Why There Aren’t Any Jokes About Regulatory Agencies

OK, here’s a joke about a regulatory agency, as told by the corporate manager of a big polluting factory.

He says…So, I’m in my office one day and the Man from EPA comes in and slams down a huge stack of papers, saying — You’ve got 22,221 violations, and you better do something about them by next Friday.

So I says, Oh yeah, and what if I don’t do anything about them by next Friday?

Well, says the Man from EPA, then you’ll have twenty-two thousand, two hundred and twenty-TWO violations.

Hah, hah. Continue reading “Why There Aren’t Any Jokes About Regulatory Agencies”

Groundhog Day for Obamacare: Back to the Supremes

Like small-town mayors across the nation on Groundhog Day, the Supreme Court will get to make the call on whether Obamacare casts a shadow.

The Affordable Care Act (ACA, aka Obamacare) is again on its way to the Court for further review, as they say in the NFL. Its future is on the line, but for completely different reasons than the first time in 2012. Continue readingGroundhog Day for Obamacare: Back to the Supremes”

Making a Federal Case Out of It

“Don’t make a federal case out of it.” I used the phrase countless times without understanding its origin. But it turns out it’s full right up to the post-hoc-ergo-propter-hoc with historical significance: lessons about corporations, democracy and local control–what you might call community rights.

Take the train-hits-cow cases. Railroads began a rapid expansion in the US in the 1830s and by 1870 spanned the continent. Farmers had livestock milling around before barbed wire was patented or common, and trains didn’t-wouldn’t-couldn’t always stop for the unfortunate domestic animal standing on the tracks.

Farmers wanted compensation for all the cows wasted by trains. They often got it, even from the big railroad corporations, if they went to state courts, which obviously understood the plight of farmers losing stock to the new Iron Horses.

Another big beef during the early railroad era was that glowing embers from wood-burning steam locomotives wafted off and set fire to farmers’ fields and barns. This barn burning was especially common before railroads began switching to coal in the 1860s. Again, farmers were often able to get compensation if they went to state courts.

Railroad corporations were not keen on paying for kilt cows or burnt barns if they could avoid it. They learned early on that they fared much better in federal courts. Ask a lawyer (Better Call Saul): federal court takes longer, costs more, is farther away, has more onerous procedures, and is harder to win in if you’re an amateur.

Make a federal case out of it: escape the locals and get into federal court. As opposed to traffic court, municipal court, county court or state court. The rules for getting into federal court have changed over time, and there’s no way to summarize them here. But one fairly sure way is to raise a constitutional question. Poring over the constitution looking for corporate handholds has long been a strategy for property seeking relief from local democracy. (My book Gaveling Down the Rabble is all about how it’s done with a single constitutional clause.)

Much of corporate law (and “rights,” and powers) comes out of cases about railroads because they were among the dominant corporations of the 19th century. The take-home message: corporations saw that local control was a threat to their power, but federal jurisdiction (courts, Congress, or the regulatory agencies) could be a ticket for privilege. (For some history, see this.)

A shallow or stylized sense of history can lead to misconceptions. Many people think that the Supreme Court (the feds) has been a stalwart defender of civil rights. Simply not true, and shamefully not true. (See the chapter on civil rights in Gaveling.) But the “federal case” idiom was common in the 1950s because of federal involvement (usually based on the constitution’s COMMERCE clause) in civil rights during those years.

The origin of the phrase seems to be somewhat earlier, in Jimmy Durante’s 1940s reference to the federal government’s use of tax evasion charges to justify going after bootleggers during the Depression. I don’t have any evidence that the phrase was used in the early railroad era, but it captures the essence of corporate efforts to escape protective state and local laws.

If I titled this post “Federalism is So Complex!” none of you would be reading this now. But it is complex, and critical to efforts to reinstate some semblance of local control in our communities. Here are another few relevant tidbits before I close this ramble.

* Federal courts had little to do in the early decades of this nation, but now hear cases on a huge spread of topics and issues. (Gaveling explores this in labor, civil rights, and environmental law, among others). Whether this is good or bad is not obvious.

* The US Congress—not the constitution—determines the powers of federal courts. See my “Look to Congress for Supreme Court Fix.”

* The question of the appropriate relationship between local and federal power involves, among many other things, whether a federal law should be a floor (a minimum standard that states may be stricter than), or a ceiling (a standard that must be met but cannot be exceeded by local laws).

Finally, let’s remember that “local control” is a double-edged sword. If we really believe in local control, we need to insure that it is DEMOCRATIC local control and not feudal party machines in action.

Next post will be about….let’s see, What the Phrase “From Here Till Next Tuesday” Can Tell Us About Corporations.

Happy 2015, jam

jam tip: A great source for train-hits-cow stories and other tales of early corporate constitutional predation is volume one of Morton Horwitz’s The Transformation of American Law (1977). NB: not for the faint of heart.

A Corporate Anthropologist Walks Into a Blog…

There are two kinds of corporate anthropologists. First, the kind that works for corporations and gets paid. I’m the other kind.

The first kind works for and with corporations to increase worker productivity, advise what color greeting card to send a Chinese executive, or figure out how to sell personal hygiene products to Mayan grandmothers. In school we used to call it how-to-sell-Coca-Cola-to-the-natives. A subset would be how to keep the natives from getting restless.

It often involves finding non-confrontational stealth “solutions” to management-defined problems. This would include designing lobby benches that can’t be slept on, or sandpaper-covered toilet seats to discourage secretaries with too much time on their hands from hiding in stalls reading bodice-rippers.

It would not include ways of preventing non-corporate geese from defecating around fountain-fed corporate ponds. (That would require a corporate ornithologist, I guess.)

The second kind of corporate anthropologist, the kind I am, uses anthropological methods to study corporations or corporate culture. The core anthropological research method is participant observation, which basically means living there, or if it’s a setting like a factory or school, working there or attending—hanging out in some way.

I’m a corporate anthropologist because my “tribe,” the one I studied, was a powerful quasi-public utility company. It was by following this utility through scores of permits and hearings, in nearly as many regulatory agencies and courts, that I got my training in regulatory agencies. My dissertation was over 700 pages long and contained thirteen appendices, partly because I feared a lawsuit.

This sort of thing is called “studying up” because unlike the historic anthropological project of sending someone from an empire to study oppressed people in the colonies (“studying down”), you have someone studying up at powerful people, groups, or institutions, often in their own society.

One of the reasons it’s not more popular is that there’s no money in it. In my own case, I was encouraged to study (down at) environmental groups or citizen activists instead of (up at) the Big Utility. Corporations and other powerful institutions have always been happy to fund studies that reveal the inner workings and weaknesses of groups that suffer from their practices.

Since the 1960s, UC-Berkeley anthropologist Laura Nader (yes, Ralph’s sister) has been encouraging students to “study up” at everything from regulatory commissions to dentist conventions. Her work was an inspiration and model for my own.

If you want to hear more about my utility tribe, you can read a sidebar on it here, or follow the links in “About JAM” to a biographical sketch on the Society of Midland Authors site.

So, a corporate anthropologist walks into a blog……says…. Happy Solstice, see you in 2015. jam

Is Citizens United Focus a Good Use of Our Time? (2014)

Such a comforting thought—that overturning a single court case can resolve some of society’s biggest problems. With Citizens United, the idea seems to be that huge strides could be made by reversing it, thereby “getting the money out of” elections. It’s our current version of the “silver bullet” myth of old.

Kind of like thinking that bee pollen will cure your cancer. Continue reading “Is Citizens United Focus a Good Use of Our Time? (2014)”