News and Features
Activists have achieved power. Now they need to figure out how to use it.
In May 1928 Marie Curie, the famed discoverer of radium and double Nobel laureate, received a disturbing letter from an American journalist. It told of young women at a radium watch-dial plant in Orange, New Jersey, who were dying from necrosis of the jaw, a rare degenerative disease. The women would tip radium-laden brushes in their mouths, blithely ingesting this intensely radioactive substance--at levels more than 10,000 times those allowed under today's standards. Plant managers had told them that ingesting radium would enhance their vitality.
At the time, Madame Curie herself was paying dearly for her pioneering work. Reading the letter was not easy, as she suffered from radiation-induced cataracts and from painful radiation burns on her hands. True to form, she refused to accept that her discovery had anything to do with this tragedy and advised the women to eat calf's liver. By 1934 Curie was dead from severe bone marrow damage and America was experiencing its first industrial epidemic of radiation-induced diseases.
Madame Curie's denial of radiation dangers is emblematic of the legacy we now face as America's romance with the atom draws to a close. The once dynamic and sprawling US nuclear weapons program, which underwent spectacular growth in the past fifty years, is winding down, leaving behind a tragic health legacy that, once again, is borne by working people. In the next few weeks, Congress will decide whether to enact a federal compensation program for the 600,000 people who helped make our nuclear weapons.
The current attention dates to the summer of 1999, when the Clinton Administration, spurred on by Energy Secretary Bill Richardson, proposed legislation to compensate nuclear weapons workers. In January of this year, a report prepared for President Clinton found that workers at fourteen federal nuclear facilities across the United States have higher than expected risks of dying from cancer or nonmalignant diseases following exposure to radiation and other substances. This official concession that nuclear weapons workers were harmed led to an unprecedented public outpouring in politically conservative company towns near federal nuclear sites. Workers told of being overexposed, getting sick and then having to battle against the government, which spared no expense to block claims. "The people in this area have been forced into poverty--they fall through the cracks, and they die," said Kay Sutherland, a cancer victim, at a meeting near the DOE's Hanford site in Washington.
In June an amendment to the 2001 defense authorization bill offered by Senators Fred Thompson and Jeff Bingaman was unanimously adopted by the Senate. The measure would create a federal program to provide compensation for illness, disabilities and deaths due to exposure to radiation or to beryllium or silica, two hazardous substances. The Senate provision is far from perfect, but it's a good start. However, it looked likely as we went to press that the provision was in jeopardy. Republicans in the House were at work fashioning a symbolic gesture that greatly reduces the benefits and provides no funding to compensate people.
I started working on this issue twenty-five years ago, first as an environmental activist involved in the lawsuit on behalf of the parents of Karen Silkwood, a contaminated nuclear worker in Oklahoma who was killed in November 1974 while trying to deliver safety documents to the New York Times. While it is personally gratifying to see this change take place, it still remains a tragedy for many who could have been helped as long ago as 1951, when the first official recommendations to help sick, overexposed weapons workers were secretly turned down. As we come to terms with the aftermath of the nuclear arms race, it is time for Congress to provide justice to working people who were put at risk without their knowledge and who paid with their health and lives.
A federal court has ruled that Microsoft is a predatory monopolist and, stunningly, that the company should be broken into two parts. But the Microsoft opinion is the handiwork of one federal district court judge. Appeals lie ahead, and at the end of the road is the Supreme Court. The current Supreme Court majority has been reluctant to interfere with business conduct other than price-fixing. If George W. Bush should win the presidential election and appoint one or two Supreme Court Justices, we can expect yet more erosion of the antitrust landscape.
The Supreme Court once championed antitrust laws as valued tools to limit corporate power and to promote the autonomy, diversity and economic rights of people and firms without power. But the message of contemporary opinions is quite the contrary: Trust business, not government. It is fair to worry whether the Rehnquist Court has handed big business the license to do as it will, and if not yet, whether appointments by George W. Bush would complete the handover.
In one notable case, Liggett & Myers challenged the tobacco oligopoly by introducing low-priced generic cigarettes. In response, Brown & Williamson introduced a fighting brand, which it sold below cost to selected distributors for eighteen months for the sole purpose and with the effect of blunting Liggett's competitive challenge. Liggett sued for discriminatory and predatory pricing. A split Supreme Court threw Liggett's suit out. The strategy may have been unfair to Liggett, the Court said, but the antitrust laws have nothing to do with fairness, and price wars are good for consumers.
In the Microsoft case, District Judge Thomas Penfield Jackson declared Microsoft a predatory monopolist whose conduct has forestalled innovation and "trammeled the competitive process." Microsoft appealed from Jackson's judgment and confidently predicts a reversal. That confidence is not without some basis. The case will be heard either directly by the Supreme Court or, at the Supreme Court's choosing, by the Court of Appeals for the Washington, DC, Circuit, which two years ago overturned Judge Jackson's ruling that Microsoft's bundling of its web browser with its operating system probably violated a 1995 consent decree. Judge Jackson's final opinion in the current case documents Microsoft's predations in copious detail: its unremitting course of conduct and use of leverage to eliminate innovation that threatened to destroy Microsoft's operating-system monopoly.
When the Supreme Court hears the case, it is likely to find difficult questions of law: What standard applies to high-tech, fast-moving markets where a competitor's innovation can (in theory) wipe out a monopolist's power with sleight of hand? Indeed, can we even conceive of Microsoft as a monopolist when it faces the constant threat of technological obsolescence? Should courts or inventors/sellers decide whether browsers and operating systems are two products (and subject to the law against tying) or one integrated product and entitled to the deference of the judge? Should antitrust recede in the face of globalization and the unpredictable forces of technology? But note how even the formulation of the question is likely to inform the overall outcome. Is the real question whether Microsoft violated the law by strategies designed (and certain) to block rivals rather than serve computer users? Is the real, overarching problem: Whom should we trust--Microsoft or courts? Microsoft or antitrust law?
To complicate matters, politics has reared its head. The battle has spilled over to the Congressional arena and the race for the presidency. The country that prides itself on the rule of law could fall prey to the rule of money and the race for hegemony in the global economy. George W. Bush has already announced that he is not too fond of the antitrust laws, apart from the law against price-fixing. Microsoft has made huge contributions to both major campaigns, and it promises more to come. And Microsoft has, unsuccessfully, lobbied Congress to cut off the budget of the antitrust division of the Justice Department if it insists upon continuing its litigation against Microsoft.
But most significant is a President's power to appoint Justices to the Supreme Court. On the Court today there are Justices committed to upholding antitrust and Justices committed to chipping away its foundations. Justices John Paul Stevens and Antonin Scalia stand at opposite ends of the spectrum. Justice Stevens has an abiding concern about uncontrolled private power and is determined not to allow further erosion of the laws meant to control it. Justice Scalia has an abiding hostility to economic regulation and a resolve to minimize antitrust to protect "rational" private actors from "the sledgehammer of §2 [the monopoly law]." Scalia fears the power of government and never sees the power of business. Justice Stephen Breyer, a world expert in antitrust and economic regulation who has never been accused of antitrust populism, is the natural future voice for antitrust on the Court, but even Justice Breyer has been relegated to being a voice of dissent. On appeal from a Federal Trade Commission ban on California dentists' rules against discount advertising, Justice Breyer urged his colleagues to respect FTC findings and not to impose new burdens on antitrust plaintiffs, but he failed.
The Court is in delicate balance in matters of business power versus consumers. One or two Supreme Court appointments can make the difference.
Even as Chase Manhattan prepares to take over J.P. Morgan, the bank's past is returning to haunt it. Recently revealed documents show that Chase, which was already known to have helped the Nazis, aided slavery here at home as two of its predecessor banks worked with an insurance company to insure slave owners against loss. Chase is, as far as can be determined, the first company whose forerunners have been identified as aiding both the perpetrators of the destruction of the Jews in Europe and those who enslaved Africans and their descendants in America.
Chase currently faces a class-action lawsuit filed in the United States by Holocaust survivors and victims' relatives who say their assets were frozen by Chase during World War II. Chase seized bank accounts and safe-deposit boxes from Jewish customers in France and did not return or properly account for them after the war, according to Kenneth McCallion, a lead attorney in the suit. In addition, a Treasury Department report declassified a few years ago concludes that Chase's Paris branch served as a banker for the Third Reich. J.P. Morgan, whose Paris office also worked closely with the Germans, is named in the lawsuit as well.
About a hundred years earlier, two US banks that were later taken over by Chase were described in an 1852 information circular as servicers of insurance policies issued on the lives of slaves. Titled "A Method by Which Slave Owners May Be Protected From Loss," the circular, put out by the National Loan Fund Life Assurance Company of London, describes, among others, The Merchants Bank and The Leather Manufacturers Bank, both of New York, as having the legal authority "to accept risks, adjust and pay claims." The Merchants Bank merged in 1920 with The Bank of the Manhattan Company, which in turn merged with Chase in 1955, according to the New York State Banking Department and Chase's website. The Leather Manufacturers Bank merged with The Mechanics National Bank in 1904, which then merged with Chase in 1926.
Deadria Farmer-Paellmann, the lawyer whose research earlier this year forced the Aetna Insurance Company to make a public apology for writing slave insurance policies, uncovered the documents exposing Chase. These revelations are certain to bolster the growing movement for slavery reparations.
The presidents of the two banks are listed on the circular as members of the New York board of directors of the London insurance company. The circular names medical examiners in Virginia, North Carolina and Washington, DC, who were authorized to examine slaves and also offers details about the insurance policies. For example: "A Slave aged 30 years can be insured for $500, for a year, for $11.25; and if he dies, the owner, although deprived of the revenue of his labour...will still not be unrecompensed for his loss; for there will still remain to him--not his Slave--but the $500 which constituted his value...." While it has still to be determined whether the two banks actually serviced any policies for slave owners, the existence of the circular proves that the banks actively sought and were part of such business.
Jim Finn, a Chase spokesperson, said that his organization needs more time to study the circular and related materials before he could comment. Farmer-Paellmann, who is continuing her research, said, "My hope is that if archival records show that policies were written, then Chase will apologize for helping to maintain that crime against humanity and pay restitution into a trust fund to benefit heirs of Africans enslaved in America."
In early September Chase agreed to permit an investigator who had probed Swiss banks for their Holocaust-era activities to review its records to determine how Chase had helped the Nazis. Chase should immediately open its archives to slavery researchers as well. Only then will a full record be available to determine what reparations, if any, should be paid.
In the area of labor law it's not the Supreme Court that's the primary problem, it's the law itself. If the toothlessness of the National Labor Relations Board allows the bosses to violate the law at will, with no truly serious penalty, there is nothing any Court, even one full of William Kunstlers, can do to bring back a meaningful right to organize.
So my concern is not what the Supreme Court might do under a Bush Administration. It's highly unlikely that the present law will change. My worry is that the conservative Justices Bush might appoint will be around long after he leaves office. If a more progressive administration succeeds him and pushes through new labor law that would give US workers a real right to join unions, a Bush Supreme Court packed with Antonin Scalia and Clarence Thomas types would gut it. Suppose, for example, that a future Democratic Congress, stripped of a filibuster, passed a law similar to Canada's, where if enough workers sign cards saying, in effect, they want a union, there is no election--a union is in place. The Bush Supreme Court might declare that such a law violates the employer's First Amendment right to present the anti-union view, to "speak" to (i.e., to intimidate, threaten) the workers before they sign the cards.
Right now, however, what hurts labor, day to day, is the wins and losses in the lower courts. That's because in labor and civil rights, the Rehnquist Court sometimes works by proxy, and many of the lower appellate courts (e.g., the District of Columbia, the Fourth Circuit) are worse. In the 1999 term, the Supreme Court gave opinions on only seventy-five cases, mostly ones that the Justice Department asked it to take. Just by turning down or not reading cases, the Court can effectively "rule" without ruling. Consider the one real labor-law reform attempted by the Clintonites: to stop federal purchases from employers who use striker replacements. The right-wing Court of Appeals for the District of Columbia Circuit struck down Clinton's power to do this by regulation. The Supreme Court refused to hear an appeal. The Clintonites probably would have lost anyway, but this is a good example of how a conservative Supreme Court, by proxy, can block an attempt to restore union power.
Still, the Rehnquist Court has handed down some bad decisions. In Lechmere v. NLRB (1992) Justice Thomas's opinion was very touchy about the employer's property rights in a union organizing drive. It made clear, again, the policy of keeping nonemployee union organizers off the property, except in circumstances (vague) when there is no other way to communicate with workers.
Apart from strict labor cases, there are many rulings from the Rehnquist Court on class actions, federalism and other areas that indirectly shrink labor's power. Why does the High Court's taste for states' rights seem to whet when it can hurt a public union--as it did in Alden v. Maine (1999)? Apart from its states' rights silliness, the Alden opinion bars more than 4 million state workers from suing under federal wage laws in state court.
Alas, the real advance in workers' legal rights has come mostly in state courts. Some state courts have set limits on certain types of firings. That's something, but it does little to help Americans raise wages or reduce income inequality.
To be fair, in civil rights, we owe a bit to the Rehnquist Court, and to Scalia especially. In cases in the late eighties, the Rehnquist forces so vigorously whacked away at Title VII and related laws that the Democratic Congress was roused to action. Instead of just reversing these bad cases, Congress expanded the remedies for Title VII violations. Now we have jury trials and punitive damages. We owe at least a little thanks to Justice Scalia. Almost a year ago, a former clerk of the Court complained to me about how badly we labor types presented those cases in the eighties. "And," she said, "that's why we got those bad rulings from Scalia." Ah, but thanks to our bungling, we expanded civil rights remedies.
Only now, if we bungle with a Republican Congress, such mischief would linger on. This may be so with the Americans With Disabilities Act. Incredibly, last year the Court parsed the term "disability" to exclude, arguably, even an amputee with prosthetic limbs. In his majority opinion, Justice O'Connor tried to "intuit" what Congress "must have meant"--something that conservatives, as formalists, are famous for saying they never do.
Never, except when it hurts disabled workers. But in labor law especially, judges often rule from scratch. It often seems that the whole country has, without knowing it, drifted into a civil law, European-type legal system, in which we don't use precedent in the old Anglo-American common law way, for the simple reason that there isn't any precedent--especially with new laws like ADA and in the realm of civil rights, where the judges have to "make it up" the most.
Precisely because we have to make it up more and more, we should care who's on the Court. In labor, especially, by making it up for the decades to come, the Rehnquist Court et al. will help decide how much the rest of us Willy Lomans can get out of the lives we so recklessly throw away at work.
Marc Cooper's July 24/31 "Where's Hoffa Driving the Teamsters?"
provoked a storm of controversy from Honolulu to Brooklyn.
The economics of George W.
There was a time when the very word "Teamsters" evoked some pretty dark images: a bloated and notoriously corrupt union president, carried into the Teamsters convention on a gilded sedan chair by
On the final day of the Seattle demonstrations this past December, Peter Jennings of ABC's World News Tonight introduced the story with a sly aside: "The thousands of demonstrators will go
The New York of 1945 was the victorious city of the New Deal and World War II, one that can barely be glimpsed today beneath postmodern towers and billboards for dot-com enterprises.