How to destroy a perfectly good real estate recording system.

What would you think if an outside enemy systematically attacked hundreds of U.S. county real estate recording offices, making it impossible for most of us to know who owns what legal rights regarding real estate anymore.   Imagine that our courts, from coast to coast, have slowed to a crawl because the enemy had nefariously dismantled a system that had worked quite well for centuries. Imagine that, also for centuries, the filing fees paid for recording real estate interests had funded numerous important local government functions, but that the outside enemy destroyed this source of income, causing many government functions to flounder. Image that this enemy then set up its own real estate "information" offices that gave lots of incomplete information, often refusing to provide any information at all, and did so with reprehensible customer service. Imagine one more thing:  This has all really happened, but it was not caused by an outside enemy. Rather, all of this has happened regarding 60% of all home mortgages, and the entities doing the damage are America's banks, who have conspired to create an entity called MERS, designed to circumvent government real estate recording offices, at a high cost to everyone who relies on the integrity of our real estate recording system. If you want to know the specifics, here is a terrific article by law professor Chris Peterson: "Two Faces: Demystifying the Mortgage Electronic Registry System's Land Title Theory." This damage to our recording system is relatively new--it's been happening for a bit more than ten years, but the theme is now familiar to many of us: Corporate players taking over government functions and, in the process, rigging the playing field against the interests of ordinary Americans. The challenge now is to see whether the courts across America can recognize MERS for what it is, a despicable scam that has clouded the real estate titles of millions of people in an effort to rev up private corporate profits.   The courts are now clogged with many cases attempting to deal with the problems caused by MERS; you'll want to keep your eye on this story to see whether the courts will slap down the banks.

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The purported “free market”

Glenn Greenwald's comments regarding the vague terms that control our public policy provoked me to revisit the extremely vague term, "free market."   “Free market” is a prime example of a vague term that is used for formulating anti-public policy. It is routinely suggested by our alleged leaders that “free market” refers to the freedom to choose where to spend one’s money. On a day to day basis, this idea seems reasonable.  It evokes the image of people selecting fruits and vegetables at an open-air produce market. Modern "free market” policies extend far beyond individual buying decisions, however. In practice, government policies favoring the “free market” prohibit government from “freely” governing.  “Free market” policies allow those with large amounts of money to usurp government policy.  Policies that favor a wide-open "free market" take political power from ordinary citizens and hand that power to govern to large private for-profit corporations and wealthy individuals. “Free market” is a clever phrase for those who want an economic market that amounts to a baseball game without umpires, a market where corporations “freely” monopolize entire industries by scooping up the competitors, immunizing themselves from liability by buying favorable new laws, jacking up the prices and then giving the consumers the “freedom” to buy from among limited high-priced options.  Modern "free market" policies give financially powerful entities the "freedom" to operate free of any government oversight, and the "freedom" to tell consumers to take-it-or-leave-it. [More . . . ]

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The inherent danger of complex laws and regulations

We often hear big businesses complaining about regulations, but if those regulations are complex enough, they turn into giant opportunities for big business. All you need is a smart team of lawyers in order to drive a big truck through a tiny loophole or exemption, as explained by Kevin Drum of Mother Jones:

[N]o one should take too seriously Republican complaints about burdensome regulations strangling the economy. The truth is that most reformers prefer fairly simple rules. In the tax world, they'd prefer to simply tax all income. In the environmental world, they'd prefer to set firm limits for pollutants. In the financial world, they'd prefer blunt rules that cut off risky activity at its knees.

But businesses don't like simple rules, because simple rules are hard to evade. So they lobby endlessly for exemptions both big and small. This is why we end up with tax subsidies for bow-and-arrow makers. It's why we end up with environmental rules that treat a hundred different industries a hundred different ways. It's why financial regulators don't enact simple leverage rules or place firm asset caps on firm size. Those would be hard to get around and might genuinely eat into bank profits. Complex rules, conversely, are the meat and drink of $500-per-hour lawyers and whiz kid engineers. If the rules are complicated enough, smart lawyers can always find ways around them. And American corporations employ lots of smart lawyers.

In an earlier post, I had cited this quote: "One can make money only if there is real risk based on actual uncertainty, and without uncertainty there is no risk.' To the extent that we have simple and understandable rules, it is harder to hide unfair business practices. There is great value to uncertainty--to unwieldy and vague legislation--to those who have teams of savvy lawyers and accountants whose job it is to navigate and circumvent the purported intent of the legislation. That's because most of us don't have the time, attention, energy or political clout to rein in those who create these legislative monstrosities. We're too busy working 8 or more hours per day at the office, then trying to be good parents, trying to fix the house or car, and maybe relaxing for an hour or two per night. How many of us are interested or able of plowing through 2,000 page legislative packages or regulations in our "free time," or trying to make sense of complex court decisions that also struggle with these legislative morasses? As Kevin Drum writes:

We could probably cut the size of agency regulations by 10 times if we wanted to. But business don't want to. Sure, they'd prefer no regulation at all, but they know that's not in the cards. So in public they bemoan complexity, but in private they fight endlessly for more of it. To their lawyers, every single extra page is an extra opportunity to make more money.

It makes one think that we need a law to outlaw complex laws.  We need a law that all laws should be written in plain English and that they must be understandable by high school graduates.  Those who insist that they need something that is not reasonably understandable should be presumed to benefit a special interest and presumed to be opposed to the public good.  Complex laws are huge red flags, regardless of the title of the law or the way politicians assure us that these laws will benefit the public. Indigestibly complex laws almost always signal that ordinary Americans are getting screwed.

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Shock Doctrine: Take advantage of crises to ram through unpopular policies

Naomi Klein's "Shock Doctrine" is illustrated in this short video. The idea is that political leaders often take advantage of natural and manufactured crises--which cause many folks to become infantilized in response to the trauma--to ram through unpopular policies, quite often "free market" initiatives. Klein's idea has intrigued many, but also received mixed reviews from economists.

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Terrorist = a Muslim who commits violence

Glenn Greenwald points out that Americans are commonly persuaded and controlled through the use of vague terms. One example is the word "terrorism," which tends to be applied only where the person committing violence is a Muslim and not when non-Muslims commit comparable acts. A "militant" has come to mean any person who dies when an American weapon explodes. "Class warfare" and "Civil liberties" are other commonly used vague terms that are actually used as "tools for misleading political arguments." Another such vague term is "rule of law," which originally referred to the idea that "we are all equally bound to a common set of rules, regardless of power position, or prestige." It originally meant that "nobody is above the law or below the law." Citing the work of Thomas Carruthers, Greenwald noted that the biggest challenge is to prevent elites from living above the rule of law. The founding fathers, who personally "loved inequality," agreed that a central requirement for the new country is that everyone would comport with the law; without this requirement, they agreed that the country would not be "legitimate and just." Greenwald explained that with regard to "rule of law," things aren't working out so well in modern day America. The biggest problem is that "we no longer believe in the principle itself." With regard to journalists (see below), they now tend to be situated as insiders rather than outsider watchdogs who, in less dysfunctional times, embraced the motto: "Afflict the powerful, comfort the powerless." Greenwald has been out and about, promoting his new book, With Liberty and Justice for Some. For many additional videos of his talks, see here.

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