed 23. This means that you can find another account of the case in Lawyer’s Edition volume 6. Going to this reporter will give you an 1824 summary and text of the decision.
(Shepard’s uses different abbreviations than most other legal references, but as always, there is a list of abbreviations in the front of each volume.)
The rest of the citations are cases and publications such as law review articles that have cited this (Gibbons v. Ogden) case, from earliest to latest. A lower-case letter precedes some of the citations and indicates, for example, whether the more recent case represents one that follows the original (f) or cites the original case in a dissenting opinion (j).
For example, j175FS893 means that in volume 175 of F. Supp., at page 893, the Gibbons case is cited in a dissent. Going to the nearby F.Supp., you will find the whole case and learn that it was decided in 1959.
Now you know that the Gibbons case is still cited, sometimes in dissents. Suppose that you now want to see how the issue plays in your state, say, Wisconsin.
5. West’s Federal Practice Digest 3d is nearby, among the federal reporters, so use it to look up “commerce.” (You could use any West’s digest — state, regional, or federal — because they all use the same key numbers.) Or, use the West’s key numbers you jotted down from the U.S.C.A.
With the key numbers in hand, walk over to the Wisconsin section of the library. There, look up those same key numbers in West’s Wisconsin Digest, where you find summaries and references to Wisconsin cases concerning the commerce clause.
(Shameless plug: I later wrote a book on the commerce clause, and I highly recommend it. jam, 2015)
Enough of the “commerce clause” example. Some lessons from it.
General Way to Proceed
Lesson 1. First look up phrases, concepts, terms in Black’s Law Dictionary and/or a business law textbook, or even in a World Book Encyclopedia (many law libraries have these, too) before pursuing them in more depth. Most of the major concepts you’ll need are explained succinctly in secondary sources. Try these first to get the big picture.
Black’s or a business law textbook will give you a start on clauses like “commerce,” “due process,” “contracts,” “equal protection,” and “diversity;” terms like ex rel, in re, quo warranto, infra, supra, ex parte, arguendo; or concepts like “comity,” and “police power.” (If you want to later read thousands of pages about their history, you can always do so. They’ll be waiting for you.)
Lesson 2. Use the annotated version of statutes and codes (which will also include the annotated constitution, state or federal). This way you can see what references are available but you don’t have to read them all right away. Pick and choose.
Lesson 3. If you start with an early case and want to see “what happened” to it (has it been affirmed, overturned, ignored, what?) – you can shepardize. You can also use Shepard’s Citations to find recent cases that cite an older one that you know is central. Shepard’s is an invaluable aid to updating your research.
Lesson 4. If you start with a current statute or case, you can (through annotations and/or West key numbers) glean its antecedents. Once you get West’s key numbers for a certain topic, you can go to the West’s digest of your state, another state, or a federal digest, to find a summary of and references to important cases and other references.
Suggested Order of Research
If you are starting from scratch researching the history of corporations in your state, you might try this itinerary.
Read an encyclopedia article on corporations (in a layperson’s encyclopedia, not the CJS).
Look at the annotated version of your state’s current corporation code/statutes.
Look at the annotated version of your state’s current constitution, especially any parts on corporations.
Trace through time changes in your state’s constitution and statutes regarding corporations.
Find (in annotated state statutes/constitution) references to secondary materials about your state’s corporation history. There may be a law review article or even several books on the history of corporations in your state.
Choose a few cases to read over to see how issues are framed and argued.
Construct a roughly chronological summary of how your state’s corporation law granted increasing constitutional rights to corporations as it shifted from defining corporations to attempts to regulate them.
Shortcuts and Reminders
The ABCs. Digests and encyclopedias are arranged alphabetically by topic or subject. Codes and statutes are by topic but not alphabetical. Laws and reporters are arranged in order by year.
That Little Key. West’s digests and many other references utilizing West’s key number system have a drawing of a small gold or silver key on the spine of each volume. (CJS and U.S.C.A. also give West’s key numbers but do not have the little keys on the front.)
When You Need Parallel Citations. If you have only a single citation for a case, but you want parallel citations (especially a West reporter citation so you can use key numbers), you can always go to a Shepard’s, where the first things listed under a case name are parallel citations.
Starting from a Single Case. If you locate a single case of interest, follow this plan.
1. From the West’s report of the case, get West’s key numbers.
2. Use these key numbers in state or federal West’s digests to locate hundreds of comparable cases (and other references besides.)
Where do I find Federation v. Starship Enterprise? If you know only the name of a case, or the name of one party to the case (a corporation, for example), you can locate the case by using a special Shepard’s case index. (jam note: This is now easy to do online.) In order to determine which index to use, you will need to know (or guess at) the jurisdiction (which state or federal court heard the case.) You can use this same index to locate all of the reported cases in which a particularly nasty corporation was a party, should this prove interesting.
What is ALR Fed. ? Most legal references books have a list of abbreviations at the beginning. If this doesn’t work, go to Black’s Law Dictionary.
On Being Online. Most law libraries offer both online computer research services and the “classic” method using “hardcopy,” that is, books with pages. You can use either or both.
With online computer services, the same principles of cross-referencing apply. You will still be checking constitutions, statutes and case law, plus secondary sources like law review articles and encyclopedias. You may be typing instructions on a screen instead of looking up cross-references in a table, but they are just different paths to the light at the end of the tunnel.
Find a How-To Book. In addition to a number of handbooks on how to do legal research in general (in the KF 240 through KF 242 section of the shelves), there are usually also books on how to do legal research in your state.
Where to Go. Try looking for a state law library. Many government agencies have their own (usually smaller) law libraries. You may want to consult William P. Statsky’s Legal Research, Writing, and Analysis, Second Edition (West Publishing Co.,1982). This slim volume is the single best source I have found, and is chock full of useful charts and lists that will make your law research much less frustrating.
A Final Word
Never hesitate to ask for help from a librarian, whether you need general orientation or a specific case. But keep in mind that such assistance will be necessary less often if you have made some effort to familiarize yourself with legal research tools and the overall layout of the library. Try to avoid bursting in five minutes before the library closes looking for “something about corporations and pollution.”
List of abbreviations used in this piece
A. – Annotated
Am Jur. – American Jurisprudence
Ann. – Annotated
CJS – Corpus Juris Secundum
EPA – Environmental Protection Agency
FCC – Federal Communications Commission
G.L. – General Laws
Gen. L. – General Laws
L. Ed. – Lawyer’s Edition
NLRB – National Labor Relations Board
OSHA – Occupational Safety and Health Administration
R.S. – Revised Statutes
Rev. Stat. – Revised Statutes
S. Ct. – Supreme Court
U.S.C. – United States Code
U.S.C.A. – United States Code Annotated
Gotcha. There, I did it. Used two of the hottest current keywords to draw you in, and here you are. Thanks for visiting, I’ll make it worth your while.
They’re but two buzz words in a long line — longer than the trains stretching to the horizon, carrying crude (very crude) oil, frack sand, and yes, still a lot of coal.
Hydraulic fracturing, Keystone XL Pipeline, two buzz phrases in a long line of practices and projects that should have been prevented, or stopped, or at the very least scaled way down to something plausibly sustainable, or regulated down to something whose consequences would be truly minimal.
But instead, FRACKING and KEYSTONE are just the latest episodes in the long-running and on-going soap opera called Regulatory Agency Failure whose subtitle could be something like, No-Your-Community-Does-NOT-Have-the-Right-to-Protect-Itself-from-Obvious-Harms. Why do we keep banging our heads against the wall in the regulatory agency theme park — exactly where corporate strategists want us to be?
Is it because we can’t think of any other approach? That won’t work as an excuse for anyone who knows the history of regulatory agencies in the US, or the history of corporations in our states.
I’ve been trying to get people to question the whole regulatory agency framework for decades. Not to replace it with transparently self-serving “corporate social responsibility,” faux-green techno-fixes, or so-called “market forces” to further fatten the 1% — but with something that we could, with a straight face, call small-d democracy.
So, I’m handing you off.
If you think regulatory agencies were designed to actually regulate corporations, go HERE. If after reading those five pages you still believe in regulatory agencies, I’ll buy you a beverage of your choice. (I’ve been making that offer for fifteen years now, and have never had a taker.)
If you can’t imagine anything to do other than plead — and I mean plead — with bureaucrats in regulatory agencies, go HERE.
If you are ready for a comparison of activists’ ineffective, circularly addictive busy-work tactics with the straightforward, effective, corporate strategies that deal with fundamental law instead of frou-frou regulatory minutiae, go HERE.
By the time you’ve considered all that, I’ll be ready to dish out another installment of commentary.
Right now I’ve got snow to shovel.
by Jane Anne Morris
How to be sure that toy under the holiday tree has no lead paint? With only a month of shopping days remaining, the public depends–more than at any other time–on our federal regulatory agencies’ ability to protect us from health and safety risks from toys, clothing, and other goods.
So when an appointed regulator asks the Congress to prevent her agency from doing its job, we should be concerned. The head of the Federal Consumer Product Safety Commission, Nancy A. Nord, actually asked Congress “not to approve the bulk of legislation that would increase the agency’s authority, double its budget and sharply increase its dwindling staff.”1 Small wonder the New York Times put that story on its front page October 29.
Other federal agencies that we might expect to be watchdogs — the Environmental Protection Agency, the Food and Drug Administration, and the Federal Communications Commission — are either hamstrung by resources grossly inadequate to their stated tasks, or worse, staffed by anti-regulatory types, like Nord.
Lost in the irony of Ms. Nord’s embarrassing “No, thanks,” is that federal agencies are but one — albeit an important one — among many ways to address the plethora of challenges we now face.
Remember the Tenth Amendment? “The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Justice Louis Brandeis famously lauded state and local governments as “laboratories of democracy” that might show the way.
Long before federal regulatory agencies even existed, local and state governments were seeing to their general welfare. Many are still trying. Yet they face considerable opposition not only from corporations being regulated, which we would expect, but from a federal tribunal that rarely gets the credit for annulling their efforts, and then “bumping up” such matters to the underachieving federal regulators. (My new book, Gaveling Down the Rabble, Apex Press, discusses this in detail).
Take, for instance, the matter of corporate agriculture. A South Dakota constitutional amendment — passed by 59% in 1998 — prohibited most corporate ownership of real estate used for agriculture in the state. In 2004, the U.S. Supreme Court effectively threw it out, on grounds that it was essentially a “trade barrier.” Nebraska’s even stronger anti-corporate agriculture constitutional amendment, first passed in 1982, was ruled unconstitutional in 2006 by a lower federal court — citing the South Dakota case.2
The Supreme Court has struck down over 1200 state and local laws.3 Following this lead, lower federal courts struck down countless others. The relentless narrowing of what the Court deems “constitutional” has a chilling effect on lawmakers at all levels, especially state and local, at a time when we need all the help and ideas we can get.
Other examples of thwarted state efforts abound. Take oil spills, for instance. Washington State regulations aimed at insuring proper training, adequate staffing, and other safety measures in the operation of tankers along that state’s coastline were declared unconstitutional by the US Supreme Court in 2000.4 According to the Court’s interpretation, states cannot impose conditions more stringent than those in a weaker federal law. This is part of the Court’s pre-emption doctrine, which it has often applied so that federal law sets not a minimum standard, but a maximum one. Instead of setting a floor for states, the Court has set a ceiling, disallowing the more protective laws that many localities desire.
In 1997, a Maine property tax law encouraging in-state charities to serve Maine residents was declared unconstitutional as interfering with “free trade” among the states. In 1995, the Illinois Consumer Fraud Act outlining relief from unfair or deceptive marketing practices was deemed unconstitutional as applied to an airline corporation. In 1994, an Oregon state law intended to reduce the state’s burden of handling solid waste from out-of-state was declared unconstitutional as a “trade barrier” by the Supreme Court.
Other “progressive” state and local laws concerning protection of water resources, milk labeling (rBGH), conservation of fossil fuels, protecting fledgling industries, bans on products made with prison and child labor, protection of native species, place-of-origin product labeling, toxic waste regulations, support for local business, meat handling standards, and on and on, back to at least the Civil War–have been deep-sixed by Supreme Court rulings based on increasingly arcane, if not inane, doctrines.
The beneficiaries of this “narrowing” have been, for the most part, big corporations. The high court’s pro-corporate doctrines have had the effect of laying down a weighty tarp of “unconstitutionality” over outbreaks of democracy, lest they break out and become pandemic.
Of course, I would like to see strong, functional federal regulatory agencies that do more than act as valets to large corporations. But let’s not forget the role that local and state governments can play, have played, and must again play, in promoting the general welfare.
Jane Anne Morris is a corporate anthropologist. Her new book, Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy (Apex Press), explores these and related issues.
(Originally written and published locally in 2007, this was reprinted in the Progressive Populist Jan. 1-15, 2008.)
by Jane Anne Morris
The history of Homo metallicus mirrors more than technological prowess: consequences may be closer than they appear. And, they are coming from our blind spot.
Before humans started hammering portable copper mirrors about five thousand years ago, the only mirrors were pools of clear still water, reflecting trees and sky. A thousand years after those first handheld reflectors, people began making them of bronze, an alloy of copper and tin. Production of copper and its alloys fouled the clear pools, consumed the trees, and sullied the sky. Today, the view from the slag heap takes in not only the mine but the town dump.
Meanwhile, the concept of recycling has acquired an aura more saintly than the practice of recycling warrants. In my own small way, I once contributed to recycling mythology. So here, taking copper as my starting point, I unpack the assumptions that can lead from a justifiable horror at metal mining practices, to an all-too-uncritical embrace of recycling.
Copper Through the Ages
Native Americans in Wisconsin made points and knives of hammered copper.
The Mesopotamians ushered in the Age of Bronze by making of it a statue of a bull. Harder than copper, bronze holds an edge better and is more resistant to corrosion. In the earliest fortified towns it was used for shields and helmets, and battle axes, for attacking both humans and trees. Chisels, awls, pendants, sickles, bracelets, swords, 4000-year old Chinese coins shaped like tools–all of bronze. Bronze tweezers to clean wounds made by bronze dagger blades.
By 3000 years ago copper, bronze, and iron were in widespread use in the middle and near east, for knives, razors, hammers, axes, always axes. The Assyrians wore armor of leather and bronze; the Greeks and Romans used bronze and steel. In the Middle Ages, as advances in weaponry relegated chain mail to the status of underwear, metal-plated armor evolved. Bronze was hammered into huge cathedral doors, and cast into bells that rang out alarms and devotions.
Copper alloyed with zinc produced brass, long used for locks, doorknockers, and chandeliers. Bronze cannons powered by the gunpowder that became widespread in the 16th century launched brass artillery shells. Ships of war were bottomed in copper against corrosion, then clad in iron against artillery attack.
Somebody discovered that if you pour molten lead through a sieve off a tower into a tub of water, the droplets form spheres. Hardened with antimony, these spheres become musket shot. About 1850, copper and brass shot cartridges replaced paper ones.
Coopers shaped copper into barrel hoops. Bronze was used in bearings, gears, ship screws and propellers. Upholsterers tapped brass tacks. and turned sundry alloys into an array of kettles, dishes and trays. Tinkers kept them in repair.
But our copper habit was then in its infancy.
The late nineteenth century development of electricity stimulated demand for copper and other metals as the telegraph, telephone, light bulb, and other appliances went from curiosities to necessities. Fine copper wire was wound around armatures for motors and turbine generators at hydroelectric plants, and soon, steam-fired ones. It twisted around the inside of new gadgets and appliances. Outside of them, copper wire and lead-sheathed cables were strung behind walls, between buildings, along streets, across continents, under oceans.
A fledgling automobile industry blossomed, consuming fifteen to fifty pounds of copper per vehicle, plus a full metal complement of its sister elements.1 The US alone has produced well over 700 million cars and trucks.2 The infamous 1938 “War of the Worlds” broadcast could have been heard on only a few tens of thousands of radios in the world, perhaps half of them in the US. Each contained its cache of coiled copper.3
Copper usage surged to feed the second world war machine, then surged again afterwards during an unprecedented expansion in production of, well, everything, from people to pollution to power tools.
By now we have made billions upon billions of radios, televisions, phones, copy machines, blenders, fax machines, bun-warmers, electric toothbrushes, washer-dryer sets, and all manner of electronic gadgets, most in just the last few generations. Add the factories to make all of this stuff, and the electricity to run both factories and appliances. The armature of a single 500 megawatt turbine generator uses about fifteen tons of copper wire.4 Today, over half a million miles of transmission lines crisscross the US alone.
But all this copper, lead, tin, zinc, and iron was not handed over on a silver platter. After the first nearly pure lumps and nodules were chipped out of rock faces or fished out of streambeds, most of it was acquired only with much greater effort. It had to be mined, from deeper and deeper in the earth, or farther away. It then had to be concentrated and smelted, from poorer and poorer ores. Early copper mining used ores as rich as 20%, 30%, or sometimes even 50% copper. Today, ore as poor as 0.3% is mined.5
The earliest smelting, for copper and lead, used trees to coax from rich ores the treasured metals. Wood that fed the flames that fired the bricks, heated the houses, cooked the food, and baked the bread was used also to feed the smelters. Forests receded from the villages, the riverbanks, the hillsides.
As early as 8000 years ago deforestation-caused soil erosion led to abandonment of villages in the middle east. Four thousand years ago the Indus valley society’s end was hastened by the cutting of the forests required in part by extensive metal smelting.6 As Plato lamented in his Critias that centuries-old deforestation had left parts of Greece looking like “the skeleton of a sick man,” deforestation began in earnest in Rome. The Romans burned millions of tons of charcoal in their smelters, and left 20-30 million tons of slag.7
Settlements grew up around mines, and trees disappeared from wider and wider swathes of the surrounding countryside. In the early Bronze Age of Central Europe, a day’s work of a smelter consumed thirteen tons of rock and twenty-five cubic yards of wood to yield about 600 pounds of raw copper.8 By the thirteenth century, most European settlements around mines were treeless, and parts of north and northwest China were experiencing wood shortages. In 1475 in Rhineland, one district alone required 5000 woodcutters to make 10,000 tons of charcoal per year to fuel the metal works.9
The poor woodchoppers of classic Euromyths, the hollow-eyed figures bent double under their loads in National Geographic postures, all scoured the land for wood to burn in the metal works. Brueghel’s pastoral scenes hint at the extent of the cutting of the forests. By the 15th century in Europe there was so little wood left that ships had to be made of imported wood, or abroad. By the 16th century, most Portuguese ships were built in the colonies.10
The gunpowder that made projectiles possible also opened the way for the use of blasting for deeper tunneling and faster acid mine drainage.11 In the late 17th century, coal was used not only for smelting, but for pumps and engines, too. The coal-diggings filled with acid water that seeped or gushed into aquifers; open-pit mines stained rivers and the watersheds they nourished.12
In the 19th century US, one blast furnace in Pennsylvania used 750 acres of wood per year.13 At the Rio Tinto copper mine in Spain, circa 1900, ore roasting to speed oxidation of sulfides produced “strangling vapors that set men [sic] and animals coughing…killed off every green thing it touched [and] killed every tree within ten or fifteen miles.”14 Then oil and natural gas joined the pantheon of fossil fuels that powered the mining and processing, and it shows. The largest Superfund site in the US is a copper mine near Butte, Montana, formerly operated by Anaconda Corporation.15
On a copper-lined chute, the whole world is sliding into the ecological footprint of a single species.
How Much Did We Get?
By 3000 years ago when many so-called “civilizations” were huddled in fortified villages arming themselves with an array of bronze and iron weapons, humans had mined a mere 10,000 tons of copper.16
From that time until about 1800, for all the ornamented bronze bells, full-length mirrors, dented helmets, and early industrial machinery and engines, we had mined but five million tons of copper.17
And for the next century’s dose of the red metal, for coppering the bottoms of Spanish frigates,18 brass cartridge casings, the machinery of the full force of the Industrial Revolution — we humans mined more than twice what had ever been mined: 12 million tons of copper for the 19th century.19
The next fifty years, encompassing two world wars and the spread of the automobile, the radio, the washing machine, among other cultural signposts, saw us wrest 70 million tons of copper from the earth’s crust.
And since 1950 when Picasso made his bronze She-Goat,20 we have mined at least another 275 millions tons of copper.
|Time Period||Amount of Copper Mined|
|6000 to 3000 years ago||10,000 tons|
|3000 years ago to 1800||5 million tons|
|1800-1900||12 million tons|
|1900-1950||70 million tons|
|Since 1950||275+ million tons|
|Cumulative total||360+ million tons|
Put the numbers from that chart onto a graph, and you will see a slope like the one where your floor meets your wall.
Where is this 360 Million Tons of Copper Now?
Copper production since the dawn of the twentieth century comprises at least 98% of all the copper ever produced. Where is it?
Only a tiny fraction of mined copper is dissipated (in exploding ordnance, or copper in chemical form used in fungicides, herbicides, dyes, etc.) As for the rest, unlike the forests of trees, the veins of coal, the barrels of oil used to fuel the smelters and the mining machinery and pumps.
Thousand-year-old hammered copper points stolen a century ago from sacred Indian burial grounds still sit behind glass cases in the Wisconsin State Historical Museum. Picasso’s bronze She-Goat still thrills sightseers at the Museum of Modern Art, while most of the cars, radios, and televisions you have owned, not to mention blow dryers and that blender you burned out making pesto, sit in landfills somewhere.
There is still an enormous reservoir of already-refined metal lying around waiting to be reused. From the time of melting battle-axes into coins and back again, it has been understood that metals, valued always for their strength, their corrosion-resistance, their malleability — could be re-shaped and re-formed into whatever suited the needs of the moment, or the era.
You can bet that native americans didn’t throw out their copper knives after one use. Artisans who cast bells through the ages knew to scour the villages for broken bronze vessels, cracked mirrors, discarded brass door-knockers and the like to melt down to cast a new village bell. The Vikings hammered stolen crucifixes into brooches.21 Eighteenth century churchwardens were accused of stealing the lead from church roofs to sell to plumbers.22
What about all of the metals accumulating above ground? Compared to mining and processing the primary ore, copper recovery from scrap involves fewer technological steps and less capital investment. Energy costs are 5% to 33% of the energy costs of using primary ores, depending on the type of scrap input and the end-use desired.23 The technological challenges and environmental costs of mining are bypassed completely.
This is where a conventional analysis would veer off into a swoon for recycling, as I did in the original “Homo Metallicus,” written in 1995 to support a mining moratorium.24 I imagined hundreds of millions of tons of copper, one transistor radio’s worth at a time, wedged under blotchy mattresses in landfills. A giant green banner announced, “RECYCLING, YAY!!”
My mind furnished the diorama, too: a Native American sharpening an ever-smaller copper knife; an armorer fussing to keep his knight’s metal jacket in repair as long as possible;25 townspeople bringing baskets of cracked latches and broken doorknockers to re-cast for a new village bell. And, yes, a sweaty biblical smith beat swords into plowshares and spears into pruning hooks.26
While arguing against metal mining, and laboring under the hallucinatory wholesomeness of that vision, I pulled a Bait-and-Switch. On myself. In the darkness of the Switch, a blind spot of major proportions lurks, and I stood in the middle of it.
That diorama was the Bait. It faded like a time-dissolve in a documentary, and at the moment of blackout, I made the Switch. Ta-Daa!! emerged the concept of RECYCLING, swaddled in impressive statistics and good vibes.
That Switch in the Dark allowed me to more or less equate a tinker fixing a teakettle with a metal processing plant digesting a truckload of smashed appliances. I told myself that a long but unbroken cultural thread linked the tinker’s taps to the roar of the recycling plant’s huge furnaces, flotation tanks, and electrolytic baths.
So there I was standing in my blind spot when a municipal recycling truck rumbled by, bearing a load of freshly sorted metal scrap.27 Down the road a piece, it joined another truck bringing concentrated ore from a mine. This is the part of the story that I did not want to think about: both trucks headed for the same facility, one that turned out raw copper in the form of ingots, wires, and sheets. A few steps later, factories pressed and laced the shiny copper into products painstakingly designed for short life, non-reusability of parts, and difficulty of repair. Into products calculated to, for fifteen minutes or so, meet a stylistic milepost created and manipulated by the corporation selling the product.
Once purchased, the product (except for the energy it uses) becomes a “liability” for the economy, because being in current use blocks the next sale. After you toss it — landfill or recycle bin, it makes little difference — purchase of a replacement helps to “grow” the economy once again. The point of our system is not need and use, but sale and profit. The goal is to move through the cycle — and resources — as quickly as possible, honoring the principles of planned obsolescence, conspicuous consumption, and perpetual economic “growth.” Recycling is part of this cycle.
Where I had equated the smith and the recycling plant, I should have equated the mine with the recycling center or landfill. A landfill or a recycling center is just another source of copper, another kind of mine. Metal smelting and refining, whether it be by flotation, chemical solvents, heating, or electrochemical methods, is nasty business.28 Separating the copper from a plastic-encased circuit board is no environmental picnic. Except for minor differences in processing at the plant, the source of the copper — landfill, recycle bin, mine — is irrelevant.
What is relevant is that when the biblical smith beheld a compromised spear, he wondered whether to make another spear, or a pruning hook. Or maybe a scythe. Or, whether to set the metal aside for later use. But, he did not wonder whether to chuck the spear into the goat pasture. For the smith, “use” included what we would call “reuse.”
Yet, he was not recycling. The concept of recycling does not make sense unless you are already in the habit of discarding usable material. Recycling is parasitic on garbage, in both a material and a sociolinguistic sense. Garbage is defined not by physical characteristics, but by social ones. A refilled glass milk bottle is not garbage. The same bottle thrown “away” after a single usage is.
Recycling–a term that did not take on its current meaning until the 1970s29 — is akin to a retronym. Retronyms like land line and acoustic guitar are applied retrospectively and retroactively after some new development (here, cell phones and electric guitars) makes their invention necessary for clarity’s sake. So, when we realized that a garbage can or the town dump could essentially be reopened as a mine, we christened it “recycling.” Recycling signifies not a new attitude toward resources, but the large-scale discovery of new metal “deposits.” Recycling (as opposed to reuse) does not emerge as a concept until the idea of Garbage is so well established that most people cannot imagine life without it. (See also, “Car.”)
From the smith to the modern recycler, we can tally the societal “innovations” that distinguish them. Producing for profit instead of need is one. Producing to meet false or created needs is another. Massaging the economy to insure that the apparent and immediate cost of repair far exceeds that of buying a new item is also critical. Most of the externalities churned out as a result of the smith’s craft were underfoot, not foisted upon the disempowered a county or a continent away. Tax policies, lax enforcement of environmental regulations, and artificially cheap fuel, electricity, and transportation, all pile on to subsidize mining, recycling, and for-profit manufacturing. Today, society’s incentives work against making long lasting, needed products for use and reuse, and in favor of what Paul Palmer of the Zero Waste Institute calls the Garbage Paradigm.
Recycling leaves the garbage problem untouched in the same way that energy efficiency leaves our energy policies and practices unaddressed. When I screw in an efficient light bulb, I am glad to be using less electricity to illuminate my writing desk, but I don’t fool myself that I’m saving the planet. I know that my act frees up more kilowatt-hours to be sold at rock-bottom rates to corporations that manufacture throw-away frou-frou or fashion statement cars. Similarly, when we dutifully recycle metal (and I do so, when possible), we help manufacturers save energy and increase their profit margins.
However, we do nothing to alter the monstrous system that lavishes incentives on production of waste. Adding a nasty re-refining process (and calling it recycling) to a nasty mining process does not get us out of our tragic loop: wreaking havoc so that we can “grow” the economy at a dizzying and unsustainable level. This is the lesson I take from Paul Palmer’s heartening work. In his own words,
“The basic problem that has always plagued recycling is that it accepts garbage creation as fundamental. Zero waste strategies reject garbage creation as a failure, actually an abomination that threatens the planet…”30
Rejecting the Abomination of Garbage
Put yourself into a trance. Erase the idea of Garbage, and substitute Zero Waste. Now, think about radios.
I am something of a radio junkie, and I blush to think of how many copper-laden radios I have consigned to landfills. But I would still be using my first AM-FM radio if I had been able to get it fixed. I’ve never bought one as part of an interior decorating scheme, nor abandoned one for any reason but nonfunctionality.
Usually, what goes wrong amounts to a frayed or loose wire somehow involved with the volume control, tuning knob, or speakers. I’ve opened up most of my broken radios in repair efforts that almost always turned into autopsies. Sometimes, rescue attempts became demolition as my efforts to merely open the box disabled critical components. On other occasions, soldering gun in hand, I just couldn’t get at the spot where I knew the problem lay.
I’d gladly pay an extra few bucks for screws (instead of plastic rivets) as fasteners, more secure wiring connections, and accessible repair areas. These and other sensible design features that promote long life and easy repair present no great technological challenges. The obstacles — and there are many — reside instead in an economic system, complete with ideological props, that depends on the Garbage Paradigm.
The consequence of pretending that “recycling” is a departure from the Garbage Paradigm is that nothing will change. But if we step out of our blind spot, we face a glorious prospect: re-imagining the world without “garbage” that all humans lived in until just a geological blink ago. Dismantling the corporate garbage system will not occur unless we also free ourselves from false needs it fails to satisfy, and attend to deeper needs that it warps.
That world need not be a bleak land of denial. Where is the thrill in throwing out a year-old cell phone? It may be that the most rewarding life possible, as Stephanie Mills explores in Epicurean Simplicity, is one that would please Earth as well as its “highest” primates. Reflecting on her basic requirements, Mills muses, “Meeting these needs as sparingly as possible makes abundant the kinds of riches that can’t be owned.”31 And, I would insist on including the dancing that Emma Goldman would not do without.32
First published in Synthesis/Regeneration 46: A Magazine of Green Social Thought, Summer 2008.
Jane Anne Morris is a corporate anthropologist living in Madison, Wisconsin. Her most recent book is Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy (Apex Press).
By Jane Anne Morris
Working in tandem with a cooperative Supreme Court, corporate lawyers have insinuated themselves into the US Constitution like retroviruses, rewriting Constitutional code so that instead of protecting human persons from an oppressive government, the Constitution has been twisted to shield corporate persons (corporations) from control by the governments that create them.1
Continue reading “Why a Green Future is “Unconstitutional” and What to Do About It (2008)”
by Jane Anne Morris
One distracted click during my Internet research for this article gave me instant access to 936 photos of Brad Pitt. According to people who know, that click activated some 7000 computers in the search, and perhaps twice as many more trying to induce me to buy something or type in my personal data.1 And because I recycle, adjust my thermostat to save energy, and scrawl grocery lists on the backs of envelopes, I had to wonder what ecological footprint my peek at Brad had left behind. After considerable clicking and flipping (I still do hardcopy), I stared into the Internet and saw the car of the twenty-first century.
Let me back up and ask a question: Where do you think all your stored emails are? They’re not in the hands of tiny file clerks inside your computer — exactly. Nor in the library computer, where you can access them. Where are all those Bible-length attachments that nobody read but you’re saving anyway? The hot web sites and blogs? Where do we imagine all this stuff is?
It’s in the Cloud — the everything-seemingly-everywhere there-ness of the Internet. The Internet Cloud is generated and maintained by facilities called data centers or web server farms. These rustic-sounding server farms (think of a geek with a hayfork?), like Concentrated Animal Feeding Operations (CAFOs), are tucked — if something that covers dozens or even hundreds of acres can be said to be “tucked” — here and there across the country, downplayed if not concealed in generic buildings.
At server farms, zillions of complexly linked computers constantly juggle electrons storing messages, texts, songs, web sites, advertisements, film clips, birthday cards and other cultural effluvia. The mission of each server is to prevent captive electrons from doing what all free electrons want to do: dissolve back into the electromagnetic ether to hook up randomly. All that data coded into electronic pluses and minuses enables you, at any moment, to get the latest information about a massacre in Colómbia, a cancer cluster in New Jersey, or the current address of your high school sweetheart. Considerable server effort is devoted to articulating Brad’s dimples.
The mission of each server is to prevent captive electrons from dissolving back into the electromagnetic ether to hook up randomly.
Server farms are double-dippers. There, colonies of warehouses packed with rows of racked, stacked computers draw electricity like black holes suck light. That’s the first scoop. Because the heat generated by this conglomeration of circuitry, unless dispersed, will damage the equipment, server farms are air conditioned to a brisk temperature. That’s the second scoop. A typical server farm uses at least half of its electricity for cooling.2 Imagine a refrigerator wrapped around an electric stove, and you have the essence of a server farm: a pig-in-a-blanket that consumes electricity in almost unimaginable quantities.
Given access to the right cable or wireless network, you tap into the resulting buzzing Cloud by means of a desktop computer or even a handheld. Gadgets so teensy, you could hide one in a coffee mug. Server farms so huge that one warehouse might be the size of several football fields.3 And so needy that their electricity demand is measured in double- or triple-digit megawatts. A single megawatt (MW) can support about a thousand homes, on average.4
Server farm operators order up their electricity before they finalize their construction plans. In Sacramento, over 50 MW of capacity was requested. A server farm in New Jersey asked for 100 MW. In San Jose, 180 MW.5 An Austin Energy utility spokesperson told the Wall Street Journal that 200 MW (8.5% of its customer load) went to server farms.6 A “farm” near Seattle asked for 445 MW. A California utility was asked for 340 MW now, to be expanded by a thousand megawatts in the near future.7 At least three utilities have reportedly received requests for over 1000 MW of capacity, as reported by Susan Mandel back in 2001.8
Google Corporation alone reputedly already uses over 20 server farms, housing some half a million servers.9 It is supposedly already the largest electricity user in one state.10 The 2006 electricity demand of major search engine facilities (just a small portion of the Cloud) uses an estimated 5000 megawatts.11 Converted to residences, that’s about five million homes’ worth of electric capacity.12 Converted to electricity generation, that’s ten 500 MW coal plants. (Want one in your back yard? Wanna work in the mine?) A modest server farm that draws only 20 to 30 megawatts uses enough electricity to power 20 to 30 thousand homes.
The search for cheap land prices and low electricity rates has led server farm operators to site them in rural areas, towns and smallish cities, or near large hydroelectric plants that provide cheap kilowatts. Backup (and unregulated) diesel generators stand ready to power up during blackouts so customers don’t get irritated at having to wait 10 seconds for a download.
Server farms get cut-rate electricity: per-kilowatt-hour rates cited in recent articles range from 1.8 to 3.4¢.13 You did read that right. If I divide my monthly electric bill by the number of kwh I use, it always comes to over 20¢ per kwh. But I don’t pay industrial rates, which average out nationally just over 5¢ per kwh, and I don’t get other special deals often offered to large users.14
A server farm might sport a nice corporate goose pond with a fountain. Or, it might squat in generic buildings in an old industrial district. The advantages of being inconspicuous have not been lost on server farm entrepreneurs: one company brags that its “low profile, non-descript building does not attract attention.”15 But as Barry Commoner reminded us, there’s no such thing as a free lunch: everything has to go somewhere.
The ecological footprint of a server farm isn’t any prettier than that of a power plant, a toxic waste dump, a gigantic feedlot, or a freeway. The Cloud is floating on a cradle-to-grave network of wrecked aquifers, oily cormorants, radioactive tumbleweed, and melting icecaps. According to one analyst, ordering a book online burns a half-pound of coal.16 The Internet seems clean because its ecological footprint is elsewhere.
The Internet seems clean because its ecological footprint is elsewhere.
The Internet Cloud’s supporting infrastructure is well nigh invisible to most of its users. Its costs — to earth, air, water, health, species diversity and future generations, among others — are externalized onto people “over there”: those who host the strip mines and nuclear power plants, whose soccer fields are brownfields if not Superfund sites, and whose children go to schools nestled next to high-voltage power lines. Many of them live in low-income communities, or low-income countries. This is what the so-called “Environmental Justice” movement was about: privileged people stow the unpleasant, unhealthful, and ecologically devastating consequences of their comfortable lifestyles on the usual suspects, the lower classes, wherever they may be.
Meanwhile, on the bright side of the tracks, we are in the process of uploading our whole society onto the Internet. With our encouragement, those geeks with hayforks at the server farms are working overtime pitching ragged clumps of cultural data into this great content provider in the sky. In electronic form it stores fluff from all of our cultural pockets: baby pictures, thoughts about the election, yard sale items, songs of rage and joy, video games, pornographic videos, environmental impact statements, recipes, home movies, bank records, herbal remedies, and come-ons to purchase any tchotchka ever imagined. Often, once is not enough: online backup services are proliferating. If there’s an ecological footprint — and of course, there is — it is not going to Pop Up on our computer screens.
With almost uncanny prescience, the story of the automobile offers a preview of where we are heading with the Internet Cloud. The Model T was introduced a century ago. It was a wonder, it was affordable, it got 25 miles per gallon of gas, it opened up hitherto unknown possibilities to the masses.17 It would change the world, democratize transportation, and grant even those of moderate income unlimited horizons to explore. The cost? Apparently, just some cranking and a little fuel. If you had argued then that within a few generations the nation’s populace would rarely venture more than a quarter mile from their cars’ coveted parking spots, that world politics would be dominated by struggles to control petroleum deposits, and that chunks of the planet’s icecaps would be plopping into the oceans like so many frogs off their lily pads, people would have questioned your sanity.
James Howard Kunstler wrote a witty, melancholy, sadly fond memoir of the automobile’s stealth takeover of US culture (with infrastructure to match) that dropped us off in The Geography of Nowhere. Today, people say, “I’d like to stop using my car,” then add that unfortunately they can’t get to work, play, school, sports, yoga class, or the grocery store without it. And why is that? Because we’ve built our whole culture around it.
The car didn’t just penetrate our culture, it reconfigured its DNA. Like a retrovirus at its most efficient, it rewired our culture to serve its ends. Now, we’re up to our chins in smog and pavement and can’t quite figure out what to do next. Among other effects of our car addiction is cross-training in the art of externalization.
On the street, countless people sit in their idling cars, windows closed, with the heater or AC on, while passing pedestrians choke on fumes. That’s as good a model of externalization as any I know. Inside vehicular capsules, we can ignore not only our own immediate exhaust but also all the mining, smelting, refining, casting, and manufacturing, that make possible our automobile adventures.
Imagine if when you drove your car, you experienced the total consequences of your driving. The pollution from your tailpipe would be connected by a hose directly to your lungs. The waste from the manufacture of your car would be stirred into your coffee. The oil waste — all those -enes, -anes, -ones and -ines from the drilling, production, and refining of your gasoline — would be intravenously injected into your body. You would drink water contaminated with all of the wastes poured into waters around the country and the world so that you could fill up with gas. If we did this every time we started ‘er up and drove two blocks to the convenience store, we would certainly get around differently and drastically reduce driving time.
The consequences of dependence on the Internet Cloud are geographically, temporally, and socially displaced from users. The disconnect is almost absolute, leaving us leaning toward glowing, translucent screens emitting wind-chime notices that we need to save a document or check our mail. The terroir of a click is so faint at the screen end, and so diffuse at the footprint end, that we feel free to pretend that it is nonexistent.
Like a single car’s exhaust that seems too insubstantial to matter, a single click’s contribution to any planetary ills seems to evaporate before it can be pinned down. Yet the impact remains.
I can hear the epithets. Luddite. Anti-Technology. Afraid of Change. Anti-Progress. Did I miss any? Oh, yeah, Stuck in the Past. I hear how much “we” need the Cloud and our computers. Activists offer horrifying online descriptions of clearcutting, five-legged androgynous frogs, and radioactive tumbleweeds pinned by prevailing westerlies against barbed-wire fences. We email each other about how bad the big corporations are: the stripminers of coal, the refiners of oil, the producers of chemicals, the manufacturers of land mines. The Internet Cloud, the argument goes, makes us more effective activists and provides unprecedented access to a wide range of information. Is this like saying we have to destroy a village in order to save it?
The automobile is the alpha and the omega of our daily fare. We will be locked in its embrace for some time to come if we do not first succumb to its strangulation. Shall we now do the same with the Internet Cloud?
Those 936 photos really are at the crux of the issue. Could I survive on fewer photos, say, half of them? Maybe if the consequences of my clicking for Pitt pics were dumped onto my kitchen table, I would settle for a tabloid stuffed under the mattress. Should the Pitt stuff be available on the same terms as the telephone numbers of my representatives, or my neighbor’s homemade mittens web site? That is to say, cheap or free to the users, thanks to government subsidies and the sloughing off of externalities onto the usual suspects: the distant, the poor, and the future.
I would like to help decide what my government subsidizes. Which raises the Censorship Bogeyman. With a past as a teacher, activist, and writer, I can hardly imagine any task force that I would want to determine the limits of my exploration. But some collection of task forces already does that. Why don’t we have a real public debate about it?
Like most technological innovations whose promoters promise social benefits along with profits, the Cloud has nearly everyone gushing about its democratizing effects and promises of greater freedom for all. Isn’t it about time for a Virtual Reality Check, as Stephanie Mills famously asked in her 1986 book, What Ever Happened to Ecology? Last century our society adopted the automobile as its soul mate and re-ordered everything from our eating habits and courtship customs to the landscape itself. Dare we apply to computers and the Cloud today the same critiques that we applied to the car culture only in retrospect? Why should computer use be off-limits?
When I hear a mouse click I hear a coal train, see a “reclaimed” wasteland, smell an oily rotting otter corpse, and think of what it’s costing us, and future generations for those 936 photographs. While screwing in that ultra-efficient light bulb, we might think twice about doing all of our shopping, courtship, research, communication, and “organizing” online.
Disclosure: Corporate anthropologist Jane Anne Morris typed this (original) article on a new laptop, purchased because it has become nearly impossible to get a publisher to accept a manuscript in “hardcopy.” In the 1980s, she fought against lignite strip mining and power plants in Texas, wrote a dissertation on the quasi-public utility company involved, and served on the Austin, Texas, Resource Management Commission.
She is the author of Not In My Back Yard: The Handbook (Silvercat Publications, 1994). Her forthcoming book, Gaveling Down the Rabble: How “Free Trade” Is Stealing Our Democracy, will be published by Apex Press. She bikes year-round in Madison, Wisconsin and her last electricity bill was for 78 kwh.
First published in Synthesis/Regeneration 45, Winter 2008.
by Jane Anne Morris
When the “Hillary Clinton film” case is decided, headlines should declare, “Supreme Court affirms corporate personhood.” Instead, most media will call it a free speech decision. “First Amendment rights” will play the Trojan horse hauling corporate freight.
By first putting human beings and corporations into one basket labeled “things that have constitutional rights,” and then arguing about what “free speech” means, the Supreme Court has pitted the likes of the American Civil Liberties Union against advocates of campaign finance reform.
In one corner, arguing against limits on “speech,” we find Citizens United Inc. (the right-wing, nonprofit corporation that produced the Hillary film), supported by the ACLU. In the opposite corner, arguing FOR limits on “speech,” the Federal Election Commission and an assortment of groups supporting campaign finance laws.
Must we limit speech in order to have free and fair elections? Or must we accept corporation-dominated political debate in order to preserve free speech?
This false dilemma disappears if we reject corporate personhood – the idea that corporations have constitutional rights. Limiting corporate “speech” is not a constitutional infringement if corporations are not “persons” under the Constitution.
Corporate personhood encourages people to forget that every corporation is literally created by legislatures. Corporations of all kinds receive grants of power and privilege from the state; that’s why they incorporate. In the Citizens United Inc. case, the Clements amicus brief (on the FEC side) asks, “If the people’s elected representatives create legal structures for economic, charitable or other purposes, are they barred from preventing misuse of those structures for non-permitted purposes, such as political activity?”
Admitting the legal fiction of the corporation into the “rights” club has further consequences. With human beings and corporations joined at the hip in the body of constitutional law, the fruit of each people’s victory in strengthening or claiming a constitutional right is plucked up by corporate lawyers and used to defend corporations against the governments that created them.
That has been happening since the late 19th century, when the Supreme Court awarded the granddaddy of all corporate constitutional rights (equal protection and due process under the 14th Amendment) to railroad corporations.
In a famous Supreme Court dissent (1938), Justice Hugo Black ridiculed the justices’ grant of corporate personhood, and recounted the real function of the 14th Amendment during the first half-century after its adoption. Hint: It had little to do with protecting the rights of African-Americans, women or Native Americans.
Among Supreme Court cases about the 1868 amendment, Black wrote, “Less than one-half of 1 percent invoked it in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.” With corporations on the personhood wagon, rights that we think are protecting human beings are instead protecting corporations against the government.
In the current case, the biggest hope for some and fear for others is that the court will overrule Austin v. Michigan Chamber of Commerce, a 1990 case that preserved a scrap of state power to regulate corporate “political speech.” The widely touted “victory” was that the Supreme Court allowed Michigan to prohibit one kind of nonprofit corporation from using its monies for certain kinds of political speech.
Meanwhile, the Austin case accepts that money equals speech (following the Supreme Court’s 1976 Valeo decision), that corporations can spend treasury funds on initiatives and referendums, and that political action committees are legal and constitutional. But there’s more. Austin affirms that corporations are “persons” with constitutional rights, and that they have First Amendment rights, and equal protection rights.
Despite the hype and flutter around it, Citizens United Inc. v. FEC is not the big showdown about campaign finance reform. Whether the Supreme Court upholds the FEC and the Michigan law, or favors Citizens United Inc. and overrules Austin, corporate personhood will have won again.
Just as the single-payer option has been suppressed in the national health care debate, corporate personhood is all but ignored in discussions of campaign finance reform. Perhaps if “corporate personhood” made it into more headlines, we could shoo it out of the Trojan horse where it has obfuscated free speech and equal rights issues for too long.
Corporate anthropologist and Madison resident Jane Anne Morris’ recent book, “Gaveling Down the Rabble: How ‘Free Trade’ Is Stealing Our Democracy” (Apex Press, 2008) is cited in an amicus brief filed in support of the Federal Election Commission in this case.
Originally published in the (Madison) Capital Times, Oct. 9, 2014.