A portrait of Louis Brandeis on the cover of Time magazine on October 19, 1925.
Before he was an associate justice on the Supreme Court of the United States from 1916 to 1939, Louis Brandeis was a progressive lawyer fighting the big monopolies, or trusts, of Gilded Age America. He termed the corrosive effect on democracy of unrestrained business practices “The Curse of Bigness”, and after he joined the Supreme Court he maintained his interest in restraining business interests from trampling the rights of ordinary citizens.
Now President Biden has appointed Lina Khan to the chair of the Federal Trade Commission, and her appointment signals a return to the principles of Louis Brandeis. Lina Khan is an antitrust lawyer and legal scholar who, as a student at Yale Law School in 2017, wrote an article called Amazon’s Antitrust Paradox. The article drew widespread attention for her ideas about how the conventional wisdom of the past 50 or so years regarding regulation of the marketplace based on consumer prices no longer applied in the age of Amazon, a company willing to engage in predatory pricing and use vertical integration in order to stifle competition and monopolize the marketplace.
A profile of Lina Khan in Time from October 17, 2019.
Prior to Ms. Khan’s appointment, another antitrust lawyer and legal scholar, Tim Wu, joined the Biden administration as a Special Assistant to the President for Technology and Competition Policy on the National Economic Council. Mr. Wu is known for helping to write the first network neutrality rules in work for the Federal Communications Commission in 2006. In 2018, he wrote The Curse of Bigness: Antitrust in the New Gilded Age, a book which paid homage to Louis Brandeis and his antitrust work of the Progressive Era.
A Climate Strike protester with an anti Bezos sign in London on February 14, 2020. Photo by Flickr user Socialist Appeal.
With these two people now in key positions in the federal government, perhaps efforts to rein in, or even bust up, big technology companies such as Amazon, Google, Apple, Facebook, and Microsoft, will finally be undertaken seriously and with persistence. In the past, these Big Five technology companies have largely escaped with slaps on the wrist after fitful investigations into their practices.
Supreme Court Justice Ruth Bader Ginsburg answered questions from Brandeis University students at an event in January 2016 commemorating the 100th anniversary of Louis Brandeis being nominated to the Supreme Court by President Woodrow Wilson.
As Louis Brandeis understood, and as is apparent from the writings of both Lina Khan and Tim Wu, setting regulatory boundaries for these behemoth businesses not only ensures they act fairly in the marketplace, but protects democracy from their tendency to squash individual liberties when they conflict with their self-interest. And the bigger and less competitive these companies become, the more their self-interest consumes everything in their vicinity, like a beast that can’t stop growing and must swallow anything in its way.
An unofficial remix of the 2021 songs “Bezos I” and “Bezos II”, written and performed by Bo Burnham for his album and Netflix special,Bo Burnham:Inside. Warning: foul language.
Legal judgments in lawsuits against the makers of Roundup herbicide continue accumulating in the plaintiffs’ favor, with the latest one entailing an award of $2.05 billion to a married couple who alleged that they each contracted non-Hodgkin lymphoma (NHL) from years of using the herbicide in their home garden. As in many lawsuits, high dollar amounts are likely to come down a great deal in the final settlement, and most of the money will end up in the hands of lawyers, not the plaintiffs.
Glyphosate is the active ingredient in Roundup and similar generic herbicides, and it is glyphosate which the plaintiffs in thousands of lawsuits around the country are alleging is linked to their cancer. Meanwhile, glyphosate continues to be readily available without label warnings to home gardeners as well as professional landscapers and farmers since the Environmental Protection Agency (EPA) has not ruled it is a carcinogen. European environmental and health organizations have ruled glyphosate is a probable carcinogen, differing from their American counterparts because they reviewed independent scientific studies instead of regulatory studies, many of them funded by agribusiness.
Welted thistle (Carduus crispus) possesses some fine qualities, including pretty flowers as seen here, but most people consider it a weed. Photo by dae jeung kim.
While United States government agencies continue to tilt the scales in favor of agribusiness, the courts appear to have no such bias. Consumers in that case have little recourse other than to seek compensation through the courts for their pain and suffering, which they allege were caused by the makers of Roundup (first Monsanto, and currently Bayer) and other purveyors of glyphosate herbicides. Consumers who are still healthy and use herbicides might want to exercise caution by looking for other options, though the only way they would know that is through their own research or by word of mouth, since there continue to be no cautionary statements about the risk of cancer on the label of glyphosate products the way there are for instance on cigarette packs.
Bottles of vinegar at a supermarket. Safer to use than horticultural vinegar, this more easily available common household vinegar may be a better option for casual users who do not require a heavy duty herbicide. Photo by Ms angie gray.
A safer herbicide option is vinegar. Ancient cultures derived vinegar from soured grape wine, but since it can be made from anything that produces ethanol, today most of it is sourced from corn, a cheap source. Unlike glyphosate, which migrates to the roots of affected plants, vinegar only burns the tops, meaning gardeners will have to reapply it when the weed sprouts new growth. Also unlike glyphosate, vinegar does not damage soil fertility with long term use. Damage to soil fertility is another effect of glyphosate that the manufacturers dispute even though some scientific researchers have upheld the observations of the effect by attentive farmers and gardeners.
Gardeners will be disappointed in the weak effect of using the vinegar commonly sold in grocery or home improvement stores, and that is because it is only a 5 to 7 percent solution of acetic acid in water meant for pickling food or cleaning surfaces, not killing weeds. For home gardeners, the most effective vinegar for killing weeds that is appropriately labeled as such, with accompanying safety warnings, is 20 to 30 percent acetic acid. Probably by reason of the low popularity of strong vinegar and the danger for casual users in believing it is relatively harmless, it appears to be available online only, not in stores. Vinegar that strong, while still mostly water, is potently acrid stuff which can burn a user’s mucous membranes, eyes, and skin, and may corrode hard surfaces and harm any small animals, such as toads, living in a garden. Test a small area first if there’s a chance overspray could affect something like bricks in a walkway. The best that can be said is it’s a good thing weeds are outside in the open air. Spraying strong vinegar in the garden may be unpleasant for the applicator and those in the vicinity and should be done with caution, but unlike using glyphosate, there’s less risk of serious damage to the gardener and the garden.
Customs and Border Protection (CBP) employees have been detaining journalists and immigration lawyers at checkpoints in Arizona and Texas and questioning them about their political beliefs. These are nothing more than intimidation tactics by government employees who don’t appear overly concerned that they work for all citizens of the United States, not merely the current presidential administration and its far right supporters.
CBP has long had too broad an authority, and particularly after World War II when Congress passed laws giving the agency the ability to regularly trespass on citizens’ rights under the Fourth Amendment to the Constitution. In 1953, without public review, the Justice Department specified the zone within which CBP could operate fast and loose with the Constitution at 100 air miles of the United States border. That’s 100 miles within the United States, all around the perimeter, an area encompassing nearly two thirds of the populace.
A sign at the January 2018 Womens’ March in Seneca Falls, New York. Photo by Marc Nozell.
It’s incredible these laws and rules have stayed on the books as long as they have and have withstood review by the Supreme Court. The Supreme Court has often interpreted the Constitution with an eye toward sustaining the power of the government over the citizen, however, despite the recent miraculous lapse in its ruling on Timbs v.Indiana, which rescinded civil asset forfeiture, also known as cops’ legalized stealing of citizens’ property. That ruling can best be considered an anomaly, at least from the Court’s five conservative justices, who with an even more recent ruling, in Nielsen v. Preap, are back to their usual shoring up of police state encroachments on the Constitution.
George Carlin performing in 2008 in Santa Rosa, California, just months before he died. “You Have No Rights” is the closing bit, and for the album made from this Home Box Office (HBO) special, It’s Bad for Ya, he was awarded a posthumous Grammy. Warning: foul language.
Supposedly these laws are meant to be enforced against illegal immigrants, who after all are not citizens. In practice, their overly broad authority allows enough room for CBP employees with a political agenda to harass and intimidate anyone they care to, citizens and non-citizens alike. The CBP employees can always claim some legal rationale for their capricious actions, and even after offering the flimsiest excuses, they know legal redress of their abuse of power will take years, if it comes at all. This is what happens when fear guides the writing of laws, giving too much authority to law enforcement agencies, and then a lawless presidential administration grasps the reins of all that power. Meanwhile the nation’s courts have too often upheld police prerogatives over citizens’ rights, eroding the meaning of those rights and mocking their supposed inviolability.
A jury at San Francisco’s Superior Court of California has awarded school groundskeeper Dewayne Johnson $289 million in damages in his lawsuit against Monsanto, maker of the glyphosate herbicide Roundup. Mr. Johnson has a form of cancer known as non-Hodgkin’s lymphoma, and it was his contention that the herbicides he used in the course of his groundskeeping work caused his illness, which his doctors have claimed will likely kill him by 2020. Hundreds of potential litigants around the country have been awaiting the verdict in this case against Monsanto, and now it promises to be the first of many cases.
Migrant laborers weeding sugar beets near Fort Collins, Colorado, in 1972. Photo by Bill Gillette for the EPA is currently in the National Archives at College Park, Maryland. Chemical herbicides other than Roundup were in use at that time, though all presented health problems to farm workers and to consumers. Roundup quickly overtook the chemical alternatives because Monsanto represented it, whether honestly or dishonestly, as the least toxic of all the herbicides, and it overtook manual and mechanical means of weeding because of its relative cheapness and because it reduced the need for backbreaking drudgery.
Monsanto has long been playing fast and loose with scientific findings about the possible carcinogenic effects of glyphosate, and the Environmental Protection Agency (EPA) currently sides with Monsanto in its claim that there is no conclusive evidence about the herbicide’s potential to cause cancer. In Europe, where Monsanto has exerted slightly less influence than in the United States, scientific papers have come out in the last ten years establishing the link between glyphosate and cancer. Since Bayer, a German company, acquired Monsanto in 2016 it remains to be seen if European scientists will be muzzled and co-opted like some of their American colleagues.
The intensive use of glyphosate herbicide to remove all ground vegetation in olive groves on Corfu, a Greek island in the Ionian Sea, is evidenced by the large number of discarded chemical containers in its countryside. Photo by Parkywiki.
The scope of global agribusiness sales and practices that is put at risk by the verdict in Johnson v. Monsanto is enormous. From the discovery of glyphosate in 1970 by Monsanto chemist John E. Franz to today, the use of the herbicide has grown to the preeminent place in the chemical arsenal of farmers around the world and has spawned the research into genetically modified, or Roundup Ready, crops such as corn, cotton, and soybeans. There are trillions of dollars at stake, and Monsanto and its parent company, Bayer, will certainly use all their vast resources of money and lawyers to fight the lawsuits to come.
Because scientists have found traces of glyphosatein the bodies of most people they have examined in America for the chemical over the past 20 years as foods from Roundup Ready corn and soybeans spread throughout the marketplace, they have inferred it’s presence is probably widespread in the general population. That means there are potentially thousands of lawsuits in the works. Like the tobacco companies before them and the fossil fuel industry currently, agribusiness giants will no doubt fight adverse scientific findings about their products no matter how overwhelming the evidence against them, sowing doubt among the populace and working the referees in the government.
Telling someone off, no matter who they are and how high and mighty they may seem, is as American as apple pie. In fact, the more important a person purports to be, the better for all concerned in our society that someone tell that person off sooner or later, either before or after they get too big for their britches. That’s democracy. Last October, when Juli Briskman was out for a bicycle ride in Sterling, Virginia, and the motorcade of the Duffer-in-Chief passed her on the road on their way back from yet another weekend on the links, Ms. Briskman exercised her rights as well as herself by flipping off the Duffer and his motorcade. Her gesture was every bit an expression of American freedom as the “thumbs up” gesture the Duffer favors using, or even the one where he points to the person next to him in an awkward and strange display of his dominance.
Ms. Briskman is now suing her former employer,Akima, a federal contractor in the facilities maintenance business, for unlawful termination in order to collect legal fees and the severance pay they promised, but never gave her. Akima’s management used the excuse of an obscene social media posting by Ms. Briskman to fire her, because she posted the photo of herself flipping off the president’s motorcade after it had already circulated widely through the news media. She was making a political statement on her own time when she flipped off El Presidente, and she posted the picture on her personal social media account, with no reference to the company she worked for, yet the Akima bosses saw fit to throw her under the bus once it became widely known she worked for them, a federal contractor seemingly at the mercy of the whims of El Presidente.
The Women’s March on January 21, 2017, in Washington, D.C., one day after the installment of Spanky the Pussy Grabber in the Oval Office. Photo by Liz Lemon.
It’s unfortunate Ms. Briskman lost her job over her political statement, though considering how Akima management reacted it is perhaps best for her in the long run to get away from those people. What’s particularly interesting about the lawsuit she is bringing against them is the effect it may have on employers’ control over their employees lives outside of work. There has been a trend toward companies’ monitoring of employees’ social media accounts, and whether the companies or the public disapproves of any individual’s social media postings or political activity outside of work should be immaterial under the First Amendment to the Constitution. It is worth noting the irony that the Supreme Court, with its 2010 decision in Citizens United, upheld the notion that the political campaign expenditures of corporations qualify as free speech, with protection under the First Amendment, yet there has been no Supreme Court ruling on the broad capacity of corporations to intimidate their employees when it comes to the employees expressing themselves freely on their own time.
People are free of course not to work for such corporations, just as they are free not to work for a corporation like Sinclair Broadcasting, which forces its employees to spout the company line over the airwaves on the company’s time, whether they agree with it or not. The problem comes when these companies acquire undue influence throughout their particular industry, and can then effectively blackball not only dissent, but the dissenters as well. That’s where the courts are supposed to step in to protect the rights of individuals, the rights that are codified in many laws from the Constitution’s Bill of Rights on down to state laws against discrimination and unequal treatment of all sorts. But it’s expensive to fight large corporations in court. The corporations know that, and they will often act in that case in what they perceive as their own best interest, letting the legal chips fall where they may, which often as not happens to be in their favor.
A fine display of the art of telling someone off in the 1992 film Glengarry Glen Ross, from the play by David Mamet about real estate salesmen, and starring Al Pacino, Kevin Spacey, and Jack Lemmon. Warning: foul language.
There ought to be a better way, and in fact there was a better way at one time. It was called “unions”. Corporations have non-disclosure agreements, arbitration agreements, end-user license agreements, and any number of other agreements in legalese meant to tie up individuals one by one and render them powerless against the mighty corporation with its cadre of lawyers on retainer. An individual such as Juli Briskman has to rely on a GoFundMe campaign in order to go to court to ensure her rights are respected, and to be able to pay the fees of attorneys working on her case as well as necessary household expenses while she looks for a new job. She is actually lucky, in that her case has generated sufficient publicity to get people interested in donating to her cause. Most people have to fight on their own, falling back on scanty resources. Unions, as corrupt and inefficient as some of them were, helped keep corporations in check, and now that the unions are almost entirely gone there is no check remaining on the corporations, not with the government in their pockets, and so now they seek to control every aspect of our lives, economic, social, and political.
“. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . .”
― an excerpt from Article I, Section 8 of the United States Constitution.
Recently the pharmaceutical company Allergancut a deal with the St. Regis Mohawk Tribe of upstate New York to hold the patent for one of its drugs in order to protect the company from patent challenges. The reasoning behind the deal is that since Native American tribes have sovereign immunity from some types of lawsuits under the 11th Amendment to the Constitution, Allergan is protecting itself from expensive and sometimes unwarranted litigation relating to its patent. In return, the St. Regis Mohawk Tribe will receive millions of dollars up front, and millions more in royalties. Since this is a new type of arrangement, it’s unclear how well it will hold up in court.
Illustration for an 1881 patent granted to Thomas Edison for an improvement to the incandescent light bulb he had first patented in 1880, itself an improvement built on the work of Canadian inventor Henry Woodward. Edison collected 2,332 patents worldwide, many of them for incremental improvements such as the one pictured here.
Patent infringements and patent challenges are nothing new, but with the explosion in technical innovations, new drugs, and medical devices in the past thirty years or so, the amount of infringement and challenge cases in the courts have exploded as well. Widespread patent trolling is a new phenomenon, tying up court dockets with often tenuous claims by some patent holders that their patent rights have been violated by another party.
The troll in this circumstance is usually an affiliation of lawyers sometimes known as a Non-Practicing Entity (NPE), which does not make or sell anything, but collects patents for the leverage that gives them in either extracting (extorting) licensing fees or lawsuit settlements from other parties. The patents used suit the purpose because they are overly broad and general, leaving plenty of room for interpretation by the courts, and the victims are often small to medium sized businesses which can’t afford the millions in lawyers’ fees and court costs it would take to defend themselves, instead choosing the easier and cheaper route of ponying up the licensing fee to the troll.
It’s hard to find fault with the St. Regis Mohawk Tribe for agreeing to the deal with Allergan. Native American tribes are often poor, their reservations pushed onto marginally productive land, and if they can take advantage of their status as sovereign nations within the United States to make some money, then more power to them. That same sovereign nation status, after all, has usually proved a mockery as European immigrants violated treaty after treaty with the Native Americans in pursuit of land and natural resources, taking what they liked with military force if words would not suffice.
Allergan, on the other hand, is doing what American companies seemingly do best, which is to cleverly exploit a loophole in the system. Whether Allergan is protecting itself from trolls or planning on doing the trolling itself from its newly purchased protected perch, that is yet to be seen. Large companies, such as Apple, can be both targets and perpetrators, though as perpetrators it’s often in the sense of patent infringement rather than trolling.
This cartoon of a “self-operating napkin” machine by Rube Goldberg originally appeared in the September 26, 1931 issue of Collier’s Magazine.
There’s plenty of gray area involved, and that’s where legislators need to step in to more clearly define the lines and reduce the amount of trolling lawsuits. Congress has acted in the past several years by changing the laws in favor of genuine innovators and against NPEs. More needs to be done, such as making the loser in a lawsuit pay the legal fees of both sides if the judge determines that one side has acted with intent to harass and extort the other.
This film of less than two minutes demonstrates Wallace’s endless enthusiasm for Goldbergian contraptions, much to the dismay of his dog, Gromit.
Some states have enacted such legislation, but where the case gets decided in a federal court, such as would be the situation should Allergan get challenged or challenge another party, the proceedings are not as clear due to fluid interpretations of the 11th Amendment. It appears that besides tightening up the rules governing patents, the next step is for Congress and the States to clarify the 11th Amendment to take away the sovereign immunity loophole. It’s unfortunate that Native American tribes would be denied a source of revenue, but patent parking really is a shady deal that needs to be stopped before it goes too far, similar to what has happened with the entrenchment of offshore tax havens for corporations.