S.C. Gives Free Rein to Corporate Polluters

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opinionpic.jpgJust last Tuesday, the U.S. Supreme Court surprised the legal community by issuing a preliminary injunction to stay the enforcement of sections of the Clean Air Act and the EPA's corresponding regulations. This stay effectively renders our government powerless to stop the release of hazardous substances into federal airspace for as long as there are still legal challenges pending in the courts. Although the Court treated this unexpected move as a routine procedural nicety, in reality its effects on both the atmosphere and the law could be disastrous.

Penny Pinching

It all started last June with Justice Scalia's opinion for the Court in Michigan v. EPA (14-46), in which the Agency was chastened for not adequately considering costs when promulgating these lifesaving rules. As the learned tribunal put it: "By EPA's logic, someone could decide whether it is 'appropriate' to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system." (576 U.S. __ (2015)).

However, this comparison entirely ignores the vital importance of controlling these pollutants. By the EPA's uncontested estimate, the regulations could prevent up to 11,000 instances of premature death and 130,000 respiratory attacks annually. In the natural world, they would also reduce acid rain (caused by the toxic gas hydrogen chloride, eighty-two percent of which can be traced back to power plants) and the poisoning of fish in our waterways (caused by mercury, which if ingested in fish tissue can cause cancer and irreversible birth defects).

The most conservative quantification of these restrictions' costs and benefits places the resulting national profit at $24 billion dollars. This estimate leaves out environmental preservation, untreated medical conditions, and increased agricultural productivity altogether, and for those reasons it cannot be claimed that the EPA thoroughly considered costs. Yet it remains abundantly apparent that administrative action on this literally life-or-death issue is hardly an indulgence to be indefinitely invalidated by an injurious injunction

Furthermore, the order is formally known as an interlocutory or "temporary" injunction, but its unusual lack of an expiration date will only encourage corporations to pursue frivolous and expensive lawsuits against the government in the attempt to extend the ruling indefinitely. In all probability, industry lawyers will be able to make this sanctioned lawlessness last until our next President takes office - and, unless a genuine liberal does manage to overcome the odds, this one simple measure could result in the undoing of one of this country's most crucial regulatory frameworks.

So Much for Equity

Throughout our American history, the injunction has been used repeatedly as a tool for the repression of citizens' voices and the circumvention of constitutional principles. Notable examples include In re Debs, (158 U.S. 564 (1885)), in which the Pullman strike was brutally crushed through the use of such a decree, or Walker v. Birmingham, (308 U.S. 307 (1967)), in which it was held that civil rights demonstrators were lawfully imprisoned pursuant to an order prohibiting a planned march. However, it is important to note that these results do not characterize the injunction as an institution, but rather mark a departure from its historical role.

Much of this nation's legal tradition is inherited from ancient English customs, one of which is the dichotomy between general and equity jurisdiction. The first closely resembles our modern conception of civil procedure, in which the law governs the facts and stare decisis is closely followed. The second, however, was a kinder and gentler version of the judicial process, designed more to ensure fair play than strict adherence to statutes. These cases were adjudged by the Lord Chancellor, (hence the name "chancery" jurisdiction), who was almost always a cleric, and therefore the decisions were heavily influenced by canon law and the dictates of conscience. By the 16th century, this method of decision-making was already deeply entrenched in British political culture, and therefore the Reformation did not significantly alter the function of equity courts. This arrangement even accompanied our ancestors across the Atlantic, and lasted in both countries until the widespread overhaul of the judiciary in the mid-1800s.

Even after the two systems merged, however, the special reasoning was preserved to some extent. Because common-law cases and their chancery counterparts were sometimes hard to separate under the new rules, the relief pleaded for became the main way to differentiate the two: monetary damages, which were and still are the standard form of redress, or declaratory and injunctive remedies, a more abstract solution with its origins in equity.

This is important because the complainants in these new challenges to the Clean Air Act and associated regulations are actually seeking equitable relief, but the Supreme Court's preoccupation with technicalities is contrary to the cardinal principles used to determine this variety of case. In traditionally equitable causes, courts are still justified in prioritizing social welfare and substantive justice over strict adherence to rules. As Blackstone observed in his famous Commentaries, "Equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, Equity is synonymous with justice; in that, to the true and sound interpretation of the rule." 3 B.C. 429. This interpretation has been confirmed repeatedly and resoundingly in our common law. In the landmark decision West Coast v. Parrish, we find: "The liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." (300 U.S. 379 (1937)). As Justice Holmes observed in 1896: "The true grounds of decision are considerations of public policy and social advantage, and it is vain to suppose that real solutions can come from... propositions of law which nobody disputes." Vegelahn v. Guntner (167 Mass. 92).

I remember Justice Jackson once said: "If ever we are justified in viewing a statute not narrowly as through a keyhole, but in the broad light of the good it aimed for and the evils it hoped to prevent, it is here." U.S. ex rel Marcus v. Hess, 317 U.S. 537 (1943). Given the countless human lives and priceless natural resources at stake in these circumstances, that statement seems equally apposite now.

Say No to TPP: Ole Miss Rally

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In conjunction with the international day of protest marking last Thursday's signing of the TPP, I organized a protest rally here at Ole Miss. We heard speeches about the disastrous effects of neoliberal policies in general and the TPP in particular, and signed a petition demanding that Congress refuse ratification. The event was covered by the Daily Mississippian, with a letter to the editor printed in the Oxford Eagle the day before.

tpp protest.pngThanks to Professors Joe Atkins of the journalism school and David Rutherford of the Lott Leadership Institute for their speeches, to Michael McMurray for making signs and spreading the word, to Milly West for taking the photos, to Morgan Walker for covering the story, and to everyone else for turning out despite the cold!

Say No to TPP: We Have Fed You All For A Thousand Years

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sab cat.pngThe infamous Trans-Pacific Partnership has been signed.

We at PlanetGreen feel that this song, written in 1908 by an "unknown proletarian" as a parody of a popular Kipling poem, properly marks the occasion.

We have fed you all for a thousand years
And you hail us still unfed,
Though there's never a dollar of all your wealth
But marks the worker's dead.
We have yielded our best to give you rest
And you lie on crimson wool.
Then if blood be the price of all your wealth,
Good God! We have paid it in full.

There is never a mine blown skyward now
But we're buried alive for you.
There's never a wreck drifts shoreward now
But we are its ghastly crew.
Go reckon our dead by the forges red
And the factories where we spin.
If blood be the price of your cursed wealth
Good God! We have paid it in.

We have fed you all for a thousand years--    
For that was our doom, you know,
From the days when you chained us in your fields
To the strike of a week ago.
You have taken our lives, and our babies and wives,
And we're told it's your legal share;
But if blood be the price of your lawful wealth
Good God! We have bought it fair.


P.S. Congress can still reject this disastrous deal. It is imperative that they do so.

Say No to Imported Poisons

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Fourscore and thirty years ago, the Pure Food and Drug Act passed Congress and the first thorough regulations of food production, sales and labeling went into effect. This law was, in many ways, a lone beacon of liberalism in an age characterized by "liberty of contract" and other manifestations of corporate anarchy. A New York statute providing for a twelve-hour work day had been struck down just the year before. Corrupt legislatures had been allowed to openly grant monopolies in recent memory. Bans on unionizing were commonplace conditions of employment. Yet even a nation so apparently unconcerned with the welfare of its citizens realized that humans do have the right to be reassured that they are not consuming toxins or contaminants along with their daily meals.

Now, after all this time, the Trans-Pacific Partnership is poised to strike down all the progress we've made on this front. According to the office of the U.S. Trade Representative, the parties are merely agreeing "to cooperate to ensure that technical regulations and standards do not create unnecessary barriers to trade;" however, in reality, even the most basic requirements are now imperiled. Foreign exporters will have to state that their standards of purity and cleanliness are comparable to ours, but we will no longer have the authority to make them actually comply with our regulations. In addition, other provisions of the TPP weaken our country-of-origin legislation, rendering it practically impossible for consumers to find out what if any rules were followed in the making of a particular product.

For example, many of the eleven foreign states we are prepared to sign over our safety to rely on seafood exports as a crucial part of their economy. However, sea creatures are highly likely to ingest mercury and other runoff in both foreign and domestic waters, and fish from contaminated sources have been linked to birth defects, cognitive decline, cancer, and other serious and irreversible injuries. Under the TPP, alien companies would be allowed to import these fish without any significant restrictions or inspections, compelling U.S. regulators and consumers to take their word for it that they have followed procedures equivalent to our own.

Also, any standards the pact does not outright invalidate would still be subject to challenge as "illegal trade barriers," and taxpayers could be forced to hand over exorbitant damages to corporations which have no jurisdictional ties to the United States. Under NAFTA, for example, Canada was coerced into giving the Virginia-based Ethyl Corporation 13 million dollars in recompense and a statement that certain carcinogenic gasoline additives were not harmful after all. There is no reason to believe that our government will not be railroaded into these same forced confessions about hormones, pesticides, preservatives, and other substances currently banned or tightly regulated.

The proposed Trans-Pacific Partnership does not streamline safe and cooperative commerce; rather, it forces us to drink our glass down to the bottom and then reimburse corporate criminals for the cost of the poison they poured in it.

On Certiorari With Michael Carvin

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SC.jpgJust this month, the Supreme Court heard argument in Friedrichs v. California Teachers Association, (14-915), a high-profile case about whether or not "agency shop" arrangements between a labor union and a public-sector employer violate the First Amendment. This question has not been brought in front of the Court as a broad constitutional issue since 1977, when these bargains were adjudged permissible in Abood v. Detroit Bd. of Education (431 U.S. 209) - and the legal landscape has undeniably shifted since then. The membership of the Court has changed entirely, and its interpretation of free speech has evolved almost as drastically.

The question presented in this new challenge is rather vague, partly because it is so precisely tailored to the circumstances of the cause. The decision, however, will definitely affect more than this individual dispute between an elementary-school teacher and the association she doesn't believe she should be forced to subsidize - so I tried to find out how the petitioners' main lawyer, Michael Carvin, envisions the legacy of their case.

Their brief gives us a fairly good idea of what they are specifically asking the Court to do. The surefooted style is the first thing that strikes you about Mr. Carvin's latest Supreme Court creation, which weaves punchy lines from familiar opinions such as Citizens United v. FEC (558 U.S. 310) and West Virginia v. Barnette (319 U.S. 624) in with a direct, uncomplicated argument. However, neither it nor the recent oral arguments provide much political perspective on the question or indicate the extent to which a reversal might impact other areas of labor law.

Therefore, I reached out to Mr. Carvin for answers to some of the questions that occurred to me while I was reading and listening to his positions. According to him, the vital element of this delicate constitutional equation is the government as the employer. Similar agreements between a union and a private corporation would be allowed, as would contracts requiring a worker to become a member of a specific union. Interestingly, though, he did not rule out the possibility that victory on his part could open the door to "yellow dog" conditions in public sector jobs (that is, contracts which prohibit union activity by employees, so named because early unions looked on signers as being "lower than yellow dogs"). He justified this by pointing out that both the S.C. and President Franklin D. Roosevelt believed that, in his words, "there is no constitutional right to collective bargaining with a public employer."

Both sides have legitimate concerns as to the application of the eventual ruling, and their worries are far from premature. The decision is unlikely to be rendered anytime before June, but its heritage as a precedent and the issues it deals with will continue to influence American politics and law for decades after that. Yet, as incontrovertibly important as the right to organize remains, the implications of forcing public workers to subsidize private interests of any kind could prove disastrous.

Say Yes to Senator Sanders

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From the Depths.png
We know. We've been saying "NO!" to a lot of things lately. Yet, even we finally think it's time to lay aside our righteous indignation (don't worry, it's only temporary) and add our support to a grassroots liberal cause promising to do something about the social injustices quietly plaguing our country on all fronts.

None of the establishment Presidential candidates are actually going to take action on the widening income gap, which threatens to polarize our society on an unprecedented scale; the slow poisoning of our citizens and our natural world by an outdated energy system; the strangling of a truly free market by powerful monopolies; the pointless military entanglements which traditionalists of both parties have failed to end; and the unhealthy power special interests and lobbying groups have enjoyed with impunity since Citizens United. Real reform is not effectuated by safe choices or crowd-pleasing compromises. Real reform, by definition, involves drastic change.

Bernie.png
Therefore, we at PlanetGreen.org endorse Senator Bernie Sanders for President and ask you to do the same.

It's been a very long time since outsider campaigns have even had a chance at victory. Ross Perot, running as an Independent in 1996, only managed to garner 18.9 percent of the vote.  Ex-Republican "Fighting Bob" La Follette and his would-be veep Burton Wheeler could only obtain 16.6 percent in 1924. Eugene Debs, of the I.W.W., ran as a Socialist in five elections, winning 6 percent of ballots in his best year. And Teddy Roosevelt, stumping as a Bull Moose in 1912, polled in at 27 percent. But now, in 2016, it's time for that pent-up progressivism to finally come into its own.

That's why we can't afford to be preoccupied with labels. Senator Sanders is a Democratic Socialist and unabashed idealist, but his constituency is not limited by partisan or ideological divides. His plans to repress medical monopolies and pharmaceutical cartels, raise the minimum wage, restore effective limits on greenhouse gas emissions, straighten out corrupt PACs and 527 groups, and maintain peace are unequalled in either party's field, and deserve the support of all who want to see themselves respected and valued by their government.

Furthermore, if we don't vote for Bernie, Hillary Clinton will receive the Democratic nomination. Throughout her political career as First Lady, Senator, and most recently Secretary of State, she has maintained a complacent conservatism and detente with the corporate interests. Recently, her rhetoric has incrementally improved, but after the primaries, we suspect she'll be back to the same old song:

So love me, love me, love me, I'm a liberal...

By the way -- we know Phil Ochs' voice is not the most melodic, but we do enjoy his message. We enjoy Bernie's message, too, but do NOT endorse his own, 1980s folk album, titled We Shall Overcome, which features the candidate speaking the songs against a soundtrack of reggae renditions of Woody Guthrie and Pete Seeger tunes.

Even so, voters of America, it is up to you to Say Yes to Bernie Sanders!

Even we can do it.

Say No to Labor Losses

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TPP world.pngIt's a well-established fact that neoliberal trade deals weaken labor safety standards, dispense with the right to unionize, evade and disregard minimum wage standards and exploit child labor.

The Trans-Pacific Partnership further demonstrates this idea.

NAFTA meant that we lost jobs to Canada and Mexico -- Canada to dodge paying U.S. taxes, Mexico to avoid anything close to decent wages. (This year, the minimum wage was raised to $4.30 (in U.S. dollars) per day; the average wage in the country is $5.06 per day).

In Vietnam, the minimum wage varies by region and can be less than four U.S. dollars a day. In 2012, Nike factories paid $0.27 an hour -- this has since been raised to $0.48 cents. With wages like these, customs barriers -- already low -- are no obstacle to outsourcing; the U.S. has trade deficits with Vietnam, Mexico, Malaysia, Canada and Japan already. (In fact, companies with Chinese factories keep re-outsourcing to Vietnam.) Clearly, we need to work on bringing these jobs back stateside, not sending more away.

In an attempt to deflect from the main issue, the Office of the United States Trade Representative has released a lot of gobbledygook on the subject. It contends that the TPP will promote the following goals:

  • Freedom of association and the right to collective bargaining;
  • Elimination of forced labor;
  • Abolition of child labor and a prohibition on the worst forms of child labor; and
  • The elimination of employment discrimination.
Of course, there are some obvious issues with these specious claims.

The right to join a union -- implied in the first statement -- is highly unlikely to actually be protected. For example, according to Human Rights Watch, "Vietnam bans all independent political parties, labor unions, and human rights organizations. Authorities require official approval for public gatherings and refuse to grant permission for meetings, marches, or protests they deem politically or otherwise unacceptable." In this country, workers often have difficulty exercising their rights when the NLRB and court system is supposed to defend them -- will a panel of corporate lawyers (per the ISDS system) really do better? No, so there goes your "freedom of association and right to collective bargaining."

Second, "forced labor" is not defined. Does it mean blatant slavery, or could it refer to the necessity to work at a job that puts one's life, health and well-being at risk, for paltry wages and (in some, "lucky" cases) accommodations in a huge, crowded, dirty company dormitory? The workers whose deaths caused Apple to put up its famous suicide nets certainly didn't seem to be employed there by their own volition. Wage slavery can be almost as repressive as the unadulterated article, but it's hardly probable that our governments -- or the ISDS courts -- will actually work to abolish the system.

The third provision contradicts itself. How can you promise the "Abolition of child labor and a prohibition on the worst forms of child labor." If you're really abolishing all child labor, why would you need to specifically ban "the worst forms" of it? This is just a taste of the duplicity involved in this deal.

Finally, just exactly how does the Trade Representative define "the elimination of employment discrimination?" We don't have that here. When women make 77 cents for every dollar men are paid, that's employment discrimination. When U.S. jobs are outsourced overseas because American workers tried to form a union, that's employment discrimination. When companies like Smithfield and Holiday Inn preferentially hire illegal immigrants over American citizens -- then intimidate and selectively deport those who agitate for better working and living conditions -- that's employment discrimination on a lot of levels. Companies are getting away with all of this right here in the U.S.A. -- why in the world would we expect America-as-global-policeman to be better at controlling even more flagrant abuses worldwide?

Uzbek Cotton.pngSupposedly, the U.S. will implement "consistency plans" with some of the other TPP countries (notably, not with Mexico) to enforce compliance. This begs the question -- compliance with what? The Atlantic states that "The minimum wage" required by the deal "could be set at a penny an hour--which wouldn't do much to help workers." The Office of the Trade Representative promises to "Establish rules that wil ensure that TPP countries do not waive or derogate from fundamental labor laws in a manner that affects trade or investment" -- because having sanctions instated wouldn't be fun for fat cat stockholders. But we turn blind eyes on some of the most flagrant labor violations occurring today -- for example, no government has applied sanctions to Uzbekistan over their use of child slave labor to harvest cotton. While companies from Walmart to Fruit of the Loom to IKEA to Tesco have banned the use of Uzbek cotton in products they sell, the United States has refused to do anything, since much of Uzbekistan has functioned as a giant military base during our war in Afghanistan. When "national security" -- or profit margins -- enter the picture, labor is ignored.

In conclusion, the United States needs to implement a "consistency plan" with itself, not give lip-service to labor while exploiting all the workers of the world.

Workers' Rights to Unionize, Strike Defended

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OUR Walmart.jpgOver the years, countless numbers of men, women and children have suffered and died for the right to strike, from Ludlow to Lattimer; the Triangle Shirtwaist Factory to Loray Mill; New Zealand to the Netherlands; Colorado to Colombia; South Africa to Sri Lanka; Hilo, Hawaii to Harlan County, Kentucky.

This right, however, is still not assured to millions of people around the world, including here in the USA. Too often, our corporate giants are still able to browbeat workers into submission -- or fire those who won't be cowed.

Geoffrey Carter.pngThanks to Judge Geoffrey Carter of the National Labor Relations Board, however, one such megabusiness -- Walmart -- has been rebuked for its behavior toward the "OUR Walmart" advocacy group, allied with the United Food and Commercial Workers union. Judge Carter, who has previously defended workers' rights to display union pins or logos on the job,  declared that Walmart unfairly and illegally fired employees who went on strike. He has ordered the company to offer to re-hire its sacked workers -- with back pay -- and to hold meetings in 29 stores emphasizing employees' rights to unionize and strike.

Frank Little.pngJudge Carter's decision comes just a month after Walmart's top executives (including former board member and shareholder Hillary?) were celebrating the fact that no court had held them accountable for their intimidation of OUR Walmart, which had organized protests for better wages, full-time jobs and the cessation of corporate bullying.

According to the NY Times, one manager had expressed his desire to "shoot the union," while another threatened an OUR Walmart member who was pulling a load with a rope around his waist, "If it was up to me, I would put that rope around your neck." Makes you wonder how far we've come from 1917, when Montana labor leader Frank Little (a member of the Industrial Workers of the World) was hung by vigilantes who opposed his fight against the Anaconda Copper Co...

Say No to GMO

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cornfield.pngAmerican produce is saturated in GMOs, or genetically modified organisms. 88% of corn and 93% of soybeans grown in the country are labratory-engineered; eighty percent of processed foods contain genetically altered ingredients.

However, 19 European countries have banned the production of GMO crops or foods, and all E.U. member countries have strict labeling laws. It's much easier to avoid eating GMO food.

If our financial oligarchs get their way, however, all that is about to end.

The proposed TTIP (Transatlantic Trade and Investment Partnership) with the European Union is the TPP's twin. It's equally secretive and confusing. It grants the same immense authority to corporations. Europeans are scared of it for the same reasons we're scared of the TPP: lower regulations in new "trading partners" will result in strict guidelines being struck down by panels of corporate lawyers, since constitutional court systems are being thrown out the window around the world. (Not that our constitutional court system is always on our side. In the 2013 case Bowman v. Monsanto Co, a unanimous Supreme Court -- including the infamous former Monsanto lawyer, Clarence Thomas -- said that a 75-year-old Indiana farmer who replanted some of his seeds from the previous year's crop had violated the company's patent.)

corporate court.pngAs a result, while we Americans worry about food safety standards in Asian and other Pacific Rim countries, many Europeans are worrying about American produce. The side effects of consuming genetically modified food are disturbing, regardless of the "findings" of agribusinesses and their government allies. According to the Washington, D.C. based, nonprofit Center for Food Safety, toxicity, allergic reactions, antibiotic resistance, immuno-suppression, cancer and loss of nutrition are all proven results of meddling with the genome. A recent study by an Australian researcher compared the health of pigs fed genetically modified corn and soy versus those who were given a non-GMO diet, following them from weaning to slaughter (a 23-week period). Every single pig eating GMOs had health problems, ranging from cancer to reproductive defects to intestinal problems to stomach ulcers. The other pigs were fine. Of course, none of these results had been documented in tests conducted by agribusiness giants!

The lesson we should take from this is that Americans need to stop eating these poisons, instead of letting Monsanto, DuPont and co destroy the rest of the world as well. We need an outright ban, or at least GMO labeling laws (that don't require the use of smartphones or other technology to figure out what's in your food!). And we need to Say No to trade deals that will destroy the health of billions of people.

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Say No To Kangaroo Courts

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Kangaroo.jpgAs I mentioned in my last installment of this series, TPP would eviscerate this country's already weak control over product safety. However, one argument in favor of weakening jurisdiction rules and long-arm statutes is that such an extensive reach would expose our businesses and government agencies to lengthy and costly lawsuits against them by foreign entities.

Enter the Investor-State Dispute Settlement system.

This is a binding arbitration agreement that allows corporations to challenge U.S. regulations without ever even submitting to the procedures and precedents of U.S. courts. Instead of impartial judges, they go up before a panel which, more often than not, would be made up of highly-paid lawyers from firms specializing in defending corporations and challenging government ordinances. Yet these judges would not be forbidden from practicing law between times, and in some cases representing the very parties they have just passed a judgment on. Instead of the Federal Rules of Civil Procedure or any comparable code, they would operate on a perplexing hybrid of multinational standards.

All the gains this country has made since the Roosevelt administration stand to be reversed. Any increases in the minimum wage, and possibly even our existing wages and hours laws, could be thrown over. What's left of our clean air regulations once our courts are through with them could be dismantled even further. Food safety measures dating back to 1906 are once again in danger of being arbitrarily struck down. Worst of all, though, because this tribunal's jurisdiction is reserved for cases brought by "international investors," U.S. companies, labor unions, and government agencies would still have to enforce the more liberal terms of the agreement in foreign legal systems, which are often inferior in their procedural safeguards and common law decisions.

It is hard for me to believe that we have spent so many decades and centuries attempting to improve our existing justice system and insure the fairness of every detail only to abandon it at the behest of outlaw corporations and their smooth-talking stooges. Yet, if Congress does approve the TPP, it will be rejecting our values of substantive justice at enormous cost to American consumers and workers.

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