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Posted by steveneidman on February 22, 2010

Mo Vaughn’s Home Runs

By Amanda Fung

Six months after Mo Vaughn set up Omni New York in 2004, the fledgling real estate firm struck, snapping up a 286-unit affordable housing complex in the Bronx. By the end of its second year, Omni New York had tripled its holdings to a total of 869 units.

As far as most people were concerned, however, Mr. Vaughn was still a Mets first baseman, even though his baseball career ended in 2003.

“I wanted people to take us seriously and know that we were the real deal,” says Mr. Vaughn, who is seated at a Brooklyn eatery with his partner, Eugene Schneur, explaining his transition from baseball hero to real estate mogul—albeit one whose new uniform includes not just sharply tailored suits but large diamond-encrusted hoop earrings. “I wanted respect.”

These days he’s got it—not as the American League’s former MVP but as the managing director of one of the city’s best-regarded and most active buyers and managers of affordable housing. Along the way, Mr. Vaughn and company have earned a place as one of the city’s top choices for turning around distressed residential properties.

Today Omni ranks as a midsize firm capable of competing with the bigger players, swallowing up sprawling properties such as the decrepit 14-building, 416-unit complex in the South Bronx that Omni bought the mortgage on at a foreclosure auction—with the city’s blessing—in December. “Given their track record, they are ideally suited to deal with troubled projects,” says NYC Housing Preservation and Development Commissioner Rafael Cestero.

Since 2004, Omni has spent over $500 million buying and rehabilitating 21 affordable-housing buildings with a total of nearly 3,500 units in the Bronx, Brooklyn, Long Island and as far away as Wyoming. The majority of the buildings they own and manage are Section 8 buildings, whose low-income tenants rely on federal vouchers to help pay their rent. Omni finances its deals using tax-exempt bonds and the proceeds from the sale of low-income-housing tax credits.

Making money and doing good

That is exactly what it did when it acquired the Noble Drew Ali Plaza in the Brownsville section of Brooklyn—the 2007 deal that put Omni on the map. At the time, the five-building complex with 358 units was a haven for drug dealers and addicts, its hallways urine-soaked and graffiti-lined and its apartments crumbling.

Omni purchased the property out of bankruptcy for $23 million with financing from various city agencies, including HPD, as well as federal grants. The developer then poured $25 million into refurbishing everything from new elevators and energy-saving appliances to 326 security cameras. After two years of work, Messrs. Schneur and Vaughn capped off the revitalization by giving the complex a new handle: “The Plaza.”

“Noble Drew Ali, without a doubt, was one of the most complicated projects [we've seen],” says Mr. Cestero. “They restored it to a quality place for people to live by taking a very aggressive approach to renovating buildings.”

Today Mr. Vaughn, who played for the Boston Red Sox in the 1990s, spends most of his time on the operations side of the business, working with Omni’s construction, management and maintenance teams, while Mr. Schneur focuses on the dealmaking.

“I’m the eyes,” said Mr. Vaughn, who got his start in real estate by investing in Manhattan nightclubs with help from Mr. Schneur, then his attorney. “I make sure that everything that needs to get done gets done.”

In fact, Omni was his idea. In Ohio, where Mr. Vaughn spent his off-seasons, he met a developer successfully buying affordable housing using tax credits and decided to try the concept out in New York.

“They are smart people,” says Lisa Gomez, executive vice president of affordable housing developer L+M Development Partners. “They get how to do affordable housing and look to the double bottom line [of making money and doing good].”

Size doesn’t matter

But competition for distressed properties is increasing as the drought in luxury housing deals drags on. Meanwhile, the price of tax credits—a key currency in such deals—has plummeted by nearly a third, forcing Omni to scramble for more state and city subsidies to fill the gap.

“We used to be able to get deals done without subsidies,” says Mr. Schneur.

Omni’s rapid growth also presents challenges. By year’s end, it expects to have close to 5,000 units. For a firm whose two founders visited their early holdings as many as four times a week, the sheer scale of the portfolio now makes maintaining that degree of oversight difficult—even with the aid of a staff at its midtown headquarters that now numbers about 120.

“We can’t cut corners and be complacent,” says Mr. Vaughn. “If we continue to be humble and work hard, we will be fine.”

In fact, Mr. Vaughn and his partner are stepping up their act. Prior to the market collapse, Omni had been priced out of Manhattan. Mr. Schneur recalls one deal where Omni bid $20 million for a Manhattan building that went for $30 million.

Last month, Omni had better luck, buying its first Manhattan properties—two Section 8 buildings in Harlem with 53 units—for $5.5 million. Now, as a number of big, financially troubled properties, including Lawrence Gluck’s 1,230-unit Riverton in Harlem, make their way through foreclosure, they are weighing a bid. Even Manhattan’s vast middle-income oasis Stuyvesant Town-Peter Cooper Village looms as a potential target.

“Size doesn’t matter,” says Mr. Vaughn. “They fit within our philosophy of preserving decent affordable housing.”

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Posted by steveneidman on February 16, 2010

How a New Jobless Era Will Transform America

 

Image credit: Fredrik Broden

By Don Peck

 

 

 

 

 

 

 

 

 

How should we characterize the economic period we have now entered? After nearly two brutal years, the Great Recession appears to be over, at least technically. Yet a return to normalcy seems far off. By some measures, each recession since the 1980s has retreated more slowly than the one before it. In one sense, we never fully recovered from the last one, in 2001: the share of the civilian population with a job never returned to its previous peak before this downturn began, and incomes were stagnant throughout the decade. Still, the weakness that lingered through much of the 2000s shouldn’t be confused with the trauma of the past two years, a trauma that will remain heavy for quite some time.

The unemployment rate hit 10 percent in October, and there are good reasons to believe that by 2011, 2012, even 2014, it will have declined only a little. Late last year, the average duration of unemployment surpassed six months, the first time that has happened since 1948, when the Bureau of Labor Statistics began tracking that number. As of this writing, for every open job in the U.S., six people are actively looking for work. 

All of these figures understate the magnitude of the jobs crisis. The broadest measure of unemployment and underemployment (which includes people who want to work but have stopped actively searching for a job, along with those who want full-time jobs but can find only part-time work) reached 17.4 percent in October, which appears to be the highest figure since the 1930s. And for large swaths of society—young adults, men, minorities—that figure was much higher (among teenagers, for instance, even the narrowest measure of unemployment stood at roughly 27 percent). One recent survey showed that 44 percent of families had experienced a job loss, a reduction in hours, or a pay cut in the past year. 

There is unemployment, a brief and relatively routine transitional state that results from the rise and fall of companies in any economy, and there is unemployment—chronic, all-consuming. The former is a necessary lubricant in any engine of economic growth. The latter is a pestilence that slowly eats away at people, families, and, if it spreads widely enough, the fabric of society. Indeed, history suggests that it is perhaps society’s most noxious ill. 

The worst effects of pervasive joblessness—on family, politics, society—take time to incubate, and they show themselves only slowly. But ultimately, they leave deep marks that endure long after boom times have returned. Some of these marks are just now becoming visible, and even if the economy magically and fully recovers tomorrow, new ones will continue to appear. The longer our economic slump lasts, the deeper they’ll be. 

If it persists much longer, this era of high joblessness will likely change the life course and character of a generation of young adults—and quite possibly those of the children behind them as well. It will leave an indelible imprint on many blue-collar white men—and on white culture. It could change the nature of modern marriage, and also cripple marriage as an institution in many communities. It may already be plunging many inner cities into a kind of despair and dysfunction not seen for decades. Ultimately, it is likely to warp our politics, our culture, and the character of our society for years. 

The Long Road Ahead

 

Since last spring, when fears of economic apocalypse began to ebb, we’ve been treated to an alphabet soup of predictions about the recovery. Various economists have suggested that it might look like a V (a strong and rapid rebound), a U (slower), a W (reflecting the possibility of a double-dip recession), or, most alarming, an L (no recovery in demand or jobs for years: a lost decade). This summer, with all the good letters already taken, the former labor secretary Robert Reich wrote on his blog that the recovery might actually be shaped like an X (the imagery is elusive, but Reich’s argument was that there can be no recovery until we find an entirely new model of economic growth). 

No one knows what shape the recovery will take. The economy grew at an annual rate of 2.2 percent in the third quarter of last year, the first increase since the second quarter of 2008. If economic growth continues to pick up, substantial job growth will eventually follow. But there are many reasons to doubt the durability of the economic turnaround, and the speed with which jobs will return. 

Historically, financial crises have spawned long periods of economic malaise, and this crisis, so far, has been true to form. Despite the bailouts, many banks’ balance sheets remain weak; more than 140 banks failed in 2009. As a result, banks have kept lending standards tight, frustrating the efforts of small businesses—which have accounted for almost half of all job losses—to invest or rehire. Exports seem unlikely to provide much of a boost; although China, India, Brazil, and some other emerging markets are growing quickly again, Europe and Japan—both major markets for U.S. exports—remain weak. And in any case, exports make up only about 13 percent of total U.S. production; even if they were to grow quickly, the impact would be muted. 

Most recessions end when people start spending again, but for the foreseeable future, U.S. consumer demand is unlikely to propel strong economic growth. As of November, one in seven mortgages was delinquent, up from one in 10 a year earlier. As many as one in four houses may now be underwater, and the ratio of household debt to GDP, about 65 percent in the mid-1990s, is roughly 100 percent today. It is not merely animal spirits that are keeping people from spending freely (though those spirits are dour). Heavy debt and large losses of wealth have forced spending onto a lower path. 

So what is the engine that will pull the U.S. back onto a strong growth path? That turns out to be a hard question. The New York Times columnist Paul Krugman, who fears a lost decade, said in a lecture at the London School of Economics last summer that he has “no idea” how the economy could quickly return to strong, sustainable growth. Mark Zandi, the chief economist at Moody’s Economy.com, told the Associated Press last fall, “I think the unemployment rate will be permanently higher, or at least higher for the foreseeable future. The collective psyche has changed as a result of what we’ve been through. And we’re going to be different as a result.” 

One big reason that the economy stabilized last summer and fall is the stimulus; the Congressional Budget Office estimates that without the stimulus, growth would have been anywhere from 1.2 to 3.2 percentage points lower in the third quarter of 2009. The stimulus will continue to trickle into the economy for the next couple of years, but as a concentrated force, it’s largely spent. Christina Romer, the chair of President Obama’s Council of Economic Advisers, said last fall, “By mid-2010, fiscal stimulus will likely be contributing little to further growth,” adding that she didn’t expect unemployment to fall significantly until 2011. That prediction has since been echoed, more or less, by the Federal Reserve and Goldman Sachs. 

The economy now sits in a hole more than 10 million jobs deep—that’s the number required to get back to 5 percent unemployment, the rate we had before the recession started, and one that’s been more or less typical for a generation. And because the population is growing and new people are continually coming onto the job market, we need to produce roughly 1.5 million new jobs a year—about 125,000 a month—just to keep from sinking deeper. 

Even if the economy were to immediately begin producing 600,000 jobs a month—more than double the pace of the mid-to-late 1990s, when job growth was strong—it would take roughly two years to dig ourselves out of the hole we’re in. The economy could add jobs that fast, or even faster—job growth is theoretically limited only by labor supply, and a lot more labor is sitting idle today than usual. But the U.S. hasn’t seen that pace of sustained employment growth in more than 30 years. And given the particulars of this recession, matching idle workers with new jobs—even once economic growth picks up—seems likely to be a particularly slow and challenging process. 

The construction and finance industries, bloated by a decade-long housing bubble, are unlikely to regain their former share of the economy, and as a result many out-of-work finance professionals and construction workers won’t be able to simply pick up where they left off when growth returns—they’ll need to retrain and find new careers. (For different reasons, the same might be said of many media professionals and auto workers.) And even within industries that are likely to bounce back smartly, temporary layoffs have generally given way to the permanent elimination of jobs, the result of workplace restructuring. Manufacturing jobs have of course been moving overseas for decades, and still are; but recently, the outsourcing of much white-collar work has become possible. Companies that have cut domestic payrolls to the bone in this recession may choose to rebuild them in Shanghai, Guangzhou, or Bangalore, accelerating off-shoring decisions that otherwise might have occurred over many years. 

New jobs will come open in the U.S. But many will have different skill requirements than the old ones. “In a sense,” says Gary Burtless, a labor economist at the Brookings Institution, “every time someone’s laid off now, they need to start all over. They don’t even know what industry they’ll be in next.” And as a spell of unemployment lengthens, skills erode and behavior tends to change, leaving some people unqualified even for work they once did well. 

Ultimately, innovation is what allows an economy to grow quickly and create new jobs as old ones obsolesce and disappear. Typically, one salutary side effect of recessions is that they eventually spur booms in innovation. Some laid-off employees become entrepreneurs, working on ideas that have been ignored by corporate bureaucracies, while sclerotic firms in declining industries fail, making way for nimbler enterprises. But according to the economist Edmund Phelps, the innovative potential of the U.S. economy looks limited today. In a recent Harvard Business Review article, he and his co-author, Leo Tilman, argue that dynamism in the U.S. has actually been in decline for a decade; with the housing bubble fueling easy (but unsustainable) growth for much of that time, we just didn’t notice. Phelps and Tilman finger several culprits: a patent system that’s become stifling; an increasingly myopic focus among public companies on quarterly results, rather than long-term value creation; and, not least, a financial industry that for a generation has focused its talent and resources not on funding business innovation, but on proprietary trading, regulatory arbitrage, and arcane financial engineering. None of these problems is likely to disappear quickly. Phelps, who won a Nobel Prize for his work on the “natural” rate of unemployment, believes that until they do disappear, the new floor for unemployment is likely to be between 6.5 percent and 7.5 percent, even once “recovery” is complete. 

It’s likely, then, that for the next several years or more, the jobs environment will more closely resemble today’s environment than that of 2006 or 2007—or for that matter, the environment to which we were accustomed for a generation. Heidi Shierholz, an economist at the Economic Policy Institute, notes that if the recovery follows the same basic path as the last two (in 1991 and 2001), unemployment will stand at roughly 8 percent in 2014. 

“We haven’t seen anything like this before: a really deep recession combined with a really extended period, maybe as much as eight years, all told, of highly elevated unemployment,” Shierholz told me. “We’re about to see a big national experiment on stress.” 

The Recession and America’s Youth

 

“I’m definitely seeing a lot of the older generation saying, ‘Oh, this [recession] is so awful,’” Robert Sherman, a 2009 graduate of Syracuse University, told The New York Times in July. “But my generation isn’t getting as depressed and uptight.” Sherman had recently turned down a $50,000-a-year job at a consulting firm, after careful deliberation with his parents, because he hadn’t connected well with his potential bosses. Instead he was doing odd jobs and trying to get a couple of tech companies off the ground. “The economy will rebound,” he said. 

Over the past two generations, particularly among many college grads, the 20s have become a sort of netherworld between adolescence and adulthood. Job-switching is common, and with it, periods of voluntary, transitional unemployment. And as marriage and parenthood have receded farther into the future, the first years after college have become, arguably, more carefree. In this recession, the term funemployment has gained some currency among single 20-somethings, prompting a small raft of youth-culture stories in the Los Angeles Times and San Francisco Weekly, on Gawker, and in other venues.

Most of the people interviewed in these stories seem merely to be trying to stay positive and make the best of a bad situation. They note that it’s a good time to reevaluate career choices; that since joblessness is now so common among their peers, it has lost much of its stigma; and that since they don’t have mortgages or kids, they have flexibility, and in this respect, they are lucky. All of this sounds sensible enough—it is intuitive to think that youth will be spared the worst of the recession’s scars. 

But in fact a whole generation of young adults is likely to see its life chances permanently diminished by this recession. Lisa Kahn, an economist at Yale, has studied the impact of recessions on the lifetime earnings of young workers. In one recent study, she followed the career paths of white men who graduated from college between 1979 and 1989. She found that, all else equal, for every one-percentage-point increase in the national unemployment rate, the starting income of new graduates fell by as much as 7 percent; the unluckiest graduates of the decade, who emerged into the teeth of the 1981–82 recession, made roughly 25 percent less in their first year than graduates who stepped into boom times. 

But what’s truly remarkable is the persistence of the earnings gap. Five, 10, 15 years after graduation, after untold promotions and career changes spanning booms and busts, the unlucky graduates never closed the gap. Seventeen years after graduation, those who had entered the workforce during inhospitable times were still earning 10 percent less on average than those who had emerged into a more bountiful climate. When you add up all the earnings losses over the years, Kahn says, it’s as if the lucky graduates had been given a gift of about $100,000, adjusted for inflation, immediately upon graduation—or, alternatively, as if the unlucky ones had been saddled with a debt of the same size. 

When Kahn looked more closely at the unlucky graduates at mid-career, she found some surprising characteristics. They were significantly less likely to work in professional occupations or other prestigious spheres. And they clung more tightly to their jobs: average job tenure was unusually long. People who entered the workforce during the recession “didn’t switch jobs as much, and particularly for young workers, that’s how you increase wages,” Kahn told me. This behavior may have resulted from a lingering risk aversion, born of a tough start. But a lack of opportunities may have played a larger role, she said: when you’re forced to start work in a particularly low-level job or unsexy career, it’s easy for other employers to dismiss you as having low potential. Moving up, or moving on to something different and better, becomes more difficult. 

“Graduates’ first jobs have an inordinate impact on their career path and [lifetime earnings],” wrote Austan Goolsbee, now a member of President Obama’s Council of Economic Advisers, in The New York Times in 2006. “People essentially cannot close the wage gap by working their way up the company hierarchy. While they may work their way up, the people who started above them do, too. They don’t catch up.” Recent research suggests that as much as two-thirds of real lifetime wage growth typically occurs in the first 10 years of a career. After that, as people start families and their career paths lengthen and solidify, jumping the tracks becomes harder. 

This job environment is not one in which fast-track jobs are plentiful, to say the least. According to the National Association of Colleges and Employers, job offers to graduating seniors declined 21 percent last year, and are expected to decline another 7 percent this year. Last spring, in the San Francisco Bay Area, an organization called JobNob began holding networking happy hours to try to match college graduates with start-up companies looking primarily for unpaid labor. Julie Greenberg, a co-founder of JobNob, says that at the first event, on May 7, she expected perhaps 30 people, but 300 showed up. New graduates didn’t have much of a chance; most of the people there had several years of work experience—quite a lot were 30-somethings—and some had more than one degree. JobNob has since held events for alumni of Stanford, Berkeley, and Harvard; all have been well attended (at the Harvard event, Greenberg tried to restrict attendance to 75, but about 100 people managed to get in), and all have been dominated by people with significant work experience. 

When experienced workers holding prestigious degrees are taking unpaid internships, not much is left for newly minted B.A.s. Yet if those same B.A.s don’t find purchase in the job market, they’ll soon have to compete with a fresh class of graduates—ones without white space on their résumé to explain. This is a tough squeeze to escape, and it only gets tighter over time. 

Strong evidence suggests that people who don’t find solid roots in the job market within a year or two have a particularly hard time righting themselves. In part, that’s because many of them become different—and damaged—people. Krysia Mossakowski, a sociologist at the University of Miami, has found that in young adults, long bouts of unemployment provoke long-lasting changes in behavior and mental health. “Some people say, ‘Oh, well, they’re young, they’re in and out of the workforce, so unemployment shouldn’t matter much psychologically,’” Mossakowski told me. “But that isn’t true.” 

Examining national longitudinal data, Mossakowski has found that people who were unemployed for long periods in their teens or early 20s are far more likely to develop a habit of heavy drinking (five or more drinks in one sitting) by the time they approach middle age. They are also more likely to develop depressive symptoms. Prior drinking behavior and psychological history do not explain these problems—they result from unemployment itself. And the problems are not limited to those who never find steady work; they show up quite strongly as well in people who are later working regularly. 

Forty years ago, Glen Elder, a sociologist at the University of North Carolina and a pioneer in the field of “life course” studies, found a pronounced diffidence in elderly men (though not women) who had suffered hardship as 20- and 30-somethings during the Depression. Decades later, unlike peers who had been largely spared in the 1930s, these men came across, he told me, as “beaten and withdrawn—lacking ambition, direction, confidence in themselves.” Today in Japan, according to the Japan Productivity Center for Socio-Economic Development, workers who began their careers during the “lost decade” of the 1990s and are now in their 30s make up six out of every 10 cases of depression, stress, and work-related mental disabilities reported by employers. 

A large and long-standing body of research shows that physical health tends to deteriorate during unemployment, most likely through a combination of fewer financial resources and a higher stress level. The most-recent research suggests that poor health is prevalent among the young, and endures for a lifetime. Till Von Wachter, an economist at Columbia University, and Daniel Sullivan, of the Federal Reserve Bank of Chicago, recently looked at the mortality rates of men who had lost their jobs in Pennsylvania in the 1970s and ’80s. They found that particularly among men in their 40s or 50s, mortality rates rose markedly soon after a layoff. But regardless of age, all men were left with an elevated risk of dying in each year following their episode of unemployment, for the rest of their lives. And so, the younger the worker, the more pronounced the effect on his lifespan: the lives of workers who had lost their job at 30, Von Wachter and Sullivan found, were shorter than those who had lost their job at 50 or 55—and more than a year and a half shorter than those who’d never lost their job at all. 

Journalists and academics have thrown various labels at today’s young adults, hoping one might stick—Generation Y, Generation Next, the Net Generation, the Millennials, the Echo Boomers. All of these efforts contain an element of folly; the diversity of character within a generation is always and infinitely larger than the gap between generations. Still, the cultural and economic environment in which each generation is incubated clearly matters. It is no coincidence that the members of Generation X—painted as cynical, apathetic slackers—first emerged into the workforce in the weak job market of the early-to-mid-1980s. Nor is it a coincidence that the early members of Generation Y—labeled as optimistic, rule-following achievers—came of age during the Internet boom of the late 1990s. 

Many of today’s young adults seem temperamentally unprepared for the circumstances in which they now find themselves. Jean Twenge, an associate professor of psychology at San Diego State University, has carefully compared the attitudes of today’s young adults to those of previous generations when they were the same age. Using national survey data, she’s found that to an unprecedented degree, people who graduated from high school in the 2000s dislike the idea of work for work’s sake, and expect jobs and career to be tailored to their interests and lifestyle. Yet they also have much higher material expectations than previous generations, and believe financial success is extremely important. “There’s this idea that, ‘Yeah, I don’t want to work, but I’m still going to get all the stuff I want,’” Twenge told me. “It’s a generation in which every kid has been told, ‘You can be anything you want. You’re special.’” 

In her 2006 book, Generation Me, Twenge notes that self-esteem in children began rising sharply around 1980, and hasn’t stopped since. By 1999, according to one survey, 91 percent of teens described themselves as responsible, 74 percent as physically attractive, and 79 percent as very intelligent. (More than 40 percent of teens also expected that they would be earning $75,000 a year or more by age 30; the median salary made by a 30-year-old was $27,000 that year.) Twenge attributes the shift to broad changes in parenting styles and teaching methods, in response to the growing belief that children should always feel good about themselves, no matter what. As the years have passed, efforts to boost self-esteem—and to decouple it from performance—have become widespread. 

These efforts have succeeded in making today’s youth more confident and individualistic. But that may not benefit them in adulthood, particularly in this economic environment. Twenge writes that “self-esteem without basis encourages laziness rather than hard work,” and that “the ability to persevere and keep going” is “a much better predictor of life outcomes than self-esteem.” She worries that many young people might be inclined to simply give up in this job market. “You’d think if people are more individualistic, they’d be more independent,” she told me. “But it’s not really true. There’s an element of entitlement—they expect people to figure things out for them.” 

Ron Alsop, a former reporter for The Wall Street Journal and the author of The Trophy Kids Grow Up: How the Millennial Generation Is Shaking Up the Workplace, says a combination of entitlement and highly structured childhood has resulted in a lack of independence and entrepreneurialism in many 20-somethings. They’re used to checklists, he says, and “don’t excel at leadership or independent problem solving.” Alsop interviewed dozens of employers for his book, and concluded that unlike previous generations, Millennials, as a group, “need almost constant direction” in the workplace. “Many flounder without precise guidelines but thrive in structured situations that provide clearly defined rules.” 

All of these characteristics are worrisome, given a harsh economic environment that requires perseverance, adaptability, humility, and entrepreneurialism. Perhaps most worrisome, though, is the fatalism and lack of agency that both Twenge and Alsop discern in today’s young adults. Trained throughout childhood to disconnect performance from reward, and told repeatedly that they are destined for great things, many are quick to place blame elsewhere when something goes wrong, and inclined to believe that bad situations will sort themselves out—or will be sorted out by parents or other helpers. 

In his remarks at last year’s commencement, in May, The New York Times reported, University of Connecticut President Michael Hogan addressed the phenomenon of students’ turning down jobs, with no alternatives, because they didn’t feel the jobs were good enough. “My first word of advice is this,” he told the graduates. “Say yes. In fact, say yes as often as you can. Saying yes begins things. Saying yes is how things grow. Saying yes leads to new experiences, and new experiences will lead to knowledge and wisdom. Yes is for young people, and an attitude of yes is how you will be able to go forward in these uncertain times.” 

Larry Druckenbrod, the university’s assistant director of career services, told me last fall, “This is a group that’s done résumé building since middle school. They’ve been told they’ve been preparing to go out and do great things after college. And now they’ve been dealt a 180.” For many, that’s led to “immobilization.” Druckenbrod said that about a third of the seniors he talked to that semester were seriously looking for work; another third were planning to go to grad school. The final third, he said, were “not even engaging with the job market—these are the ones whose parents have already said, ‘Just come home and live with us.’” 

According to a recent Pew survey, 10 percent of adults younger than 35 have moved back in with their parents as a result of the recession. But that’s merely an acceleration of a trend that has been under way for a generation or more. By the middle of the aughts, for instance, the percentage of 26-year-olds living with their parents reached 20 percent, nearly double what it was in 1970. Well before the recession began, this generation of young adults was less likely to work, or at least work steadily, than other recent generations. Since 2000, the percentage of people age 16 to 24 participating in the labor force has been declining (from 66 percent to 56 percent across the decade). Increased college attendance explains only part of the shift; the rest is a puzzle. Lingering weakness in the job market since 2001 may be one cause. Twenge believes the propensity of this generation to pursue “dream” careers that are, for most people, unlikely to work out may also be partly responsible. (In 2004, a national survey found that about one out of 18 college freshmen expected to make a living as an actor, musician, or artist.) 

Whatever the reason, the fact that so many young adults weren’t firmly rooted in the workforce even before the crash is deeply worrying. It means that a very large number of young adults entered the recession already vulnerable to all the ills that joblessness produces over time. It means that for a sizeable proportion of 20- and 30-somethings, the next few years will likely be toxic. 

No young people were present at a seminar for the unemployed held on November 4 in Reading, Pennsylvania, a blue-collar city about 60 miles west of Philadelphia. The meeting was organized by a regional nonprofit, Joseph’s People, and held in the basement of the St. Catharine’s parish center. All 30 or so attendees, sitting around a U-shaped table, looked to be 40 or older. But one middle-aged man, one of the first to introduce himself to the group, said he and his wife were there on behalf of their son, Errol. “He’s so disgusted that he didn’t want to come,” the man said. “He doesn’t know what to do, and we don’t either.” 

I talked to Errol a few days later. He is 28 and has a gentle, straightforward manner. He graduated from high school in 1999 and has lived with his parents since then. He worked in a machine shop for a couple of years after school, and has also held jobs at a battery factory, a sandpaper manufacturer, and a restaurant, where he was a cook. The restaurant closed in June 2008, and apart from a few days of work through temp agencies, he hasn’t had a job since. 

He calls in to a few temp agencies each week to let them know he’s interested in working, and checks the newspaper for job listings every Sunday. Sometimes he goes into CareerLink, the local unemployment office, to see if it has any new listings. He does work around the house, or in the small machine shop he’s set up in the garage, just to fill his days, and to try to keep his skills up. 

“I was thinking about moving,” he said. “I’m just really not sure where. Other places where I traveled, I didn’t really see much of a difference with what there was here.” He’s still got a few thousand dollars in the bank, which he saved when he was working as a machinist, and is mostly living off that; he’s been trading penny stocks to try to replenish those savings. 

I asked him what he foresaw for his working life. “As far as my job position,” he said, “I really don’t know what I want to do yet. I’m not sure.” When he was little, he wanted to be a mechanic, and he did enjoy the machine trade. But now there was hardly any work to be had, and what there was paid about the same as Walmart. “I don’t think there’s any way that you can have a job that you can think you can retire off of,” he said. “I think everyone’s going to have to transfer to another job.” He said the only future he could really imagine for himself now was just moving from job to job, with no career to speak of. “That’s what I think,” he said. “I don’t want to.” 

Men and Family in a Jobless Age

 

In her classic sociology of the Depression, The Unemployed Man and His Family, Mirra Komarovsky vividly describes how joblessness strained—and in many cases fundamentally altered—family relationships in the 1930s. During 1935 and 1936, Komarovsky and her research team interviewed the members of 59 white middle-class families in which the husband and father had been out of work for at least a year. Her research revealed deep psychological wounds. “It is awful to be old and discarded at 40,” said one father. “A man is not a man without work.” Another said plainly, “During the depression I lost something. Maybe you call it self-respect, but in losing it I also lost the respect of my children, and I am afraid I am losing my wife.” Noted one woman of her husband, “I still love him, but he doesn’t seem as ‘big’ a man.” 

Taken together, the stories paint a picture of diminished men, bereft of familial authority. Household power—over children, spending, and daily decisions of all types—generally shifted to wives over time (and some women were happier overall as a result). Amid general anxiety, fears of pregnancy, and men’s loss of self-worth and loss of respect from their wives, sex lives withered. Socializing all but ceased as well, a casualty of poverty and embarrassment. Although some men embraced family life and drew their wife and children closer, most became distant. Children described their father as “mean,” “nasty,” or “bossy,” and didn’t want to bring friends around, for fear of what he might say. “There was less physical violence towards the wife than towards the child,” Komarovsky wrote. 

In the 70 years that have passed since the publication of The Unemployed Man and His Family, American society has become vastly more wealthy, and a more comprehensive social safety net—however frayed it may seem—now stretches beneath it. Two-earner households have become the norm, cushioning the economic blow of many layoffs. And of course, relationships between men and women have evolved. Yet when read today, large parts of Komarovsky’s book still seem disconcertingly up-to-date. All available evidence suggests that long bouts of unemployment—particularly male unemployment—still enfeeble the jobless and warp their families to a similar degree, and in many of the same ways. 

Andrew Oswald, an economist at the University of Warwick, in the U.K., and a pioneer in the field of happiness studies, says no other circumstance produces a larger decline in mental health and well-being than being involuntarily out of work for six months or more. It is the worst thing that can happen, he says, equivalent to the death of a spouse, and “a kind of bereavement” in its own right. Only a small fraction of the decline can be tied directly to losing a paycheck, Oswald says; most of it appears to be the result of a tarnished identity and a loss of self-worth. Unemployment leaves psychological scars that remain even after work is found again, and, because the happiness of husbands and the happiness of wives are usually closely related, the misery spreads throughout the home. 

Especially in middle-aged men, long accustomed to the routine of the office or factory, unemployment seems to produce a crippling disorientation. At a series of workshops for the unemployed that I attended around Philadelphia last fall, the participants were overwhelmingly male, and the men in particular described the erosion of their identities, the isolation of being jobless, and the indignities of downward mobility. 

Over lunch I spoke with one attendee, Gus Poulos, a Vietnam-era veteran who had begun his career as a refrigeration mechanic before going to night school and becoming an accountant. He is trim and powerfully built, and looks much younger than his 59 years. For seven years, until he was laid off in December 2008, he was a senior financial analyst for a local hospital. 

Poulos said that his frustration had built and built over the past year. “You apply for so many jobs and just never hear anything,” he told me. “You’re one of my few interviews. I’m just glad to have an interview with anybody, even a magazine.” Poulos said he was an optimist by nature, and had always believed that with preparation and hard work, he could overcome whatever life threw at him. But sometime in the past year, he’d lost that sense, and at times he felt aimless and adrift. “That’s never been who I am,” he said. “But now, it’s who I am.” 

Recently he’d gotten a part-time job as a cashier at Walmart, for $8.50 an hour. “They say, ‘Do you want it?’ And in my head, I thought, ‘No.’ And I raised my hand and said, ‘Yes.’” Poulos and his wife met when they were both working as supermarket cashiers, four decades earlier—it had been one of his first jobs. “Now, here I am again.” 

Poulos’s wife is still working—she’s a quality-control analyst at a food company—and that’s been a blessing. But both are feeling the strain, financial and emotional, of his situation. She commutes about 100 miles every weekday, which makes for long days. His hours at Walmart are on weekends, so he doesn’t see her much anymore and doesn’t have much of a social life. 

Some neighbors were at the Walmart a couple of weeks ago, he said, and he rang up their purchase. “Maybe they were used to seeing me in a different setting,” he said—in a suit as he left for work in the morning, or walking the dog in the neighborhood. Or “maybe they were daydreaming.” But they didn’t greet him, and he didn’t say anything. He looked down at his soup, pushing it around the bowl with his spoon for a few seconds before looking back up at me. “I know they knew me,” he said. “I’ve been in their home.” 

The weight of this recession has fallen most heavily upon men, who’ve suffered roughly three-quarters of the 8 million job losses since the beginning of 2008. Male-dominated industries (construction, finance, manufacturing) have been particularly hard-hit, while sectors that disproportionately employ women (education, health care) have held up relatively well. In November, 19.4 percent of all men in their prime working years, 25 to 54, did not have jobs, the highest figure since the Bureau of Labor Statistics began tracking the statistic in 1948. At the time of this writing, it looks possible that within the next few months, for the first time in U.S. history, women will hold a majority of the country’s jobs. 

In this respect, the recession has merely intensified a long-standing trend. Broadly speaking, the service sector, which employs relatively more women, is growing, while manufacturing, which employs relatively more men, is shrinking. The net result is that men have been contributing a smaller and smaller share of family income. 

“Traditional” marriages, in which men engage in paid work and women in homemaking, have long been in eclipse. Particularly in blue-collar families, where many husbands and wives work staggered shifts, men routinely handle a lot of the child care today. Still, the ease with which gender bends in modern marriages should not be overestimated. When men stop doing paid work—and even when they work less than their wives—marital conflict usually follows. 

Last March, the National Domestic Violence Hotline received almost half again as many calls as it had one year earlier; as was the case in the Depression, unemployed men are vastly more likely to beat their wives or children. More common than violence, though, is a sort of passive-aggressiveness. In Identity Economics, the economists George Akerloff and Rachel Kranton find that among married couples, men who aren’t working at all, despite their free time, do only 37 percent of the housework, on average. And some men, apparently in an effort to guard their masculinity, actually do less housework after becoming unemployed. 

Many working women struggle with the idea of partners who aren’t breadwinners. “We’ve got this image of Archie Bunker sitting at home, grumbling and acting out,” says Kathryn Edin, a professor of public policy at Harvard, and an expert on family life. “And that does happen. But you also have women in whole communities thinking, ‘This guy’s nothing.’” Edin’s research in low-income communities shows, for instance, that most working women whose partner stayed home to watch the kids—while very happy with the quality of child care their children’s father provided—were dissatisfied with their relationship overall. “These relationships were often filled with conflict,” Edin told me. Even today, she says, men’s identities are far more defined by their work than women’s, and both men and women become extremely uncomfortable when men’s work goes away. 

The national divorce rate fell slightly in 2008, and that’s not unusual in a recession: divorce is expensive, and many couples delay it in hard times. But joblessness corrodes marriages, and makes divorce much more likely down the road. According to W. Bradford Wilcox, the director of the National Marriage Project at the University of Virginia, the gender imbalance of the job losses in this recession is particularly noteworthy, and—when combined with the depth and duration of the jobs crisis—poses “a profound challenge to marriage,” especially in lower-income communities. It may sound harsh, but in general, he says, “if men can’t make a contribution financially, they don’t have much to offer.” Two-thirds of all divorces are legally initiated by women. Wilcox believes that over the next few years, we may see a long wave of divorces, washing no small number of discarded and dispirited men back into single adulthood. 

Among couples without college degrees, says Edin, marriage has become an “increasingly fragile” institution. In many low-income communities, she fears it is being supplanted as a social norm by single motherhood and revolving-door relationships. As a rule, fewer people marry during a recession, and this one has been no exception. But “the timing of this recession coincides with a pretty significant cultural change,” Edin says: a fast-rising material threshold for marrying, but not for having children, in less affluent communities. 

Edin explains that poor and working-class couples, after seeing the ravages of divorce on their parents or within their communities, have become more hesitant to marry; they believe deeply in marriage’s sanctity, and try to guard against the possibility that theirs will end in divorce. Studies have shown that even small changes in income have significant effects on marriage rates among the poor and the lower-middle class. “It’s simply not respectable to get married if you don’t have a job—some way of illustrating to your neighbors that you have at least some grasp on some piece of the American pie,” Edin says. Increasingly, people in these communities see marriage not as a way to build savings and stability, but as “a symbol that you’ve arrived.” 

Childbearing is the opposite story. The stigma against out-of-wedlock children has by now largely dissolved in working-class communities—more than half of all new mothers without a college degree are unmarried. For both men and women in these communities, children are commonly seen as a highly desirable, relatively low-cost way to achieve meaning and bolster identity—especially when other opportunities are closed off. Christina Gibson-Davis, a public-policy professor at Duke University, recently found that among adults with no college degree, changes in income have no bearing at all on rates of childbirth. 

“We already have low marriage rates in low-income communities,” Edin told me, “including white communities. And where it’s really hitting now is in working-class urban and rural communities, where you’re just seeing astonishing growth in the rates of nonmarital childbearing. And that would all be fine and good, except these parents don’t stay together. This may be one of the most devastating impacts of the recession.” 

Many children are already suffering in this recession, for a variety of reasons. Among poor families, nutrition can be inadequate in hard times, hampering children’s mental and physical development. And regardless of social class, the stresses and distractions that afflict unemployed parents also afflict their kids, who are more likely to repeat a grade in school, and who on average earn less as adults. Children with unemployed fathers seem particularly vulnerable to psychological problems. 

But a large body of research shows that one of the worst things for children, in the long run, is an unstable family. By the time the average out-of-wedlock child has reached the age of 5, his or her mother will have had two or three significant relationships with men other than the father, and the child will typically have at least one half sibling. This kind of churning is terrible for children—heightening the risks of mental-health problems, troubles at school, teenage delinquency, and so on—and we’re likely to see more and more of it, the longer this malaise stretches on. 

“We could be headed in a direction where, among elites, marriage and family are conventional, but for substantial portions of society, life is more matriarchal,” says Wilcox. The marginalization of working-class men in family life has far-reaching consequences. “Marriage plays an important role in civilizing men. They work harder, longer, more strategically. They spend less time in bars and more time in church, less with friends and more with kin. And they’re happier and healthier.” 

Communities with large numbers of unmarried, jobless men take on an unsavory character over time. Edin’s research team spent part of last summer in Northeast and South Philadelphia, conducting in-depth interviews with residents. She says she was struck by what she saw: “These white working-class communities—once strong, vibrant, proud communities, often organized around big industries—they’re just in terrible straits. The social fabric of these places is just shredding. There’s little engagement in religious life, and the old civic organizations that people used to belong to are fading. Drugs have ravaged these communities, along with divorce, alcoholism, violence. I hang around these neighborhoods in South Philadelphia, and I think, ‘This is beginning to look like the black inner-city neighborhoods we’ve been studying for the past 20 years.’ When young men can’t transition into formal-sector jobs, they sell drugs and drink and do drugs. And it wreaks havoc on family life. They think, ‘Hey, if I’m 23 and I don’t have a baby, there’s something wrong with me.’ They’re following the pattern of their fathers in terms of the timing of childbearing, but they don’t have the jobs to support it. So their families are falling apart—and often spectacularly.” 

In his 1996 book, When Work Disappears, the Harvard sociologist William Julius Wilson connected the loss of jobs from inner cities in the 1970s to the many social ills that cropped up after that. “The consequences of high neighborhood joblessness,” he wrote, 

are more devastating than those of high neighborhood poverty. A neighborhood in which people are poor but employed is different from a neighborhood in which many people are poor and jobless. Many of today’s problems in the inner-city ghetto neighborhoods—crime, family dissolution, welfare, low levels of social organization, and so on—are fundamentally a consequence of the disappearance of work.

 

In the mid-20th century, most urban black men were employed, many of them in manufacturing. But beginning in the 1970s, as factories moved out of the cities or closed altogether, male unemployment began rising sharply. Between 1973 and 1987, the percentage of black men in their 20s working in manufacturing fell from roughly 37.5 percent to 20 percent. As inner cities shed manufacturing jobs, men who lived there, particularly those with limited education, had a hard time making the switch to service jobs. Service jobs and office work of course require different interpersonal skills and different standards of self-presentation from those that blue-collar work demands, and movement from one sector to the other can be jarring. What’s more, Wilson’s research shows, downwardly mobile black men often resented the new work they could find, and displayed less flexibility on the job than, for instance, first-generation immigrant workers. As a result, employers began to prefer hiring women and immigrants, and a vicious cycle of resentment, discrimination, and joblessness set in. 

It remains to be seen whether larger swaths of the country, as male joblessness persists, will eventually come to resemble the inner cities of the 1970s and ’80s. In any case, one of the great catastrophes of the past decade, and in particular of this recession, is the slippage of today’s inner cities back toward the depths of those brutal years. Urban minorities tend to be among the first fired in a recession, and the last rehired in a recovery. Overall, black unemployment stood at 15.6 percent in November; among Hispanics, that figure was 12.7 percent. Even in New York City, where the financial sector, which employs relatively few blacks, has shed tens of thousands of jobs, unemployment has increased much faster among blacks than it has among whites. 

In June 1999, the journalist Ellis Cose wrote in Newsweek that it was then “the best time ever” to be black in America. He ticked through the reasons: employment was up, murders and out-of-wedlock births down; educational attainment was rising, and poverty less common than at any time since 1967. Middle-class black couples were slowly returning to gentrifying inner-city neighborhoods. “Even for some of the most persistently unfortunate—uneducated black men between 16 and 24—jobs are opening up,” Cose wrote. 

But many of those gains are now imperiled. Late last year, unemployment among black teens ages 16 to 19 was nearly 50 percent, and the unemployment rate for black men age 20 or older was almost 17 percent. With so few jobs available, Wilson told me, “many black males will give up and drop out of the labor market, and turn more to the underground economy. And it will be very difficult for these people”—especially those who acquire criminal records—“to reenter the labor market in any significant way.” Glen Elder, the sociologist at the University of North Carolina, who’s done field work in Baltimore, said, “At a lower level of skill, if you lose a job and don’t have fathers or brothers with jobs—if you don’t have a good social network—you get drawn back into the street. There’s a sense in the kids I’ve studied that they lost everything they had, and can’t get it back.” 

In New York City, 18 percent of low-income blacks and 26 percent of low-income Hispanics reported having lost their job as a result of the recession in a July survey by the Community Service Society. More still had had their hours or wages reduced. About one in seven low-income New Yorkers often skipped meals in 2009 to save money, and one in five had had the gas, electricity, or telephone turned off. Wilson argues that once neighborhoods become socially dysfunctional, it takes a long period of unbroken good times to undo the damage—and they can backslide very quickly and steeply. “One problem that has plagued the black community over the years is resignation,” Wilson said—a self-defeating “set of beliefs about what to expect from life and how to respond,” passed from parent to child. “And I think there was sort of a feeling that norms of resignation would weaken somewhat with the Obama election. But these hard economic times could reinforce some of these norms.” 

Wilson, age 74, is a careful scholar, who chooses his words precisely and does not seem given to overstatement. But he sounded forlorn when describing the “very bleak” future he sees for the neighborhoods that he’s spent a lifetime studying. There is “no way,” he told me, “that the extremely high jobless rates we’re seeing won’t have profound consequences for the social organization of inner-city neighborhoods.” Neighborhood-specific statistics on drug addiction, family dysfunction, gang violence, and the like take time to compile. But Wilson believes that once we start getting detailed data on the conditions of inner-city life since the crash, “we’re going to see some horror stories”—and in many cases a relapse into the depths of decades past. “The point I want to emphasize,” Wilson said, “is that we should brace ourselves.” 

The Social Fabric

 

No one tries harder than the jobless to find silver linings in this national economic disaster. Many of the people I spoke with for this story said that unemployment, while extremely painful, had improved them in some ways: they’d become less materialistic and more financially prudent; they were using free time to volunteer more, and were enjoying that; they were more empathetic now, they said, and more aware of the struggles of others. 

In limited respects, perhaps the recession will leave society better off. At the very least, it’s awoken us from our national fever dream of easy riches and bigger houses, and put a necessary end to an era of reckless personal spending. Perhaps it will leave us humbler, and gentler toward one another, too—at least in the long run. A recent paper by the economists Paola Giuliano and Antonio Spilimbergo shows that generations that endured a recession in early adulthood became more concerned about inequality and more cognizant of the role luck plays in life. And in his book, Children of the Great Depression, Glen Elder wrote that adolescents who experienced hardship in the 1930s became especially adaptable, family-oriented adults; perhaps, as a result of this recession, today’s adolescents will be pampered less and counted on for more, and will grow into adults who feel less entitled than recent generations. 

But for the most part, these benefits seem thin, uncertain, and far off. In The Moral Consequences of Economic Growth, the economic historian Benjamin Friedman argues that both inside and outside the U.S., lengthy periods of economic stagnation or decline have almost always left society more mean-spirited and less inclusive, and have usually stopped or reversed the advance of rights and freedoms. A high level of national wealth, Friedman writes, “is no bar to a society’s retreat into rigidity and intolerance once enough of its citizens lose the sense that they are getting ahead.” When material progress falters, Friedman concludes, people become more jealous of their status relative to others. Anti-immigrant sentiment typically increases, as does conflict between races and classes; concern for the poor tends to decline. 

Social forces take time to grow strong, and time to dissipate again. Friedman told me that the phenomenon he’s studied “is not about business cycles … It’s not about people comparing where they are now to where they were a year ago.” The relevant comparisons are much broader: What opportunities are available to me, relative to those of my parents? What opportunities do my children have? What is the trajectory of my career? 

It’s been only about two years since this most recent recession started, but then again, most people hadn’t been getting ahead for a decade. In a Pew survey in the spring of 2008, more than half of all respondents said that over the past five years, they either hadn’t moved forward in life or had actually fallen backward, the most downbeat assessment that either Pew or Gallup has ever recorded, in nearly a half century of polling. Median household income in 2008 was the lowest since 1997, adjusting for inflation. “On the latest income data,” Friedman said, “we’re 11 years into a period of decline.” By the time we get out of the current downturn, we’ll likely be “up to a decade and a half. And that’s surely enough.” 

Income inequality usually falls during a recession, and the economist and happiness expert Andrew Clark says that trend typically provides some emotional salve to the poor and the middle class. (Surveys, lab experiments, and brain readings all show that, for better or worse, schadenfreude is a powerful psychological force: at any fixed level of income, people are happier when the income of others is reduced.) But income inequality hasn’t shrunk in this recession. In 2007–08, the most recent year for which data is available, it widened. 

Indeed, this period of economic weakness may reinforce class divides, and decrease opportunities to cross them—especially for young people. The research of Till Von Wachter, the economist at Columbia University, suggests that not all people graduating into a recession see their life chances dimmed: those with degrees from elite universities catch up fairly quickly to where they otherwise would have been if they’d graduated in better times; it’s the masses beneath them that are left behind. Princeton’s 2009 graduating class found more jobs in financial services than in any other industry. According to Princeton’s career-services director, Beverly Hamilton-Chandler, campus visits and hiring by the big investment banks have been down, but that decline has been partly offset by an uptick in recruiting by hedge funds and boutique financial firms. 

In the Internet age, it is particularly easy to see the bile that has always lurked within American society. More difficult, in the moment, is discerning precisely how these lean times are affecting society’s character. In many respects, the U.S. was more socially tolerant entering this recession than at any time in its history, and a variety of national polls on social conflict since then have shown mixed results. Signs of looming class warfare or racial conflagration are not much in evidence. But some seeds of discontent are slowly germinating. The town-hall meetings last summer and fall were contentious, often uncivil, and at times given over to inchoate outrage. One National Journal poll in October showed that whites (especially white men) were feeling particularly anxious about their future and alienated by the government. We will have to wait and see exactly how these hard times will reshape our social fabric. But they certainly will reshape it, and all the more so the longer they extend. 

A slowly sinking generation; a remorseless assault on the identity of many men; the dissolution of families and the collapse of neighborhoods; a thinning veneer of national amity—the social legacies of the Great Recession are still being written, but their breadth and depth are immense. As problems, they are enormously complex, and their solutions will be equally so. 

Of necessity, those solutions must include measures to bolster the economy in the short term, and to clear the way for faster long-term growth; to support the jobless today, and to ensure that we are creating the kinds of jobs (and the kinds of skills within the population) that can allow for a more broadly shared prosperity in the future. A few of the solutions—like more-aggressive support for the unemployed, and employer tax credits or other subsidies to get people back to work faster—are straightforward and obvious, or at least they should be. Many are not. 

At the very least, though, we should make the return to a more normal jobs environment an unflagging national priority. The stock market has rallied, the financial system has stabilized, and job losses have slowed; by the time you read this, the unemployment rate might be down a little. Yet the difference between “turning the corner” and a return to any sort of normalcy is vast. 

We are in a very deep hole, and we’ve been in it for a relatively long time already. Concerns over deficits are understandable, but in these times, our bias should be toward doing too much rather than doing too little. That implies some small risk to the government’s ability to continue borrowing in the future; and it implies somewhat higher taxes in the future too. But that seems a trade worth making. We are living through a slow-motion social catastrophe, one that could stain our culture and weaken our nation for many, many years to come. We have a civic—and indeed a moral—responsibility to do everything in our power to stop it now, before it gets even worse. 

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Dead Studies 101

Posted by steveneidman on February 16, 2010

Management Secrets of the Grateful Dead

by Joshua Green

Fans of the Grateful Dead are big believers in serendipity. So a certain knowing approval greeted the news last year that the band would be donating its copious archive—four decades’ worth of commercial recordings and videotapes, press clippings, stage sets, business records, and a mountain of correspondence encompassing everything from elaborately decorated fan letters to a thank-you note for a fund-raising performance handwritten on White House stationery by President Barack Obama—to the University of California at Santa Cruz. Santa Cruz was understood to be a fitting home not only because it exemplifies the spirit of the counterculture as much as, and perhaps even more than, Berkeley and Stanford, which also bid for the archive, but because the school’s faculty includes an ethnomusicologist and composer named Fredric Lieberman, who is prominent among a curious breed in the academy: scholars who teach and study the Grateful Dead.

It’s worth noting right up front the hurdles Dead Studies faces as a field of serious inquiry. To begin with, the news that it exists at all tends to elicit grinning disbelief; a corollary challenge is the assumptions people carry about its practitioners, such as my own expectation when arranging to visit Lieberman last year that I would encounter an amiable hippie, probably of late-Boomer vintage and wearing a thinning ponytail. Rough mental image: Wavy Gravy with a Ph.D.

Lieberman is nothing of the sort. A small man with parchment skin, wisps of white hair, and large round glasses, he could have looked more professorial only by wielding a Dunhill pipe. His interest in the Grateful Dead, he explained, had arisen largely by chance. In the 1960s, he studied under the noted ethnomusicologist Charles Seeger (father of Pete Seeger) at UCLA, and came to share his mentor’s dismay at the academy’s neglect of popular and non-Western music. Lieberman went on to teach a series of classes in American vernacular music and, though he held no particular fondness for the Grateful Dead, became one of the first academics to teach the band’s music, in the early 1970s.

In 1983, the Dead’s drummer, Mickey Hart, asked Lieberman to help catalog his vast collection of instruments. When the project developed into a larger study of world percussion, Hart invited Lieberman to join him on tour. “I thought it would be interesting to treat it as an ethnomusicological field trip,” Lieberman told me. For some years, when he wasn’t teaching he traveled with the band, introducing Hart to ethnomusicologists by day and attending shows by night. If you squinted hard during any number of the Dead’s most famous shows in the 1980s and ’90s, you might have glimpsed the unlikely spectacle of an ethnomusicologist crouching in earnest concentration behind the drummer, going about his fieldwork.

Lieberman apologized for not being able to show me the archive. The whole thing was under lock and key in a Northern California warehouse whose location was a closely held secreta precaution against overzealous fans’ plundering a hoard that many would regard as akin to Tutankhamen’s treasure. On March 5, the New York Historical Society will open the first large-scale exhibit of material from the Dead Archive. Then, if all goes as planned, the collection will become the centerpiece of a new campus library at Santa Cruz slated to open later this year. Among other things, it is hoped that the Dead Archive will galvanize a nascent group of scholars across many disciplines who, like Lieberman, study the Grateful Deadnot just musicologists but historians, sociologists, philosophers, psychologists, and even business and management theorists. Some have risked their academic standing in the belief that the band and the larger social phenomenon that surrounds it are far more significant than is commonly understood. Lately, the world has been changing in ways that make that not so hard to believe.

One of the first academic articles on the Grateful Dead appeared in the Winter 1972 issue of the Journal of Psychedelic Drugs, a periodical for medical professionals, and drew on emergency-treatment records to compare drug use at a Grateful Dead concert with that at a Led Zeppelin concert. (Verdict: Deadheads favored LSD, Zeppelin fans alcohol.) The popular association between the Dead and a drug-fueled counterculture did little to encourage respectable academic endeavor.

As the band’s following grew, the notion that it might have something to offer scholars, particularly in the social sciences, became somewhat less far-fetched, though still not without professional risk. In the late 1980s, Rebecca G. Adams, a sociologist at the University of North Carolina at Greensboro, who studies friendships formed across distances, noticed deep bonds between Deadheads. The bonds seemed to belie the idea, then popular among leading social thinkers, that communities based on common interest, whose members do not live near each other, lack emotional and moral depththat Deadheads might belong to what sociologists call a “lifestyle enclave,” but couldn’t possibly form meaningful relationships. Adams brought a class on tour with the Deadan opportunity, she thought, to teach classical theory while letting students study a cutting-edge contemporary community.

She became instantly famous, among a small group of scholars, and then, suddenly, among a much larger group of people. One day, without warning, Senator Robert Byrd, the histrionic and prodigiously opinionated West Virginian, gave a speech decrying what he considered an appalling decline in the standards for higher education, and cited Adams’s class as an example. Adams had unwittingly placed herself in the crosshairs of the culture wars and was beset by, among other things, an inquiry from the president of North Carolina’s state university system. Though she survived with help from her chancellor and her department head, and though the question fell squarely within her specialty, Adams was politely discouraged from pursuing her line of inquiry. “I was advised to concentrate on the more respectable areas of my research,” she told me.

Other aspects of the band nevertheless continued to invite academic examination. Musicologists showed interest, although the band’s sprawling repertoire and tendency to improvise posed a significant challenge. Lieberman says that fully absorbing the Dead’s music could take years, and he has noted its similarities with South Indian classical music, with its complex notational system and highly formalized four-hour concerts. Engineers studied the band’s sophisticated sound system, radical at the time but widely emulated today. Even legal scholars took note, some contending that the American criminal-justice system, including the courts, unfairly profiles Deadhead defendants and has, on occasion, treated fandom as evidence of mental illness.

Oddly enough, the Dead’s influence on the business world may turn out to be a significant part of its legacy. Without intending towhile intending, in fact, to do just the oppositethe band pioneered ideas and practices that were subsequently embraced by corporate America. One was to focus intensely on its most loyal fans. It established a telephone hotline to alert them to its touring schedule ahead of any public announcement, reserved for them some of the best seats in the house, and capped the price of tickets, which the band distributed through its own mail-order house. If you lived in New York and wanted to see a show in Seattle, you didn’t have to travel there to get ticketsand you could get really good tickets, without even camping out. “The Dead were masters of creating and delivering superior customer value,” Barry Barnes, a business professor at the H. Wayne Huizenga School of Business and Entrepreneurship at Nova Southeastern University, in Florida, told me. Treating customers well may sound like common sense. But it represented a break from the top-down ethos of many organizations in the 1960s and ’70s. Only in the 1980s, faced with competition from Japan, did American CEOs and management theorists widely adopt a customer-first orientation.

As Barnes and other scholars note, the musicians who constituted the Dead were anything but naive about their business. They incorporated early on, and established a board of directors (with a rotating CEO position) consisting of the band, road crew, and other members of the Dead organization. They founded a profitable merchandising division and, peace and love notwithstanding, did not hesitate to sue those who violated their copyrights. But they weren’t greedy, and they adapted well. They famously permitted fans to tape their shows, ceding a major revenue source in potential record sales. According to Barnes, the decision was not entirely selfless: it reflected a shrewd assessment that tape sharing would widen their audience, a ban would be unenforceable, and anyone inclined to tape a show would probably spend money elsewhere, such as on merchandise or tickets. The Dead became one of the most profitable bands of all time.

It’s precisely this flexibility that Barnes believes holds the greatest lessons for businesshe calls it “strategic improvisation.” It isn’t hard to spot a few of its recent applications. Giving something away and earning money on the periphery is the same idea proffered by Wired editor Chris Anderson in his recent best-selling book, Free: The Future of a Radical Price. Voluntarily or otherwise, it is becoming the blueprint for more and more companies doing business on the Internet. Today, everybody is intensely interested in understanding how communities form across distances, because that’s what happens online. Far from being a subject of controversy, Rebecca Adams’s next book on Deadhead sociology has publishers lining up.

Much of the talk about “Internet business models” presupposes that they are blindingly new and different. But the connection between the Internet and the Dead’s business model was made 15 years ago by the band’s lyricist, John Perry Barlow, who became an Internet guru. Writing in Wired in 1994, Barlow posited that in the information economy, “the best way to raise demand for your product is to give it away.” As Barlow explained to me: “What people today are beginning to realize is what became obvious to us back thenthe important correlation is the one between familiarity and value, not scarcity and value. Adam Smith taught that the scarcer you make something, the more valuable it becomes. In the physical world, that works beautifully. But we couldn’t regulate [taping at] our shows, and you can’t online. The Internet doesn’t behave that way. But here’s the thing: if I give my song away to 20 people, and they give it to 20 people, pretty soon everybody knows me, and my value as a creator is dramatically enhanced. That was the value proposition with the Dead.” The Dead thrived for decades, in good times and bad. In a recession, Barnes says, strategic improvisation is more important then ever. “If you’re going to survive this economic downturn, you better be able to turn on a dime,” he says. “The Dead were exemplars.” It can be only a matter of time until Management Secrets of the Grateful Dead or some similar title is flying off the shelves of airport bookstores everywhere.

Recently, Barnes has been lecturing to business leaders about strategic improvisation. He’s been a big hit. “People are just so tired of hearing about GE and Southwest Airlines,” he admits. “They get really excited to hear about the Grateful Dead.”

Until now, scholars who studied the Dead were limited to what was available in the public domain. Barnes sought access to internal documents more than a decade ago and was turned down. When the Dead Archive opens, he and others expect to gain many new insights, because they’ll finally be able to draw on primary source material—and there’s plenty. For years, unbeknownst to just about everyone, the band’s longtime office manager obsessively stashed away everything that came into her office. The possibilities seem manifold. “From the economics folks to the anthropologists,” Barlow says, “increasing numbers of people are going to make a pilgrimage to the archive to see how this all came together.”

When a famous author or statesman donates his papers to history, the task of studying and making sense of them usually falls to some obvious discipline. That’s not quite the case here. Even with the recent renaissance, Dead scholars are few. The bulk of the expertise lies outside the academy, with ordinary Deadheads. So Santa Cruz library officials have devised a novel approach (some would call it strategic improvisation) to curating the collection. They intend to post as much of it as possible online in the hope that Deadheadszealous social networkers that they arewill contribute their knowledge, and perhaps material of their own, to help build up the record. With the culture wars of the 1960s finally beginning to subside, the possibility for sober reflection on a charged era is more feasible than it once was. Today, the Dead are more attraction than liability. The library will seek to become a haven for the study of pop culture since the 1960s, with the Dead Archive anchoring its collection.

“Revolutionaries get vilified, and then, once they get older, they just become cute,” says Steve Gimbel, who is a philosophy professor at Gettysburg College and edited the recent collection The Grateful Dead and Philosophy. “Think of Oscar Wilde. Once they’re not dangerous anymore, it’s okay to discuss them in serious ways.”

Posted in CEO, Computers, Democrats, Film, Music, Obama, Social Network, art, arts, business, celebrity, culture, economics, economy, history, literature | Tagged: , , , , , , , , , , , , , , | Leave a Comment »

Is Anti-Bankism the New Anti-Semitism?

Posted by steveneidman on February 1, 2010

How to Think About: Jewish Bankers

By Michael Kinsley

Goldman Sachs, the huge and hugely profitable investment bank, has become a symbol of the financial excesses that helped to bring on the current recession. Because Goldman is thought of as a “Jewish” firm, and because it dominates the financial industry, criticism of Goldman, or of bankers generally, is often accused of being anti-Semitic. Commentators including Rush Limbaugh and Maureen Dowd have been so accused. When, if ever, are such accusations fair?

If you believe that Goldman has done nothing wrong, then any criticisms of Goldman or use of the firm as a symbol of the crisis are obviously unfair to Goldman. Furthermore, they would raise the legitimate question of “Why pick on Goldman?” and the possibility that anti-Semitism is part of the explanation. Similarly, if you believe that anything Goldman did wrong was done wrong by lots of others, the question of “Why pick on Goldman” arises, as does the same obvious answer.

Unfortunately for Goldman, it is not obviously blameless in the crisis. It was never so reckless that it risked going under. It borrowed only [sic] ten billion dollars from the Federal government, even that under duress, and paid it back as soon as possible, with interest. But the firm engaged in complex transactions that amounted to betting against its clients. Throughout the crisis, it enjoyed an implicit government guarantee on the grounds of being “too big to fail.” The government bailed out one of Goldman’s biggest borrowers–the insurance company AIG–saving Goldman billions in losses. And its profits and executive bonuses revealed, at the least, a lack of sensitivity at a time when millions are losing their jobs.

Even if Goldman did nothing in particular wrong, its status as one of only two remaining huge investment banks on Wall Street (the other is Morgan Stanley) might make it a legitimate focus, especially given its reputation, even before the crisis, for ruthlessness.

Is it legitimate to think of Goldman as a Jewish firm? Messrs. Goldman and Sachs, who founded the firm in the nineteenth century, were Jewish, as have been most of its partners since then, almost all of its leaders, and its current CEO (Lloyd Blankfein). It was founded because Jews were excluded from other firms. At this point Goldman is a publicly traded stock that anybody may own, and probably most of its employees are not Jewish. (Just as Jews are more than welcome at “gentile” firms like Morgan Stanley).

Is it legitimate to talk about Goldman as a Jewish firm? That’s a different question. Many American Jews think “Jewish” when they hear the words “Goldman” and “Sachs,” but still cringe whenever they hear the connection made in public, especially by non-Jews. Certainly any explicit suggestion that Goldman’s alleged misbehavior and its Jewishness are related in any way is anti-Semitic.

But what about comments about Goldman Sachs that draw on the classic stereotype about Jews and money, without making any explicit connection to it being a Jewish firm? That depends on which stereotype you mean. There is the stereotype that Jews thrive and tend to predominate on Wall Street and in the financial professions generally. This is true, but so what? There is no mystery or conspiracy involved. Jews in Europe were excluded from many occupations for centuries. They couldn’t own land and be farmers. Here in the United States they couldn’t climb the executive ladder at big corporations. They were not welcome at investment banks run by Protestants. So they founded their own.

The stereotype that Jews gravitate toward, and often do well in, finance is so innocent that, ironically, bringing it up is suspicious. What does it have to do with anything?

Rush Limbaugh brought it up the other day. He said on his radio show that President Obama may be appealing to anti-Semitism with his recent populist criticism of banks and bankers. “There are a lot of people,” Limbaugh said, “when you say banker, people think Jewish.” He didn’t mention Goldman Sachs. Abe Foxman, longtime head of the B’nai Brith Anti-Defamation League, declared that Limbaugh’s remark was “offensive and inappropriate” and “borderline anti-Semitic.” Limbaugh and his defenders protest that Limbaugh clearly was referring to other people, “people who have–what’s the best way to say–a little prejudice about them,” and not endorsing such views himself. And the transcript bears him out.

By Foxman’s standard, even to mention that many bankers are Jewish is anti-Semitic (even though it’s true), and attributing this view to others (while professing to be worried about it) is no excuse This may be over-the top. We live in a culture of umbrage, in which everybody seems to be taking offense at something somebody else says. Foxman is one of the nation’s foremost umbragists.

However, Limbaugh’s supporters make too much of the fact that, read literally, his remarks took the form of defending Jews against unfair maligning. There can be something creepy about “philo-semitism,” or a professed special fondness for Jews. Even when it is sincere (as it may well be in Limbaugh’s case), it rests on an acute feeling of “otherness” about Jews that makes many Jewish Americans rightly uncomfortable.

Sometimes the stereotype about Jews and money takes a harsher form: Jews are greedy, they lie, cheat and steal for money, they have undue influence with the government, which they cultivate and exploit ruthlessly, and so on. In recent weeks, many have said this sort of thing about Goldman Sachs, but with no reference to Jews. Are they all anti-Semites? No. It ought to be possible to criticize Goldman in the harshest possible terms–if you think that’s warranted–without being tarred as an anti-Semite. (Many of Goldman’s harshest critics, unsurprisingly, are Jewish. Jews can be anti-Semites, too.)

Then there is this oft-quoted passage at the beginning of a lengthy rant against Goldman Sachs by Matt Taibbi last July in Rolling Stone: “The world’s most powerful investment bank is a great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money.” This sentence, many have charged, goes beyond stereotypes about Jews and money, touches other classic anti-Semitic themes about Jews as foreign or inhuman elements poisoning humanity and society, and–to some critics– even seems to reference the notorious “blood libel” that Jews use the blood of Christian babies to make matzoh.

Taibbi claims to have been utterly blindsided by accusations that his article was anti-Semitic. He says he finds the idea “ludicrous.” He denies any relation between his words and classic anti-Semitic stereotypes. His critics find this impossible to believe. Could such a sophisticated writer (the article skewers Goldman with great skill and style) actually not know about the stereotypes and ancient lies that this passage echoes, and could he actually be surprised that there would be people calling his article, fairly or otherwise, anti-semitic? It may be possible to call Goldman Sachs a bloodsucker without being an anti-Semite. But is it possible to call Goldman Sachs a bloodsucker and then be surprised when you’re called an anti-Semite?

Posted in Antisemitism, CEO, Democrats, Israel, Jew, Jewish Interest, Law, Obama, Politics, Steven Eidman, Wall Street, banks, business, culture, economics, economy, history, psychology | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , | 1 Comment »

iPAD Thoughts

Posted by steveneidman on January 28, 2010

First Impressions of the New Apple iPad

by Walter S. Mossberg

It’s about the software, stupid. While all sorts of commentators were focusing on how much Apple’s new $499 iPad tablet computer looks like an oversized iPhone, the key to whether it can be the first multi-function tablet to win wide public acceptance probably lies in whether consumers perceive it as a suitable replacement for a laptop in key scenarios. And that, in my view, depends heavily on the software and services that flow through its handsome little body.

I have only spent a short time hands-on with the iPad–too short to fully run it through its paces and formally review it yet. But, after attending the rollout of the new device today, and trying out some of its features for myself, I have some first impressions.

Apple CEO Steve Jobs positioned the iPad as belonging to a new category of device between the smartphone and the laptop (since the netbook, in his view and mine, is really just a small, cheap laptop). But, as the demos unfolded, I kept thinking it was more like a hybrid of the two. 

It uses the iPhone’s basic user interface and physical design. But, taking advantage of a 9.7″ screen and a fast Apple-designed processor, the iPad adds some user interface elements and functionality that aren’t available–or at least typical–on smart phones, but look more like computer software. For instance, its photo program works more like iPhoto on a Mac than the photo app on an iPhone, and it will be available with a touch version of Apple’s iWork productivity suite, which is Apple’s take on Microsoft Office. This is a much more powerful program than the phone-based office suites for the iPhone or BlackBerry, and Apple (AAPL) is only charging $30 for it.

Posted in CEO, Computers, Music, Social Network, arts, business, celebrity, culture, economics, economy, tehcnology | Tagged: , , , , , , | 3 Comments »

Posted by steveneidman on January 27, 2010

 

For the Love of Culture

Google, copyright, and our future.

In early 2002, the filmmaker Grace Guggenheim–the daughter of the late Charles Guggenheim, one of America’s greatest documentarians, and the sister of the filmmaker Davis Guggenheim, who made An Inconvenient Truth-decided to do something that might strike most of us as common sense. Her father had directed or produced more than a hundred documentaries. Some of these were quite famous (Nine from Little Rock). Some were well-known even if not known to be by him (Monument to a Dream, the film that plays at the St. Louis arch). Some were forgotten but incredibly important for understanding American history in the twentieth century (A Time for Justice). And some were just remarkably beautiful (D-Day Remembered). So, as curator of his work, Grace Guggenheim decided to remaster the collection and make it all available on DVD, which was then the emerging platform for film.

Her project faced two challenges, one obvious, one not. The obvious challenge was technical: gathering fifty years of film and restoring it digitally. The non-obvious challenge was legal: clearing the rights to move this creative work onto this new platform for distribution. Most people might be puzzled about just why there would be any legal issue with a child restoring her father’s life’s work. After all, when we decide to repaint our grandfather’s old desk, or sell it to a neighbor, or use it as a workbench or a kitchen table, no one thinks to call a lawyer first. But the property that Grace Guggenheim curates is of a special kind. It is protected by copyright law.

Documentaries in particular are property of a special kind. The copyright and contract claims that burden these compilations of creativity are impossibly complex. The reason is not hard to see. A part of it is the ordinary complexity of copyright in any film. A film is made up of many different creative elements–music, plot, characters, images, and so on. Once the film is made, any effort at remaking it–moving it to DVD, for example–could require clearing permissions for each of these original elements. But documentaries add another layer of complexity to this already healthy thicket, as they typically also include quotations, in the sense of film clips. So just as a book about Franklin Delano Roosevelt by Jonathan Alter might have quotes from famous people talking about its subject, a film about civil rights produced in the 1960s would include quotations–clips from news stations–from famous people of the time talking about the issue of the day. Unlike a book, however, these quotations are in film–typically, news footage from CBS or NBC.

Whenever a documentarian wanted to include these clips in his film, he would ask CBS or NBC for permission. Most of the time, at least for a healthy fee, CBS and NBC and everyone else was happy to give permission so as to be included. Sometimes they wanted to see first just how the clip would be used. Sometimes they would veto a particular use in a particular context. But in the main there was a healthy market for securing permission to quote. The lawyers flocked to this market for permission. (That’s their nature.) They drafted agreements to define the rights that the quoter would get.

I suspect that most filmmakers never thought for a second about how odd this “permission to quote” was. After all, does an author need to get permission from The New York Times when she quotes an article in a book about the Depression? Indeed, does anyone need permission from anyone when quoting public statements, at least in a work talking about those statements? Ordinarily, one would think that this sort of “use” is “fair,” under the rules of copyright at least. But most documentarians–indeed, most filmmakers–did not care to work through the complexity and the uncertainty of a doctrine such as “fair use.” Instead they agreed to licenses that govern–exclusively, as they typically asserted–the rights to use the quotes that were in the film. So, for example, the license would insist that the only right to use the film came from the license itself (not fair use). And it would then specify the scope and term of the right–five years, North American distribution, for educational use.

What that agreement means is that if the filmmaker wanted to continue to distribute the film after five years, he would have to go back to the original rights holder and ask for permission again. That task may not sound so difficult if you think about one clip in one documentary. But what about twenty, thirty, or more? And even assuming that you can find the original holders of the rights, they now have you over a barrel–as the owners of the famous series Eyes on the Prize discovered. Jon Else, the producer and cinematographer for the series, described the problem in 2004 (extraordinary efforts have now resolved it):

[The series] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film.

As American University’s Center for Social Media concluded, “rights clearance costs are high, and have escalated dramatically in the last two decades,” and “limit the public’s access” to documentary film. The consequence of this ecology of creativity is that the vast majority of documentaries from the twentieth century cannot legally be restored or redistributed. They sit on film library shelves, many of them dissolving, since they were produced on nitrate-based film, and most of them forgotten, since no content company or anyone else can do anything with them. In this sense, most of these works have been made orphans by a set of agreements concluded at their birth, which–like lead in gasoline–were introduced without any public recognition of their inevitable toxicity.

Except of course for those with a devoted heir, such as Grace Guggenheim. She was not willing to accept defeat. Instead she set herself the extraordinary task of clearing all of the rights necessary to permit her father’s films to be shown. Eight years later, she is largely done. About ten major works remain. Just last year, her father’s most famous documentary–Robert Kennedy Remembered, made in 1968 in the two months between Kennedy’s assassination and the Democratic National Convention, and broadcast only once–was cleared for DVD release through the Robert F. Kennedy Memorial Center.

I entered the rare book room at the Harvard law library for the first time last fall. At the end of the main reading room, the Elihu Root Room, there are bookcases filled with old books, some of them older even than the Republic. I had come to see just what it would take to have a look at the oldest published works that were available at this, one of America’s premier libraries. Not much, it turned out. The librarians directed me to a table. I was free to page through the ancient text, carefully.

Books–physical books, and the copyrighted work that gets carried in them–are an extraordinarily robust cultural artifact. We have access to practically every book ever published anywhere. You do not need to be a Harvard professor to enter the rare book room at the law library. You do not need to touch rare books to read the work those books hold. Older works–before 1923, in the United States–are in the public domain, which means that anyone, including any publisher, can copy and reprint that work without any permission from anyone else. There is no Shakespeare estate that reviews requests for new editions of Hamlet. The same is true for every nineteenth-century author in America. These works are freely and widely available, because no law restricts access to these works.

And just about the same is effectively true for any book still under copyright. No doubt, publishers are not free to take the latest Grisham novel and print a knockoff. But through the extraordinary efforts of libraries (and they are Herculean, no doubt) and used bookstores, you can get access to basically anything, and for practically nothing. Your library can get it, and share it with you almost for free. Your used bookstore can find it and sell it to you for less than the cost of a night at the movies.

So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it–some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation.

Things could have been different. Documentary films could have been created the way books were, with writers using clips the way historians use quotations (that is, with no permission at all). And likewise, books could have been created differently: with each quotation licensed by the original author, with the promise to use the quote only according to the terms of a license. All books could thus be today as documentary films are today–inaccessible. Or all documentary films today could be as almost all books are today–accessible.

But it is the accident of our cultural history, created by lawyers not thinking about, as Duke law professor Jamie Boyle puts it, the “cultural environmental consequences” of their contracts, that we can always legally read, even if we cannot legally watch. In this contrast between books and documentaries, there is a warning about our future. What are the rules that will govern culture for the next hundred years? Are we building an ecology of access that demands a lawyer at every turn of the page? Or have we learned something from the mess of the documentary-film past, and will we create instead an ecology of access that assures copyright owners the incentive they need, while also guaranteeing culture a future?

II.

There has been a rage of attention to the recently revised proposal for a settlement by Google of a lawsuit brought against it by the Authors Guild of America and the Association of American Publishers (AAP). In 2004, Google launched the sort of project that only Internet idealists such as the entrepreneur and archivist Brewster Kahle had imagined: to scan eighteen million books, and make those books accessible on the Internet. How accessible depended upon the type of book. If the book was in the public domain, then Google would give you full access, and even permit you to download a digital copy of the book for free. If the book was presumptively under copyright, then at a minimum Google would grant “snippet access” to the work, meaning you could see a few lines around the words you searched, and then would be given information about where you could buy or borrow the book. But if the work was still in print, then publishers could authorize Google to make available as much of the book (beyond the snippets) as the publishers wanted.

The Authors Guild and AAP claimed that this plan violated copyright law. Their argument was simple and obvious–at least in the autistic sort of way that copyright law thinks about digital technology: when Google scanned the eighteen million books to build its index, it made a “copy” of them. For works still under copyright, the plaintiffs argued, this meant that Google needed permission from the copyright owner before that scan could occur. Never mind that Google scanned the works simply to index them; and never mind that it would never–without permission–distribute whole or even usable copies of the copyrighted works (except to the original libraries as replacements for lost physical copies). According to the plaintiffs, permission was vital, legally. Without it, Google was a pirate.

For 16 percent of the eighteen million books, the plaintiffs’ charges were no problem: these were works in the public domain. The law assured Google the free right to copy them. Likewise for the 9 percent that were still in print: for these too, it was relatively easy to identify who to ask before scanning was to happen. Publishers were delighted to assure this simple and cheap marketing for published works (practically all had signed up for the service before Google announced Google Book Search). But for 75 percent of the eighteen million books in our libraries, the rule of the plaintiffs would have been a digital death sentence. For these works–presumptively under copyright but no longer in print–to require permission first is to guarantee invisibility. These works are, practically speaking, orphans. It is effectively impossible–at least at the wholesale level–to secure permission for any use that triggers copyright law.

Google maintained–rightly, in my view–that its “use” of these copyrighted works (copying them so as to index them, and then simply enabling a search on that index) was “fair use.” That meant it needed no one’s permission before it scanned them, so long as its use was sufficiently transformative. But had Google lost the argument–and courts have been known to reach the wrong conclusion in copyright cases–then the company faced crippling liability.

So when it was given a chance to settle, it is no surprise Google took it (though Google insiders insist that fear of liability was not a motive). To its great credit, Google did not back off its claim that its use would have been a “fair use.” And even better, it secured from the plaintiffs and for the public a better deal than what “fair use” would have given it and the public. Under the settlement, Google would pay for the right to make up to 20 percent of copyrighted books whose author could not be found available to the public for free; and beyond 20 percent, the public could pay to access the full book, with the funds given over to a new non-profit charged with getting these royalties to the authors who want them. We get one-fifth of all the orphans (or one-fifth of each orphan) for free. And Google got the chance to build an eighteen-million-book digital library.

There is much to praise in this settlement. Lawsuits are expensive and uncertain. They take years to resolve. The deal Google struck guaranteed the public more free access to free content than “fair use” would have done. Twenty percent is better than snippets, and a system that channels money to authors is going to be liked much more than a system that does not. (Not to mention that the deal is elegant and clever in ways that a contracts professor can only envy.)

Yet a wide range of companies, and a band of good souls, have now joined together to attack the Google settlement. Some charge antitrust violations. Some fear that Google will collect information about who reads what–violating reader privacy. And some just love the chance to battle this decade’s digital giant (including last decade’s digital giant, Microsoft). The main thrust in almost all of these attacks, however, misses the real reason to be concerned about the future that this settlement will build. For the problem here is not just antitrust; it is not just privacy; it is not even the power that this (enormously burdensome) free library will give this already dominant Internet company. Indeed, the problem with the Google settlement is not the settlement. It is the environment for culture that the settlement will cement. For it practically guarantees that we will repeat the cultural-environmental errors of our past, by now turning books into documentary film.

To grasp the problem, you must actually open up the 165-page-long settlement and read a bit of the language. (The first twenty or so pages are definitions, so skim those.) Very quickly, one sees that the Twitter version of this settlement sounds better than the actual document reads. For rather than a relatively simple rule about how much of a book you get for free, and when you have to pay, the actual terms are enormously complex. Whether a book is “free” depends upon the kind of book it is. Journals have a different rule from regular books. Books with pictures have a different rule again.

The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks.

I had been thinking about this issue as a theoretical matter for some time. But then, a few months ago, it hit me quite directly. My wife had just given birth to our third child. On the morning of the child’s third day, doctors were worried about jaundice. By the evening, the child had fallen into a state of severe lethargy. We called the doctor. He wanted a report in two hours. If she did not improve, he wanted her taken to the emergency room. By midnight she had not improved, and so I bundled her into the car seat and raced to nearby Children’s Hospital.

As I sat waiting for the doctor, I began reading an article I had found through Google about jaundice and its dangers. Fortunately, the piece was published by the American Family Physician, which makes its articles available freely on the Internet. And so with an increasing feeling of panic, I read about the condition–hyperbilirubinemia–that the doctor feared our child had developed.

I reached a critical part of the article. It referred to a table. I turned the page to see the table. The table was missing. In its place was a notice: “The rightsholder did not grant rights to reproduce this item in electronic media.” No one had licensed the table for free distribution. Distribution was thus blocked. “Have your lawyer call my lawyer,” the article seemingly urged. “We’ll work something out.”

I sat in that waiting room chair staring in disbelief. It was a relief of sorts, to fear for the future of our culture rather than the future of my daughter. But I was astonished. I could not believe that we were this far down the path to insanity already. And that experience spurs me to ask some urgent questions. (The kid is fine, by the way.) Before we continue any further down this culturally asphyxiating road, can we think about it a little more? Before we release a gaggle of lawyers to police every quotation appearing in any book, can we stop for a moment to consider whether this way of organizing access to culture makes sense? Does this complexity get us something we would not get under the older system? Does this innovation in obsessive control produce any new understanding? Is it really progress?

Whatever your view of it, notice first just how different this future promises to be. In real libraries, in real space, access is not metered at the level of the page (or the image on the page). Access is metered at the level of books (or magazines, or CDs, or DVDs). You get to browse through the whole of the library, for free. You get to check out the books you want to read, for free. The real-space library is a den protected from the metering of the market. It is of course created within a market; but like kids in a playroom, we let the life inside the library ignore the market outside.

This freedom gave us something real. It gave us the freedom to research, regardless of our wealth; the freedom to read, widely and technically, beyond our means. It was a way to assure that all of our culture was available and reachable–not just that part that happens to be profitable to stock. It is a guarantee that we have the opportunity to learn about our past, even if we lack the will to do so. The architecture of access that we have in real space created an important and valuable balance between the part of culture that is effectively and meaningfully regulated by copyright and the part of culture that is not. The world of our real-space past was a world in which copyright intruded only rarely, and when it did, its relationship to the objectives of copyright was relatively clear.

We forget all this today. With all the attention that copyright law gets, we forget that there was a time when it just didn’t matter that much to the way ordinary people accessed and used culture. I don’t mean that it did not matter to authors and publishers. Of course it did. I mean that it did not matter to most people as they went about their life using, enjoying, building upon, and critiquing culture. As Michigan law professor Jessica Litman put it:

At the turn of the century, U.S. copyright law was technical, inconsistent, and difficult to understand, but it didn’t apply to very many people or very many things. If one were an author or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one’s business. Booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary consumers could go about their business without ever encountering a copyright problem.

Ninety years later, U.S. copyright law is even more technical, inconsistent and difficult to understand–but more importantly, it touches everyone and everything. In the intervening years, copyright has reached out to embrace much of the paraphernalia of modern society. The current copyright statute weighs in at 142 pages. Technology, heedless of law, has developed modes that insert multiple acts of reproduction and transmission–potentially actionable events under the copyright statute–into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law.

 

Copyright did not even matter much, as a practical matter, to most authors. If you are lucky as an author, your work has two vibrant lives. In its first life, the exclusive right of copyright is relevant. In its second life, it is not. Copyright is relevant in the first because, while a work is in print, the publisher needs (or so publishers believe) the exclusive right to publish it. But once the work passes out of print, it has become, from the author’s perspective at least, essentially free. To be sure, used bookstores make money (not much) if they sell a copy of the book, and libraries charge fees to move books from one part of the country to another. But when a used book gets sold, the author gets nothing, and when a patron in a library (in America) checks out a book, the author also gets nothing. The commercial activity of used bookstores and the non-commercial activity of libraries all happens without the permission of an author (or her lawyer), and without any emolument to an author, because none of the activities involved in selling a used book, or in lending a book in a library, triggers the law of copyright. No copy is made. No new work is derived. No performance is done in public. None of the exclusive rights of copyright reach these commercial and non-commercial uses. So the holders of that exclusive right–sometimes authors–get nothing.

Authors may not be terribly happy about this. I have heard writers in other countries brag about the $2.50 they receive each year from the tax that is imposed on libraries whenever they let people read books for free. But whether authors are happy or not, it is critical to recognize that the free access that this world created was an essential part of how we passed our culture along. When you send your children to a library to write a research paper, you do not want them to have access to just 20 percent of each book they need to read. You want them to be able to read all of the book. And you do not want them to read just the books they think they would be willing to pay to access. You want them to browse: to explore, to wonder, to ask questions–the way, for example, people explore and wonder and ask questions using Google or Wikipedia. We had a culture where an enormous chunk of cultural life was proliferated and shared without most of us ever calling a copyright lawyer. Whether authors (or more likely, publishers) liked it or not, that was our fortunate past.

We are about to change that past, radically. And the premise for that change is an accidental feature of the architecture of copyright law: that it regulates copies. In the physical world, this architecture means that the law regulates a small set of the possible uses of a copyrighted work. In the digital world, this architecture means that the law regulates everything. For every single use of creative work in digital space makes a copy. Thus–the lawyer insists–every single use must in some sense be licensed. Even the scanning of a book for the purpose of generating an index–the action at the core of the Google book case–triggers the law of copyright, because that scanning, again, produces a copy.

And what this means, or so I fear, is that we are about to transform books into documentary films. The legal structure that we now contemplate for the accessing of books is even more complex than the legal structure that we have in place for the accessing of films. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.

III.

How might we do better? What would a solution to this mess look like, a solution that would not bury our culture in a morass of legal and technical code? The core problem here is not one of Google’s creation. It is not a problem that we should expect Google, or any other private company, to solve. Indeed, Google has gone a great distance in the settlement to mitigate the problems that the law (given digital technology) imports: the settlement has a special deal for libraries and universities, and it has the potential to offer a special deal for researchers. Google and the plaintiffs have tried to grant special favors of access, no doubt to avoid precisely the kind of concern I am raising here. And no doubt the settlement as a whole is an experiment that could teach us a great deal about how culture is demanded, and what access we need to secure.

But we cannot rely upon special favors granted by private companies (and quasi-monopoly collecting societies) to define our access to culture, even if the favors are generous, at least at the start. Instead our focus should be on the underlying quandary that gives rise to the need for this elaborate scheme to regulate access to culture. However clever the settlement, however elegant the technology, we should keep Peter Drucker’s words clear in our head: “There is nothing so useless as doing efficiently that which should not be done at all.”

The problem that we are confronting is the result of a law that has been rendered hopelessly out-of-date by new technologies. The solution is a re-crafting of that law to achieve its estimable objective–incentives to authors–without becoming a wholly destructive burden to culture. The details of such a re-crafting are impossible to sketch just yet. We have all wasted too much time waging the copyright wars to know enough what a sensible peace would look like. Still, the contours of some first steps are clear enough. There are two obvious changes that the law should make, plus a third, which, though requiring a difficult choice of values, the law will have to confront.

 

The first is to make this property system more efficient. Governments establish property systems. The minimal obligation on a government is that it make its system efficient. Copyright is a property system established by the federal government. Yet that government has failed in its minimal obligation toward this property system. Copyright is among the least efficient property systems known to man. It is practically impossible–that is, without projectdefeating costs–to identify who owns what for the vast majority of work regulated by our copyright system.

The Google settlement tries to solve this problem in part. The regime that it would establish calls for the creation of a voluntary copyright registry. But as there is no obligation on anyone to participate in this registry, there is no way to be certain about who owns what. A better solution would be to shift to the copyright owners some of the burden of keeping the copyright system up to date, by establishing an absolute obligation to register their work, at least after a limited time. Thus, for example, five years after a work is published, a domestic copyright owner should be required to maintain her copyright by registering the work. Failure to register would mean that the work would pass into the public domain. Successful registration would mean a simple way to identify who owned what. (For complicated reasons having to do with international obligations, this requirement could only apply to domestic copyright owners. But the same rule could be adopted by every nation within this international regime.)

The government should not run these registries. They are the sort of thing that the Googles and Microsofts of the world should do. Rather, the government should establish the minimal protocols for these registries, and permit registrars to compete to service that registry. As with the domain name system for the Internet (and the companies that sell TNR.com and the like), these competing registrars would keep the cost low, and have a constant incentive to innovate to make the value they add better than their competitors.

This maintenance requirement should apply to books alone–for now. There are different, and enormously complicated, problems with other forms of creative work, photographs in particular, especially after a generation of law telling creators that they need do nothing to secure complete protection for their work. But the objective should be to include these other works as soon as it is feasible, so that this first and most basic obligation of a property system could be met: that it tell the world who owns what.

 

The second obvious change is to build legal-thicket weed whackers. The vast majority of the problems that we now face in preserving and securing access to our cultural past are caused by the failure of the past to anticipate the radical potential of technology in the future. The past can be forgiven for this. Even the designers of the Internet did not foresee its size or its significance. But our response to this complexity should not be simply to suffer through. The thicket of legal obligations that buries film, music, and every other form of creative work (save books) should be re-made using a rule that gives current owners the ability to secure value for those rights, but through a clearinghouse that would shift us away from a world of endless negotiation to a world where simple property rules function simply.

The details of this system are beyond the scope of an essay, but the basic idea is simple enough to sketch. For any compiled work–like a film, or a recording–more than fourteen years old (a nod to our Framers’ copyright term), the law should secure an absolute right to preserve the work without burden to the current owner. That means that Grace Guggenheim and others like her–as well as film archives and film studios–should be free to preserve film without worrying about rights clearance of any sort. Whether copying happens or not, the act of preservation should be free of legal restriction.

Beyond preservation, however, the rule will have to be more complex. The law should enable a simple way for the compiled work to clear perpetual rights to that work alone, so that it can be made available, even commercially, forever. And this requires progress in how we think about copyright. It requires giving up the idea that the elements in a compiled work–the music in a film, for example–have a continuing power to block access to, or distribution of, that work. Once a work is made, rather, we need to recognize that it has its own claim within our culture. And so long as the necessary permissions to make the work were secured originally, then at some point in the future (again, say fourteen years after its creation), the parts lose the power to control the whole.

No doubt, a composer has the right to decide whether her song appears in J.J. Abrams’s next film. But we need to move away from a system in which that composer also has the right to block the distribution of Abrams’s film thirty years after it was made. Such a system of rights is wildly too complex, and it serves no public good, and the law should not support it. Instead, after some period, the copyright owner of the compiled work needs the simple ability to secure the right to distribute the original work in whatever platform for distribution then makes sense.

 

Of course, the Constitution limits the ability of Congress to “sport away vested rights.” But that limit is itself limited. Congress cannot simply declare that rights in creative work do not exist anymore. Yet there is a long tradition in property law recognizing the right of governments to establish simple mechanisms for clearing rights. Thus a rule that permitted copyright owners of film–for example, to opt into a regime that reserved 20 percent of royalties for a collecting rights society to distribute to affected rights holders-would be one system that would cut through the present thicket while permitting compensation to the rights holders, who in theory at least are entitled to revenues.

But why should copyright owners not be permitted to agree to whatever complicated system of access they want? It’s their property, isn’t it? Here we come back to Property 101. The law has always set limits on the freedom of property owners to allocate their property as they want. Families in Britain wanted to control how estates passed down the family line. At a certain point, their wants became way too complicated. The response was rules–such as the Rule Against Perpetuities–designed to enhance the efficiency of the market by limiting the freedom of property owners to place conditions on their property, thus making it possible for property to move more simply. That is precisely the impulse I wish to recommend here: that we limit the freedom of lawyers to craft infinitely complicated agreements governing culture, so that access to our culture can be preserved.

 

The third change is the most difficult, since it involves not just old work, but also new work–and not just the battles of lawyers, but decisions about how culture gets created. Yet this question, too, must soon be resolved.

The law of copyright is shot through with balances struck to protect markets and to limit markets. Two hundred years of legislation shows a constant effort to identify and to secure the places where commercial values should reign and the places where they should be constrained. Sometimes that limit was an unavoidable by-product of the technology of copyrighted works. No one planned that reading a book would be free of copyright; it just couldn’t, in the physical world at least, be any different. Sometimes that limit was the express intention of Congress–as in the explicitly favorable terms granted to public broadcasting, for example.

We need a renewed effort to strike this balance through interests that recognize the good in both sides. It would be a mistake to destroy new markets by eliminating copyright protection where it would do good. It would also be a mistake to assume that all access to culture should be governed by markets, regardless of the effect it has on access to our past. In the most abstract sense, we need to decide what kinds of access should be free. And we need to craft the law to assure that freedom.

Some of this might be thought of as simple translation. Public radio was granted significant benefits under the Copyright Act of 1976, securing the right to use music, for example, under extremely favorable terms. But that right does not on its face extend to the new forms of Internet distribution that increasingly define how we access culture. The simplest response would be to update these earlier freedoms to take account of new media. At a minimum, we could translate the regime that existed into this new technological environment.

But translation presumes that the original meaning was intended. Sometimes it was not. Maybe the free access of libraries was planned, a decision of policy makers, or maybe it was just the unavoidable by-product of the limits of the law in an inefficient environment for enforcing the law. Though the original meaning is ambiguous, the ambiguity was latent. But now that it has been made manifest, we need to decide how far free access should reach.

I have no clear view. I only know that the two extremes that are before us would, each of them, if operating alone, be awful for our culture. The one extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism. And I see no reason to support the other extreme either–pushed by the content industry–that seeks to license every single use of culture, in whatever context. That extreme would radically shrink access to our past.

Instead we need an approach that recognizes the errors in both extremes, and that crafts the balance that any culture needs: incentives to support a diverse range of creativity, with an assurance that the creativity inspired remains for generations to access and understand. This may be too much to ask. The idea of balanced public policy in this area will strike many as oxymoronic. It is thus no wonder, perhaps, that the likes of Google sought progress not through better legislation, but through a clever kludge, enabled by genius technologists. But this is too important a matter to be left to private enterprises and private deals. Private deals and outdated law are what got us into this mess. Whether or not a sensible public policy is possible, it is urgently needed.

Posted in CEO, Democrats, Law, Music, Obama, Politics, Steven Eidman, Supreme Court, art, arts, business, celebrity, culture, economics, economy, history | Tagged: , , , , , , , | Leave a Comment »

Posted by steveneidman on January 26, 2010

The Supreme Court’s Ruling: What Would Milton Friedman Say?

Justin Fox

 

The “one and only social responsibility of business,” economist Milton Friedman wrote back in 1970 in a New York Times Magazine essay that launched a thousand arguments, is “to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game …” Friedman contrasted this with the multiple responsibilities that an individual — such as a corporate executive — might have “to his family, his conscience, his feelings of charity, his church, his clubs, his city, his country.”

His point was that CEOs shouldn’t go around imposing their own notions of social responsibility on corporations that were owned by others. Since the only interest that could possibly unite the disparate shareholders of a large corporation was making money, that was what executives should focus on during their working hours.

Now think about this argument in the context of the Supreme Court’s decision (pdf) last week to strike down all restrictions on political spending by corporations. During the oral arguments, Solicitor General Elena Kagan hinted at the Friedmanite line that corporate executives who spent shareholders’ money on political causes might not really be looking out for shareholders’ interests. To which Chief Justice John Roberts retorted:

Isn’t it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can’t sell their shares or object in the corporate context if they don’t like it?

Both James Fallows and Felix Salmon (in a blog post with the best headline ever) have made the case that Roberts doesn’t seem to understand how the relationship between corporations and their shareholders really works in these modern times, and that his obliviousness fatally undermines the Court majority’s reasoning. But let’s say Roberts is right, and America’s corporations are all faithfully abiding by Uncle Miltie’s exhortation to focus single-mindedly on looking out for their owners’ interests by making lots of money. Then the argument for imposing restrictions on corporate political activities grows even stronger.

The individuals who make up the electorate in the United States are, as Friedman described, beings of many facets — their actions and their views shaped by pecuniary self interest but also by values, beliefs, and loyalties that might conflict with that self interest. The ideal for-profit corporation, on the other hand, is out to do nothing but make as much money as it can “within the rules of the game.” It is supposed to behave in a fashion that for an individual would probably be described as psychopathic. And if corporations are allowed to play a decisive role in shaping the “rules of the game,” we have effectively put the inmates in control of the asylum.

This feels like a pretty compelling justification for treating corporations differently from individuals in the political process. And there is of course a long tradition of treating them differently. We don’t give corporations the vote, and for generations states and the federal government have tried to restrict campaign spending by corporations. Because corporations are made up of individuals, it can of course be awfully hard to draw the dividing line between corporate and individual activity. Justice Anthony Kennedy dwells on this in his majority opinion in Citizens United v. Federal Election Commission. He dwells even more on the inconsistency involved in banning some political speech (campaign spending) by corporations when we would never consider banning corporate-owned newspapers from endorsing candidates, Keith Olbermann from calling some Republican the “Worst Person in the World,” or Fox News talking head after Fox News talking head from referring incessantly to “the far-left policies of Barack Obama.”

Consistency is of course the hobgoblin of little minds (adored by little statesmen and philosophers and divines). We probably want our judges to be little statesman — not brilliantly imaginative rulebreakers. Legal opinions are supposed to be consistent with precedent and the law. In this case, though, the Supreme Court was dealing with three different and conflicting strands of law and precedent: (1) the many laws and past court rulings restricting corporate political involvement, (2) the precedent that political spending is equivalent to First-Amendment-protected speech, (3) laws and precedent that establish corporations as persons.

The Court majority chose to jettison (1) and stick with (2) and (3). I’m in no position to say the justices were wrong as matter of law. But as a matter of policy and common sense, it’s clearly (3) that’s most problematic. If corporations are persons, they are — if they behave as Milton Friedman wanted them to — persons with mental and emotional impairments so severe that any decent judge would feel entirely justified in declaring them incompetent.

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Supreme Court Decision Warps Corps’ Electoral Muscle

Posted by steveneidman on January 26, 2010

The “Devastating” Decision

Ronald Dworkin

David Bosse, president of Citizens United, posing with the group’s advocacy videos (Lucian Perkins/Washington Post/Getty Images)

Against the opposition of their four colleagues, five right-wing Supreme Court justices have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election. In an opinion written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas, the Court overruled established precedents and declared dozens of national and state statutes unconstitutional, including the McCain-Feingold Act which forbade corporate or union television advertising that endorses or opposes a particular candidate.

This appalling decision, in Citizens United v. Federal Election Commission, was quickly denounced by President Obama as “devastating”; he said that it “strikes at our democracy itself.” He is right: the decision will further weaken the quality and fairness of our politics.

The Court has given lobbyists, already much too powerful, a nuclear weapon. Some lawyers have predicted that corporations will not take full advantage of it: they will want to keep their money for their business. But that would still permit carefully targeted threats. What legislator tempted to vote for health care reform or Obama’s banking reorganization would be indifferent to the prospect that his reelection campaign could be swamped in a tsunami of expensive negative advertising? How many corporations fearful of environmental or product liability litigation would pass up the chance to tip the balance in a state judicial election?

On the most generous understanding the decision displays the five justices’ instinctive favoritism of corporate interests. But some commentators, including The New York Times, have suggested a darker interpretation. The five justices may have assumed that allowing corporations to spend freely against candidates would favor Republicans; perhaps they overruled long-established laws and precedents out of partisan zeal. If so, their decision would stand beside the Court’s 2000 decision in Bush v. Gore as an unprincipled political act with terrible consequences for the nation.

We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it. The conservative justices savaged canons of judicial restraint they themselves have long praised. Chief Justice Roberts takes every opportunity to repeat what he said, under oath, in his Senate nomination hearings: that the Supreme Court should avoid declaring any statute unconstitutional unless it cannot decide the case before it in any other way. Now consider how shamelessly he and the other Justices who voted with the majority ignored that constraint in their haste to declare the Act unconstitutional in time for the coming mid-term elections.

Citizens United, a small nonprofit corporation almost entirely financed by individual contributions, had made a very negative film about Hillary Clinton. It asked the Court only to rule that its method of distributing that film, on a video-on-demand service, was not outlawed by the Act. It offered several arguments, some of them plausible, for interpreting the Act that way. So the Court did not have to decide whether to overrule the Act: it could have agreed with Citizens United while reserving that larger question. But after they first heard arguments in the case, the five justices declared that they wanted, on their own initiative, to consider declaring the Act unconstitutional. They introduced that unnecessary issue themselves and then scheduled an emergency special hearing during the summer so that they could strike down the statute as quickly as possible.

Justice Kennedy, in his opinion for the 5-4 majority, tried to explain why that was necessary. It would have been possible, he conceded, to interpret the McCain-Feingold Act’s prohibition of corporate “broadcast, cable, or satellite” electioneering that is “publicly distributed” as not applying to video-on-demand TV. But he declined this strategy because transmission technology could be expected to change so that the Court would be required to revisit the issue time and time again. He did not explain why the Court could not have drafted a general principle interpreting the statute to guide future decisions as technology develops, as it has in so many other cases. For example, the court’s doctrine of “reasonable expectation of privacy” is designed to adapt to evolving technology of surveillance and spying.

The conservative justices also had to overrule two of the Court’s prior decisions—its 1990 Austin and 2003 McConnell decisions. In his Senate hearings, Roberts declared his great respect for judicial precedent: he said that just because he thought that an earlier Court decision had been wrongly decided or poorly argued would be no reason to overrule it. It would have to have proved unworkable or its basis in principle would have to have been eroded by other intervening decisions. Kennedy offered no evidence that restrictions on corporate electioneering had proved unworkable, which is not surprising because such restrictions had been in place since 1907.

Instead he argued that the two decisions were themselves inconsistent with other precedent. But as Justice John Paul Stevens pointed out in his long and impressive dissenting opinion, Kennedy was able to cite only one past decision actually to that point: the Court’s 1978 Bellotti decision, in which it in fact denied what Kennedy takes it to have held. “Our consideration of a corporation’s right to speak on issues of general public interest,” the Court stated in that case, “implies no comparable right in the quite different context of participation in a political campaign for election to public office.” Kennedy disregarded that clear statement because, he said, it occurred in “a single footnote.” But that is a natural place for a clarification; and Kennedy’s suggested distinction between text and note is entirely novel. Some of the Court’s footnotes have proved much more important than the decisions to which they were attached.

The main theoretical flaw in Kennedy’s opinion is different, however. The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of his argument—that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.

Kennedy’s opinion left Americans very little room to protect themselves against this further degradation of their democracy. But it did leave some. He acknowledged that the ruling does not prevent Congress from requiring reasonable disclosures and disclaimers in corporate advertising. I believe Congress should require a prominent statement in every such ad disclosing any corporate sponsors and declaring that their support represents the opinion of the corporation’s officers, who have a duty to promote the corporation’s own interests, and not necessarily the opinion of any of their shareholders who are actually paying for the ad.

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Chrome The Conqueror?

Posted by steveneidman on July 8, 2009

Google’s War On The PC

by Douglas Rushkoff

As the GoogleApps suite of programs finally graduated from its “beta” status this week, Google also announced its plans to release an operating system on which to run them. Google Chrome, based on the company’s new browser, will invite us all to spend a lot less time, energy, and money on our computers—and in the process, it may force the technology industry to consider how to make money after people no longer require expensive machines and software to do their work.

In a sense, Google is just bringing computing back to the way it was supposed to be.

When Steve Jobs toured Xerox PARC and saw computers running the first operating system that used windows and a mouse, he assumed he was looking at a new way to work a personal computer. He brought the concept back to Cupertino and created the Mac, then Bill Gates followed suit, and the rest is history.

What Jobs didn’t happen to notice was that the computer operating system he witnessed and copied wasn’t meant as a way to organize the software and data on a single machine—it was actually a way for computers on a network to share resources. Not only files, but the software to work with them. The computers themselves were to be just dummies—terminals from which to run software and access files that were stored on someone else’s expensive computer.

Instead, our operating systems have moved away from sharing and towards ownership. We buy a big powerful machine and do everything on it ourselves. This suits software and hardware companies just fine: they create new, bloated programs that require more disk space and processing power. We buy bigger, faster computers, which then require more complex operating systems, and so on. (It’s as if the car companies and asphalt industry worked together, building roads that required new kinds of cars, and then cars that required new kinds of roads.)

But, as more computer users are coming to realize, owning hardware and software is actually more of a liability than an asset. Whether it’s watching a $4,000 laptop fall off the conveyor belt at airport security, contending with a software conflict that corrupted your file management system, or begging your family to stop opening those virus-carrying “greeting cards” attached to emails, all computer owners are highly-leveraged and highly-vulnerable technology investors.

While there have been “cloud computing” efforts before, they always ran up against people’s (false) notions of computer privacy, virus contagion, and fear of dependence. While sporting a new super laptop felt like driving a Porsche, using a shared application felt more like taking the bus.

Google Apps helped retrain us to work in a networked fashion. Instead of opening a word processing program on our own computers, we used a browser to open Google’s word processor. No updates to worry about, no new versions, no file compatibility—or even file storage. It’s all someone else’s problem. Meanwhile, the net-based applications are much more biased towards collaboration and sharing than stuff stored on our laptop. While any file can be kept viewable or changeable by only you, it can also be shared with whomever you choose to invite. For those temporarily offline, Google provided a small application through which people could still work on their files remotely before reconnecting to the network.

Although Google Apps alone may not have convinced the public of the benefits of cloud computing, the introduction of $100 and $200 “netbooks” like the Asus Eee and Dell Mini 9 liberated users from the myth that owning more computer was somehow better than owning less. Miniature keyboards notwithstanding, netbooks could as easily be “net desktops,” running nimbly on bloatware-free Linux operating systems.

With Google now building a Linux-based netbook OS of its own, those last barriers to entry will be removed. People who want to spend less, work less, and get more, will have an option. Instead of figuring out how to hack their netbooks to run illegal copies of the Mac OS X, people will be clicking a button to install a free, legal, and streamlined Google OS Chrome. (Mac OS X is actually bigger than the whole hard drive on my current netbook, anyway.)

The most legitimate concern, of course, is whether a Google OS will end up centralizing control of software and data in a previously decentralized universe. I’d have to say no. Being essentially forced to use Microsoft Word by a Windows-addicted industrial complex is no better; worse, in fact, because I have to pay for the bloated program. By taking away our need to own software individually, Google is not taking away the equivalent of our right to bear arms; it is simply exposing how little agency all of our store-bought software packages afforded us in the first place.

And luckily for us (if not the company’s shareholders) Google tends to do things because they’re neat, and worry about business models later. While it may imagine its OS will provide new opportunities to sell advertising space, chances are Google is hoping to benefit purely from the increased Internet traffic catalyzed by an always on, always connected, and always collaborating network of users. In the Chrome universe, a piece of software will not be a disk you buy, own, and are stuck with, but a place you go. So if Google ends up turning its networked programs into advertising platforms, we’ll be freer than we were before to do our computing elsewhere.

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Reform: Over Before it Began?

Posted by steveneidman on June 25, 2009

Lobbyists on a Roll:

Gutting Reform on Banking, Energy, and Health Care

by Arianna Huffington

Remember all that change Americans voted for in November? Well, there’s been a change in the plans for change.

The detour has come courtesy of a familiar nemesis: DC lobbyists who, this year alone, have watered-down, gutted, or out-and-out killed ambitious plans for reforming Wall Street, energy, and health care.

The media like to pretend that something’s at stake when a big bill is being debated on the House or Senate floor, but the truth is that by then the game is typically already over. The real fight happens long before. And the lobbyists usually win.

They’re used to administrations and newly elected Congresses that come in with big plans for the future. But, as Obama and Congressional reformers are finding out, the future doesn’t have a well-funded lobby. The past, on the other hand, is extremely well represented.

Look at the auto industry. For decades, Detroit and its lobbyists fought tooth and nail against efforts to improve mileage efficiency standards or to close tax loopholes favorable to gas-guzzling SUVs. They were very successful at holding off the future. Until they went bankrupt.

“While I’m not spoiling for a fight, I’m ready for one,” Obama said in his radio address last weekend, referring to his push for a new consumer finance regulatory agency. Let’s hope he is, because getting a reform bill that still includes actual reforms through both houses of Congress is easier said than done.

The president has already seen what the lobbyists can do. In May, he signed the Helping Families Save Their Homes Act, and celebrated it as an example of doing “what we were actually sent here to do — and that is to stand up to the special interests, and stand up for the American people.”

But, in fact, those special interests had stood up to him and helped eliminate the most important legislative initiative affecting homeowners — the cramdown provision in the bankruptcy bill.

It shows just how powerful the lobbyists are: even those representing the banks that helped bring about the financial meltdown still hold sway over our elected officials.

The same goes for the lobbyists representing the credit rating agencies which, despite having played a key role in causing the economic crisis, escaped with barely a wrist slap in the Treasury’s big new reform plan. Here’s how the Wall Street Journal put it:

If world-class lobbying could win a Stanley Cup, the credit-ratings caucus would be skating a victory lap this week. The Obama plan for financial re-regulation leaves unscathed this favored class of businesses whose fingerprints are all over the credit meltdown.

That’s the thing about lobbyists: they serve no ideological master. It’s not about right vs left or Democrats vs Republicans. It’s only about the bottom line — ie pushing their special interests, no matter how much it undermines the public interest. No wonder they are as likely to incur the wrath of the Wall Street Journal as Mother Jones.

Last year, 15,000 registered lobbyists spent more than $3.25 billion trying to sway Congress. This year has brought even more of the same. Oil and gas companies spent $44.5 million lobbying Congress and federal agencies in the first quarter of 2009 — more than a third of the $129 million they spent in all of 2008, which in itself was a 73 percent increase from two years before. Medical insurers and drug companies are also digging deep: 20 of the biggest health insurance and drug companies spent nearly a combined $35 million in Q1 — a 41 percent increase from the same quarter last year.

All that spending has proven to be money disturbingly well spent.

Take energy policy. President Obama arrived at the White House promising prompt and far-reaching policies on climate change. But the energy bill currently winding its way through Congress, officially called the American Clean Energy and Security Act, is in danger of becoming considerably less, uh, clean. As HuffPost’s Ryan Grim reported last week, the coal lobby may be on the verge of a big victory — essentially gutting the Clean Air Act by taking away the executive branch’s authority, through the EPA, to regulate carbon emissions at the nation’s dirtiest coal plants.

But, wait, you may be thinking, isn’t the House Energy and Commerce Committee, which cut the deal with the coal industry, controlled by Democrats? As I said, lobbying isn’t a Democrat vs Republican issue.

The Dems on the Homeland Security Committee are also killing a key provision in a chemical security bill. Art Levine has the details.

The story is very familiar: new rules are announced proclaiming a better, safer system for the future. But then industry lobbyists howl about “loss of jobs,” and “decreased competitiveness,” so waivers are added. Then some exemptions. Then some loopholes. Then authority to enforce the new rules is limited. By the time the bill hits the floor, it’s still got the word “Reform” or “Clean” or “Safety” in the name, but the finished product is all about maintaining the status quo. And a very stubborn status quo it is. For instance, the reason a new chemical safety bill is needed is because this exact process of gutting reform happened in 2001.

Which brings us to health care and the reform-killing armada currently steaming towards Washington. Their attack is shaping up to be unprecedented. For example, the U.S. Chamber of Commerce has pledged $100 million to defeat reform — while, of course, calling it reform.

Much of the battle will be focused on the so-called public option, which the American Medical Association has already given a cold shoulder to, telling Congress it “does not believe creating a public health insurance option… is the best way to expand health insurance coverage and lower costs.” Indeed, the AMA has been steeling itself for this battle. Since the 2000 election, it has doled out almost $10 million to congressional candidates.

And, again, this fight won’t break down along Democrat vs Republican battle lines. Case in point: Tom Daschle. The former Senate Majority Leader, who came within a few unreported chauffeur-driven rides of being Obama’s health care reform czar, recently hinted that Obama would have to drop the public option. “We’ve come too far and gained too much momentum for our efforts to fail over disagreement on one single issue,” he told ABC News.

Of course, as Daschle certainly understands, without that “one issue,” there is no real reform. But that’s the reform killer’s M.O.: identify the essential element of any reform bill and remove it — leaving behind a worthless shell.

Daschle later walked back his comment, but anybody who expects him to be on the side of health care reform hasn’t been paying close attention to Daschle’s career. Along with two other former Senate Majority Leaders, Bob Dole and Howard Baker, Daschle is part of something called the Bipartisan Policy Center, which released its own health care plan last week. As HuffPost’s Sam Stein reported, among the funders (and listed as a “substantial contributor”) of BPC is the pharmaceutical giant Schering-Plough, a member of the Pharmaceutical Research and Manufacturers Association, which seems determined to slay the public option.

Also working at BPC is former Clintonite Chris Jennings, who used his Clinton administration clout to earn millions lobbying for several health and drug companies.

And this isn’t the first time Daschle and Dole have worked together. They’re both currently employed by the lobbying firm Alston + Bird, which has dozens of clients with a vested interest in undermining health care reform. Neither man, incidentally, is a registered lobbyist — Daschle is a “Special Policy Adviser,” and Dole is a “Special Counsel.” But we all know what they’re being paid to do. Especially since, as Paul Blumenthal writes, almost fifty percent of Alston + Bird’s income comes from health care clients.

According to a recent NYT/CBS News poll, a whopping 72 percent of the public favors the public option. An NBC/Wall Street Journal poll had the number even higher: 76 percent. And yet you can already feel it slipping away. As Matt Yglesias writes, “So just keep in mind that when people talk about political obstacles to a robust public plan, they’re not talking about mass public opinion as an obstacle — they’re talking about the wealth and power of relatively narrow interests.”

In 1993, the Clintons tried to bypass the minefield of having Congress play a part in developing health care legislation; they simply presented their completed plan to Congress. As we know, that approach failed miserably. But, according Robert Reich, who was there, Obama appears to have overlearned the lessons of that fight.

“Right now,” he said on This Week, “the president has got to get involved, twist arms and say if I don’t have A, B, and C I’m not going to sign this bill.”

The response of George Stephanopoulos, who was also there, was illuminating. He noted that when the process began, Clinton had the support of several in the GOP. But, said Stephanopoulos, “the politics changed and it wouldn’t matter what was in the bill at the end, the Republican Party decided they weren’t going to go along with this… This week, you started to see that developing now.”

Of course, the politics didn’t just change by itself in 1993 — those Republican senators had some help in “deciding” not to go along. That same dynamic is at play right now. Check outNate Silver’s fascinating statistical analysis of the impact insurance industry lobbying is having on the process.

As usual, you have to dig deep and crunch the numbers to see the anti-reform termites gnawing away at foundational change. They prefer to do their dirty work in the dark. But you can see the results when you hear a seasoned politician such as Dianne Feinstein start making statements like the one she offered this weekend on CNN: “I don’t know that he has the votes right now. I think there’s a lot of concern in the Democratic caucus.”

“Concern”-ing a bill to death is an old Washington favorite. And that’s how reform dies. We know those who represent the past are ready, armed — and funded — to stand up and fight. What about those who represent the future?

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