On Tuesday of this past week (July 31, 2012), the Missouri Supreme Court ruled that a ballot initiative capping the interest rate of small loans at 36% (including payday loans) will appear on the Missouri general ballot this coming November. This court decision is terrific news for the many poor, working-poor and struggling middle class people who have been victimized by predatory lenders throughout Missouri.
I have previously discussed this hotly contested payday loan court case here. The payday loan industry had attacked this ballot initiative on numerous technical grounds, including constitutional issues, but in its July 31, 2012 decision, the Missouri Supreme Court shot down all of the arguments of the industry, holding that the payday initiative will go on the Missouri ballot in November. Here’s the entire opinion of the Court.
[More . . . ]
We are definitely living in Orwellian times, based on the following article from the Electronic Frontier Foundation, which I am reprinting in its entirety (it is licensed by Creative Commons):
Since the first national security letter statute was passed in 1986, the FBI has issued hundreds of thousands of such letters seeking private telecommunications and financial records of Americans without any prior approval from courts. Indeed, for the period between 2003 and 2006 alone, almost 200,000 requests for private customer information were sought pursuant to various NSL statutes. Prior to 2011, the constitutionality of this legal authority to investigate the records of Americans without court oversight had been challenged in court — as far as we know — exactly one time. EFF is today releasing FBI-redacted briefing from a major new ongoing case in which it is challenging one of the NSL statutes on behalf of a telecommunications company that received an NSL in 2011. Not only does this briefing show that the Department of Justice continues to strongly protect the FBI’s NSL authority, it highlights a startlingly aggressive new tactic used by the Department of Justice: suing NSL recipients who challenge the FBI’s authority, arguing that court challenges to such authority themselves amount to breaking the law.
National security letter statutes — five in all — are controversial laws that allow the FBI to easily bypass courts and issue administrative letters on their own authority to telecommunications companies and financial institutions demanding information about their customers. The NSL statutes permit the FBI to permanently gag service providers from revealing the fact that the demand was made, preventing them from notifying either their customers or the public. While the statute has many deficiencies, one of the core constitutional issues (already recognized by one federal appeals court) is that it turns the First Amendment’s procedural prior restraint doctrine on its head by allowing the FBI to issue a never-ending prior restraint on its own, then requiring the recipient service provider to undertake a legal challenge. Another fundamental problem with the NSL statutes is that courts are all but written out of any part of the process: the FBI can issue demands for records and gag provisions without court authorization, and recipient telecommunications and financial companies have no way to determine whether and how the government might be overreaching or otherwise abusing its authority. Not surprisingly, given these significant structural barriers, legal challenges are extraordinarily rare.
EFF brought its challenge on behalf of its client in May of 2011, raising these and other fundamental due process and First Amendment concerns about the structure of these problematic statutes. In response, the Department of Justice promptly filed a civil complaint against the recipient, alleging that by “stat[ing] its objection to compliance with the provisions of” the NSL by “exercis[ing] its rights under” the NSL statute to challenge the NSL’s legality, the recipient was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.” While it ultimately agreed to a stay, temporarily suspending its suit against the recipient, the government has moved to compel disclosure of the subscriber information and to uphold the gag. The petition to set aside the NSL is currently pending before the United States District Court for the Northern District of California. Whether the recipient will be permitted to speak out about its specific experiences — and whether the FBI will be permitted to issue NSLs, at least in one district — should soon be known.
I am not given to setting out pronouncements like this very often, but in light of the last several years I thought it might be worthwhile to do so on the occasion of the 236th anniversary of our declared independence.
I don’t think in terms of demonstrating my love of country. My affection for my home is simply a given, a background hum, a constant, foundational reality that is reflexively true. This is the house in which I grew up. I know its walls, its ceiling, its floors, the steps to the attic, the verge, and every shadow that moves with the sun through all the windows. I live here; its existence contours my thinking, is the starting place of my feelings.
The house itself is an old friend, a reliable companion, a welcoming space, both mental and physical, that I can no more dislike or reject than I can stop breathing.
But some of the furniture…that’s different.
I am an American.
I don’t have to prove that to anyone. I carry it with me, inside, my cells are suffused with it. I do not have to wear a flag on my lapel, hang one in front of my house, or publicly pledge an oath to it for the convenience of those who question my political sentiments. Anyone who says I should or ought or have to does not understand the nature of what they request or the substance of my refusal to accommodate them. They do not understand that public affirmations like that become a fetish and serve only to divide, to make people pass a test they should—because we are free—never have to take.
[More . . . ]
Last week I attended the annual seminar my law firm (the Simon Law Firm) puts on for the benefit of Legal Services of Eastern Missouri. We’ve done this for almost ten years, and I’m proud to be part of a firm that has raised a total of more than $100,000 for the St. Louis office of Legal Services.
Our lawyers provide counsel, advice and representation to clients in a variety of domestic cases including orders of protection, dissolution of marriage, modifications, paternity establishments and child custody cases. Other legal needs are addressed as well, sometimes by bringing the expertise of lawyers in other specialty practice areas like public benefits, housing or consumer.
This article at Huffpo summarizes seven ways for an American citizen to get detained indefinitely. These concerns are not made up out of thin air. They are based on positions taken by attorneys for Barack Obama’s Department of Justice during the litigation brought by author Chris Hedges and others. Here is Hedges’ recap of why he got involved with the suit:
In January, attorneys Carl Mayer and Bruce Afran asked me to be the lead plaintiff in a lawsuit against President Barack Obama and Defense Secretary Leon Panetta that challenged the harsh provisions of the National Defense Authorization Act (NDAA). We filed the lawsuit, worked for hours on the affidavits, carried out the tedious depositions, prepared the case and went to trial because we did not want to be passive in the face of another egregious assault on basic civil liberties, because resistance is a moral imperative, and because, at the very least, we hoped we could draw attention to the injustice of the law. None of us thought we would win. But every once in a while the gods smile on the damned.
Change.org is a way to get your favorite cause off the ground. Here is the mission of Change.org:
Every day, across the world, people like you start campaigns on Change.org to fight for issues they care about — and the Change.org team works to mobilize people to help them win.
We believe that building momentum for social change globally means empowering citizen activists locally. That’s why anyone, anywhere — from Chicago to Cape Town – can start their own grassroots campaign for change using our organizing platform.
Your campaign can be about anything. From supporting curbside recycling programs to fighting wrongful deportation to protecting against anti-gay bullying, Change.org members start campaigns around thousands of different issues. To start your own campaign, just click here.
Our mission is to build an international network of people empowered to fight for what’s right locally, nationally, and globally. We hope you’ll join us.
Change.org is not all talk. The website lists a long strong of successful causes that germinated at the site.
The website Arbitration Nation has reported on the cognitive dissonance experienced by businesses when it comes to arbitration of commercial disputes. Based on a new survey, only 60% of companies arbitrated commercial disputes in 2011, compared to 85% in 1997. Why aren’t businesses clamoring to arbitrate their disputes with other businesses?
The most common reasons given by survey respondents (general counsel and senior corporate lawyers) for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration. The study, conducted through Cornell’s Survey Research Institute, was co-sponsored by Pepperdine’s Straus Institute for Dispute Resolution, Cornell University, and the International Institute for Conflict Prevention & Resolution (CPR). (Its results are not currently available on-line.)
Arbitration Nation noted that while businesses are increasingly avoiding arbitration, the United States Supreme Court is making it more making it increasingly difficult to avoid the application of harsh arbitration contracts. Of course, most of the new court holdings enforcing pre-dispute mandatory arbitration clauses victimize non-businesses, such as consumers, employees and victims of civil rights abuses. Arbitration Nation links to a new article by Thomas Stipanowich that proposes a rating and ranking system for arbitration processes. We already have ample evidence exempt these group from mandatory arbitration. It is palpably clear that big businesses are using mandatory arbitration to take advantage of consumers, employees and victims of civil rights abuses, using their disparate bargaining power. They are using “arbitration” as a method of gaining immunity for their illegal actions. They are doing this, even as they vote with their feet that they don’t like arbitration for themselves.
Instead of gathering more data, we completely carve out consumers, employees and civil rights plaintiffs from being required to arbitrate. Sure, give them the option of arbitrating a case, but only after a dispute has arisen; never force them into mandatory, binding, pre-dispute arbitration. What I have just described is the approach of the Arbitration Fairness Act.
Robert Reich argues that it is grossly unfair that Mitt Romney earns $21M, but pays only 13% in taxes. He argues that many private-equity, hedge-fund, and pension-fund managers are often playing “con games” that screw the American taxpayers. He offers several solutions:
1. Don’t allow private-equity managers to treat their income as capital gains, taxed at 15 percent. Treat this income as ordinary income.
2. Hold them to a “due diligence” standard, so the Pension Guaranty Corporation can claw back bonuses.
3. Raise the capital-gains rate to match the tax rate on ordinary income.
4. Resurrect Glass-Steagall.