an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Occupy Wall Street protests continue to grow, and to gain support from public intellectuals. Joe Stiglitz, Anne Marie Slaughter, and Paul Krugman are the latest luminaries to praise the cause. The movement has also provoked derision. Let's consider the latest Norquist/Limbaugh memes as the protest nears the one-month mark:
1) "They're just spoiled hippies who can't get a job." A quick glance at the "We are the 99%" tumblr could easily dispel this notion. The economic suffering in this country is deep and broad. As one news story put it, "one in three Americans would be unable to make their mortgage or rent payment beyond one month if they lost their job." Even if the most down-and-out people are too poor or busy to get to Wall Street (or the hundreds of other actions now taking place), many think of the OWS crowd as speaking for them.
2) "They should be in Washington, not Wall Street." Never fear, OccupyKStreet is here. More seriously, this criticism misses the entire point of the protest. Wall Street and Washington have fused. Both politicians and the Fed gave enormous subsidies to large Wall Street firms, while asking almost nothing in return. You can read Larry Lessig's Republic, Lost, or Kwak & Johnson's Thirteen Bankers for all the gritty details. For now, let's just say that entities that borrow at close to zero percent, lend at 4.5 to 20+%, and pay top managers billions in salary and bonuses, are not exactly Steve Jobs-level entrepreneurs. Rather, they're part of a corrupt revolving door system that sends a favored group back and forth between government and business. We'd do better simply to pay off this shadow elite directly than to subsidize the trillion dollar schemes that maintain the illusion that our banking system is independent.
This is not a partisan critique. Like the OWS protesters, I have focused on the role of the Democratic party in covertly supporting a system that is openly applauded by establishment GOP figures. As Matt Stoller observes, "Rubinites still dominate Democratic policymaking — Larry Summers, Jason Furman, Treasury Secretary Timothy Geithner, Gene Sperling are all Rubin acolytes. Jack Lew, the current Office of Management and Budget director, is from Citigroup; Peter Orzag, the former OMB director, went to Citigroup. White House chief of staff Bill Daley is a JP Morgan man."
Principled libertarians have also offered Hayekian critiques of the "Government Sachs" nexus. Russ Roberts at the Mercatus Institute has perceptively recognized the close ties between the US state and Wall Street. Amar Bhide has offered a brilliant Hayekian critique of the concentration of power in large financial institutions. From the opposite end of the political spectrum, Michael Hudson pithily observes that “economic planning has passed from government to the financial sector.” Individuals with a wide range of political commitments want to break up megabanks, or engage in more fundamental reform than contemplated in Dodd-Frank. OWS is protesting a form of corporatism that privatizes gains and socializes losses. Anyone who opposes welfare for the poorest should be passionately committed to a program that would cut off the richest from the trough of implicit and explicit subsidy that is at the core of our financial system.
3) "They're breaking the law." Were we back in the 1960s, I could perhaps understand how a claque of law-and-order Archie Bunkers could fulminate against the Yippies trying to levitate the Pentagon. If order is your highest social goal, the spontaneous transformation of a soulless, stone-covered city block in Lower Manhattan into a festive site of music and education may spark a frisson. But what's different today is that the targets of the protest are so clearly lawbreakers themselves. In a 1993 article, economists Akerlof and Romer proposed that “an economic underground can come to life if firms have an incentive to go broke for profit at society's expense (to loot) instead of to go for broke (to gamble on success).” They called this “bankruptcy for profit,” and its main features have a depressingly familiar ring. As William K. Black explains in his theory of "control fraud," the key to business success on Wall Street has been speculative ventures implicitly or explicitly backed by the government or the Fed. As Black has argued repeatedly, to make the scheme work, there must be some form of insurance—--such as public deposit insurance or private policies—--that promises to “make whole” those whose funds are lost in a speculative endeavor. Second, there must seem to be, on paper, some valuation that makes the entity’s investments seem worthwhile. Insurers are not stupid; they demand some evidence that the firm has an overall net worth sufficient to permit it to meet future obligations. These demands lead to the third element: a systematic subversion of the normal tools used to assess the stability and soundness of going concerns. Accountants and auditors are supposed to impose transparency on a firm’s accounts, but can easily be coopted into “aggressive” statements of positions. The looting leadership has a variety of mechanisms at its disposal. Accounting frauds can vastly overstate the value of current holdings. Opacity hides transfers of favors that justify contracts that are irrational on their face.
In a long series of posts, I have described the shady dealings---the special purpose entities, the accounting fraud, the daisy chain of favors leading to CDO sales, the fake insurance (aka AIG-underwritten CDS's), the epidemic of foreclosure fraud---that generated countless Wall Street fortunes over the past decade. Wall Street's winners are now trying to leverage those gains into permanent political victories, both to entrench the system of favors that helped them succeed and to cut the "entitlements" that generate rival claims to the public weal. OWS is trying to stop the illicit gains of the past decade from permanently deforming our economy.
As the protesters watch megabanks grab thousands of properties via foreclosures, often through processes that are utterly lawless, they think it equitable and just that they get to claim some small parcel of lower Manhattan as a center for their own deliberative processes. Giving them this space is the least that New York's increasingly plutocratic and petulant Mayor Bloomberg can do.
The relative inequality point initially intrigued me. As Jared Diamond has noted, "The average rates at which people consume resources like oil and metals, and produce wastes like plastics and greenhouse gases, are about 32 times higher in North America, Western Europe, Japan and Australia than they are in the developing world." But I no longer see a rational connection between the vast fortunes made by those at the top and a process of globalization that either balances consumption or creates rising living standards for all.
Yes, there are serious moral questions raised by global inequality that renders the average American better off than 90% of the population in poorer countries. As I noted earlier, a soi-disant Green Tory might advocate for more money circulating in the economy’s stratosphere: a luxury handbag costing $80,000 may have less of a carbon footprint than, say, 32 Tata Nanos.
But for anyone truly concerned about the environment, it would be far better to see the handbag consumption turned to sustainable energy investment, rather than continuing as a diversion of spending power away from the poor. Moreover, if domestic and international inequality continues at current levels, it will reinforce the US recession. Even for those who think the average US citizen is too rich anyway, the probable political consequences of perpetual stagnation are frightening. Money is being drained away from an ordinary economy into an economic stratosphere whose denizens appear increasingly out-of-touch with the workers who feed, defend, and otherwise serve them.
5) "They have no demands!" This is the most bizarre criticism of OWS as a social movement. As one organizer puts it, ‘We haven’t had a shortage of demands and solutions. We’ve had a shortage of mass movements.’ Moreover, it's pretty predictable what will happen once demands get issued officially. If they're too ambitious, the movement will be dismissed as socialism. If they're moderate, it will be dismissed as stealth Obamaism, and the protesters will be condescendingly asked "why can't you just participate in the political system as it is?"
The protesters’ deliberation about what demands to make (or goals to set) is laudable. It also reflects successful aspects of the pro-life movement. As Mike Konczal notes, "Beliefs about abortion are often underdeveloped, incoherent, and inconsistent until individuals become actively engaged with the movement. The process of conviction is the result of mobilization, not a necessary prerequisite for it.” Deciding how to exercise political power in a distributed and democratic way in the 21st century is a huge challenge. I am certain there will be divisions over what issues to prioritize, and how to balance global and local claims. Certainly that process is closer to a democratic ideal than a unified Jacobin cry to drown government in a bathtub.
The protesters realize that they, like much of the bottom 90% of society, are on an economic playing field that is tilted against them. They feel that normal channels of political change are blocked (especially given corporate influence over the Democratic party, the usual target of egalitarian reformist energy). Addressing these issues will take a lot of thought, reflection, and debate.
In conclusion, I just want to quote from a comment of the always thoughtful Patrick S. O'Donnell:
The protesters are participating in a “social movement,” defined as “a summary expression for a variety of collective efforts by the relatively powerless to exercise historical power.” (Richard Flacks) In protesting, social movement actors “break with, step out of, stop complying with, the terms and conditions of their accustomed daily lives.” In doing so, they attempt to influence their life circumstances and the life circumstances of those similarly situated, and this often entails considerable risks and costs. In a sclerotic democracy, we should give thanks to those willing to assume such risks and costs. These protests are in part and for some democratic forms of resistance in dramatic and urgent response to grave threats to accustomed, shared patterns of everyday living (even if some of the preconditions and conditions of such living were, and are, as we saw above, disturbing). Existing ways of life and cherished values are being undermined or threatened such that protests by social movements are the only political means available for bringing the attention needed to appreciate the gravity of such threats.
In many chilling ways, old social contracts are being broken, with nothing provided in their place. Old models of cooperation between the state and the market are breaking down, as incidents ranging from prescription drug shortages to food safety failures show. The global financial system teeters on the brink of meltdown thanks to a potential "Lehman style event" that regulators still have not managed to adequately monitor, let alone circumvent. These are urgent problems that an entrenched business-government elite has addressed listlessly, if at all. (This is not meant to criticize many well-intentioned front-line personnel, just to note that revolving door dynamics for political appointees and woefully inadequate funding often render their work a mere pantomime of effective enforcement action.) Occupy Wall Street has moral authority because it is addressing these problems. Its critics ought to be joining that process.
PS: A final reflection on the system of justice OWS is commenting on: