Posts by ChristopherWarburton:
Democracy in America: Uneasy Coexistence and Reverberating Tremors
September 5th, 2016By Christopher Warburton.
An illustrious European statesman, Alexis De Tocqueville (1805-1859), once came to America and was both captivated and confounded by what he saw in America. What initially was an interest in American prisons became an interest in the American system of government.
The voyage was made in 1831, which made his experience a nineteenth century phenomenon. Perhaps his analysis of equality, individualism, tyranny of the majority, and the uneasy coexistence of the races in America will be the most unforgettable rendition of his experience with the American political system. While he was evidently impressed, there is no reason to believe that he was not apprehensive about the threats to an intricate system of government that had been forged so uneasily. Yet, democracy is not an improbable construction of the human race. In many respects, its outcome is inevitable. However, its success is contingent on those things that are quickly forgotten or taken for granted.
The principles of equality and learning (education) are not extraneous to a well-functioning system of government. Equality does not mean an aspiration to socialism; it merely means equal exposure to opportunity and treatment in courts of law. Ever so often, these basic principles are forgotten until there are compelling reasons to revisit them in election years; when all of a sudden the very fabric of a democratic system is perceived as disintegrating.
There are obvious reasons why equality and learning are indispensable attributes of a sustainable system of government. First, they must permeate the legislative ambition and judicial interpretation of laws. Second, they ensure that an intelligent and informed electorate will make informed decisions to ensure that the principles of equality and justice are meaningful expositions of public policy. When the sentiments and ambitions of rulers are detached from their people or the common good, the system under which they operate can no longer be characterized as democratic, except of course that the rulers might have been mandated to rule via the ballot boxes. Democracy entails much more. It incorporates mores, sensibilities, the just legislation of laws, and the judicious interpretation of laws in a manner that is not infected by plutocratic loyalties or the abuse of the cherished judicial traditions by idiosyncratic judges in black robes; in short, a responsiveness of government to the needs of its people.
Some of us might not have read Tocqueville in school or college. For those who were not so fortunate to do so, it is worth presenting the thinking of the man himself to understand the essence of my rendition in a tumultuous political season:
“It is important to make the distinction between arbitrary power and tyranny. Tyranny can use even the law as its instrument, and then it is no longer arbitrary; arbitrary power may be used in the interest of the ruled, and then it is not tyrannical. Tyranny ordinarily makes use of arbitrariness, but it can at need do without it.”
“I am not asserting that at the present time in America there are frequent acts of tyranny. I do say that one can find no guarantee against it there and that the reasons for the government’s gentleness must be sought in circumstances and in mores rather than in the laws.”
“When a man or party suffers an injustice in the United States to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? It represents the majority and obeys it blindly. To the executive power? It is appointed by the majority and serves as its passive instrument. To the police? They are nothing but the majority under arms [or so it was]. A jury? The jury is the majority vested with the right to pronounce judgement [or so it should be]; even the judges in certain states are elected by the majority. So, however iniquitous or unreasonable the measure which hurts you, you must submit.”
“ The men scattered over [the American Union] are not, as in Europe, shoots of the same stock. It is obvious that there are three naturally distinct, one might almost say hostile, races. Education, law, origin, and external features too have raised almost insurmountable barriers between (sic) them; chance has brought them together on the same soil, but they have mixed without combining, and each follows a separate destiny.
Among these widely different people, the first that attracts attention, and the first in enlightenment, power, and happiness, is the white man, the European, man par excellence; below him come the Negro and the Indian.
These two unlucky races have neither birth, physique, language nor mores in common; only their misfortunes are alike. Both occupy an equally inferior position in the land where they dwell; both suffer the effects of tyranny, and though their afflictions are different, they have the same people to blame for them.”
Obviously, since 1831, the American system has evolved with some safeguards to affirm cherished democratic principles—or at least the human understanding of such principles—in order to minimize the propensities to inherent internal destruction that emanate from instabilities or contradictions within the system.
On January 1, 1863, as the bloody civil war progressed, President Abraham Lincoln issued the Emancipation Proclamation. According to the Proclamation, all persons held as slaves within the rebellious states were instantly freed. The Proclamation was stunning. Abraham Lincoln, who was a Republican, was elected to a first term as President in 1860. He was granted a second term in 1864, during which he was assassinated.
For very good reasons, and in an effort to solicit black votes, some politicians episodically remember the improbable deeds of Abraham Lincoln and openly affirm his extraordinary courage at an extraordinary time. Of course, for obvious reasons, Tocqueville had nothing substantial to say about Hispanics, a category of voters who did not quite make it into the social order that was apparent to him at the time. Between 1831 and 2016 (185 years), American demography has changed. Thanks to immigration and geographic proximity, Hispanics now constitute a formidable and growing component of the electorate.
The courage of Lincoln will always be puzzling; not only because of his repudiation of the hostility and savagery, if not barbarism of his time, but because of his courage to do what was right rather than expedient. How could someone have been so brave and audacious to issue such a monumental and consequential Proclamation of Emancipation? More so, how could any political party or class have squandered so much goodwill in the progression of time? How could generations of politicians not have realized, with a modicum of common sense, that the American society needed further Emancipation Proclamations beyond that of Abraham Lincoln?
The contemporary political challenges and struggles of America have never been contemporaneous; they have been simmering for centuries as Americans promise and try to perfect their union. The problem is that not too many courageous men have showed up over the years. Today, it is very realistic to hear the reverberating but subdued echoes of the intolerable audacity that the Proclamation foisted on a group of dissenting people who naturally have a right to vote and express themselves. It is remarkable that for centuries, career and aspiring politicians are still struggling to fully understand the concept that votes are earned. Unlike romantic attractions, political affinities are possible; but hardly spontaneous.
Along the way, the concept of federal governance gave way to excessive greed, parochialism, and individual aspirations rather than the national common good. Not the least to be mentioned is the unwarranted—if not misguided—attack on financial markets and greedy Wall Street maximizers of self-interest that has garnered great scrutiny. But Thomas Hobbes (1588-1679) had once informed us of some inconvenient truths; the ignorance of which is willful bliss. Human nature is fixed and unchangeable, I dare say predictable under certain regularity conditions. When overwhelmed by incontinence, lack of self-restraint, and dysfunctional regulatory or supervisory mechanism, humans are prone to be predatory, greedy, and cruel. As such, it cannot be hyperbolic to envision why life will be “solitary, poor, nasty, brutish, and short” in instances of lawlessness and neglect. Money?
How could the highest court of the land be oblivious of the fact that money corrupts, and that excessive money corrupts absolutely? That is, bribery denigrates a political system beyond redemption? Who will protect the sans-cullotes, the plebeians, or the commoners? Should the lives of the poor count for anything in a monied economy? The love of money is boundless. Yet, except for slaves and the unfortunate, opportunities were unlimited in the America that Tocqueville saw. He writes:
“It is not that in the United States, as everywhere, there are no rich; indeed I know no other country where love of money has such a grip on men’s hearts or where stronger scorn is expressed for the theory of permanent equality of property. But wealth circulates there with incredible rapidity [so it was], and experience shows that two successive generations seldom enjoy its favors….
There are few rich men in America; hence almost all Americans have to take up some profession. Now, every profession requires an apprenticeship. Therefore the Americans can devote only the first years of life to general education; at fifteen they start on a career, so their education generally ends at the age when ours begins….
In America most rich men began by being poor; almost all men of leisure were busy in their youth… there is no class in America in which a taste for intellectual pleasures is transmitted with hereditary wealth and leisure and which holds the labors of the mind in esteem.” So, can the use of money be free speech?
What is freedom of speech? There is a reason why people cannot go into a theater and start shouting “fire!” In the history of the human race, there has never been anything like absolute freedom, even in expressive forms that are physical. Freedom has always been limited because its excesses repudiate and infringe on the rights of others. Today, there is no reasonable certainty that judges will develop a judicial tradition of freedom. Judicial tradition seems to depend on prevailing political persuasion; essentially because judicial appointments are becoming contingent on political elections and the probability that judges will be obligated to their sponsors. Under normal circumstances, quid pro quo and kickbacks fall into an opprobrious category of malfeasance; the sort of misbehavior that is litigated in courts of law.
As such, the modern judicial system is becoming too toxic and detached from the common people. It is in danger of losing its elegance, class, and prestige for which it once earned an accolade of respect that was almost beyond reproach. Now, there must be a litmus test for judges to reveal their political beliefs and loyalties. Judicial appointments to the Supreme Court could wait for the next political election and they must constitute animated rallying incitements while the judiciary operates in a suboptimal capacity. Elections have selective consequences and lawmakers can conveniently refuse to give advice or consent.
In a paradoxical system of plutocratic democracy that is reinforced by the judicial decisions, issues of economic security and equality of opportunity must fade into comparative insignificance. Gone are those days when the judiciary was expected to be independent not only by statutory proclamation, but by the decisions of judges who maintained an unquestionable sense of equity. So, should Americans continue to submit to unreasonable measures that hurt them, however iniquitous the situation might be?
Fortunately, all is not doom and gloom. The coexistence of civil liberties and perfunctory judicial arrangements is incrementally uneasy and threatening. To the chagrin and resentment of the political chattering class, judges have made decisions that are antithetical to the aspirations of their sponsors; a courageous departure from parochial political expediencies. About one hundred and eighty-five years after Tocqueville’s visit, the fortunes and vitality of American democracy now rest on judges whose firm convictions and sense of decency constitute the last fortress of hope and a firewall against the implosion of the democratic system of government.
The civil liberties of poor Americans are constantly assaulted with impunity in the US courts of law, where justice is bought and sold by plutocrats and the wealthy who think that they are above the law. Any wonder why some of the poor or people of color are so unimpressed and infuriated by political chicanery? Forget about the moribund criminal justice system. For the past fifty or so years, what have the legislative and executive arms of government done to rein in the assault on civil liberties in the US courts of law? Where is the next Emancipation Proclamation?
In the 1950s (over a century after Tocqueville’s visit), and for obvious reasons, some economists were already critical of political decisions. The economists began to rationalize why it was realistic rather than naïve to presume that politicians will first pursue their selfish interest. The school of thought became known as “Public Choice.” Of course, Karl Marx, and others like him, had reached a similar conclusion in the 1840s. People did not pay too much attention to Public Choice theory until the 1980s. At the risk of engaging in a fallacy of composition, I should note that the economists were already aware that not all politicians were selfish.
In reality, the bases for selfish political decisions are not peculiar to American politicians; they reflect the innate and unchanging mortal nature that Hobbes once characterized as the predatory instincts that inform the behavior of selfish utility-maximizers. The unprincipled reasons for engaging in politics are usually very ostensible and dependent on the idea that the electorate is uninformed and less attentive to detail. That is, before and after every election cycle the electorate becomes too aloof, lazy, and uniformed to be critical of policies that are detrimental to the common good, but beneficial to a cabal of politicians and their high-value supporters.
The problem is exacerbated when people are uninformed and less capable of being informed. Tocqueville’s description of the nineteenth century educational infrastructure in New England should be instructive:
“But it is the provision for public education which, from the very first throw into the clearest relief the originality of American organization….Provisions follow establishing schools in all townships, and obliging the inhabitants under penalty of heavy fines, to maintain them. In the same way high schools are founded in the more densely populated districts. The municipal officials are bound to see that parents send their children to the schools and can impose fines on those who refuse to do so; if the parents remain recalcitrant, society can take over the charge of the children from the family, depriving the parents of those natural rights which they abused.”
The draconian nineteenth century prescription has a very precise subterranean principle; secondary education was a natural right that must be extended to all people. Today, much more is desired in a competitive global economy that has an appalling proportion of uninformed electorate, which is eager to content itself with the wedge issues of the day—immigration, gun laws, women’s rights, and racial hostilities—without prudent and countervailing thoughts about holistic national and social programs that spur economic growth and upward mobility.
It is also remarkable that the national priority for education has dissipated so badly (see OMB data below, courtesy of National Priorities). The poor investment in human capital augurs anemic levels of economic growth, productivity, and lower levels of general prosperity in the distant future. While military spending acquires a lion’s share of national income, income inequality continues to be obscene (see CBO data below, courtesy Center on Budget and Policy Priorities). Opportunities for upward mobility continue to be elusive as the infrastructure for superior human capital and human (economic) security continue to be inadequate.
Teachers continue to receive appalling wages, just as skilled professionals are subjected to racial discrimination and marginalized or excluded in institutions of higher learning. In the most unlikely of places, institutions of higher learning, holders of terminal degrees earn wages that are marginally above subsistence levels without consideration of inflationary trends. Additionally, law makers and enforcers continue to be willfully ignorant about corruption in the Equal Employment Opportunity Commission (EEOC) and the US courts of law.
So, what is this democracy of which we speak? In contradistinction to the Tocquevillean democracy, the American union is excessively polarized, racial discrimination or hostility continues to erode the very foundation of the body politic after the Emancipation Proclamation, the uneasy coexistence of the races ambivalently shows support for, and revulsion against the dual party system (with predetermined alliances), judges are increasingly assaulting civil liberties with impunity, and the malfunctioning government is too detached from its people. Is there any reason why people have become be so cynical and torn apart? The task of the next President is not enviable undertaking.
“Nothing struck me more forcibly than the general equality of condition among the [American] people.” Alexis De Tocqueville
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Diverse Docket: Professor’s Bias Suit Against John Jay College Rejected, A Rejoinder
August 22nd, 2016By Christopher Warburton.
The requirement that a black faculty member should publish in Economics journals while white faculty members should not publish in such journals is obviously discriminatory. In the world of Judge Oetken, that cannot be discrimination. Additionally, the judge did not see evidence that was provided by personnel committee members who recounted, without solicitation, several instances of discrimination and duplicitous standards behind closed doors.
This is a judge who was appointed to the Federal bench with the help of a New York Senator, Schumer. The judge presided over the case of Senator Schumer’s friend, Jeremy Travis (the President of John Jay College). For over seven years, the President of the College could not find anyone else to give annual commencement addresses except Schumer. Of course, Travis was sued together with Jay Hamilton and Joan Hoffman. It strikes me as odd that the judge presided over a case that exudes the appearance of impropriety or conflict of interest. Unlike the proposition or insinuation of Freedman, the judge has never provided finality to the case.
It is rather strange that as government employees, the defendants begged for immunity though they were sued as individuals. The reckless judge provided them cover by introducing a new judicial philosophy, “immunized discrimination and retaliation,” to the jurisprudence of the United States. Government employees may be immunized after they have performed their duties responsibly; not after they have negligently executed their duties with depraved indifference, hubris, callousness, or lawlessness. As a result, the ruling of the judge is both prejudicial and disturbing; an unspectacular manifestation of judicial activism without careful thought of practical consequences.
The Judge seems to understand that when a Department Chair, Jay Hamilton, was under investigation for discrimination, he should not have presided over the personnel process of a complainant. More so, the Chair should not have knowingly and willfully provided false information to a personnel committee and the Equal Employment Opportunity Commission (EEOC). In the real world (beyond that of Judge Oetken) and under New York State Law, such a behavior is known as “retaliation” and “perjury.”
Sadly, and notwithstanding the latent awareness of the judge, the judge immunized the defendants against a retaliation suit. By so doing, the judge rendered mute the New York State Law against retaliation when it comes to government employees. The spirit and intent of the retaliation law were never intended to promote discriminatory application of the law. That is, government employees should never be free to retaliate against their subordinates in their privileged capacity as government employees. Government employees may be immunized after they have performed their duties responsibly; not recklessly.
By immunizing the defendants, the judge approved of the negligent behavior of the college. The college is negligent because it claimed that it investigated a discrimination complaint without doing so. The college is equally negligent because it refused to appropriately prevent the preservation of a hostile work environment despite repeated complaints of harassment. The judge was apprised of the publicly available evidence that did not matter to him or the author of the previous article. Of course, with judges like Oetken, why should John Jay College or its employees be subjected to the rule of law? Why should the college discontinue its affinity with a culture of discrimination and negligence? When a judicial system is rotten because of some tawdry judgments or judges, society decays and it begins to grapple with the decadence of lawlessness and disorder.
Evidently, the article is factually incorrect and probably innocently incorrect because the judge did not show a proper understanding of the case. The application for promotion was never considered because of a deprivation of due process. The reality is at variance with the assertion that promotion was denied. The Department Chair, Jay Hamilton, who is an Assistant Professor and whose public record reflects that he has neither published a paper in an Economics journal nor demonstrated an ability to do so, collaborated with the Provost, Jane Bowers, to ensure that a Promotion Committee did not evaluate the merits of an application for promotion. Public evidence suggests that the Chair has never engaged in an exercise of intellectual curiosity; shockingly so. Apparently, the judge did not show any sensitivity to the details of the case, the meaning of deprivation of due process, and the circumstances under which such a deprivation is discriminatory.
In the final analysis, the US judicial system is very resilient. It has adequate self-correcting mechanisms or safeguards that should provide caution against imprudent analysis or pontification. While the author of the article presumes or insinuates finality of a judicial process—without allusion to the flawed ruling and preconditions for appeal—a balanced or prudent analysis should indicate that the flawed and surprising ruling of the judge is not an authoritative dispensation of the case to warrant any premature presentation or discussion of the case.
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Justice Delayed is Justice Denied: The Curse of Unproductive Labor
July 19th, 2014
By Christopher Warburton.
Americans love the Sixth Amendment for obvious reasons. Its motive is unquestionable but its implementation has stirred uncompromising controversy. It gives the accused the right to a speedy trial and could be comprehensively associated with the tradition of the writ of Habeas Corpus, a Latin phrase for an order to “bring or produce the body” that is issued by a legal authority with administrative or juridical powers. Originating from English jurisprudence, the underlying rationale is to ensure that nobody is illegally institutionalized without due process. As such, it was originally intended to limit abusive state authority. Understandably, it is easy to envision why there could hardly be any civilized order that relishes the use of abusive authority in whatever form.
In 1972, in a case known as BARKER v. WINGO, the Supreme Court tried to put the concept of reasonable delay in perspective by listing four criteria: (i) the length of the delay, (ii) the reasons for delay, (iii) the harmful effects of the delay on a defendant, and (iv) whether the defendant asked for a prompt or speedy trial. These are very reasonable paradigms for what is fair, right, and reasonable or appropriate (EX AEQUO ET BONO). In essence, as a principle, tenet, or aphorism of universal law, it will be very difficult to argue that only defendants should be entitled to just and speedy trial. One should certainly hope that defendants and quasi-administrative judicial institutions should not be standing the principle on its head if the principle is to have far-reaching implications or general acceptance beyond abusive state behavior.
Not everyone agreed with the Supreme Court in the 1970s because the dismissal of criminals for abusive state behavior was seen as a bonanza or “windfall” for criminals. That is, in the arduous task of balancing the rights of the accused and the interest of society, the ruling hardly provided general satisfaction. But, in the US, the speedy trial conundrum was nothing new in the in the 1970s. The Supreme Court unsatisfactorily dealt with the issue in the Beaver case of 1905 by allowing delay to be contingent on imprecise circumstances. In effect, the 1972 ruling was an incremental judicial improvement.
Notwithstanding the evolution and apprehension surrounding the Barker case, one thing is clear: abusive authority cannot and should not be tolerated in any society even when it means emotional institutionalization by corruption rather than abusive physical institutionalization. For a very long time, the inability of the EEOC to enforce human rights law in a timely manner, and therefore to administer timely justice, has undergone very little scrutiny; only because defendants become beneficiaries rather than victims of administrative tardiness. That is, in the perverse world of the EEOC, defendants need not have speedy trials when it is in the best interest of the defendants to enjoy outside (implementation) lags. Victims of civil rights abuses can wait for years or eternity before they receive any semblance of justice in this world or the next.
How does the EEOC delay the administration of justice for civil rights victims? The modus operandi of the EEOC should be very familiar by now: (a) collude with defendants and or accept bribes to determine outcomes or timelines, (b) pigeonhole complaints for an inordinately long amount of time so that they can gather a good amount of dust to frustrate complainants (c) contemptuously refuse to take or return telephone calls, (d) incrementally assign multiple investigators (that is, one at a time) to the same case over a protracted period of time, (e) deliberately conduct sham investigations over a very long period of time, and (f) embrace the psychology that if sufficient time is wasted, complainants will surrender and the vicious cycle of corruption and delay of justice will continue unabated.
The visionary pronouncements of the EEOC would have been laughable if they were not very serious frauds that have adversely impacted the lives of thousands of people. Our vision: “A Strong and Prosperous Nation Secured Through a Fair and Inclusive Workplace.” Our mission: “We Promote Equality of Opportunity in the Workplace and Enforce Federal Laws Prohibiting Employment Discrimination.”
The public data and the operations of the EEOC suggest otherwise. I have already evaluated part of the data that have been released by the agency and the sombre and doleful revelations of the data need no further analysis here. Relevant information can be extrapolated from a previous piece in the following link:
http://thedailyjournalist.com/the-strategist/fifty-years-after-the-fact-how-viable-is-the-civil-rights-act-of-1964/
This piece is dedicated to justice and labor productivity, and it is also based on data that is freely available; specifically, Congressional Budget Justification for the financial year of 2012, the year after which about 71 percent of cases were summarily dismissed by the EEOC, and the year after which only 15.3 percent of complaints had merit resolutions (whatever that triumph might mean to the EEOC).
When economists talk about productivity, they generally consider output per hour and the efficiency with which inputs are allocated, combined, and managed. One can easily imagine without much difficulty that technological progress has made it possible for labor to become much more efficient in some areas of the world, and today, EEOC complaints and responses can be filed electronically. One must also presuppose that labor is not of poor quality for it to be efficient. In effect, adequate education or skill and technological innovation are complementary preconditions for the use of efficient labor. Therefore, one should naturally expect EEOC investigators to know how to count and itemize things. Without any tolerable level of incompetence that is detrimental to society, it should not be irrational to presume that the EEOC officials should be better educated and trained than high school dropouts.
Not surprisingly, when economists think about productivity and efficiency, they are thinking about cost and allocation of limited resources. Hence, if an agency is asking for money to conduct inefficient work, say $18m more than the previous year, society will be misallocating its scarce resources by redirecting inadequate resources from much more productive uses, say education and investment, to unproductive or inefficient uses that are mired in corruption. Productivity succinctly means increasing output while reducing cost. It is astounding that the productivity of the EEOC personnel has not been appropriately scrutinized over the years. The information about its performance is clearly indicative of troubling sterility. The marginal cost to the US is excessively greater than the marginal benefit that the US has received over the years. Surely, there is nothing productive about ensuring the unemployment of thousands of people.
Evidently, because we now know that investigators collect money and overtime pay for sham investigators, the issue cannot be that the investigators and Directors are overworked or underpaid. We also know that their workload is not as punishing as they might want us to believe for an annualized average case load of 128 cases. Actually, the hypothesis that it could take much longer than 180 days to process cases should be summarily rejected, especially because that is the time that it takes in some cases to pass one case from one investigator to another without the commencement of any investigation.
Some Americans do far more back-breaking work with dedication and purpose for little or no compensation than the EEOC public officials with an annualized caseload of about 128 cases. Quite apart from the poor output of its employees, it is pertinent to note that corruption and contrivance make it impossible to reach a rational conclusion that the EEOC employees are productive and efficient. From a perverse point of view, it is extremely difficult to fathom how the grease hypothesis, the hypothesis that corruption speeds up the wheels of commerce or transactions, could provide forgiving circumstances and justification for the very poor and illegal performance of some of the EEOC employees.
“The EEOC is charged with ending employment discrimination on the basis of race, color, national
origin, sex, religion, pregnancy, age, disability, and family medical history or genetic information. Since
the establishment of the EEOC in 1965, much progress has been made in reducing illegal discrimination
in the American workplace. Yet discrimination continues to be a substantial problem for too many people
in the United States of America. Significant work remains to be done. While we are grateful for the
increased appropriations and are putting them to good use, we continue to face unprecedented
administrative challenges.”
Really?
“Under our projections, even with the additional 30 FTE frontline investigators provided in the 2012 Budget, the pending inventory is expected to reach nearly 100,834 charges at the end of fiscal year 2012 and rise to 144,217 charges at the end of fiscal year 2016. Our charge data projections also show that in 2012 our investigators will carry an average caseload of 128. This caseload will lead to an average resolution time far exceeding a 180 day average affecting all parties to the investigation.”
What the EEOC does not understand is that apathy, incompetence, and corruption are not problem-solving characteristics. Rather, they are problem-compounding attributes that use up more of society’s scarce resources for worthless endeavors. There are obvious reasons why complaints are controversially projected to increase. The very basic reason is that all agencies desire more money for their operations, but a more paramount and substantive reason is that rogue employers who engage in criminal activity are no longer worried about the EEOC. They know that investigators and Directors could be bribed and everything will be Kumbaya (in perfect harmony).
Realistically, the EEOC has squandered its moral authority on civil rights issues and created an environment of moral hazard in which rogue employers, unlike the principled ones, can now take risks only because they know that the EEOC is in their pockets. That is, they do not have to completely incur the costs for violating civil rights laws. Under such circumstances, it is ambitiously speculative to project significant increases in complaints. In the history of the civil rights movement, the agency has created an unprecedented disincentive for people to ponder over their course of action for remediating civil rights violations. Victims of civil rights abuses must now think about the opportunity costs of registering their complaints with the agency in order to achieve any semblance of justice in a timely manner. In more precise terms, the agency is no longer a friend of victims of civil rights abuses but a friend of big business and robber barons.
Going forward, the central issue is not a matter of the trajectory of complaints, but whether or not people will look up to the EEOC as an administrator of justice or injustice. By its lack of productivity, its culture and tolerance of corruption, and its predilection for delaying justice, it is naiveté and feckless stupidity for the EEOC to think that people will continue to have confidence in its operations. It is time to restore the promise of the civil rights movement without the current culture and composition of EEOC.
The Supreme Court was correct: (i) justice must not be delayed, (ii) the reasons for delay must be reasonable, (iii) delay has harmful effects on a defendant [and I must add, complainants], and (iv) requests for a prompt or speedy trial must be respected. Lack of productivity is antithetical to the administration of justice and corruption should never be an acceptable instrument to prolong the realization of justice.
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The Paradox of Corruption: When the Corrupt Investigates the Corrupt
July 12th, 2014
By Christopher Warburton.
Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish.
This evil phenomenon is found in all countries—big and small, rich and poor—but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development. (The United Nations Convention Against Corruption).
It is not surprising that the US ratified the treaty on 30th October, 2006. Among other things, the States Parties to the convention (treaty), including the US, are very concerned about the seriousness of the problems and threats that are posed by corruption to the stability and security of societies. Corruption undermines the institutions and values of democracy and jeopardizes the ethical values and the rule of law in any nation. In every uncodified and codified legal system certain principles are held to be sacrosanct, one of which is that nations are obligated to uphold treaties that they have ratified (PACTA SUNT SERVANDA). This universal principle has been reaffirmed by the Vienna Law of Treaties (Art. 34).
When rational people think about justice, they are not likely to think about corruption. This is because justice and corruption are mutually exclusive expressions. The prevalence of corruption negates the essence or relevance of justice. That is, justice is meaningless when the infrastructure for its administration is infected by corruption. Although the existence of corruption is probably as ancient as the human species, there has come a time when nations of the world are very worried about its corrosive effects on their societies.
In fact, in some societies some have paid the ultimate price for corrupting less discerning minds. Of course, corrupting less discerning minds is equally as troubling as subverting a system of justice by kleptocrats, plutocrats, and so-called “academics.” Unfortunately, the expression, “academics,” which was once an accolade of virtue that embodied the synthesis of knowledge and ethical principles is rapidly becoming an anachronism of its prototypical form.
Why is it that some academics (not all) have lost their way? The simple answer is that the badly nurtured and unprincipled “academics” have become obsessively corrupt in a new gilded age of patronage, social anxiety, and tensions that are reminiscent of the backwardness that was exhibited in the US of the 1870s (the old Gilded Age). In their state of rottenness, they have garnered help from “powerful” political friends and jurists to indulge in the belief that they can thumb their noses at the US justice system with impunity. They bask in frivolity and vigorously participate in the black market for justice where justice is bought and sold with deleterious effects.
In furthering the ambitions of the badly nurtured academics, the New York EEOC has provided a very robust black-market with immeasurable negative externalities. While the surreptitious arrangements of corruption provide unimaginable callousness and bravery, the quality of a public duty is very often too transparent and revealing of willful negligence. Others have extensively alluded to the bribery and corruption that has infested the agency and analogously identified with any cesspool of corruption. This piece will focus on negligent investigation and how the agency has betrayed the trust of those who sacrificed their lives for justice and liberty in the United States of America.
PROPOSITION1: Disregarding the details of charges
By disregarding the details of relevant charges, the EEOC can deliberately redefine the essence of a civil right complaint to the benefit of the defendants as a pretext for dismissing charges. That is an investigator may not ask questions about the central issues of a complaint even when he/she has been unmistakably directed to do so. Consider the following:
Scenario 1: If a complaint is about the failure to conduct an internal investigation about discrimination, the EEOC investigator will not conduct an investigation on the matter or report on the specificity of the matter as part of his/her investigative obligation when it could be determined that an internal investigation was not conducted. By so doing, the matter will be mute and the defendants will be absolved of any wrongdoing.
Scenario 2: The New York EEOC will not investigate or report on whether or not someone has been denied due process.
Scenario 3: A New York EEOC investigator may not report on whether or not identical standards were applied to all employees—blacks and whites or Jews and Gentiles even when a complaint is about discriminatory standards. If similarly situated employees are required by written bylaws to perform the same task, it may not matter if an entity encourages duplicitous standards.
The corrupt New York EEOC will bless the discriminatory standards to subvert the Civil Rights Law. That is, it will be okay for one employee to write fairy tales about roaches, rats, and ants while another is required to write scholarly pieces about substantive issues that generate positive externalities. Discriminatory rottenness is glorified internally and affirmed by corrupt New York EEOC officials. Advocating for the devil, one can easily be sympathetic to a level of ignorance for matters that might seem technical. But these corrupt officials are not required to make technical decisions. They are barely required to identify uniform or discriminatory standards of evaluations, which they are unwilling to do.
PROPOSITION 2: Accommodating the maximum amount of perjurious statements
When a professor cannot count the number of publications that he has in a genre of literary work and dishonestly makes proprietary claim to publications, the New York EEOC officials should at least be able to count like any elementary school student. It is equally embarrassing for an institution to not know anything about the quality and quantity of the product of its employees. Ignorance is no pretext for providing perjurious and delightful testimony. Additionally, it is not okay for administrators or court officials to provide perjurious testimony with the blessing of the New York EEOC.
Assuming that the New York EEOC officials cannot count, they should at least be numerically literate enough to know something about itemization when someone else has done their work for them. Willfully misquoting numbers or categorizing things and willingly accepting the wrongful presentation of facts are indications of the rarely rivaled corruption.
All savvy investigators, except some at the New York EEOC and the Director, know that dissembling and misrepresentation of facts are pretexts for covering up criminal activity and subverting the administration of justice.
A more damning manifestation of corruption is the disregard of clear and convincing ocular evidence. When information can be verified easily and costlessly, the EEOC should not disregard such evidence in favor of anecdotal and inaccurate misrepresentations of facts by defendants. For example, the Federal Reserve Bank and the American Economic Association generally provide acceptable data that are free and ocular.
PROPOSITION 3: Manufacturing evidence with the help of defendants
When employees are not similarly situated, it is not okay to presume that they are just because the EEOC wants to fabricate the details of an investigation for the purposes of misleading Federal Courts. It is not okay to compare a lawyer to an economist, nor is it okay to compare a part-time worker to a full time worker in an attempt to desperately exonerate defendants from illegal practices. Investigators generally know that they should check the background and credentials of employees, except some of those at the New York EEOC, who will want people to believe that the token part-time employment of someone of color is a precondition for assuming that no discriminatory practice is taking place in a place of work.
One should be hard-pressed to know that the New York EEOC officials do not know the meaning of “similarly situated employees”—the very crux of the Civil Rights Law that they are expected to litigate. It is incorrect for an official with no training in economics to be conveniently considered as an economist just because the defendants are frantically trying to cover-up criminal activity. Evidently, once the fabrication has been peddled in the market of corruption, the New York EEOC does not think that an investigation is necessary to ascertain facts.
PROPOSITION 4: Tolerating the maximum amount of contempt.
It is not appropriate for defendants to withhold evidence and contemptuously thumb their noses at investigative procedures with impunity and acquiescence. Yet, the New York EEOC will consider its investigation complete when defendants withhold evidence. It is unimaginable that any fact-finding body will tolerate such a reckless and audacious behavior as proper investigative practice. When a defendant is asked to release information in a quasi-judicial matter, the defendant must be willing and able do so.
A defendant must not be applauded and rewarded for contemptuous behavior. The issuance of a just order must be contingent on the compliance with investigative procedures. Someone with 40 years or more of evidence should not willfully fail to submit such evidence and the New York EEOC must not be oblivious of the deleterious effects of such contempt. Failing to provide evidence because of embarrassment or guilt is not a trivial legal or investigative issue that should be treated with cavalier approval.
PROPOSITION 5: There is nothing wrong with retaliation
The New York retaliation law that the New York District EEOC is expected to litigated is very clear:
“It is unlawful for an employer to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices forbidden under the law, or because he or she has filed a complaint, testified or assisted in any proceeding under this article.”
The behavior of New York EEOC personnel does not encourage anyone to report any criminal activity in the workplace and the behavior is at cross-purposes with the Civil Rights Act. This is because reporting a criminal act, say employment improprieties, and being victimized for reporting a crime will not be considered by the New York EEOC to be a retaliatory act.
More so, the New York EEOC will have reasonable people believe that when a complaint has been filed about discriminatory practices against supervisors, employers can willingly allow the supervisors to preside over the employment decisions of the complaining employees while the supervisors are “being investigated.” In effect, the New York EEOC cannot interpret New York State Human Rights Law and the Federal Law against retaliation. This is a curious anomaly because the agency is an existential threat to State and Federal law as well as the well being of victims of civil rights abuses. Consequently, the agency exists for unknown reasons; maybe so, because the corrupt employees derive personal benefits. The progress of the criminal gang MUST be stopped on its tracks.
PROPOSITION 6: Failure to report criminal activity
The New York EEOC sees no compelling reason to report criminal activity. While high school students are sufficiently being educated to report cyber-bullying and have become very sensitive to its occurrence, the New York EEOC is aloof or indifferent to cyber-harassment.
The Civil Rights Act was legislated to prevent workplace hostility, including cyber-harassment that makes it impossible for employees to have a peaceful work environment. While high school students are sensitive to the untoward behavior of cyber-bullying, very sick professionals with terminal degrees are permitted to degenerate to a level that is less than worthless benchmarks to engage in cyber-harassment. Consistently and criminally altering personal data on the World Wide Web is a criminal offense that must not be tolerated by any agency or institution. In fact, it must promptly be reported to the appropriate Federal authorities.
Yet, because the New York EEOC is indifferent to workplace hostility, it is unwilling to investigate any aspect of cyber-harassment or report on it. The pitiful evidence of the performance of the New York EEOC over a sixteen-year period raises a very salient question: Who is the New York State EEOC representing? It should be apparent by now that it is representing white collar criminals in clandestine and unregulated markets where the rights of workers are traded for profits and personal benefits.
When favoritism and corruption infect the US educational system, policymakers should quickly wake up from their torpor. Inertial corruption is not an acceptable attribute of any civilized society. The robust and vibrant shadow-market for justice generates undesirable negative externalities that are detrimental to the very vulnerable in the US. Sadly, one must now ask: What is left of justice and how can it be redefined in a country that prides itself on being the beacon of hope and fairness to the rest of the world? For the sake of the prosperity of future generations, it is now time to put the white collar criminals of the New York EEOC and their patrons out of business.
Indeed, Ricardo Jones is correct. The New York EEOC is “a cesspool of corruption,” and I must add, an existential threat to justice everywhere in the US. The ratification of the Convention of Against Corruption should mean something and the New York EEOC might be a good place to start.
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Fifty Years After The Fact: How Viable is The Civil Rights Act of 1964?
July 4th, 2014
By Christopher Warburton.
The Civil Rights Act of 1964 was legislated, among other things, to provide equal opportunity for all workers. This means that supervisors and co-workers should leave their unwanted prejudices at home before they get to their places of work. Employers must ensure that their work environments are free from hostility and discrimination, especially if they are receiving federal dollars.
Civil rights complaints about employment discrimination are generally filed under Title VII of the Civil Rights Act of 1964 and the EEOC is obligated to ensure that all employers adhere to the provisions of the Act for the sake of creating equal employment opportunity for their workers on the basis of race, gender, age, national origin, religious affiliation, and sexual orientation.
In the Dark Ages of the 1950s and 1960s in the US, blacks were discriminated against and deprived of employment opportunities. The practice of discrimination is still going on in the twenty-first century Cyber Age. That is, unwanted vestiges of the Dark Ages are with us in the Cyber Age. The Civil Rights Act of 1964 is intended to criminalize and discourage practices that make it impossible for workers to work in peaceful and nondiscriminatory work environments.
Employees who have been offended because of violations of the law have a right to notify their employers about the violations. Serious law-abiding employers will take such complaints seriously and investigate the merits of the complaints. They will not try to pretend that they have conducted an investigation when they have recklessly and negligently handled the complaints and failed to investigate them. That is, they should not try to sweep civil rights violations under the proverbial rug and hope that the infractions will go away quietly into the dark without any notice or publicity. Alternatively, they should not try to wrongfully terminate workers who face collective hostility in the workplace because they have complained about pervasive hostility and employment improprieties in their places of work.
Those who complain about harassment and discrimination on the job must be protected against retaliation. That is, they should not be exposed to circumstances under which they will suffer economic and psychological harm just because they have reported a criminal behavior in their places of work. When employees are wrongfully terminated because of racist and other prejudices in their places of work, they have a right to bring a charge against those who have caused them harm. The perpetrators are usually people who still imagine that they live in the Dark Ages and who go to work with their racist attire at home to project good optics and engage in deceptive practices.
When complaints about violations of civil rights are brought to the attention of the EEOC, the EEOC is obligated to properly investigate the complaints in order to ascertain whether or not the relevant provisions of the Civil Rights Act have been violated. The EEOC personnel are not expected to: (a) collude with employers, (b) engage in bribery and corruption, (c) report that there is no probable cause for investigating complaints based on corrupt practices and (d) issue a “determination and order after investigation” when they have not conducted an investigation, or have conducted a criminal and negligent investigation for compensation or overtime pay.
For sixteen years, EEOC data reveal the following inter alia: (a) the amount of complaints that were filed (receipts), (b) the amount of complaints with probable cause (complaints for which there is prima facie evidence that wrongdoing took place), (c) those without probable cause (complaints that did not require the EEOC to launch any investigation because they did not pass the smell test), (d) merit resolution (charges with outcomes that were favorable to the charging parties), and (e) settlements.
Accordingly, if 96 percent of discrimination complaints were thrown out without any investigation since 1997, the EEOC is explicitly telling us that 96 percent of the people who complained (thousands of people) were crazy or they did not know what they were complaining about. By algebraic definition, this means that only about 4 percent of the cases required sham investigations. This is something that should alarm every civilized human being with a moral conscience because it is unconscionable. Technically, 100 percent of the complaints are not treated seriously. Apparently, the white collar criminals have no conscience. It should behoove people of conscience and policy makers to ask a very fundamental question: Why should an agency of such enormous responsibility and importance be so corrupt and worthless enough to sabotage the prosperity of the US economy?
Unless the EEOC officials are corrupt and incompetent, they should be able to pointedly investigate what they have been asked to investigate. They should be able to count and classify things appropriately. For example, they should know that publications about red imported fire ants are not in the same category as publications about exchange rates and market failure. More so, they should not deliberately mix up apples and oranges or manufacture evidence for the sake of arriving at premeditated or a priori conclusions.
Beyond the investigative stage, between 1997 and 2013, the range of merit resolution by the EEOC is between 8.3 % (in 1997) and 20% (in 2007). That is, cases that survived the haphazard investigations gained a “successful” high watermark of 20 percent in 2007 (seven years ago). The merit resolutions include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations.
Remarkably, it is no surprise that the rate of minority unemployment is comparatively very high. Thanks to the EEOC, thousands of minorities have been thrown out of work. The EEOC is part of the unemployment problem in the US. While policy makers are fast asleep, the level of minority unemployment and the contributions of the EEOC to the astoundingly high level of minority unemployment are unmistakable.
Policy makers who are serious about reducing the level of minority unemployment must first summon the courage to purge the white collar criminals who are contributing to the high levels of unemployment and underemployment among minorities out of the EEOC.
Alternatively, minority voters should know that policy makers who tolerate the criminal conduct of the EEOC officials are directly endangering their welfare. It is time for the EEOC white collar criminals to face justice just like the conventional criminals who have not necessarily caused comparable economic and social harm to the US. The white collar criminals must be purged, tried, and incarcerated (if guilty) like every other criminal. The Civil Rights Act of 1964 is endangered and in need of expeditious redemption.
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