Conscious Commitment: Help Us "Save Our Seeds"

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Recently, we told you about the unlawful practices of Monsanto Technologies, which develops and conditionally sells GMO seeds using a standardized, unconscionable contract which prohibits farmers from saving and replanting the seed. Acting under color of this misrepresentation, they have maliciously prosecuted dozens of law-abiding growers, stifled the academic freedom to research their seeds, and obtained the Supreme Court's stamp of approval on a manifest fraud.

I have since launched an initiative to bring Monsanto and their executives to justice and hold them accountable for their falsehoods. I need your help to do this, however. Recognizing that, I created a We the People petition exhorting the Department of Justice to take action against these corporate criminals:

"We the People ask our DOJ to take antitrust action against Monsanto Technologies and preserve the rights of American farmers and consumers. Monsanto has created an unconscionable, illegal contract in which farmers agree not to save seed, ignoring the clear words of patent laws and the PVPA.

Restricting access to new technology in no way furthers agribusiness' supposed goal of feeding the world; informing citizens as to the contents of the laws in no way jeopardizes any legal purpose. Our officials serve those who shape law with soft money instead of firm stands, and scientific and economic freedom is trampled as a result. We are merely asking the enforcers of our laws to take a stand for us, to recognize the flagrant violations of the Sherman Act Monsanto and like companies commit daily."

Please sign our petition today - help me live up to this "Conscious Commitment" to protect economic freedom in this country.

Update: Clean Power Remand Cert. Denied

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Yesterday, the Supreme Court issued a new list of orders in which it denied certiorari review, without explanation, to the case of Michigan v. EPA, which concerned whether the Agency unlawfully refused to consider costs in the promulgation of its Mercury and Air Toxics Standards pursuant to the Clean Air Act. It had already heard the case once last year, ruling in favor of Michigan and other industry petitioners, but sent the matter back to the D.C. Circuit without explicitly vacating the MATS.

The Circuit, led by Judge (and future Justice) Garland, accordingly allowed the MATS to remain enforceable until new guidelines were issued by the EPA. Michigan accordingly took the matter to Chief Justice John Roberts, who denied their indignant stay application of his own accord without referring the matter to conference. The ensuing full petition was also rejected in a one-line order on Monday - this is most important because it signals that no four Justices thought Michigan's position was meritorious enough to warrant a hearing, a fact that could bode well for the rest of the Clean Power Plan when West Virginia v. EPA is heard at the beginning of next Term.

This could also indicates a shift in the Court's perception of equitable relief. Since the petitioners' demands in the first Michigan fall under the purview of traditional equity rules, the courts are given greater latitude to consider the greater good when deciding on these claims. The D.C. Circuit exercised that chancery jurisdiction in this case, concluding that the benefits to citizens' health and welfare - up to 11,000 instances of premature mortality prevented annually, as well as 4,700 cardiac emergencies and 250,000 instances of respiratory illness every year - outweighed the burden that regulatory compliance places on the energy and manufacturing industries. As was said in 1947, "a strong showing is required, both of inadequacy of the prescribed procedure and impending harm, to permit short-circuiting of the administrative process," and the petitioners failed to prove that any impending harm caused by the case would adversely impact them. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752. By allowing that determination of the D.C. Circuit to stand, the Supreme Court renewed what the respondents called the tribunal's "longstanding reluctance to displace traditional equitable authority absent the 'clearest command' or an inescapable inference' to the contrary." (Citation omitted). In recent years, such deference to administrative discretion and the principles of equity has been rare, but as this denial shows, the reversal of that trend could be imminent.

The mere denial of a cert. petition is rarely treated with the same weight as a full decision, and even this acknowledgement of citizens' interests and the EPA's authority cannot fully erase the damage created by the Michigan precedent. However, the changing Court and the changing political climate inevitably move American jurisprudence forward, and we at PlanetGreen believe that someday the natural world will receive the respect from the judiciary that Justice Douglas once famously declared it deserved:

"So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes -- fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents, and which are threatened with destruction." Sierra Club v. Morton, 405 U.S. 727 (1972).

Our earlier coverage of this case, both a preliminary statement of the issues and a personal perspective.

Conscious Commitment: Inmar, Inc.

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coupon.jpgYour wallet speaks for itself. Evidence of Inmar, Inc.'s dominance in the coupon industry is everywhere. Blazoned under the colorful trademarks of everything from breakfast cereal to batteries; stacked beneath the flashing lights of that dispenser on the grocery store aisle shelf; inserted in the newspaper curled up in that mailbox; folded and crumpled in that disorganized folder; printed on glossy vibrant paper and plastered onto the boxes composing that supermarket display.

Just last April, Inmar released a statement announcing that it had taken over coupon processing services for Procter & Gamble brands. This development cements the existing diarchy Inmar and its supposed competitor but actual collaborator, Valassis Communications, enjoy over this industry. In the statement, Inmar asserts that P&G formerly handled its own coupons, but this has not always been the case. A 2006 10-K form Valassis filed with the SEC states that P&G accounted for over 10% of that company's income the previous year, indicating that P&G has merely shuttled its business between the two corporations instead of comprising a third major player in the coupon-clearing market.

In the same 10-K form, Valassis names Inmar as one of its main competitors, but this claim is plainly refuted by the business relations they openly sustain. In its capacity as the owner of RedPlum, a mailing distributing coupons held by various companies directly to consumers, Valassis openly and actively aids Inmar in disseminating its coupons. Clearly this is not the aggressive competition one would expect from two companies which jointly "control approximately ninety-five percent (95%) of the total vendor coupon redemptions" (Compl. §16, 15-4434 (JLL), Dist. NJ (1015)).

The pattern of monopolization does not stop there, however. Though Inmar's coupon redemption and product return business is its most visible enterprise to consumers, it is certainly not its only venture. It is actually the predominant figure in the pharmaceutical returns market as well, and our research into its practices indicates that the leverage it enjoys as a result of its prominence could have far-reaching consequences for citizens compelled to trust it with their health.

It was a minor incident, and never should have been the major controversy it turned into. In November of 2008, Johnson & Johnson and its affiliate, McNeil Consumer Healthcare, noticed that several lots of their product Motrin failed to satisfy their manufacturing standards and were defective. This news immediately followed a string of recalls of other popular Johnson & Johnson products, including widely used cold and allergy medicines. Presumably to avoid the negative publicity that would result from expanding the recall to include the faulty Motrin, Johnson & Johnson decided to keep their findings secret. To do this, they formed a plan to send operatives into retail stores posing as customers, who would then buy back as much Motrin as possible. However, consumers who had already bought the defective Motrin would not be notified in any way of the problems.

Johnson & Johnson then hired Inmar to carry out this clandestine design, rejecting bids from several companies to handle the recall openly. Inmar promptly mobilized its employees and contractors, instructing them:

"You should simply 'act' like a regular customer while making these purchases. THERE MUST BE NO MENTION OF THIS BEING A RECALL OF THE PRODUCT! If asked, simply state that your employer is checking the distribution chain of this product and needs to have some of it purchased for the project."

Approximately five thousand convenience stores were searched in this fashion. The first two hundred and fifty stores yielded 595 vials, but the actual number of defective Motrin remaining on the market was dramatically higher - in one state alone, seven hundred and eighty-seven packages remained missing even after Inmar's feeble attempts to rectify the situation.

The recall was finally made public in February of 2010, over a year after Johnson & Johnson became aware of the problem and over ten months after Inmar became involved in the cover-up. Congressional hearings, civil lawsuits and criminal prosecutions ensued, but though Johnson & Johnson was made to take responsibility for its misconduct, Inmar escaped any meaningful penalty.

Now, five years after the federal firestorm subsided, Inmar is still in the pharmaceutical returns business, a job mostly composed of disposing waste, juggling returned or expired merchandise, and managing recalls. On its website, it proudly boasts that it provides these services to twenty-four thousand retail pharmacies (out of approximately twenty-eight thousand in the country), giving it control over 86% of the market. As Inmar has proven in the past, this anticompetitive situation could prove injurious to consumers which may never have heard its name, but still entrust it with their well-being every time they purchase the simplest of medications.

Conscious Commitment: Monsanto, LLC

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Monsanto Technology, LLC, is a corporation organized under the laws of the state of Missouri. Monsanto is engaged in the development, licensing, and conditional sale of genetically modified agricultural seeds in interstate commerce. The natural biological and chemical makeup of these seeds has been tampered with in several ways, primarily to increase resistance to insect pests and Monsanto-made herbicides, and they have been patented under 35 U.S.C. §161. Monsanto routinely compels growers of the seeds to sign a uniform Technology/Stewardship Agreement. In the MT/SA, the farmer agrees (among other things) to limit his use of the seeds to a single planting, to use only Monsanto herbicides on his crops, to allow Monsanto unbridled access to his property and Internet records, to use only Monsanto-approved cotton gins, and not to conduct or allow any independent studies of the safety or properties of the genetically modified technology. The MT/SA does not mention the applicable patent statutes, and there is no indication that signers are made aware in any way of the content of those laws. Monsanto holds hundreds of these contracts, mostly in interstate commerce.

There is no dispute that Monsanto is the owner of the patents controlling the seed technologies it has developed. However, the MT/SA is an unconscionable contract under §2-302 of the Uniform Commercial Code and should be nullified as such.

Relevant Patents Limited in Scope

35 U.S.C. §163 simply and conclusively delineates the significance of a United States plant patent such as those held by Monsanto: "In the case of a plant patent, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States." (Emphasis supplied). This simple statute shows that Congress clearly did not envision the near-absolute control over agricultural development now held by Monsanto. As opposed to granting patent holders free rein, §163 actually strikes a delicate balance between agribusiness' incentives for new development and citizens' interest in ensuring that essential staple foods would not fall under the exclusive control of a handful of companies or inventors.

Under the plain text of §163, farmers must purchase new varieties of patented genetically modified seed from the holder of the patent. However, the use of the qualifier "asexually" conclusively indicates that the legislature intended the natural breeding, saving, and planting of seeds to remain legal. Any other reading of these terms would render the word "asexually" mere surplusage, and therefore should be rejected. As the Supreme Court stated in Connecticut National Bank v. Germain, "Courts should disfavor interpretations of statutes that render language superfluous." 503 U.S. 249 (1992).

In the context of the §163, "asexually" is a highly specific word, and its removal would have no effect on the clarity or grammatical structure of the sentence. If its inclusion had been supererogatory, Congress would doubtlessly have removed it during its 1998 revision of the section (found at Pub. L. 105-289). Instead, it merely changed a single clause - substituted the word "include" to "shall be of" - but left "asexually" in place. This change could reasonably be interpreted to proscribe other behavior, such as the artificial replication of a patent holder's genetic codes by rival companies, but it does not in any way interfere with an individual's ability to plant seeds grown in his soil and tended by his hard work. As was said in Trailmobile Co v. Whirls, 331 US 40 (1947), "The interpretation of statutes cannot safely be made to rest upon mute intermediate legislative maneuvers."

Not only is Monsanto's crafty construction of this clear, concise statute a transparently deliberate misunderstanding designed to enlarge its profits while unlawfully curtailing traditional farming practices, it is blatantly inconsistent with accepted interpretation of American law. Learned Hand, speaking for the Second Circuit, wrote in Lehigh Valley Coal Co. v. Yensavage that laws "should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them." 218 F.5d 7 (1914). In Schulte Co. v. Gangi, the Supreme Court again recognized the importance of these context clues: "For the purposes of judicial enforcement, the 'policy' of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out of the air." 328 U.S. 108 (1946). In Wright v. Denn, Justice Story held that "the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of intention." 10 Wheat. 204 (1825). In United States v. Public Utilities Comm'n, Justice Frankfurter noted that courts should not "extrapolate meaning from surmises and speculation and free-wheeling utterances, especially... in disregard of the terms in which Congress has chosen to express its purpose." 345 U.S. 295 (1953). In CT National Bank v. Germain, supra, it was held that "in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Finally, in United States v. Pulaski Co., it was held that "there is a strong presumption that the literal meaning is the true one, especially as against a construction that is not interpretation, but perversion." 243 U.S. 97 (1917). That statement seems equally applicable here.

Inapplicability of the Plant Variety Protection Act

7 U.S.C §2402, part of the Plant Variety Protection Act of 1970 ("PVPA"), dictates that "The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety, or the successor in interest of the breeder, shall be entitled to plant variety protection for the variety." However, this provision is entirely irrelevant to the case at hand for two reasons.

Firstly, the Act only applies to "sexually reproduced" plants. This clearly does not cover the complex and unnatural process of genetic manipulation or mutation. From the disparate treatment of sexually reproduced cultivars - entitled to variety protection certificates - and asexually created breeds - protected by plant patents - it is evident that the legislature intended this logical division. Any other reading would render either the word "sexually" in the PVPA or the word "asexually" in 35 U.S.C. §163 redundant.

Secondly, even if the PVPA does protect Monsanto's creations to a limited extent, the provision of the MT/SA proscribing farmers from saving and replanting seed still vastly exceeds the PVPA's protections. The vast majority of the soybeans, corn and cotton grown on American farms is not produced for horticultural purposes, and therefore §2543 states:

"It shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm of the person, or for sale as provided in this section. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement."

This unmistakeably protects the right of Monsanto's customers to continue the traditional propagation of ancient and basic cultivated crops.

MT/SA Not a Valid or Enforceable Contract

In §4(f)-(i) of the MT/SA, all growers of Monsanto seeds agree:

"f. To use Seed containing Monsanto Technologies solely for a single planting of a commercial crop, except in the case of Genuity® Roundup Ready® Alfalfa where a single planting may be used for multiple cuttings. g. Not to save or clean any crop produced from Seed for planting, not to supply Seed produced from Seed to anyone for planting, not to plant Seed for production other than for Monsanto or a Monsanto licensed seed company under a seed production contract.  h. Not to transfer any Seed containing patented Monsanto Technologies to any other person or entity for planting. i. To plant and/or clean Seed for Seed production, if and only if, Grower has entered into a valid, written Seed production agreement with a Seed company that is licensed by Monsanto to produce Seed. Grower must either physically deliver to that licensed Seed Company or must sell for non-seed purposes or use for non-seed purposes all of the Seed produced pursuant to a Seed production agreement." MT/SA at 1.

These terms are grounded in the assertion found in section 5(b) of the MT/SA, infra, that "Monsanto Technologies are protected under U.S. patent law." However, Monsanto's extraordinarily loose construction of these patent laws is plainly repugnant to their actual meaning. This deceptive statement appears highly likely to mislead growers as to the rights they actually retain under the vaguely invoked laws, and defraud them into waiving liberties they are unaware they have.

The bare fact that the growers signed the MT/SA fails to validate its usurious terms. Any threadbare defense that Monsanto enjoyed an unrestrained freedom to contract with its growers has been contradicted by the Supreme Court in its decisions dating back to 1908 (Muller v. Oregon, 208 U.S. 412). In Norman v. Baltimore & Ohio R. Co., it opined that "Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them." 294 U.S. 290 (1935). In Nebbia v. New York (291 U.S. 502 (1934)), it wrote that "government cannot exist if the citizen may at will use his property to the detriment of his fellows." In Chicago, Burlington & Quincy R. Co. v. McGuire, it held: "There is no absolute freedom to do as one wills or to contract as one chooses... Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." 219 U.S. 549 (1911). In 1943, it described American law as "a soil in which the laissez-faire concept or principle of noninterference has withered, at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." West Virginia v. Barnette, 319 U.S. 624.

Not only is freedom of contract a relative concept, its invocation requires a valid contract at the very least - and the MT/SA fails to meet that standard. The requirement that assent to a binding agreement be an informed and rational choice is one of the oldest and basic tenets of contract law. A waiver of any protections or privileges by contract or otherwise, particularly those economic and social liberties secured by the Due Process Clause, must be made "voluntarily, knowingly and intelligently." Miranda v. Arizona, 384 U.S. 436 (1966), see also Culombe v. Connecticut, 367 U.S. 568 (1961). A promise or bargain made in the absence of this mutual educated voluntariness - frequently referred to as consensus ad idem or "meeting of the minds" - is no contract at all.

This simple rule is not in any way negated by the rise of mass commercial contracts, such as the MT/SA, that corporations enter into with hundreds or even thousands of their consumers. If this new social reality has any affect on established common law at all, it only renders the requirement more essential, lest large entities like Monsanto abuse their inherent advantage in the bargaining process. As was asked in Henningsen v. Bloomfield Motors: "Where can the buyer go to negotiate for better protection? Such control and limitation of his remedies are inimical to the public welfare and, at the very least, call for great care by the courts to avoid injustice through application of common-law principles of freedom of contract." 32 N.J. 358 (1960). See also Siegelman v. Cunard White Star, 221 F.2d 189 (2nd Cir. 1955) ("Standardized contracts have been described as those in which one predominant party will dictate its law to an undetermined multiple rather than to an individual. They are said to resemble a law rather than a meeting of the minds").

These contracts are also deemed unenforceable by Missouri law, which says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." Uniform Commercial Code, §2-302. Yet Monsanto continues to peddle the MT/SA despite this unambiguous prohibition of such behavior.

The MT/SA clearly does not meet these requirements. In a society where criminal suspects must be diligently educated as to their rights to remain silent and to the advice of counsel - information most Americans already know - any expectation that farmers should be intimately acquainted with the terms of obscure legislation seems inconsistent and unreasonable. As Justice Jackson noted from the bench in Federal Crop Ins. Corp v. Merrill, "No farmer worth his salt would waste any time reading a dreary publication like the Federal Register." 332 U.S. 380 (1947). It is doubtful that the patent laws would be more practical reading material.

In sum, the MT/SA, though masquerading as an attempt to ensure the security of Monsanto's scientific innovations, is actually an exorbitant contract that significantly exceeds the protection afforded to GMO inventors under federal law, and therefore should be nullified under the Uniform Commercial Code. As then-Judge Cardozo said in 1928, courts should decide cases "not [on the basis of] what has been done under the statute, but what may reasonably be done under it." In re Richardson, 247 N.Y. 401. Grave injustice would inevitably result from allowing Monsanto to continue mongering their unconscionable "agreements," and therefore the courts must act promptly to prevent the perpetuation of their patently false claims.

My Conscious Commitment to a Free Market

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thosedays.jpgCapitalism.

The word conjures up mental images of vast fields of low-lying factories turning out various commodities at unprecedented speeds. A board of directors, assembled on the fourteenth floor of some glass-and-steel temple of merchandising, discussing annual returns. A network of spidery railroads and ship routes and interstate highways, spun first around the continent and then the globe. A 3D model of the "next big thing," revolving slowly in circles on brightly lit screens. Firm handshakes, locked vaults, and indecipherable numbers and abbreviations whizzing by in a procession of green and red lights. An entire culture built around the acquisition of assets and influence alike, a fast-paced game with few rules and a universally coveted prize of market dominance.

However, this conception - of industries dominated by billion-dollar enterprises - cannot rightly be called by the term "capitalism." That word, in its pure and original context, denotes a free market, an economic environment requiring only ingenuity, efficiency, and hard work for success. That was conceived in a time of greater opportunity and untapped resources, when competition and the human drive to improve products, methods and ideas were essential to continued national expansion. That was reality before the age of consolidation, prior to the protracted decline of interpersonal commerce.

The national struggle to preserve capitalism as it was initially envisioned began in earnest in 1890, with the passage of the landmark Sherman Anti-Trust Act. This officially criminalized "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations" (15 U.S.C. §1), and was the first significant recognition of the right to a free economy. Corporate actions such as price-fixing, collaborating to eliminate competitors, and merging to dominate an entire field were thereafter prosecuted as infringements of this right. In the years following the law's enactment, it was used against railroad titans, banking institutions, manufacturers of overpriced necessities, and those seeking to further augment their inherently unequal bargaining power in the making of employment contracts. In 1914, it was buttressed by the Clayton Act, which protected labor unions from the threat of antitrust suits while strengthening the provisions targeted at corporate offenders and their powerful executives. Since then, the government's vigilance in ensuing compliance has fluctuated based on a number of factors, primarily the political climate and the courts' ideological tendencies.

Even though antitrust has dropped out of the national spotlight in the past decades, fair but uncompromising enforcement remains vital to the collective prosperity of both citizens and businesses, spreading wealth across an industry and its workers that would otherwise be concentrated in the coffers of a solitary company.

I. Monopoly Eliminates Jobs

In twenty-first century America, unemployment and low wages are major obstacles in the effort to restore the economy. Deleterious deals such as NAFTA and the proposed TPP shrink the domestic market by exporting jobs, but they are only part of the problem. Consolidation is another major factor in the stagnation of salaries and the dearth of available employment. 

Monopolization is a relatively simple phenomenon: two separate companies, each engaged in the manufacture of the same materials, separately employ approximately five hundred workers each. Then a merger is agreed on, and the number of workers necessary to operate one process, even if it turns out more products than one of the original two lines at a faster rate, will still be significantly lower than the combined total of the existing two companies' workforce. This reduction in the number of open jobs affects a living wage in two ways. Firstly, it lowers the wage outright by increasing the number of willing candidates for extant positions and denying dissatisfied applicants the opportunity to work for a nonexistent competitor. Secondly, it gives the new conglomerate increased power over the prices of its products, decreasing the purchasing power of the already substandard rate.

Though the political promises of the 2016 campaign have largely revolved around statutory increases in the minimum wage and the expansion of welfare benefits, these measures only serve to shift the costs of unlawful corporate practices onto the government. The monopolies have grown secure in their own dominance and lost all incentive to develop or maintain quality products, fair prices and wages, and accountability for any defects in their services, and these surface symptoms of a fundamentally blighted economic system cannot be remedied by relieving corporations of their core social functions and responsibilities.

II. Competition as a Civil Right

The relation between a free society and a free economy has been trivialized in recent years by the classification of antitrust enforcement as a regulatory matter. Violations of the Sherman Act are treated as mala prohibita - acts which are made illegal by statute, but which are not inherently immoral - and corporate convicts can officially expiate their wrongdoing with insignificant fines, suspended or nonexistent sentences, lenient civil settlements, and a complete lack of censure from their peers. The quiet and comparatively painless resolution of cases in an administrative and private, rather than adversary and public, venue fails to discourage recidivism and prevent similar transgressions by other companies. Therefore, though the streamlining of the process has facilitated secretive and speedy settlement, it has led to grave mistakes in the way monopolization is perceived and prosecuted.

The Due Process Clause of the Fifth and Fourteenth Amendments explicitly safeguards "life, liberty, and property," unequivocally prohibiting unreasonable encroachment on the right to acquire and maintain private assets. This is a double-edged statement, however, and its meaning has varied with the vicissitudes of over two hundred years of social changes. In the past it has been interpreted to preclude any regulation interfering with absolute "liberty of contract," even such essential measures as the minimum wage, the eight-hour day, and the Sherman Act (see Lochner v. New York, 198 U.S. 45 (1905), Morehead v. New York ex rel. Tipaldo (298 U.S. 587 (1936)). After the ensuing corporate lawlessness and rampant monopoly led to the Great Depression, this dogma was re-examined, and it was conclusively established that "the Constitution does not make conspiracy a civil right." Dennis v. United States, 341 U.S. 494 (1952). In its modern meaning, the Due Process Clause simply preserves the right to economic as well as political pluralism.

The liberty to conduct business without interference or intimidation from larger and more powerful private entities remains a vital constitutional right, however. See Vietnamese Fishermen's Ass'n v. Knights, 543 F.Supp. 198 (S.D. Tex 1982). Title 42 U.S.C. §1983, part of the Civil Rights Act of 1964, conclusively provides:  "Every person who... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."  The elimination of racial discrimination, the Act's main purpose, has largely been achieved - but its broader objective, the protection of equality on all fronts, requires a freedom of enterprise incompatible with the industrial oligarchy that defines our current economic landscape. The fight for our fundamental civil rights has resulted in monumental progress on multiple fronts, but it is far from over; our country cannot be truly free as long as this neglected element of due process is violated openly and daily.

Conclusion

To meet the burden of proof in antitrust cases, plaintiffs must "present direct or circumstantial evidence which reasonably tends to prove that the [defendants] and others had a conscious commitment to a common scheme, designed to achieve an unlawful objective." Monsanto Corp. v. Spray-Rite Serv. Corp, 465 U.S. 752 (1984). To honor the provisions of the Sherman Act by showing an equal level of "conscious commitment" towards a lawful and progressive objective, I am hereby launching a series to expose monopoly, explore the statutes that govern it, and examine the enforcement process in this country.

Calling All Commentary on TWC and Charter Merger

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Just yesterday, the Justice Department and Federal Communications Commission moved to allow the merger of Time Warner Cable and Charter, a $78 billion dollar deal that would have far-ranging effects on American telecommunications. The company created by this combination would be known as "New Charter," and would have unprecedented control over the nation's media.

The lawsuit, settled the same day it was filed, alleged that the merger would hurt online video distributors, or OVDs, that rely on their ability to obtain licensing for television materials. The proposed settlement precludes New Charter from "entering into or enforcing any agreement with a programmer that forbids, limits or creates incentives to limit the programmer's provision of content to one or more OVDs," and also disallows usage-based data caps. This serves to protect streaming apps and services dependent on access to video or music content.

However, even though the settlement protects OVDs, it does little to protect the general population from the anticompetitive environment this combination would create. For example, it does not address the effects New Charter's market dominance might have on over-the-air broadcast television or consumer Internet use. This omission could lead to the decreased availability of free, quality programming - but we can work to correct that oversight.

A 60-day public comment period will soon commence as the settlement is published in the Federal Register, and we at PlanetGreen encourage our readers to voice their concerns about the merger. Our opinions do matter, and can effectively preserve the airwaves as a public and free resource. All submitted comments will be posted online and made available to the U.S. District Court considering the settlement, giving regulators and the Court the added perspective of a public that will be deeply affected by their decisions.
Just yesterday, the Supreme Court denied review in Brooker v. Alabama, the Eighth Amendment case of a seventy-six year old man condemned under Alabama's "three strikes" law to life in prison on nonviolent charges. Despite compelling briefs from the petitioners and the obvious inequity of the sentencing practices, the Court chose continued inaction over a much-needed second look at our outdated, largely ineffective justice system.

This is not the first time that our nation's highest tribunal has declined to address the problem and consider all the relevant constitutional issues. However, it is still highly surprising that it would avoid the issue amid both the ongoing national debate over mandatory minimums and the changing political reality of criminal justice reform.

$150 = 50 Years


In November of 1995, an Army veteran named Leandro Andrade walked into a California Kmart store and left with five children's videotapes, which he had not paid for. Fourteen days later, he repeated the performance at another Kmart location, and was charged with shoplifting nine tapes worth, in all, roughly one hundred and fifty-three dollars. The theft of Batman and Casper is not usually worthy of much mention in the important debate over the criminal justice system, and it should never have been a major issue. After all, petty theft is a misdemeanor that usually carries only six months in jail - not two consecutive terms of twenty-five years to life, which is what Andrade got.

But he had two prior convictions on his record, and therefore was a casualty of the "three strikes" laws. These statutes impose mandatory minimum penalties on those already convicted of two felonies, no matter how trivial the third infraction is. Their proponents argue that they effectively deter habitual offenders and increase accountability for crime; but, in reality, they often result in blatantly disproportionate sentences that hinder the goal of eventually reintegrating transgressors into society.

In a later challenge, the Ninth Circuit granted relief to Andrade on the grounds that his sentence was "cruel and unusual punishment," and the Supreme Court subsequently agreed to hear the case. It appeared to be a clear-cut example of inordinate, unrealistic penal practices, and the lower court's decision was almost universally expected to stand. However, the Court chose to reverse, reasoning per Justice O'Connor that because a possibility of parole still existed (in 2046, when Andrade would be eighty-seven years old), the sentence was not "contrary to, or an unreasonable application of, clearly established Federal law" (28 U.S.C. §2254). By invoking an ordinary statute to avoid addressing a constitutional question, the Court narrowed its own ability to grant relief further, resulting in the untrammeled long-term incarceration of relatively petty offenders across the country.

However, even though the Court may have rejected the Eighth Amendment argument against mandatory sentencing, the Constitution and common-law decisions interpreting it still indicate the illegality of the practice.

Separation of Powers

Despite the ruling in Lockyer v. Andrade, the courts have always recognized that the ability of a judge to tailor the law to the facts of a case is essential to substantive justice. As Justice Holmes famously observed: "The life of the law has not been logic; it has been experience... and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics" (The Common Law, 1881). Justice Frankfurter seconded this from the bench when he called due process "the least frozen concept of our law -- the least confined to history and the most absorptive of powerful social standards of a progressive society" (Griffin v. Illinois, 351 U.S. 20-21 (1956)). Now, though, the legislature encroaches on that judicial function through its ill-considered mandatory minimum laws. Not only does this interfere with the historical procedure of the courts, but it violates the constitutional system of checks and balances.

The 1965 case of United States v. Cox concerned a U.S. Attorney threatened with contempt of court after he refused to sign an indictment, even though he was acting under the direction of then-Attorney General Nicholas Katzenbach. In a landmark decision, the Fifth Circuit Court of Appeals decided that the prosecutor was a member of the executive branch, and therefore that the contempt order unlawfully infringed upon the separation of powers (342 F.2d 167). The mandatory minimum laws have a similar effect, forcing judges to impose heavy penalties regardless of the dictates of individualized justice.

As Blackstone once noted in his Commentaries, "In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty." 1 B.C. 146. In today's system of compulsory inclemency, it appears that this basic tenet has been forgotten.

"Making One Year Count" for Don Blankenship

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Blankenship.jpgJust yesterday, the "Making One Year Count" movement made its social media debut. This letter-writing campaign addresses the blatant miscarriage of justice in the Don Blankenship mine explosion trial. The initiative's goal is to deliver three hundred and sixty-five letters to Blankenship during his year in prison, showing him that though the courts may have been lenient, citizens have neither forgotten the lives lost in the tragedy nor the injuries caused daily by the coal industry.

Today, I made my contribution to this endeavor:


Dear Mr. Blankenship,

Whatever words I can write on this page feel pitifully insufficient, to say the least, but in honor of those your negligence killed, those still alive but suffering daily from the hurting you caused, and those living in a country pained by pollution and the injurious practices of your industry as a whole, I have to try.  It's the most I can do to send you a letter like this one, and hope that you get three hundred and sixty-four more reminders of what justice truly is and should have been in your case. I am going to start by reminding you of something else: that if things had been different, and you had been one of the unlucky ones, compelled by the basic necessity to provide for oneself to descend into your Tartarean "workplaces," you probably would have received four hundred and thirty-five times what you did get (fifteen years, the penalty for manslaughter, multiplied by twenty-nine counts).

But even that isn't a victory, except in the hollowest sense. And maybe that's enough for you, but somehow I doubt it. Because even after you do return to the outside world, you will sometimes unavoidably think back on everything that happened. The last time somebody tried to caution you, and you brushed them off and went back to business as usual. The explosion you could have prevented at marginal cost to your company. The twenty-nine people whose dreams of a better life were powerful enough to send them into your mines, whose dreams will now never be realized. The families and friends of the killed, everyone who had grown accustomed to having them around. Somehow, I just don't believe you'll always be able to smirk at all that.

When I was reading about your trial, it called to mind another case that took place in Idaho over a hundred years ago. You may know about it. It was the trial of William "Big Bill" Haywood, a labor leader of the Western Federation of Miners. He was unfairly framed by the mining interests with the murder of Frank Steunenberg, and represented against those charges by Clarence Darrow. Anyway, the passage of Darrow's summation that reminded me of you goes like this:

"But, gentlemen, he and his mother, his wife and his children are not my chief concern in this case. If you should decree that he must die, ten thousand men will work down in the mines to send a portion of the proceeds of their labor to take care of that widow and those orphan children, and a million people throughout the length and the breadth of the civilized world will send their messages of kindness and good cheer to comfort them in their bereavement. It is not for them I plead.

Other men have died, other men have died in the same cause in which Bill Haywood has risked his life, men strong with devotion, men who love liberty, men who love their fellow men have raised their voices in defense of the poor, in defense of justice, have made their good fight and have met death on the scaffold, on the rack, in the flame and they will meet it again until the world grows old and gray. Bill Haywood is no better than the rest. He can die if die he needs, he can die if this jury decrees it; but, oh, gentlemen, don't think for a moment that if you hang him you will crucify the labor movement of the world.

Don't think that you will kill the hopes and the aspirations and the desires of the weak and the poor, you men, unless you people who are anxious for this blood--are you so blind as to believe that liberty will die when he is dead? Do you think there are no brave hearts and no other strong arms, no other devoted souls who will risk their life in that great cause which has demanded martyrs in every age of this world? There are others, and these others will come to take his place, will come to carry the banner where he could not carry it."

This year will soon be through, and this tragic story will be consigned to the casebooks alongside Haywood's. But long after both of us are forgotten, that century-old devotion will still be there, because you can't kill solidarity. You should know that better than I do, actually. I've never tried.

Before you can finally put me down and go back to what you were doing, I want to say one thing more. I believe in justice, but I am not the vengeful sort. I never have wanted to see a man killed, whether by a misguided criminal or by the state. That's the chief irony: for all the technical defenses you concocted and resources you invested in the attempt to thwart a single prosecution, you cannot say that for yourself. Those miners' only crime was in being poor, having to make a living for themselves from the earth with their own hands, and yet in your Upper Big Branch that was a capital offense.

Think about that.

Sincerely,
Katrianna Brisack

Our earlier coverage of the case, both a historical perspective on the issues and an announcement of the verdict, can be found here.

Update: SC Split over Labor, 4-4

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Just this Tuesday, the Supreme Court handed down a one-page per curiam decision in the controversial case Friedrichs v. California Teachers Ass'n, (14-915), which concerned whether or not teachers could be compelled to subsidize a union they had not joined. The Court effectively ruled that they could, simply by failing to muster a fifth vote for reversal.

This ruling sets no lasting precedent, but it is unlikely that the Court will overturn both Abood v. Detroit Board of Education and this opinion in the future. President Obama's current nominee to fill the vacant seat, Judge Merrick Garland, has frequently sided with organized labor in the lower courts, and will probably join the liberal bloc in a possible rehearing, denying Friedrichs' claim more permanently. Even if this specific case, or another presenting a similar question, is reheard before the Court changes, it is unlikely to have a different result.

Though this may appear to be a triumph of the right to collective bargaining, in reality it weakens the protection of individual opinions that is essential to the preservation of our constitutional framework. As the Court observed more than seventy years ago, "It seems trite but necessary to say that the First Amendment was designed to avoid these ends by avoiding these beginnings... We set up government by consent of the governed, and the Bill of Rights denies to those in power any legal opportunity to coerce that consent" West Virginia v. Barnette, 319 U.S. 624 (1943). That statement seems equally applicable now.

Our earlier "On Certiorari" discussion of this case with Michael Carvin, petitioner's lawyer

Enjoin Yourself! (From Using Apple Gadgets)

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"Apple core!"

"Baltimore!"

"Who's your friend?"

"Some criminal insurgent guerrillas. Why do you ask?"


Just today, Apple unveiled the newest version of their popular smartphone, called the iPhone SE. Not much is different about the SE model - it is merely a smaller version of the current iPhone. It uses the same microprocessor, essentially the same camera, and roughly the same features.

It also has the same embattled encryption technology, and chances are very good the date of its release - one day before the first major hearing in the Syed Farook case - is an intentional attempt to sidestep our government and continue marketing devices which pose a significant risk to public safety.

Searches of personal effects conducted without a warrant, including searches of smartphones, are prohibited by the Fourth Amendment to our Constitution. See Mapp v. Ohio, 367 U.S. 643, and Katz v. United States389 U.S. 347. However, the Supreme Court has never ruled that evidence procured with such a warrant is invalid under the exclusionary rule, and resisting such an order when lawfully procured is traditionally referred to not as a stand for liberty, but an instance of obstruction of justice.

Apple is deliberately misconstruing our founding charter in its protracted battle with the DOJ and the FBI, attempting to siphon profit and publicity from a national tragedy. Though this behavior from a billion-dollar corporation is nothing new, the ambivalence towards and even admiration of this conduct shown by those who continue to purchase the company's overpriced products is surprising.

Therefore, we at PlanetGreen ask you to join us in refraining from the use of all technologies created or marketed by Apple. Though the company definitely won't have a patriotic epiphany its profits keep skyrocketing, if we band together we can prove that Democratic candidate Al Smith was right when he declared in 1928: "The best way to kill anything un-American is to drag it out into the open, because anything un-American cannot live in the sunlight."

UPDATE - Even though our government has been successful in unlocking Farook's phone without enlisting Apple's help, the boycott is still on, at least until the company recognizes that our national security is more important than protecting a criminal's so-called "right" that has never been recognized as such.

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