Overruled, Mr. Bernstein

Jules Bernstein has been practicing worker and union-side labor law from Washington, D.C., since the early 1960s. In addition, he has par ticipated in many labor-organizing and bargaining struggles throughout his career. He was born in Brooklyn, N.Y., in 1935, and is a graduate of Brandeis University (B.A. 1957); the University of Chicago Law School (J.D. 1960); and the New York University Law School (LL.M. 1961). He served on the legal staff of two large labor organizations for the first two decades of his career and has been in private law practice with his wife, Linda Lipsett, for the following forty years, where they continue their law practice together.

This volume consists of a collection of articles and lectures that Bernstein has published and delivered over a number of years, some of which are autobiographical and others that deal with, labor, economic, political, historical, and law-related subjects. Bernstein also addresses the bizarre political career and presidency of Donald Trump and its aftermath, as well as the 2020–2022 Covid-19 pandemic.

OVERRULED, MR. BERNSTEIN!

OVERRULED, MR. BERNSTEIN!

Sometimes Down, But Never Out

Jules Bernstein

Jules Bernstein

Overruled, Mr. Bernstein!

a

Jules Bernstein

Copyright © 2022 by Jules Bernstein

All rights reserved.

No part of this book may be copied, transmitted, or reproduced without written permission of the author, except in the case of brief quotations embodied in critical articles or reviews.

Printed in the United States of America

Interior and cover designed by Susan Turner

Cover art: Overruled, Mr. Bernstein!, woodcut, 1975, by Patricia Golden Levine

493 South Pleasant Street

Amherst, Massachusetts 01002 413.230.3943 smallbatchbooks.com

I dedicate this book to my brother and sister labor lawyers who, throughout our nation’s history, have toiled tirelessly on behalf of the working class in unfriendly courts, which more often than not have been the fiefdoms of the privileged classes.

INTRODUCTION 1

PART ONE | My Education 5

Brandeis: Academic Utopia 7 Law School: Finding My Vocation 31

One Lawyer’s Take on “Experiential Learning” 43

My Education: Postscript 51

PART TWO | Labor 55

How the Decline of Labor Threatens Our Nation’s Future 57

Jimmy Hoffa and Me 75

The Fiftieth Anniversary of the 1970 Postal Strike: 91 Postal Employment Is Still Contentious a Half Century Later

Employee Refusals to Work in the Face of 103 Coronavirus Hazards

PART THREE | Labor Economics 109

America’s “Trickle Up” Economy: Some Reflections on 111 Thomas Piketty’s Capital in the Twenty-First Century , or “Will the Clique Inherit the Earth?”

Laboring in the New Economy: Sharing or 129 the New Sharecropping?

AI and Robotics in the Twenty-First Century: 149 A Tsunami Without a Safety Net

ILLUSTRATIONS 171

PART FOUR | The Left 187

A Tale of Two Camps 191 Thank You, Bernie 215 What’s Left of the Left? 225

PART FIVE | Racism and Civil Rights 241

Remembering the Great 1963 March 243 Class, Race, Gender, Religion, and the Struggle over 249 the Franchise in the United States

PART SIX | Trump 267

Deconstructing Dershowitz 269

The Bar and Donald Trump 279 Is There a Doctor (Shrink) in the White House? 283

The Second Senate Impeachment Trial of Donald Trump 291

Postscript I: The Trump Impeachment 309

Postscript II: Trump and the Senate 313

ADDENDUM: Beleagured American Workers Facing 317 An Unrelenting Pandemic

Introduction

I have occupIed most of my workIng lIfe lawyerIng and advo cating on behalf of the causes of workers and unions. Shockingly to me at eighty-seven, I have done so continuously for sixty years, and I’m still at it, albeit at a slower pace. It is by now an integral part of who I am. I have written endless briefs, petitions, complaints, motions, and memoranda over those years on behalf of tens of thousands of individual and institutional clients. These “pleadings” now reside unseen and unread in storage boxes, and more recently they have been deposited for eternity in the “cloud.” Happily, however, my pen, which I often have described as “my weapon,” has lived a double life. At least from the time I entered Samuel J. Tilden High School in Brooklyn, N.Y., in 1950, at age fifteen, when I began writing as a cub reporter for  Tilden Topics,  the student newspaper. I later became sports editor, and in my senior year, editor in chief. I wrote news, features, editorials, and (sadly) an unfunny humor column. As sports editor, I traversed Brooklyn with the school’s outstanding baseball, basketball, and football teams. The borough’s then daily newspaper, The Brooklyn Eagle, hired me to

cover the teams’ games and paid me a penny a word. I recall fram ing my first three-dollar check. Better than the uncashed check—I must admit—was the byline.

When I entered Brandeis University in 1953, I briefly joined the student newspaper, aptly named The Justice, but found too many new interests and distractions, so I satisfied my desire to write and be heard with an occasional opinion piece or letter to the editor. Also, there were endless term papers to write, and even a lengthy senior thesis entitled “The Jew as Radical: The Marginal, Marginal Man,” a sociological study of Jewish socialists in Russia and the United States between 1880 and 1920.

It was upon entering the University of Chicago Law School in 1957 that I first learned to think and write like a lawyer. Legal writing is usually addressed to other lawyers (especially judges) with the object of persuading them of the soundness and power of one’s arguments. Legal pleadings tend toward being technical and “lega listic.” When lawyers try to engage in journalism, they frequently are criticized for their wearisome and labored prose, as I often have been.

In my case, however, as a young labor lawyer on the legal staff of the International Brotherhood of Teamsters in Washington, D.C., in the 1960s, I became friendly with the editors of the union’s magazine, which was mailed to about 1.5 million members each month. Occasionally, the editors would ask me to write editorials and stories, and thus I was able to keep my journalistic voice and skills alive. Thereafter, and until today, I frequently have written about union, labor-related, and legal subjects for publications that share my professional and political pro-labor orientation. More recently, I have written and delivered papers on a number of var ied subjects to a unique Martha’s Vineyard weekly summer “old men’s” breakfast group, of which I have been a member for the last decade. The summer discussion group was founded by Stan Snider, a leading Martha’s Vineyard maven, twenty-seven years ago. And

I have published several articles in  The American Prospect  magazine (available online). It was started by a group of inspired liberal and radical thinkers and writers over thirty years ago to explore social, political, and economic developments. I have incorporated some of the foregoing pieces into this collection.

Also, I have included two pieces I wrote after the 2020 presiden tial election that recount my observations and perspectives about Donald Trump’s diabolical effort to effect a coup d’état after he lost the election by claiming that it had been stolen (now known as “the Big Lie”), and by inciting an unlawful physical invasion of the U.S. Capitol on January 6, 2021, by hundreds of rioters and insurrection ists, many of whom were armed. The defeat of Trump at the polls by Joe Biden on November 3, 2020, was an important but narrow repudiation of Trump’s disgraceful four years as president. And his continuing denial of his defeat was the culmination of his four tyran nical years of refusals to tell the truth and abide by the Constitution and the rule of law. The outcome of the Trumpian challenge to American democracy remains uncertain as I write, and will continue to be played out in the years ahead, hopefully for the best. Reducing my experiences, observations, and conclusions to writing has been challenging but enjoyable for me, especially as a personal forum for thinking, learning, and teaching. Writing con tinues to engage me, and that is why I have chosen to collect and circulate these essays to family members, comrades, and friends. I hope, dear reader, that you find my journalistic efforts of some interest as a modest source of enlightenment and as an inspiration for your own further thoughts and actions.

I would be remiss if I did not express my appreciation for the highly professional editorial and technical assistance in producing this compendium provided to me by Fred Levine, Allan Edmands, and Susan Turner at Small Batch Books, as well as the invaluable help of my longtime assistant Charlotte House, who has succeeded in keeping me organized and focused for many years.

Finally, I dedicate this collection to my lovely and loving wife, Linda, with whom I have shared more than forty memorable and remarkable years. As wife, fellow parent, and law partner as well, she has been an inspiration, soul mate, and bedrock for me through thick and thin, and my love and gratitude for and to her are immea surable and unending.

P.S. It should be no surprise that as a hobby, I have collected labor, radical, civil rights, and feminist art and memorabilia. I have included several of my favorite items here with brief explanatory captions, beginning on page 171.

aPart One My Education

In this section I focus on my eight consecutive years of higher education between 1953 and 1961. The first four were as an undergraduate at Brandeis Uni versity in Waltham, Massachusetts; the next three were at the University of Chicago Law School, and finally I spent one year at the New York University Law School earning a master’s degree in labor law. For me, these were intense learning and growing years, the influence of which has lasted a lifetime. Without them I cannot imagine who I would be and what would have become of me. For me, they were transformational, so that for many of my dedicated teachers I have the greatest appreciation and admiration for their wisdom, support, and guid ance. I include here only a brief indication of my educational experiences during those years, but several of the other chapters in this collection represent examples of how my education influenced my later work and thought.

Brandeis: Academic Utopia (June 1, 2015 [but updated])

when I was a hIgh school student In the early 1950s, the New York Post was my political North Star. It was then owned by Dorothy Schiff, the granddaughter of Jacob Schiff, a German-born Jewish businessman and philanthropist. Hard as it is to fathom today, with the Post now part of Rupert Murdoch’s right-wing news paper empire, the Post was then a liberal paper led by its crusading editor, James Wechsler. Its two other stalwart left-wing commenta tors were Max Lerner and Murray Kempton.

As a youth, I had read Lerner in PM, followed him to the short-lived New York Star, 1 and then to the Post. There, along with the work of Wechsler and Kempton, I received a good part of my early political education. Several times each week, this “troika” would pen political columns on the events of the day. I read their commentaries religiously, as they provided a compelling counter point to a political climate dominated by McCarthyism, political

1. PM and the Star were ultraliberal New York newspapers in the 1940s.

witch hunts, and anti-communist hysteria while the Korean War raged.

Lerner wrote frequently about Brandeis University, where he had been teaching since 1949. It sounded to me, as a left-wing Brooklyn teenager, like an academic Elysium. When my Brandeis acceptance letter arrived in the mail, it seemed the greatest day of my life to that point.2 It felt almost better than the Dodgers winning the pennant in 1947, in Jackie Robinson’s freshman year in the majors.

I also had begun to hear about Brandeis on the sports pages. In its early quest to try to be a truly “American” college, Brandeis had decided to field athletic teams for intercollegiate competition. By 1952, it had a football team, with Benny Friedman, the great Michigan quarterback of the 1920s, as head coach. There was also a Brandeis basketball team at a time when basketball was still a sport in which Jews, like Dolph Schayes and Sid Tanenbaum prime among them, played a significant role. Today Jews hardly figure in the professional basketball scene, although they seem to be making a comeback in baseball.

A World-Class University Is Born

Brandeis University was founded in the landmark year of 1948 (when the state of Israel was established and I became a bar mitzvah) by a group of Jewish businessmen-philanthropists from Boston and New York, most of whom had never attended college. Albert Einstein also was involved at the outset. They shared a vision of establishing a Jewish-sponsored, nonsectarian university. While many religious denominations had established colleges and uni versities in the United States, including Harvard, the University of Chicago, Wesleyan, Middlebury, Haverford, Georgetown, and scores of others, the American Jewish community had not followed

2. It was the only college I had applied to. I never visited it before enrolling.

suit, and a sentiment existed that it had a moral and patriotic duty to do so.3 Establishing a Jewish-sponsored university also reflected a Jewish concern that Jews had long been deliberately excluded from leading colleges and universities in the United States.

The university was named after Louis Dembitz Brandeis (1856–1941), who was born to an Austro-Hungarian immigrant Jewish family in Louisville, Kentucky, and had been an influential public interest lawyer in Boston as well as a leading Zionist. He was appointed to the United States Supreme Court by President Woodrow Wilson in 1916, and he served until he retired in 1939. Today, Justice Brandeis is widely recognized as one of the most dis tinguished jurists in American history, along with his colleague and friend, Justice Oliver Wendell Holmes Jr. He is also viewed by many as the most outstanding Jew in American history.

He was the first Jewish Supreme Court justice, followed in time by Benjamin Cardozo, Felix Frankfurter, Arthur J. Goldberg, Abe Fortas, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. Brandeis’s confirmation hearings in the United States Senate were controversial because of his trust-busting activities and his Jewish identity. President Wilson was required to make extraordinary personal efforts to assure his confirmation.

One of his many famous accomplishments as a lawyer was the so-called “Brandeis brief,” which sought to incorporate social and economic facts and considerations into the resolution of legal dis putes, a novel idea at the time (1908). Indeed, it was a “Brandeis brief” filed by the NAACP that played a major role in the ground breaking 1954 Brown v. Board of Education of Topeka decision, which declared racially separate public schools unconstitutional and reversed earlier decisions that had held otherwise.

3. The history of Brandeis has been written several times, including one account, A Host at Last by its chief architect, Abram Leon Sachar, who served as its first presi dent and its chancellor for more than thirty years.

A life-size statue of the justice by sculptor Robert Berks was dedicated on the Brandeis campus in 1956 as part of the Justice Brandeis centennial celebration at the university. I attended the dedication ceremony, which featured a speech by Chief Justice Earl Warren.4 One of the drinking songs that my classmates and I fre quently sang together, declares:

Louie Brandeis of old, Your ideals we’ll uphold, For the tale of your life Shows a spirit so bold, And we’re thinking of you, As we’re drinking our brew, As we toast our alma mater, Brandeis U.

(At the time I was a Brandeis student, the national drinking age was eighteen rather than twenty-one, as it is as I write.)

Brandeis opened its doors to its first freshman class in September 1948. It was composed largely of a feisty and adventurous group of young Boston and New York Jews. Some were late-returning World War II veterans, attending college under the G.I. Bill of Rights, which included college tuition paid for by the federal government. Initially, the school was very small, with fewer than 150 students and 15 faculty members. Though its beginning was not auspicious, Brandeis has evolved over more than fifty years to be a major center of research and higher learning, with over 3,500 undergraduate students, 2,000 graduate students, and a large and prestigious faculty.

4. Chief Justice Warren is fondly remembered for having written the Brown ruling and less fondly recalled for his 1942 decision, as governor of California, to intern thousands of Americans of Japanese descent. Dick Millman, a 1957 Brandeis grad uate who became a lawyer in Washington, D.C., took my picture once at a cocktail party in which I appear to be shaking my finger in Justice Warren’s face. See Ber nard Schwartz, Super Chief, Earl Warren and His Supreme Court: A Judicial Biography (New York: New York University Press, 1983).

A few of the early faculty members were refugee scholars who had escaped from war-torn Europe. During the early years, more of such teachers gravitated there, giving it a decidedly Old World flavor. Yet it also had new and up and coming faculty who were well known and on the cutting edge in their fields. Prime among them was Leonard Bernstein, then a young musical prodigy from the Boston Jewish community, who gave the university an early claim to musical renown.

As previously mentioned, one of the school’s first faculty mem bers was my favorite columnist, Max Lerner. Although a practicing journalist and author, Max had earlier also taught at other colleges, including Sarah Lawrence and Columbia. In the late 1930s, he edited the massive Encyclopedia of the Social Sciences, a standard reference work in the field.5 In addition to his extraordinary academic credentials, he also had a major following on a national level in the left, liberal, and Jewish communities; his presence at Brandeis gave the fledgling university a certain cachet. Max was born near the beginning of the twentieth century (December 20, 1902; he was about the same age as my father) in Minsk in the Russian Empire; his family emigrated to the U.S. in 1907. His father was a Jewish dairyman who drove his horse-drawn milk wagon around the city of New Haven, Connecti cut, selling milk from a vat, as well as cheese and eggs. He was sort of a Jewish American Tevye, the dairyman of Sholem Aleichem and Fiddler on the Roof fame.6 Max would later describe to me how, as a boy, he had accompanied his father on his daily delivery rounds.

5. Max Lerner was author and editor of a wide range of books, including Ideas Are Weapons: The History and Uses of Ideas (1939); It Is Later Than You Think: The Need for a Militant Democracy (1939); Ideas for the Ice Age: Studies in a Revolutionary Era (1941); Public Journal: Marginal Notes on Wartime America (1945); America as a Civilization: Life and Thought in the United States Today (1957); The Portable Veblen by Thorstein Veblen and Max Lerner (1958); Nine Scorpions in a Bottle: Great Judges and Cases of the Supreme Court (1958).

6. Sholem Aleichem’s Tevye stories are collected in his book Tevye’s Daughters and were the basis for the musical Fiddler on the Roof

Before Brandeis, Brooklyn College

While Brandeis was being founded and attracting such remarkable talent, I was in my early high school years and did little thinking about going to college away from home—or about my future at all, for that matter. But my time on Tilden Topics and the summers of 1951 and 1952, which I spent working as a waiter at Camp Onibar—where I met lots of students attending the University of Pennsylvania, Dickinson, Randolph-Macon, Princeton, Brown, and other colleges—lifted my sights, hopes, and dreams.

Having my interests awakened by Max Lerner’s columns about Brandeis, and with the encouragement from some of my high school teachers and my parents, I decided to apply there. While my grades were fairly mediocre, except in English and social studies, my position as editor of Tilden Topics helped. I recall my interview in 1952 at the Roosevelt Hotel in Manhattan with a young Brandeis admissions officer named Phil Driscoll. But I do not recall what was said. Presumably my grades, extracurricular activities such as Topics, as well as my interview were sufficient to result in my admission for the term beginning September 1953. This was a new school whose future, and accreditation, were far from assured, so its applicant pool must have been small. Also, since I was a “Depression baby,” I was competing with a limited number of contemporaries and peers.

I was scheduled to graduate from high school in January 1953, so I had to decide how to spend the period from February until the end of the school year. My solution was to enroll at Brooklyn Col lege, which admitted a freshman class twice each year. As a publicly sponsored school, Brooklyn College charged no tuition, an idea that regrettably has long since passed in most places in this country.7

7. Brooklyn College is part of the City University of New York (CUNY), which was founded in 1847 to provide the children of immigrants and the poor with a free higher education by Townsend Harris, president of the city’s board of education. It was first known as The Free Academy of the City of New York.

It was a thirty-minute bus ride from my home to the campus, which was located in the middle-class, tree-lined Midwood neigh borhood. I viewed a semester at Brooklyn College as sort of a college prep course before I would leave for Brandeis in the fall. I would not turn eighteen until May, and I thought four or five months on the campus of Brooklyn College might provide me with some learning skills and substantive knowledge, from which I would profit later at Brandeis.

My experience at Brooklyn College was both helpful and reveal ing. As a school of commuter students, to me it lacked cohesiveness and a sense of community. People seemed to come and go, attend class, take their exams, and engage in what seemed a rather passive existence, although many worked in addition to going to school. I do not recall making any but the most casual of friends. The faculty members seemed relatively uninspired and bored, and they trans mitted no excitement to their students about the learning process or anything else. Perhaps because I knew I wasn’t staying, the size of Brooklyn College (thousands of students), and the fact that it was a commuter school, I did not find my introduction to higher educa tion particularly welcoming or rewarding. One course I do recall was “Speech,” in which the students, including me, endeavored to rid ourselves of our Brooklyn accents.

And So It Begins: My Life at Brandeis

As I did from 1951 through 1956, I spent the summer before college working as a waiter at Camp Onibar.8 Then I returned home and packed, and my parents drove me to Brandeis for freshman orienta tion week. I had never seen the Brandeis campus, and though I’d spent the past semester at Brooklyn College and had been away from home every summer since 1947, I really did not know what to

8. See infra, “A Tale of Two Camps.”

expect. However, I recall my confidence level as being fairly decent. Frankly, I doubt that my parents had ever stepped foot on a college campus before, so this brief visit was new to them too.

When I enrolled at Brandeis, the student body consisted of about eight hundred students. Most were Jewish (about 75–80 per cent) and from either the Boston or New York metropolitan areas. By the time of my enrollment in September 1953, Brandeis had already held two graduations, the classes of 1952 and 1953, and its third class of students (those who had entered in September 1950) would complete their degrees in June 1954. So my class of 1957 would be the sixth to graduate.

I was assigned to a dorm called Ridgewood A, which resembled a grouping of two-story garden apartments or a motel on a hillside at the edge of campus. It still stands today, although it has been enlarged and renovated. My room was on the second floor, a double that I shared with my roommate, Sam Coleman, a Black student from Waterbury, Connecticut. Of the sixteen or so residents, about six were freshmen, and the others were upperclassmen. The dorm was all-male, and indeed, women students could not enter. They lived in the Castle9 and in Smith Hall.

On my first day at Brandeis, one of the dorm’s upperclassmen, Mark Samuels, volunteered to take several freshmen on a campus tour. What I remember is him pointing to a student who had just walked by and saying to us in hushed, reverential tones, “That’s Mike Walzer” as if he were Mahatma Gandhi. I brashly asked whether Walzer was the quarterback of the Brandeis football team that was then in training for the fall season.10 Mark explained that Walzer

9. The Castle had been built in 1928 in the style of a Norman castle for the Mid dlesex College of Medicine and Surgery, which occupied the property on which Brandeis is still located. It recently was partly torn down.

10. I had just met the fullback, Phil Goldstein, who had been high school “all-city” in New York and who ruled the dorm, declaring that we lowly freshmen had better “shut up” while he was studying in the dorm lounge or else! As it turned out, Phil

was not the quarterback but rather a leading student intellectual, loved and trusted by all, who as a freshman during the preceding year had received straight As. “He’s our leader,” Mark said.

Mike Walzer and I became friends and comrades at Brandeis. He married a member of my class, Judy Borodovko, and went on, after teaching at Harvard, to an appointment at the Institute for Advanced Study at Princeton, where Albert Einstein and J. Robert Oppen heimer had done much of their work. He has been there since 1980 and has written many books,11 mostly in philosophy and politics.

My Brandeis freshman class of close to three hundred students had a few days of orientation with faculty, staff, and students, and we then dove into our studies. We ate three meals a day together on campus in the cafeteria in the Castle, talking, discussing, gossiping, and always learning. And was there a lot to learn!

Two brief vignettes of Brandeis in the 1950s, published else where, provide some insight into the school in the early years. The first is by Sandy Lakoff, class of ’53, who is Max Lerner’s biographer:12

Brandeis in the early years was, as the British political scientist Gordon K. Lewis perceptively noted, a kind of Oxford of the mind! Discoveries and encounters crowded the inner land

preceded me at the University of Chicago Law School and became a leading trial lawyer in Phoenix, Arizona.

11. Mike Walzer’s many books include: Obligations: Essays on Disobedience, War and Citizenship (1970); Political Action: A Practical Guide to Movement Politics (1971); Regicide and Revolution; Speeches at the Trial of Louis XVI (1974); The Revolution of the Saints: A Study in the Origins of Radical Politics (1976); Just and Unjust Wars: A Moral Argument with Historical Illustrations (1977); Radical Principles: Reflections of an Unreconstructed Democrat (1980); Spheres of Justice: A Defense of Pluralism and Equality (1983); Exodus and Revolution (1985); What It Means to Be an American (1992); Thick and Thin: Moral Argument at Home and Abroad (1994); and On Toleration (1997).

12. In From the Beginning: A Picture History of the First Four Decades of Brandeis University, ed. Susan Pasternack (Waltham, MA: Brandeis University Press, 1988).

scape. There were lectures by distinguished visitors: Buber, Maritain, and Tillich on religion, Justices Douglas and Frankfurter on the Constitution, David Ben-Gurion on the founding of Israel, Robert Maynard Hutchins on the sorry state of American culture. A poetry series meant weekends with W. H. Auden and Dylan Thomas. Leonard Bernstein mesmerized us with Mahler and led the thrilling American premiere of The Threepenny Opera and his own Trouble in Tahiti. In Gen Ed S (for seniors), Max Lerner invited creative men and women (also known as “role models”), including Margaret Mead, Archibald MacLeish, Leo Szilard, Alfred Kinsey, Agnes De Mille, and Norbert Wiener, to tell us of their turning points and torments. (A week later a faculty panel “dissected” the previous week’s guest and each other, to our shameless delight.)

We social science majors were especially privileged. American history came to us live each week from Columbia in the person of Henry Steele Commager, a bulldog who could not only stand on his hind legs and talk but give spellbinding lectures without notes for two hours straight. We read Max Weber with Lew Coser, Freud with Philip Rieff, Kant with Aron Gurwitsch, Nietzsche with Frank Manuel, Burckhardt on the Renaissance with David Berkowitz, and studied civil liberties with Leonard Levy, the power elite with C. Wright Mills, psychology with Abe Maslow and Jim Klee, and Marx with practically everyone. . . .

It was a special place at a special time and we were lucky to have been there when we were.

The second is by a friend, Jeremy Larner, class of 1958, who was also a cousin of my later friend and comrade Debbie Meier. Jeremy later won an Academy Award for the screenplay of The Can didate, with Robert Redford:13 13. In From the Beginning

In 1954, I came to Brandeis as a green seventeen-year-old from the Midwest, speaking with such a drawl that New Yorkers walked away before I could finish a sentence. A few years later, I’d become snotty enough to stand up at a Gen Ed session and ask the leader of Britain’s Labour Party in what sense he still believed in socialism. There was an air of unreality about Brandeis in the ’50s, but also a climate in which wildly individualistic teachers and students could feel that what they learned and believed in mat tered. I remember a seminar where a student with a beautiful voice read the three-page story “Araby.” The argument that fol lowed lasted ninety minutes, as three professors who were among the most compelling critics of their time violently debated the merits of the story, the value of James Joyce, the nature of realistic fiction, and the history of the West. We learned that disagreement was a style of taking people seriously, and that all tastes and values implied social and historical assumptions. Imagine my shock to graduate Brandeis and find that polite company did not gener ally accept these premises. Life continued to surprise me, and in some ways I remained a green Midwestern boy. The difference was that, after Brandeis, when disturbing events happened in the world, we could no longer call the whole community into a commons lounge and, young and old, green and ripe, fight it out together.

Brandeis and the History of Ideas

One of the areas of study that Brandeis was noted for, even dur ing its first decade, was “the history of ideas,” a.k.a. intellectual history. Truthfully, the idea that ideas had a history of their own, and that history was not solely related to events, had not occurred to me before I arrived at Brandeis. That ideas influenced events, I understood. But that ideas had a life and a history of their own that could be studied was news to me. I remember being a green,

eighteen-year-old freshman and hearing a senior in my dorm talk ing about his course entitled “A History of Political Theory in the West” and wondering to myself why “the West” (which I then thought meant the western part of the United States) would have its own political theory distinct from the East.

I learned soon enough about intellectual history once my Euro pean history class with the great Frank Manuel14 began. He lectured to the entire three-hundred-member freshman class three times a week from a stage, swinging his one remaining leg over the table on which he was perched. We imagined that he had lost his other leg in the Spanish Civil War, but we never asked.15 He had been a thirtyfour-year-old intelligence officer in the U.S. Army in World War II. He died at age ninety-two, in 2003.

In the second semester of my freshman year, I took social psychology with Philip Rieff,16 who spoke in such extraordinary academic jargon that I brought a huge tape recorder I owned to class to record his lectures. Afterward, I would define the terms, decode the jargon, and analyze the lectures in my dorm room. Rieff and I became friends, and I later took a seminar with him in which I wrote a paper on Pavlovian Soviet science.

Despite his erudition, Rieff would occasionally show a lighter side. I recall that in the midst of one lecture, he was reminded of,

14. Frank Edward Manuel wrote The Politics of Modern Spain (1938); The New World of Henri Saint-Simon (1956); The Eighteenth Century Confronts the Gods (1959); Shapes of Philosophical History (1965); The Prophets of Paris: Turgot, Condorcet, Saint-Simon, Fourier, Comte (1965); A Portrait of Isaac Newton (1968); The Religion of Isaac Newton (1974); Utopian Thought in the Western World: Scenes from the End, with Fritzie P. Manuel (1979); The Last Days of World War II in Europe; The Broken Staff: Judaism Through Christian Eyes (1982); The Changing of the Gods (1983); The Age of Reason (1984); and A Requiem for Karl Marx (1987). Manuel edited The Enlightenment (1965).

15. Not long ago I read Manuel’s excellent A Requiem for Karl Marx.

16. Philip Rieff wrote Freud: The Mind of the Moralist (1959); Fellow Teachers (1973); and the introduction to General Psychological Theory by Sigmund Freud. Rieff edited Freud’s Sexuality and the Psychology of Love and Studies in Parapsychology

and sang, an old left-wing labor song of the 1920s attributed to the Needle Workers Industrial Union, a communist-leaning rival of the International Ladies’ Garment Workers Union. It went:

The cloakmakers’ union is a no-good union, It’s a company union for the bosses.

The old cloakmakers and the socialist fakers

For the workers are making double crosses. Dave Dubinsky, Morris Hillquit, and Norman Thomas

To the workers always making a false promise. They preach socialism, but they practice fascism

While they save capitalism for the bosses. Hooha!

While Rieff was at Brandeis, he was married to a beautiful and brilliant Harvard graduate student whom he had met when he was teaching earlier at the University of Chicago. Her name was Susan Sontag. She was about nineteen, more than ten years Rieff’s junior. They had a young baby son, “Digger,” who grew up to be the writer David Rieff. Philip Rieff and Sontag later divorced, and she went on to a distinguished career as a novelist and critic.

Great Minds of the Twentieth Century

In addition to Max Lerner, Frank Manuel, and Philip Rieff, I was privileged to learn from some of the other great minds of the twen tieth century, scholars such as Irving Howe, Lewis A. Coser, and Herbert Marcuse.17

17. A masterful description of the early Brandeis University faculty is contained in retired Brandeis faculty member Stephen J. Whitfield’s Learning on the Left: Political Profiles of Brandeis University (Waltham, MA: Brandeis University Press, 2020).

IRVING HOWE

My arrival at Brandeis in September 1953 coincided with the appointment of Irving Howe (originally “Horenstein”) to the Brandeis faculty. Over the next forty years, Irving became my teacher, mentor, and friend, up until his death in 1993.18

Irving’s life has been memorialized in two biographies. The first, by Edward Alexander, titled Irving Howe: Socialist, Critic, Jew, was published in 1998. When I read a review of the book, I was astonished to learn that it was written by the same Eddie Alexander who had been the sports editor of Tilden Topics when I was the editor in chief. Indeed, Eddie may have succeeded me after I graduated. (Since Eddie’s picture appeared on the book’s back cover, there was no question that he was the same person I knew from my high school days.)

I devoured the book and then called Eddie, who was then a professor of English at the University of Washington. I had not spoken with him since high school, but he remembered me and told me what was evident from the book: that he had been a close friend of Irving’s for many years. Their friendship had begun in 1972, when Irving sent Eddie an unsolicited response to an essay Eddie had written about Chaim Grade’s short story “My Quar rel with Hersh Rasseyner,” which appeared in Irving’s Treasury of Yiddish Stories . Eddie said that his last letter from Irving was dated

18. Among Irving Howe’s many books are A Treasury of Yiddish Stories (1954); Beyond the New Left (1970); Politics and the Novel (1970); The World of the Blue-Collar Worker (1972); The Seventies: Problems and Proposals (1972); The Critical Point: On Literature and Culture (1973); The American Communist Party: A Critical History (1974); Yiddish Stories, Old and New (1974); Voices from the Yiddish: Essays, Memoirs, Diaries (1975); William Faulkner: A Critical Study (1975); Essential Works of Socialism (1976); World of Our Fathers (1976); Leon Trotsky (1978); Celebrations and Attacks: Thirty Years of Literary and Cultural Com mentary (1979); A Margin of Hope: An Intellectual Autobiography (1982); Thomas Hardy (1985); Socialism and America (1985); The American Newness: Culture and Politics in the Age of Emerson (1986); Selected Writings, 1950–1990 (1990); and A Critic’s Notebook (1994).

April 30, 1993, five days before Irving died. In the preface to his book, Eddie wrote the following about Irving: 19

I always felt that I was learning something by listening to Howe’s voice, a kind of life-wisdom that went beyond political differences. Once, shortly after his father had died late in 1977, I was in New York to visit my own ailing father, hospitalized not far from Irving’s apartment on 83rd Street. “Come over,” he said on the phone, “and let’s talk about life and death—no politics.”

Although most respectful of Irving’s views, Eddie’s book is nevertheless a critical biography, since Eddie disagreed with Irving on many matters.

I was surprised again early in 2003, when I read a review in the Washington Post of a book titled Irving Howe: A Life of Passionate Dissent by Gerald Sorin, professor of history and director of Jewish Studies at SUNY New Paltz. Apparently, Sorin began his biography of Irving before the publication of Eddie’s. It covers much of the same ground but is far more sympathetic to Irving.

Finally, Irving himself wrote a political autobiography, A Margin of Hope. Since his life has been pretty well covered, I need not repeat it here. I will say that it was clearly an extraordinary and remarkable life, and in many ways it had a significant impact upon my own.

Irving was invited to teach at Brandeis after having an unusual and rather remarkable job interview in early 1953. As Sorin describes it:20

19. Irving Howe: Socialist, Critic, Jew (Bloomington: Indiana University Press, 1998), xii.

20. Irving Howe: A Life of Passionate Dissent (New York: New York University Press, 2002), 95.

He was interviewed by a faculty committee which included Simon Rawidowicz, a historian of Jewish thought; Ludwig Lewisohn, formerly a Freudian critic and in the 1950s a student and proponent of Jewish nationalism; and Joseph Cheskis, who taught French and had a thick Yiddish accent. The early spring afternoon was apparently not going very well for Howe until he mentioned in passing that he was work ing with the Yiddish poet Eliezer Greenberg on an anthology of Yiddish stories in English translation. Smiles broke out, as did Yiddish, which everyone spoke for the rest of the session. “Is there another professor of English in the country,” Howe asked later, “who can say that his first job interview was con ducted in Yiddish?”

I did not take a course with Irving my freshman year, but I found that he, Lew Coser (a faculty member who taught sociology and became a favorite teacher of mine), Bernie Rosenberg (another sociologist), and several other faculty members were planning to publish a democratic socialist anti-Stalinist magazine to be known as Dissent. 21 Upon the publication of its first issue in 1953, I met Irving and Lew, along with a few other Brandeis students, including Michael Walzer. I was so enthused by talking with them and reading Dissent that I succeeded in selling some two hundred sub scriptions on campus (without receiving any commission). This feat was enough to guarantee my status with Irving and the rest of the Dissent crowd on campus and elsewhere.

One of my marketing secrets had to do with my campus job serving meals to the students who were required by illness to spend time at the university’s infirmary. While I was delivering food trays

21. The origins of Dissent are described in detail in the Sorin book on pages 103–132. When Irving Howe died in 1993, Mike Walzer took over as editor. Dissent has since reached its sixty-seventh anniversary of what Irving described as the “steady work of critical left-wing political thought.”

to the sick, I was also busily selling them subscriptions to Dissent. My job as infirmary waiter, which I can remember performing for at least two years, was an interesting and unique way to get to know many students on campus. And my Camp Onibar waiting skills served me well.

LEWIS A. COSER

Lew Coser22 (originally “Cohen”) was also one of my most influential teachers. Lew was another German Jewish intellectual refugee whose field was sociology. Lew had met Irving Howe earlier as a democratic socialist comrade in arms and had urged Irving to look for a job at Brandeis, where Lew already was teaching. Together they wrote a searing history of the American Communist Party in 1962, and both were deeply involved in launching Dissent. It was partly because of my rapport with Lew and other members of the Sociology and Anthro pology Departments that I chose sociology as my major.

Lew was my advisor on my senior honors thesis, which, not surprisingly, I titled “The Jew as Radical: The Marginal, Marginal Man.” In it I studied the period 1880–1920 and traced the his tory of Jewish radicals in Russia and Poland and their personal reinvention after migrating from Europe to the United States. My particular focus was on how they addressed conflicts between their radical and revolutionary political postures and ideology, on the one hand, and their Jewish origins, on the other hand. (This problem continues to plague Jewish radicals to this day.)

22. As author, editor, and co-editor, Lewis A. Coser published at least twenty-five books, including Ideas in Historical and Social Context (1956); The Functions of Social Con flict (1956); Continuities in the Study of Social Conflict (1968); Men of Ideas: A Sociologist’s View (1970); Masters of Sociological Thought (1977); Books: The Culture and Commerce of Publishing (1982); A Handful of Thistles: Collected Papers in Moral Conviction (1988); and Refugee Scholars in America: Their Impact and Their Experiences (1989). He co-wrote two books with Irving Howe: American Communist Party: A Critical History (1962) and The New Conservatives: A Critique from the Left (1974).

HERBERT MARCUSE

It was not until my junior and senior years that I studied with Her bert Marcuse.23 The first course of his I took was History of Political Theory. And as a senior I enrolled in his Twentieth-Century Politi cal History seminar, which dealt mostly with World War I, the Russian Revolution, the postwar period, and the rise of Hitler. As a young German Jewish intellectual, Marcuse had lived through most of these events. He taught at the acclaimed Institute for Social Research in Frankfurt, of which Amos Elon wrote in his The Pity of It All: A Portrait of the German-Jewish Epoch, 1743–1933:24

Frankfurt was another great center of Weimar learning. Its university, founded after the war, was the only German uni versity where republican professors were not outnumbered by conservatives pining for the old order; its charter outlawed all racial and religious discrimination. At its famed Institute of Social Research, German and European sociology flourished. The institute was generously endowed by Hermann, a Jewish grain merchant who after making a fortune in Argentina had

23. Herbert Marcuse was a prolific and highly influential writer and is often described as the intellectual father of the “New Left” of the 1960s. Among his works are Reason and Revolution: An Introduction to the Dialectical Thinking of Hegel and Marx (1941); Eros and Civilization: A Philosophical Inquiry into Freud (1955); Soviet Marx ism: A Critical Analysis (1958); Reason and Revolution: Hegel and the Rise of Social Theory (1960); One-Dimensional Man: Studies in the Ideology of an Advanced Industrial Society (1964); Liberation from the Affluent Society (1964); Five Lectures: Psychoanalysis, Politics and Utopia (1970); Counterrevolution and Revolt (1972); The Aesthetic Dimension: Toward a Cri tique of Marxist Aesthetics (1978); Revolution or Reform (1981); From Luther to Popper (1983); Soviet Marxism (1985); Hegel’s Ontology and the Theory of Historicity (1987); and Negations: Essays in Critical Theory (1989). In 1965, Marcuse wrote an article titled “Repressive Tolerance” and dedicated it to his students at Brandeis University. There are several presentations by Marcuse on YouTube.

24. The Pity of It All: A Portrait of the German-Jewish Epoch, 1743–1933 (New York: Picador, 2002), 362–363. See Stuart Jeffries, Grand Hotel Abyss: The Lives of the Frank furt School (New York: Verso, 2016).

returned to his native Frankfurt. [Berthold] Brecht mocked Weil’s generosity with an acid-tongued, typically doctrinaire epitaph: “A rich old man (Weil, the speculator in wheat) dies, disturbed at the poverty in the world; in his will he leaves a large sum to set up an institute which will do research on the source of this poverty, which is, of course, himself.”

The institute’s leading luminaries were Karl Mannheim, Theodor Adorno, Erich Fromm, Herbert Marcuse, Max Horkheimer, and Walter Benjamin. Gershom Scholem de scribed the group as one of Germany’s most remarkable and influential “Jewish sects.” Horkheimer, the father of Critical Theory, regarded assimilation and progressive social criticism as the two main aspects of Jewish emancipation. Later, reflect ing on his colleagues, who had been scattered far and wide by the rise of Nazism, Horkheimer mused that they had all been possessed by a superhuman but, under the circumstances, tragic faith in the perfectibility of man.

Marcuse’s lectures were pure perfection. He came to class and proceeded to speak for fifty minutes, sometimes allowing time for questions. The lectures, delivered entirely without notes, seemed flawless and immediately publishable. Marcuse had an accent reflecting that German was his first language, but his knowledge and use of English were impeccable.

As Max Horkheimer suggested, Marcuse did appear to believe in the perfectibility of man, and his written works, such as Eros and Civilization, in which he sought a reconciliation of Marx and Freud, reflect such thinking. I, too, seriously entertained such views as an impressionable college student. If only man could be released from the fetters of culture, religion, capitalism, etc., and was rendered free to fully develop his faculties and potential, and if Eros, the love instinct, was thereby unleashed, heaven on earth would be achieved. Sounds like John Lennon all over again!

Today, this strikes me as hopeless romanticism. That Marcuse could have entertained it after the Holocaust seems remarkable in retrospect, if not downright naive. But I still remember Marcuse as an important influence.

Unlike Marcuse, I do not believe that our democratic system is a manipulated hoax in which the economic powers that be decide to what extent human progress, freedom, and equality (which to me are integral parts of a whole) will be achieved. Control of the means of production, the economy, the government, the police, the military, and the mass media can go only so far in forestalling and inhibiting the force of the people worldwide who seek a better and freer life. Indeed, the idea of the inevitability of this movement does sound neo-Marxian and dialectical. Perhaps the differences reside in the worldwide ups and downs of this movement, as well as the fact that the instruments of change are not merely the working class, as Marx and Engels proposed, but all of the seven-plus billion people on the planet.

Progress, as we have seen in the twentieth century, is tortuous, difficult, enervating, and sometimes overwhelming, with enormous setbacks suffered repeatedly. (Indeed, one of the usually unrecognized major historic struggles of man has been and continues to be against nature and disease—witness malaria, tuberculosis, and HIV/AIDS in Africa, and now Trump, the 2020 pandemic, and climate change.) But even the despots who run China know that unless they can feed, clothe, educate, and otherwise satisfy the human needs of 1.3 billion Chinese (almost as many as the 1.6 bil lion people who were on the earth in 1900)—and provide them with hope for a better future (including the right to determine the size of their families and their religion), as well as their freedoms of speech, expression, and self-organization into independent unions—the leaders ultimately will be swept into the proverbial dustbin of his tory. Sadly, there are still many who see China as on the right side of history, but I am not one of them.

Many of us on the left who witnessed the fall of communism in Russia had thought up to then that a totalitarian society might be maintained in perpetuity with the barrel of a rifle, the Naródnyy komissariát vnútrennikh del (NKVD), and other instruments of oppres sion. However, in the end, the totalitarian Soviet state collapsed under the weight of its own inefficiency, bureaucracy, corruption, and unpopularity. The same will be the fate of the uniquely schizo phrenic Chinese brand of communism. Viva Ai Weiwei!

Driving Max Lerner

At the beginning of my senior year, while I was living off campus in Waltham, one of my housemates, Steve Steinberg, called me from campus one afternoon and asked if I were interested in working as Max Lerner’s driver for the school year. Steve was always looking out for his friends!

The opportunity to drive Max from Logan Airport to campus Thursday mornings, to Cambridge after Gen Ed S (General Edu cation for Seniors) on Thursday nights—where he filed his Friday New York Post columns at the Western Union (no laptops or email then)—and back to Logan Airport Friday afternoons was beyond my wildest dreams. So after having taken Social Science II with Max, Larry Fuchs, Bernie Rosenberg, Leonard Levy, and Arno Mayer, where our textbook was the draft manuscript of Max’s America as a Civilization, the idea that I would be driving Max for the entire school year boggled my mind. Indeed, it turned out to be a graduate course in life!

The drives were always eventful and an opportunity to talk about everything! Sometimes Marty Peretz,25 who was in the class of 1959, would come along for the ride, just to spend a little time with

25. Marty Peretz went on to teach at Harvard and served as a mentor to Al Gore, his roommate. He also bought and later published The New Republic

Max. One day, my ’47 Chevy ran out of gas, and Max had to help push us to the next gas station. In the course of our travels, Max presciently persuaded me that it was the law, rather than an aca demic career, that I should pursue.

After I graduated, Max invited Marty and me to live in his brownstone on East 84th Street in Manhattan’s Yorkville neighbor hood for several weeks and work on the “Notes for Further Reading” for America as a Civilization. Max would wake us up at about seven in the morning, and for several weeks we worked on the book daily until about eleven at night. Then we would go to the newsstand on Second Avenue for the next day’s New York Times, which we would devour. The air conditioners were not working, and the tempera ture was in the nineties. Max’s family had left for vacation, and so it was just us happy (and hot) three. Anyone interested in learning more about this remarkable man should read the wonderful biography of Max by Sandy Lakoff, ’53, titled Max Lerner: Pilgrim in the Promised Land. This vintage Max jour nal entry written in 1986, when he was eighty-four, which appears in the book, speaks volumes about him:26

If the young dream dreams, the old see visions of what can be. . . . There is a lightness of resolution in becoming old. Things that once seemed impossibly knotty somehow get re solved. It is when you have yourself been sternly tested in relation to events, family, and friends, and they in relation to you that you are surer of them and yourself. Testing is all. . . .

At this point life acquires an economy, gets stripped of the in essential. You travel light, discard your accumulated surplus anxi ety and rage, get rid of the encumbering baggage of life’s heavy protocols. This becomes a new personal polity, with power, rank,

26. Max Lerner: Pilgrim in the Promised Land (Chicago: University of Chicago Press, 1998).

and status cut to the bone. You win a new freedom from labels and slogans, even from those of your own intellectual gang. . . . Thus equipped you are somewhat fitter to meet the inevitable bat terings that age inflicts on the body, fitter also to respond with a mind more seasoned by adversity. You might even learn to con front Death when he comes offering to be your fellow traveler.

As I update this at eighty-six, in fairly decent health and mind, I cherish Max’s advice, and so I continue to write. The end is still not in sight, the time provides special opportunities, but the uncertainty has its own challenges.

A final Brandeis note: At my graduation in May 1957, at which former President Harry Truman27 spoke, there were about thirty relatives from both sides of my family in attendance. For me it did not seem an especially great occasion, but for them, I was the first member of my family to graduate from college, and it was a truly major landmark and achievement for us all!

For me, I had spent four years opening up my mind to a world of ideas and thought that I did not know existed, which would remain available to me until this very moment. This was an opportunity that every human being ought to have the chance to experience if so inclined.

27. I had campaigned for him in 1948, when I was thirteen, and had heard him speak at Columbia University at a high school journalism conference in 1952. He was the last president not to have a college degree. See Sandel, The Tyranny of Merit: What’s Become of the Common Good? (New York: Farrar, Straus & Giroux, 2020).

Law School: Finding My Vocation (June 1, 2015)

Before graduatIng from BrandeIs, I took max lerner’s advIce on faith and applied to law school. I applied to several, but Harvard was not one of them. Too elitist for me, I then thought; also, I wanted to get away from Boston and Cambridge. I had never been “west,” and the University of Chicago Law School offered me a three-year full tuition scholarship (tuition then was $900 a year28), which “sewed it up.”

My law school class consisted of approximately 150 students, of whom just 4 were women and 4 were Black (including 1 Black woman). The rest were white males. That’s the way it was in 1957— and always had been (and worse) at American law schools, with a 28. According to the University of Chicago Law School, “Tuition for the 20212022 academic year is $70,710. A reasonable budget for a single student, including tuition and living expenses, for the 2021-2022 academic year is approximately $94,000. The living expenses budget includes $4,566 for the University required health insurance, which students can waive if they can provide comparable cover age with their own health insurance.”

few exceptions.29 At Chicago, out of a faculty of about 30, there then was only 1 woman instructor, Soia Mentschikoff, who had married her teacher, Karl Llewellyn,30 at Columbia Law School. Apparently because of an anti-nepotism rule at Columbia, they had moved on to Chicago.31 There was just one Black faculty member, William Robert Ming Jr., who was involved in NAACP civil rights litigation. In 1960, he tried and won a case involving an alleged perjury charge against Dr. Martin Luther King Jr. before an allwhite jury in Montgomery, Alabama. Earlier he had been involved in Brown v. Board of Education

The University of Chicago Law School was and remains today a small and elite law school. But its student racial and gender mix has changed significantly for the better over the last sixty years, as is the case in law schools and in the legal profession generally. Never theless, in my view, the profession and law schools are still far from where they should be in terms of faculty and student diversity. The legal profession, the law itself, and law school, for most of American history, have been bastions of white male supremacy. The struggles of women, Blacks, Hispanics, Asian Americans, and Native Ameri cans to enter the “Inns” of court continue. For most of American history, they have been legal “outs.”

Nevertheless, I recall my first law school days as having been remarkable, highlighted by the opening address by Dean Edward Levi.32 As the entire entering class sat in one of the amphitheater-like

29. A female friend from Brandeis who went to Harvard Law School in 1956 told me that she was asked by Dean Erwin Griswold to promise that she would not have children if she was admitted to Harvard. She must have said yes, since she attended.

30. See Llewellyn, The Cheyenne Way and The Bramble Bush.

31. Indeed, Susan Brandeis, Louis’s daughter, was unable to attend Harvard Law School (her father’s school) as a woman and went to Chicago.

32. Edward Hirsch Levi, the son and grandson of Reform rabbis, was an American lawyer, legal educator, and public official. Born in Chicago, he graduated from the University of Chicago and Yale Law School. Long associated with the University

classrooms, he began by declaring that we should look to our left and right. “One of the two will be gone by the first snowfall.” It snows early in Chicago, and Ed Levi was right. Whether it was the amount of work, the pressure, a distaste for the law, or personal reasons, we would soon number about 110. I’ve come to learn that this speech traditionally was given at other law schools, such as Harvard, as well. The movie The Paper Chase provides a fictitious but accurate example of law schools then. This has changed in the interim, with law schools working hard to retain students by being more student-friendly. The addition of female faculty and students has contributed greatly to this change and to the law as well.

My grades in law school were middle of the class. Real property, bills and notes, contracts, trusts, taxation, corporations, and other standard law school courses left me cold, although at least I was learning about the organic infrastructure of the capitalist status quo from what I youthfully saw as “the inside.” What I learned later was that to be a competent lawyer, one must at least have some familiar ity with it all.

Much more to my liking were courses in constitutional law, civil liberties, labor law, and antitrust (called “competition and monopoly” at Chicago and taught by Ed Levi and Aaron Director). I took as many of these classes as I could from an extraordinarily talented group of teachers, which included Philip Kurland, Karl Llewellyn, Edward Levi, and Harry Kalven.33

of Chicago, he was a professor of law there from 1945 to 1975, was dean of the law school from 1950 to 1962, provost of the university from 1962 to 1968, and presi dent from 1968 to 1975. He served as President Gerald Ford’s attorney general from 1975 to 1977 and did much to restore credibility to the position after the Watergate scandals of the Nixon years. He then returned to the University of Chicago as the Glen A. Lloyd Distinguished Service Professor. Among his writings are An Introduc tion to Legal Reasoning (1949), Four Talks on Legal Education (1952), and Point of View: Talks on Education (1969). He died in 2000.

33. A 2005 book by George W. Liebmann, entitled The Common Law Tradition: A Collective Portrait of Five Legal Scholars, describes the work of these four.

I enrolled in an additional course in constitutional law taught by William W. Crosskey,34 a former Wall Street lawyer who traded the law practice for academia after researching a significant constitutional law issue. His two-volume Politics and the Constitution is a great illustra tion of the intersection of scholarship and legal research. One of Crosskey’s significant insights was that the Constitution of the United States had to be read on a word-for-word basis in relation to the use of language during the period prior to the Constitutional Conven tion. Like a linguistic anthropologist, he looked at books, newspapers, and other documents of the period to determine what the words used actually meant to the drafters of the Constitution. Needless to say, this was a formidable but highly productive enterprise. The close tex tual analysis that Crosskey employed and demonstrated would prove extremely useful to me in my own research, writing, and thinking. But do not assume that Crosskey was like the modern-day “origi nalists.” His conclusions were in many respects the opposite of the current (2021) originalists on the Supreme Court. In a lecture I recently watched online by Herbert Marcuse, he said that his teacher in Germany, Martin Heidegger, had a similar perspective regarding the work of German philosophers. An important German philosopher himself (and a lover of his student, Hannah Arendt), Heidegger became a member of the Nazi Party in 1933.

It was in writing that I excelled at law school, and it is in writing, at least of legal briefs and a few law review articles, where I believe my talents as a lawyer have been demonstrated. In my first year at law school, I took a tutorial in legal writing with a British assistant professor who critiqued my assigned research papers endlessly over two quarters and helped me to improve both my style and substan tive formulations.

34. Crosskey had sold pots and pans to be able to attend. See Abe Krash, “William Winslow Crosskey,” University of Chicago Law Review 35, issue 2, article 3 (1968); Charles O. Gregory, “William Winslow Crosskey: As I Remember Him,” University of Chicago Law Review 35, issue 2, article 5 (1968).

The briefs and papers I wrote were researched the old-fashioned way, with the aid of Shepard’s Citations and without Westlaw or Lexis, which didn’t come into practical use until about thirty years ago. The latter two have increased the effectiveness and productivity of legal scholarship and practice significantly, including mine. They have reduced the time involved in legal research dramatically and have improved its quality as well.

Fiduciary Complexities

My first days at law school were quite interesting. Not only was I entering a new stage of my life, but it just so happened that on registration day, there was a conference being held in the large University of Chicago law library entitled “Fiduciary Obligations of Union Officers.” I had never heard the word fiduciary before, so I looked it up, to wit: “A position of trust or a person occupying such a position.” The term fiduciary was one that I would later come to know, ponder, and apply both to myself as a lawyer vis-à-vis my clients, the courts, and beyond, and to union officials vis-à-vis the union’s members and assets.

The principal speaker at the conference was Bernard Meltzer, a distinguished legal scholar who would also become my evidence and labor law professor, and later an arbitrator before whom I would be required to put in an economic case on behalf of postal unions. Meltzer earlier had been a prosecutor at Nuremberg and a drafter of the United Nations Charter.

The concept that Meltzer advanced that day was that union offi cers occupied positions of trust in relation to the union’s members and property, including its treasury, and that such officers should be held personally accountable in the civil courts for breaches of their fiduciary obligations. This concept seemed fair enough in the abstract. However, later, as a labor lawyer who practiced almost exclusively as a union in-house counsel for twenty years, I

discovered that the concept contained the seeds of a very destruc tive anti-union principle. The reason for this is, as Justice Benjamin Cardozo is often quoted as having said:

Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punc tilio of an honor the most sensitive, is then the standard of behavior.35

The ability to act as a fiduciary involves strict adherence to the interests of those represented, but this becomes difficult when those interests diverge. A union official is also a political leader who must fulfill his or her obligations by becoming involved in the give-andtake of political and economic life. For example, the United Auto Workers (UAW) represents unskilled, semiskilled, and highly skilled workers employed in the same company or industry. It is up to the UAW to decide how to advance the sometimes-conflicting needs and demands of these groups. Should raises be sought “across the board” for cents per hour or as percentage increases? Usually, the latter would favor the higher-paid workers while the former would favor the lower-paid. Are fiduciary principles involved in such decisions? Are they decided on the basis of majority vote? Will the minority be coerced or discriminated against by the majority? Consider this hypothetical yet realistic scenario: Suppose the largest group of UAW members come from the unskilled or semi skilled ranks, and they elect members from their ranks as the union’s president and top officers. What if members of the highly skilled group subsequently brought a lawsuit charging that union leaders unfairly supported the less-skilled workers at their expense? How

35. Meinhard v. Salmon, 249 N.Y. 458, 465 (1928).

would a court decide this case? What evidence and principles would be relevant and brought to bear?

Take another, not uncommon scenario: When two unionized companies are merged or consolidated, should the seniority sta tus of the acquired company’s employees be “sandwiched in,” or should they go to the bottom of the seniority list of the acquiring company? And who should decide?

Indeed, the simplistic notion of applying time-honored, common-law fiduciary principles appropriate for lawyers, accoun tants, banks, and trustees of estates, to union officials—who then might be sued personally by disgruntled members (possibly sup ported by anti-union employers) and have to defend themselves at their own expense—seemed to me to be quite threatening to unions. Why be a union official at all in the face of this kind of exposure? Better to take a higher-paying and less vulnerable job with manage ment, or for that matter, to continue to work at the trade or craft. I have seen union officers choose both of these options.

Two years after this 1957 conference, Congress imposed fiduciary obligations on union officials in the so-called Labor-Management Reporting and Disclosure Act of 1959 (LMRDA—also known as the Landrum-Griffin Act), although it adjusted the fiduciary provi sion of LMRDA 501(a) “to take into account the special problems of labor organizations.” How judges (generally appointed from the ranks of corporate and business attorneys, while union lawyers are considered too one-sided to serve on the judiciary) are to determine and apply this open-ended law to such fiduciary responsibilities remained to be seen after 1959. Not surprisingly, these fiduciary provisions have been a hotbed of litigation over the last sixty years.

But I digress.

Despite the fact that the Chicago faculty was outstanding, law school for me was mostly drudgery. After my exciting four years of intellectual exposure at Brandeis, slogging through endless cases and legal doctrines left me frustrated and confused about where it

was leading. I saw no light at the end of the proverbial tunnel, per haps because law in the abstract did not inspire me in any way and its practical application seemed quite helter-skelter. For the most part, it was (and still is) an instrument for enforcing the status quo (or worse), rather than being a force for needed social, political, and economic change.36 What I did not see then was that the point of it all was to equip me to cope with what lawyers do in terms of apply ing the substance of the law to the realities of life, in the hope of achieving fairness and equity for those subject to, and dependent upon, the rule of law. Trying to do this during the sixty years that I have practiced labor law has engaged me continuously in seeking to make the law work for working people as well as the unions that have represented them on the job. It has been a continuously challenging process of problem solving of seemingly insoluble disputes that the parties have created and that require resolution. A descrip tion of the substance of my efforts would require another volume, which may yet see the printed page, but for now, all I can say is that choosing law as my vocation, although somewhat fortuitous, was the best career decision I might have made.

NYU Law School

My decision to attend the New York University Law School for the 1960/1961 school year to obtain an LLM in labor law was not moti vated solely by academic and career interests. My alternative would have required me to enter the military for two years, which I saw as an unnecessary choice as compared with being deferred because I was pursuing my education. And when the school year ended, I would be exempt from the military entirely, since I would have by 36. In fact, the political and judicial philosophies of the members of the United States Supreme Court and the United States Courts of Appeals have influenced significantly the direction of the national path, both forward and backward.

then celebrated my twenty-sixth birthday. Thus for me this was an easy choice, especially because our nation was not then at war. The Korean “Conflict” (technically not a “war”) had informally ended on July 27, 1953, with the signing of an armistice between North Korea, China, and the United States (South Korea refused to sign), and the entry of the United States into the conflict in Vietnam may be said to have begun in May 1961, when President John F. Ken nedy secretly sent four hundred Green Berets into South Vietnam to help it fight the Viet Cong, the armed communist insurgency supported by North Vietnam.

My curriculum at the NYU Law School, which is located at Washington Square in Greenwich Village, involved classes four nights each week for the school year, taught mostly by lawyers who were active practitioners during the day for labor or management or who were neutral arbitrators. My teachers were all white males, as were my classmates. Women and non-whites were not in atten dance, as far as I can remember.

In addition to attending classes, I was required to complete a master’s thesis under the supervision of an individual faculty mem ber. As to the selection of a thesis topic, I chose “The Right to Join a Union: A Post-Landrum-Griffin Appraisal.” The focus of my subject arose from the fact that, historically, as private voluntary associations protected by the First Amendment’s right of free association, unions had long been free (like private clubs) to decide for themselves whom they would admit to membership, and they cor respondingly were entitled to exclude individuals based upon race, sex, or other discriminatory grounds. Indeed, many unions in the South, and elsewhere, excluded groups from membership, or they maintained separate locals based on race.

This issue came up dramatically at the 1959 convention of the American Federation of Labor–Congress of Industrial Orga nizations (AFL-CIO), when A. Philip Randolph, president of the Brotherhood of Sleeping Car Porters, a union of Black railroad

workers, challenged AFL-CIO President George Meany over its failure to end discrimination against Blacks in certain unions. At that time, the Plumbers and Pipefitters Union, for example, from which Meany emerged, had “a ‘keep out’ tradition.”37

The feisty Meany responded harshly to Randolph on the con vention floor, asking Randolph, “Who the hell appointed you the guardian of all the Negro members in America?”

For many years, Randolph, a leading socialist dating back to before World War I, when he urged Blacks not to register for the draft, had fought against racial discrimination in employment and had threatened both presidents Franklin D. Roosevelt and Harry Truman with protest marches against discrimination in defense plants and the military. Randolph succeeded in his objective of getting FDR to issue an executive order immediately before the Second World War, prohibiting discrimination in defense plants. And after the war Randolph succeeded in “persuading” President Truman to integrate the armed services beginning in 1948. They had been segregated going back to the Revolutionary War.

The enactment by Congress in 1959 of the Labor-Management Disclosure Act of 1959 (Landrum-Griffin) imposed substantial regulations upon internal union operations, such as the conduct of elections, increases in dues, and protection of members’ rights. Thus, as my thesis I was prepared to argue that those controls, and the bargaining authority granted to unions under federal law, took away their ability to limit membership based upon race. When I submitted my thesis proposal to my faculty advisor, a distinguished New York City management lawyer, I was surprised to hear him discourage me from choosing this topic. His reasoning was that it was too controversial and might adversely affect my career. He explained that he himself had paid a price for his political views

37. See A. H. Raskin, “New Jobs Opening to Negro in North,” The New York Times, April 26, 1956, p. 26.

and independence earlier, and he was trying to help me avoid experiencing similar adverse consequences. I thanked him for his concern but told him I was going forward and would let the chips fall where they may. In fact, the enactment of comprehensive fed eral anti-discrimination laws a few years later helped to decrease discrimination by unions.

My favorite professor at the law school was Stephen Charney Vladeck. He had just begun teaching as an adjunct there, but he had long been engaged in representing many unions in New York City. In addition, he was involved in civil liberties and civil rights representation as well as other progressive enterprises.

What also distinguished Steve was that he was the son of Baruch Charney Vladeck, who had been a socialist member of the New York City Council, and the manager of the socialist Jewish Daily Forverts for many years,38 a spokesperson for numerous liberal, labor, and radical causes, and a former Russian revolutionary member of the Jewish Labor Bund during the early part of the twentieth century. He had been imprisoned in Russia for his political beliefs and activities, and he immigrated to the United States in 1908, at age twenty-two, to escape further persecution. His name “Vladeck” was a pseudonym adopted in Russia as his  nom de guerre. It is said that when “B.C.” died at age fifty-two in 1938, there were half a million mourners at the Forverts building on the Lower East Side of Manhattan.

As for Steve, he was an outstanding and innovative teacher. His class had about eight students in it, and each week he would assign us a set of facts in a labor case about which we were required to sub mit a brief on behalf of the union or the employer. At the weekly class sessions, the students were called upon to argue their cases, and Steve would critique our briefs and arguments. Of course, I 38. An “ear” on page 1 of the Forverts declared in Yiddish, “Arbeter fun alle lender, fareynik zich,” or “Workers of the World, Unite.”

always chose to argue each case on behalf of the union involved, but I learned much from Steve and my classmates during the year, regardless of which side they were taking. Candidly, I remember it as having been the most useful and creative law class I had ever taken.

To my surprise, when the school year was over, Steve proposed to me that I join his firm in New York, but by then I had been asked to return to Washington, D.C., and join the Teamsters legal depart ment, which I had agreed to do.

In later years I maintained contact with Steve’s firm and some members of the Vladeck family, including his wife, Judith, who became a trailblazing advocate for working women’s rights. Both their son David and daughter Anne have had outstanding careers in the law, as well as have Steve and Judy’s grandson, Stephen I. Vladeck, who now teaches at the University of Texas Law School. Whenever I’ve read about the Vladecks’ many accomplishments, I remember Steve and the fictitious nom de guerre they bear.39

A final fond NYU remembrance: I had no intention of attend ing the NYU graduation ceremonies at what was then the NYU University Heights Campus (now the Bronx Community College). However, my mother insisted we be present, and so she and I found our way there. As we located our seats, we realized we were seated next to my hero, Jackie Robinson, and his wife, Rachel, who were there attending someone’s graduation. Thus, before the program started, we chatted amiably with them on a hot Sunday afternoon in the Bronx.

39. See John Herling, “Baruch Charney Vladeck,” American Jewish Yearbook 5700 [1939–1940], pp. 79–93.

One Lawyer’s Take on “Experiential Learning”

(Brandeis University, March 17, 2010)

when I was asked By BrandeIs to speak aBout “experIentIal learning” (a term that I admit I had never previously heard), I went directly to Wikipedia, and lo and behold, it was defined there in great detail. An example of experiential learning provided there is “going to the zoo and learning through observation and interaction with the zoo environment, as opposed to reading about animals in a book.” For me as a lawyer, what immediately came to mind was the difference between reading about law in a textbook, as against spending time in court, which on occasion does have a zoo-like atmo sphere, including the presence of an occasional predator. Indeed, as Justice Oliver Wendell Holmes Jr. said in The Common Law: “The life of the law has not been logic; it has been experience.”

When thinking about Justice Holmes, I recalled an incident in which he taught an experiential lesson to President Lincoln. You will remember that in July 1864, which was late in the Civil War, Confederate General Jubal Early (a Virginia lawyer by trade) and

his troops attacked Washington, D.C., from the north. They got within five miles of the Capitol, at Fort Stevens on Georgia Ave nue, where a five-day battle ensued. The cannons are still there as a memorial. President Lincoln came by carriage to watch the fight ing from a parapet at the fort, and when he stood up to get a better view, Holmes, then a young Union captain who had been wounded at several earlier battles (and later a mentor to Louis Brandeis, and even later his fellow justice on the Supreme Court), shouted to Pres ident Lincoln: “Get down, you fool!”40 Having been fool enough to spend a half century practicing union and worker-side labor law in Washington, D.C., I, too, have done a lot of learning by doing, including learning to duck.

My sojourn in Washington began in the summer of 1960, right after law school, when I began an internship at the legal department of the then million-and-one-half-member International Brother hood of Teamsters. I got that internship with an earnest, carefully crafted letter expressing my devotion to the cause of the working class, and the recommendation of my pro-management labor law professor, Bernard Meltzer, with whom I had fought throughout law school. Without any reservation, he told the Teamsters: “He’s your man!”

My Teamsters internship was the beginning of a seven-year apprenticeship there, during which I worked with the cream of the labor law bar as my mentors. They all were men. Sad to say, this was a period unlike today, when few women attended law school or practiced law. Indeed, the Harvard Law School had long been closed to women, including Louis Brandeis’s daughter, Susan.

Many of my mentors had been labor lawyers going back to the late 1920s and early 1930s, before the enactment of modern labor legislation. This was a time when unions were likened by the law to

40. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon & Schuster, 2005), 643.

being criminal conspiracies. Thus, I was exposed to and benefited from the guidance of a group of very profound, experienced, and caring mentors who exhibited great qualities of scholarship, ingenu ity, integrity, and character in defense of unions and their members.

The Teamsters headquarters, known then, and to this day, as the “Marble Palace,” is a few blocks from the Supreme Court, and one of the favorite occupations of many union lawyers was to attend oral arguments at the Supreme Court in every labor case that it heard. During my seven Teamsters years, there were about seventy Supreme Court labor cases that were argued, and seven of them were Teamsters cases, which we briefed and argued. Regretta bly, I did not do any of the arguing. Nevertheless, we won them all!

The justices then included Chief Justice Earl Warren and William Brennan, both appointed by President “Ike” Eisenhower. He later claimed these two appointments were the two biggest mistakes of his presidency. Also included were Justices Felix Frankfurter, Hugo Black, and William Douglas (all appointed by President Franklin D. Roosevelt), Arthur J. Goldberg (appointed by President Kennedy), and Thurgood Marshall (appointed by President Lyndon Johnson). This was a relatively friendly forum for labor advocates. From the point of view of experiential learning, this was not surprising.

Earl Warren grew up in Bakersfield, California, and worked summers on the Southern Pacific Railroad as a “call boy,” rounding up train crews. He once said that his work showed him the power exercised by large corporations over their workers. And he told one of his Supreme Court law clerks that the railroads “used up the men and then cast them aside.”41

As for William Brennan, he came from an immigrant Irish fam ily, and his father had been an organizer for the brewery workers’ union in New Jersey. Felix Frankfurter came from a Lower East Side

41. Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court, a Judicial Biogra phy (New York: New York University Press, 1983), 9.

Jewish family, and as a Harvard Law School professor, he co-wrote a book entitled The Labor Injunction, challenging anti-worker court judgments. During his career he had represented the Amalgam ated Clothing Workers Union and was a friend of its renowned president, Sidney Hillman.42 Thurgood Marshall was the greatgrandson of a slave and the son of a waiter at a restricted club for whites only in Baltimore, Maryland. Hugo Black had represented workers in court in Alabama against employer interests. Arthur J. Goldberg had been counsel to the United Steelworkers and many other unions. And finally, William O. Douglas, who grew up in poverty in the state of Washington, told The New York Times that as a youth he “worked among the very, very poor, the migrant laborers, the Chicanos and the IWWs who I saw being shot at by the police. I saw cruelty and hardness.”43 He viewed law as a means of correct ing injustice.

The contrast of these justices with today’s Supreme Court members is marked in many ways. All the present justices, including that “wise Latina,” Justice Sonia Sotomayor, were federal appellate judges prior to their elevation to the Supreme Court bench, whereas of the six I mentioned earlier, neither Warren, Black, Douglas, Goldberg, nor Frankfurter had ever been a federal judge of any kind. Only Thurgood Marshall had served as a federal appeals court judge, and then only briefly. His career at the bar was as a civil rights lawyer. And just as a reminder, in 1916 Louis Brandeis went directly from being a private practitioner in Boston to being a Supreme Court justice. And he long had been an advocate for workers’ rights.

These differences, as well as many others, have had a profound influence upon how the current Supreme Court thinks about many

42. Leonard Baker, Brandeis and Frankfurter: A Dual Biography (New York: Harper & Row, 1984).

43. The New York Times, January 20, 1980, p. 28.

issues, including unions and workers, a subject that is illuminated in United States Court of Appeals judge and University of Chicago law professor Richard Posner’s book How Judges Think (Cambridge, MA: Harvard University Press, 2008).44

One might say that the “experiential learning” of the Supreme Court justices of the 1960s had a significant impact on their judi cial philosophies and their decisions. Needless to say, many of their successors grew up in different experiential soil. And amazingly, today the thought of appointing a justice without judicial experi ence surely would be out of the question.

During my early years as a labor lawyer and up until today, I have mentored many interns and young lawyers in their introduction to

44. As American Federation of Labor President Samuel Gompers said in a debate with Louis Brandeis in 1903, in which Brandeis was arguing in favor of the incor poration of unions: “What chance has labor, the laborers, for fair play when the whole history of jurisprudence has been against the laborer?” See James J. Brudney, Sara Schiavoni, and Deborah J. Merritt, “Judicial Hostility toward Labor Unions? Applying the Social Background Model to a Celebrated Concern,” Ohio State Law Journal 60, no. 5 (1999): 1675–1771.

An example of a recent expression of a judicial attitude toward workers is pro vided in comments of Justice Stephen Breyer, supposedly a liberal justice, during oral argument in Black v. United States, No. 08-876, on December 8, 2009, involv ing the constitutionality of a statute making criminal the “deprivation of honest services”:

JUSTICE BREYER: . . . I think every agent has a duty of loyalty to provide loyal and honest services to the master, master agent. Every worker is an agent of his master, the employer. . . .

I think. . . perhaps there are 150 million workers in the United States. I think possibly 140 of them would flunk your test.

(Laughter.)

JUSTICE BREYER: I mean, that’s what’s worrying me. Now, why? Because— I—“do you like my hat?” says the boss. “Oh, I love your hat,” says the worker.

(Laughter.)

JUSTICE BREYER: Why? So the boss will leave the room so that the worker can continue to read the racing form. Deception? Designed to work at reading the racing form instead of doing your honest work, and therefore, violation?

the practice of law. For them this was “experiential learning.” I have viewed this task first as payback to my own mentors for their caring efforts on my behalf, next as meeting an essential professional obli gation, and finally as a way to help new lawyers avoid the inevitable pitfalls and frustrations of law practice.

At the moment I have two interns, one a third-year law student at Georgetown and the other, who is in her third year at Catholic University Law School. I have thrown both into researching diffi cult legal issues, and I spend substantial time helping them find their way through the brambles of the endless legal thicket.

There are several principles that I have tried to impart to interns from the outset:

1. Expect to make mistakes. This is inevitable for many rea sons, including the fact, as Justice Holmes said, logic is often inapplicable where law is concerned. Intuition, or what is often called “elephant feel,”45 is required. And this kind of judgment may take years to develop. It clearly is the result of experiential learning. Further, no one knows everything. So do not panic, and don’t take my corrections personally. It is simply about learning and getting it right. I am here in order to help you get there.

2. Learn not only from your mistakes but also from your defeats. Do not be discouraged. As in baseball, in law there always are winners and losers. So you must get yourself up, dust yourself off, and get back onto the field.

3. Do not hesitate to ask questions because you believe you will expose your ignorance. I have on occasion said to a judge, “That is an excellent question, your honor [thinking

45. As was the case with the elephants who moved to high ground when they felt the tsunami coming. See Maryann Mott, “Did Animals Sense Tsunami Was Coming?” National Geographic, January 3, 2005 (online).

to myself, why didn’t I anticipate it?], but I do not have an answer at this time. However, with your permission I will submit my answer in writing this afternoon.” Better this than a half-baked response, even if it is to a half-baked ques tion. Innocent questions from interns have frequently led to profound insights. In law as elsewhere, two heads are better than one, and so on up the scale.

4. Be dogged in doing research. There may be a case right around the next corner that will change your entire per spective. Do not think that your first answer is the ultimate answer. Be prepared to change your mind. Test your con clusions carefully. And try to see and understand the other side’s case better than it does, so that you are fully prepared to meet it head on.

These are a few of many such principles that I have tried to impart as a mentor. Let me say that I consider myself fortunate to have had mentors who were caring enough to “show me the ropes.” Hopefully, those of you who are similarly situated will be as fortu nate. And these insights are not limited to law.

Let me offer one concluding comment:

The impact of experiential learning is life-lasting. For the most part, younger people are trying to look to their futures and are working on creating their lives and themselves. The lessons of expe riential learning are important building blocks in this process. For older folks, we have a different task. We often spend our time looking back at our lives, trying to understand what happened and trying to make sense and find meaning in our experiences. This requires honesty, courage, and insight. To conclude, experiential learning is an essential element of lifetime learning and must be respected and applied as such. Finally, it may serve as the source of insights and perceptions not previously imagined.

My Education: Postscript (April 29, 2021)

If I m I ght try to summar I ze my v I ew of the thrust of my Brandeis education, it was designed to help brighten and improve, with knowledge, truth, and human endeavor, the very imperfect world with which my cohort was presented. The Hebrew term tikkun olam , meaning “repair the world,” sums up the Judaic concept that holds that we Jews bear responsibility for not merely our own moral, spiritual, and material welfare, but also for advancing the welfare of society as a whole. And indeed, for my generation, coming out of the Holocaust and World War II periods, there was much we needed, and still need, to “over come” and repair.

On the heels of this orientation, I arrived at the University of Chicago Law School, where seeking truth through very skeptical eyes was detached from the idea of seeking societal and human improvement . The study of law seemed more a matter of trying to keep society functioning fairly and cohesively in the face of its natu ral tendencies toward disruption and incoherence. Thus it was a

difficult transition for me. I think of my very dear contracts profes sor, Malcolm Sharp, whose favorite exclamation in response to any student’s comment in class was “dubious.” For Sharp the task was always trying to unravel the most difficult legal puzzles in the face of the most intractable difficulties. At the same time I was surprised to learn that Sharp had been a volunteer lawyer on the appeals in the Julius and Ethel Rosenberg espionage case.46

Another thing I did not know when I decided to attend the U of C Law School was that it was then in the midst of becom ing the center of an emerging “law and economics” movement, whose major herald was Aaron Director, a non-lawyer economist. The intellectual thrust of the movement was to test legal precepts and concepts against what the movement’s sages deemed economic principles and realities. Director was a Russian-Jewish immigrant who came to the United States at age thirteen with his family, in 1914, and settled in Portland, Oregon. He excelled as a student, and along with his childhood friend and, later, artist Mark Rothko[witz], he received a scholarship to Yale.

After college, Director gravitated to a lifetime in academia at the University of Chicago. His younger sister, Rose, was an economist as well, and was married to U of C free-market economist Milton Friedman. Director is credited with persuading the U of C Press to publish economist Friedrich Hayek’s antisocialist tract The Road to Serfdom in 1944. I had read it at Brandeis in an effort to learn how another side saw the world. By 2020 it had sold over two mil lion copies. A central thesis of the book is that it was socialism that was responsible for the emergence of Hitler, and that government intervention in the economy was a prescription for disaster and tyr anny. Somewhat ironically, in 1974 Hayek received the Nobel Prize

46. See Sharp,Was Justice Done? The Rosenberg-Sobel Case (1956); Krash, “Malcolm Sharp and the Rosenberg Case: Remembrance of Things Past,” University of Chicago Law Review, Vol. 33: Iss. 2, Article 4 (1966).

in Economics at the same time as did his polar opposite, Swedish economist Gunnar Myrdal, who had a social democratic govern mental interventionist perspective regarding national economies. In 1958 Myrdal published Beyond the Welfare State, in which he argued in favor of the development of a “welfare world,” where there would be a redistribution of wealth on a global scale.

As for Director, he was involved in the establishment of the Journal of Law and Economics at Chicago and mentored many conser vative judges and economists during his lifetime. He lived to be 102.

As for me, just as I had pondered whether I attended the “wrong” summer camp (see page 191), I wondered whether I chose the wrong law school. For example, at that time, Yale had a progres sive left-wing bent. But on reflection, I concluded that in both cases I was better off being where my assumptions were challenged rather than taken for granted, so that I could then better defend them, and also be prepared to modify them in the face of compelling evidence. The situation might be better understood from what occurred in my first-year class in criminal law, with the great Francis Allen pre siding. The first case assigned was Regina (the Queen) v. Dudley and Stevens, 1884, involving a shipwreck of a British boat that resulted in the captain, his mate, and a seventeen-year-old cabin boy being set adrift in a rowboat. They were starving, and at some point, the captain and mate killed and ate the cabin boy. After their rescue, the two survivors were tried for murder and were defended on the basis of precedent, arising under the law of the sea described as “neces sity.” In the end, the defendants were convicted, but they served only six months in prison. Relatedly, they had the weight of public opinion on their side.

While the case has both teaching and learning value, it also starkly presented to us the abominable choices that life might present, and that life in the law was not designed to improve the world but at best it dealt with the aftermath of its horrors. And often it served to make matters worse. See, for example, Dickens’s Bleak House

Indeed, my wife, Linda, with whom I have practiced law and lived most happily for more than forty years, suggested to me that studying the case also gave law students an insight into who our classmates (boatmates?) might be. “Woe unto you, lawyers!” (Luke 11:52).

Part Two

aLabor

I usually advise young people considering law as a vocation that one course of action they might consider is combining their interest in being a lawyer with practicing in a field in which they have an independent interest. Whether it might be sports, art, theater, literature, health care, music, or education, combining such an interest with its legal aspects may often provide an opportunity for pursuing a legal career that is doubly satisfying. I had two labor lawyer friends, both of whom served at different times as executive director and counsel to Actors’ Equity, the stage actors’ union, and one of them even had a part-time career as an onstage performer. Similarly, but not surprisingly, some labor lawyer friends have moved on to become union officials.

In my case, representing unions and workers has always served to provide me with a way of pursuing my interest in advancing the interests of working people while studying work and workers in their on-the-job habitat, and learn ing about unions and employment as well. In my career this has taken me to many industries, both public and private, locations, job sites, etc. The categories

of workers I have represented have included postal workers, truck drivers, road workers, law enforcement officers, hospital workers, airline food preparers, con struction workers, lawyers, agricultural workers, etc. Their employment problems have covered such areas as union representation, health insurance, wage and hour rights, occupational safety and health, many forms of job discrimination, retire ment and pension rights, etc.

In this section I focus on my work as a lawyer for the Teamsters Union, which has represented transportation workers and others since early in the nine teenth century, when they drove teams of horses, and for postal workers, whose unions have existed since not long after the Civil War.

In addition, I express my views regarding the position and critical role of unions and organized workers in our democracy and economy, and the ability of workers to protect themselves from ultra-hazardous working conditions such as those they have faced during the 2020/2021 worldwide coronavirus pandemic. Both my own experiences and those of thousands of lawyers who have chosen to commit their professional lives into protecting and advancing the lives of the American working class over the last two-hundred-plus years have only been written piecemeal to date, as far as I know. But it is a unique story of advocates who live somewhere between their learned but combative worlds of law and the hardscrabble worlds of the American workplace. It is a location where lawyers’ required equanimity often is difficult to maintain in the face of their usual partisanship toward their clients’ causes and claims, but this is part of what makes it such an interesting and challenging occupation.

How the Decline of Labor Threatens Our Nation’s Future

my thesIs today Is suggested By the tItle of my talk. It Is my belief that the decline—or even worse, the demise—of the Ameri can labor movement would inflict a devastating blow to protecting and advancing the fundamental values of equality, democracy, and a decent standard of living for all in our society.

To me, today’s labor movement is the only entity in our society that brings together, on an ongoing basis, members of all classes, genders, races, ethnicities, ages, religions, occupations, and sexual orientations for the common purpose of advancing the American way of life for all. From the Hollywood, TV, and Broadway idols of the Screen Actors Guild–American Federation of Television and Radio Artists47 and of Actors’ Equity; to the members of the National Football League Players Association; to the teachers, police officers, and firefighters; to the janitors, food workers, health-care workers,

47. Martha Vineyard’s own James Cagney was a founding member and served as president of the Screen Actors Guild.

sanitation workers, and farm laborers who are members of Ameri can unions—they are united in the common purpose of advancing and bettering the working lives and beyond for all Americans.

Indeed, for me, after more than a half century of representing working people and their unions, I believe the nation’s fate ulti mately remains tied to the situation of our workers and the labor movement, which has been their most steadfast champion from the early days of the republic, when the law treated unions as a criminal conspiracy, through the Industrial Age and now into an age of scientific and technological advance. For surely, a principal measure of a nation’s health is the material and physical well-being of its people taken individually and as a whole, the conditions under which they are employed, and how our leaders have proceeded either to advance or to undermine workers’ concerns and interests—namely, what was once known as the “labor question.” Further, for at least the last seventy-five years, the labor movement has posed a key countervailing challenge to unbridled corporate power and the increased concentration of wealth in the hands of a few. So how it is doing impacts us all!

Regrettably, however, at present both workers and the labor movement are in a period of serious decline and retreat, so that the notion that they can advance their cause and improve the work ing conditions of American workers as vigorously as they have in the past has been called seriously into doubt, with resultant adverse consequences for almost all—that is, for the 99 percent, which I propose briefly to describe this morning. Further, Labor’s decline has occurred during the greatest increase in American history of the concentration of wealth into the hands of a few, which events I believe to be related.

Presently, the perennial specter that some have viewed pejoratively as Big Labor has been morphed into significantly smaller Labor. Hence, whereas in the early 1950s, 40 percent of privatesector workers were union members, today only 6.9 percent are in

unions. Owing to the growth of public-sector unionism over the same period, overall union membership today stands at 11.8 per cent. These figures vary by state and region, with the South being the region lowest in union density—and correspondingly, the region with the lowest wages. Indeed, as in the past, the South continues to attract industry on this basis.

How Labor came to be in such a diminished position is attribut able to the decline of manufacturing; the growth of outsourcing, globalization, and deregulation; the use of millions of “just-in-time” part-time, temporary, and casual employees; increased employer resistance to unionization; and continuing struggles in Congress, in the courts, before agencies, and in the media. Also, I would be remiss if I failed to state that a degree of ineptitude on the part of Labor has contributed to its present diminished condition.

The late nineteenth century through the early twentieth saw the bloody Homestead, Pennsylvania, Steel Strike of 1892, the Pull man Strike in 1894, the Lawrence Textile and Paterson Silk Strikes of 1912 and 1913, and many others, in which workers sought to assert their rights and improve their employment conditions but were crushed by the physical and economic might of employers, who were often supported by the courts and the state. However, the need for achieving labor stability and equity, both before and during World War I, and the idealism of the Progressive Era caused a significant rethinking by some of how to improve industrial and labor relations during the period.

Accordingly, high-minded and farsighted thinkers, such as then Boston-based public-interest lawyer Louis Brandeis, envisioned a regime of employee-employer relations in which workers and employers reasoned together to achieve fair and enlightened policies and practices in the workplace that would be to the mutual advantage of both, with workers enjoying the fruits of their increased productivity. Indeed, Brandeis is a father of modern-day mediation, arbitration, and collective bargaining, having been the principal

architect and implementer of the Protocols of Peace, which ended the strike of sixty thousand mostly Jewish and Italian immigrant garment workers in New York City in 1911. Brandeis’s Supreme Court sponsor, President Woodrow Wilson, also saw protecting workers’ rights to be essential, cabling Congress from Versailles in 1919 that there must be “full recognition of the right of those who work, in whatever rank, to participate in some organic way in every decision which directly affects their welfare.”48 (Sounds a lot like codetermination in Germany today!) And FDR, of course, declared in 1936 that if he were a factory worker, the first thing he’d do would be to go out and join a union.

Depression year 1935 was a critical moment in American labor history (aside from being the year of my birth). It also was the birth of the Congress of Industrial Organizations, or CIO, which, under the leadership of John L. Lewis, president of the United Mine Workers (and a Republican, by the way), broke away from the craft union–dominated American Federation of Labor (AF of L). The CIO went on to organize the workers in major industries such as steel, auto, and rubber.

The second major development in 1935 was the enactment by Congress of the National Labor Relations Act (NLRA), or the Wagner Act, which gave workers the federally protected right to organize, bargain with their employers over wages and other employment conditions, and strike in support of their demands, free from employer interference, restraint, or coercion. And it estab lished the presently beleaguered National Labor Relations Board to ensure employer compliance with the law.

In 1937, two years after the enactment of the Wagner Act, the Supreme Court, in a highly controversial 5–4 ruling in the Jones

48. 1919 May 20, WWP15771, Cary T. Grayson Papers, Woodrow Wilson Presi dential Library & Museum, Staunton, Virginia.

& Laughlin Steel case, upheld its constitutionality under the Com merce Clause. The opinion was written by Chief Justice Charles Evans Hughes, who was joined by Associate Justices Louis Brandeis, Benjamin Cardozo, Harlan Fiske Stone, and Owen Roberts (of “a switch in time that saved nine” fame). Most relevant is the following observation in the Supreme Court’s opinion:

Long ago we stated the reason for labor organizations. We said they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that, if the employer refused to pay him the wages that he thought fair, he was nev ertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers op portunity to deal on an equality with their employer.

I believe this observation to be as valid today as it was the day it was announced.

As for the four dissenters in Jones & Laughlin Steel (I’m reminded of an old labor song “What did Jones and Laughlin steal? Pittsburgh!”), in an opinion written by Associate Justice Clark McReynolds (he’s the jurist who never said a word to Brandeis during their more than two decades together on the Supreme Court and refused to sit next to him for a Court photo), they declared that employers have an absolute constitutional and property right to decide whom they may hire and fire, free from governmental interference. So the minority would have declared the Wagner Act unconstitutional. After a period of pre–World War II intense union organizing during the Depression, union no-strike pledges during the war, and major strikes during the postwar period, a business-dominated Republican–Southern Democrat coalition in Congress struck back at Labor by enacting the Taft-Hartley Act of 1947 over President

Truman’s veto. It seriously undermined Labor’s rights and powers derived from the Wagner Act in several significant respects, includ ing giving states the power to outlaw the union shop by enacting the Orwellian-named “right-to-work” laws. The so-called right-to-work struggle continues to this day in several states, including in the for mer union strongholds of Michigan and Indiana. To give the devils their due, they play upon the idyllic conservative-libertarian myth that Americans will be able to succeed at pursuing their own Hora tio Alger–like American dream, unassisted by their fellow workers or government.

Twelve years after Taft-Hartley, in 1959, during the waning days of the Eisenhower administration, Congress targeted Labor again, on the heels of hearings by a Senate committee investigating labor-management corruption. In the Landrum-Griffin Act, Con gress severely limited Labor’s right to picket, to refuse to handle struck goods, and to engage in so-called secondary boycotts, thereby undermining many of Labor’s traditional and most effective eco nomic weapons—notwithstanding that these matters were entirely unrelated to corruption. It was pure and simple union busting!

Another employer ploy in the struggle has been their ability to discharge employees for union activity with impunity, subject to a mild slap on the wrist from the National Labor Relations Board. Signing a union card is often viewed as committing economic suicide.

A major event in American labor history occurred in 1970, although it is hardly remembered today. At a time when Congress was considering reforming the postal service to make it more effi cient and businesslike, it was withholding long-delayed statutory pay increases from seriously underpaid postal workers in order to coerce their unions into supporting the reforms. In response, a quarter of a million postal workers, about half the postal workforce, engaged in a nationwide “wildcat” strike, which shut down the postal ser vice for more than a week. At that time, as is the case today, strikes

by federal employees were illegal and subjected strikers to fines, imprisonment, and job loss. President Nixon called out the National Guard to deliver the mail, to no avail, and he threatened retaliation unless the workers returned to work. There were hard-liners in the White House who proposed treating the strike as an insurrection (as had been the case with the Pullman Strike), but cooler heads, such as then Labor Secretary George Shultz and Assistant Secretary Willie J. Usery, prevailed in deciding to treat it as a labor dispute. (Or was it simply a recognition of raw worker power?) While the postal workers’ creed declares that “neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds,” the mistreatment by the government of these normally loyal civil servants caused them to stop making deliveries.

In the end, the postal strike was settled in the Nixon White House, with the postal workers receiving a substantial raise, and the enactment of the Postal Reorganization Act gave them privatesector-style collective bargaining rights—without the right to strike but with final and binding neutral arbitration instead. I was deeply involved in achieving the 1970 postal settlement, and one essential lesson for me was that American workers can be pushed only so hard before they explode and push back with all their might. Some times they have said, “Enough is enough!” So watch out Walmart, as well as the fast-food industry in general!

By the way, Walmart is the nation’s largest private employer, with about 1.5 million employees, who are major consumers of food stamps and Medicaid. In 1913 Henry Ford doubled the wages of his employees to a then incredible five dollars a day in the hope that they could afford to buy his cars. Today, in contrast, Walmart keeps its employees’ wages so low that they qualify for public assistance. Thus, amazingly, the public is subsidizing the nation’s major low-wage employer, as well as many others. So, it is Walmart who is the real “Welfare Queen!” Incidentally, its CEO, Mike Duke, earns

more than $23 million a year, which is at least a thousand times the median $23,000 per year earned by Walmart employees. In other words, Mr. Duke earns about as much in two hours as some Walmart workers earn in a year. And the family of Walmart’s founder, Sam Walton (who died in 1992), is the richest family on earth. It owns 48 percent of Walmart and has a combined net worth of $115 bil lion, and growing, with the help of, and at the expense of, Walmart’s employees worldwide.

On August 23, 1971, not long after the postal settlement, a memorandum was sent by Lewis Powell, then a Richmond, Virginia, corporate lawyer and former president of the American Bar Association, to the head of the U.S. Chamber of Commerce. Powell also then served on a dozen corporate boards. His 1971 memo49 is often referred to by some as the Powell Manifesto. You shall soon see why. In it Powell described how in his view “the American eco nomic system” (meaning capitalism) was “under broad attack.” Powell saw the challenge coming from voices of the Old and New Left, “the college campuses, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and the politicians.” Among the leaders of the assault on corporate America, Powell spe cifically identified Ralph Nader, Charles Reich, William Kunstler, and Herbert Marcuse. (Would it surprise you to learn that Marcuse was one of my favorite professors at Brandeis?) In the face of these challenges, Powell accused corporate America of “appeasement, ineptitude, and ignoring the problem.”

He then asked (borrowing from Tolstoy and Lenin), “What specifically should be done?” (In fact, however, this question goes all the way back to Luke 3:10–14 in the New Testament [NIV]: “‘What should we do then?’ the crowd asked. John answered,

49. “The Lewis Powell Memo: A Corporate Blueprint to Dominate Democ racy,” Greenpeace, available at https://www.greenpeace.org/usa/democracy/ the-lewis-powell-memo-a-corporate-blueprint-to-dominate-democracy/.

‘Anyone who has two shirts should share with the one who has none, and anyone who has food should do the same.’”) But such sharing was not on Lewis Powell’s agenda for corporate America. Instead, he urged business leaders to establish think tanks of intellectuals to counter the anti-corporate academics, monitor textbooks to assure that business was treated fairly, and achieve balance among college faculties through corporate influence. And so they did!

As to the media, Powell declared that “the national television networks should be monitored in the same way that textbooks should be kept under constant surveillance.” As to politics, Powell opined that while it was “still Marxist doctrine that the ‘capitalist’ countries are controlled by big business, . . . every business executive knows [that] few elements of American society today have as little influence in government as the American businessman, the corpo ration, or even the millions of corporate stockholders.”

Powell also urged big business to increase its influence on the Supreme Court, citing the American Civil Liberties Union by way of comparison. Of course, Powell’s nomination to the Supreme Court by President Nixon two months later was a step in the “right” direction, as were the subsequent Republican appointments of Chief Justices Rehnquist and Roberts, and Justices Scalia, Thomas, Kennedy, and Alito [and now Trump’s Gorsuch, Kavanaugh, and Barrett]. Compare these appointments with Chief Justice Earl Warren, whose father had been blackballed from the railroads for union activity; Justice William Brennan, whose father had been an officer of the brewery workers’ union in New Jersey; Justice Hugo Black, who had represented employees in workers’ compensation cases in Alabama and, as a senator, had advocated a thirty-hour workweek; Justice William Douglas, who grew up with the “Wob blies” in the Pacific Northwest; Justice Arthur J. Goldberg, who had been general counsel of the CIO and the United Steelworkers; and Justice Thurgood Marshall, who had long advocated for Black workers and unions.

Indeed, Justice Powell authored the opinion for a 5–4 Supreme Court majority in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), awarding corporations new First Amendment rights. That decision was an important stepping stone to the Court’s 2010 rul ing in Citizens United (also Orwellian), establishing a corporation’s right to make unlimited independent political expenditures. The pro-corporate and employer tilt of the Supreme Court, continuing up to its just completed term, has been well documented.50 When Chief Justice Roberts testified during his confirmation hearing that being a justice was as simple as calling balls and strikes, he neglected to mention that when corporations were pitching, his strike zone reached from his neck to his ankles.

Finally, in his 1971 memo, Powell told business that it was urgent that it turn the entire situation around to save the “system.” He concluded by declaring that “business and the enterprise system are in deep trouble, and the hour is late.” As the history of the last forty years demonstrates, Powell’s “call to arms” was taken to heart by American business. Powell’s “wake-up call” has resulted in an enormous increase in corporate power and influence in Congress, the White House, the courts, and the state legislatures.

In 1981, ten years after Powell’s screed, President Reagan, in contrast to Nixon, fired eleven thousand striking federal air traf fic controllers and made it stick. Over twenty years later, Federal Reserve Chairman Alan Greenspan declared these discharges to be Reagan’s most important domestic initiative because they “gave weight to the legal right of private employers, previously not fully exercised, to use their own discretion to both hire and fire workers.”

50. See Erwin Chemerinsky, “Justice for Big Business,” The New York Times, July 1, 2013; Adam Liptak, “Roberts Pulls Supreme Court to the Right Step by Step,” The New York Times, June 27, 2013; Adam Liptak, “Pro-Business Decisions Are Defining This Supreme Court,” The New York Times, June 10, 2013; Linda Greenhouse, “The Real John Roberts Emerges,” The New York Times, June 29, 2013.

Of course, Greenspan knows that in advanced industrial coun tries other than the U.S., nonunion employees are protected under law against discharge except for just cause. They are not “employ ees at will,” as they remain here under the ancient common law.

You may have seen the bumper sticker that says, “Unions: The Folks That Brought You the Weekend.” This may be contrasted with that old employer slogan, “If You Don’t Come In on Sun day, Don’t Come In on Monday.” Indeed, aside from its role in improving wages, conditions, and benefits for its members through collective bargaining, and thereby building the now-eroding middle class, Labor historically has been the leading political force support ing economic and social legislation that has benefited all Americans. Among the many laws that Labor helped enact have been increases in the minimum wage; Title VII, which bans almost all forms of dis crimination in employment (there is no ban in the private sector on discrimination on the basis of sexual orientation or political beliefs or affiliation, however); the Age Discrimination in Employment Act; the Americans with Disabilities Act; the Occupational Safety and Health Administration (OSHA); the Equal Pay Act; the Family and Medical Leave Act; and the WARN Act (Worker Adjustment and Retraining Notification Act). Thus the weakening of Labor is having the effect of diminishing the nation’s ability to achieve other statutory advances on a federal and local level, such as paid sick leave, which the public generally favors but most employers oppose; indeed, 80 percent of low-wage workers do not enjoy a single paid sick day. And it is making it possible for business to roll back gains previously achieved and frustrate such advances as a long-overdue increase in the minimum wage. Also, a weakened labor movement will have an adverse impact upon political campaigns and “get out the vote” efforts.

Another significant aspect of the impact of unions and col lective bargaining upon employment conditions in the nonunion sector has been the extent that nonunion employers have had to

approximate union-established standards to help keep unions from organizing their enterprises. A typical case is that of unionized UPS, with its 350,000 employees in the U.S. whose Teamster contract has caused its nonunion competitor, FedEx, with its 300,000 employees, to attempt to be somewhat competitive regarding wages and ben efits. So, to the extent that the unionized sector is diminished, it has an adverse impact on nonunion wages.

For example, the extent of unionization in a local labor mar ket significantly impacts overall wages and conditions. Accordingly, housekeepers and maids in hotels in highly unionized New York City and San Francisco earn about $20 an hour, in moderately unionized Chicago and Los Angeles about $15 an hour, but in nonunion cities such as Phoenix, they barely earn the minimum wage of $7.25. So much for equal pay for equal work! Clearly in an environment in which good jobs are scarce, unions are weak, and millions are unemployed, the downward pressure on wages is unrelenting. Is it any wonder that there is a “secret singing” among employers when unemployment is high and unions are disappearing?

Another development that I attribute to the decline of unions is the growing phenomenon known as “wage theft.” 51 Incredible as it may seem, thousands of unscrupulous employers, not satis fied with paying the working poor minimum or minimal wages, have devised devious schemes to reduce workers’ wages further by illegally depriving them of pay they are entitled to receive under law. For example, employees are frequently clocked out after forty hours and are not paid for their overtime hours, are paid less than minimum wage, are treated as independent contractors or exempt supervisors instead of being treated as employees covered under the Fair Labor Standards Act (though

51. See Kim Bobo, Wage Theft in America: Why Millions of Working Americans Are Not Getting Paid—And What We Can Do About It (New York: New Press, 2012).

they are so covered), so that employers don’t pay them time and a half for overtime or pay the employers’ share of Social Security, unemployment insurance, workers’ compensation insurance, Medicare, or other taxes. And incredibly, in cases in which I have been involved, the federal government, which is charged with enforcing the Fair Labor Standards Act, has itself paid out in excess of $1 billion in FLSA back wages and damages over the last thirty years. As Brandeis once said, “When government is a lawbreaker, respect for law declines.”

Even closer to home, the phenomenon of illegally employing unpaid interns, who should be paid at least the minimum wage, is rampant in many industries and has been estimated to affect at least a half million workers. These interns are reluctant to complain, or sue, for fear of discharge, blacklisting, and other forms of retaliation.

Further, in my view, when workers are not paid for their efforts, their time is being stolen in addition to their monetary compensa tion, which as we know from our own lives may well be of even greater value to them than cash. Isn’t this why the affluent pay others to perform many tasks for them—namely, to buy “free time.” So wage theft is also time theft!

Billions of dollars are stolen from the paychecks of workers annually while the U.S. Department of Labor’s enforcement apparatus is perennially underfunded and sometimes sequestered. As to private FLSA cases filed in the federal courts, in 2008, 5,302 were filed. In 2013, 7,764 such actions had been filed by May. Such cases may also be brought in state courts. Each case may involve multiple plaintiffs.

Trust me, where unions are in the picture, there is no wage theft, because employees are not on their own. They are able collectively to combat employer abuses. On the other hand, to avoid unioniza tion or other collective actions, many nonunion employers expressly prohibit their employees from discussing their compensation or

terms of employment among themselves, which, by the way, is an unfair labor practice under the National Labor Relations Act.52

Further, the Supreme Court has been highly active recently in limiting class actions alleging broad employer abuses, making it virtually impossible for individual employees to afford to vindicate their rights in court. Clearly, the scales of justice are heavily tipped in favor of the rich and powerful. Litigation is often a game of the financial staying power of the litigants, somewhat like poker. For the employers, their mercenaries no longer wear brass knuckles. Instead, they tote briefcases!

Also, many employers are currently requiring employees to agree as a condition of employment to waive their right to participate in class actions against their employer. This, of course, constitutes the modern version of the outlawed “yellow dog” contract, in which employees agreed as a condition of employment never to join a union. Divide and conquer has always been a popular employer motto. As Jay Gould once said, “I can hire one half of the working class to kill the other half.”

As if direct employer purloining of employee pay were not egre gious enough, to me the failure of Congress to raise the minimum wage to reasonable or decent levels for more than four years is a clear form of wage theft. The minimum wage for tipped employees has been $2.13 an hour since 1991 as a result of intense lobbying by the National Restaurant Association.

As to the general federal minimum wage, it has been $7.25 for more than four years. In 1968, the real value in today’s dollars of the minimum wage (then $1.60) was $10.65, so the increase to $9.00, proposed by President Obama, would bring it nowhere near the 1968 standard. Since 1968, average U.S. labor productivity has 52. I have a very unfunny comic book for you in English and Spanish, which will help you better understand the wage theft phenomenon: https://issuu.com/ interfaithworkerjustice/docs/wagetheftcomicbook/2.

risen by 135 percent. Thus, according to Senator Elizabeth Warren, if, since 1968, the minimum wage had increased to reflect infla tion and the increase in productivity, the minimum wage would be $22.00. This is one reflection of how far behind minimum-wage workers have fallen in income.53 Also, an increase in the minimum wage to $10.00 an hour would support greater demand by 40 mil lion workers for basics in the economy.54

The point I have been trying to make is that unions have been a vital force and have played a critical role in building our middle class and our nation, bringing a modicum of fairness to the workplace, and advancing many of our most cherished values, and that the union busting and bashing that has gone on has served only to silence the collective democratic voice of working people and bring them to their knees and into a condition of rank subservience and servitude. I believe this effort to be a self-defeating and a selfinflicted wound that can only serve to undermine the beliefs and values that we support as a great nation and people, and to increase the degree of inequality.

It should be recalled that in May 1933, a few months after Hitler took power (and five years before Kristallnacht), his first repressive measures were to ban all unions, arrest their leaders, occupy their offices, and ban strikes.55 I am not suggesting that we should antici pate such a putsch here, but rather it is simply to say that unions are a fundamental bulwark of democracy, equality, and a free society that

53. See Mark Bittman, “Fast Food, Low Pay,” New York Times Opinionator, July 25, 2013, available at https://opinionator.blogs.nytimes.com/2013/07/25/fast-foodlow-pay/. The data included in the foregoing text comes from a statement from economists attached to the Bittman column.

54. Our minimum wage is significantly below that of France, England, Canada, New Zealand, Ireland, Australia, and the Netherlands.

55. In contrast to 1933, in Germany today, major manufacturing industries are thriving, with substantial union participation imposed under law, including equal union-management representation on corporate boards.

deserve to be supported by all. In my view, their slow diminution or demise will be to the ultimate detriment of our society and its people, and those who dislike unions’ occasional disruptive impact should consider their overall progressive historical contribution to our national well-being before either joining those who seek to crush them or merely standing by indifferently. As Arthur Schlesinger Jr. said in his 1949 book, The Vital Center: The Politics of Freedom: “Class conflict is essential if freedom is to be preserved, because it is the only barrier to class domination.” Or as Brandeis put it: “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.”

Finally, let me assure you that American Labor will not go down without a fight. First, over the last ten years, it has developed a doorto-door campaign known as Working America, which has enlisted into its ranks more than 3 million union supporters who are not in unions but would join them if they could. These people are work ing shoulder to shoulder with regular union members to advance worker and community interests. They are involved in many pro gressive campaigns in their communities. And in the next five years, Working America will expand from being on the ground in twenty states to being active in all fifty.

Also, the AFL-CIO, under the leadership of its president, Rich ard Trumka, has begun a dialogue with its allies who are in the public interest, consumer, student, senior, feminist, academic, envi ronmental, civil rights and liberties, LGBT, Latino, Black, and other minority communities to resolve past differences and to forge a new and broader coalition and partnership in order to build a new and better America together. The AFL-CIO will be meeting in conven tion in Los Angeles September 8–11 to chart with its friends and allies a new course for workers in America’s future. Stay tuned!

Let me close by quoting Eugene Victor Debs, who said this from his prison cell during the Pullman Strike of 1894:

Ten thousand times has the labor movement stumbled and fallen and bruised itself, and risen again; been seized by the throat and choked into insensibility; enjoined by courts, as saulted by thugs, charged by the militia, shot down by regu lars, traduced by the press, frowned upon in public opinion, deceived by politicians, threatened by priests, repudiated by renegades, preyed upon by grafters, infested by spies, deserted by cowards, betrayed by traitors, bled by leeches, and sold out by leaders, but, notwithstanding all this . . . [Labor] is today the most vital potential power this planet has ever known, and its historic mission of emancipating the workers of the world from the thralldom of the ages is as certain of ultimate realiza tion as the setting of the sun.56

56. “Labor Quote of the Day: Eugene Debs,” Metro Washington Council AFL-CIO, available at http://www.dclabor.org/home/labor-quote-of-the-day-eugene-debs.

Jimmy Hoffa and Me (September 2, 2020)

exactly one year ago, septemBer 2019, two events occurred In what was a unique interface between Hollywood and Harvard. This unusual encounter was what made me decide to speak about today’s subject. The first happening was the release of Martin Scorsese’s epic film The Irishman. It is still available on Netflix. It deals with the disappearance on July 30, 1975, over forty-five years ago, of one-time Teamsters Union President James Riddle Hoffa. The other event was the publication last September of a book entitled In Hoffa’s Shadow, written by Harvard Law School Professor Jack Goldsmith. Jack is a leading constitutional scholar and was a somewhat controversial figure in the G. W. Bush Justice Department between 2003 and 2004. (He is one of the founding editors of an interest ing online blog entitled Lawfare.) In addition, Jack was the stepson of Chuckie O’Brien, who married Jack’s mother on June 16, 1975, when Jack was twelve. That was forty-four days before Hoffa van ished. O’Brien died at eighty-six in February of this year.

Jimmy Hoffa was essentially a surrogate father to Chuckie O’Brien.

Chuckie’s mother was a close friend of Hoffa and his wife, Josephine, and he was raised with Hoffa’s children. As an adult, Chuckie served as a Hoffa factotum, but for many years after Hoffa’s disappearance, he was suspected of having been involved in Hoffa’s departure. Indeed, he was so identified in the Scorsese movie.

Let me say at the outset that I knew both Hoffa and Chuckie professionally, as well as Hoffa’s claimed assassin, Frank Sheeran, whose “as told to” book, I Hear You Paint Houses, was the basis for Scorsese’s movie. Thus, I was one of a few hundred people inter viewed by Goldsmith while researching his book. I found both the book and movie gripping. Among other things, Jack’s tome sought to absolve O’Brien of complicity in Hoffa’s disappearance and thereby debunk the Sheeran book, which implicated O’Brien. In this, I believe Jack succeeded. Even more interestingly, Jack’s book explores the complexities of the father-son relationship that existed between these two quite dissimilar people over many years, as well as the Hoffa-Chuckie connection.

I have represented workers and unions exclusively during my entire career as a lawyer, which continues. (I am simply too old to quit.) During the summer of 1960 (sixty summers ago), between graduating from the University of Chicago Law School and enter ing the NYU School of Law, where I would obtain a master’s degree in labor law, I worked as a legal intern at Teamsters Union headquarters in Washington, D.C. After receiving my graduate degree, I returned to the Teamsters legal department in 1961 and remained there until 1967, when Hoffa left to become an inmate at the federal penitentiary at Lewisburg, Pennsylvania, where he was incarcer ated until 1971. It was then that President Nixon commuted his sentence. He was released after serving almost five years, on the condition that he not return to the union until at least 1980, when his full thirteen-year term would have ended. Indeed, it probably was at least in part Hoffa’s effort to resume his union position ear lier, notwithstanding this limiting condition, that caused his demise.

I left the Teamsters soon after Hoffa’s 1967 imprisonment and went on to represent other unions and individual workers until this day.

First, a few words about how I was hired by the Teamsters for the summer of 1960: You must believe me that I had no connections— legal, union, family, or otherwise—that got me that summer job. Rather, I just was a twenty-four-year-old law student who saw a notice on a law school bulletin board advertising a summer intern ship at the Teamsters Union, and I applied. I was recommended by my distinguished labor law professor, Bernard Meltzer, who was much too pro-management in my eyes. Indeed, I argued continuously with him about labor issues during my law school years. Bernie frankly told the Teamsters, “He’s your man!”

Indeed, since I was a left-wing youth, beginning from the time I was twelve (even before my bar mitzvah), becoming involved with unions was among my highest aspirations. I had read about the McClellan Committee hearings on labor racketeering in the late fifties, in which the committee’s counsel, Robert Kennedy, com menced his long-running vendetta against Hoffa. It continued well into Bobby’s years as attorney general of the United States. Before joining Senator McClellan, Bobby had worked for Senator Joseph McCarthy, as we learned here last year from Jay Kaufman. The union animus expressed at the McClellan Committee hearings and its ultimate legislative result, the anti-labor Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), made me want to observe firsthand the dealings around labor in the nation’s capi tal. And my summer Teamsters clerkship infected me with a chronic case of Potomac fever.

On my first day at the Teamsters, upon my being introduced to the then forty-seven-year-old, five-foot, five-inch, pugnacious Jimmy Hoffa, he jokingly asked my boss whether he was hiring lawyers on the basis of height and weight. Not a good start, I thought!

My boss, Bart Bartosic, was a former seminarian who taught labor law at the Catholic University Law School in D.C. while

working at the Teamsters. And some years later, he became a fulltime law teacher and law school dean. I might add that Bart and I remained the closest of friends until his death in 2011.

Let me offer a brief tribute to Bart, who was my principal mentor during my Teamsters years. Many who knew Bart often wondered why Hoffa would have hired him as his chief house lawyer dur ing some of Hoffa’s most trying years, considering the remarkable differences in their personalities and outlooks. Bart was courtly, dip lomatic, and scholarly, while Hoffa was direct, outwardly tough and aggressive, and eminently practical. Some insight is provided in an essay appearing in the UC Davis Law Review written by Theodore J. St. Antoine in 1990, upon the occasion of Bart’s retirement as dean there. St. Antoine, who was counsel to the AFL-CIO in the early sixties and later was dean of the University of Michigan Law School (where he is known to the students as “the Saint”), had this to say about Bart, whom he knew quite well: Bart had “a backbone of cast iron, a mind like a steel trap, and a willingness, when the situation demanded, to be as hard as nails when dealing with either ideals or people.” Let me add, to round out the picture, and to keep the metaphor metallic, Bart also had a heart of gold.

I cannot recall witnessing an occasion where Bart’s “immovable object” and Hoffa’s “irresistible force” collided directly, but there were a couple of close calls. To watch Bart and Hoffa spar was as creative a process of lawyer and client collaboration as I have ever seen. One occasion I recall especially vividly was when Bart, Hoffa, and I sat for a couple of hours in Hoffa’s office, at his insistence, cutting ten pages from a sixty-page draft of a much-too-long brief I had written. For me it was a truly excruciating experience!

An illustration of Bart’s “spine” came when Hoffa approached him in 1963, in my presence, and said that he wanted his son, Jim, who was in his first year at the University of Michigan Law School, to be our summer intern. Bart calmly explained to Hoffa that the qualifications were that the student must have completed

the second year of law school and already have taken labor law, so that young Hoffa did not qualify, having done neither. Hoffa Sr. did not take this news gladly, but he accepted it and walked away some what dejectedly. However, he was back a year later, when his son did qualify and was hired. Hoffa Jr. was a very alert, hardworking, and helpful intern that summer. Many years later, by 1999, he was elected to the union’s presidency in a contested mail ballot election, and he still serves in that capacity today. He was narrowly reelected in 2016, in an independently supervised mail ballot election, but he does not plan to run again in 2021.

There’s a personal story that goes with the campaign of “ young Jim” for the Teamsters’ presidency that I recall well. There came a moment in the mid-nineties when a secretary of mine came racing into my office, somewhat shocked and horrified, to tell me that “Jimmy Hoffa is on the phone!” I reassured her, telling her that Hoffa had not returned from the beyond but that it was his son, Jim, calling.

Clearly, my seven-year stint at the Teamsters was as good an introduction to the practice of labor law and involvement in the labor movement as I could have imagined. And the many lessons I learned have served me well. For example, one of the fringe ben efits of working at Teamsters headquarters at 25 Louisiana Avenue Northwest—still known as the “Marble Palace,” having been built very extravagantly by Hoffa’s predecessor, Dave Beck, in the midfifties—is its proximity to Congress and the Supreme Court. During my seven Teamsters years, Bart and I seldom missed an oral argu ment in labor and many other significant cases that came before it. And indeed, during that period our office participated in seven Teamsters labor cases that were argued and won in the Supreme Court by the union, which significantly benefited labor as a whole. Our success was owed to many factors, but one surely was the com position of the Supreme Court during those years. It was made up of several justices who were uniquely attuned to labor issues,

principally because of their backgrounds and experiences in law and life. These included Chief Justice Earl Warren, whose father had been a “blackballed” union advocate railroad worker in Cali fornia; Justice William Brennan, whose father had been an officer of the brewery workers’ union in New Jersey; Justice William Douglas, who grew up in a hardscrabble environment among the Wobblies in the Pacific Northwest; Justice Hugo Black, who had represented injured workers in his law practice in Alabama before coming to the Senate in 1927; Justice Felix Frankfurter, who had supported unions while he was a Harvard Law School professor, had written a book in 1930 attacking anti-labor injunctions, and had been a defender of Sacco and Vanzetti; Justice Arthur J. Goldberg, who had been gen eral counsel of the CIO and the United Steelworkers; and Justice Thurgood Marshall, who had fought for the rights of Black workers during his long and illustrious legal career.

These justices were especially sensitive to the realities of work ing life and the needs of working people, and to the positive role that unions and labor laws played in advancing workers’ interests in our country.

Hoffa, too, was a great source of information and insight about labor for me. First, let me provide you with a few facts about his early years. He was born on St. Valentine’s Day in 1913, in Brazil, Indiana, a small mining town. His father was a coal prospector who died of black lung disease when Hoffa was seven, leaving a wife and four children. Hoffa’s mother moved her family to Detroit in search of employment, and Hoffa left school at fourteen and began working. When the Great Depression hit Detroit in 1929, Hoffa, then sixteen, began working nights at a Kroger warehouse, unload ing freight. The pay and conditions were abysmal, and he and his co-worker “strawberry boys” went on strike one night, refusing to unload perishable fruit.

They won their strike for improved conditions, and Hoffa, not long after, went to work as a young organizer for a small Detroit

Teamsters local, where he excelled. He rose in the Teamsters ranks during the next twenty or so years, and by the mid-1950s he had become a national figure in the union. When Teamsters Presi dent Dave Beck became the object of investigations for criminal wrongdoing, he resigned, and Hoffa ran successfully for the union’s presidency in a three-way race in 1957. His election was challenged in court, and the case was settled with the court’s appointment of a board of monitors to provide oversight over Hoffa’s operation of the union. When I arrived in 1960, the board of monitors and its staff were still functioning, but they were no match for Hoffa’s legal blitzkrieg. The board was dissolved, and Hoffa was elected at the union’s next court-ordered convention in 1966. I attended that convention and recall Hoffa opening it by showing a thirty-minute Mike Wallace documentary about the life of John L. Lewis, who was Hoffa’s hero. As Hoffa had hoped, the film’s militant union message served to set the tone for the entire convention.

Despite Dave Beck’s legal problems, he had been a somewhat progressive union leader in the Pacific Northwest for many years. He forced out his predecessor, Teamsters President Dan Tobin, in 1952. (A fifteen-year-old Irish immigrant in 1890, Tobin had led the union beginning in 1907.) At this point I might add that when I went to work at the Teamsters in 1960, the entire sixteen-member general executive board of the then million-and-a-half-member union was composed of Teamsters of at least partial Irish extrac tion, including Hoffa. (I do recall one “salty” Irish Teamsters official declaring in my presence that “the Irish built this union, and the Jews aren’t going to take it over.” This was probably in connection with Hoffa’s proposal to fill a vice-presidential vacancy.)

Like Hoffa, Dave Beck left school early. At sixteen in 1910, he became a laundry truck driver in Seattle. This was followed by his career as a Teamsters Union organizer and leader. Among Beck’s many innovations during his tenure as Teamsters national president (1952–1957) was the establishment of the National Conference of

Teamster Lawyers. This was a loosely knit group of several hundred union lawyers and law firms from across the country and Canada, which represented Teamsters affiliates and other unions as well. It assembled annually at meetings where labor law problems and decisions were discussed and analyzed and where long-term pro fessional alliances and friendships were established. Many of the lawyers had been practicing union-side labor law going back to at least the early thirties and were seasoned veterans of the stillcontinuing labor wars.

One of my first assignments in 1961 was to coordinate the Teamsters lawyers conference that year. In order to encourage a large attendance, Hoffa chose to hold the meeting in Acapulco, which was then beginning to be a desirable tourist destination. When we arrived, we learned that conference attendance was over subscribed, and I vividly recall the first morning, when Hoffa led hotel staff workers in carrying additional tables and chairs into the meeting room. I was somewhat astonished but soon learned that Hoffa was what we in the labor movement call a “Jimmy Higgins,” ready to do whatever was needed on short notice. (Indeed, the fig ure of “Jimmy Higgins” comes from a 1919 novel with that title written by Upton Sinclair, which describes a devoted socialist orga nizer who was the person looked to in order to perform “tedious and disagreeable tasks.”)

The lawyer meetings went on for about four days, with Hoffa attending every day-long session, peppering the lawyers with ques tions, challenging many of our assertions, and letting us all know what a bright, activist, and energetic union leader he was and what his expectations were of the lawyers in assisting Teamsters affiliates in achieving their organizing and bargaining goals. Those meetings were held each year I worked at the Teamsters, but not in similarly exotic surroundings.

For me another engaging aspect of being at the Teamsters in the sixties related to civil rights. One of the first union leaders I met

at the Teamsters was Harold Gibbons, then the union’s executive vice president. In that role Gibbons oversaw the daily operations at headquarters while Hoffa traveled the country extensively, organiz ing and attending union meetings and bargaining sessions. Gibbons was the elected leader of St. Louis Local 688 and held other union positions as well.57

Born in 1910, Gibbons was the youngest in a very large coal mining family in Pennsylvania. He gravitated to Chicago in the thirties and became an organizer and leader in several unions. He teamed up there with a Black union and civil rights organizer and leader, Ernest Calloway, who once had worked as a coal miner. They both moved to St. Louis, where they developed some very progressive union programs for their Teamsters local’s members, in such areas as housing and health care. Both participated in freedom rides in the 1940s and were quite active in civil rights work in St. Louis and beyond. Hoffa befriended Gibbons and brought him to headquarters as his principal assistant when he assumed the union’s presidency in 1957, believing that Gibbons would know his way around Washington. And Gibbons brought several of his talented St. Louis staff members with him.

When I was at law school, the sit-ins began in North Carolina and elsewhere during my final year. And with some Black and other radical comrades, we began picketing Woolworths throughout Chicago to pressure it to desegregate in the South. When I got to D.C. in 1960, I became involved in civil rights activity there with both Gibbons and Bart’s encouragement and support. Thus, I was given fairly free rein to use the union’s facilities to advance the ends of the civil rights movement. Among the campaigns I was involved in were working to desegregate the Jim Crow Glen Echo amuse ment park in suburban Maryland (then owned by the Feld Brothers,

57. See Robert Bussel, Fighting for Total Person Unionism: Harold Gibbons, Ernest Calloway, and Working-Class Citizenship (Champaign: University of Illinois Press, 2016).

who later operated the Ringling Brothers circus); seeking to expel law schools that did not admit Blacks from an American Bar Asso ciation–sponsored law student association; supporting the Student Non-Violent Coordinating Committee’s Freedom Summer, includ ing holding a fundraising event at Teamsters headquarters that featured a very young Bill Cosby; working with Stokely Carmichael to integrate an Albany, Georgia, unionized shirt factory; and plan ning and participating in the 1963 March on Washington for Jobs and Freedom with A. Philip Randolph and Bayard Rustin. I should mention, too, that Viola Liuzzo, a civil rights activist from Detroit, then a thirty-nine-year-old mother of five, was the wife of a Team sters business agent in Detroit. She was murdered by the KKK right after participating in the 1965 third Selma-to-Montgomery march. Hoffa and Gibbons attended her funeral in Detroit with Dr. King. One incident relating to civil rights I remember well occurred at a lunch meeting of several lawyers and Hoffa on September 16, 1963, where we were discussing several recent National Labor Rela tions Board decisions relating to picketing. I got a chance to offer my analysis, at which point Hoffa responded by exclaiming sharply, “What the hell do you know about picketing? You’ve never been on a picket line in your life.” I had the satisfaction of responding that, in fact, I had been on a picket line at the White House that very morning, protesting the bombing of the Birmingham church where four Black schoolgirls had been killed. Hoffa was somewhat nonplussed by my attempt at one-upmanship, laughingly declaring me a “dirty commie S.O.B.!” which I was not.

The high point of my civil rights work while at the Teamsters came in 1966, when Gibbons arranged for a meeting at Teamsters headquarters with Reverends Dr. King, Ralph Abernathy, and Andrew Young, at which Hoffa agreed to present them with a union contribution to the Southern Christian Leadership Conference. Bart and I attended the luncheon meeting, and I also had the honor of driving the King party in Hoffa’s Pontiac. A lively discussion

regarding labor and civil rights took place at the lunch, at the end of which Hoffa presented King with a large union check.

A time came when Gibbons left Hoffa’s side and returned to his union base in St. Louis. It occurred when President Kennedy was shot and killed in Dallas in 1963. I was with Bart and Gibbons in Hoffa’s office when Gibbons called Hoffa, who was out of town, to tell him that Kennedy had been murdered and that Gibbons was lowering the American flag outside of the union’s building. Hoffa reacted angrily, telling Gibbons not to lower the flag, since Ken nedy had wished to see Hoffa in prison. Gibbons explained to Hoffa that that was irrelevant; Kennedy had been president of the United States and the flag was coming down. They argued loudly. Gibbons then hung up on Hoffa and told Bartosic and me that he was resigning as executive vice president and returning to St. Louis. This was not the end of the Gibbons-Hoffa relationship, but their partner ship was never the same.

Hoffa’s greatest ambition was the development of a single national labor contract, including national standards covering every long-haul truck driver in the United States. He knew that unless such a national bargaining unit and agreement were created, it would continue to be possible, for example, for trucking companies to hire low-paid nonunion drivers in the South to haul freight to and from, say, Texas to Chicago and back, rather than hire wellpaid unionized drivers from Chicago to do the work. Thus, just as it was the case—and still is with companies moving unionized northern manufacturing jobs to the nonunion South—trucking had long been subject to the same manipulations. That’s why assuring that all motor freight was transported union was Hoffa’s goal. This required him to organize the South, while restraining the bargain ing demands of powerful Teamsters locals in the North.

As a twenty-one-year-old Teamsters representative in 1934, Hoffa had observed the Minneapolis general strike led by a group of Teamsters who were revolutionary followers of Leon Trotsky.

Trotsky had been expelled from Soviet Russia by his archrival and enemy, Joseph Stalin, and was then living in exile in Europe. He had not yet moved with his wife, Natalia, to Mexico at the invitation of Diego Rivera; his wife, Frida Kahlo; and the Mexican government. It was in Mexico where Stalin had Trotsky murdered by a hired assassin in 1940.58

By the late thirties, the Minneapolis Trotskyists, including Farrell Dobbs and the Dunne brothers—Vincent, Myles, and Grant— had organized about 150,000 midwestern truck drivers under one multistate contract. Indeed, on the strength of Dobbs’s ability and achievements, he became a leading national Teamsters organizer. But in late 1939, he resigned from the union to become a national leader of the Trotskyist Socialist Workers Party, which opposed America’s anticipated entry into World War II on ideological and political grounds.

By mid-1941, Dobbs and seventeen other Trotskyist leaders were indicted and then tried and convicted by the federal government under the newly enacted Smith Act (1940) for sedition, consisting mostly of their opposing the draft. Needless to say, the then ultra patriotic American Communist Party supported these prosecutions after Hitler attacked the Soviet Union in June 1941. The Commu nist Party’s turn to be indicted under the Smith Act did not come until 1949 and thereafter, when 144 Communists were prosecuted by the Justice Department.

It was Hoffa’s goal to finish the organizing job that the Trotsky ists and their allies had started in the Midwest by bringing drivers from coast to coast under a single labor contract. And he achieved this goal in major part by 1964, upon the signing of the first National Master Freight Agreement, which covered more than 400,000 Teamsters. After Hoffa went to prison in 1967, trucking

58. See e.g., Leonardo Padura, The Man Who Loved Dogs (New York: Farrar, Straus and Giroux, 2009).

deregulation caused tremendous upheaval in the very competitive trucking industry, Hoffa’s leadership was sorely missed, and the national agreement fell into serious decline. Also, the Teamsters pre viously had been successful at preventing companies from employing so-called owner-operators, who leased their rigs to employers and drove them as independent contractors. But this employer method of avoiding the terms of the national agreement prevailed, and today most over-the-road drivers are private entrepreneurs who lack job security, contractual benefits such as pensions and health care, and other protections enjoyed by such unionized employees as the tens of thousands of Teamsters at UPS. The owner-operators resemble the Uber and Lyft drivers, about whom we currently read so much. Today there are some 350,000 owner-operators driving on intercity highways. Their current plight as small-business owners has frequently been reported upon in the press. And the forthcom ing introduction of self-driving eighteen-wheelers is the next crisis they will face, as was described in the August 23, 2020, edition of 60 Minutes, which is available online.59 The driverless trucks already being tested on public roads employ computers that are claimed to make twenty decisions a second and to be able to cross the country nonstop in two days. However, the 60 Minutes producers did not think to inquire as to how the trucks would refuel en route. Maybe by a drone or helicopter. Or perhaps they just assumed they would soon be powered by electricity.

As to Hoffa, Jack Goldsmith did a prodigious amount of research in preparing his book, including reviewing thousands of pages of documents from Justice Department and FBI files. Among these were voluminous records reflecting that the government had engaged in extensive unlawful spying on Hoffa’s associates and

59. See https://www.cbs.com/shows/60_minutes/video/_dnJmeCnccahm_IUzz GCsx98XjuOZ8li/driverless-trucks-could-disrupt-the-trucking-industry-as-soon-as2021/.

family for many years. During my Teamsters years, I would have a monthly visit from a fellow named Bernie Spindel, who came like an exterminator to engage in office debugging. On one occasion it became clear that a union headquarters staff member I knew well, Sam Baron, was reporting to Attorney General Kennedy on what he saw and heard. And a Justice Department investigator came to the home of an accounting department employee, seeking adverse information on Hoffa. The employee sent the agent away and reported his visit to Hoffa, who assembled the entire union head quarters staff and gave us lawyer Edward Bennett Williams’s home phone number to call if we experienced a similar visit.

In the end Hoffa was convicted of jury tampering, based upon the testimony of a union officer “friend,” Ed Partin, who succeeded in maneuvering himself out of jail while facing charges of state and federal crimes. He did it by soliciting a deal with the Justice Depart ment to spy on Hoffa. He then insinuated himself into the Hoffa legal defense headquarters during Hoffa’s trial in Nashville, Ten nessee, on a federal misdemeanor charge. Partin then proceeded to report to the Justice Department on what he said he saw and heard. Hoffa’s conviction, based in major part on this man’s testimony, was upheld by four members of the United States Supreme Court, with Chief Justice Earl Warren filing a stinging dissent, declaring that the government practices involved, which he recounted at length, were “offensive to the fair administration of justice in the federal courts.” Four other justices found procedural grounds for avoiding participating in the decision on its merits. Jack Goldsmith believes that the Court’s decision would have been otherwise if the case had not involved Hoffa.

As for Scorsese’s film, it is a clever yarn, but having been based upon the Frank Sheeran book, it is pure “cock-and-bull.” Sheeran was depicted in the movie as Hoffa’s virtual shadow, but during my years at the Teamsters, I saw him only once, while he was serving as a sergeant at arms at the 1966 Teamsters convention in Miami.

He was not Hoffa’s bodyguard, nor was he anything else but a local union official. Hoffa never had a “bodyguard,” unless it was Chuckie O’Brien.

Regarding the Robert De Niro and Joe Pesci performances in the movie, they were both outstanding. But Al Pacino flunked as Hoffa; fear, panic, begging, and apologies were not part of Hoffa’s repertoire. If anything, I always marveled at Hoffa’s ability to main tain his composure and personal discipline while under the most incredible pressures. And I recommend to you a YouTube interview with Hoffa after he was released from prison, in which he coolly described his years of confinement.60 After his release he became an advocate for much-needed prison reform.

There is no way to sum up what I have related to you today, since my comments have been random concerning my Teamsters years. I do hope you found a few of my “war stories” interesting. If anything, I might observe that one never really knows what lies around the next corner in a life in the law, especially one involving labor. But clearly, my Hoffa and Teamsters years were a remarkable introduction to a long and still engaging career practicing labor law. In conclusion, and getting back to where I began, let me offer a final comment about the Scorsese movie as compared with Jack Goldsmith’s book (which relates also to what we have been going through almost daily since January 20, 2017), namely that “the truth never dies; it just lives a miserable life,” which is an old but very timely Yiddish proverb: “Emet shtarbt nit, ober es leybt a tsoresdike leben.”

60. See “Jimmy Hoffa on the Morning Exchange” (January 31, 2011), https:// www.youtube.com/watch?v=PCyZ9-AVNWE.

The Fiftieth Anniversary of the 1970 Postal Strike:

Postal Employment

Is Still Contentious a Half

Century

Later (The American Prospect, March 18, 2020)

the eIghteenth of march 2020 wIll soon Be celeBrated as the fiftieth anniversary of the Great Postal Strike of 1970. But March 17, the prior day, should also be recognized, as the fiftieth anniver sary of a critical meeting of Branch 36, National Association of Letter Carriers, AFL-CIO (the Manhattan-Bronx branch), at which an activist rank-and-file member, Vincent Sombrotto, called for a vote to strike the postal service in protest of extremely low pay and outrageous working conditions in the face of large increases in the cost of living. Indeed, many New York City letter carriers with large families qualified for, and were receiving, welfare. There had been strike talk among postal workers for at least a year earlier, especially because unionized public employees in New York City were being paid much more than postal employees. The union members at the March 1970 letter carriers’ meeting

voted 1,559 to 1,055 to strike, despite leadership opposition based upon the fact that participating in a strike against the postal service was a federal crime and a basis for immediate discharge, as is still the case today. The next day Branch 36 struck nonetheless, and other unionized postal workers in New York City joined the strike and picket lines. Morris (“Moe”) Biller, president of the powerful New York Metro Area Postal Union, an independent industrial postal workers union in New York, extended support to the strikers. In the next few days, well over two hundred thousand postal workers across the country followed suit, and the largest strike against the United States government in its history was underway. By March 21, the strike had spread to more than two hundred cities and towns, including Philadelphia, Detroit, Chicago, Los Angeles, San Francisco, Minneapolis, Cleveland, and Pittsburgh, and mail pro cessing and delivery were at a standstill.

What had been the immediate provocation for the strike was that the Nixon administration was seeking legislation that would reform the U.S. Post Office Department and make it into a “busi nesslike,” self-sustaining enterprise rather than having it continue to depend upon federal subsidies. In addition, the administration was proposing to end the historic practice of local postmasters, and even the postmaster general, being political appointees, without their having any postal, or even managerial, experience. It might be recalled that from 1933 to 1941, James Farley, FDR’s campaign manager, served simultaneously as postmaster general (then a cabi net post) and chairman of the Democratic National Committee. He was the New Deal’s principal patronage dispenser. Farley kept a file on almost every person he’d ever met. Such a file is still referred to by politicians as their “Farley file.”

Historically, Congress had overseen postal operations, including mechanization and rates as well as wages and benefits. But it, too, was unqualified to perform such managerial duties. Thus postal reform, which was supported in general by both political parties,

promised greater efficiency and rationality in turning the postal ser vice into an independent, TVA-like, government-owned enterprise. However, postal pay legislation was being held up until a reform package had been agreed upon.

The history of the United States Postal Service (USPS, known before 1970 as the U.S. Post Office Department) goes back to before the American Revolution. Benjamin Franklin served as deputy postmaster general for the American colonies beginning in 1753 and was appointed postmaster general of the United States by the Continental Congress in 1775. Establishing post offices and post roads are among the powers specifically delegated to Congress in the Constitution.

From its beginnings, the postal service has been viewed by the country as a vital public service that needed to keep pace with the nation’s rapid expansion of settled areas and ever-evolving commerce and culture. Thus expenditures on the postal service commonly and understandably have exceeded revenue during its long history, creating publicly acceptable deficits and subsidies. Like the military, it has existed to advance national policies and purposes and was not expected to return a profit like a business enterprise. By 1901, the number of post offices stood at a high of 76,945 (there are 31,000 today). As early as 1863, during the Civil War, the principle of a single uniform rate for mail was adopted so that a letter traveling coast to coast, and to and from rural areas, cost postal customers the same amount as one being delivered within a single city or ham let. In contrast, commercial carriers normally charge customers by the mile. The postal service historically has increased its services based upon the public’s evolving exigencies. Postal money order ser vice began in 1864; special delivery in 1885; postal savings in 1911 (discontinued in 1966); parcel post, C.O.D., and insurance services in 1913; certified mail in 1955; and express mail in 1977. Thus, the postal service sought to respond to changing public needs and did not view itself in conventional commercial terms concerning

budgeting and profitability. Indeed, today in the U.S. a first-class stamp costs $0.55, whereas in Italy the cost (in U.S. dollars) is $3.40; in Denmark $3.22; in Norway $1.20; in the U.K., Germany, and the Netherlands $0.89; and in Canada $0.75. (Consider the pub lic outrage if the price of a first-class stamp in the United States were raised by a dime!) Indeed, adjusted for inflation, first-class and other postal rates have been stable throughout American history. By comparison, in 1914, when the New York subway system began operating, its single-ride fare was 5 cents, and today, 106 years later, it is $2.75. During the same period, first-class postal rates went from $0.02 to $0.55. By 2018, the U.S. Postal Service (USPS) was deliv ering 146 billion pieces of mail to 159 million delivery points, or an average of over 900 pieces to each point each year; 43 million of these delivery points (27 percent) were on rural carrier routes, and 83 percent of mail (letter mail and packages) go to and from households. However, first-class mail volume declined from 104 billion pieces in 2001 to 57 billion pieces in 2018, a reduction of 44 percent, because of electronic bill paying and banking, as well as email and other electronic communication methods. This has resulted in a huge decline in postal revenue. On the other hand, USPS package delivery has increased dramatically because of the growth of e-commerce. However, the idea of the USPS as an agency designed to advance the public good has been under assault from political forces for many years, and the Trump administration has been in the forefront of attacking the USPS as if it simply were an ailing public utility. Indeed, discussions of postal privatization have frequently been conducted within and outside of government, especially by conservative think tanks.61

Letter carriers had organized their national union by 1889. But because postal unions had no bargaining rights regarding wages

61. See Brittany Gibson, “Why Everyone Should Care Who the New Postmaster General Is,” The American Prospect (online), January 13, 2020.

and benefits, they were limited mostly to lobbying Congress for pay and benefit increases or to litigating over statutory rights. When the 1970 strike erupted, the leaders of the several existing national postal unions, representing several “crafts”—e.g., postal clerks, letter carriers, mail handlers, rural letter carriers, etc.—all headquartered in Washington, D.C., where they had been lobbying Congress skill fully over many years, were at a loss over how to respond and were unsuccessful in efforts to persuade their members to return to work.

As for the government, President Nixon threatened harsh conse quences for the strikers if they did not end their strike. He declared a national emergency and sent twenty-five thousand troops into New York City, where they were assigned to “move the mail” so that the stock market, commerce, banking, and Social Security payments would not be crippled. However, the soldiers were unsuccessful, since postal work required technical skills that depended upon prior training and special knowledge.

Relatedly, it might be recalled that in 1894, President Cleve land sent in thousands of federal troops and marshals to break the national Pullman Strike, led by railway union leader Eugene Victor Debs. Cleveland acted on the ground that the strike was interfering with transporting mail by rail. Debs was convicted of violating an injunction against the strike, and it was during his six months in prison, through reading, that he was “converted” to socialism.

There were aides to Nixon who urged him to adopt a “hard line” in dealing with the strikers, including mass arrests. On the other hand, one government official, Bill Usery, an assistant sec retary of labor who was a former organizer for the International Association of Machinists, AFL-CIO, persuaded then Secretary of Labor George Shultz that the strike should be viewed as a national labor dispute rather than a political insurrection, and that Shultz, as labor secretary, should play a mediating role. Shultz and Usery thereafter succeeded in getting Winton Blount, then the postmaster general (he had previously been a nonunion construction contractor

in the South), to meet with the national unions in order to explore a settlement that would help end the strike.

As for the unions involved, because they had internal differ ences but also believed that they needed the support of the entire labor movement in their struggle, they asked AFL-CIO President George Meany to serve as their spokesperson in negotiations. Meany agreed and brought bargaining and legislative experts and lawyers from the AFL-CIO to assist. In addition to dealing with the immediate issues regarding wages, it was hoped that a new regime of progressive labor relations in the postal service might be achieved in the negotiations over postal reform. After many days of negotiations, an immediate retroactive wage increase and other improvements were agreed upon after the strikers had returned to work. These were signed into law, and negotiations over postal reform commenced.

The Postal Reorganization Act (PRA) was enacted into law later the same year, on August 12, 1970, having been negotiated between the White House, the national postal unions, and both houses of Congress. Its provisions declared the newly created United States Postal Service to be “an independent establishment of the executive branch of the Government of the United States.” It was declared “a basic and fundamental service provided to the people by the Government” and to “have as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people.” It declared, inter alia, that no small post office shall be closed solely for operating at a deficit and that as “an employer, the Postal Service shall achieve and maintain compensation for its officers and employees comparable to the rates and types of compensation paid in the private sector of the economy.” It was required to “place particular emphasis upon opportunities for career advancement . . . and the achievement of worthwhile and satisfying careers” for its employees.

As to the specifics of its labor-management provisions, the PRA directed recognition and bargaining for the unions representing its employees on all bargaining issues required under the National Labor Relations Act, subjected the USPS and the unions to the jurisdiction of the National Labor Relations Board for matters relat ing to employee organizing rights and unfair labor practices, and provided that if the parties were unable to reach agreement over contracts through bargaining and mediation, they were entitled to obtain final and binding neutral third-party-interest arbitration of their disputes. The statute did not authorize the negotiation of union shop provisions, however, but did authorize union dues checkoff.

For a number of years following the enactment of the PRA, the postal unions negotiated jointly and even succeeded in negotiating no-layoff provisions for regular employees. And Moe Biller became the president from 1980 to 2001 of a newly consolidated Ameri can Postal Workers Union. Similarly, Vincent Sombrotto led the National Association of Letter Carriers between 1980 and 2002. However, in later years the postal unions went their separate ways in bargaining.

Recently, on January 17, 2020, in response to congressional requests, the Government Accountability Office (GAO) issued a comprehensive report on current postal employee compensation. Among its findings was that in separate collective bargaining with the four major postal unions, the USPS had greatly reduced its wage costs over the last ten years by achieving the right to a secondtier wage scale for newly hired career employees as well as the right to employ large numbers of non-career employees (casuals).

Now employees hired after a certain date would receive starting pay substantially below that of previously hired career employees. For example, according to the GAO, “a city carrier hired in January 2016 would make about $37,640 a year compared to $48,406 a year if hired before the new starting pay agreement” (GAO Report, p. 11). The USPS claims to have saved approximately $2.3 billion

between fiscal years 2016 and 2018 by this change. But adjusted for inflation, the new second-tier annual wage is about the same as the $6,176 per year starting pay for career employees in 1970, the year of the strike.

Further, the overall percentage of non-career employees ver sus career employees in 2018 was 37.5 percent of the overall work force. In 2018, among city letter carriers, there were 178,974 career and 99,036 non-career carriers (36 percent); among postal clerks 130,413 career and 51,137 non-career (28 percent); among mail handlers 39,718 career and 19,020 non-career (32 percent); and among rural letter carriers 76,938 career and 84,936 non-career (52 percent). It has been estimated by GAO that the USPS has saved $6.6 billion between 2016 and 2018 as the result of its employment of lower-paid non-career employees. In its study, regarding hours of postal compensation, GAO found “on average” that

a non-career [casual postal] employee worked 30 more straight hours, 73 more overtime hours, and 23 more night and Sun day hours per year than a career employee, and a lower paid career employee worked a higher number of straight time hours and, depending on the craft, also may work more over time, night work, and Sunday hours than a higher-paid career employee. (GAO Report, p. 15.)

Based upon anticipated retirements of older first-tier employ ees, within the next ten years, postal wages might revert to pre–1970 strike levels, based upon current wage and employment projections.

On January 22, 2020, the USPS settled a national grievance with the letter carriers’ union over its having exceeded the contractually agreed-upon caps on the hiring of non-career letter carrier assistants. The settlement requires the USPS to convert 5,000 noncareer carriers to career status.

For several years President Trump has railed publicly and

privately that the USPS was subsidizing Amazon in connection with a contract for so-called “last-mile” delivery of Amazon par cels by the USPS. On April 3, 2018, he tweeted that “Amazon [is] costing [the USPS] massive amounts of money for being their Delivery Boy.” Then on April 12, he issued an executive order cre ating a Task Force on the United States Postal System, charging it with investigating postal operations and recommending improve ments. The task force’s report was delivered to President Trump by its chair, Treasury Secretary Steve Mnuchin, on December 4, 2018. Among its labor-related recommendations, it proposed that the “USPS compensation [should be removed from] collective bar gaining” on the ground that USPS employees should not be afforded protections and rights not enjoyed by other federal employees. Of course, at the same time the Trump administration has been remov ing the few labor rights enjoyed by those other federal employees. In further support of its recommendation, the task force asserted that applying “private sector collective bargaining law [to the USPS] creates unsustainable labor costs.” Similarly, while the task force acknowledged that “postal workers are more likely to be injured on the job due to the physical and outdoor nature of their work,” as contrasted with other federal employees, it supported reductions in their workers’ compensation entitlements.

In a June 6, 2018, letter to Mnuchin, Senator Bernie Sanders proposed several reforms that he believed would make the USPS thrive and better serve the public for years to come. Among these were allowing the USPS to provide basic banking and financial services in post offices. Sanders asserted that this would help 57 million Americans who have no bank accounts and must rely on “rip-off” storefront check-cashing services and payday lenders. However, proposals for postal banking were expressly rejected in the task force report. Sanders urged other changes, including permitting post offices to provide copying and notarial services, transport wine and beer, and restore overnight delivery. And he offered numerous

other operating and financial reforms designed to keep the USPS solvent and operating in the public interest. Suggestions from others, including from the GAO, have included providing check-in services for those needing it, and collecting data on mobile wireless coverage and air quality.

The Great Postal Strike of 1970 was a powerful lesson for the country and its government. Insofar as postal workers were con cerned, the strike demonstrated that there was a limit on how much abuse they would tolerate before they were forced to resort to self-help to correct intolerable wrongs inflicted upon them at their workplace. This lesson was acknowledged by the strike settlement and the enactment of the PRA in response to an “illegal” strike.

The right to strike and withhold one’s labor is as fundamental a human right as the right to breathe clean air, to drink clean water, to think, and to be heard. Trying to legislate these fundamental human rights out of existence has always been a counterproduc tive fool’s errand (even if sometimes successful). However, at present there appears to be an unrelenting desire on the part of the USPS, the Trump administration, and its allies to place on the shoulders of postal workers the cost of social changes caused by changing technology by reducing their compensation and turning them into disposable parts of a vital two-hundred-plus-year-old public institu tion that has played a critical role in building this nation. Having postal workers be required to subsidize the USPS by reducing their compensation and conditions of employment to marginal levels is equally absurd, and it is contrary to the policies enshrined in our laws and our way of life.

And the idea of “privatizing” the USPS is as absurd as would be the idea of contracting out the military. That any commercial firm would ever decide to provide the services provided to every corner of the country by the USPS—and to either purchase or lease the postal service’s real property and equipment, worth at least $100 billion—is, to say the least, laughable.

Insofar as popularity is concerned, according to a 2018 Pew Research Center survey, the USPS is the American public’s favorite federal agency, with an 88 percent approval rating. The fact that postal employees visit every residence in the country six days each week makes postal workers the human face of the federal govern ment. And local post offices are far more than just the venue for window services and mailboxes in many communities. They often serve as centers of community life, so that frequent USPS threats of post office closings are fiercely resisted everywhere.62 To tear the USPS apart and victimize its employees once again would seem the height of political folly. But political folly, or worse, has never been beyond the imagination of Donald Trump.

62. See the website “Save the Post Office” (https://www.savethepostoffice.com/) for multiple examples.

Employee Refusals to Work in the Face of Coronavirus Hazards

(The American Prospect, March 31, 2020)

the current coronavIrus pandemIc has presented amerIcan workers with previously unencountered on-the-job challenges. Per haps the most threatening to the health and safety of these workers is having to work in jobs that bring them in close contact with large numbers of individuals who may be carriers, or with related unsani tary conditions. Some auto, transit, grocery, and sanitation workers already have taken job actions through their unions or individually to protest and protect themselves from the hazards that this new threat to life and health presents. For example, on March 17, union ized bus drivers in Detroit called a one-day work stoppage. They met directly with Detroit’s mayor, and all of their demands were met. These included not having to collect fares (which have been waived), having passengers enter and leave the city’s buses through rear doors, and establishing improved bus cleaning protocols. Simi lar changes have been adopted in Washington, D.C., and northern California buses. Also, after a “wildcat” strike at three unionized

Michigan Chrysler plants where workers had tested positive for the virus, all Big Three auto manufacturers shut down. And on March 25, Pittsburgh trash collectors engaged in a “wildcat” strike, seeking protective equipment and hazard pay. In February, a unit of Insta cart workers in Illinois voted in a National Labor Relations Board election to have a United Food and Commercial Workers local rep resent them. And on March 28, Vice reported that on Monday, March 30, Instacart workers across the country would refuse to accept orders until the company provided them hazard pay of five dollars per order, issued them safety gear, and improved their paid sick leave benefits. Instacart has about 175,000 employees nation wide and plans to hire 300,000 new employees in the next three months to meet the public’s increased demand for remote shopping. While Instacart claims that its “shoppers” are independent contrac tors rather than employees, a California court issued a preliminary injunction requiring the company to treat them as employees under California law. Instacart is appealing the decision.

In many supermarkets, protections for workers have included the use of gloves, distancing, limiting customer entry, and requir ing credit card payments at checkout counters. In some states, such as Maryland, Michigan, Minnesota, and Vermont, governors have classified grocery workers as emergency responders, entitling them to paid childcare services. Unions in other states are seeking similar treatment for their working members.

In addition, unions such as the Communications Workers of America and the International Brotherhood of Electrical Workers, which together represent about 34,000 employees of Verizon, have negotiated leave of up to twenty-six weeks at full pay if an employee is diagnosed with COVID-19. And lesser amounts of paid leave are being provided at Verizon if employees are told by their doctor to stay home, or if an employee must stay home to provide childcare or care for someone diagnosed with COVID-19. These instances are illustra tive of situations that are being faced by workers all across the country.

But what of unionized workers, as well as those not protected by unions, who consider the current viral health hazards presented at their jobsites not to be properly dealt with by their employers? What if they refuse to work as an act of protest or as protection for themselves and their families? What rights and remedies do such employees have, if any?

The March 26 Detroit Free Press describes a number of such situa tions in which workers are facing the choice of working and possibly getting sick or of staying home and possibly losing their jobs. In some of these cases, employers are not providing their employees with protective equipment, including masks, gloves, and wipes. Michigan Governor Gretchen Whitmer issued a stay-at-home order on March 23, directing that all businesses in the state remain closed through April 13, but exceptions were made for businesses essential to sustain or protect life. These include health care, pub lic safety, food and agriculture, transportation, and public works. Whitmer warned employers not to “play fast and loose with what’s essential and what is not.” And Michigan Attorney General Dana Nessel has advised workers who believe their employer is violating the stay-at-home order to call the police. Moreover, there are claims that at excepted businesses, protections are insufficient. In Chicago, an infectious disease nurse at Northwestern Memorial Hospital was fired after she refused to wear a surgical mask issued by the hospital and instead wore her own N95 mask and urged other nurses to do the same. She has since sued the hospital. And last Saturday, the  Seattle Times reported that an emergency room doctor at a Bell ingham, Washington, hospital was fired for protesting the lack of protections at his workplace. The media has been reporting numer ous instances of threats of discharge made by hospitals in response to employee health-related grievances.

Elsewhere, fifty workers at a Perdue Farms chicken-processing plant in Georgia walked out on March 23 over health and safety con cerns. In this connection, regarding entitlement to unemployment

compensation, employees generally are denied benefits if they have been discharged “for cause” or even have voluntarily quit.

In the face of the workplace complexities created by the pandemic, there are some long-standing federal protections for employees who refuse to work because of hazardous working con ditions. However, these provisions have not been employed nor litigated significantly in the past. They include Section 502 of the Labor-Management Relations Act of 1947 (Taft-Hartley Act), and the Occupational Safety and Health Act of 1970 (OSHA).

Taft-Hartley will be remembered as having severely limited employees and unions from organizing and bargaining. As origi nally enacted in 1935, Section 13 of the National Labor Relations Act (Wagner Act) declared: “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.” But the Supreme Court in 1938, in  NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, ruled that employers were free to permanently replace strikers without violating the law. However, in something of a paradoxical twist in 1947, in Taft-Hartley, Congress, while tightening limitations on strikes, added Section 502, which provides the following:

Nothing in this chapter shall be construed to require an in dividual employee to render labor or service without his consent . . . nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such em ployee or employees be deemed a strike under this chapter.

Under this provision, among other things, if employees refuse to work because of what are “abnormally dangerous conditions,” they may not be subjected to discharge or permanent replacement, as might otherwise be the case.

As for OSHA, it generally requires that covered employers must assure that their workplaces are free from hazards likely to cause death or serious physical harm to employees. These include harm ful physical agents, including viruses. The fact that the coronavirus and COVID-19 are new does not mean that employers have no duty to protect employees from them in every possible way. Further, the Supreme Court in  Whirlpool Corp. v. Marshall, 445 U.S.1 (1980), upheld a Department of Labor OSHA Regulation, 29 C.F.R. Sec tion 1977.12(b)(2), which protects employees from discrimination for refusing to perform work under dangerous conditions. It provides in relevant part, as follows:

Occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no rea sonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the em ployee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory en forcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.

There is no private right of legal action available under OSHA, and the Occupational Safety and Health Administration has a poor record of enforcement. Nevertheless, the thrust of the OSHA

regulations may be useful in other proceedings, such as arbitration, as well as unemployment insurance and workers’ compensation.

The U.S. Department of Labor and the Department of Health and Human Services jointly have issued Guidance on Preparing Work places for COVID-19. 63 And the Centers for Disease Control and Prevention (CDC) has issued Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) as well as a release entitled Information for Health Professionals. Both are avail able online.64 They may also be helpful in establishing proper safety standards.

As employment disputes occur during the current health crisis, issues under the foregoing and other provisions of federal and state law can be expected to arise. Hopefully, the outcomes of such disputes will favor the legitimate expectations of employees that their rights to and on their jobs, as well as their health and family needs, will be considered and protected during these difficult times.

63. See https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf.

64. See https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-busi ness-response.html and https://www.cdc.gov/flu/professionals/index.htm.

Part Three

aLabor Economics

As the previous section makes clear, labor law exists in the context of the world of work that itself resides within distinct industries and enterprises. And these are part of an overall economy that is shaped by unique economic forces. Thus labor lawyers must be knowledgeable in economics as well as law to do their jobs. Here I attempt to examine some of the economic forces that have shaped and will continue to shape the American world of work and beyond, including the wealth of employers such as Jeff Bezos, whose worldwide workforce at Amazon now numbers about 1.3 million and who recently defeated a major union organizing campaign in Birmingham, Alabama; attempted changes in workers’ status from employee to independent contractor by such employers as Uber and Lyft; and the impact upon work and workers through the implementation of artificial intel ligence and robotics.

America’s “Trickle Up” Economy: Some Reflections on Thomas Piketty’s Capital in the Twenty-First Century, or “Will the Clique Inherit the Earth?”

(Martha’s Vineyard Men’s Group, August 5, 2014)

By now, most of you have heard of or read aBout thomas Piketty’s book Capital in the Twenty-First Century, published earlier this year by the Harvard University Press. Recently, Nicholas Kristof described it in The New York Times as the “most unread best seller of all time.” Have any of you read it? Just one! Up until about two weeks ago, when Larry Alpert, who is chair for life of this discussion group, asked me to talk about it, I had not yet cracked it open. It is a dense, statistic-laden tome of some 685 pages, with online appen dixes. To see Professor Piketty himself talk about it, you can go to YouTube. A useful review by Paul Krugman, entitled “Why We’re in a New Gilded Age,” appears in the May 8, 2014, issue of The New York Review of Books, available online.

Piketty’s book clearly is worthy of the phrase that historian Thomas Carlyle used to describe economics, namely the “dismal

science.” It is believed that Carlyle started using this term in response to the “dismal” prediction by the nineteenth-century reverend and scholar Thomas Malthus (1766–1834), who posited that population growth would be limited by famine and disease, leading to what is called a “Malthusian catastrophe.”

Between 1798 and 1826, Malthus published six editions of his Essay on the Principle of Population, incorporating new material in each edition in order to respond to critics. It was Malthus’s overall view that population multiplied geometrically and food arithmetically so that eventually population would greatly outstrip the food supply. You will recall that we touched on this issue when Larry Alpert spoke about famine and genetically modified food some weeks ago. Malthus wrote in response to the optimism of other thinkers, including Rousseau, who was an associate of Malthus’s father. Rousseau advanced views about future improvement and the per fectibility of man and society, views satirized by Voltaire in Candide regarding “the best of all possible worlds.”

Indeed, remembering the Englishman Thomas Malthus is an appropriate segue to introducing a discussion of Thomas Piketty, a Frenchman, for in his own way, he is something of a neo-Malthusian. But unlike Malthus, for whom the growth of population and the growth of food were considered to be out of sync, in Piketty’s case, it is the growth of capital versus the product of labor—namely, wages and productivity—that are not in harmony.

As may by now be clear, Piketty as well as Malthus—and, for that matter, Karl Marx—all are determinists of one kind or another, seeing fairly immutable forces and laws as being in control of the outcome of history. But neither Malthus nor Marx turned out to be right (or at least not yet), so one’s view of any kind of determinism seems to my mind to be somewhat suspect. Nevertheless, like his predecessors, Piketty is a formidable thinker for our time and must be studied, analyzed, and contended with. Also, it is important to note that the quality of his data is far superior to that which was

available to his determinist antecedents. So now to what Piketty actually had to say. First, here is Piketty in a nutshell:

When the rate of return on capital significantly exceeds the growth rate of the economy (as it did through much of his tory until the nineteenth century and is likely to be the case again in the twenty-first century), then it logically follows that inherited wealth grows faster than output and income. People with inherited wealth need save only a portion of their income from capital to see that capital grow more quickly than the economy as a whole. Under such conditions, it is almost inevi table that inherited wealth will dominate wealth amassed from a lifetime’s labor by a wide margin, and the concentration of capital will attain extremely high levels—levels potentially incompatible with the meritocratic values and principles of so cial justice fundamental to modern democratic societies.

So now let’s pick Piketty apart. First, as we know, the wealth of nations, corporations, and people derive from several sources, including natural and physical resources, cash, inherited wealth (which may include natural and physical resources and cash), and earned income. As to earned income, Piketty divides it between income from labor (including wages, salaries, bonuses, and other labor remunerations) and income from capital (namely, rents, divi dends, interest, profits, royalties, capital gains, and other income related to the ownership of capital). Earned and accrued wealth can be saved; invested; spent for houses, durable goods, food, cloth ing, and vacations; paid to the government in taxes; or given to charity or others.

The fundamental driving force increasing inequality—indeed, its formula—is described by Piketty as r being continuously greater than g, where r stands for the average return on capital, expressed as a percentage of its total value, and g stands for the rate of growth

of the economy—i.e., the annual increase in income or output. The disparate historical relationship between these two figures is the fundamental source of Piketty’s conclusions.

Piketty’s most important contribution, and what is new and startling about his book, is not about the difference in income—say, between those 350 corporate CEOs whose annual income is 331 times the $35,000 average income earned by everyone else. Rather, he is talking about the difference in the growth in income from capi tal itself (dividends, rents, profits, royalties, capital gains, etc.), as distinct from the income from labor, which is the basis for his simple formula g > r. Piketty says that the historic annual rate of growth of capital is about 4 to 5 percent, which is greater than the annual income from work, which is historically between 1.5 and 2 percent. Thus it isn’t the difference between high incomes from labor versus low incomes from labor that matter for Piketty (although these inequalities are growing too). Rather it is income from capital versus income from labor that he is focusing upon. And according to Piketty, in the end capital keeps getting larger and larger vis-àvis earnings from labor, which are mostly spent and not saved or invested. This capital is passed on and on from generation to generation, resulting in capital remaining in the hands of a very few, who, says Piketty, can and do buy and control our political systems and governments. Thus he says that we are headed for a future of oligarchical inherited wealth, as never seen before in history, giving the dynastic rich greater power over our economy, our democracy, our politics, and our lives.

Indeed, Piketty is not even talking about our new self-made “robber barons” but rather the inheritors of their wealth, such as, for example, the Walton family, which is worth about $150 billion combined. It was Sam Walton, now deceased, who started Walmart, who put them where they are today. And there are eleven nextgeneration Pritzkers among the Forbes 400. The three Mars family members on the list are fourth-generation. And more and more of

the wealthy are inheritors rather than self-made tycoons. You might call them “billion-heirs”!

At the same time, Piketty recognizes that during the “magical” postwar years, referred to in France as les Trente Glorieuses, the period from 1945 until about 1975, we accepted the notion advanced by President Kennedy among others that “a rising tide lifts all boats.” Instead, Piketty says that, in fact, the rising tide now just lifts the yachts and that the people in the dinghies can’t bail fast enough to overcome the leaks caused by the turbulent economic currents and the tide of unequal distribution of capital.

There have been many recent articles, books, and even mov ies discussing the growing inequality in income and wealth in the United States. These include Nobel laureate Joseph Stiglitz’s The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: W. W. Norton, 2012). Some of you may have heard him lec ture on the subject last summer at the Martha’s Vineyard Hebrew Center. Two other recent books are Hedrick Smith, Who Stole the American Dream (New York: Random House, 2012), and Timothy Noah, The Great Divergence: America’s Growing Inequality Crisis and What We Can Do About It (New York: Bloomsbury Press, 2012). Also, former secretary of labor and presently UC Berkeley Professor Robert Reich did a documentary last year entitled Inequality for All, which was shown in first-run theaters and is now available on Netflix and DVD. So clearly, the issue of income and wealth inequality is rising to the top of public consciousness.

Indeed, in yesterday’s online New York Times, an article appeared written by Neil Irwin entitled “A New Report Argues Inequality Is Causing Slower Growth. Here’s Why It Matters.” The article declares in part as follows:

Is income inequality holding back the United States economy?

A new report argues that it is, that an unequal distribution in incomes is making it harder for the nation to recover from

the recession and achieve the kind of growth that was com monplace in decades past.

The report is interesting not because it offers some novel ana lytical approach or crunches previously unknown data. Rather, it has to do with who produced it, which says a lot about how the discussion over inequality is evolving.

Economists at Standard & Poor’s Ratings Services are the authors of the straightforwardly titled “How Increasing Inequal ity is Dampening U.S. Economic Growth, and Possible Ways to Change the Tide.” The fact that S.&P., an apolitical organiza tion that aims to produce reliable research for bond investors and others, is raising alarms about the risks that emerge from income inequality is a small but important sign of how a debate that has been largely confined to the academic world and left-of-center political circles is becoming more mainstream.

The fact is that the net worth of the median American house hold declined significantly in the last ten years. Hence, according to a recent Russell Sage Foundation study, the inflation-adjusted net worth for the typical American household was $87,992 in 2003 but dropped to $56,335 ten years later, a 36 percent reduction. But for people at the ninety-fifth-highest wealth percentile, their net worth increased by 14 percent over the same ten-year period.

As of last September, according to Forbes, the four hundred richest Americans were worth over $2 trillion. That was up $300 billion from the previous year, or a 15 percent increase. Apparently, the superrich are able to increase their capital at far greater rates than Piketty’s 4–5 percent. When I originally coined a title for these remarks, I said I would talk about the “trickle up” American econ omy. It now looks more like a “gusher.” If you project this kind of increase at 5 percent per annum compounded over the next ten to twenty years, the results are astounding. And remember, we are talking about only the richest four hundred Americans.

The Forbes 400 list starts with Bill Gates at $72 billion, Warren Buffett at $58 billion, and Larry Ellison of Oracle at $41 billion, with the infamous Koch brothers fourth and fifth with $36 billion each.

As you may have heard, Gates and Buffett have started the “Giv ing Pledge,” which is a commitment by some of the world’s wealthiest individuals, including Gates and Buffett, to dedicate a majority of their wealth to philanthropy. As of today, about 125 individuals and families have signed the pledge, including Michael Bloomberg, Eli and Edythe Broad, Charles Bronfman, Larry Ellison, Carl Icahn, Pete Peterson, David Rockefeller, and Mark Zuckerberg.65

How this development affects what Piketty has to say, I’m not quite sure. But it may say something about our democracy because taking the pledge still gives the pledgers control over the disposition of a large part of their enormous assets rather than that disposi tion going to the government through inheritance or other taxes. Going to the government might have a greater impact upon fight ing poverty and achieving redistribution and greater equality than the pledgers’ philanthropy, which might include contributions to ideological causes and groups. For example, Stephen Schwarzman, the CEO of the Blackstone Group, who personally is worth about $10 billion, recently contributed $100 million to establish a Rhodeslike Schwarzman scholarship for study in China. One might argue that those funds might be better spent advancing higher education in the United States, where the student debt is about $1.2 trillion. Whether the contribution to China will advance any of Blackstone’s business interests there I do not know, but the contribution clearly was a tax write-off for Mr. Schwarzman and a significant benefit to the Chinese. By the way, there are now over three hundred Chi nese billionaires, and about eighty-five of them are on the ruling Politburo.

65. For a full list, go to “The Giving Pledge,” https://givingpledge.org/.

This is not to demean the philanthropic impulses of many of the superrich. See, for example, the recent report of the Gates Founda tion, available online. But the massive concentration of wealth in the few clearly places them in a position of power and influence that greatly exceeds that of many nations—and that of their less affluent fellow citizens, who number over 300 million.

It must be noted that the increasing disparity in wealth and income resulting from economic forces is not the only source of inequality that we face. When I spoke here last year, I talked about the impact of the decline of unions and of higher-paying jobs on the wealth discrepancy, so I won’t revisit that now. But they remain a factor.

Another increasingly significant concern is galloping technology. In 1952, a then leading liberal economic pundit, John Kenneth Galbraith, declared that “most of the cheap and simple inventions have been made.” How wrong he was! Here’s my iPad to prove it. Many of you heard Arthur Obermayer’s excellent recent pre sentation here on the current impact of technology on our lives. As Arthur showed us, the implications of the new world of technologi cal and scientific advancement are amazing. And their impact upon the American and world economies are staggering. A recent book on this subject that I would commend to you is The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies (New York: W. W. Norton, 2014) by MIT Professors Erik Brynjolfsson and Andrew McAfee. In it the authors argue that the pace of techno logical change is like no other that we have ever seen before. Simply put, they say that it moves geometrically and exponentially rather than arithmetically and that it will continue to have a cataclysmic impact on society that will require major changes in the way we work and live.

To be sure, this country gradually shifted in about 150 years from a society in which more than half the population was employed in agricultural pursuits, a portion that is down to about 2 percent

today, and it was clearly technological change that was responsible. For example, in the 1930s, before modern agricultural machines were available, it took nine hours for a farmer to harvest one hun dred bushels of corn by hand. Today’s combines can harvest one hundred bushels of corn in under seven minutes.

The authors focus on one innovation that is on the immediate horizon—namely, driverless cars and trucks. Google’s autonomous cars already have logged thousands of miles on our highways and may become available sooner than we think. Today there are more than 3 million truck drivers in the United States and at least a quarter of a million limo and cab drivers, all of whom might be displaced like the coal, ice, milk, and seltzer deliverers, and the telephone, telegraph, elevator, and linotype operators. We have, of course, been through this before, and we survived. But Brynjolfs son and McAfee argue that this time it’s different, especially with robotics in the picture. Reaching outside of their normal areas of expertise, the authors suggest that a negative income tax for those who continue to work is needed in order to ensure a decent stan dard of living for all.

As the political power of the rich increases (think, for example, of Citizens United), and with the help of their Republican and some Democratic allies, the ability of the government to increase taxes progressively so as to achieve greater redistribution between the haves and the have-nots has been significantly diminished. Indeed, in this connection, mention must be made of the Tea Party phenom enon. The Tea Party emerged in 2007 from a number of sources, but many believe that major support has come from the tobacco industry and the Koch brothers, mentioned earlier. It appears to be a loose association of national and local groups that determine their own platforms and programs without central direction. As you know, among its leaders are Ron and Rand Paul, Dick Armey, Sarah Palin, Michele Bachmann, Marco Rubio, and Ted Cruz. The central thrust of the Tea Party is advocacy of reducing

taxes and government spending at the federal, state, and local lev els, and of reducing the national debt. Some polls indicate that one out of ten Americans identify themselves as members. Indeed, it is understandable that when wage earners are unable to make prog ress in increasing their incomes from their jobs (as they have not), seeking to reduce taxes may be seen as a way to increase spendable income. Wages largely have been stagnant since 1973. So clearly, the Tea Party’s presence serves to move more conventional Repub licans and some Democrats rightward.

Further, while presently quiescent, the assault from the Right and the rich over federal and state inheritance taxes, which they pejoratively call “death taxes,” is a step toward expediting the pro cess of increasing the capital of the wealthiest Americans. As for Piketty’s point, it was Winston Churchill who argued that estate taxes were a “corrective against the development of a race of idle rich.” Piketty would assert that they are not so idle—rather that they use their wealth to perpetuate and increase their power and influence.

One of the latest maneuvers seeking to reduce corporate taxes and correspondingly reduce government tax revenue is known as “inversion.” Under this strategy, companies buy and merge with for eign competitors in countries with lower tax rates than those in the U.S. and then reincorporate in the low-tax havens. Walgreens was recently considering such a move, in connection with Alliance Boots, a company that moved from the United Kingdom to Switzerland in 2008 for tax reasons. Alliance Boots pays a Swiss corporate tax of about 20 percent, as against Walgreens’s U.S. corporate tax of 31 percent. Twenty-five percent of Walgreens’s $72 billion in annual revenue comes from the federal government through Medicare and Medicaid. Walgreens’s departure would cost the U.S. billions in lost taxes. And if Walgreens does this, will CVS be far behind? Clearly it would seem that the race to the bottom regarding tax rates is just another way of increasing inequality.

It should be noted that today’s newspapers report that Wal greens has succumbed to pressures and has decided against such a move.66

One interesting aspect of the inequality issue is that discuss ing it has become somewhat controversial, especially in the political arena. In a December 4, 2013, speech, President Obama declared that there is “a dangerous and growing inequality and lack of upward mobility that has jeopardized middle-class America’s basic bargain—that if you work hard, you have a chance to get ahead.” In that speech he also declared that “the top 10 percent no longer takes in one-third of our income—they now take half.” And “whereas in the past, the average CEO made about 20 to 30 times the income of the average worker, today’s CEO now makes 273 times more. And meanwhile, a family in the top 1 percent has a net worth 288 times higher than the typical family, which is a record for this country.”

To Paul Ryan and other Republicans, such talk about inequality is seen as promoting “class warfare” or at least as suggesting a need for the redistribution of wealth, which is a noxious idea to them. So, by the time of the president’s January State of the Union Address, his emphasis shifted from inequality to expanding opportunity, based upon pollster advice. Clearly, the stalemate in Congress and the focus on the coming elections in November have made dealing candidly with inequality impolitic. As a recent New Yorker cartoon quipped, “Politics is the art of making nothing possible.”

A focus on a reaction to economic inequality in America would be incomplete without recalling the Occupy movement, which began in Zuccotti Park in New York City on September 17, 2011, almost three years ago. By October 9, 2011, Occupy protests had taken place in 951 cities across 81 countries and in 600 American 66. A few months after this essay (on December 31, 2014), the merger was com pleted (Walgreens Boots Alliance, Inc.).

communities. But by the beginning of 2012, the protesters had left their sit-in sites or been forcibly removed by police. The political slogan of the movement was “We are the 99 percent” as distinct from the 1 percent. To be sure, the movement was anarchic, disor ganized, and ultimately ineffective. But it did succeed in raising the national consciousness to the gross inequality of income, wealth, and power in the United States.

I might mention briefly that Piketty pointed out that in France in 1789, about 1 percent of the population belonged to the aristoc racy, and that the American 1 percent today and in France during l’ancien régime were “large enough . . . to exert a significant influ ence on both the social landscape and the political and economic order.” Piketty asked, perhaps facetiously, “whether ‘the 1 percent’ had more power under Louis XVI or under George Bush and Barack Obama.”

Further, if you think that Occupy was just an aberration, think about Coxey’s Army in 1894, the Pullman Strike of the same year, the Bonus March of 1932, the San Francisco and Minneapolis General Strikes of 1934, the sit-down strikes in the auto industry, the Poor People’s March of 1968, the Great Postal Strike of 1970, and the Air Traffic Controllers’ Strike of 1981. Remarkably, in the July/August issue of Politico, one of the admitted members of the “.01%ers,” Nick Hanauer, a founder of Amazon and other companies, wrote an article entitled “The Pitch forks Are Coming . . . for Us Plutocrats,” in which he said:

If we don’t do something to fix the glaring inequities in this economy, the pitchforks are going to come for us. No society can sustain this kind of rising inequality. In fact, there is no example in human history where wealth accumulated like this and the pitchforks didn’t eventually come out. You show me a highly unequal society, and I will show you a police state. Or an uprising. There are no counterexamples. None.

It’s not if, it’s when. . . .

The most ironic thing about rising inequality is how completely unnecessary and self-defeating it is. If we do something about it, if we adjust our policies in the way that, say, Franklin D. Roosevelt did during the Great Depression—so that we help the 99 percent and preempt the revolutionaries and crazies, the ones with the pitchforks—that will be the best thing possible for us rich folks, too. It’s not just that we’ll escape with our lives; it’s that we’ll most certainly get even richer.

We need only consider the aborted presidential campaign of Senator Huey Long of Louisiana, the “Kingfish,” who denounced the rich and the banks during the Great Depression and whose motto and campaign slogan was “share the wealth.” Long was assassinated on September 10, 1935 (the year of my birth), about a month after he announced his plan to run in the Democratic primary against Roosevelt in 1936. His progressive program included a net asset tax on individuals and corporations and a cap on income and wealth. You should read his February 23, 1934, coast-to-coast speech on NBC Radio available online (there is an official Huey Long website) to get a sense of his program and vision. It was believed that Long had some 7.5 million followers in the country in 27,000 “Share Our Wealth” clubs. Roosevelt was deeply concerned about Long before he was assassinated; he had said that he needed to take the wind out of the Kingfish’s sails. For his part, like Huey Long, Piketty in the conclusion of his book proposes a tax on wealth that would be adopted worldwide to stem the tide of inequality.

The notion of “the American Dream,” and Piketty’s “take” on it were articulated by A. O. Scott in The New York Times just last weekend:

According to a widely accepted story, the expansion of the middle class—the collapse of older social hierarchies, the

decline of inherited privilege and the rise of a new merito cractic order—unfolded according to something like a natural law. The nature of capitalism, we have been taught to believe, tends toward greater equality, wider opportunity and the level ing of archaic, invidious distinctions based on pedigree. Mr. Piketty throws cold water on this conventional wisdom.67

That movement in the direction of equality has been a central tenet of this nation’s ethos that goes back to its description by Alexis de Tocqueville, who wrote in 1835 in his Democracy in America that “the more I advanced in the study of American society, the more I perceived that the equality of conditions is the fundamental fact from which all others seem to be derived, and the central point at which all my observations constantly terminated.” But presciently, Tocqueville predicted that “an industrial aristocracy might rise from the ownership of labor . . . and might potentially dominate.” Nevertheless, the ideal of equality has persisted in America. Indeed, a famous Herbert Hoover election advertisement in 1928 in The New York Times declared that “the Republican Party is equal ity’s party—opportunity’s party—democracy’s party.” And it also claimed to have “placed the whole nation in the silk stocking class.” The Republicans said in their Hoover ad that they had put the proverbial “chicken in every pot” and “a car in every backyard, to boot.” In that election, Hoover got 58 percent of the vote to Al Smith’s 40 percent. Of course, a couple of years later, as Little Orphan Annie declared in her song addressed to Mr. Hoover in the musical Annie, during the Depression, “Americans didn’t even have a pot.”

I mention Herbert Hoover because he was campaigning on the claimed near fulfillment of the American dream of equality,

67. A. O. Scott, “The Squeeze on the Middlebrow,” The New York Times, August 1, 2014.

opportunity, prosperity for all, and democracy. And it wasn’t until after the Great Depression and the end of World War II that the American economy began to achieve so much for so many. But it seems to have come to a screeching halt in 1980, with the election of Ronald Reagan, and we appear to have been going downhill ever since. And as Piketty shows us, we are moving significantly in the direction of plutocracy and oligarchy. From all of this I am reminded of what Louis Brandeis had to say about our country over one hundred years ago:

We must make our choice. We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.

Postscript

I delivered my Piketty paper in August 2014. It regarded Thomas Piketty’s book, which dealt with the inevitability of the continued growth of inequality in the world and our country, based upon the galloping increase in the size of the accumulated capital of the very few. According to  Forbes, there were 2,755 billionaires in the world in 2020, 660 more than a year earlier. They are worth a total of $13.1 trillion, which is up from $8 trillion a year earlier. The United States leads in billionaires with 724, with China sec ond with 698 (including 71 from Hong Kong). (Does this suggest that even a one-party autocratic state such as China requires a huge capitalist class for it to be able to satisfy the physical needs of its 1.4 billion people?)

From the data it is possible to conclude that Piketty may have underestimated annual overall capital growth at 5 percent. For example, as of September 2013, the 400 richest Americans were collectively worth slightly more than $2 trillion, while today the top

400 (not the very same individuals) are worth more than $3.2 tril lion according to Forbes. This is an average annual increase of better than 15 percent per year but does not account for the fact that changes in the composition of the list of 400 would serve to increase the growth figure, since many members will have dropped off the list because of their losses and new members will have bypassed them and in all likelihood be large gainers. Still, the overall increase appears to be staggering.

The rise in the individual net worth of some of the richest Americans is telling. First, Jeff Bezos, who has been the world’s richest person running since 2018 (then at $160 billion), is listed by Forbes as now owning over $200 billion in assets. In 2013 he had $25 billion and was number nineteen. Between 2013 and today (2021), Bill Gates went from $72 billion to $129 billion in assets, and Mark Zuckerberg went from $85 billion to $117 billion. During the same period, Warren Buffett’s holdings increased from $58 billion to $103 billion, and Larry Ellison’s went from $41 billion to $100 billion. A new entrant to the top of the pile is Elon Musk, who is now number two at $151 bil lion. A year ago he was number thirty-one with $24.6 billion. His one-year increase reflects a 705 percent rise in the value of his Tesla stock.

The point is that the continuing growth in the concentration of capital in the United States and elsewhere serves to increase the tendencies toward oligarchy and the concentration of power and influence of the very few worldwide. Further, these gains continue to come at the expense of the 99 percent, whose power and share of the world’s assets continue to decline.

In my view, the election of Joe Biden to the American presidency in November 2020 and his announced determination to reduce the economic and racial disparities that the United States has too long endured remain leading hopes for strengthening democracy and promoting positive change in our national political direction in the

years ahead. But whether the forces promoting greater equality can compete with the seemingly mechanical increase in the economic power of the very few increasingly seems delusional. “Hope springs eternal. . . .”

Laboring in the New Economy: Sharing or the New Sharecropping?

Back In the early 1960s, when I fIrst started practIcIng laBor law in Washington, D.C., for the Teamsters Union, if I needed to file a brief the next day in Los Angeles, I would dispatch an employee from the mail room to the airport, who would give my package and a gratuity to a flight attendant about to leave for L.A.

The flight attendant would deliver the package to a waiting Team ster at LAX, who would take my brief to the courthouse for filing. This was before the fax machine was patented and commercialized by Xerox in 1966. And it also was before FedEx was founded by Frederick Smith in 1971.68 And needless to say, the postal service did not have overnight delivery then.

When we file briefs these days from our office in Washington, D.C., we do it with a quick click of a mouse to any federal court house in the country. And we can obtain pleadings that have been

68. Smith, by the way, who is Yale, 1966, conceived of Federal Express in an eco nomics paper he wrote. He remains FedEx’s CEO today.

filed in courts across the country online through a system called PACER. Who can possibly oppose such innovation and productiv ity increases, notwithstanding that they may disrupt or replace some earlier technologies as well as jobs. We do not consider ourselves Luddites.

This is hardly new. After all, between 1910, when our popula tion was 92 million, and today, when it is 321 million, the absolute number of farm workers declined as the result of technological change from 12.8 million, or 33 percent of the workforce, to under half a million, or 0.4 percent of the workforce. And this happened notwithstanding three and a half times as many mouths to feed in the United States today, and even more elsewhere. Our farm work ers migrated from those sunup-to-sundown, seven-days-a-week jobs in the fields to, ultimately, five-day, forty-hour jobs in factories. (Remember the bumper sticker slogan “Unions: The Folks That Brought You the Weekend.”) More recently, further changes have reduced our production jobs from 15 million to about 9 million between 1998 and today.

Of course, the impact of invention and innovation upon employment is that in the wake of the disruption, a heavy price is paid by working people and their families, who are ill prepared by our society to absorb the losses because of the absence of coher ent education and labor policies, and economic planning. We leave this mostly to the market. Aside from the millions of farm workers who were displaced, consider the millions of miners as well as gar ment, textile, shoe, and other manufacturing workers who struggled through disruptions such as the Great Depression. But ultimately there were gains too. Better jobs were created, hours were reduced, and income rose.

More recently, technological changes have taken a huge toll on the once-robust American labor movement. The United Mine Workers of John L. Lewis and Walter Reuther’s mighty United Auto Workers are shadows of their former selves.

This is not to say that the decline of American Labor is solely the result of innovation and technological change. Modern union busting, starting with President Reagan’s discharge of eleven thou sand air traffic controllers in 1981,69 a determined corporate effort to undermine the operation of the National Labor Relations Act and Board, and the persistent instilling of fear of reprisal among workers for their unionization efforts, have contributed significantly to Labor’s decline. Indeed, in 1980, I published a law review article entitled “From Brass Knuckles to Briefcases,” describing the thenemerging deunionization industry. Demonizing, villainizing, and busting unions is still as American as Scott Walker. As one of my union officer clients once told a Senate investigating committee, “You red-baited me in the fifties, and now you’re mob-baiting me in the eighties.”

I spoke here two years ago on Labor’s decline and its adverse consequences for our democracy and our people (who after all are our most valuable resource), and I won’t repeat myself. Instead, I propose to discuss several aspects of the so-called “new economy” and how Labor and its friends are trying to cope with its disruptive impact.

Recently, technological innovation has taken a new dislocating turn with the development of what is misnamed the “sharing,” or “gig,” economy, with its so-called “on-demand employment.” The “sharing” consists, for example, of people driving their own cars during odd hours, hauling passengers, packages, and meals for fees, and renting their apartments and spare rooms to strangers who are traveling away from home. (As some preschoolers recently told a Washington Post reporter, “It’s trading, not sharing.” Sharing, these youngsters saw as giving away what you had and really didn’t need.) Two of the most familiar current examples of the “gig” economy

69. Wisconsin Governor Scott Walker recently said that “this was the most signifi cant foreign policy decision” of his lifetime.

are Uber (which has landed on the Vineyard) and the adjunct inva sion of college campuses by short-term faculty members. More on these developments later.

To begin with, the decline of unions, employee job insecurity, and weak or indifferent governmental regulation of the workplace have permitted employers to accomplish at least three of their major objectives vis-à-vis the workforce over the last thirty-five years. First, employers have stagnated and suppressed wages and benefits, including private pensions, by, among other things, fail ing to raise the federal minimum wage and undermining unions and collective bargaining. Second, they have misclassified workers as independent contractors rather than treating them as employees. Finally, they have deprived employees of overtime pay by treating more and more of them as salaried rather than as hourly employees. Alone, or in combination, these three conditions may be described as common “wage theft,” inflicted by the employer class and its mercenaries upon the working class.

FLSA

While the nature of work and employment appear to be chang ing, the law that principally governs the workplace continues to be the Fair Labor Standards Act (FLSA). As you will recall, in 1938, as a major part of the New Deal, Congress enacted the FLSA as a minimum-wage law, which started at twenty-five cents an hour. The FLSA also outlawed child labor and provided that workers would be entitled to time and a half for work per formed in excess of forty hours in each workweek. One of the major motivations for this overtime premium during the Great Depression, with its continuing high unemployment rate, was to encourage employers to hire more workers rather than pay ing for overtime, as well as to reduce overwork. Of the FLSA, President Roosevelt said in his 1938 State of the Union message

that “we are seeking, of course, only legislation to end starva tion wages and intolerable hours; more desirable wages are and should continue to be the product of collective bargaining.” This was an acknowledgment of the union perspective that the FLSA was enacted simply to establish a floor for wages; it was not intended to create a standard.

From its adoption over three-quarters of a century ago until today, the FLSA has been a center of continuing contention. It has struggled to survive through many Congresses, Supreme Courts, administrations, and administrators, for whom it has been a central focus of competing and conflicting interests and interpretations. Indeed, it continues to be one of the most heavily litigated statutes on the books. Just ask the jurists and lawyers in our midst.

Efforts to improve and update it have also been at the center of controversy. First is the minimum wage itself. It has remained at $7.25 for the last six years. The Obama administration sought to raise it to $10.10 in three stages but was thwarted by Republican opposition in the Senate. Indeed, as you know, many Republicans are free marketeers who oppose a minimum wage in principle, pre ferring to leave wages to the market’s “invisible hand.” In my view, others are simply indifferent.

So, what does the failure to increase the national minimum wage since 2009 mean for those it was intended to protect? For each year since 2009, during which the minimum wage has remained unchanged, rising prices and inflation have reduced the buying power of wages. Thus the $7.25 minimum wage today buys at least 10 percent less than it bought in 2009, so that minimum-wage work ers suffered a significant decrease in real wages, purchasing power, and quality of life. Based upon fifty forty-hour workweeks, $7.25 yields $14,500 before deductions. The federal poverty guideline for a family of four is $24,500. Over 3 million workers, or about 4 per cent of hourly workers, earn the minimum wage or less, because of exemptions. And millions more earn under $10 an hour.

Clearly, the continued stagnation and depression in wages in general serves to exacerbate the problem of increasing inequality in the United States, which I discussed here last summer when we considered Thomas Piketty’s book, Capital in the Twenty-First Century.

Things appear to have gotten worse since then.

In April 2015, Senator Patty Murray (D-Wash.) and Congress man Bobby Scott (D-Va.) introduced the Raise the Wage Act of 2015, which would increase the minimum wage to $12 in five steps by 2020. The minimum would thereafter be indexed to the growth of the median wage. The bill would also gradually increase the subminimum wage for tipped workers, which, incredibly, has remained at $2.13 an hour for almost a quarter of a century, principally as a result of the lobbying efforts of the National Restaurant Association. Not to be outdone, a couple of weeks ago, Democratic presidential candidate Bernie Sanders introduced legislation proposing a $15 minimum wage by 2020. As usual, opponents emphasize the poten tial job losses of such increases, while proponents minimize or deny them.

The failure of Congress to raise the national minimum wage since 2009 has had a significant impact at the state and local level in causing a push toward higher minimums. Under the FLSA, states and municipalities are not preempted from adopting minimumwage laws that exceed the federal law’s bottom line. And pressure for these increases has come from below.

In November 2012, a limited strike of about two hundred fastfood workers took place in New York City. This was the opening shot in a continuing nationwide struggle by low-wage workers and their allies that has come to be known as the “Fight for $15.”

Sponsored principally by the million-and-one-half-member Service Employees International Union (SEIU), there have been many successful statewide and municipal campaigns in the interim to raise the minimum wage. The first of these was in the Seattle suburb of SeaTac, but major cities such as Seattle, New York, Los

Angeles, San Francisco, Washington, D.C., and a number of states have since then increased their minimums. On April 15 of this year, there were over two hundred demonstrations across the country by more than sixty thousand low-wage workers seeking to raise wages. And these protests appear also to have caused some employers of low-wage workers to grant increases.

Another area in which there has been significant slippage in upholding wage and hour standards has related to workers’ entitle ment to receive pay for work performed in excess of forty hours each week. Under the FLSA, employees who perform true executive, supervisory, and/or administrative functions are generally subject to exemption from the overtime provisions of the law. This means that their salaries cover all of their working hours so that they do not receive any extra compensation for work in excess of forty hours per week, as hourly employees do. However, the law also provides that even if someone qualifies for this so-called white-collar exemption, if they earn less than an amount established under reg ulations adopted by the secretary of labor, they are entitled to be paid for overtime at time and a half. Since 2004, this amount has been $23,660 per year, or $455 per week. Thus otherwise-exempt employees who earn less are entitled to overtime, but those who earn more are not.

For example, a retail store manager who might earn $35,000 per year today is not entitled to any extra pay for hours worked in excess of forty per week but may nevertheless be required to put in many unpaid hours in excess of forty. In many instances, nonsupervisory employees who are entitled to overtime earn more than their supervisors, which is often a cause of discontent.

A problem with the system is that because of inflation, the number of managerial employees entitled to receive overtime pay has decreased significantly since 2004. To remedy this problem, on July 6 of this year, Secretary of Labor Tom Perez proposed to increase the overtime threshold to $970 per week, or $50,440 per

year, effective next year. A public comment period on the proposed regulations closes on September 4, 2015. It is estimated that 13.5 million workers would benefit from the proposed new regulations.70 It should be remembered that the original purpose of a premium for overtime was to inhibit overwork and to encourage additional hiring and job creation. Employers, of course, are in high dud geon71 over the proposal.

Within the last decade or so, a new development has occurred within the business community, described by some analysts as the “fissured workplace.”72 Under this scenario, workplaces have been splintered into component parts so that when you enter a hotel, for example, the doors and parking garage, concierge, newsstand, restaurants, gym and spa, security, window cleaning, management, hiring, reservations, etc., may be contracted out and operated by entities other than the owners of the hotel, who may themselves run nothing at all. Employees are often at a loss to identify their actual employer within this corporate shell game. Indeed, many employees receive their paychecks from labor brokers such as Manpower, who lease them to other companies who then direct their work. All of these sophisticated maneuvers have as an immediate object avoiding unionization and making more money for owners and investors at the expense of rank-and-file workers and society. David Brooks

70. See Ross Eisenbrey and Lawrence Michel, “The New Overtime Salary Thresh old Would Directly Benefit 13.5 Million Workers,” Economic Policy Institute, August 3, 2015 (online).

71. Hudibras by Samuel Butler, part 1, canto 1(1663): When civil dudgeon first grew high, And men fell out, they knew not why, When hard words, jealousies, and fears, Set folks together by the ears, And made them fight, like mad or drunk, For dame Religion, as for Punk [prostitution]; . . .

72. See David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Cambridge, MA: Harvard University Press, 2014).

speculated on this recently in The New York Times, saying that “the virtualization of ownership insulates the privileged from the ‘dev astating consequences’ of their decisions,” including their lacking any concern about the living and working standards and futures of their employees.

One might compare the indifference of these unseen virtual employers with the signatories to an agreement entered into recently by the owners of the unionized Waldorf Astoria, which was sold for $1.9 billion to Chinese interests who plan to downsize it and turn much of it into condos. The optional severance-pay settlements for the longtime Hotel Employees and Restaurant Employees Union members average about $149,000 each. Similarly situated employ ees in a comparable nonunion hotel would have been entitled to nothing more than a pink slip.

Independent Contractor

An additional ploy in this employer structural shift has been increas ingly to designate bona fide employees as so-called “independent contractors.” Indeed, the U.S. Department of Labor estimates that 10–30 percent of the workforce presently is misclassified as inde pendent contractors. And it has begun a crackdown under the administrator of the department’s Wage and Hour Division, David Weil. On July 15, 2015, Weil issued a Wage and Hour Administra tor’s Interpretation, which reiterates the prevailing court decisions, established administrative standards, and rules for determining the status of employee versus independent contractor.73

73. The fifteen-page, single-spaced document is available online. Briefly stated, among the factors that must be considered in their totality, are the following:

1. Whether the individual is dependent on the employer or is engaged in a business of his own;

2. That employees are not permitted to waive employee status, and that selfserving statements of independent contractor status are not controlling;

3. Whether what the individual does is integral to the employer’s business;

On July 30, 2015, shortly after the Weil memorandum was issued, the Wall Street Journal reported that

hundreds of startups that rely on freelancers to clean houses, run errands, deliver food, and ferry people are under siege. Lawsuits are threatening to reclassify their contractors as em ployees, which could drive up labor costs an estimated 20–40 percent. That has put an investment chill over these startups and prompted some founders to switch their business models.

Among the companies mentioned by the Journal are Luxe Valet, a national urban car-parking service, delivery startups Shyp and Instacart, and Homejoy, a home-cleaning company. Sadly, Homejoy threw in the towel on July 31. But Luxe Valet, Shyp, and Instacart appear to have switched to the “employee” model.74 Personally, I find it incredible that venture capital firms, including Google Ventures and Andreessen Horowitz, could have invested in such firms in the face of such obvious and major legal exposure. But as the Wall Street Journal commented:

Entrepreneurs and venture capitalists alike developed a fond ness for “1099 workers,” referring to the tax form they file,

4. Whether the individual’s managerial skills affect his opportunity for profit and loss;

5. How the individual’s investment in the job compares with the employer’s investment;

6. Whether the work involved requires special skill and initiative; and

7. The nature and degree of the employer’s control over the individual and the work.

The totality of these “economic reality” factors must be considered in each case, and it is well established that a narrower preexisting common law “right-of-control” test does not apply.

74. Carolyn Said, “Employee vs. Freelancer? Choice Is Based on Outdated Laws,” San Francisco Chronicle, August 8, 2015.

because they don’t require costly outlays such as health insur ance, payroll taxes, travel reimbursement, training programs, or severance pay.

A Wall Street Journal consultant estimated that 17.9 million people worked as independent contractors in 2014 for fifteen or more hours per week.

Uber

So now let’s look specifically at Uber. As you may know, it was started in the summer of 2010 in San Francisco by a couple of inventive startup entrepreneurs with a few cars, a handful of drivers, and an app. After permanently entering your credit card information on the app, you are able to summon a car to your location with the press of a button. The cost of the trip with tip included is charged to your credit card, so you don’t have to reach for your wallet as you exit the vehicle.

Venture capital began flowing in, and Uber started expanding to other cities and countries. Five years later, it operates in 311 cit ies in 58 countries and provides more than a million rides each day. It has also begun to provide lunch and other delivery services in certain cities. The company was recently valued at $51 billion. As stated recently by The Economist (June 13, 2015):

Over time, Uber hopes to become so popular and ubiquitous that many city dwellers give up their cars and all the cost and hassles of parking, maintenance, insurance, and the like. In several cities Uber is trying to entice people to use its carpool ing service instead of public transport and is subsidizing the cost of it, to entice drivers to join. Currently, San Franciscans can use Uberpool to go anywhere in the city for a mere $7.

[My wife used it recently to get from downtown San Francisco

to the airport.] Like Google, Uber is taking an interest in driv erless cars, hoping one day to dispense with drivers and offer its services even more cheaply.

The Nietzschean Übermensch of Uber is Travis Kalanick, one of its two founders and its CEO, who just turned thirty-nine. He is quoted as saying that “as an entrepreneur, I try to push the limits. Pedal to the metal.” Forbes estimates his net worth at $3.5 billion.

During Uber’s five-year life, it has intentionally ignored munici pal taxicab and other regulations and has fought efforts to inhibit its growth. As for its drivers, they are recruited with their cars, and they receive the proceeds of their fares from Uber minus the company’s 20 percent cut. Uber sets the fares, which generally are lower than those of taxis but sometimes fluctuate based on traffic conditions. I assume some of you, like me, have been hit with its “surge” rates.

The drivers are treated by Uber as independent contractors rather than as employees. Indeed, Uber claims to be a technol ogy rather than a transportation company. Thus no deductions are made from fees paid to drivers for federal and state income and payroll taxes, workers’ compensation, unemployment insurance, Social Security, and Medicare, and Uber does not pay the employer share of such levies.

Understandably, Uber has raised the ire of states, municipali ties, taxicab commissions, and taxicab owners and drivers in many cities here and around the world. And it has been banned in many cities and countries, including Spain. Recently it defeated an effort by New York City Mayor Bill de Blasio to limit its growth in New York, where it already has some twenty thousand drivers on the streets. Uber hired David Plouffe, who was President Obama’s cam paign manager in 2008 and was later a White House advisor, as its senior vice president for policy and strategy. Plouffe has been running interference for Kalanick in his campaigns against his many public and private adversaries and detractors. And Uber is said to

employ about 160 lobbyists in the United States. Kalanick views its growth and expansion much like a political campaign.

As a matter of fact, while I was drafting my presentation, I received an email from Uber, asking me to “Speak Up for Uber” in Massachusetts, because in Uber’s view, “Taxi special-interest groups are trying to pass a statewide law to force Uber out of Mas sachusetts.” Needless to say, I did not sign on.

The critical issue of whether Uber’s drivers, and those of its principal competitor, Lyft, are employees or independent con tractors is presently in litigation and can be expected to be in that limbotic state for a while. The first ruling on this issue came in June of this year, in which the California Labor Commission held that a single Uber driver was its employee and awarded her $4,000 in expenses. Under Uber’s model, its drivers are responsible for gas, auto maintenance, and insurance. If they are employees under Cal ifornia law, these expenses would be Uber’s. The case is on appeal. Two other cases raising the employment issue are presently pending in the United States District Court in San Francisco. Both cases had been brought under California rather than federal law but were removed to federal court by the defendants. In these cases, the plaintiffs’ lawyers (who are from Boston) represent a handful of drivers of Uber and Lyft and seek certification of the cases as class actions. Two federal judges have ruled that the litigation could not be decided by the courts on motions but require jury trials. Also, the class action issues remain to be resolved. Trials are expected to commence early next year. I might add that efforts by FedEx to treat some of its drivers as independent contractors have been challenged successfully in court in recent years, resulting in a $228 million judgment. And these decisions are being relied upon by the plaintiffs in the Uber-Lyft litigation. Stay tuned.

In my view, Uber and its competitors represent an impor tant innovation and addition for providing needed transportation services to the public, which is not being well served by existing

underfunded, unreliable, and outmoded public transportation sys tems that are vital to our people and our economy. Think train wrecks, bridge collapses, and commuting delays. This is all the more reason why Uber and its peers cannot be permitted to avoid responsibility for paying taxes, providing their employees with well-recognized rights and benefits of employment, insuring the safety of vehicles, and providing safe and efficient transportation services to the public. These enterprises clearly are “affected with a public interest,” and like other public utilities, they must be subjected to rational and intelligent governmental oversight. Legal gimmickry cannot be permitted to frustrate pub lic and national interests. It remains for communities to develop and impose appropriate standards and regulations for these newly emerging enterprises.75

Please don’t misunderstand me. I, too, have and use an Uber app. And I am not against Uber or other part-time flexible work or freelancing in principle. There is nothing that says that all employment must consist of full-time regularly scheduled jobs, often involving unwanted compulsory overtime and without per sonal, family, or sick leave. Part-time work has provided much that is beneficial to workers and their families in terms of flexibility of schedules and providing income. And making greater use of per sonal resources such as cars makes sense, too, in terms of economy and efficiency. The problem comes when part-time work is used as a method for undermining regular full-time employment, living wages, and predictable schedules, as well as vital public programs and benefits, such as Social Security, Medicare, unemployment insurance, workers’ compensation, and the like—and when such work provides only meager substandard compensation for people’s

75. For a fuller discussion of these and related infrastructural issues, see Rosabeth Moss Kanter’s latest book, Move: Putting America’s Infrastructure Back in the Lead (New York: W. W. Norton, 2015).

valuable time. Hopefully, pending litigation and possible legislation may remedy some of these problems and regulate and rationalize this part of the new economy. Senator Mark Warner of Virginia has been discussing such issues recently.76

There is a Freelancers Union of some 250,000 members, which seeks to address many of these questions.77 It has conducted a sur vey recently that shows that about 53 million Americans engage in some form of freelancing.

Finally, government involvement in facilitating and regulating casual irregular employment is being tried in Britain and elsewhere in the world. A pressing need to make irregular work more accessi ble, rewarding, and legitimate has been recognized especially among people living on the margins of society and the economy, such as single mothers or the elderly and the partially disabled. A study commissioned in Britain by the government has shown there to be 13.7 million people, 22 percent of the population, who desire and could provide odd hours of work each year. A pool or virtual hiring hall of such casual on-call workers might be created and provided to employers under regulated conditions, which might include edu cation and training that would lead to more regular employment.78

Adjuncts

The recent shifts to new structures in employment relationships have not bypassed academia. The growth in the number of adjunct, part-time, non-tenure-track, limited-contract faculty has grown dramatically in recent years because of higher educational costs and

76. See Mark Warner, “Asking Tough Questions about the Gig Economy,” Washing ton Post, June 18, 2015.

77. See its website, https://www.freelancersunion.org/.

78. See Wingham Rowan, “Irregular Work for the 21st Century: A Model from Britain?” Aspen Journal of Ideas, November 17, 2014.

a reduction in public support. There are now well over 1 million contingent instructors, and the number is growing. This does not include those at for-profit institutions. The adjuncts now constitute a majority of college and university faculty. Full-time tenure-track positions are presently 30 percent, and in decline, while “just-intime” part-time faculty are being hired at a rapid pace. By way of comparison, in 1969, only about 3.3 percent of faculty appoint ments were off the tenure track. As one observer of the adjunct scene has written:

Their jobs are defined by low pay, limited instructional re sources, tenuous employment security, and a complete lack of institutional support for their own research and writing. Contingent faculty has become a subset of the new working poor—the subset with PhDs.79

Adjuncts often have to cobble together a meager living out of separate courses taught at different institutions, for which they are paid very little. Too often their office is in their car.

I should mention, by the way, that Uber commissioned a recent study of the demographics of those who drive for it. It was done by Alan Krueger, a Princeton economist and former chair of the president’s Council of Economic Advisors. Krueger found that 10.8 percent of Uber’s drivers had postgraduate degrees, so it may be that some of them are adjuncts who are moonlighting for Uber. Incidentally, Krueger found that 40 percent of Uber’s drivers have college degrees.

It is then no wonder that adjuncts are turning to unions for help in improving their lot. For example, the SEIU won an NLRB elec tion at George Washington University in Washington, D.C., a few

79. Justin Miller, “When Adjunct Profs Go Union,” The American Prospect, Summer 2015, 46.

years ago, and after the usual legal battles, a contract was agreed upon, raising compensation for teaching a single course from $2,700 to around $3,400. The contract also included provisions protecting job security. Success at GW paved the way for union vic tories at American University, Georgetown, Howard, UDC, and other area schools. Other unions, such as the American Federation of Teachers, the United Auto Workers, and the United Steelwork ers, are actively engaged in adjunct organizing on college campuses across the country. Hopefully, unionization may be able to provide adjuncts with better pay; benefits, including health care; job security; and greater professionalization of their working academic and intellectual lives.

Conclusion

In George Orwell’s novel 1984, he imagined that by the year 2050, the language Newspeak would have been fully adopted in the fic tional totalitarian state of Oceania as a tool to limit and distort freedom of thought and speech. Newspeak terms often are trans posed to reverse their meaning. Thus freedom would mean “slavery,” and more would mean “less.” So, what can we say now about the “sharing economy”? Is it not simply Orwellian Newspeak, meaning “greed is good” and “sharing is grabbing?”80

The Summer 2015 issue of The American Prospect, a favorite pub lication of mine, deals in greater depth with many of the subjects I touched upon this morning. See especially a piece by Professor Jeffrey Sachs of Columbia University, in which he said:

With a growing pie, the winners in the new machine [and robotic] age—including capital owners of the new machines

80. See Natasha Singer, “Twisting Words to Make ‘Sharing’ Apps Seem Selfless,” The New York Times, August 8, 2015.

plus the skilled workers—could readily compensate the losers and still leave everybody ahead (a bargain that economists call a Pareto improvement [Vilfredo Pareto, 1848–1923] relative to the situation without the new machines). Yet our political systems, now drenched in special-interest campaign financing and the lobbying of self-interested billionaires, has increasingly rejected the idea of redistribution. Today’s mega-winners tell the losers, “Tough luck, that’s just progress.”81

However, if work in America is to be satisfying, productive, remunerative, and meaningful, as some of us believe it ought to be, we will have to find a way of making true sharing of the fruits of our labor a reality in the years to come.

81. Jeffrey Sachs, “How to Live Happily with Robots,” The American Prospect, Sum mer 2015, 37; cf. Peter Georgescu, “Capitalists, Arise: We Need to Deal with Income Inequality,” The New York Times, August 7, 2015.

Where Americans Work (in Millions)

Office and administrative support 21.6   Sales and related 14.2   Health care and support 12.0   Food preparation and serving 12.0

Management, business, and financial 11.0   Production 9.0

Transportation and material moving 9.0 Education, training, and library 8.5

Construction and extraction 5.3

Installation, maintenance, and repair 5.2

Building and grounds and maintenance 4.4

Personal care 4.1 Computer and math 4.0 Protection 3.2

Architecture and engineering 2.5 Community and social service 2.0

Arts, entertainment, media, and sports 1.8 Life, physical, and social sciences 1.1 Legal 1.0

Farming, fishing, and forestry 0.5

Source: U.S. Department of Labor, Bureau of Labor Statistics (2015)

AI and Robotics in the Twenty-First Century:

A Tsunami Without a Safety Net

In an 1883 essay entItled the rIght to Be lazy, paul lafargue, a French Marxist who was married to Karl Marx’s daughter Laura, wrote clairvoyantly but somewhat prematurely and naively:

Our machines, with breath of fire, with limbs of unwearying steel, with fruitfulness, wonderful inexhaustible, accomplish . . . with docility their sacred labor. And nevertheless the genius of the great philosophers of capitalism remains dominated by the prejudice of the wage system, worst of slaveries. They do not yet understand that the machine is the saviour of humanity, the god who shall redeem man from the sordidae artes [dirty work] and from working for hire, the god who shall give him leisure and liberty.

It seems clear that those nineteenth- and twentieth-century machines that Lafargue extolled never succeeded in meeting his

hopes and expectations of emancipating man from the drudgery of toil. Apparently, the owners of those machines had other out comes in mind. But now we appear to be entering a new period of advanced mechanization and automation, propelled by artificial intelligence and robotics, which offers some renewed hope of ful filling Lafargue’s dream. In this essay I propose briefly to examine these developments in an effort to explore and understand these new possibilities, and what man might make of them, or they might make of him.

AI

Artificial intelligence (AI) has a history that may be familiar to some of you. It was the subject of two movies, namely The Imita tion Game (2014) and Breaking the Code (1996), both of which deal with the life of an Englishman, Alan Turing, and his achievement of breaking the Nazi “Enigma” code during World War II. He did this by developing a machine called the Bombe at Bletchley Park, a secret British cryptography intelligence installation near London. Turing’s machine proved itself capable of generating alternative settings that decoded changing German secret mes sages and codes. His work is credited with ending World War II two to four years early. Turing completed his PhD thesis in 1938 at Princeton, entitled “Systems of Logic Based on Ordinals.” Later, in 1950, he published a paper entitled “Computing Machinery and Intelligence,” which addressed the question “Can machines think?” Today his “Turing test” is intended to determine whether humans and AI are, or are not, distinguishable. At a recent AI conference, the Turing test seems to have been passed when an AI-driven Google robotic assistant named Duplex booked res taurant and hair salon reservations for unsuspecting callers. The robot threw in a few random “ums,” “ahhs,” and other verbal fill ers to lend itself credibility. So, soon there may be fewer shouts of

“Agent” by callers like me, when we are speaking to robots, like our friend Julie on Amtrak.

Tragically, as both Turing films relate, Turing was charged criminally in England in 1952 with “gross indecency” for being gay. He avoided prison by agreeing to inhuman hormone treatments. He died at age forty-one in 1954 of cyanide poisoning, which was ruled a suicide. Turing is generally considered to be the father of AI. He has been honored posthumously by the Crown.

A more recent demonstration of AI occurred in the 1990s, when an IBM supercomputer known as Deep Blue played a pair of chess matches with world chess champion Garry Kasparov. The first match was won by Kasparov in 1996 and the second by Deep Blue in 1997. A documentary entitled The Man vs. The Machine (2014, available online) describes the 1997 match. Deep Blue’s vic tory was seen as a demonstration that AI was surpassing human intelligence, in that it could defeat a human world chess champion. Kasparov is today a strong proponent of AI, and in 2017 he wrote a book entitled Deep Thinking: Where Machine Intelligence Ends and Human Creativity Begins. He recently remarked that “today, you can buy a chess engine for your laptop that will beat Deep Blue quite easily.” Kasparov also commented that the reason that machines can out play humans in chess is that humans are, simply put, humans. They are prone to mistakes, becoming tired, and coping with pressures and emotions, while machines are being produced that are much closer to “perfection.” And machines can absorb, manipulate, and store millions of times more information than humans can. Humans die, taking much of what they knew with them, while machines live on, virtually forever.

Think about comparing human drivers of cars and trucks with self-driving vehicles. Of course, mistakes by the latter (especially those causing death, as occurred in Tempe, Arizona, in March of this year) at first blush will not be tolerated, while human driving errors are taken for granted and, while we try to limit them, are acceptable.

Consider that in 2017, there were 40,100 traffic fatalities in the U.S., when our population was 325 million—or more than 100 deaths each day. The highest number ever of such fatalities was 54,589 in 1972, when our population was 209 million—or 150 each day. And it is estimated that nine out of ten of such fatalities were due to human rather than mechanical error. So there has been substantial improve ment, demonstrated by a decline of deaths over the years. But we don’t yet know what comparable figures might be if and when selfdriving vehicles are universal, with human error eliminated. Time will tell, or maybe AI will. Meanwhile, companies such as Lyft, Uber, and Waymo, as well as automakers such as GM and Toyota, are spending billions on developing self-driving vehicles.

On this very point, a recent RAND Corporation study entitled “The Enemy of Good: Estimating the Cost of Waiting for Nearly Perfect Automated Vehicles” is highly instructive. RAND asked the question, “How safe should highly automated vehicles (HAVs) be before they are allowed on the road for consumer use?” RAND compared situations in which such vehicles were fully deployed when their performance was 10 percent better than the average human driver, with a model where performance was 75–90 percent better. It concluded that both in the short and long runs, more lives would be saved, and injuries avoided, in the tens and hundreds of thousands, by deployment in the former case—i.e., 10 percent better, rather than waiting until 75–90 percent better has been achieved. RAND, nevertheless, concluded as follows:

Deploying HAVs when their safety performance is just better than that of the average human driver may be too permissive given social expectations about the safety of robots, machines, and other automated systems, but waiting for improvements many times over or waiting for perfection may be too costly. Instead, a middle ground of HAV performance requirements may prove to save the most lives overall.

This is the type of question that it will be difficult for policy makers to resolve in the future, based in part on public opinion and public tolerance.

As to another AI system, in 2011 IBM’s question-answering computer, Watson, competed on the TV quiz show Jeopardy! against two legendary Jeopardy! champions. Watson won the firstplace prize of $1 million, which was donated to charity. IBM announced in 2013 that Watson’s software system would be used for management decisions at Memorial Sloan Kettering Cancer Center in New York City in connection with lung cancer treatment. And many other innovative uses of Watson already are being employed in other areas worldwide. Today, companies such as Macy’s, Staples, GEICO, and H&R Block are using Watson technology for various purposes.

In the case of H&R Block, Watson is now assisting the com pany’s 70,000 tax professionals at its 10,000 branches in the United States, where 11 million people file their tax returns. Block had to input vast amounts of text and data, including 74,000 pages of Internal Revenue Code provisions and regulations, as well as vast amounts of Block data accumulated over six decades. Some 60 percent of the 140 million Americans who file federal income tax returns presently seek help in doing so. Tax preparation is a $200 billion annual industry. H&R Block has a 75 percent retention rate of clients, which, with Watson’s help, it hopes to increase. Some of you may recall, however, that Donald Trump boasted during his presidential campaign that his tax reforms would put H&R Block out of business. In fact, however, from what I’ve read about the new tax law, if you can get your return onto the promised “postcard,” there will be plenty of worksheets required to fill it out. H&R Block appears unconcerned.

I already have described the success of computers in defeating a great chess champion. More recently, success was achieved by a computer program named AlphaGo, which consistently defeated

champions in the complex Asian game of Go. But chess and Go are games that provide perfect information to the computer so that it is able to know and anticipate all of the millions of possible moves of its opponents.

But in 2017, a more far-reaching AI achievement was attained when an AI application, or algorithm, known as Deep Stack defeated eleven professional poker players in Texas Hold’em poker. The reason that this accomplishment is so significant is that poker is the quintessential game of imperfect information because the com puter does not know which hole cards its opponents are hiding. And it is a game in which there are more unique situations than there are atoms in the universe. Deep Stack relies upon intuition, which needs to be trained and retrained during each phase of a game. So despite the bluffing and small tactics of deception in Texas Hold’em, the computer came out the ultimate winner in over forty-four thousand poker hands, involving eleven pros.

In fact, human decision makers similarly must make decisions without perfect information all the time, and they must rely upon hunches and other “unscientific” methods to make up for such lack of information. Thus Deep Stack’s poker achievement augurs well in assisting humans to make better decisions of all kinds in the future, even without complete information. This is the difference between inductive and deductive reasoning.

Robots

Next, let’s look at robots for a moment. When I was in junior high school back in Brooklyn in 1948, one of my precious, and prescient, social studies teachers had us read a play by the great Czech writer Karel Čapek, entitled R.U.R.: Rossum’s Universal Robots. It was writ ten ninety-eight years ago, in 1920. Čapek was an important artistic and literary figure in Czechoslovakia between the wars as well as an anti-communist and anti-fascist liberal political leader who was

close to the great Czech leader Jan Masaryk. I reread the play for the first time in seventy years for the purposes of this talk.

Čapek’s play is remarkable in many ways, one of which is that it is responsible for the origin of the word robot. Čapek attributed his use of the word to his brother Josef, an artist and writer, who suggested it to him. The term derives from the Czech word robota, meaning “forced labor” or “drudgery” or “servitude,” which is related to the work that had been performed by serfs for their lords during feudalism.

The idea of an artificial human being has ancient roots. Even in Greek mythology, as well as in ancient Egypt, China, and Renaissance Italy, the idea of a so-called automaton was known. Da Vinci sketched a plan for a humanoid mechanical knight in 1495. And Mary Shelley’s and Mel Brooks’s Frankenstein monsters, as well as S. Ansky’s Dybuk, are even more familiar.

When in 1940, at age five, I attended the New York World’s Fair in Flushing Meadow Park, I saw the Westinghouse robot, Elek tro, which was seven feet tall, weighed 265 pounds, and could walk by word command, speak seven hundred words, smoke cigarettes, blow up balloons, and move its head and arms. It was sort of a huge Wizard of Oz Tin Woodman, played by Jack Haley. (Remember Harold Arlen’s “If I Only Had a Heart” from the movie that opened in 1939.) Indeed, the Čapek play ends with a male and a female robot falling in love.

The play R.U.R. involves a country where lifelike robots have been invented and are being mass-produced to replace human workers. The “rub” in the play comes when there is a revolt by the soulless robots, who plan to wipe out humanity and take over the world. Here’s a quote from one of the robot promoters and producers in R.U.R. about robotization:

Within the next ten years Rossum’s Universal Robots will produce so much wheat, so much cloth, so much everything that things will no longer have any value. Everyone

will be able to take as much as he needs. There’ll be no more poverty. Yes, people will be out of work, but by then there’ll be no work left to be done. Everything will be done by living machines. People will do only what they enjoy. They will live only to perfect themselves . . . [T]hen the subjugation of man by man and the enslavement of man by matter will cease. Never again will anyone pay for his bread with hatred and his life. There’ll be no more labor ers, no more secretaries. No one will have to mine coal or slave over someone else’s machines. No longer will man need to destroy his soul doing work that he hates.

Karl Marx and Paul Lafargue, take note.82

A more recent projection of a robotized future is provided by Paul Dumouchel and Luisa Damiano, as declared in their recent book that describes the advantages of robots over human workers:83

Unlike human workers, robots do not become tired (although they do sometimes break down); they do not complain; they are never distracted in the course of performing their duties; they do not go on strike; they never have a hangover on Monday morning. . . . [They] cost less. They are often more efficient and more precise than human workers. They have no need for retirement plans, health insurance, or legal rights. We want robots to have all the useful qualities that masters insist upon in their slaves, bosses in their employees, commanders in their soldiers; and we want them to have none of the weaknesses, none of the failings, and, above all, nothing of that irrepress ible tendency to willful insubordination and independence of mind that is found in almost all human workers.

82. This year celebrates Marx’s two-hundredth birthday.

83. See their Living with Robots (Cambridge, MA: Harvard University Press, 2017).

A not unexpected additional development in robotics today are sex robots, both male and female. Think of one of those attractive department store mannequins coming “alive,” with moving parts, as a companion and playmate. Your fertile, and well-developed, male imaginations, aided by a visit to the “sex robot department” at Google, will provide you with all the details, including pricing. Think of Ovid’s Pygmalion, who carved a statue of a beautiful woman who thereafter came to life.84

I have added as an appendix to this essay a listing of YouTube entries where you can watch robots at work and play, doing such things as surgery, producing cars, laying brick, milking cows, mov ing packages in warehouses, running on two and four legs, playing soccer, etc.

The Past

Despite their novelty, both today’s AI and robotics can be seen as continuing developments in ideas and practices that have their antecedents in industrial life going back to the late nineteenth century. It was then that Frederick Winslow Taylor began to apply theories and practices of industrial management that emphasized efficiency and increasing productivity from workers. Scientific management is often still referred to as “Taylorism.” In 1913, Vladimir Ilyich Lenin described Taylorism as a “‘scientific’ sys tem of sweating” more work from laborers. Of course, thereafter, the Soviet Union, under both Lenin and, later, Stalin, embraced Taylorism warmly, as well as even much harsher methods of indus trial compulsion. In a speech given in 1919, after seizing power in Russia, Lenin declared: “The possibility of socialism will be determined by our success in combining Soviet rule and the Soviet

84. On the other hand, see Sherry Turkle, “There Will Never Be an Age of Artifi cial Intimacy,” The New York Times, August 11, 2018.

organization of management with the latest progressive measures of capitalism . . . [including] the study and teaching of the new Taylor System and its systematic trial and adoption.”85

Of Taylor, sociologist Daniel Bell, in his classic 1956 essay, Work and Its Discontents: The Cult of Efficiency in America, said: “He couldn’t stand to see an idle lathe or an idle man. He never loafed and he’d be damned if anyone else would.”86

Actually, the term scientific management was popularized in 1910 by Louis Brandeis, then still a crusading Boston attorney (he went on to the Supreme Court in 1916), who argued before the Interstate Commerce Commission that the railroads should not be permitted to raise rates in the face of their operational inefficiencies and that they could instead increase profits through adopting scientific man agement. On the other hand, as to his employer clients, Brandeis urged them to adopt scientific management efficiencies, but he did so while also urging them to share the resulting increased profits with their employees. In addition, he sought to achieve year-round employment for workers instead of their being subjected to seasonal layoffs, and he was a strong advocate of worker and union rights. According to Taylor, workers who performed repetitive tasks tended to work at the slowest rate that would go unpunished. This he called “soldiering,” which is still used today to describe “gold bricking,” malingering, goofing off, shirking, or slacking. Taylor described “soldiering” as “the greatest evil with which the working people . . . are now afflicted.” I am reminded of the song “Oh, How I Hate to Get Up in the Morning” in Irving Berlin’s musical This Is the Army, which goes “and then I’ll get that other pup, the guy who wakes the bugler up, and spend the rest of my life in bed.”

In addition to Taylor, there was the work of his rival, Frank

85. Richard G. Olson, Scientism and Technocracy in the Twentieth Century: The Legacy of Scientific Management (Lanham, MD: Lexington Books, 2016), 62.

86. Bell, p. 6.

B. Gilbreth, along with his wife, Lillian Moller Gilbreth, who spe cialized in time-motion studies of workers’ movements, designed to introduce plant and worksite efficiencies. (You may remember the Gilbreths as the parents of a large and very undisciplined New Jer sey family in the book, and later film, Cheaper by the Dozen.) One of the methods of addressing the perceived slow and inef ficient speed of work was the assembly line and the “speedup.”

Think of Charlie Chaplin engaged in repetitive work on the pro duction line in his movie Modern Times. And today the assembly line in chicken-processing plants in this country, which employ a quarter million workers in 174 plants, is far worse than that faced by Chap lin. Each year, about 100 workers die, and there are 300,000 work injuries in the domestic poultry industry. As put by Debbie Berkowitz, who was with President Obama’s Labor Department:

In my work at the Occupational Safety and Health Adminis tration, I witnessed the dangers: poultry workers stand shoulder to shoulder on both sides of long conveyor belts, most using scissors or knives, in cold, damp, loud conditions, mak ing the same forceful movements thousands upon thousands of times a day, as they skin, pull, cut, debone, and pack the chickens. The typical plant processes 180,000 birds a day. A typical worker handles 40 birds a minute.

In September 2017, the poultry industry’s National Chicken Council petitioned the U.S. Department of Agriculture to eliminate the maximum chicken processing speed of 140 birds a minute on the ground that foreign competitors process chickens at more than 200 a minute. In January of this year, the NCC petition surprisingly was even denied by the Trump Agriculture Department. At present there is a similar proposal pending to speed up hog processing in plants. But, as usual, I digress.

Predictions

I have suggested earlier that one aspect of AI is dramatically improved predictability of outcomes.87 Regrettably, however, AI is not particularly useful at predicting its own impact upon the world, which remains highly speculative and unpredictable. Nevertheless, a number of mavens have made predictions about the future impact of AI. Let me share a few with you:

• Alan Turing predicted that machines will “outstrip our feeble powers” and “take control.”

• Sundar Pichai, the CEO of Google, has predicted that AI will have a “more profound impact on society than fire or electricity.”

• Vladimir Putin recently told Russian schoolchildren that “the future belongs to artificial intelligence” and that “whoever becomes the leader in this sphere will become the ruler of the world.”

• And former Treasury Secretary Lawrence Summers predict ed that by 2050, “we may have a third of men [in the U.S.] between the ages of 25 and 54 out of work.”

The McKinsey Global Institute predicted that by 2030, up to 375 million people, which is 14 percent of the global workforce, may have their jobs automated out of existence by AI and robotics. This may not include automating a part of a job, as in the rela tionship of ATMs to the job of a bank teller. Indeed, the two may presently be doing much of the same job, but there is no question that ATMs have reduced the need for tellers. You might be inter ested to know that there are about half a million bank tellers in the

87. See Ajay Agrawal, Joshua Gans, and Avi Goldfarb, Prediction Machines: The Simple Economics of Artificial Intelligence (Boston: Harvard Business Review Press, 2018).

United States today whose mean hourly wage is $13.89 and whose mean annual wage is $28,880.

Indeed, it’s hard to realize that ATMs turned fifty last year. In fact, however, this year banks are rolling out a new generation of ATMs with larger, digitally enabled screens akin to tablets, which will provide almost all the services human tellers provide, as well as other new technology, such as connecting ATMs to iPhones.

JPMorgan Chase has more than 16,300 ATMs and 5,300 branches in the U.S., with 45 million digital users, many of whom use live tellers as well. Bank of America has 15,900 ATMs and 4,600 branches. Its new ATM will be called XATM, or “Extreme ATM,” at least for a while. We shall see how many tellers survive the XATMs.

Please note, too, that McKinsey was not predicting how many jobs would be created by AI and robotics. But many will, and are, being created rapidly in programming, data science, equipment production, installation, and maintenance. Indeed, at the moment, there is a scarcity of people to fill these jobs, with more available jobs than available people to fill them.

McKinsey also predicted that about 32 percent of today’s U.S. workforce of 166 million will have to leave their present occupational categories over the next twelve years. And they will be occupying many jobs that did not exist before. Indeed, since 1980, before the advent of the personal computer and the internet, PCs have created close to 20 million jobs.

Despite its achievements, critics of AI abound. Some say that AI has yet to master the understanding and the determining of cause and effect. Where all the facts and possibilities are present, as in chess, there appear to be no mistakes, but where they are not, mis takes are bound to occur, say these critics.88 And others, including

88. See Judea Pearl and Dana Mackenzie, “AI Can’t Reason Why,” Wall Street Jour nal, May 18, 2018, and Gary Marcus and Ernest Davis, “A.I. Is Harder Than You Think,” The New York Times, May 18, 2018.

Henry Kissinger,89 argue that while AI may have an advantage over man in absorbing vast amounts of data and reaching conclusions therefrom, it lacks the human ability to learn and apply history, social science, philosophy, ethics, and human ingenuity, experience, and judgment to resolving problems.

Still others argue that AI discriminates against minorities, women, and the poor because the data that it analyzes is skewed to begin with. To put it in an old formulation, “garbage in, garbage out.”90

There is hardly an industry or country today in which AI and robotics are not being employed and are having an impact. Educa tion, government, warfare, agriculture, science, law enforcement, manufacturing, hospitality, transportation, communications, and health care are several broad categories in which AI and robotics are having a greater and greater influence. It would be impossible in the time permitted to examine them all, but I’ll just look briefly at health care as an example.

For the 7.6 billion people living on earth today (up from 3 bil lion in 1960 and 1.6 billion in 1900), in addition to clean air, water, sufficient nutritious food, education, clothing, and shelter, adequate available health care is an essential ingredient of a humane human existence. And, organized as we are politically into large and small nation states and smaller political units, and economically into vast global corporations, smaller commercial entities, and NGOs, the task of providing health care to the world’s people is falling more and more to a partnership between government and business, as well as with the actual human providers and deliverers of health

89. See Henry A. Kissinger, “How the Enlightenment Ends,” The Atlantic, June 2018.

90. See Safiya Umoja Noble, Algorithms of Oppression: How Search Engines Reinforce Rac ism (New York: New York University Press, 2018) and Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor (New York: St. Martin’s Press, 2018).

services, such as doctors, nurses, EMT personnel, aides, technicians, administrators, etc., who are becoming increasingly larger essential cogs in a huge worldwide health care wheel. Indeed, employment in health care in the United States is about 19 percent, exceeding both retail (10 percent) and manufacturing (8 percent) employment.

The World Health Organization tells us that in its seventy-year existence, human longevity has increased by twenty-five years, but also that more than half the world’s population presently lacks adequate health care. In this context, the introduction of AI and robotics to the multi-trillion-dollar global health care industry is presently in progress at an increasing rate.

As in many of the areas that we have discussed this summer, such as international trade and health care manpower, China, with its 1.4-billion population, is engaged in a huge effort to build its national health care system with the help of AI and robotics. Indeed, with its undemocratic political structure and economic controls, the Chinese government appears better able to move vast national resources in a direction that seeks to meet its people’s actual health care needs without having to accommodate itself to corporate and other political pressures, as appears to be the case in our country. Only last month in China, a nationally televised com petition between highly trained doctors and a robotic doctor named BioMind was conducted to promote AI in Chinese medicine. The test related to the detection of brain tumors.

China’s medical system is deeply stressed and overloaded in the big cities and is weak, failing, corrupt, or nonexistent in rural areas. AI and robotics are seen by the Chinese government as a way to jump-start its highly inefficient health care system. So the govern ment is throwing billions into this long-term effort.

BioMind was created as a joint venture by a prestigious Chinese hospital and a Singaporean tech company. The project began about eight months ago, when tens of thousands of medical images were fed into the robot. This was followed by a period of what is called

“deep learning.” Once BioMind was prepared, it took on twentyfive top specialists regarding their respective abilities to detect brain tumors. The competition was presented on national TV like a glitzy game show. BioMind bested the doctors handily in both of the com petitive rounds. In round one, the robot answered 87 percent of the questions correctly, with the doctors scoring 66 percent. In round two, the score was 83 percent to 63 percent in favor of the robot.

I might add that it has been reported that a programmed robot in China achieved a score of 96 percent in a medical licensing examination. Do you think AI might cut down on those four years of medical school?

AI and robotization are spreading into many areas of medicine in China, such as diagnosis, surgery, and health monitoring through wearable devices. It should be mentioned that China’s worldwide leadership in medical technology is a matter that has deeply con cerned the American government. Indeed, Trade Representative Robert Lighthizer so testified before Congress this year.

Another recent illustration of AI’s skill at diagnosis occurred in London, where researchers from Google’s DeepMind subsidiary, University College London Hospital (UCH), and a large British eye hospital developed software that was able to diagnose more than fifty eye ailments that equaled the diagnosis of eight ophthalmolo gists 94 percent of the time.

A major issue being confronted in such diagnostic areas is whether AI will be permitted to make medical decisions indepen dently or whether doctor involvement will still be required. On this point, in April the FDA approved the first AI-powered program that makes clinical decisions without doctor intervention. The software is designed to detect an eye disorder known as diabetic retinopathy, which affects 30 million Americans. The software delivers a negative or positive result, without the necessity of a physician’s review.

This spring, the National Institutes of Health rolled out the All of Us Research Program, seeking to enlist 1 million volunteers from

all walks of American life and racial and ethnic groups who are will ing to provide their medical records, have their genomes sequenced, and provide regular blood samples and vital signs. In addition, the volunteer’s physical activity and eating habits may be recorded and studied. This will be the largest health study ever conducted, cre ating a “biobank” of data designed to provide new information and insights about how to treat chronic illnesses and learn more about disease prevention. Many other governments and health care providers worldwide are engaged in similar studies, although of a much lesser magnitude.

Health Care and Employment

While technology promises to make providing health care more effective and efficient, the fact that there is a huge unmet need for care has caused experts to conclude that employment in what is being described as the “care sector” will continue to grow rather than decline in the years ahead. Further, the fact is that most jobs in the care sector require that those providing care and those being cared for must be in the same place at the same time—that is, doc tor’s offices, hospitals, nursing homes, etc. These involve jobs that cannot be outsourced to foreign countries, as are call centers or manufacturing plants. To be sure, some administrative work, as in insurance processing, the reading of X-rays, or the manufacture of drugs and health equipment, may presently be outsourced, but for the most part, care employment is located at the point of providing the care. Further, while robots are being introduced in hospitals and elsewhere to do routine deliveries and other tasks, much of care work is unpredictable and is not amenable to robotization, although some efforts in this direction are underway as well. As a matter of fact, of the twenty jobs that the United Nations has declared to be least likely to be replaced by automation, fourteen of them are in the health care field.

And the workers needed to fill these jobs are in high demand worldwide. Mostly this is so in the low-wage end of such employ ment, especially insofar as care for the growing number of advanced-aged individuals throughout the world are concerned.

In this country, at the end of June of this year, there were 6.7 million job openings with close to 2 million in health-care-related positions. And there were 5.5 million unemployed persons looking for work. The reason for this discrepancy has many explanations, but a major one is that those looking for work do not have the skills to fill the positions involved, which are rapidly changing in job content and requirements, often because of changing technology. Thus improved training programs are essential if our workforce can be positioned to perform the newly created jobs that advanced technology is producing.91

I mentioned earlier that human error accounted for most of the more than 40,000 annual deaths from auto accidents. But many of you might be surprised to learn, as I was, that a recent Johns Hopkins study, led by Dr. Martin Makary of the Hopkins Medical School, concluded that more than a quarter of a million people in the United States die of medical mistakes annually and that such mistakes are the third-largest cause of death, after heart disease and cancer. Other studies have estimated the figure to be as high as 440,000. Of course, physicians, coroners, and medical examiners seldom list medical error as the cause of death. Dr. Makary defines a death due to medical error as one that is caused by inadequately trained staff, error in judgment of care, a system defect, or a preventable adverse effect. This includes computer breakdowns, mix-ups in medications administered, and undiagnosed surgical complica tions. While there are many recommendations for remedying this

91. For more detailed examinations of work in the technological future, see Confronting Dystopia: The New Technological Revolution and the Future of Work, edited by Eva Paus (Ithaca, NY: ILR Press, 2018) and Darrell M. West, The Future of Work: Robots, AI, and Automation (Washington, DC: Brookings, 2018).

situation, the advent of better medical record keeping, patient involvement, and the application of artificial intelligence are seen as important additions to coping with this serious problem. from what I have just described, it seems clear that AI and robot ics, despite their incredible benefits, have the potential for causing substantial disruption to the American economy—and steady and stable employment, in particular. We know how devastating and disruptive the movement of our economy from farming to industrialization was between 1880 and 1940. And Joe Bowers described for us a few weeks ago the severe impact of the economic meltdown of 2008/2010. So the final question I propose to look at is how prepared are we to cope with the potential adverse impact of the new technological revolution that AI and robotics portend.

And for this I go back to my talk here a few years ago upon the publication in 2014 of Thomas Piketty’s Capital in the Twenty-First Century, in which he described the incredible process of the smallest one-tenth of 1 percent of the population’s increase in both wealth and power and the corresponding impoverishment of the lower half. Over the last several years, the inequality has only become worse. Indeed, the bottom line is that the ability of a society to withstand broad economic disruption depends on the economic resources available to the many to cushion the blows, including its safety nets, as well as government leaders prepared to deal with the new realities. A couple of us may remember the breadlines of the Depression and maybe even FDR’s second inaugural address in 1937, in which he observed “one-third of a nation, ill housed, illclad, ill-nourished.” It was in that speech in which he said that we needed “to find through government the instrument of our united purpose to solve for the individual the ever-rising problems of a complex civilization. . . . For, without that aid,” we were, he said, “unable to create those moral controls over the services of science

which are necessary to make science a useful servant instead of a ruthless master of mankind. To do this” he continued, we know “that we must find practical controls over blind economic forces and blindly selfish men.”

Sounds like an appropriate prescription for our present day as well.

As for the continuing growth in inequality, and the increased impoverishment of most of the people in this country, let me relate the findings of Matthew Stewart, in an article in the June issue of the Atlantic, entitled “The 9.9 Percent Is the New American Aristoc racy.” Stewart concludes that people with a net worth of roughly $1.2 million or more are in the top 9.9 percent economically, and that about $10 million in assets puts one in the top 1 percent. Today, the top one-tenth of 1 percent, consisting of 160,000 households, owns 22 percent of the nation’s wealth, and the next 9.9 percent owns 55 percent. Thus, together the top 10 percent owns 77 per cent, or over three-fourths of the nation’s wealth. And what about the other 90 percent? Today they own the remaining 23 percent of the wealth, but that’s down from 35 percent in the mid-1980s. And remarkably, all of their lost 12 percent went to the top one-tenth of 1 percent, with the next 9.9 percent just holding its own. Further, there is no sign that this trend of the upward movement of national assets will not continue. Indeed, in the last ten seconds, Jeff Bezos, the founder and owner of Amazon, made more money than the median employee of Amazon makes in an entire year. According to Time magazine, in the first four months of this year, Bezos’s wealth increased by $275 million each day, for a total increase in wealth of $33 billion in those four months.

Also, the compensation of the CEOs of top U.S. firms has sky rocketed in recent years so that in 2017, they averaged $18.9 million, compared with $62,000 for the typical worker in the same industry. This is a ratio of 312 to 1. Indeed, since 1978, CEO compensa tion has increased 1,070 percent, compared with just 11 percent for working people.

And when you consider the impact of the 2017 Republican tax law favoring corporations and the rich, the disparity between the rich and everyone else will be even more staggering in the years to come. The old neoliberal maxim about a rising tide lifting all boats does not appear to be holding water.

But you may be saying to yourselves at this point, “Unemploy ment is presently under 4 percent, so why should we assume that it will rise again to the 10 percent it hit in October 2009 or worse?” In fact, however, our problem today and in the future is and will be a crisis in the creation of good jobs with a reasonable amount of job security and health and retirement benefits. Indeed, today America’s typical worker earns around $44,500 a year, which is not much more than was earned in 1979, adjusted for inflation. Almost 80 percent of Americans say they live from paycheck to paycheck, and 40 percent say they could not raise $500 in cash for an emer gency. To me, this is not the way most of the citizens of the richest country on earth ought to be living.

In response to all of the foregoing, many thinkers from the political Right, Center, and Left have proposed the idea of univer sal basic income (UBI) to ensure minimum income security for all. The proponents have included Milton Friedman, Richard Nixon, Dr. Martin Luther King Jr., Barack Obama in his Nelson Mandela Lecture in Johannesburg in July, and many others. Needless to say, a discussion of UBI would require a separate session here, but let me simply refer you to a recent New York Times book review by former Secretary of Labor Robert Reich, entitled “What If the Govern ment Gave Everyone a Paycheck?” in which Reich discusses two of several recent books on this subject.92

In my view, one reason such a progressive idea will not come to pass is because the current generation of FDR’s “blindly selfish men” will not permit it. Indeed, one of them presently is the occupant of

92. See The New York Times Book Review, July 9, 2018, p. 1.

the White House. On why not, see Joseph Stiglitz’s review on page 1 of the August 26, 2018, New York Times Book Review of Anand Giri dharadas’s new book, Winners Take All: The Elite Charade of Changing the World. I would be remiss if I didn’t plug the new book of my Pulitzer Prize–winning friend Steve Pearlstein, due out September 25, entitled Can American Capitalism Survive? Why Greed Is Not Good, Opportunity Is Not Equal, and Fairness Won’t Make Us Poor. Finally, if I needed a closing line, it would be “Be prepared. Tsunamis sink almost all the boats.”

Appendix

The following videos, except for number 12, are all available on YouTube.

illustrations a

This photograph of Michael Harrington and Irving Howe appeared on the cover of the New York Times Magazine on June 17, 1984, in connection with a featured conver sation between them entitled “Voices from the Left.” Harrington died at sixty-one in 1989. Howe died at seventy-two in 1993. They were two of the leading spokespeople in the United States for democratic socialism from the mid-1950s until their deaths.

Max Lerner was a Brandeis University faculty leader in the university’s early days and its “ambassador” to the outside world of politics, law, journalism, culture, and entertainment. I learned about Brandeis from reading Lerner’s col umns in the then liberal New York Post while I was in high school, and I applied as a result. I became close with Max during my senior year as his driver on his weekly commutes to and from Logan Airport, and I worked on his monumental America as a Civilization. He was one of several of my Brandeis faculty mentors.

John L. Lewis was the president of the huge and powerful United Mine Workers union from 1920 to 1960, here shown delivering a speech to assembled supporters. I received this photo as a gift from my longtime friend and comrade John “Jack” Her ling, who for many years was a labor reporter and author in Washington, D.C. I first met Jack in the early sixties at press conferences where he peppered Hoffa and other labor leaders with probing questions. He is seated facing Lewis in the photo. Jack died at age eighty-eight in 1994.

A spontaneous “wildcat” strike of over 250,000 postal workers occurred in major cities in the United States in March 1970 over substandard wages and working conditions. Participation in the strike was a federal criminal offense that could result in fines and imprisonment and permanent job loss. However, the impact upon the economy, the stock mar ket’s functioning, and the support for the strike by the labor movement brought the Nixon administration to the bargaining table, resulting in a settlement that provided wage and benefit increases and enactment of a law that gave postal workers the permanent right to collective bargaining. This March 30, 1970, Time magazine cover illustrates the postal strike situation.

Before beginning his career as the first Jewish Supreme Court justice (1916–1939), Louis Brandeis, pictured here as part of Andy Warhol’s 1980 Ten Portraits of Jews of the Twentieth Century series, was involved in advancing protective labor laws. Thus, in 1908 he argued and won Muller v. Oregon in the United States Supreme Court, establishing a state’s right to limit the working hours of women; he mediated a major strike in the women’s garment industry in New York; he advised both labor and man agement on the value of collective bargaining, mediation, and arbitration; he encouraged his management clients to adopt pro gressive and generous employment policies that he developed; and in 1907 he established a nonprofit life insurance company, Savings Bank Life Insurance, which still exists.

This photograph by Carol M. Highsmith is of a 1936 mural by the prolific Ameri can artist Reginald Marsh (1898–1954), mistakenly titled Sorting the Mail. Located in the William Jefferson Clinton Federal Building in Washington, D.C., it depicts postal workers engaged in the process of moving sacks of mail that are being dropped down

chutes for distribution, opening, and ultimately “sorting” the contents. In my law prac tice I litigated cases about which postal “craft” and corresponding union was entitled to do such work. Today mail volume is decreasing rapidly because of email, automa tion, and artificial intelligence, thereby reducing the size of the postal workforce.

Herbert Marcuse, satirized here by David Levine as a revolutionary, was born to a Jewish family in Berlin in 1898. After becoming a member of the distinguished Frankfurt School of social scientists, he left upon the rise of Hitler in 1933 and emi grated to the United States. During World War II, he worked at the Office of Stra tegic Services (predecessor to the CIA) as an expert on Nazism and Soviet Marxism. After the war, he returned to academia and came to Brandeis in 1954 as a professor of philosophy and politics, where he became a favorite of students (including me). While there, he continued to expound upon and expand his social and political theo ries in his teaching and writings. Marcuse is often regarded as the father of the “New Left” of the 1960s, a term he disclaimed. He died at eighty-one while on a speaking tour in Germany in 1979. There are several illuminating Marcuse interviews and lectures on YouTube.

Paul Robeson is shown here at one of his visits to Camp Kinderland, where I spent my summers from 1947 to 1950 (see pp. 191–206). The son of a runaway slave, he was born in 1898 and grew up poor in Princeton, New Jersey. A brilliant student, he won a scholarship to Rutgers University, where he was elected valedictorian of his class, was an All-American football player, and was a singer and actor. He went on to law school at Columbia University while playing in the National Football League. Thereafter he had a successful career in theater, movies, and as a singer. At the same time, he became a national and international civil and human rights advocate and leader. Throughout his life he suffered vicious racism, and then, during the Cold War, persecution by the federal government and others because of his pro-Soviet sympa thies. He died of ill health at seventy-seven in 1976.

This photo was taken in March 1965 at the funeral mass for Viola Liuzzo, a longtime civil rights activist, mother of five, and wife of a Detroit Teamsters business agent. She was murdered by Ku Klux Klan members while participating in a Selma-toMontgomery, Alabama, civil rights protest march led by Dr. Martin Luther King Jr. Seated with Dr. King are Teamsters president James R. Hoffa (second from right) and Teamsters executive vice president Harold J. Gibbons (center).

This September 6, 1963, LIFE magazine cover depicts the two principal architects of the August 28, 1963, March on Washington for Jobs and Freedom, A. Philip Randolph, president of the Brotherhood of Sleeping Car Porters, and Bayard Rustin, Randolph’s deputy and longtime civil rights and antiwar activist. Randolph had threatened such a march in 1940 and 1947, but called them off when President Roosevelt ordered fair employment practices in defense industries and President Tru man integrated the military, which had been segregated going back to the Revolu tionary War. A quarter million people attended the 1963 march, at which Dr. Martin Luther King Jr. delivered his famed “I Have a Dream” speech.

I obtained a copy of this silkscreen by Jacob Lawrence, titled “The Swearing In,” by contributing to Jimmy Carter’s presidential campaign fund in 1976, and I received permission from the Jacob and Gwendolyn Lawrence Foundation to make copies for attendees at a party celebrating President Obama’s inauguration in 2009. It focuses on the reverence that attaches to the peaceful transfer of power during a presidential inauguration, which contrasts sadly with the bizarre inauguration of Donald Trump in 2017, for which $107 million was raised privately—twice as much as for any prior inauguration—as well as with Trump’s failure to appear at President Biden’s inaugu ration in 2021 and his claim that the election was stolen from him.

By the end of Donald Trump’s first year in office, it was clear that his anti-Mexican, anti-Muslim, anti-Black, and other minority racist hostility, his antagonism to a free press, and his misogyny were of monumental proportions, requiring public sanction. Thus, my friend and Martha’s Vineyard neighbor Michael Cooper, a distinguished member of the New York Bar (and later a victim of COVID-19), and I initiated an online campaign to persuade both the Senate and House to “Censure Donald Trump.” At one point we listed more than eighty grounds for censure and had over 80,000 supportive signatories. But it was to no avail, since few members of Congress were prepared to take Trump on directly at that time. We adapted this New Yorker cover for our campaign.

Part Four

aThe Left

Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.

Dr. Seuss, The Lorax

To me that which is generally called the ultimate aim of socialism is nothing, but the movement is everything.

Eduard BernsteIn (no relation), Evolutionary Socialism

My linkage of Dr. Seuss’s fable about environmentalism published fifty years ago with the great late-nineteenth-early-twentieth-century spokesperson for evolu tionary socialism is no accident. They both advanced the non-Marxist proposition that history was not moving in positive directions according to predictable scien tific “laws,” like the movement of the planets. Instead, they both believed that unified masses of men and women (the “someone[s] like you”) made history,

often led by inspired leaders who were themselves activated and energized by others. I think of Michael Harrington, who led a numerically minute social ist movement, as representing “the left wing of the possible,” just as Bernstein might have. Harrington’s 1962 book, The Other America, is credited with having sparked the Kennedy-Johnson “War on Poverty.” (Of which in 1988 then President Ronald Reagan gleefully told Congress that “poverty won.”)

Mike Harrington learned from, and was “woken,” by many, including Dorothy Day, with whom he worked when he first came to New York in 1949. Day had started the Catholic Worker movement on May Day 1933, with the publication of the first edition of its one-cent newspaper. Day had been inspired by a French intellectual and agitator named Peter Maurin. Today the Catholic Worker movement has 160 chapters in the United States, and more worldwide. They still are engaged in providing hospitality to the homeless, the exiled, the hungry, and the forsaken, and in combating injustice, racism, and violence. As Day once put it: “The biggest challenge of the day is how to bring about a revo lution of the heart, a revolution that has to start with each one of us.”

Mike Harrington himself succeeded in inspiring thousands, one of whom is Peter Dreier, a public intellectual and socialist who teaches at Occidental College in southern California, where Barack Obama spent his first two college years. In 2012, Peter published a book entitled The 100 Greatest Americans of the Twentieth Century: A Social Justice Hall of Fame, for which he wrote introductory biographical essays on the lives of one hundred social justice champions he singled out while acknowledging another fifty by name. Of the many individuals whom Dreier identified as having influenced his thought, he said that “none was more important than Michael Harrington, who inspired and mentored me.”

The increasing influence of socialists in American life and politics today is best illustrated by the success and following of Senator Bernie Sanders of Ver mont and House member Alexandria Ocasio-Cortez (AOC) of New York. The huge popular following of both avowed socialists, numbering in the millions, represents the largest public acceptance of socialists and their ideas in Ameri can history. (There are presently four Democratic Socialists of America [DSA] members in the House of Representatives.)

Where and how the socialist movement will “move” in the years to come remains to be seen. But in my view, its future will depend on many things, including how it will communicate its values and programs convincingly to the American people. Thus, it will need more leaders like Sanders and AOC as its spokespersons. We also need to convey the message to our fellow citizens that our recent struggle against Trumpian despotism and autocracy is not over and that it continues to threaten our democracy, that the struggle against racism in this country must be greatly intensified, and that we must reverse the continuing trend toward extreme economic inequality that has deepened over the last fifty years. Finally, we must see that all of our workers are provided with decent and adequate compensation and satisfying employment, including the freedom to choose union representation so as to ensure the foregoing conditions.

In this section I elaborate upon some of the history of democratic socialism in the United States and how I experienced my own left-wing initiation.

A Tale of Two Camps (September 2020)

1. Camp Kinderland: The Hot “Red” Summers of My Youth

Brooklyn in the summers during and immediately after World War II (1942–1946), as I remember them, was unmercifully hot. Was this the result of an early and as yet unrecognized phase of climate change? No, mostly it was due to global political, economic, and technological conditions that prevented air conditioning—which already had been invented93—from reaching the mass American home market. Prior to the war effort, which began around 1940 with FDR’s “lend-lease” program supporting Britain against Hitler, the Great Depression was still at its height, so production and con sumption of consumer goods was low. During the war, which began on December 7, 1941 (Pearl Harbor bombing), few consumer hard

93. The first electrical air conditioning unit was built by American inventor Willis H. Carrier, and was installed in a Brooklyn printing plant in 1902.

goods (cars, radios, refrigerators, and air conditioners) were pro duced for the mass market. Instead, production was directed to the war effort—with guns, tanks, jeeps, planes, ships, and radios manu factured at an incredible pace in plants and dry docks that had been converted quietly to defense production.

I remember not being able to sleep in my family’s small, twobedroom apartment in July and August, when the temperatures reached the nineties. People would congregate on the Brooklyn stoops and streets late at night in hopes of the slightest breeze. The “street scenes” were straight out of Clifford Odets.

During the summer days, I “hung around” the neighborhood with my friends, went to the movies—as much for the air conditioning (which had been installed in most theaters) as for the entertainment— played punchball and stickball in the streets and schoolyards, and fled to the beaches at Coney Island, Brighton Beach, Rockaway, and Riis Park with family, friends, and neighbors. We traveled by street car, bus, and subway—but seldom by car (we had none).

I remember one summer staying a few days with my aunt Gertie and uncle Harry Denberg at a gated enclave near Coney Island known as Seagate. To get there we got off the BMT elevated line at Surf Avenue and took a trolley car that traveled for a few miles through the dilapidated backyards of Coney Island until we arrived at the “private” Seagate entrance. The streetcar was like the Toonerville Trolley in the comics. I recall Seagate being described in many of Isaac Bashevis Singer’s haunting novels and short stories concerning Jewish life in New York in the 1930s and ’40s.

Still, I couldn’t spend all of my time in the relative comfort of Seagate, which left my parents grappling with the problem of “Julie” hanging around the streets and schoolyards of East Flatbush and Brownsville each summer. The solution came like a bolt of lightning in 1947. My parents decided that the time had come for me to par take of that great Jewish American institution: summer camp.

Some years ago, the Jewish Museum in New York mounted an exhibit on the golden age of Jewish summer camps, covering the 1920s to the 1960s. In the Jewish community especially, these camps frequently took on a religious, cultural, or political character based upon the nature of the groups that sponsored them.

On the left, the Workmen’s Circle, or Arbeter Ring, now known as the Workers’ Circle, the great Jewish social democratic cultural and political center established in the late nineteenth century, had started a children’s camp in 1923 known as Kinderland. After the Russian Revolution of 1917, the Jewish socialists in the United States—like socialists worldwide—“split” over the so-called “Rus sian question.” Those on the relative right of the secular American Left stuck with the Socialist Party and its satellite organizations, and the left-wingers formed what ultimately became the Communist Party of the United States of America (CPUSA). The Arbeter Ring fractured, too, and the left-wingers, who were pro-Soviet, formed the Jewish People’s Fraternal Order (JPFO), which belonged to an umbrella communist front group known as the International Workers’ Order (IWO).

The JPFO contingent left the Arbeter Ring and in 1929 took control of the children’s camp and adult resort on one side of Sylvan Lake in Hopewell Junction, New York. (I recently saw the town described in print as “Hopeless Junkyard.”) The Arbeter Ring people started a similar camp on the other side of the lake, calling it Kinder Ring. The JPFO children’s camp remained Kinderland, and the adjacent adult resort was Lakeland. So like Bolsheviks and Mensheviks, the communists and socialists stared at each other from opposite sides of Sylvan Lake. They kept their “social [and political] distance.”

When I arrived at Camp Kinderland in 1947, storm clouds were forming over American-Soviet relations. The spirit of cooperation that had formed in World War II—during which time American communists were ultrapatriotic (albeit out of their dedication to

defending the Soviet motherland)94—was fading. Churchill had delivered his “Iron Curtain” speech at Westminster College in Mis souri at President Truman’s urging in 1946.95 And a new wave of anti-communism—similar to the “Red Scare,” which occurred after World War I—was sweeping the country, as exemplified by the work of the House Un-American Activities Committee and the rise of Senator Joseph McCarthy (R-Wis.).

My first initiation into camping, however, had nothing to do with politics and everything to do with child psychology. My lifelong friend Terry Shultz had gone to Camp Kinderland in 1946, and he told me about what a great time he’d had. Several members of his family, including two cousins who lived on our street, also attended the camp. Members of Terry’s family were connected to the JPFO, and indeed, Terry’s mother worked as a secretary at the camp’s Manhattan office on Union Square.

Somehow, my mother got the notion that the way to get her eleven-year-old son, who had never been away from her for a night, out of the hot city during the summer was to send him to Kinder land with Terry, who was scheduled to return there in 1947.

I do not know whether my parents had the slightest idea that their decision to send me to Kinderland would profoundly influence the rest of my life, nor what the outcome would have been if I had never made it to Hopewell Junction. But I do know that after four summers (1947–1950) at Kinderland, my life would never be the same. In fact, Camp Kinderland was sort of the political equivalent of Harry Potter’s Hogwarts, where I left the real world and entered a summer universe of “red” political imagination and magic.

By the end of the summer of 1947, I had learned the Soviet ver sion of “The Internationale” (“Arise, ye prisoners of starvation . . .”)

94. Any history of the American Communist Party, such as Theodore Draper’s or that by Irving Howe and Lewis Coser, attests to its ultrapatriotism in World War II.

95. See David McCulloch’s biography, Truman (New York: Simon & Schuster, 1992).

and the Chinese Communist anthem (“Arise, ye who refuse to be bond slaves, let’s stand up and fight for liberty and true fraternity”), had listened to Paul Robeson sing as well as a young Pete Seeger, and had shaken both their hands (Robeson’s was massive; to me it looked as if he could hide a football in one palm). Terry recently told me that I said I’d never wash my hand again.

So, on a Sunday in late June 1947, after my twelfth birthday, my mother got me to “the co-ops” (a cooperative apartment develop ment in the Bronx inhabited substantially by Jewish progressives), from which the buses left for the drive up the Taconic Parkway to Kinderland. I have a few photos of me with a “crew cut,” about to board a bus with Terry and another friend.

I vividly remember witnessing a middle-aged woman who was in charge of the buses hurriedly explaining to a child that his coun selor’s name was Karpatkin,96 not Kropotkin, and that Kropotkin had been a Russian prince and anarchist philosopher in the nineteenth century. This was news to me, but I had yet to realize that this was no ordinary summer camp I was about to attend.

Throughout the bus trip up the Hudson Valley, the many returning campers sang union, civil rights, and left-wing songs: “We’re gonna roll the union on. . . . No more auction block for me, no more, no more. . . . United Nations make a chain, every link is freedom’s name, keep your hands on the plow, hold on.” After two hours, we arrived at camp and were led to Bunk 12, where our trunks and duffel bags, which had been shipped ahead by Railway Express (long extinct97), were waiting for us to unpack. There were

96. This is the same Marvin Karpatkin who in camp was known as “Talky.” His widow is a lovely woman named Rhoda, who for many years was the executive director of Consumers Union. She retired some years ago. I bumped into her a year or two ago at a Democratic Socialist Organizing Committee (DSOC) reunion in New York, where we sang “The Internationale” together.

97. Later, at the Teamsters, I was to handle a series of jurisdictional battles over the employ ees of Railway Express with the Brotherhood of Railway and Airline Clerks (BRAC).

about fourteen boys in our bunk (Terry and I were together—we and our mothers had made certain of that). Our counselors were Gene and Red, both of whom were college students—one in Phila delphia and the other in New York City.

For the first few days, I suffered a severe case of homesickness and wrote my parents that they had sent me to a concentration camp. Neither my bunkmates nor I had as yet heard of the Gulag Archipelago, although it was undoubtedly in full operation at that time. But it was neither Stalinism nor “bureaucratic collectivism” that was at the heart of my complaints. They were just the normal reaction of a timid twelve-year-old boy who had never been away from home and the normal regimentation required to control a bunk full of mischievous preteens and a diet of unfamiliar fare. The homesickness soon faded in the face of the usual camp activities, such as softball and basketball.

Two things that distinguished the camp were its adherence to a left-wing version of Jewish cultural values (nonreligious Yiddish keit) and to pro-Soviet ideology and politics. Once or twice a week, we attended shula, an extension of the JPFO’s shulas, or afternoon nonreligious Jewish cultural schools in New York City, Philadelphia, and elsewhere. The schools paralleled the Sholem Aleichem schools of the Workmen’s Circle. We studied Yiddish and read stories by such Yiddish masters as Sholem Aleichem and I. L. Peretz. It was this orientation to Yiddish that later attracted me to Irving Howe’s Yiddish literature course at Brandeis98 and to Yiddish literature and culture in general.

On Sunday nights we would go to the social hall near the lake and watch Soviet propaganda movies (from Artkino Studios), about heroic Russian boys and girls in the Young Pioneers, Charlie

98. See Irving Howe and Eliezer Greenberg, A Treasury of Yiddish Stories (New York: Fawcett World Library, 1954), and Howe, World of Our Fathers: The Journey of the East European Jews to America and the Life They Found and Made (New York: Open Road Integrated, 2017).

Chaplin silents, or such pro-Soviet Hollywood products as North Star, with Dana Andrews and Anne Baxter. And before lights out, our counselors would read to us from such books as Pages from a Worker’s Life by William Z. Foster, the head of the Communist Party USA. They also read to us from technical works designed to teach us the “facts of life.”

The counselors were a jovial and interesting bunch of mostly college students, but it was clear that their political orientation was Communist Party (in the vernacular, “CP”). Many were World War II veterans who were going to college on the G.I. Bill. They were always rattling off about political theory and carrying tomes around from International Publishers, the Soviet-subsidized publishing house, on subjects such as dialectical materialism, or “diamat.” There was a book kiosk adjacent to the dining hall, containing, among other works, volumes from the Little Lenin Library.

Three of the leaders of the counselor intelligentsia were the aforementioned Marvin “Talky” Karpatkin, who became a lead ing civil liberties lawyer in New York City; Herb Gutman, later a highly respected labor historian; and Eugene Goodheart, who recently retired from the Brandeis faculty in English literature and who published his autobiography in 2002, entitled Confessions of a Secular Jew.99

The Daily Worker was a camp staple from which the CP version of the news, including sports, was received. “Police Beat Strikers” was a frequent headline. On Sundays, salutes or “pageants” were routinely performed for visiting parents and siblings, in which some international communist theme was the centerpiece. The first “pag eant” that I recall involved campers being split up as Americans and Russians, and on “Red Square” we reenacted in costume American 99. I spent an hour or so with Eugene in 2002 in his office at Brandeis, reminiscing about camp and telling him how much I had always admired him for his ability to address the entire camp, including visiting parents, in fluent Yiddish.

and Russian forces joyously meeting toward the end of World War II at the Elbe River.

When I first got to camp in 1947, each bunk would march to breakfast in military style, but at some point that year, our march ing days were canceled. The postwar thaw had been declared, and peace had broken out. Instead, the campers were to come to the dining hall each morning in large groups with arms linked, singing rousing political songs. One I remember went something like this:

Everywhere the youth are singing freedom’s song, freedom’s song, freedom’s song, Just to prove to the world that we are strong, we are strong, we are strong. We are the youth and the world proclaims our song of truth. Everywhere the youth are singing freedom’s song.100

In fact, this was the theme of one or another of the Soviet World Festivals of Youth, conducted for many years every summer somewhere in Eastern Europe.

Another favorite was the song of the partisans of the Warsaw and Vilna ghettos, which goes something like “Zog nit keinmol oz mir gayen dem leste veg,” which translates to “Never say that we’re walk ing the last road.” This is a deeply moving song, shared by all in remembrance of the Warsaw Ghetto Uprising of April 19–May 16,1943.

Spanish Civil War songs were also high on the Kinderland “hit parade”:

Spanish heavens spread their brilliant starlight High above the trenches on the plain.

100. I have in my files a pamphlet containing all the Camp Kinderland songs. Its alums maintain an active website.

From the distance morning comes to greet us,

Calling us to battle once again.

Far off is our land, yet ready we stand. We’re fighting and winning for you.

On to victory. Freiheit [freedom].

We also sang this in Yiddish:

Meer kamphen un zigen far zich. Als tzu victory. Freheit.

This was the theme song of the International Brigades, young left-wing sympathizers from the United States and elsewhere who went to Spain in 1936 to fight on the side of the Spanish loyal ists. The Spanish Civil War had ended disastrously about ten years before I arrived at Camp Kinderland, and, indeed, friends of peo ple at the camp had died in Spain for the cause of the Spanish Republic against the reactionary fascist forces of General Franco. Of course, I did not know then of the duplicitous role of the com munists against their anarchist, socialist, and Trotskyist comrades in Spain.101 Many other songs of the Spanish Civil War were sung as well, in both English and Spanish.

In addition to the pro-Soviet line espoused at the camp, the Jewish communists advanced the values of fighting racism, supporting worker and union causes, advancing the interest of world peace and the United Nations, promoting racial and gender equality, and, finally, supporting Israeli independence, which Moscow then favored. Both Russia and the United States voted in favor of the establishment of the state of Israel at the United Nations in 1948. I sympathized with all of those causes and values, and I wholeheart edly joined in the celebration.

101. See George Orwell’s Homage to Catalonia (London: Secker & Warburg, 1938).

Nevertheless, I did not buy into the CP dogma lock, stock, and barrel, and there is no question that I never saw myself as being part of what they might have described as ayne fun unzera (one of us). I am sure that the people who were on the inside of the camp knew which of the kids had parents who were CP and fellow travelers and which were not. I cannot say there was an effort to recruit me or my family. I do recall meetings of a youth group called Jewish Young Fraternalists in a loft on Pitkin Avenue in Brownsville, Brooklyn, which I would attend occasionally during the school year, though my main motivation was social rather than political—to meet girls. Also, during the winter there would be Camp Kinderland reunions in Manhattan, which I would routinely attend to see camp friends.102

But if there ever was any doubt, 1948 made crystal clear that I was not “one of us.” That year, the communists and their allies in this country nominated Henry Wallace, who had been Franklin D. Roosevelt’s vice president from 1941 to 1945 and previously his secretary of agriculture, as the presidential candidate of their front group, the Progressive Party. His running mate was a progressive former senator from Idaho named Glen Taylor, who played the banjo. So the camp song for the summer of 1948 was “We Want Wallace in the White House,” to the tune of the labor anthem “Solidarity Forever,” which itself is sung to the tune of “The Battle Hymn of the Republic.”

As for me, my homegrown pro-FDR and pro-Truman Ameri can Labor Party103 bias prevailed. I recall campaigning at thirteen

102. A Kinderland reunion was scheduled for Memorial Day 2005 in Santa Bar bara, CA. I did not attend.

103. The American Labor Party was founded in 1936 by labor leaders and liber als as a mechanism to get socialists in New York State to vote for the reelection of Franklin Delano Roosevelt without having to press the Democratic Party lever, which was anathema to many of them. In 1944, anti-communists, led by Interna tional Ladies’ Garment Workers Union President David Dubinsky, left and formed the Liberal Party. The American Labor Party ceased to exist in 1956.

for Truman and his running mate, Senator Alben Barkley (D-Ky.), against Tom Dewey, the former governor of New York State who was the Republican candidate, and South Carolina Governor Strom Thurmond, who was the candidate of the segregationist Dixiecrats. Thurmond and his supporters had walked out of the Democratic Convention in 1948 over the enactment of a civil rights platform that had been pushed by a young Hubert Humphrey, who was then the mayor of Minneapolis. Norman Thomas, the perennial social ist candidate, was in the race as well. But I was busy handing out Truman leaflets, much to the dismay of my camp comrades, some of whom I saw at home. Though they may have been disappointed in my choice, I don’t remember anyone giving me a difficult time about it. Indeed, I don’t think we ever argued about politics at camp, partly because the party line was that there was nothing to argue about. Or perhaps I was just timid and decided not to make an issue over anything. My politics came from the deep-seated New Deal liberalism of my family, and obviously that was inconsistent with “We Want Wallace in the White House.” Camp Kinderland, for all the impact it had on me, would not change that.

The real world often intruded into camp life. I can recall when counselors went to a rally in Peekskill, New York, on August 27, 1949, for a Paul Robeson concert that had been opposed by some racist town residents. The counselors, beaten and bloodied, returned on buses. The American Legion and some racist and fascist elements had been waiting for them with clubs and baseball bats, and it was fortunate that none of them were killed.

The government of the United States struck its own blow in 1949, when it indicted eleven leading communists under the Smith Act for conspiring to overthrow the government. Some of my camp friends’ parents and relatives were among those indicted, and the news cast a pall upon Kinderland. The son and nephew of an offi cial of the International Fur and Leather Workers Union who was indicted, were in my bunk. In later years, I learned that in 1940,

the Communist Party had supported the indictment under the Smith Act of Trotskyists (members of the Socialist Workers Party), including the Minneapolis Teamsters leaders Farrell Dobbs and the Dunne brothers, in which a similar conspiracy had been alleged. Being politically unprincipled was part of the standard operating procedure of the CPUSA.104

Another incident at camp that deserves mention is the polio epidemic of 1949, which afflicted more than forty-two thousand people in the United States, seven thousand of whom died. The outbreak hit New York City hardest, so when parents and siblings came to visit their kids at camp on weekends, the campers were cordoned off from their parents by a rope that separated them by at least fifteen or twenty feet, from which they had to shout to one another to be heard. Thanks to the vaccine invented by Jonas Salk, polio is unknown to Americans today (though it remains a scourge in the developing world). But it was a major threat at that time and, as is well known, in 1921 crippled FDR for life.

Amid these troubling developments came a reminder that one should never underestimate the power of teenage hormones to pro vide a compelling diversion. Kinderland was co-ed, and there was much fraternizing between the boy and girl campers as well as the counselors. The atmosphere might be described as radical bohemian. So the camp provided my first exposure to male-female relations. I remember one girlfriend who led me to a secluded woodland outpost at the camp’s highest point, appropriately called “heaven.”

Another new institution that I dealt with at Kinderland was the bunk casa. For us, the bunk casa was the depository for all of the cookies, candy, and other goodies that we received in the mail from our families or that they brought with them on visiting days. Each of us was required to turn over our goodies to our counselors, who

104. See Irving Howe and Lewis Coser, The American Communist Party: A Critical His tory. Also, Theodore Draper, The Roots of American Communism

would distribute them equitably among all of us. This was my first exposure to the Marxist principle “From each according to his abil ity, to each according to his need.”

Kinderland had only one sports rivalry—it was with Camp Wo-Chi-Ca. Though it sounds like a Native American name, WoChi-Ca was actually an acronym for “Workers’ Children’s Camp.”105 Apparently, those pro-Soviet types who were true internationalists and disdained any religious or ethnic identification, such as being Jewish or enjoying Yiddish culture, sent their kids to Wo-Chi-Ca.

Kinderland and Wo-Chi-Ca occasionally did battle on the sports field. Wo-Chi-Ca’s location was many miles away.

I recall that in junior high school there was a libertine young woman in my class who, upon learning that I had been at Kinderland, told me in utter confidence that she had been a camper at Wo-Chi-Ca. She was an attractive strawberry blond with ringlets who smoked a corncob pipe and would always slap me on the back, accompanied by a big “Hi, comrade Julie!”

We had other outlets for athletic competition, notably, “color war.” Color war is still common in summer camps, including the ones that my children Beth, Mike, and Annie attended. The entire camp was divided between the Bluye (Blue) and Veisa (White) teams, representing the colors of the Israeli flag, which was known as the Jewish flag prior to the establishment of the State of Israel in 1948. For four or five days, we competed on the athletic fields, on the stage, in song, in “hootenannies” (radical songfests), in dance, and in other activities. Our team songs were sung in Yiddish, such as “Hecher, hecher, zing is fun decher, di bloye team iz di best in kemp, di andre team iz shoyn farshemt” or “Higher, higher, sing it from the rooftops, the blue team is the best in camp, the other team will soon be humiliated.”

105. See Tales of Wo-Chi-Ca: Blacks, Whites and Reds at Camp by June Levine and Gene Gordon.

While my Kinderland days occurred well before the rise of the feminist movement, one memento I cherish is a photo of our group’s softball team. It depicts about thirteen males and one female, whose name was Sandy. I recall that she played center field, swung a mighty bat, and had the respect of us all. Not all was fun and games, though, as each summer at Kinder land we had a work project. One summer we built an amphitheater. Another year we constructed a basketball court. In a way, the camp was sort of an Israeli kibbutz, American radical Jewish style. While the camp consisted almost exclusively of Jewish kids from Boston, New York, and Philadelphia, on occasion a Black boy or girl whose family had been victimized in a racial incident in the South attended. Their stories were made known to all. Hearing their accounts, as well as other outrages, such as the Peekskill riots, as told to us by our Kinderland counselors, reminds me of the Sholem Aleichem story titled “Dreyfus in Kasrilevke,” in which the Jews in a small rural shtetl somewhere in the Jewish Pale of Settlement in Russia receive a weekly newspaper describing the famous Dreyfus case being prosecuted in Paris against a French Jewish officer in 1894. The issues of the paper come in by mail, and the townspeople gather each week to listen to stories of persecution with utter disbelief.106 This was very much like us Kinderlanders from the Jewish ghettos of New York, Philadelphia, and Boston hearing stories from the South of horrible racial abuses. Could such things really be happening? What could we do to change things? Perhaps it was the beginning of a lifetime of social action in one form or another for me. Through Camp Kinderland, I was exposed to many adults and kids from backgrounds different from my own, but there were common views, community goals, and aspirations. That people had to live together as a community and that together they might effectuate positive change were important values and

106. See Howe and Greenberg, A Treasury of Yiddish Stories

goals that have remained with me for life. This was also my feeling about the democratic socialist and labor movements as I became more involved with both. Regrettably, such values have not fared well in our country as we move further into the twenty-first century, in which individual rather than community values too often prevail. My participation in these activities later led me to feel that I had been cheated by not being sent to Camp Kinder Ring across the lake, where I felt I really belonged, with the social democrats. (The two camps had no contact whatsoever.) Indeed, at Camp Kinderland, the huge toilet on the hill was referred to as the Forverts Building, a derisive reference to the Yiddish Jewish Daily Forward, a social democratic paper. (I now read its online version.)

In the end, I look back on my four summers at Kinderland with mixed feelings. This was my first experience away from home and being on my own, albeit with some adult supervision, and I had a wonderful time and surely grew in the process. But the fact that I was subjected to the influence of a Jewish brand of Stalinism has always left me feeling duped and ambivalent. I know that there is a Camp Kinderland website, where alumni partici pate in maintaining old friendships, but I fear that other than my neighborhood and lifetime friendship with Terry, I would not be comfortable within the Kinderland alumni association. I suspect some of them never quit believing in their hearts that the Soviet Union collapsed because of “capitalist encirclement” rather than the truth: that the USSR was a fundamentally corrupt, one-party, totalitarian, bureaucratic state that was unable to win the hearts and minds of its people.

As for the camp, it was unfairly persecuted by the New York attorney general and in the end was closed down in 1971. I do not believe that the property has ever been rehabilitated, and I have been tempted to drive up the Taconic Parkway from time to time to take a look, as well as to visit Camp Kinder Ring across Sylvan Lake, which still functions. As yet, I have not done so.

I should also mention that there is a new Camp Kinderland somewhere in New England, and I am sure that it is frequented by children and grandchildren of the Kinderlanders of my day.

In retrospect, I have few regrets about my early exposure to the “Young Pioneers” of Kinderland. Indeed, with my having had the experience there, it was not difficult for me to make the transition to the democratic socialist Left in later years, in the DSA (Democratic Socialists of America), as well as the revival of democratic social ism nationally through the efforts of Bernie Sanders, Alexandria Ocasio-Cortez, and others.

2. Camp Onibar: From Communism to Capitalism

When I was about to turn sixteen, it was decided that it was time for me to part company with Camp Kinderland and get a paying summer job. I do not remember whether my parents or I came up with the idea, nor do I recall the reasons behind it. Either way, the time had come, so that summer I began my six-summer stint as a waiter at Camp Onibar.

Camp Onibar (for boys) and Camp Geneva (for girls) were located in the Pocono Mountains of Pennsylvania. My parents had wealthy friends who sent their daughter to camp there. The camps were founded and run by the Rabino family. Onibar is Rabino (pronounced ra-bee-no) spelled backward. [Just incidentally, Rabino is Spanish for “rabbi.”] By the time I came to the camp in 1951, Mom and Pop Rabino had died. Their three sons, Abner, Lester, and Murray, all New York lawyers in their own law firm, ran the camps, together with their wives and children. It was a year-round family enterprise.

The “clan of Rabino” was formidable. Lester was the leader of the operation. Abner was engaged in welcoming and socializing with the families who sent their children to the camp. Murray and

his family ran Camp Geneva, the girls’ camp, which was about a mile away from Onibar on a dirt road.107

To get the job of waiter, I was interviewed by “Uncle Ab” at his home in Brooklyn. I passed muster and was hired as a camperwaiter, which meant I would wait on campers, as distinct from the more senior and older guest waiters (who were college students), who served the many weekly visiting parents. The camp had a large guest house that could accommodate the 180 or so parents who came to visit their kids on weekends. Some parents even stayed there for weeks on end.

My duties as a camper-waiter involved getting up at about six a.m. on usually cold (35°F–45°F) Poconos mornings, then getting washed and dressed and into the mess hall by seven with about nine or ten other camper-waiters. We would set our tables and eat our own breakfasts from seven to eight. One waiter served the waiters (the waiters- waiter). And then at eight, the campers arrived. Each camper-waiter served two tables that each sat about nine boys and their counselors. The campers ranged in age from four to fifteen. We brought their food from the kitchen, and once they were gone, around eight forty-five or nine, we cleaned our stations and were out of the mess hall by about nine thirty. We then washed up and changed into shorts or swim trunks and swam; played basketball, tennis, softball, or cards; or read and wrote letters, depending on the weather. We saw no TV and had no phones or computers. The latter had not yet been invented. The one public phone at the camp was in the guest house, hanging on a wall. No cell phones either. We had to be back in the mess hall by eleven a.m. to set up, eat lunch, serve, and clean up. Usually, we were free by one thirty and had more than three hours to ourselves until dinner at five. By seven thirty p.m., we were out of the mess hall with our evenings

107. Bob Warner, first cousin by marriage of my wife, Linda, had been a waiter at Onibar before World War II. He was related to the Rabinos.

free. Five nights a week we were permitted to visit the girls’ camp. We made the one-mile trek by foot by the light of our flashlights on the dirt road separating the two camps. Once there, we socialized and danced with the female counselors, counselors in training, and waitresses.

This schedule changed somewhat from Friday dinner through Sunday lunch, when the guest waiters hired five or six of the camper-waiters to assist them as busboys for those six meals. The guest waiters decided who their busboys would be and usually chose them based on their waiting and busing skills. If you were selected as a busboy, you worked a lot harder on the weekend. When you finished waiting on your own two tables of campers, you spent the next hour or so of each meal as a busboy on the “guest side” of the dining room. While it was more work, you also made some addi tional money (paid to you by your guest waiter), and your chances of moving up to guest waiter in later years was enhanced by watch ing and learning what they did.

In my case, I worked as a camper-waiter in 1951 and 1952. My monetary compensation (other than room and board) consisted of tips from parents and counselors, which averaged about $10 each for the eight weeks of summer (which was a decent tip at that time).

In 1953, the summer before I left home for college at Brandeis, I graduated to the position of “guest waiter,” which meant that I would live in the newer and larger “bunk,” reserved for us.

The head waiter was Stan Dubin from Philadelphia. The other guest waiters were Bernie Linkoff from Baltimore, Irv Herman from Philadelphia, and Marv Sokol from Manhattan. The guest waiters served the parents of the campers when they came up to visit, usually commencing with dinner on Thursday through breakfast on Monday or Tuesday. As parents drifted in and out, our workload was increased and reduced, and we enjoyed lots of time off during midweek. We shared our tips and kept them in cash in the safe in the camp office until the summer’s end, when we divided up our swag equally.

The guest waiters usually received from $6 to $10 for a six-meal weekend stay for a couple. Over the course of four summers, each guest waiter’s share of tips averaged about $600, which was a large sum then. Indeed, my Brandeis tuition was $700 (room and board was another $800). So my summer earnings played a major part in paying for my college education. I was awarded a $200 scholarship by Brandeis, which helped as well.

Our earnings were greatly enhanced by one guest, who rou tinely tipped us $25 each weekend he and his wife visited. Privately, we referred to them as the “King” and “Queen,” and we kept a favorite table vacant for them at all times, lest they arrive unexpect edly. This practice annoyed Lester Rabino, but we continued to do it nonetheless in a war of nerves with the boss. We usually prevailed, because while Lester was no “potted plant,” he seemed to feel that he ought not second-guess the head waiter on seating arrange ments. Perhaps he even feared that the King might cease sending his child to the camp if his table were not reserved. At least, this was our reading of the situation. Lester would occasionally ask why the table next to his was vacant while the rest of the dining room was overflowing with guests. The head waiter would always be evasive.

For me, the best part of waiting on tables was working with the people in the kitchen: the chefs, cooks, bakers, salad makers, and dishwashers. How the Rabinos assembled the remarkable potpourri of people who turned out the meals for the campers, counselors, staff, waiters, and weekend guests, I never knew. In fact, there must have been an employment agency that specialized in finding kitchen help for summer camps: Most of the kitchen crew were salt of the earth.108 Two favorites were Nick the Greek and Joe the Turk. Fortu nately, unlike their eponymous countries, they got along well.

108. One exception was Bill Johnson, the salad man, who said that it was “too bad that Hitler hadn’t finished the job” when we young Jewish waiters drank too much of the fresh orange juice he had squeezed by hand for the guests early each morning.

The boss of the kitchen was Tony Pawn, the chef who ran the operation like a field marshal. Tony was from middle Europe, prob ably Yugoslavia. During the off-season, he worked at a restaurant in New York City, but he spent his summers at Onibar. He was tough as nails to work for, and he would not countenance any “monkey business” on the part of the waiters, of which we were duly capable. His character was impeccable, and he was decent, principled, and generous to a fault. His wife and teenage daughter lived with him at the camp (the waiters knew that it would have been ill-advised to be seen talking with her).

Again, Stan Dubin was the head waiter, or “hedda waiter,” so named because when Tony was having trouble with a waiter, he’d yell: “I’m gonna talk to the hedda waiter and maybe also Lester Rabino about you.”

Many of the waiters had been campers at Onibar, and so “mov ing up” from camper to waiter was something of a rite de passage. For others, like me, it was an entry into a new world. I knew not a soul and had never worked in a kitchen, but I made friends quickly among the waiters, staff, counselors, and campers, and I did the job successfully.

One of my lifelong friends, Ira Glick, was a second-year camper during my first year as a waiter. I knew him then, but we became truly close in later years, when we worked as camper and guest waiters together and lived in the same bunk. Our friendship remained strong, even when Ira was selected as “hedda waiter” and I was bypassed. Among other things, Ira and I were both only children, and not having had siblings, we were, and still are, like brothers. Ira became a distinguished psychiatrist, married twice, first to Annie, herself a psychiatrist. They had two children, now grown. After Ira and Annie were divorced, he married Juannie Eng. They have two children, also now grown. Ira and Juannie live in a house overlooking the Golden Gate Bridge in San Fran cisco. Ira is retired from the faculty of Stanford Medical School

and travels and lectures extensively on psychopharmacology. He turned eighty-six in 2021.

Another friend I made early on at Onibar was Garry Marshall. Garry was one of the two bellhops who worked at the guesthouse. His father made commercial films, and his mother ran a danc ing school in the Bronx. His parents were friends of Abner and Bea Rabino (“Uncle Ab and Aunt Bea”). His sister Ronnie was a counselor at Geneva, and his sister Penny (then about eleven) was a camper there. Garry was an excellent athlete, but also very the atrical, musical, and comical. One summer he wrote a “Waiters’ Show,” which we had great fun in performing for the camp. The opening number went

We’re your waiters; We serve you your meat and potaters; So tell your maters; To tip, tip, tip the waiters.

After graduating from Northwestern, Garry went on to a bril liant career in television as a writer for The Dick Van Dyke Show and as creator of Happy Days, Mork & Mindy, and Laverne & Shirley, in which his sister Penny starred. He also made his mark on the big screen, directing movies such as Frankie and Johnny and Pretty Woman. In addition, Garry acted in a number of his own movies, as well as in such TV shows as Murphy Brown. Garry cast Ira Glick in three of his movies. In Frankie and Johnny, Ira played a character named Mutzie Calish and even spoke a line; Ira also played an immigration passenger in Exit to Eden and Dr. Glunk (a ball guest) in The Princess Diaries. Linda and I last saw Garry in 2015 in Los Angeles. He died in 2016.

Another well-known Onibarite who was a counselor in my day was Bob Caro. He has written, and is still writing, his acclaimed multivolume biography of Lyndon B. Johnson.

A camper who was about five years younger than me was Steve Solarz. He followed me to Brandeis. In later years, Steve was elected to Congress from Brooklyn (as a Democrat, of course) and told me that his election was his greatest thrill since being elected “Buff Leader” in the Onibar Buff and Blue color war. In a distinguished career in Congress, Steve chaired the House International Relations Subcommittee on Africa and played a major role in pressuring the South African government to end apartheid. Steve died in 2010. What is remarkable to me wasn’t the fame and fortunes that many of my fellow Onibarites would go on to achieve—talented as they were—but the stark contrast with my previous camp experience at Kinderland. Though they had some things in common, the two camps largely existed in separate worlds. For instance, Camp Kinderland served mainly lower-middle- and working-class families, while the “class” of the Onibar clientele was decidedly “upper-middle” to “lower-upper” class, by financial standards. The parents of Onibar campers were mostly business people, judges, lawyers, doctors, accountants, Wall Street brokers, investment bankers, and real estate barons. (I remember Peter Kalikow, who has been a New York real estate and newspaper mogul and a public official, as a scrawny tenyear-old slowly munching on his meals every day.) In many ways, this was a new group to me. Although two of my parents’ friends were lawyers, and I had been seen by doctors who made house calls, I had never really crossed paths with professionals before. Both camps’ clientele were overwhelmingly Jewish, but secu lar. The camps were not kept kosher, although shellfish and pork products were not served. However, politically the Onibar crowd generally were Roosevelt-Truman liberal Democrats, while the Kinderlanders mostly were Communists and fellow travelers. Moreover, Onibar was not organized around any cause, political or otherwise. Rather, it was just a place for affluent Jewish kids primar ily from New York, New Jersey, and Philadelphia to make friends and have a fun summer.

Like Kinderland, Camps Onibar and Geneva were “singing” camps. Its songs, however, did not involve the Spanish Civil War, the Vilna ghetto uprising, or the joys of Yiddish. Instead, they reflected the “happy go lucky” way of life of the great American celebration of the 1950s. The Rabinos hired accomplished musicians, song writers, and stage directors as counselors, and each week a different camper group put on a theatrical performance for the entire camp. The music was original, and there is an entire repertoire of OnibarGeneva songs going back to the 1930s. Anyone who ever came near the camp could do a rendition of “Dear Onibar” or “The Clan of Rabino.” Two of the more accomplished musical graduates of the camps were “Moose” Charlip, who wrote the Broadway musical Peter Pan (“I Gotta Crow,” made famous by Mary Martin), and Marvin Hamlisch, the multiple-Oscar-winning composer and impresario. But there were also ways that the clientele of Onibar turned away from things that I believed were important. At Onibar, there “seldom was heard a Yiddish word”; it was as if leaving Yiddish behind was a part of rising up the social and economic ladder. By contrast, at Kinderland, we revered Yiddish as mamme loshen (“mother tongue”). I remember this lovely little song, written by a counselor, that we often sang: Yiddish rets zich azoi schoen; Yiddish is do mala chein; A shule, a klastsimer, a tish; Mer darf mir nischt; Lomir alle tzuzamin redin Yiddish.

Loosely translated:

The sound of Yiddish is so lovely; Yiddish is a great joy to us; A school, a classroom, a table;

That’s all we need; Let’s all speak Yiddish together.

Having heard, spoken, and sung in Yiddish at home and at Kinderland, and knowing the culture and history it represents, I consider its abandonment as part of the escape from immigrant and European origins, regrettable though understandable. In con trast, my lifelong interest in Yiddish represents a longing for my childhood and our collective past. As we know, languages are vast repositories of cultures.

In retrospect, I spent forty-eight weeks over six summers wait ing on tables (occasionally, I would also work as a waiter at resorts in the Catskills during Jewish High Holy Days). These experiences gave me a lifetime’s worth of respect for people who work with their hands and with their heads,109 serving others their food. Indeed, when I later went to work as a lawyer for the Hotel Employees and Restaurant Employees International Union (UNITE HERE), I always felt a special personal kinship with its members. Working at Onibar also expanded my world in many respects. I met, worked, and played with young adults who were at Ivy League and other “out-of-town” colleges or on their way. I am cer tain that the idea of going to an out-of-town college was born for me at Onibar, while I listened to friends talking about their college experiences.

109. See Mike Rose, The Mind at Work: Valuing the Intelligence of the American Worker (New York: Penguin Books, 2005).

Thank You, Bernie (November 12, 2015)

A longtime democratic socialist looks back at what the socialist move ment has (and hasn’t) accomplished—and ahead to where the Sanders revival might lead.

for those few of us who have Been around the democratIc socialist Left for a long while (and I’m eighty), the road has been hard and often confused. Occasionally, though, we were success ful in leading the way on some of the critical political issues of the twentieth century—most particularly on civil, labor, and women’s rights.

American socialism, I hope, will have brighter prospects in the twenty-first. The fall of communism, the Occupy Wall Street movement, growing inequality, and the arrival of Bernie Sanders’s presidential campaign suggest that it may. With the “specter” of Soviet communism no longer haunting the world, the S-word is being un-demonized, especially for the young.

My experience of more than sixty years as a democratic social ist may serve to illustrate where the movement that Sanders now speaks for has been and is about. As a teenager, I first came in con tact with the anti-democratic Left of Stalinism, attending a Jewish communist children’s camp for four summers in the late 1940s. But I figured out quite early that the Soviet sphere was authoritarian and anti-democratic and that its rationalizations for repression were fraudulent. I was helped in seeing this by two “old socialists” who happened to be at my high school (Samuel J. Tilden) in Brooklyn. One was Abraham Lefkowitz, the principal. He’d been a socialist leader in the 1920s and ’30s and a founder of the teachers union. The other was my legendary high school history teacher, Jules Kolodny, a comrade of Lefkowitz. Kolodny was a lawyer with a PhD—hardly a typical résumé for a high school teacher these days. He later became executive assistant to Albert Shanker when he became the president of the American Federation of Teachers. My anti-Stalinist perspective was sharpened at Brandeis Uni versity, where I studied under a group of ex-Trotskyists who had just left the Independent Socialist League (ISL, better known as the Shachtmanites after its vociferous leader, Max Shachtman) in favor of a less sectarian democratic socialist existence around Dissent magazine, which they founded in 1954. It survives and thrives today under a new generation of writers. Irving Howe, who lived a double life as a left-wing spokesperson and Dissent founder and editor, and as a renowned literary critic, was our leader.

After graduating Brandeis, I moved on to law school at the Uni versity of Chicago. My time there was split between the law and left-wing politics. The U of C had vigorous chapters of the ISL both on and off campus. The “youth” leader of the ISL nationally then was Michael Harrington, who had moved through the Catholic Worker movement of Dorothy Day in New York City to become the rising young star of the Shachtmanites. Mike was indefatigable in traversing the country and speaking before any audience that

would listen to his always-intelligent and forceful socialist argu ments. However, he is best remembered for his book The Other America, which is credited with starting the War on Poverty in the early 1960s. (Mike and the book were “discovered” by Dwight Mac donald in a 1962 review in the New Yorker, which was apparently read by many in the Kennedy White House.)

By the time I left Chicago, the ISL had merged with the Socialist Party of Eugene V. Debs and Norman Thomas. Thomas, who ran for president six times and was known as “America’s conscience” for such acts as his lonely opposition to the wartime internment of Japanese Americans, was then seventy-five (which I then thought ancient). He was not in the best of health, but he was in better shape than the party itself, which had ceased running candidates for office. The infusion of the Shachtmanites and their young activ ists helped keep it alive. It had much earlier lost the support of the needle trades unions and their leaders, who had gravitated into the liberal wing of the Democratic Party, led by Hubert Humphrey and former socialist organizer Walter Reuther.

What distinguished and energized the democratic socialists in the early 1960s was the civil rights movement. Between 1957 and 1960, when I left Chicago, the activity in which we had been most involved and made the biggest difference was seeking racial jus tice. During this period, Bayard Rustin, one of our stalwarts and a longtime anti-war and civil rights activist, and A. Philip Ran dolph, president of the Brotherhood of Sleeping Car Porters and a Harlem socialist activist going back to the 1920s, had organized with Dr. Martin Luther King both the Youth March for Integrated Schools and the Prayer Pilgrimage for Freedom. These rallies in Washington, D.C., were the precursors and training school for the leaders of their celebrated August 28, 1963, March on Washington for Jobs and Freedom, which Randolph chaired and Rustin orga nized. Randolph had threatened such Marches in 1941, demanding the desegregation of defense industries, and in 1948, demanding

the desegregation of the armed forces. He called off both marches only when President Roosevelt and President Truman, respectively, took the actions that Randolph had demanded.

Before I left law school and Chicago in June 1960, the first sit-in in Greensboro, North Carolina, had taken place, and the next phase of the civil rights struggle had begun. Our University of Chicago chapter of the Young People’s Socialist League (YPSL) spent our Saturdays all spring picketing the South Side Chicago Woolworths in support of the struggle in the South.

It was shortly after I left Chicago that Bernie Sanders arrived at the college and joined our YPSL chapter. I assume he got to know many of the wonderful Chicago friends I had made there. For sure, it was the beginning of his journey to his socialist political future.

At that time I planned to obtain an LLM in labor law at the New York University Law School during the 1960/1961 school year. Before the school year began, I succeeded in obtaining a summer job at the legal department of the International Brotherhood of Teamsters. This was during the period when the Teamsters Union and its president, James R. Hoffa, were under intense congressional and governmental investigation for alleged corruption, and a feud between then congressional staffer Robert F. Kennedy and Hoffa was in full throttle. Remarkably, however, at the Teamsters head quarters, I found an incredible group of trade unionists clustered around Harold J. Gibbons, the union’s executive vice president. Gibbons was a coal miner’s son who had been a Socialist Party adherent in Chicago and St. Louis.110 Hoffa, too, was a coal miner’s son, but no socialist. During that summer, with union support and with fellow socialists, I continued to engage in civil rights activity in Washington, D.C. This included involvement in the picketing of 110. Gibbons is the subject of a new book by labor historian Robert Bussel, Fighting for Total Person Unionism, which recounts how Gibbons led the Teamsters in St. Louis into community organizing and civil rights campaigns.

the Jim Crow amusement park at Glen Echo, Maryland, with civil rights activists, among them Stokely Carmichael, who was then a student at Howard University.

At the end of the summer, I moved on to New York City and NYU Law School. At that time Harrington and others were deeply involved in left-wing politics and civil rights activity there. One notable meeting that I attended was at Rustin’s Harlem apartment, where we were in the process of taking a moribund, old left-wing youth organization, the Student League for Industrial Democracy (SLID), out of mothballs, reviving it, staffing it, and turning it into a northern college student group that would support the Student Non-Violent Coordinating Committee (SNCC), then organizing in the South. Thus was born the Students for a Democratic Society (SDS) and ultimately the “New Left.”

At the end of the school year, the Teamsters asked me to return to Washington as a regular member of its legal staff, where I remained until 1967. This was the period when I learned my craft as a lawyer from some of the best union attorneys who had served the labor movement and working people going back to the 1930s. In my seven years at the Teamsters, we handled seven cases in the United States Supreme Court, all of which the union won. Of course, among the justices then were a number who had family, political, or professional backgrounds and sympathies with unions—such as Chief Justice Earl Warren and Justices William Brennan, Felix Frankfurter, William O. Douglas, Arthur Goldberg, Thurgood Marshall, and Hugo Black.

By 1962, the civil rights movement had advanced dramatically, and with it SDS as well. At a meeting at a union-owned camp in Port Huron, Michigan, a remarkably talented group of young white activists and militants drafted a left-wing political manifesto that came to be known as the Port Huron Statement. It posited the devel opment of a new progressive vision for America around the concept of “participatory democracy.” The principal drafter of the statement

was Tom Hayden, then a recent University of Michigan graduate. Harrington and a few other Socialist Party leaders were invited to attend, but Harrington as their spokesperson lambasted the SDSers because their statement was not sufficiently anti-communist. The rift this created was to have destructive results for the Left for years to come. As the sixties unfolded, the relationship between the “Old Socialist Left” and the “New Left” didn’t improve. Indeed, the hos tilities would be intensified over the war in Vietnam.

Early in 1963, Randolph and Rustin issued their “call” for a March on Washington for Jobs and Freedom. We socialists went all out in support of Randolph and Rustin; the results are still reso nating. A quarter of a million marchers gathered on the Mall in Washington on August 28 to hear the speeches of Dr. King; Randolph; Rustin; John Lewis, then head of SNCC; and others and to plan the next phase of the struggle.

Within the Socialist Party itself, a split developed beginning in the mid-1960s between those who supported the war in Vietnam, principally because it sought to contain the spread of communism, and those who had no truck for communism but felt that the war was misguided and a monumental mistake. As for Harrington, he was slow in coming around to an anti-war position but eventually left the pro-war Socialist Party, which had changed its name to Social Democrats (SDUSA), and with others, such as Irving Howe and me, founded the Democratic Socialist Organizing Committee (DSOC) in 1973. While SDUSA gave voice to the Cold War hawkishness and antipathy to post-sixties social movements that characterized the con servative Meany-Kirkland led AFL-CIO, DSOC aligned itself with liberal activists such as George McGovern, who sought to move the Democratic Party away from aggressive defense policies. With Har rington’s prompting, DSOC also became an organization where onetime sixties radicals met and made common cause with progres sives in the labor movement—a reconciliation of New Left and Old that Mike, remorseful about his role at Port Huron, sought to foster.

During his leadership of DSOC, Harrington also served as its representative to the Socialist International, a collective of world wide socialist parties. In that capacity he worked closely with such socialist leaders as Olaf Palme of Sweden, François Mitterrand of France, and Willy Brandt of Germany. In December 1980, these and many other foreign socialist leaders, along with large numbers of American leftists, came to a conference on “Eurosocialism” in Washington, D.C., which Harrington organized and chaired. This was an effort to introduce the leaders of European democratic socialism to the American Left and to expose Americans to European democratic socialism. The conservative leadership of the AFL-CIO, which had not supported the March on Washington in 1963, opposed Harrington’s 1980 Eurosocialism conference as well.

In 1982, in a move strongly supported by Harrington, DSOC merged with the New American Movement (NAM), an organiza tion composed chiefly of onetime New Leftists. Some, including Irving Howe, saw NAM as a remnant of SDS and opposed the merger based upon their conviction that it still was insufficiently anti-communist. The Soviet Union was then still a hostile and anti-democratic force in the world. But the merger succeeded, and Democratic Socialists of America was born.

Michael Harrington died of cancer at age sixty-one on July 31, 1989. Sadly, he lived to see the brutal suppression of thousands of Chinese students and workers on June 4 of that year at Tianan men Square and elsewhere, and he missed the fall of the Berlin Wall on November 9, 1989, and the subsequent implosion of Soviet communism. To us, these events served to vindicate the democratic socialist critique of international communism, although many on the right saw these developments as a repudiation of socialism itself. In any event, Harrington’s untimely death took from the demo cratic socialist movement its most articulate and attractive leader and spokesperson.

The twenty-six years since Harrington’s death were fallow for democratic socialism. The movement barely survived. The Clinton-Bush-Obama years did not provide an opening for a national discussion of democratic socialist alternatives, nor did the movement develop any recognized national leaders prepared to spearhead such a discussion. The devastating Great Recession of 2009 did bring forth the Occupy movement, but it lacked coherent political leadership and direction.

Enter Bernie Sanders into the Democratic presidential race in 2015, and more broadly into public consciousness, and remarkably, the discussion of democratic socialism has been renewed. Most of the credit for this must go to Bernie himself, who has dedicated his political career to advancing progressive and socialist principles and in serving as the first openly socialist United States senator in American history. (There have been several socialist members of the House, going back to 1911.) And now, through debates, speeches, and social media, Bernie is bringing to a new generation of Ameri cans a message of hope and political and economic renewal for the future. Whether or not he succeeds, democratic socialism is back on the American political agenda, perhaps even more broadly than ever before because of new technology and social media, and because the related issues of inequality and oligopoly are more rel evant and immediate than ever.

It was Louis Brandeis (often accused, inaccurately, of being a socialist) who said, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.” This, of course, is one of Bernie’s principal mes sages when he calls, for example, for the overruling of Citizens United.

In my law office hangs a poster from Eugene Victor Debs’s 1908 Socialist Party presidential campaign, which bears the slogan “Enough for All—All the Time.” This might be one of Bernie’s slogans as well—when our capacity to provide for the health, edu cation, and general welfare of all Americans has never been greater,

but when the division of the fruits of our labor is heavily skewed in favor of the few.

While the United States has not been able to sustain a strong socialist movement, it has often heard and modestly and belatedly heeded the movement’s most convincing and eloquent voices for progressive social change. Bernie is one of them.

So, for at least right now, America, “Feel the Bern!”

What’s Left of the Left?

let me BegIn By sayIng that I am honored to have Been asked again to address this august but politically incorrect, all-male group. (I want you to know that I caught hell from my daughters for even being here.)

Nevertheless, about seven years ago, my wife, Linda, and I hosted a reception at our home here on the Vineyard for the then incoming president of Brandeis University, Fred Lawrence. I am a member of the Brandeis class of 1957, and I recently attended my sixtieth reunion.

At our reception, I had the good fortune to meet Stan Snider and his lovely wife, Mary Ann, who are longtime Brandeis sup porters, as they continue to be of many other outstanding causes. Stan invited me to attend these breakfasts, which he had initiated many years ago. He told me the group was unofficially known as the “homogeniuses.” Over the next several summers, I came to learn how apt his description was.

As for me, I have been something of an outlier here. Not only

am I no genius, but I have provided a slightly unconventional view of things (at least, for some in this group), and if you heard me speak here about inequality, the decline of unions, the gig economy, and the deprivation of voting rights, my talk today will be another aspect of my left-wing perspective.

As a union and worker-side lawyer for over half a century, I am all too familiar with what are called “captive audience” speeches, in which employers are legally entitled to harangue workers on company time and premises against unionization. For me, address ing this group over the past several years has been my own kind of “captive audience” speech, so please bear with me as I try to enlighten you (if not persuade you) about a subject near and dear to my heart, if not yours—namely “the Left.”

On my last birthday I turned eighty-two. I have considered myself a “leftist” for the last seventy years, from the time I first attended a left-wing Jewish summer camp in upstate New York in 1947, when I was twelve (which was even before my bar mitzvah). Thus, I have been a participant-observer of “portside” politics for the last seven decades. It’s been quite an interesting and remarkable journey, for which I have very few regrets. (To paraphrase that internationally known left-winger Dr. Seuss, “Oh, the people I’ve met, and the places I’ve been. . . .”) Contrary to the bromide often incor rectly attributed to Winston Churchill (whom I admire on many counts) that “he who is not a socialist when he is twenty has no heart, and he who is still a socialist at forty has no head,” I remain a committed socialist to this day, joining many elders, and now mil lennials, in our unalterable beliefs in the possibility of achieving greater economic, social, and political equality and justice, through governmental intervention, and against tyranny, oligarchy, and dic tatorship worldwide. A very tall order, indeed!

Since Donald Trump’s election, Democratic Socialists of America (DSA), the modern-day successor to the American Social ist Party, has grown almost fourfold from seven thousand to more

than twenty-three thousand members, most of whom are under thirty. I am a charter member. (Membership applications are avail able online!)

In my case, the fact that I have spent my entire career as a law yer representing the rights and interests of working people has only served to reinforce my radical political bent, in light of what I have seen in terms of unrelenting employer indifference and hostility to worker concerns, needs, and rights in favor of maximizing profits at all costs and above all else. For example, a 2017 Economic Policy Institute study shows that 2.4 million low-wage workers in the ten most populous states lose a total of more than $8 billion annually, or an average of $3,300 each, by reason of having been paid below the legally required minimum wage. Shameful! And this is only one of many forms of employer deprivation of legally required wages, including the denial of overtime pay, that we now commonly refer to as “wage theft.” As a friend recently opined: “Steal a pair of sneakers from Walmart, and you go to jail. Steal your employees’ wages, and your profits go up.”

Of course, the history of the left in the United States goes back well beyond 1947, when I signed on, to the late nineteenth century. Indeed, it traces at least to the founding of the Socialist Party by Eugene Victor Debs and others around 1900, after he emerged from jail for the first time, for leading the Great Pullman Strike of 1894, which was broken when President Cleveland sent in troops to arrest the strikers. While in federal prison for six months for contempt of court, Debs studied the works of Edward Bellamy, Karl Marx, and others, and he emerged declaring himself a socialist. His first unsuc cessful run for president as a socialist was in 1900. In 1920 he ran from the Atlanta federal penitentiary, where he was serving a tenyear sentence for simply having made a speech in Canton, Ohio, opposing the World War I draft. He was charged under the Espio nage Act, enacted exactly one hundred years ago, for obstructing the draft. In the 1920 election Debs received over nine hundred

thousand votes. His sentence was commuted by President Hard ing in 1921, and he met with Harding at the White House after his release. Harding is reported to have said, “Well, I’ve heard so damned much about you, Mr. Debs, that I am now glad to meet you personally.” President Wilson had refused earlier to commute Debs’s sentence, considering him a traitor, despite the repeated urg ings of his attorney general. Debs died in 1926 at age seventy. He left a great legacy.111

It is not surprising that Gene Debs is Bernie Sanders’s hero. Bernie, as you must know by now, is a lifelong democratic socialist. (The term democratic was adopted early on to distinguish us from the “anti-democratic” socialists—namely, the communists—and not to indicate what kind of “big D” Democrats we are.) Debs’s picture hangs proudly in Bernie’s senatorial office. Indeed, in 1979 Bernie made a documentary about Debs that is available on YouTube.

That there is historic continuity between Debs and Bernie is clear. And indeed, that Bernie received more than 13 million votes in the Democratic primaries last year is a signal to me that the Debsian socialist vision and flame has never been completely doused, but like those miraculous Chanukah candles, they continue to flicker in the American political consciousness—as we shouted out during the 2016 primary campaign: “Feel the Bern.” (I should mention that Bernie defeated Hillary in the Democratic primaries in every Martha’s Vineyard town.)

During the intermittent period since Debs’s death, socialists have not been without influence or successes. Many of the reforms of the New Deal, such as Social Security and the minimum wage, came from such socialists as Presbyterian minister Norman Thomas, who was long known as “the conscience of America.” I remember 111. See Nick Salvatore, Eugene V. Debs: Citizen and Socialist (Champaign: University of Illinois Press, 1989); and Ray Ginger, The Bending Cross (New Brunswick: Rutgers University Press, 1949).

as a young lawyer being inspired by Thomas, who fancied himself a quipster, advocating a society “based on deed and need, versus greed and breed.”

And socialist A. Philip Randolph, who headed the Brotherhood of Sleeping Car Porters union (see the documentary 10,000 Black Men Named George), brought about the end of Jim Crow employment in defense industries in 1941 and segregation in the military in 1947 by threatening President Roosevelt and later President Truman with protest marches on Washington. Randolph finally did lead a march in 1963, when a quarter of a million Americans, Black and white, participated in the famed March on Washington for Jobs and Free dom, which was a major turning point in the civil rights struggle.

Also, Michael Harrington, a longtime democratic socialist leader until his death in 1989, at sixty-one wrote The Other Amer ica, which sparked the Kennedy-Johnson War on Poverty. It was an ambitious and high-minded war, but President Reagan cynically declared about it in 1987 that “poverty won!” Indeed, in my view, all the Right can claim as achievements in the twentieth century and beyond is to have opposed and thwarted progressive advances in social and economic conditions in our land, and under Trump they are now engaged in undoing significant social progress already achieved. I should add that while democratic socialists may be few, our presence provides important public voices that have the potential for providing both leadership and direction regarding national policies, just as have many of our leaders in the past. Bernie remains one of those voices.

At the polls, third-party efforts, including those of socialists, never succeeded in gaining significant political traction. Indeed, they more often served to distort the presidential election results as between Democrats and Republicans. First, there was Teddy Roosevelt’s 1912 “Bull Moose” campaign against President Taft and Woodrow Wilson, which resulted in Wilson’s election (Wilson 41 percent, Roosevelt 27 percent, and Taft 23 percent). Then, there

was the 1948 election (Truman 49.5 percent, Dewey 45 percent, Thurmond 2.5 percent, and Henry Wallace 2.5 percent); the 1968 election (Nixon 43 percent, Humphrey 42 percent, and George Wallace 13 percent); the 1992 election (Clinton 43 percent, George H. W. Bush 31 percent, and Perot 19 percent); and the 2000 election (George W. Bush 47.87 percent, Gore 48.38 percent, and Nader 2.7 percent—with Bush taking the presidency by winning the Electoral College vote, 271–266, despite his losing the popular vote).

Often during many twentieth-century elections, the differences between the two major parties seemed to some voters on the left as a choice between Lewis Carroll’s “Tweedledum and Tweedledee.” But more recently, the Republicans have been moving solidly right ward, and the Democrats correspondingly leftward, so that the clear political realignment that many of us on the left had hoped for many years ago has arrived. But there is the caveat entitled “Be careful about getting what you wish for.” So we got our desired political realignment, but we got Donald Trump to boot, as well as a more politically divisive country. Good or bad? That remains to be seen.

It is no accident that Bernie Sanders chose to participate in the Democratic primaries rather than run a third-party campaign against the two major parties. The Democratic Party’s left wing proved far more amenable to Bernie’s candidacy and views than even he had anticipated. And in light of the political realignment that has emerged, it is clear that this was the right decision for Bernie despite Trump’s victory, since it served to make progressive politi cal change a viable and permanent part of the Democratic Party’s political future, which it must now articulate and advance, as prob lematic as that may be. Indeed, recent polls indicate that Hillary Clinton’s campaign suffered as a result of the perception that the Democrats are the party of Wall Street. And President Obama’s recent $400,000 fee for a single speech at a Wall Street firm did not help to undo that impression.

In my view, the Democrats must now articulate a program of popular general advancement in employment conditions and opportunities, single-payer health care, free public college tuition, environmental protections, true infrastructure repair and develop ment, law enforcement reform, aid to declining communities, and fair and realistic tax policy—if they hope to regain control of Con gress and the White House and lead the country forward in the years to come.

Despite all of the foregoing, the question remains as to why at this time Bernie has emerged as so popular an American political figure, and what, if anything, has changed to make it possible? Can it simply be attributed to Bernie’s rhetoric, platform, and personal ity, or are there other, deeper circumstances in our history that may be responsible? These are the questions, among others, that I pro pose to explore today.

In this connection, it is appropriate to note that 2017 is the onehundredth anniversary of the Russian Revolution, because if there is any single historical event that can be said to have served to impede the progress of American socialism in the twentieth century, it was the successful seizure of power by the Bolsheviks in Russia in 1917. The Soviet putsch sent shock waves throughout Europe, which was then three years into the bloodiest war in history, as well as in the United States, which had just entered that war on April 6, 1917, on the side of Britain, France, and Russia. American radicals, social ists, and pacifists had vigorously opposed America’s entry into the war from its beginning, on anti-war and anti-capitalist grounds.112 Indeed, President Woodrow Wilson’s principal campaign theme in his 1916 run for a second term was “He Kept Us Out of War!” But once the United States entered the war, the government turned against war opponents with the greatest energy and zeal.

112. See Michael Kazin, War Against War: The American Fight for Peace, 1914–1918 (New York: Simon & Schuster, 2017).

In the years following the war’s end, the Justice Department, under the leadership of Attorney General A. Mitchell Palmer, con ducted the infamous Palmer Raids, in which hundreds of radicals and anarchists were arrested and deported during the so-called “Red Scare.” It is not without significance to subsequent American history over the next more than half century that on August 1, 1919, Attorney General Palmer appointed then twenty-four-year-old J. Edgar Hoover to head a new division of the Justice Department’s Bureau of Investigation, known as the Radical Division. Hoover ultimately became head of the FBI in 1924, which he ran for fortyeight years, until he died in office at age seventy-seven, on May 2, 1972, on the eve of the June 17, 1972, Watergate break-in. During Hoover’s tyrannical almost-half-century incumbency at the FBI, during eight presidencies, he and his acolytes proceeded to moni tor and suppress the Left (and the civil rights movement as well) at every possible turn, and they viewed left-wing political movements as an expression of anti- and un-American activity. That Hoover’s intense surveillance and persecution had a deeply adverse impact on the Left’s growth and development during his incumbency is undeniable. I and people I know here on the Island and elsewhere long had FBI files based upon political associations and activities. Indeed, by 1960, the FBI had compiled lists and dossiers cover ing 430,000 individuals and organizations suspected of subversive activities. In addition, it engaged over 100,000 informants to spy on, and infiltrate, suspected organizations and their members. A standing joke about the Communist Party was that half its funds came from Moscow and the other half from the FBI.

In addition to intense anti-Left persecution by instrumentali ties of government after the Russian Revolution, the American Left was engaged in deep internecine warfare up to the period leading into World War II and beyond. First, a deep schism developed in the American socialist movement between pro- and anti-Soviet wings and factions commencing in 1919. These splits also occurred

in left-wing parties worldwide. The fissures widened further with the death of Lenin in 1924 and the ascension of Joseph Stalin to supremacy in the Soviet hierarchy. The subsequent expulsion in 1929 from Russia of Leon Trotsky, who had been a major ally of Lenin, and his establishment in exile of an international socialist movement opposed to Stalin’s dictatorship further fractured the Left. The murder of Trotsky in Mexico in 1940 by a paid Stalin ist assailant was another horrible chapter in international left-wing history.

An example of both persecution of leftists in the United States and left-wing divisiveness occurred in July of the following year, 1941, when the Justice Department deployed the Smith Act (enacted in 1940 as the Alien Registration Act) to indict the entire leadership of the Minneapolis local of the Teamsters Union, who were mem bers of the Trotskyist Socialist Workers Party; the Department also indicted leaders of that party itself. (That union local had been the center of the bloody but successful Minneapolis General Strike of 1934, and it had organized some two hundred thousand over-theroad truck drivers in the Midwest into a single bargaining unit.) The Smith Act made it a crime to teach, advocate, or threaten the violent overthrow of the government. Characteristically, this prosecution was applauded and sup ported by the American Communist Party. Eighteen of the defendants were convicted and jailed. The prosecution had been instituted by then Attorney General Francis Biddle. In his memoirs published in 1962, Biddle said that he regretted having authorized the prosecution.113

It was perhaps poetic political justice that less than ten years later, in 1949, eleven Communist Party leaders were themselves indicted under the very same Smith Act for engaging in “subversive” activi ties. Their convictions were upheld by a divided Supreme Court.

113. Biddle, In Brief Authority (New York: Doubleday, 1962), 152.

Similar prosecutions followed. Another major development was the federal indictment and conviction of Julius and Ethel Rosenberg in 1951 for espionage by having passed military secrets to the Soviets. They both were electrocuted for their crimes in 1953. Despite out cries of their innocence by the Communists, who tried to make the case a national cause célèbre, the Rosenbergs’ guilt was confirmed by Soviet documents released by Russia in the 1990s.

In terms of continuity in American history, one of the federal prosecutors in the Rosenberg case was Roy Cohn, who later became counsel to Wisconsin Senator Joseph McCarthy during a period of extreme anti-Left paranoia that we refer to as “McCarthyism.” Indeed, President Donald Trump continues to accuse his detrac tors of engaging in it. It is of some historical interest that Cohn went on to be a lawyer for, and mentor of, Trump. Perhaps that is how he became aware of it.114 Cohn, who died of AIDS in 1986, shortly after having been disbarred, was the subject of Tony Kushner’s 1993 Pulitzer Prize–winning Broadway play Angels in America.

The election of John F. Kennedy in 1960 was seen by some as providing an opening for the Left after the eight years of President Eisenhower’s moderate Republican incumbency. But the issues of the failed Bay of Pigs invasion of Cuba, engineered by the CIA in 1961; the Cuban Missile Crisis of 1962; and the expanded Ameri can involvement in Vietnam ensured that the Left would remain both divided and suspect during the sixties and seventies. The assas sination by Soviet visitor Lee Harvey Oswald of President Kennedy on November 22, 1963, and the assumption of the presidency by Lyndon Johnson, who proceeded to escalate the Vietnam War, made matters even worse. Civil rights demonstrations helped to advance the civil rights cause, but anti-war demonstrations helped cause President Johnson to decide not to run for reelection in 1968.

114. See Jonathan Mahler and Matt Flegenheimer, “What Donald Trump Learned from Joseph McCarthy’s Right-Hand Man,” The New York Times, June 20, 2016.

The riots at the 1968 Democratic National Convention in Chi cago and the subsequent trials of the “Chicago Seven” probably helped achieve the election of Richard Nixon to the presidency in November 1968 and again in 1972. Nixon, of course, had been a master of “red-baiting” throughout his political career, beginning with his successful 1946 campaign for the House seat of California Congressman Jerry Voorhies and thereafter in his vicious and suc cessful 1950 campaign for the California Senate seat against Helen Gahagan Douglas, whom he dubbed “the Pink Lady.” Douglas, on the other hand, called Nixon “Tricky Dick” for his many campaign dirty tricks. As a congressman, Nixon was an active member of the House Un-American Activities Committee, whose investigation led to the perjury conviction of former State Department official Alger Hiss for denying under oath his communist involvement. And the Nixon Watergate tapes reflect Nixon’s deep-seated hostility toward communists and the Left generally.

The Solidarity union movement in Poland in the early eighties, the later events in Czechoslovakia and Eastern Europe, Gorbachev, glasnost, perestroika, the fall of the Berlin Wall, and the lowering of the Soviet “hammer and sickle” flag for the last time in Moscow on December 25, 1991, ended three quarters of a century of a monstrous global social, political, and economic disaster. For some, the failure of Soviet communism represents a demonstration of the mistaken historic socialist ideology and hopes. But for most democratic socialists, the Soviet demise inspired the figurative sing ing of “Ding, dong, the wicked witch is dead!”115—that is, it freed working people and many others across the globe from the yoke

115. The lyric was written by socialist Yip Harburg, who also wrote “Somewhere Over the Rainbow” and “Brother, Can You Spare a Dime?” My friend Harold Meyerson and Harburg’s son Ernie wrote his biography, Who Put the Rainbow in the Wizard of Oz? Yip Harburg, Lyricist (Ann Arbor: University of Michigan Press, 1993). I learned today that Harburg was a longtime Vineyarder and golfing partner to some people in this room.

of a complete perversion of socialist ideology, which had served to enslave rather than liberate, its original intention. Regrettably, new right-wing authoritarian structures have been imposed in Rus sia by a corrupt oligarchical “power elite.” Simply put, Putinism has replaced Stalinism.

In any event, the demise of Soviet communism as a world force has taken away from American right-wingers a major quiver for their anti-Left bow and has required them to find new ammunition in their never-ending anti-Left assaults. To be sure, the playing field has not been leveled by the Soviet demise, considering the tremendous advantage the Right has in terms of “dark money” and the resulting political power that it commands. It was Louis Brandeis, who often was accused of being a socialist but was not, who said, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.” Still, Bernie’s successes, and the emergence of a new generation of optimistic and committed young and even older people to his ranks and causes, and beyond, provide hope that the future holds better prospects for democracy—and the democratic Left as well—despite Brandeis’s dire prediction.

Another cause of the current left-wing revival can be traced to the Great Recession of 2008/2009. You will recall that it began with the bursting of an $8 trillion housing bubble. The resulting decline in wealth caused huge reductions in consumer spending and business investment. Massive job losses followed. In 2008 and 2009 the U.S. labor market lost 8.4 million jobs, or 6.1 percent of all payroll employment. This was the greatest employment loss since the Great Depression. And the decline in family income, the loss of health insurance, the increase in poverty, and the drop in the stock market undermined significantly public confidence in the capitalist economy and system. The collapse of Lehman Brothers and the governmental loans to bail out Wall Street and the auto industry served to support the notion that government was in the corner of

the big banks and big business. As many on the left declared, it’s “socialism for the rich, and capitalism for the poor.”

In response to the adverse impact of the Great Recession, by 2011, almost spontaneously, there emerged the anti-capitalist, anti–Wall Street Occupy movement, which engaged initially in an encampment in Zuccotti Park in lower Manhattan near Wall Street, with similar sit-downs occurring later across the country and the world. In the U.S. the movement focused principally on eco nomic inequality and declared itself the representative of the 99 percent in its confrontation with the 1 percent, who the Occupiers felt wrongfully owned and controlled a huge and inordinate share of the nation’s wealth. The movement lacked organizational struc ture, leadership, and permanency and ultimately faded out of the picture. But the fact that so many citizens were prepared to express their deep political anger and frustration in such a dramatic fashion left a permanent impression of deep public discontent that may have found new expression in the Sanders, and perhaps even in the Trump, campaigns.

For socialists especially, the rightward shift of large numbers of white working-class voters has been most bedeviling. Traditionally, and ideologically, we always considered working-class voters to be the backbone of the Left, since they had the most direct and immediate confrontation on the job with corporate power and the employer class, and historically they regarded Democrats more worker-friendly than Republicans. But the loss of almost 7 million manufacturing jobs since 1980, particularly in the “rust belt,” the corresponding decline in the size and strength of the labor move ment, cultural and lifestyle issues and differences, and the deplorable fact of Hillary Clinton in her election campaign having tagged all Trump supporters as “deplorables” caused a cleavage between middle-class Democrats and Trump working-class supporters. In retrospect, Trump’s populist promise of restoring millions of wellpaying jobs was an important factor in his victory.

In the wake of Bernie’s campaign, as well as the shocked reac tion of the Left to Trump’s election, huge numbers of citizens have come forward to involve themselves in opposition and “Resistance” to the Republican election victory as well as such Trump and Republican policy initiatives as repealing Obamacare. And people who have never previously been involved in political activity have picked up the political cudgels.

There are numerous new groups on the left that have emerged after the Trump victory. From the Sanders campaign an organization emerged called “Our Revolution,” dedicated to electing progressive candidates on a local, state, and national level; growing new politi cal leaders; enacting progressive ballot initiatives; and combating Trumpian efforts to dismantle the vast safety net created during the New Deal. Also, an organization known as “Indivisible” emerged after the election with a similar agenda. It came out of a politi cal handbook published online by a group of former Democratic House staff members who thought that creating a Tea Party–like entity and program would be effective on the left. Thus far, both of these organizations have been highly successful in organizing across the country. And there are many others with similar objectives.

Let me conclude by making a point about the overall task of the Left at this time, as I see it. The threats we face today are not merely to the achievements of the welfare state as it has developed over the last eighty or so years, as ominous as they may be. Our constitutional democracy, the rule of law, trust, and truth are also under tremendous assault from the Right and the Trump White House. Protecting these institutional interests are generally seen as centrist political values. But I believe that doing so has been an essential element of the democratic Left’s program historically. The American Civil Liberties Union, for example, which now has over 1 million members, was founded in 1920 by a small group of pacifists, socialists, and feminists, including Roger Baldwin, Crystal Eastman, Arthur Garfield Hays, Jane Addams, and Elizabeth Gurley Flynn.

Preserving and advancing democracy, the Constitution (despite its many weaknesses), a free press, and free speech are objectives and values that extend across a broad political spectrum, requiring the cooperation of many who may not agree on everything. But the right to disagree, too, must be respected, and protected, for and by all. This is an important task that the Left must undertake mindfully today.

Finally, I commend to you Yale history professor Timothy Sny der’s splendid recent pamphlet On Tyranny: Lessons from the Twentieth Century, in which he makes twenty recommendations on how we may together resist the tyrannical encroachments on our freedoms and liberty presented by the Trump regime. If we work together, we can survive to see our democracy preserved intact for our children, grandchildren—and beyond.

Part Five

aRacism and Civil Rights

In this section I deal with two aspects of the struggle for civil rights in the United States. The first describes the historic August 28, 1963, March on Washington for Jobs and Freedom, which was inspired and led by A. Philip Randolph, then the leader of the all-Black Brotherhood of Sleeping Car Porters but much earlier a longtime socialist organizer and agitator, and Bayard Rustin, a pacifist and socialist who had long been an anti-war militant and civil rights activist. Secondly, I trace the continuing struggle for the franchise in the United States, going back to before the American Revolution until the present. That struggle, despite its successes, has intensified since I wrote my paper in 2016, and I have added a brief postscript describing how the campaign to undermine the right to vote by minorities and the poor is presently in high gear across the country with the Republican Party at the throttle.

Remembering the Great 1963 March

august 28, 2013, wIll Be the fIftIeth annIversary of the march on Washington for Jobs and Freedom. For me the anniversary recalls vivid memories of a very hot day in Washington when, as one of many Washingtonians, I worked as an organizer of the March. We had been preparing for weeks for the arrival by bus, car, plane, and foot of tens of thousands of Americans who were responding to the call by the collective leadership of the civil rights movement to journey to the nation’s capital to protest to our nation’s leaders about the terrible injustices of racism in employment, voting, public accommodations, housing, and education that afflicted our Black brothers and sisters.

At the time of the March, I was working as a lawyer in the legal department of the million-and-one-half-member International Brotherhood of Teamsters, then under the leadership of its presi dent, James R. Hoffa. However, my involvement in the civil rights movement went back to my Brandeis days when, in my second year,

in 1954, I heard Dr. Martin Luther King Jr. speak on campus to a packed audience of students and faculty during the Montgomery, Alabama, bus boycott, which he led. In my youthful innocence, I thought: “Where will all this preaching get him?” How wrong I was!

During the ensuing years, through my involvement while at law school at the University of Chicago in the Young People’s Social ist League (YPSL, known affectionately by some as the Yipsels), I engaged in support activities for the sit-ins that broke out across the South early in 1960; a campaign during the summer of 1960 to integrate a Jim Crow swimming pool at Glen Echo Park in suburban Maryland; with Stokely Carmichael, achieving the integration of a men’s shirt factory in Albany, Georgia, that had employed only white women; and with the Teamsters Union’s help, sponsoring a fundraiser for the Student Non-Violent Coordinating Committee (SNCC) at Teamsters headquarters, at which a very young Bill Cosby kept us all laughing. So for me the March was the culmina tion of many years of civil rights activity.

The March had been initiated by A. Philip Randolph, the ven erable leader of the ten-thousand-member Sleeping Car Porters Union. Randolph’s calls for a similar march in 1941 had caused President Franklin D. Roosevelt to integrate the defense industries, and for another in 1947 had caused President Harry S. Truman to integrate the American military. As a result, Randolph had called off those marches.

But late in 1962, at age 74, Randolph concluded that it was finally the time to march. He believed that the moment was right for a major civil rights protest in Washington to continue the momen tum that had developed from the sit-ins, freedom rides, and other civil rights struggles then occurring. The NAACP, the Congress of Racial Equality (CORE), the National Urban League, the United Auto Workers (UAW), and SNCC agreed. Civil rights leader and socialist Bayard Rustin, whom I knew from my Chicago days, was appointed coordinator by Randolph. Working closely with Bayard in

New York at that time were our YPSL stalwarts Rachelle Horowitz and Tom Kahn, so we YPSL members saw ourselves playing a spe cial role in organizing the March (I still have copies of the initial leaflets and instructions that were issued from March headquarters in Harlem).

The preeminent militant civil-rights leader in D.C. at the time was Julius Hobson. He had played a major role in desegregating Washington’s schools, and much else. He assumed responsibility for the logistics in Washington, and he conducted endless meetings at which we dealt with housing, transportation, health, security, legal, and other issues.

I was assigned responsibility for a section of the Mall in order to avoid disruptions and to respond to emergencies. For this, I was issued a huge “walkie-talkie” from which I could contact March leaders, the police, and others as needed.

As the day of the March approached, fears of violence mounted. Editorials in major newspapers like The New York Times and the Washington Post urged the March leaders to call it off for fear of disruptions that they thought would hurt the cause of civil rights. President Kennedy’s White House also sought to stop the March.

It should be remembered that August 28, 1963, predated the escalation of the war in Vietnam and the huge anti-war protest marches opposing it that came later during President Johnson’s administration. So the violence that had accompanied some of the sit-ins in the South was seen as possible for the March. Bayard and the other leaders were undeterred, and arrangements to bring thou sands to Washington continued.

I was on the Mall in Washington, D.C., by 5:30 a.m. on August 28, and as the dawn came up, all was quiet. As Bayard said in his film biography,116 he, too, saw nothing and worried about the outcome. But soon buses and people began to arrive in droves and assemble

116. Brother Outsider, the Life of Bayard Rustin

around the Washington Monument, where Peter, Paul and Mary, Bob Dylan, Joan Baez, Odetta, and dozens of others sang out for several hours with the heat of the sun beating down upon us as the morning passed and thousands of marchers continued to arrive.

At a certain point, the huge throng marched down the Mall and Constitution Avenue arm in arm and assembled in front of the Lincoln Memorial, where speeches would be delivered. There were people from all over the country carrying banners and signs, representing mostly churches, synagogues, NAACP chapters, and unions. The great gospel singer Mahalia Jackson sang “I’ve Been ’Buked, and I’ve Been Scorned,” and then Dr. King delivered his famed “I Have a Dream” speech. It was followed by Bayard’s read ing of the March’s demands. Listening to Bayard, I thought to myself that it was he who was dreaming rather than Dr. King. Once again, I happily was proven wrong! Within two years of the March, with President Johnson at the helm, Congress enacted voting rights, employment, housing, and public accommodations and other antidiscrimination laws.

The March must have ended by about 5:00 p.m., with the esti mate of attendees numbering some 250,000. The marchers returned to their buses, trains, planes, and homes after a most inspiring and glorious day.

As for me, I dutifully manned my post to the end in the ninetyplus-degree heat, helping with lost children and heat-stricken marchers, and whatever else came my way. Remarkably, I ran into Larry Kane, a Brandeis classmate of mine, who had taken his daughter Mary to the March. He took my photo with Mary, while I was on my “walkie-talkie.” At the time, Larry was the Brandeis public relations director, so he used the photo in an alumni publica tion. I have the image blown up and framed at home.

That evening, the many YPSLers at the March gathered for a celebration at a run-down Washington hotel where our many comrades who had come from all over the country gathered. We

even had some left-wing celebrities such as Joan Baez in attendance, dancing and whooping it up. Over the next two days, we held a conference at which Bayard, Randolph, Norman Thomas, James Farmer, Eleanor Holmes (later Norton), and others spoke about what the March had accomplished and what still needed to be done as the civil rights movement inched forward.

On August 28 of this year, there will be anniversary celebra tions in Washington, D.C., and across the country, recalling the March and its achievements. But for many of us, the full promise of the March remains unfulfilled. The dream of equality has been undermined by the increasing economic divide in the country.

As for jobs, a central demand of the March was reducing unem ployment. But in 1963 it was 5.4 percent, as against 7.5 percent in April 2013. And Black unemployment was then about 11 percent, while today it is close to 14 percent. The population of the U.S. in 1963 was 190 million, versus 315 million today. And the Black population grew from 20 million in 1963 to 42 million in 2013. So the absolute number of unemployed has almost doubled in the last fifty years.

For me, my mantra in 2013 about the great March is “We may have come a long way, but we’ve got a long way to go!”

Class, Race, Gender, Religion, and the Struggle over the Franchise in the United States (Martha’s Vineyard Men’s Group, July

13, 2016)

I am descended from russIan jewIsh foreBears whose men were conscripted into Czar Nicholas II’s army and fought in Manch uria in the Russo-Japanese War of 1904/05. After surviving the war and the Odessa Pogrom of 1905, they emigrated to the United States. They were not especially religious, but one occasion they held sacred was election day. As a child I watched as they never missed an opportunity to cast their ballots. They let me know that the right to vote was a main ingredient of the freedom this nation offered. And so in this election year, I thought it would be useful to review the long and checkered evolution of the right to vote in this land, especially because it has been so central to our history and also because it continues to be a matter that has not been fully resolved and may cause significant difficulty and conflict in forthcoming elections.

Beginning in colonial America, just as was the case in the mother country, only males with a defined amount of property, or

freeholders, were entitled to vote. Such a condition in British law dated back to at least 1430. William Blackstone, the great Eng lish jurist of the eighteenth century, declared that it was proper “to exclude [from voting] such persons as are in so mean a situation that they are esteemed to have no will of their own.” He argued that poor people would be tempted to sell their votes, so that “this would give a . . . wealthy man, a larger share in elections than is consistent with general liberty.” (In other words, deprive the poor of the vote, so they won’t be tempted to sell it!) In the colonies, enslaved Blacks, Native Americans, indentured servants, women, indebted artisans, and the propertyless generally were denied the ballot. Also, before the American Revolution, there was no colony in which full politi cal rights were extended to either Jews or Catholics.

When a young George Washington ran for the Virginia House of Burgesses in the mid-1750s, his campaign manager handed out at least a half gallon of rum to each propertied voter. The tech nique was called “swilling the planters with bumbo!” Corruption was rampant, and voting participation was low across the colonies. Rotten boroughs flourished, as in the old country.

The American Revolution was instrumental in broadening the franchise, but not solely because of any ideological shift, despite the high-minded language regarding equality and “the consent of the governed” in the Declaration of Independence. More significantly, it was the mobilization of a “well-regulated militia” of all males from ages sixteen to sixty, who were required to serve in the Continental army regardless of their assets, which helped turn the tide. When, for example, George Washington arrived in Cambridge in 1775 to take command of the scruffy continental forces, he was shocked to learn that the New England recruits elected their own officers. Those who fought for independence were incensed that they were not able to vote for legislators. Thus the constitutions of many states, such as Georgia, North Carolina, and Vermont, did not impose a property requirement for voting.

Indeed, the relationship between bearing arms and voting has a long and influential history in this land. For example, the TwentySixth Amendment, adopted in 1971, dropping the voting age from twenty-one to eighteen, is thought to have been in response to eighteen-year-olds fighting in the war in Vietnam. And the Indian Citizenship Act of 1924, granting full citizenship to Native Ameri cans, was enacted partially in recognition of the thousands of Native Americans who fought in World War I. Philadelphia, as a central venue for the American Revolution, was also a critical location for advancing the franchise. Here the contenders on the side of broadening the franchise included as their leader Benjamin Franklin. He opposed property requirements for voting in the radical 1776 Pennsylvania Constitution and declared that he was against any system that gave “the rich a predominancy in government.”

On the other end of the political spectrum was John Adams of Massachusetts. When challenged to eliminate property and other requirements in a new Bay State constitution, he responded that by doing so there will be no End of it. New Claims will arise. Women will demand a Vote. Lads from 12 to 21 will think their Rights not enough attended to, and every Man, who has not a Farthing, will demand an equal Voice with any other in all Acts of State. It tends to confound and destroy all Distinctions, and prostrate all Ranks, to one common Levell.

Of course, you will recall that Abigail Adams had written to John earlier, asking that in the course of building the new nation, he not put such unlimited power into the hands of the Husbands. . . . If perticuliar care and attention is not paid to the Laidies we are determined to foment a Rebelion, and will

not hold ourselves bound by any Laws in which we have no voice, or Representation.

John Adams responded that Abigail’s letter was “the first Inti mation that another Tribe more numerous and powerfull than all the rest were grown discontented.”

It should be noted that during this period, the constitutions of Delaware (1776), Maryland (1776), Massachusetts (1780), New Hampshire (1784), New York (1777), and Pennsylvania (1776) pro tected the rights of free Black males to vote. However, enslaved Blacks and women could not vote in any state.

The struggle over voting rights continued without resolution at the Constitutional Convention in Philadelphia in the spring and summer of 1787. Many delegates sought the imposition of prop erty requirements for voting, but they were not adopted. Instead, voting eligibility was generally left to the states, subject to congres sional oversight.

However, the Constitution did, and does, provide that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”117 This did not mean that many states did not continue to limit the political rights of Jews or Catholics after the Constitution was ratified. They did. Franklin, still the champion of the common man, who himself as a youth had escaped from his apprentice printer indentures to his brother in Boston, spoke at the Constitutional Convention on August 10, 1787 (as recorded in James Madison’s notes):

Doctr [sic] Franklin expressed his dislike of every thing that tended to debase the spirit of the common people. If hon esty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the

117. Article VI.

possession of property increased the desire of more property.

Some of the greatest rogues he was ever acquainted with, were the richest rogues.

Madison added that Franklin worried that if the Constitution “should betray a great partiality to the rich,” it would serve to discourage “the common people from removing to this Country”— that is, discourage immigration that the new nation badly needed.

There were almost 4 million people living in the United States in 1790. By the third national census in 1810, there were 7.2 mil lion, of whom 1.2 million were enslaved Blacks, and there were almost 200,000 free Blacks. And by 1820, there were almost 10 million people. By 1850 there were 23 million, as the population swelled and moved west. According to Alexis de Tocqueville, in his Democracy in America, written after his 1831 visit to the United States, “All classes mingle incessantly, and there is not the least indication of their social position. Everyone shakes hands!”

This was the period of the “Age of Jackson,” when the struggle for the franchise for propertyless males was significantly advanced against the rearguard efforts of slaveholding elites such as John Cal houn (of recent Yale interest) and John Randolph of Virginia. On the other hand, there were those who sought to extend the franchise to all white men, regardless of their assets, as a means of achieving racial solidarity and broad white support for slavery.

Even in New York State in 1821, a battle was waged at a constitu tional convention at which jurist Chancellor James Kent declared that “the tendency of universal suffrage, is to jeopardize the rights of prop erty and the principles of liberty.” He warned of governments of retail clerks, factory workers, and “the motley and undefinable population of crowded ports” so that “the indolent and profligate” would thrust “the whole burdens of society upon the industrious and the virtuous.”

The campaigns and elections of Andrew Jackson between 1824 and 1832 brought many new voters, including farmers, laborers,

and small-business people, into the political process. They united around opposition to the banks and “special privilege.” Jackson made naked populist appeals, decrying the rich that “too often bend the acts of government to their selfish purposes.” And he warned of laws that “make the rich richer and the potent more powerful.”

Elections became more raucous and contentious during this period. On occasion, voting issues made their way to the courts. But early on, the Supreme Court shrank from getting involved. Voting issues were political rather than legal questions, which the courts would, for the most part, avoid for a century.

It should also be mentioned that before the Civil War, there was no clear definition of American citizenship. Indeed, at some point or other, twenty-two states and territories allowed noncitizens to vote. And there was no quota for immigrants. Today it is a crime for a noncitizen to vote in a federal election.

Even more significantly, the exclusion of women from the fran chise would become a major political preoccupation over the next seventy years. Women’s suffrage was considered at the small but famed Seneca Falls, New York, convention of July 19–20, 1848, but voting was not the highest item on the agenda. At that time women were prohibited from inheriting property, signing contracts, and serving on juries, and they were the victims of many other legal disabilities as well as being disenfranchised. The convention was called on one week’s notice by feminist Elizabeth Cady Stan ton and area Quakers such as Lucretia Mott. The convention’s title was “Woman’s Rights Convention: A Convention to discuss the social, civil, and religious condition and rights of Woman.” In preparing the convention’s list of many grievances and proposed resolutions, Stanton added the deprivation by men of women’s right “to the elective franchise.” When Stanton’s husband saw this addition, he warned his wife that “you will turn the proceedings into a farce,” and he left Seneca Falls, so as to disassociate himself from the effort.

On the second day of the convention, the resolutions were individually read and voted upon. The only resolution that was chal lenged was the one written by Stanton which read, “Resolved, That it is the duty of the women of this country to secure to themselves their sacred right to the elective franchise.” Many of those pres ent opposed the resolution, with Lucretia Mott saying to Stanton, “Why Lizzie, thee will make us ridiculous.” This may suggest how unreachable achieving women’s suffrage was viewed at the time.

Frederick Douglass, the only African American at the meeting (there were a number of other sympathetic men present), rose in support of the resolution. He declared that “in this denial of the right to participate in government, not merely the degradation of woman and the perpetuation of a great injustice happens, but the maiming and repudiation of one-half of the moral and intellectual power of the government of the world.” In the end, the resolution passed, receiving a large majority. That it took more than seventy years from Seneca Falls finally to achieve full voting rights for all women in 1920, in the Nineteenth Amendment to the Constitution, is difficult to understand in retrospect.

Unsurprisingly, it was Douglass who unfurled the flag of voting rights for Blacks toward the end of the Civil War. He had been a fervent recruiter of Blacks into the U.S. Army. Over 180,000 Black men, or one in ten of the Union army, had fought in the war. General William Tecumseh Sherman, hardly an idealist, had declared that “when the fight is over, the hand that drops the musket cannot be denied the ballot.”

On April 4, 1865, the day Richmond fell to the Union army, Frederick Douglass told a cheering Faneuil Hall audience in Boston that he supported the “‘immediate, unconditional, and universal’ enfranchisement of the black man in every State in the Union.”

Two days after Lee surrendered to Grant at Appomattox on April 9, President Lincoln, speaking from a White House window, endorsed voting rights for Blacks for the first time. In the audience was John

Wilkes Booth, who growled, “That is the last speech he will ever make!” Booth shot Lincoln at Ford’s Theatre three days later. Clearly, Lincoln’s assassination represented a serious setback for the cause of Black voting rights, succeeded as he was by his Democratic vice president, the racist Andrew Johnson.

The Thirteenth, Fourteenth, and Fifteenth Amendments, enacted between 1865 and 1870, as well as Reconstruction and its aftermath have been the subject of many histories and cannot be covered here except for a few brief observations. First, the enactment of the Fifteenth Amendment, protecting against discrimination in voting on the basis of race, color, or previous condition of servitude, fractured the relationship between the abolitionists and the women’s suffrage movement. Susan B. Anthony and Elizabeth Cady Stanton opposed it on the ground that women were equally entitled to the franchise and should not be left out. On the other hand, Fred erick Douglass, long an advocate of women’s suffrage, supported the amendment, arguing that no one “can pretend that there is the same urgency in giving the ballot to women as to the negro.” With us, he declared, “it is a question of life and death, at least, in fifteen States of the Union.” The radical abolitionist Republican senator from Massachusetts, Charles Sumner, abstained from supporting the amendment, because it did not ban literacy tests or poll taxes, surely a prescient observation. The amendment was narrowly ratified by the states by 1870.

Both before and after ratification, there was a brief period in which Blacks voted in large numbers in the South, often under the protection of federal troops, and Blacks were elected to the House and Senate. But the contested Hayes-Tilden election of 1876 resulted in a deal in which the Republicans would keep the White House and federal troops would be withdrawn from the South, thereby ending Reconstruction and the right of southern Blacks to vote. There followed ninety years of vicious murders, lynchings, terror, and intimidation by the Klan and other groups to prevent

Blacks from voting and enjoying full rights of citizenship. And poll taxes, grandfather clauses, and impossible-to-answer literacy tests were employed as well to the same end. For example, in Louisiana there were 130,000 Black voters registered in 1896, but this num ber plummeted to 1,300 by 1904. It should be mentioned that poll taxes also served to disenfranchise poor whites. Thus there were both class and racial aspects to the post-Reconstruction depriva tions of the franchise.

It was not until the post–World War II period that the issue of voting rights for Blacks was again pushed front and center, and indeed, the issue caused the walkout of southern delegates to the 1948 Democratic Convention over platform provisions, leading to the Dixiecrat Party’s presidential campaign of Strom Thurmond. That was the election in which Harry Truman, in an unexpected victory, narrowly defeated Thomas Dewey of New York. Strom Thurmond carried Louisiana, Mississippi, Alabama, and South Carolina. He became a Republican in 1964 and supported Barry Goldwater against Lyndon Johnson for president.

The cause of Black enfranchisement did not receive significant consideration during the remainder of the Truman presidency— or during the Eisenhower years, when the Supreme Court’s 1954 Brown v. Board of Education of Topeka decision, desegregating public schools, became the center of national attention and conflict.

As for women’s suffrage, it made little progress in the remain der of the nineteenth century, although it had a significant revival in the early twentieth. In the 1916 election, both the Democrats and the Republicans adopted women’s suffrage planks, although the Democrats took the position that it was a matter to be decided individually by the states. By the time the United States entered World War I in 1917, women had obtained the vote in eleven of the then forty-eight states, mostly in the West. The patriotism that the war had evoked lent itself to the argument that the United States could not seek to “make the world safe for democracy,” a Wilsonian

slogan employed in support of our entering World War I, if we denied women a voice in government at home. The combination of lobbying Congress, and sit-ins, marches, and hunger strikes by militant women’s groups both before and during the war succeeded in having the Nineteenth Amendment easily pass the House in January 1918, and it narrowly passed the Senate in June 1919. By August 1920, it had been ratified by three-fourths of the states, and women across the country voted in a presidential election for the first time in November 1920, in which Ohio Senator Warren Hard ing soundly defeated Ohio Governor James Cox.

The first woman elected to the House was Jeannette Rankin of Montana. She served from 1917 to 1919, but she was there after gerrymandered out of her seat. She was elected to the House again in 1940. Rankin is mostly remembered as a pacifist who voted in Congress against entering both world wars. But she wanted to be remembered as the only woman who ever voted in Congress in favor of women’s suffrage. The first female elected as a senator was Hattie Caraway of Arkansas in 1932. Today there are 20 female senators out of 100, and 84 female House members out of 435, or about 1 in 5 overall.

How to assess the fierce male opposition to women’s suffrage during most of American history? Simply put, it can be explained only by the belief that in the natural order of things, women were a lower form of human (“the weaker sex”), which was ordained to work in the service of men, under their direction, guidance, and control, and were confined to childbearing, child-rearing, and the home, leaving dominion over business, finance, government, and public affairs to men as women’s supposed betters in intellect, wisdom, and judgment. Even as enlightened and progressive an American as Louis Brandeis opposed women’s suffrage in the late nineteenth century, although he was thereafter converted by his feminist wife and daughters in the twentieth.

It was not until the broad renewal of the general civil rights

struggle, beginning with the southern sit-ins in 1960, the freedom rides, the 1963 March on Washington, the battles over voting rights in Selma, Alabama, and elsewhere, and the confrontations and beat ings of marchers at the Edmund Pettus Bridge and related murders, that the voting rights issue came to front and center of national attention again. On the strength of President Johnson’s 61.1 per cent popular vote over Barry Goldwater in 1964, his thirty years of experience on Capitol Hill, and his status as a son of the South, he was uniquely positioned to take on southern racist intransigence over voting rights for Blacks. And he did take it on. As he told his attorney general, Nick Katzenbach,118 “I want you to write me the Goddamdest, toughest, voting rights act that you can devise.” On March 15, 1965, Johnson delivered one of the greatest presidential speeches in history to a joint session of Congress, introducing his voting rights bill, declaring in no uncertain terms that “we shall overcome.” You can, of course, hear and read his speech online. However, less than fifty years later, in a 5–4 Supreme Court decision rendered on June 25, 2013, in Shelby County v. Holder, in an opinion written by Chief Justice Roberts, the Court struck down as unconstitutional Section 4(b) of the 1965 Voting Rights Act, which required preapproval by the federal government of changes in the voting laws of certain states. The majority reasoned that circum stances had changed significantly for the better, so that the bases for enacting the law no longer existed, thereby rendering it unconstitu tional as an interference with rights reserved to the states under the Tenth Amendment. In a blistering dissent joined by Justices Kagan, Sotomayor, and Breyer, Justice Ginsburg declared in part that

the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” . . . It discounts, however, that one such condition was the preclearance

118. A U of C Law School teacher of mine.

remedy in place in the covered jurisdictions, a remedy Con gress designed both to catch discrimination before it causes harm, and to guard against return to old ways. . . . Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

Justice Ginsburg demonstrated that many hundreds of pro posed voting changes had been rejected by the Justice Department over the preceding fifty years through the preclearance process. Indeed, such changes are now being implemented without preap proval being required. This will necessitate many years of “after the fact” litigation seeking to set these changes aside.

The Shelby County decision, removing the federal govern ment’s authority to oversee and preapprove changes in the voting laws of nine states and a number of counties, cities, and towns in six partially covered states was not the only defeat for protecting the right to vote. Even earlier, other states began enacting laws that would serve to limit the franchise in the name of upholding and promoting honest elections and avoiding fraud.

A major case of this kind that reached the Supreme Court in 2008 involved an Indiana law that requires voters in primary or general elections to present at the polls a government-issued photo ID, such as a driver’s license or passport: Crawford v. Marion County Election Board, 553 U.S. 181 (2008). Prior to the law, Indiana voters (other than new voters) simply were required to sign a poll book that could be compared with their signature on file. Some voters, candidates, and the Indiana Democratic Party filed suit, challeng ing the law on due process and equal protection grounds. A federal district court in Indiana upheld the law in 2006, and an appeal was taken to the United States Court of Appeals for the Seventh

Circuit. It affirmed the district court’s decision by a 2–1 panel vote. The majority opinion was delivered by Judge Richard Posner, one of the nation’s most distinguished jurists, who, in addition to having served on the Seventh Circuit since 1981, has been on the faculty of the University of Chicago Law School since 1969. In his spare time Judge Posner has written forty books on law-related subjects. It is interesting to quote from Judge Posner’s majority opinion in the Indiana case:

No doubt most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates. Exit polls in recent midterm elections show a strong negative correlation between income and voting Democratic, with the percentage voting Democratic rising from 45 percent for voters with an income of at least $200,000 to 67 percent for voters having an income below $15,000.119 Thus the new law injures the Democratic Party by compelling the party to devote resources to get ting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote.

Nevertheless, Judge Posner, in his majority opinion, concluded that the Indiana voter ID law be upheld, ultimately because the purpose of avoiding fraud at the polls outweighed the possible dis enfranchisement of voters. Circuit Judge Terence Evans dissented. Here’s a straightforward bit of what he had to say:

Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-

119. Donathan L. Brown and Michael Clemons, Voting Rights under Fire: The Continu ing Struggle for People of Color (Santa Barbara, CA: Praeger ABC-CLIO, 2015), 81. See also Jeffrey M. Stonecash, Class and Party in American Politics (New York: Routledge, 2018), 114 (table 5.7).

day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny . . . and strike it down as an undue burden on the fundamental right to vote. The percentage of eligible voters participating in elections has, for many years, been on a downward trajectory. With that be ing the case, one would think states should be looking for creative ways (like allowing people to vote at places they frequent and are familiar with, like shopping malls rather than basements of fire stations) to increase voter participation. Yet, the Indiana law we sanction today does just the opposite. Constricting the franchise in a democratic society, when efforts should be instead undertaken to expand it, is not the way to go.

As you can see, neither of these appellate judges “beat around the bush.”

The Seventh Circuit’s decision was affirmed by the Supreme Court one year later, in 2008. There was a plurality opinion written by Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, with Justices Scalia, Alito, and Thomas joining in the result. A dissenting opinion was filed by Justice Souter, in which Justices Ginsburg and Breyer joined. From the time the Indiana law was upheld, an additional eleven states have enacted similar voter photo ID laws, which will be in place for the elections this November. Many other states had adopted such provisions earlier. An incredible aspect of the Indiana decision is that both Judge Posner and Justice Stevens later publicly questioned the correct ness of their own opinions in the case, which is most unusual. As for Posner, he told the Huffington Post in October 2013 that he had been wrong and that dissenting Judge Evans had gotten it right. He added that “we weren’t given the information that would enable [the proper] balance to be struck” between preventing fraud and

protecting voters’ rights.120 As for Justice Stevens (now retired), he recently declared that his was a fairly unfortunate decision but that he felt himself bound by the facts that were in the trial record and that he thought he was precluded from relying upon other available sources of information. He said that in his view, Justice Souter had gone beyond the record in support of his dissent.

Of course, this raises the issue presented by the use of the socalled Brandeis brief, first employed by Louis Brandeis in arguing Muller v. Oregon in 1908, in which he presented sociological data in his brief to the Supreme Court to support the need to protect women workers on the job. And of course, a Brandeis brief was more famously relied upon in Brown v. Board of Education to prove that “separate but equal” public schools were inherently unequal. Better evidence demonstrating the inhibiting aspects of photo ID requirements in voting, as against the potentiality of voter fraud in their absence, might have had a significant impact upon the result in the Indiana decision and its aftermath.

Judge Posner had a later opportunity to make amends for his earlier opinion in the Indiana case. It was in connection with a 2014 Seventh Circuit case challenging the Wisconsin voter photo ID law. Posner was not on the panel that upheld the law, but he filed an opinion in connection with his request that the entire Seventh Cir cuit review the panel’s decision. The full court declined to do so by a 5–5 vote. In his opinion Posner said that “there is only one motiva tion for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” More specifically, Posner observed that photo ID laws are “highly corre lated with a state’s having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting

120. See The New York Times, October 16, 2013, A16 (New York edition).

by minorities, particularly blacks.” In Wisconsin, according to evi dence presented at the trial, the voter ID law will disenfranchise 300,000 residents, or 9 percent of registered voters.

Much has been written in the press recently about the voter photo ID laws. A headline in the Washington Post of May 23 of this year declared that “getting a photo ID so you can vote is easy. Unless you’re poor, black, Latino or elderly.” For example, a fed eral court in Texas recently found that 608,470 registered voters there do not have the forms of identification that the state now requires for voting. And it has been estimated that 11 percent of voting-age Americans do not have government-issued photo IDs. Recently, former Attorney General Eric Holder compared the costs and difficulties associated with obtaining birth certificates, citizenship papers, and other documents required to obtain voting rights or IDs as a new form of poll tax or other taxes that were outlawed by the Twenty-Fourth Amendment in 1964. Many of the new laws presently are in litigation but can be expected to be enforced in the November 2016 elections.

Clearly, efforts to limit access to the polls continue to be a pres ence in our political system. But there have been some positive countertrends as well. The principal tool designed to expand voter access has been the National Voter Registration Act of 1993. It had been vetoed by President Bush in 1992 but was signed into law by President Clinton in 1993. The linchpin of this law is its “Motor Voter” component, under which states are obligated to integrate voter registration with applying for a driver’s license. However, in the twenty-three years that this law has been in effect, many states have simply not been complying. Similarly, although the law requires that state agencies offering or renewing public-assistance benefits provide voter registration assistance, here, too, noncompliance has been substantial. Efforts to improve compliance in these areas have also required litigation, but progress has been slow.

My recitation of the history of the expansion (and occasional

retraction) of the right to vote in our country is a useful recapitu lation of what it has taken to advance the franchise for all of our citizens in the last two-hundred-plus years of our country’s history. Hopefully, the future will see the expansion of these rights of fran chise so that all citizens will be able to exercise their voting rights more fully and freely, and without artificial impediments, so that they may participate in determining our nation’s future and destiny.

Postscript

Four years of Donald Trump’s barbaric presidency; his defeat by Joe Biden in 2020, which produced the largest number of votes cast in history; his false claim that the election had been stolen, which the pollsters tell us that at least two-thirds of Republicans believe; the election of two Democrats, a Black minister and a Jewish poli tician to the Senate from the state of Georgia, which resulted in the Democrats achieving narrow control of the Senate—all this set off alarm bells for the Republican Party in 2021 over the growing electoral participation and influence of minority voters across the country.

As I write in August 2021, there are at least 361 new Republicansponsored voter restriction bills filed and pending in forty-seven states. On May 30, 2021, the Republican-controlled Texas State Senate passed far-reaching election laws that would ban drivethrough voting; twenty-four-hour voting; using tents, garages, and temporary structures for voting; and would prohibit election officials from sending absentee ballots to all voters and otherwise limit absentee voting. New restrictive voting provisions already have been enacted in Georgia and Florida. President Biden has called these laws “an assault on democracy,” designed to disproportion ately deprive Black and Brown Americans of the franchise. He declared that “in the 21st century we should be making it easier, not harder, for every eligible voter to vote.” According to a report by

the Brennan Center for Justice, as of May 4, 2020, fourteen states already had passed twenty-two new laws that make access to voting more difficult.

With the 2022 midterm elections in sight and with three new conservative Trump appointees on the Supreme Court, giving the Republican appointees a 6–3 edge, the nation’s ability to ensure that all citizens’ right to be heard at the polls is protected, and that they not be disenfranchised, has been seriously undermined.

Part Six

aTrump

Along with many of our friends, I spent the evening of November 8, 2016, at the home of Bonnie and Hamilton Loeb in Washington, D.C., watching the results of the national election on television. (My wife, Linda, was in New York City, planning to attend a Hillary Clinton victory celebration that never occurred.) We all left for home devastated because Donald Trump had been elected. When the result became clear, Ham Loeb and I stared at each other in disbelief but with knowing glances that said that we both were certain that the coming four years would be the worst in the history of the American presidency. Sadly, Ham did not live to see Trump defeated four years later by Joe Biden.

In my case, I arose daily for the next four years still in disbelief that Trump was president, and I was determined to do all I could to see him removed from office, or otherwise be limited in the damage he was able to do to almost every positive aspect and institution of American life. Indeed, I established an online petition during the first year of his incumbency, urging both the House and Senate to censure Trump for various aspects of his misbehavior, which at some point

numbered at least eighty grounds, and for which over eighty thousand citizens signed on.

As we know, Trump was the first president ever to be impeached twice by the House during his one term of office, and one year later, in what has become known as “the Big Lie,” he claimed that he had won the election but his victory had been stolen by fraud. In this section I include some articles I wrote that con vey a few examples of what transpired during the four-year Trump nightmare. We learned to our dismay that “it could, and did, happen here!”

Deconstructing Dershowitz (July 2018)

I am a longtIme summer vIsItor to martha’s vIneyard, But I do not know Alan Dershowitz personally. I have never invited him or disinvited him to dinner, although I have seen him holding court on the porch at the Chilmark Store. And as a lawyer, I am familiar with his remarkable career.

But I have read recently about his “j’accuse” against certain Vineyarders for making him the victim of McCarthyism. In addi tion, he has been defending publicly what he considers to be the constitutional rights and civil liberties of President Trump, claiming that the recent revocation of the bond and jailing of Trump’s former campaign manager, Paul Manafort, is illegal; and claiming that the FBI raid on the home, office, and hotel room of Trump’s former lawyer Michael Cohen was unconstitutional. All of these claims invite a reasoned analysis and response from a fellow Vine yarder, native Brooklynite, and lawyer, so here goes!

McCarthyism on Martha’s Vineyard

Dershowitz has complained, “I never thought I would see McCar thyism come to Martha’s Vineyard, but I have,” referring to the social snubbing he says he has received here because of his defense of Donald Trump.

I have examined many definitions and examples of McCarthyism but was unable to find anything remotely close to the conduct that Dershowitz accuses his former friends of engaging in being described that way. As Dershowitz well knows, McCarthyism was the process whereby Senator Joseph McCarthy and others, in the 1950s, made public accusations of individuals’ Communist Party membership or sympathies, as well as treasonous activities, which resulted in the discharge or blacklisting from employment, or the prosecution and jailing, of vast numbers of Americans. As put by a recent letter writer to The New York Times (July 5, 2018):

No one is making false accusations against [Dershowitz] or accusing him without evidence of treachery. No one is threat ening to imprison him if he doesn’t denounce his friends. No one is denying him a living or threatening to harm him.

We are living through one of the darkest moments in our nation’s history. For Dershowitz to accuse people on the Vineyard of McCarthyism is pure demagoguery and group defamation. What Dershowitz is complaining about is the fact that many people find his actions and statements in support of the most reprehensible, dishonest, and reactionary president in our history to be beyond the pale of reasoned discourse. One of our remaining freedoms is to be able to end friendships, which may be painful for all concerned. But accusing former friends of McCarthyism because they wish to unfriend Dershowitz is simply an additional reason for others to do so. Thus it is a self-inflicted wound.

Even further, it is bizarre for Dershowitz to say (which he has) that because he is being ostracized by his former friends for aid ing Trump, it is they who thereby are aiding Trump. Sadly, as in too much else, his logic is Trumpian, and it unfairly disparages a community whose values are deeply thoughtful and caring. Being shunned by old friends is painful. The numerous recent incidents of shaming involving Trump administration figures at restaurants and elsewhere demonstrate how deep the divide in our country has become because of the extremely divisive behavior of President Trump. The litany of Trump’s lies, abuses, and misdeeds needs no repetition here. But hopefully a time will come when we can all look back on this nightmarish period honestly and try to come together for the greater good of our country, its people, and the world. I look forward to that time, but I fear it may not be arriving anytime soon if Donald Trump and Alan Dershowitz continue their destructive courses.

So as to McCarthyism on the Vineyard, if it exists, it consists of Dershowitz being Trump’s Joe McCarthy.

Dershowitz on Impeachment

Dershowitz claims that President Trump may not be charged with a crime while in office; that the sole basis for his impeachment by the House of Representatives would be the commission of a crime; that to be removed from office, he must be convicted of such crime by a two-thirds vote of the Senate after a trial; and that a president’s motives may not be considered in judging his actions, such as granting pardons or discharging employees. In his latest book, out this month, Dershowitz tries to make “The Case Against Impeaching Trump.” And he repeatedly has asserted that “you can’t remove or impeach a president for malpractice in office.”

Similarly, as to whether Trump colluded with the Russians to sway the 2016 election, in a media interview in New Zealand in

March of this year, Dershowitz said there was no question that Rus sia meddled in the election, and he further acknowledged that he did not know whether Trump did collude but said that if he did, “it would be terrible, but not a crime” and therefore would not be an impeachable offense. In fact, however, the claim that the president must be guilty of a crime in order to be impeached is without foundation. Arti cle II, Section 4, of the Constitution declares that “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Thus, in a June 2018 article in the conservative Federalist Society Review (available online), Professor Robert C. Natelson, a leading constitutional scholar, concluded on the basis of extensive historical research regarding the term “high  . . . Misdemeanors” as follows:

We best capture the meaning of the phrase “high . . . Mis demeanors” when we think of it as referring to breaches of fiduciary duty. High misdemeanors are not limited to commission of crimes, but they do not include mere politi cal differences. While violations of the criminal law provide grounds for impeachment, high misdemeanors encompass breaches of the duties of loyalty, good faith, and care, and of the obligations to account and to follow instructions (including the law and Constitution) when administering one’s office.

Many other constitutional law experts—including Professors Lawrence Tribe and Cass Sunstein, both of the Harvard Law School, and American University Professor Allan J. Lichtman, in his 2017 book, The Case for Impeachment (of Donald Trump)— agree that egregiously wrongful acts that are not criminal in nature may nonetheless be the basis for impeachment. As put

by Alexander Hamilton in 1788 in The Federalist Papers (number 65): Impeachment will “proceed from the misconduct of public men, or, in other words, of the abuse or violation of some public trust,” and “they relate chiefly to injuries done immediately to the society itself.” Similarly, at the Constitutional Convention, James Madison said that the impeachment provision was neces sary because it was indispensable that some provision should be made for defend ing the Community agst. [sic] the incapacity, negligence or perfidy of the chief Magistrate. . . . He might pervert his ad ministration into a scheme of peculation or oppression. He might betray his trust to foreign powers.

Finally, Federal Appeals Court Judge Brett M. Kavanaugh, who has been nominated by President Trump to the Supreme Court, wrote in a 2009 law review article that there is always a way to remove a “bad-behaving or law-breaking President. . . . If the President does something dastardly, the impeachment process is available.” (Emphasis added.)

Thus it is clear that Dershowitz’s view is mistaken that criminal behavior is a requirement for impeachment. Similarly, Dershowitz asserted recently that “you cannot question a president’s motives when [he] acts,” in connection with proving that he has committed a crime. Thus Dershowitz argues that a president may fire an employee, such as former FBI head James Comey, or pardon someone, and his motives may not be examined in order to prove, for example, that he has engaged in obstruction of justice. The flaw in Dershowitz’s reasoning, as pointed out recently by Professor Lawrence Tribe, is that the Constitution expressly makes the crimes of treason and bribery specific grounds for impeachment, both of which require proof of motive. For example, imagine a president who

grants a pardon or appoints a federal judge in exchange for a cash payment. Last summer, with friends, I began collecting an inventory of acts by President Trump, some of which might ultimately be determined to warrant impeachment but at a minimum constitute breaches of trust and fiduciary obligations, as well as egregious behavior, which separately or collectively warrant censure by both the House and Senate. Among many others, President Andrew Jack son and Senator Joseph McCarthy were censured by the Senate on grounds far less egregious than those committed by Donald Trump while in office. Our grounds for censure now number almost fifty and are collected at censuredonaldtrump.com. They have garnered over sixty thousand signatures and will be delivered to all Senate and House members. They include his contempt, abhorrence, and lack of respect for the rule of law; his disparagement and ridicule of federal judges, members of Congress, and his political opponents; his continuous lying to the public and the press; his continuing to receive profits and benefits from foreign governments in violation of the Constitution’s Emoluments Clause; his unending attacks on the press as “the enemy of the people”; his efforts to undermine the Justice Department and its Mueller investigation; and his racist and sexist remarks and actions—to mention just a few.

The Jailing of Paul Manafort

Recently, Paul Manafort, Trump’s former campaign manager, after having been indicted in the District of Columbia for multiple federal crimes and released on a $10 million bond, had his bond revoked by a judge, based upon evidence that while he was awaiting trial, he sought to corruptly influence two potential witnesses in his case. Special Counsel Robert Mueller obtained an additional indictment against Manafort for engaging in this activity, and the judge ordered his incarceration, based upon the evidence presented

to her by Mueller. Manafort presently is in federal prison in Vir ginia, pending trial in another case.

Alan Dershowitz attacked the jailing of Manafort as being “very, very unfair,” an “outrage,” and “obnoxious to our Constitution.” Dershowitz argues that Manafort is “no more guilty of contact ing witnesses or attempting to obstruct justice than any of us.” He declared that “we should not be denying bail to poor people, rich people, or anyone in between, before they’ve been convicted of any crime. These are presumed innocent people.”

Dershowitz is correct that the bail system is unfair, but the unfairness favors the rich such as Manafort, who was required to, and was able to, post a $10 million bond. In fact, more than half of the hundreds of thousands of people who are in jail at any given time are there awaiting trial, and the reason they are there is mostly because, unlike Manafort, they cannot afford bail. Manafort was granted bail, but it was rescinded because of evidence that he had committed another, related crime while free, which is one of sev eral grounds for legitimately canceling bail. Indeed, upon revoking Manafort’s bond, Judge Amy Berman Jackson declared, “I can not turn a blind eye” to the way Manafort betrayed “the [court’s] trust.” She added that although there is “no evidence of even a threat of harm to any person” by Manafort, “the harm from the new charges” (of attempted subornation of perjury) is “harm to the administration of justice” and “to the integrity of the system.” An outrage? I think not!

The Michael Cohen Search Warrant

As to the FBI raid on the office, home, and hotel room of then Trump lawyer Michael Cohen on April 9 of this year, Dershowitz maintained that the raid violated Trump’s attorney-client privilege and the Fourth and Sixth Amendments to the Constitution, which protect individuals from illegal searches and seizures and guarantee

their right to counsel. For a search to be lawful, there must be a war rant issued by a court, based upon reasonable cause, presented under oath to a judge and describing the material sought. In the case of the FBI raid seeking Cohen’s records, such a warrant was issued. Indeed, it was signed off on by Deputy Attorney General Rod Rosenstein. Thereafter, a federal magistrate issued the search warrant.

As to the seized documents, a retired federal judge, who is serv ing as a special master, has concluded thus far that of the hundreds of thousands of Cohen’s documents seized by the FBI, less than one-tenth of 1 percent are subject to the attorney-client privilege. This is partly because the scope of the attorney-client privilege gen erally is quite narrow and is limited to the seeking and giving of legal advice. But Cohen’s records included documents related to his vast dealings in real estate, taxicabs, and beyond.

When NPR’s Scott Simon asked Dershowitz whether the FBI seeking material relating to the “Access Hollywood” tape and the Karen McDougal matter were “fair game,” Dershowitz replied:

No, no, no. Not good enough to get a search warrant of a lawyer’s office. To get a search warrant of a lawyer’s office, you should be looking for Mafia-type drug connections, ma jor corporate crimes. To use that nuclear weapon, and it’s used very, very rarely—a search of a lawyer’s office—on what seems like rather technical criminal charges sounds like a lack of proportion.

In support of his position, Dershowitz has paraded the hor rible instance of interference with the doctor-patient relationship through government searches of doctors’ offices. But in fact, such searches are common in the face of vast Medicare and Medicaid fraud by doctors, which cost the government and taxpayers huge amounts annually. Indeed, criminal convictions of doctors in such cases are common.

Dershowitz claims to be the guardian of the civil liberties of all, but he told NPR at the time of the raid on Cohen’s offices that he was “not worried about the rights of the allegedly crooked lawyer or doctor or priest.” Apparently, he was suggesting that Cohen did not “fill that bill” and that Cohen was entitled to greater protection and deference. But here’s what Attorney Cohen himself told ABC News in 2011: “If somebody does something Mr. Trump doesn’t like, I do everything in my power to resolve it to Mr. Trump’s ben efit. If you do something wrong, I’m going to come at you, grab you by the neck and I’m not going to let you go until I’m finished.”

Surely, Cohen sounds much more like a “fixer” and “enforcer” than a lawyer! Indeed, not even Tom Hagen, the consigliere of the Corleone family, was ever heard to speak this way.

Finally, that Cohen used his law office as the locale for his extensive business dealings and other non-privileged conduct and documents cannot serve to shield him from a lawful search regard ing such matters.

Conclusion

As to the foregoing issues and others, the problem with Professor Dershowitz is that he simultaneously has worn two inconsistent hats throughout his career. These are the scholarly hat of a professor of law and the adversarial hat of a criminal defense lawyer. And he has sought to parlay his respected academic self to advance his adversarial self as a means of supporting his cases and causes. There is no question that he is a voluntary advocate for President Trump, and not an academician helping the public understand the law. Law professors do teach law students to be advocates, but as teachers they must have a commitment to the truth as they see it. In contrast, advocates are expected to put the strongest case forward for their clients and leave its weaknesses to opposing counsel. But here Professor Dershowitz is advocating for Trump even though he

is not his lawyer, and he is not merely explaining some “neutral” legal principles. However, he expects his representations to be accepted as correct, based upon his academic credentials. I am not suggesting that a law professor should never be an advocate but, rather, that the adversarial habits of Professor Dershowitz prevent him from honestly bringing to bear in these critical matters his academic angle of vision, which would require him to tell the public the full story. And indeed, at a time when most liberals and even some conservatives are deeply worried about the fact that

Trump is the greatest presidential threat to civil and human rights and liberties in our history, Alan Dershowitz has become a staunch defender of his unlimited and unbridled exercise of power.

The Bar and Donald Trump

(The American Prospect, May 1, 2018)

when the hIstory of donald trump’s presIdency Is wrItten and the historians ask, “Where were the lawyers?” the answer must not be “Silent.” They were not silent during Watergate, and they must not be silent now.

As during Watergate, we once again have a president who issues self-serving professions of innocence while, like President Nixon, he seeks simultaneously to frustrate and undermine the governmental entities charged with investigating his wrongdoing and that of his cohorts. In so doing, Trump has unabashedly employed the power and influence of his office to attempt to discredit his own Justice Department and the FBI to his own advantage.

In his first fifteen months as president, Trump has convincingly demonstrated his contempt, abhorrence, and lack of respect for the Constitution and the rule of law, as well as for the office of presi dent. That’s clear from his sacking of FBI Director James Comey; his repeated lying to the public and press; his continuing to receive profits and benefits from foreign governments in violation of the

Constitution’s Emoluments Clause; his attacking the integrity of fed eral judges and encouraging police misconduct; his disparaging the First Amendment’s protections of a free press; his falsely claiming that President Obama tapped his telephone—the list goes on and on. In addition, he has ridiculed and insulted numerous members of Congress and has publicly and repeatedly made racist and sexist remarks. All of these crude, reckless, and irresponsible actions deserve the opprobrium and condemnation of America’s legal profession.

A defining moment in the Watergate scandal was the Satur day Night Massacre, in which Nixon, who’d been asked by Special Prosecutor Archibald Cox to produce tapes of White House con versations related to the break-in, refused. Nixon then ordered Attorney General Elliot Richardson to discharge Cox. Under applicable law, Cox could be discharged only for cause. Instead of firing Cox, Richardson resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox, but he too resigned. Nixon then appointed Solicitor General Robert Bork as deputy attorney general and ordered him to fire Cox. Bork complied.

The day after the Saturday Night Massacre, Chesterfield Smith—the Florida attorney then recently elected president of the American Bar Association, who had twice voted for Nixon—issued a statement on the ABA’s behalf. Declaring that “no man is above the law,” he urged the appointment of a new special prosecutor to investigate Nixon. Bork appointed Leon Jaworski, a former ABA president, as special prosecutor. Jaworski was promised no interfer ence by Nixon in the special prosecutor’s continued investigation.

In Watergate, lawyers played both heroic and sinister roles. While Richardson and Ruckelshaus upheld both the law and their principles, at least four high-level lawyers close to Nixon went to jail in connection with the scandal: Attorney General John Mitchell, White House Counsel John Dean, and White House staffers Charles Colson and Egil Krogh. How does nonlawyer Trump compare with lawyer Nixon as a

client? A place to begin might be with Trump’s recent exclamation “Where’s my Roy Cohn?” By this he meant that in his frustration at being pursued, he was looking for a lawyer with the cunning and ruthlessness of Cohn, who had been both counsel and mentor to Trump for many years and who had earlier worked for the infa mous Senator Joseph McCarthy. Cohn was disbarred in 1986 for perjury and massive stealing from clients. In Cohn’s disbarment proceeding, Donald Trump testified under oath that Cohn was “a man of the highest integrity.”

Cohn’s advice to Trump in connection with his many business and legal battles was “attack, counterattack and never apologize.” Trump learned his lessons well, and they now animate his presidency. Recently, John Dowd, one of Trump’s gaggle of legal defenders, asserted that Trump could not be indicted by a grand jury, since he is the country’s highest law enforcement officer. According to Dowd, Trump enjoys legal immunity from prosecution, and the only remedy for any derelictions by him is impeachment. But the fundamental proposition of our democracy, that “no one is above the law,” and mere common sense speak otherwise.

As it did with Watergate, the time has come for the American legal profession to forcefully express its opposition and rejection of Trump’s cynical and destructive anti-democratic modus operandi. The ABA did so unequivocally when faced with Nixon’s extensive misdeeds, and it must do so again if it is to maintain its place as an essential upholder of the rule of law and our democratic way of life. Its failure to do so would be an omission of grave proportions.

Regrettably, during the four decades since Watergate, much of the bar has sacrificed its standing as a public institution dedicated to upholding and advancing the highest values of our democracy, as it has become a less principled, money-oriented big business. The present moment challenges bar associations across our land to return to their best traditions by forcefully condemning the menace that is Donald Trump.

There a Doctor (Shrink) in the White House?

(The American Prospect, January 12, 2021)

the current crIsIs wIthIn the unIted s tates government results from the storming, desecration, and insurrectionary invasion of the United States Capitol, the seat of American democracy, on Jan uary 6, 2021, by a rioting mob inspired and invited by President Trump to do so. This is especially the case because it resulted in the cessation of the joint session of Congress that was engaged in its constitutional duty of counting Electoral College ballots submit ted to Congress by the states, confirming the results of the 2020 election.

The immediate issue for the American people and our govern ment is how to proceed between now and January 20, when Joseph Biden and Kamala Harris are scheduled to be inaugurated, in order to protect our democracy and Constitution from further vio lations and depredations by Donald Trump and his supporters and to assure the legitimate and honest implementation of the results of November’s election.

Is

First, and most importantly, Trump must be removed from his office as president immediately or as soon as possible. In his sendoff message to the thousands of insurrectionists who came to D.C. at his urging, he continued falsely to claim that the recent presidential election had been stolen from him by the Democrats and Joe Biden, and that notwithstanding his supporters’ criminal invasion of the Capitol, he still “loved” them and that they were “very special” to him. This makes clear Trump’s incapacity to continue to serve as president, which requires him to uphold the Constitution and laws, including the election results, as he is constitutionally obligated to do. Instead, he invited the invaders of the Capitol to support his false and fraudulent claims that the election had been stolen, say ing that people should come to the Capitol because events in D.C. would be “wild.” In this, he was correct. It was beyond “wild,” as we saw but could hardly believe. And it did succeed, at least tem porarily, in stopping Congress from honestly and lawfully declaring the election results, which confirmed Trump’s defeat at the polls— results he refuses to accept.

Because of Trump’s involvement and encouragement of this attempted coup, one member of Congress declared that “President Trump is wholly unfit to serve as commander-in-chief. After today’s insurrection at the U.S. Capitol incited by the president, he should either resign, be impeached again by Congress or removed by the Cabinet under the Twenty-Fifth Amendment.”

How true! Even though less than two weeks remain in his term, Trump must be ousted from office immediately, one way or the other: (1) that he resign—just as President Nixon “decided” to resign because leaders of his party told him it was required—or (2) that Vice President Pence and a majority of the Cabinet deem it to be necessary that he be removed under the Twenty-Fifth Amendment because of his clear inability to serve, or (3) that the Congress remove him through impeachment. In any case, he must not be permitted to continue to exercise the authority of the most powerful

office on earth for one more day. To consider only one possible exer cise of those powers, he might pardon all of those who stormed the Capitol, as well as himself, members of his family, and other con federates who are in no way entitled to protection from prosecution by reason of their relationships with this lawless president. Trump’s immediate removal from office is imperative if further outrages such as occurred on January 6 can be prevented.

In this connection, as reported by the Washington Post  (January 9, 2021), outgoing Senate Majority Leader Mitch McConnell cir culated a memo to Republican senators last week in anticipation of a possible favorable House of Representatives vote during the week of January 11 to impeach President Trump based upon his incitement of the January 6 storming of the Capitol by a rampaging Trump-inspired mob. McConnell’s memo anticipated that the House managers would present its impeachment resolution to the Senate by at least January 19, after which the Senate would begin a trial of Trump, commencing either in the brief period before his term expires at noon on January 20, when President-Elect Biden would be sworn in, or thereafter, when the Democratic majority will take control of the Senate.

In fact, however, House Majority Whip James Clyburn sug gested on Sunday, January 10, that the House might wait until after President-Elect Biden’s first hundred days in office to send impeachment articles to the Senate, in order to give Biden an opportunity to get his administration and program off the ground.

The action by McConnell was surprising for two reasons: First, it appeared to be somewhat premature, since no impeachment resolution had as yet been filed in the House. Second, since the Constitution seems to suggest that impeachment’s basic purpose is the removal of an officer from his or her office if convicted, would not the expiration of an officer’s term serve to moot any impeach ment proceedings?

Article II Section 4 of the Constitution provides that officers

impeached and convicted “shall be removed from Office,” and the provisions of Article I Section 3 declare: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall never theless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Also, Article I Section 3 states that the Senate shall have “the sole Power to try all Impeachments” and that “when the President of the United States is tried, the Chief Justice [of the Supreme Court] shall preside.” Does this provision suggest that if Trump is no longer president by reason of the expi ration of his term, the impeachment case becomes moot, since the individual’s removal from office already has occurred?

On the other hand, since a possible penalty in a successful impeachment proceeding is disqualification from thereafter hold ing any federal office, oughtn’t a trial proceed notwithstanding an incumbent president’s resignation or his or her term’s expiration so that the Senate would not be deprived of its ability to impose per manent disqualification from office upon a deserving individual?

Further, Article II Section 2 of the Constitution declares that the president “shall have Power to grant . . . Pardons for Offences against the United States,  except in Cases of Impeachment ” (emphasis added). This provision might, for example, be applied to prevent a situation where a president might seek to pardon a previously con victed president in order to remove a disqualification from office that earlier had been imposed by the Senate.

The foregoing suggests that a president’s resignation or the expiration of his or her term would not moot an impeachment pro ceeding, since Congress ought not to be deprived of its ability to impose a future disqualification from office upon a miscreant former president who has attempted to avoid impeachment by resigning while in office or claiming mootness upon leaving office at the end of a term. There is precedent supporting this interpretation.

In the case of Donald Trump, who has already announced his intention of running for president in 2024, it would be essential that the new Senate, which will convene after President-Elect Biden and Vice President Harris are sworn in, has the ability of convict ing Trump in an impeachment proceeding, where a two-thirds vote is required, and then imposing a disqualification upon him from thereafter holding any federal office. Under existing Senate prec edent, such disqualification may be imposed by a simple majority once a two-thirds vote for conviction has been achieved.

Another implication of the foregoing analysis is the fact that Congress having succeeded with impeachment might also under mine any claim that Trump might have successfully pardoned himself in connection with any crimes against the United States that he may have committed during his incumbency. Since the Con stitution provides that a party convicted in an impeachment trial “shall nevertheless be liable and subject to Indictment, Trial, Judg ment and Punishment, according to Law,” would not this provision supersede and override any pardon that Trump might attempt to grant to himself? Or not?

As to the proposed impeachment article, a draft authored by Democratic House members Ted Lieu of California, David Cicilline of Rhode Island, and Jamie Raskin of Maryland was introduced on Monday, January 11. It has over two hundred co-sponsors, all Democrats.

The resolution accuses Trump of “willfully inciting violence against the Government of the United States” by a mob that “men aced Members of Congress and the Vice President, interfered with the Joint Session’s solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts.”

The resolution concludes that Trump “gravely endangered the security of the United States and its institutions of government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coordinate branch of

government. He thereby betrayed his trust as President, to the mani fest injury of the people of the United States.” For all of the foregoing, the article seeks Trump’s impeachment, removal from office, and permanent disqualification from holding federal office.

Even before any action had been taken against President Trump for his complicity in last Wednesday’s criminal invasion of the nation’s Capitol, Trump’s staunchest public legal defender, attorney Alan Dershowitz, launched Trump’s defense on Fox News last Sunday.

First, Dershowitz argued that once Trump left office on January 20, the Senate would no longer have jurisdiction to try him, since the Constitution limits impeachment trials to sitting presidents. In fact, however, since the Constitution anticipates the possibility of a president being barred from office for life if convicted in an impeachment trial, his or her leaving office by resignation or the term having ended would not deprive the Senate of its jurisdiction to impose future barring from office.

Dershowitz also argued that what Trump said to his minions before he sent them off to the Capitol on Wednesday was constitu tionally protected by the First Amendment. But what Trump told his listeners—that “if you don’t fight like hell, you’re not going to have a country anymore”; that “we will stop the steal”; that unless they took action, “you will have an illegitimate president”; that “we can’t let that happen”; and that he promised that when they got to the Capi tol, “I’ll be with you”—was clearly unprotected, since it was “directed to inciting or producing imminent lawless action, and [was] likely to incite or produce such action.”121 Especially would this be the case when Trump had access to intelligence reporting that violence was expected. Indeed, he urged his supporters to come to Washington that day, tweeting, “Be there, will be wild!” And at his rally, his per sonal attorney, Rudy Giuliani, urged his listeners to engage in “trial

121. The test of Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

by combat,” a reference to the ancient practice of resolving legal disputes by the parties engaging in violent encounters to the death. Giuliani also said that “if we’re wrong, we will be made fools of. But if we’re right, a lot of them will go to jail.” The New York State Bar Association has launched an inquiry as to whether Giuliani should be removed from its membership rolls for his conduct.122

Finally, as to the proposal that Trump be removed from office pursuant to the Twenty-Fifth Amendment to the Constitution, which authorizes such removal when the president is “unable to discharge the powers and duties of his office,” Dershowitz opined: “He’s not unable to govern, he’s not incapacitated.” In this regard, Dershowitz is hardly qualified to make such a judgment. In fact, two distinguished psychiatrists have raised the question of whether Trump is in a reality-distorting mental state. In an opinion piece in the Los Angeles Times (January 9, 2021), psychiatrist Eli Merritt, a visiting scholar at the Center for Biomedical Ethics and Society at Vanderbilt University, declared:

One such condition is “delusional disorder,” which is unique among psychiatric conditions in that the area of dysfunction can be highly circumscribed. An individual with this disor der often has a single fixed delusion and otherwise functions normally. . . . T he hallmark of delusional disorder is a nonbizarre fixed false belief, contradicting external reality, which is held by the patient fiercely despite overwhelming evidence to the contrary

[President] Trump has been fixated for the last two months on the idea that he is the victim of a “stolen election,” despite all evidence that the election was free and fair. He continued to make this claim Wednesday before the mob that invaded the Capitol. . . .

122. Giuliani has since been suspended from practice in New York.

The loss of the November election seems psychically shatter ing to Trump, and the delusion of a “stolen election” could be one way to deny reality and repress pain. Major loss, it is well known, is the most common trigger of all psychiatric disorders, includ ing delusional disorder. For Trump, the reality of the loss of the election, the White House, Air Force One, and so many other ac coutrements of office, not to mention Twitter, clearly strikes hard.

To the same effect, Professor Ira Glick, Emeritus Faculty of the Stanford University School of Medicine, has declared:

Given recent events and the potential danger to our country, and to the rest of the world, I and most physicians would suggest that a medical evaluation of President Trump by his medical staff is indicated and necessary—even mandatory—at this time. He may have suffered brain damage with cognitive changes from the COVID-19 infection he sustained. Or he may have developed worsening of the traits of the disorder of his personality which is affecting his daily functioning, or even what others have written, i.e., developed “delusional thinking,” which may account for his recent continuing bizarre refusal to accept the election results as well as other eccentric behavior reported by those around him.

All of the foregoing suggest that our national leaders must act promptly and responsibly in connection with the political crisis our country is experiencing, and they must take appropriate action to assure the nation’s safety and security are protected.

The Second Senate

Trial

Impeachment

Donald Trump (The American Prospect, February 1, 2021)

of

“you know what we used to do In the old days when we were smart? With spies and treason, right? We used to handle them a little differently than we do now.” That was President Donald Trump on September 26, 2019, referring to the person who provided informa tion to the whistleblower concerning Trump’s infamous April 21, 2019, phone conversation with the president of Ukraine, which was the basis for Trump’s first impeachment.

“In the century and a half of our national existence, not one execution on a federal treason conviction has taken place. . . . We have managed to do without treason prosecutions to a degree that probably would be impossible except while a people was singularly confident of external security and internal stability.” That was Jus tice Robert H. Jackson, writing for the Supreme Court majority in Cramer v. United States, 325 U.S. 1, 24 (1945).

During his four years of occupying the White House, Donald Trump repeatedly and publicly charged more than two dozen

individuals and entities with committing treason. His targets included President Obama and then potential Democratic presi dential candidate Joe Biden: “We caught President Obama and Sleepy Joe [Biden] spying on our campaign. That’s treason. That’s illegal.” “They were spying . . . on our campaign. . . . It was trea son and it should never be allowed to happen to another President again ever, ever, ever.” “TREASON means long jail sentences, and this was TREASON!” And on the Democrats: “I think what the Democrats are doing with the border is treasonous.” And on The New York Times: “The Times never should have done that, because really what they’ve done is virtually, you know it’s treason.” And on the FBI: “I mean, this is the FBI we’re talking about. I think that . . . is treason.” And as to individuals associated with the FBI, Trump accused former FBI Director James Comey, FBI official Andrew McCabe, former agent Peter Strzok, and lawyer Lisa Page of trea son. Concerning Representative Adam Schiff, who led the House managers in Trump’s first Senate impeachment trial, Trump said, “I want Schiff questioned at the highest level for fraud and treason.” Treason against the United States is the only crime defined in the Constitution. It is described as “levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” And 18 U.S. Code § 2381 declares that those who are guilty of treason “shall suffer death, or [be fined and imprisoned], and shall be incapable of holding any office under the United States.” As the following discussion explains, the term trea son requires an “originalist” examination to understand its drafters’ meaning and intention.

However, on September 2, 2020, in explaining Trump’s pro miscuous usage of the term to describe actions of his adversaries, Attorney General William Barr lamely opined to CNN’s Wolf Blitzer that Trump used the word treason “colloquially” rather than literally. The fact was that Trump’s treacherous accusations of trea son were a significant part of his Orwellian norm of prevarication,

which also included falsely describing his opponents as “commu nists” and “socialists,” for which “red” is indeed a colloquialism. “Treason” however is simply “treason”! Here is the actual wording of 18 U.S. Code § 2381, “Treason”:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of trea son and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

In connection with the treason statute, in an article in the Wash ington Post on January 7, 2021, UC Davis Law School Professor Carlton F. W. Larson, author of On Treason: A Citizen’s Guide to the Law, compared the January 6 assault on the Capitol with the Whis key Rebellion of 1794,  and Fries’s Rebellion of 1799, in which tax protesters in Pennsylvania used force to prevent the collection of federal taxes. Perpetrators in both cases were tried for treason and convicted. They were later pardoned by Presidents George Wash ington and John Adams.

In 1842, Supreme Court Justice Joseph Story summarized the treason statute, declaring it was action “by force to prevent the execution of any one or more general and public laws of the gov ernment, or to resist the exercise of any legitimate authority of the government in its sovereign capacity.” Professor Larson concluded that the nation’s founders “would have denounced [the storming of the Capitol] as treason.”

Article II Section 4 of the U.S. Constitution declares that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Mis demeanors.” On January 13, 2021, the House of Representatives

enacted a Resolution of Impeachment of Donald Trump, which declares in its Article I (its single article), “Incitement of Insurrection”:

In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the of fice of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting vio lence against the Government of the United States.

In support of its claim, the House resolution alleged the following facts regarding President Trump’s wrongful conduct.

1. In the months prior to the January 6, 2021, joint session of Congress, convened to count the votes of the Electoral Col lege, Trump repeatedly stated falsely that the 2020 electoral results were the product of widespread fraud and should not be accepted;

2. He initiated a January 2, 2021, telephone call between himself and Georgia Secretary of State Brad Raffensberger, in which Trump urged Raffensberger to “find” enough votes to overturn the Georgia presidential election results “and threatened Secretary Raffensberger if he failed to do so”;

3. Shortly before the joint congressional session commenced on January 6, Trump addressed a crowd at the Ellipse in Washington, D.C., where he reiterated his false claim that “we won this election, and we won it by a landslide”; will fully made statements “that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol,” which interfered with the joint session’s “solemn constitu tional duty to certify the results of the 2020 Presidential

election” and “unlawfully breached and vandalized the Cap itol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressio nal personnel, and engaged in other violent, deadly, destruc tive and seditious acts.”

4. The resolution concluded that “Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold any office of honor, trust, or profit under the United States.”

The House’s impeachment resolution was delivered to the Sen ate on Monday, January 25. And the date for Trump’s Senate trial has been set for February 9. Thus there is time to consider some of the issues that may be faced in Trump’s impeachment trial before it commences.

House Judiciary Committee Report

On January 12, 2021, six days after the insurrectionary riot at the Capitol, the majority staff of the House Judiciary Committee issued a seventy-four-page report, “In Support of H.Res. 24, Impeach ing Donald John Trump . . . for High Crimes and Misdemeanors.” The House approved the impeachment resolution the very next day by a vote of 232 to 197, with 10 Republicans joining 222 Demo crats in voting in favor. For their dereliction, the 10 Republicans already have been threatened with contested primaries by Trump supporters. And former Clinton administration Secretary of Labor Robert Reich has suggested that a secret ballot be employed for vot ing in the Senate on Trump’s impeachment, apparently to protect the senators’ independence, and even safety, from Trump’s mobs. The report (available online) contains a highly detailed factual elucidation of the events, including President Trump’s actions (and inactions) presently known, which the committee’s staff believe

support Trump’s conviction—an outcome that will require a twothirds vote of the senators present, with “stay-at-home” abstentions possible.

On the issue of the “high Crimes and Misdemeanors” that Trump is alleged to have committed, the report concludes that no finding of a violation of the federal criminal code is necessary. Instead, the report states that “President Trump’s conduct need not have violated any federal criminal statute in order for them to con stitute ‘high Crimes and Misdemeanors’ under the Constitution”:

It may well be the case that President Trump’s conduct on January 6, 2021—and other actions that he took in seeking to overturn and subvert the certification of the election results— violated the federal criminal code. Ultimately, that is a judg ment for prosecutors and courts to make. The only question here is whether President Trump’s conduct warrants impeach ment. As the House Judiciary Committee has previously explained, “offenses against the Constitution are different in kind than offenses against the criminal code. . . . Impeachment and criminality must therefore be assessed separately.” [Report, pp. 34–35.]

There is overwhelming support for this proposition. For example, Alexander Hamilton, in The Federalist in 1788, declared that impeachment will “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust” and that “they relate chiefly to injuries done immediately to the society itself.” And at the Constitutional Convention, James Madi son said that the impeachment provision was necessary because “it [is] indispensable that some provision should be made for defend ing the Community agst. [sic] the incapacity, negligence or perfidy of the chief Magistrate. . . . He might pervert his administration into a scheme of peculation or oppression. He might betray his

trust to foreign powers.” Further, now Supreme Court Justice Brett M. Kavanaugh, in a law review article written in 2009, declared that there was always a way to remove a “bad-behaving or lawbreaking president. . . . If the president does something dastardly, the impeachment process is available.” (Emphasis provided.) On the other hand, there are those, such as attorney Alan Dershowitz, a longtime Trump defender, who argue that proof of a crime is essential to support a conviction in the Senate.

One conclusion drawn from these circumstances is that the House managers should put in a case before the Senate establishing that while Trump’s actions in and of themselves warrant impeachment, those same actions support the idea that he is guilty of numerous federal crimes, each of which independently warrants his impeachment and, in addition, possible criminal prosecution. Indeed, if the House managers hope to recruit sufficient Republi can senators to get them to the required two-thirds of the senators present to achieve Trump’s conviction, demonstrating that his behavior was criminal rather than simply “dastardly” would seem essential. And applying several relevant provisions of the federal criminal code to Trump’s recent actions supports the conclusion that he engaged in multiple criminal violations.

In the first impeachment trial of Trump in the Senate early in 2020, involving his seeking to extract “dirt” on Joe Biden, his then potential rival presidential candidate, from the president of Ukraine in exchange for military aid, 51 Republican senators voted to deny the prosecuting House managers subpoena power to obtain testimonial evidence as well as relevant documents from Trump administration figures. It remains to be seen whether the Senate’s new Democratic majority, including Vice President Har ris as president of the Senate, will approve subpoena power in the event the House managers seek it. If this issue arises, it would seem that an impeachment trial might be lengthy, since ques tions related to enforcement of subpoenas might result in court

litigation over questions of executive privilege, self-incrimination, etc. For example, former Vice President Pence might be subpoe naed to testify about meetings with Trump regarding Trump’s demand that Pence challenge and return state election results to certain states during the joint session of Congress on January 6. As Trump declared about this episode at his January 6 “Save America” rally: “If Mike Pence does the right thing, we win the election.” Earlier the same day, contrary to Trump’s wishes, Pence issued a “Dear Colleague” letter declaring that “my oath to sup port the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” However, there already is talk in some Capitol Hill quarters of limiting the length of the trial, which might preclude discovery.

The impeachment trial creates a difficult problem for all con cerned. For the Democrats it poses the issue of becoming engrossed in a possibly distracting lengthy trial of Trump, which might inter fere with President Biden’s desire to “hit the ground running” on the pressing issues facing the country, not the least of which is com bating the pandemic that Trump grievously ignored. And in the end, a failure to achieve a conviction of Trump with a two-thirds vote of senators would be perceived as a Trump victory.

And for the Republicans, it presents the dilemma of either joining the Democrats in voting to impeach Trump and then having him barred from holding future office through a simple majority vote, which might serve to split the GOP between pro- and antiTrump factions, or defending Trump against being convicted, since although he no longer holds office, he maintains substantial political support. With Trump threatening some Republicans with primary challenges in 2022, the impeachment trial might turn into an internecine Republican bloodbath between Trump sup porters and opponents, which the Republican Party would prefer to avoid.

Criminal Provisions

As to the many provisions of the federal criminal code that Trump—and participants in the invasion of the Capitol on January 6 as well—need be concerned about, there are several that are especially worthy of attention. First, there is 18 U.S. Code § 2383, “Rebellion or insurrection,” which declares:

Whoever incites, sets on foot, assists, or engages in any rebel lion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. [Emphasis applied.]

Next 18 U.S. Code § 2101, “Riots,” provides:

(a) Whoever . . . uses any facility of interstate . . . commerce, including, but not limited to the mail, telegraph, telephone, radio or television, with intent—

(1) to incite a riot; or (2) to organize, promote, encourage, participate in, or carry on a riot; or . . .

(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;  and who during the course of any such . . . use or thereaf ter performs or attempts to perform any other overt act for any purpose specified in subparagraph[s] [1 through 4] Shall be fined . . . or imprisoned not more than five years, or both.

Further, 18 U.S. Code § 2102 provides definitions of terms used

in section 2101, including “a riot” and “to incite a riot.” In addition, 18 U.S. Code § 1001, “False statements,” states:

(a) [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully . . .

(2) makes any materially false, fictitious, or fraudulent statement or representation;  shall be fined under this title, imprisoned not more than 5 years, or, if the offense involves . . . domestic terrorism (as defined in [18 U.S Code § 2331]), imprisoned not more than 8 years, or both. . . .

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to— (2) any investigation or review conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate. . . .

Martha Stewart, Michael Flynn, “Scooter” Libby, and Michael Cohen were each convicted under the “false statements” statute. As to this law, it may be contended that Trump, in a “matter within the jurisdiction of the . . . legislative . . . branch of the Government of the United States of America [namely, the counting of the Elec toral College ballots at the joint session of Congress on January 6], knowingly and willfully” . . . made “materially false, fictitious and fraudulent statement[s] or representation[s]” to the president of the Senate, namely Vice President Mike Pence, and others, declaring that Pence had authority, under 3 U.S. Code § 15, relating to the counting of electoral votes for president in Congress on January 6, 2021, to unilaterally send the electoral ballots of certain states back to those states for recertification, when it was well established as a

legal matter that Pence had no such authority and that his duties under 3 U.S. Code § 15 were solely ministerial. As to this matter, The New York Times reported on January 12, 2021:

Mr. Trump was enraged that Mr. Pence was refusing to try to overturn the election. In a series of meetings, the president had pressed relentlessly, alternately cajoling and browbeating him. Finally, just before Mr. Pence headed to the Capitol to oversee the electoral vote count . . . Mr. Trump called the vice president’s residence to push one last time. “You can either go down in history as a patriot,” Mr. Trump told him, “or you can go down in history as a pussy.”

Notwithstanding Trump’s pressure tactics, Vice President Pence stood his ground and declared in his January 6, 2021, “Dear Col league” letter to senators:

As Supreme Court Justice Joseph Bradley wrote following the contentious election of 1876, “the powers of the President of the Senate are merely ministerial. . . . He is not invested with any authority for making any investigation outside of the Joint Meeting of the two Houses. . . . [I]f any examination at all is to be gone into, or any judgment exercised in relation to the votes received, it must be performed and exercised by the two Houses.

Undeterred, Trump stated at his “Save America” rally before thousands of his supporters near the White House later the same day: I hope Mike [Pence] is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number

one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Con stitution, and protect our Constitution. States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people. And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.

Trump was supported by John C. Eastman, a thoroughly dis credited right-wing law professor, whom Trump described as “one of the top constitutional lawyers in our country.” Eastman spoke at Trump’s rally, standing side by side with Rudy Giuliani. He had earlier challenged the American citizenship of Kamala Harris on legal grounds, even though she was born in Oakland, California; he said that she was ineligible to run for vice president. And he has continuously estimated Trump’s January 6 rally crowd at a half mil lion for the press when, in fact, it was about thirty thousand. At the rally, Eastman said that Pence did “not deserve to be in . . . office” if he did not challenge the certified victory of Biden. Another relevant code provision, 18 U.S. Code § 1505, “Obstruc tion of proceedings before departments, agencies, and committees,” declares: Whoever corruptly, or by threats or force, or by any threaten ing letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and

proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

Further, 18 U.S. Code § 2384, “Seditious conspiracy,” states:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States con trary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Clearly, the riot in the Capitol hindered and delayed the execution of the tally of the Electoral College ballots and caused a wrongful seizure of federal property in violation of these criminal provisions.

Looking at the foregoing statutes collectively makes clear that the legal definitions of such terms as “incites,” “assists” “aid or com fort,” “aid and comfort,” and “endeavors to influence,” may have a significant impact in determining guilt or innocence in either impeachment or criminal proceedings arising out of the events of January 6. But collecting, and connecting, relevant facts relating to

these terms in such proceedings may be critical to their outcomes. Therefore, the ability and success of the House managers in gath ering such relevant facts and connecting them with the foregoing statutes will have a significant influence upon their success.

Insofar as Trump’s involvement in the January 6 rally on the Ellipse is concerned, some Trump defenders already have advanced the claim that what Trump said to the assembled pro testers is insulated by the First Amendment’s protections of free speech. One such advocate is Alan Dershowitz, who argued that the First Amendment and the Supreme Court’s decision in  Bran denburg v. Ohio, 395 U.S. 444 (1969), apply to protect Trump from conviction by the Senate in the current impeachment proceed ing in connection with the speech he delivered at the rally he had convened near the White House immediately prior to many of his listeners storming and desecrating the Capitol and interfering with a statutorily mandated joint session of Congress. After having lis tened to Trump for two months falsely and endlessly claim that he had won the November 3 presidential election by “a landslide,” the Capitol invaders sought to “stop the steal” of that election, as Trump directed them to do.

The fault in Dershowitz’s argument is that the Brandenburg deci sion supports the opposite conclusion—namely, that the First Amendment does not protect Trump from impeachment, based upon his communications to his followers at his January 6 rally.

In  Brandenburg, the Supreme Court was faced with a First Amendment challenge to the criminal conviction of a Ku Klux Klan leader under an Ohio criminal syndicalism law that made the advocacy of the use of force and violence to achieve political ends a crime. The defendant’s speech had been broadcast widely on televi sion. In declaring the Ohio law unconstitutional for having violated the First Amendment’s protections of political speech, the Supreme Court ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy

of the use of force . . . except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . [Emphasis applied.] [T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” In Trump’s case, there is no question that unlawful force and violence followed immediately after the meet ing he convened and at which he and his personal attorney, Rudy Giuliani, and others delivered false and inflammatory harangues to their followers about the “stolen” election. For example, Trump told those he had assembled that “we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.” And Giuliani urged his audience to engage in “trial by combat,” an ancient practice of resolving disputes through physical encounters.

Thus  Brandenburg is inapplicable here, because extreme and unprecedented physical violence and destruction did occur. Accord ingly, the question presented is whether, by his speech and other conduct, Trump “incited” the insurrectionary riot that followed, so that the First Amendment is not at all involved. It is simply a matter of causation—namely, did Trump’s speech and related con duct incite the riot? This issue is one of proof that will have to be satisfied by the House managers and voted upon by the jury of senators. This conclusion is amplified by the Supreme Court’s deci sion in  Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), in which the Court cited  Brandenburg for the proposition that “specific criminal acts are not protected speech even if speech is the means for their commission.”

In this connection, a strong case can and should be made that Trump had long been preparing his minions for violence in the event that he could not otherwise succeed in remaining in office, by election or otherwise, at the conclusion of his four-year term on January 20.

A review of the relevant facts and applicable law is required to address these issues. First, it may be that all of the facts are not yet known. For example, many of the participants in the riot, some of whom have been arrested and charged with federal crimes, have attempted to defend themselves by claiming that they simply were following Trump’s orders. For example, Garret Miller, a Texas resi dent, has been charged by the Justice Department with invading the Capitol, threatening the life of Representative Alexandria OcasioCortez (D-N.Y.), and other riot-related offenses. In a statement by Miller recently issued by his attorney, he said:

I was in Washington, D.C., on January 6, 2021, because I believed I was following the instructions of former President Trump and he was my president and the commander-inchief. . . . [W]hat Donald Trump had been saying about the election really got to me and I felt I had to support him.

In legal parlance, this approach is known as the “Svengali defense,” derived from the nineteenth-century novel Trilby by George du Maurier. The essence of this defense is that the defen dant claims to have come under the influence and control of a sinister third party who has manipulated the defendant for unlaw ful purposes. It is commonly used as a basis for seeking reduced sentences for guilty defendants. In this case, such evidence might be used to show Trump’s success in inciting the riot and break-in at the Capitol.

Other riot participants are similarly situated to Miller. And oth ers may be “flipped” by law enforcement and provide facts that support the proposition that Trump and his confederates were more deeply involved in “inciting” the riot than is presently known. Discovery of relevant facts by the House managers, through deposi tions and production of documents, as well as information received by them from informants and law enforcement, may help to support

the House’s claim of “Incitement of Insurrection.” For example, according to a New York Times January 7 story with the headline “Trump Openly Condones Supporters Who Violently Stormed the Capitol, Prompting Twitter to Lock His Account,” Trump tweeted on Wednesday evening, January 6: “These are the things and events that happen when a sacred landslide election victory is so uncere moniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.”

In an op-ed in the Los Angeles Times on January 11, 2021, Richard Ashby Wilson, author of Incitement on Trial: Prosecuting International Speech Crimes (Cambridge, UK: Cambridge University Press, 2017) and associate dean of the University of Connecticut School of Law, concluded that on Wednesday, [January 6,] Trump crossed the Rubicon and incited a mob to attack the U.S. Capitol as Congress was in the process of tallying the electoral college vote results. He should be criminally indicted for inciting insurrection against our democracy.

After explaining the legal bases for his conclusion, Wilson declared: I have studied war crime tribunals for three decades and we must . . . learn from the history of societies that lurch from civil unrest into full blown civil war. A failure to respond to incitement of insurrection will only embolden those who wish to destroy our democratic system. The law of incitement was designed to protect the public from exactly [Trump’s] kind of politics of violence. Prosecutors should not be reluctant to apply it to anyone [, including Trump,] who has crossed this line.

As to this issue, Senator Mitt Romney (R-Utah), the 2012 Repub lican presidential nominee, straightforwardly concluded on January

6 that “what happened here today was an insurrection incited by the president of the United States.”

That Trump has long had a proclivity for extolling and encour aging violence is well established. For example, in 2015, when Trump was told that supporters had assaulted a homeless person in Boston in Trump’s name, his response was that “people who are following me are very passionate!” Later he offered to pay the legal fees of people who “knocked the crap out of” protesters. At ral lies he has said of a protester, “I’d like to punch him in the face” and that “maybe he should be roughed up.” He praised a Montana congressman for having assaulted a reporter: “Any guy that can do a body slam—he’s my guy.” In May 2020, Twitter cited a Trump tweet for “glorifying violence.” And when he invited his 88 million followers on Twitter to attend his January 6 rally near the White House, he urged them to “be there, will be wild!”

To try to undo, or simply lessen, the impact of Trump’s machismo, the White House and Trump himself have engaged in the ploy of “plausible deniability.” As explained by Adam Hodges, in his chap ter in  Language in the Trump Era: Scandals and Emergencies,  edited by Janet McIntosh and Norma Mendoza-Denton (Cambridge, UK: Cambridge University Press, 2020), p. 137, plausible deniability is “a common world-shaping feature of political discourse that allows speakers to avoid taking responsibility for a controversial utterance by invoking possible counter-interpretations. To engage in plausible deniability, politicians invoke seemingly reasonable evidence to con test or refute that they meant what they said.”

In his chapter, Hodges focuses on three well-known cases of Trump’s resort to plausible deniability—namely in connection with (1) Trump’s conversation with then FBI Director James Comey con cerning Trump’s “hope” that Comey could see his way clear “to letting Flynn go”; (2) his statement that there were “very fine people on both sides” at the violent August 2017 “Unite the Right” rally in Charlottesville, Virginia; and (3) his reversal of his July 16, 2018,

statement that “I don’t see any reason why it would be” Russia that interfered in the 2016 presidential election. After an uproar over this particular remark, Trump announced the next day that he meant to say “wouldn’t.” (“Sort of a double negative,” he said.) One can imagine, in connection with his forthcoming impeachment trial, hearing Trump declare he meant “fun” when he tweeted that his rally would be “wild.”

It is worth considering what might have occurred if Pence had “caved” and obeyed Trump’s directive to order the challenged Elec toral College ballots returned to their respective states and then to declare Trump the winner of the election. Would the protesters then have been welcomed into the Capitol for a grand celebration instead of their having forced their way in, intent on assassinating Pence for his disobedience? Since Trump then had two more weeks in the White House until Inauguration Day, would he have declared martial law, called out the National Guard, and had all of the new army of protesters arrested and charged with treason and insurrection? Didn’t he predict he’d be at his second inaugural on January 20? Would we now be engaged in Civil War II? Hap pily, we will never really know, but the mere thought of it certainly should make us realize how close we came to a coup d’état. Unfor tunately, however, notwithstanding Pence’s eleventh-hour decision to defy Trump, the indications thus far are that most of the Senate Republicans will stand by Trump and oppose conviction. This sug gests that the struggle against Trumpism, and what it stands for, will continue with no apparent end in sight.

Postscript I: The Trump Impeachment

I wrote the foregoing essay prior to the Senate impeachment trial of Donald Trump, February 9–13, 2021, for a very specific reason— namely, I hoped to influence the course taken by the House managers when they prosecuted Donald Trump in the Senate. The

fundamental issue I was addressing was whether, in order to convict Trump in the Senate, it was necessary to prove, or at least demon strate convincingly, that he was guilty of committing specific federal crimes rather than merely showing that he had simply engaged in gross misconduct in office, as I anticipated the House managers would argue.

As my essay makes clear, I believed that the managers’ view was correct, but I felt that meeting the higher standard of showing the commission of specific criminal acts, as in the Constitution’s specific reference to treason and bribery, would be more effective in persuading seventeen Republican senators (the number needed under the Constitution, with the anticipated fifty Democratic Senators voting for conviction, to achieve the two-thirds vote needed to convict) to vote in favor of a guilty verdict. I worried that Republican senators would insist upon proof that specific crimes had been committed to justify conviction. Instead, at the trial, Trump and Republican senators hid behind the spurious argument that Trump had already left office by January 20, 2021, when Biden had been inaugurated, so that Trump could not be convicted since his removal from office had become moot. This argument lacked credibility, however, since a convicted president thereafter faced being barred from federal office for life, which could be imposed by a Senate majority vote, so that Trump remained subject to the imposition of such penalty despite having left office.

I submitted my essay to the editors of The American Prospect mag azine, who mercilessly cut it in half and published it online on February 1, 2021.

There were very specific reasons that I held my view. In 2018, well before either of Trump’s impeachment trials in 2020 and 2021, retired Harvard Law School professor Alan Dershowitz wrote a book entitled The Case Against Impeaching Trump, in which he argued that specific crimes were required to be proven in a Senate trial in order to convict a president. Trump had by then already

engaged in serious misconduct in office. Indeed, by that time, with the help of my Vineyard neighbor Mike Cooper, a distinguished New York City lawyer (sadly, he died of COVID-19 in 2020), and other friends, I initiated a national online petition campaign to have either the House, the Senate, or both censure Trump. (Censure is a traditional congressional method of reprimanding members of Congress or others for misconduct.) Like me, Dershowitz was a longtime Martha’s Vineyard summer resident, and during the summer of 2018, while he was engaged in promoting his book, he was asked to speak on the Vineyard about it by the director of the Martha’s Vineyard Film Festival, Thomas Bena, in connection with the showing of a film about Trump’s 2016 presidential campaign.

When the Vineyard’s two weekly newspapers reported that Dershowitz would be speaking at a Vineyard event on July 25, 2018, many anti-Trump Vineyarders who opposed Dershowitz as well (for, among other things, being a Trump apologist) asked Bena whether he could find a speaker to counter Dershowitz at the event, both with regard to the film and the book. Bena approached me on my willingness to appear. I accepted, with the idea in mind that I also could promote my “Censure Trump” campaign at the meeting. To respond to Dershowitz’s arguments, I quickly read his book and boned up on the law of impeachment.

On the evening of the event, at which there were about one hundred or so Vineyarders in attendance, I distributed materials at the door to attendees supporting my Trump censure petition, and I then proceeded to debate Dershowitz. I thought that I was well prepared and argued effectively. If you are interested, a video of the debate appears online on Vimeo.123

Well before the Senate’s second impeachment trial of Trump over two years later, I emailed my impeachment essay to Maryland

123. “Alan Dershowitz Debates with Jules Bernstein over Donald Trump,” https:// vimeo.com/283049749.

Congressman Jamie Raskin, who had been appointed by Speaker of the House Nancy Pelosi as head manager of the House team of managers who would present the House’s case before the Senate for Trump’s conviction of “high Crimes and Misdemeanors” (Article II Section 4 of the Constitution). I first knew Raskin as the son of Marc Raskin, whom I had known going back to my law school days in Chicago. Marc was a founder of the Institute for Policy Studies, a left-wing think tank in Washington, D.C., after he had resigned from serving in the Kennedy White House in 1962 because of political differences. Also, Jamie was a graduate of the progressive Georgetown Day School in Washington, at which all three of my children were “lifers.” Indeed, Jamie and my daughter Beth had been arrested together at a protest against apartheid at the South African embassy in Washington in the early 1980s.

As the history books will reflect, the House leadership chose not to mount a full-blown impeachment case against Trump but instead rested their claim upon a single allegation of “Incitement of Insur rection,” based upon the storming of the Capitol on January 6 by Trump supporters after Trump’s incendiary speech to them earlier that day before he directed them to march to the Capitol. However, they did not allege the commission of any specific crime by Trump.

It was believed that the House managers proceeded in the forego ing manner so as to avoid a lengthy proceeding involving document requests and the calling of witnesses. As the Democratic leadership in both the House and Senate saw it, a protracted impeachment proceeding would serve to delay newly elected President Biden from “hitting the ground running” with his ambitious “American Res cue” legislative proposals to deal with the pandemic crisis.

In the end, on February 13, 2021, the Senate voted 57–43 in favor of conviction of Trump, with 7 Republican Senators joining 50 Democrats in voting yes. However, since the U.S. Constitu tion requires a two-thirds Senate vote in favor of conviction in an impeachment proceeding, Trump stood acquitted.

On March 11, 2021, President Biden signed the $1.9 trillion American Rescue Plan Act into law.

Postscript II: Trump and the Senate

It is now May 2021. The dust has settled after the four-day impeachment trial of Donald Trump in the Senate between February 9 and 13, 2021, where 7 Republicans joined all 48 Democratic and 2 independent senators (Bernie Sanders of Vermont and Angus King of Maine) in voting to convict, which was 10 votes short of the two-thirds, or 67 votes, needed. Thus Trump was acquitted of a single House-enacted impeachment count alleging “Incitement of Insurrection,” based upon the incendiary speech he delivered on January 6, 2021, near the White House, declaring that the presidential election had been stolen by Biden and the Democrats, and urging his thousands of irate followers to march on the Capitol and “stop the steal.” This was followed by hundreds of his armed supporters storming the locked and guarded Capitol, assaulting the Capitol police, wreaking physical havoc therein, and interfering with Congress’s counting of the states’ electoral ballots.

By the time of the impeachment verdict, Joe Biden had been inaugurated as president, and he has passed his first one hundred whirlwind days in office successfully. Donald Trump has returned to his palatial Mar-a-Lago hotel and residence in Palm Beach, Florida, from which he occasionally emerges to pronounce again that “he wuz robbed” in the election and to stir the political pot. However, the dynamics of the Biden presidency and its huge legislative and other initiatives and achievements, as well as Biden’s vigorous vac cine attack on COVID-19, have left large sectors of the public in awe and deeply relieved.

For me at eighty-six, it is especially gratifying to watch because at seventy-eight, Biden is the oldest person ever to be elected and serve as president. I now am a member of what has been called “the

old, old,” and seeing a fellow senior become president while receiv ing more votes than any other presidential candidate in history seems incredible. One of my many fears about Biden’s candidacy was that he would be the victim of deep-seated ageist prejudice. But ageism seems not to have been a factor in the voting.

In the election, the Biden-Harris ticket garnered more than 81.2 million votes, while Trump-Pence received over 74.2 million. This was the largest turnout in American history despite its having taken place during a pandemic in which, by election day, over 200,000 citizens had died and millions had been afflicted.124

Trump had received 62.9 million votes in 2016 to Hillary Clin ton’s 65.8 million. He was elected even though Clinton won the popular vote because he prevailed in the Electoral College by a vote of 306 to 232.

It remains a mystery to me how Trump could have received the votes of so many Americans in 2020 when his performance as presi dent was so incredibly deplorable. Political scientists and historians will be trying to answer this question for years. And whether Trump will have a political future remains to be seen. But in the end, the 2020 election result was a vindication of democracy despite its wellknown weaknesses and failures.

Finally, the American political future appears more unpredict able than ever. The extreme Trumpist, nativist, reactionary, and racist turn of the Republican Party would seem to isolate it from future success. However, while Trump was soundly defeated in 2020, the Republicans made gains in the House, although not sufficient to regain the control they had lost in 2018, and they narrowly lost control of the Senate. Further, efforts to limit the franchise of poor and minority voters through restrictive state legislation remains a high Republican priority.

I have been following American politics from childhood, as my 124. By June 2021, the death toll in the U.S. exceeded 600,000.

chapters here make clear. To me, it is not merely an interesting but a critical area that citizens must concern themselves with if they hope to live in a society that produces a greater measure of jus tice, equality, and fairness and that better fulfills the promise in the Declaration of Independence of “Life, Liberty and the pursuit of Happiness.”

ADDENDUM

Beleaguered American Workers Facing

an Unrelenting Pandemic

(Martha’s Vineyard Men’s Group, January 18, 2022)

“The whole world’s at sixes and sevens, and why the house hasn’t fallen down about our ears long ago is a miracle to me.”

Thornton WIlder, The Skin of Our Teeth (1942)

Introduction

durIng the fall of 2021, I was asked to speak Before a martha’s Vineyard discussion group of older men to which I belong. It meets for breakfast once each week during the summer. In the fall-to-spring “off-season” during the current pandemic, we have been holding monthly meetings on Zoom after many of us have returned to our homes off the Vineyard. As a labor lawyer, I was asked to speak at a group meeting early in January 2022 about why an unusual number of American workers have been quitting their jobs each month in

2021 during the pandemic. I agreed and titled my talk “Belea guered American Workers Facing an Unrelenting pandemic.” I spoke to the group on January 5, 2022, and then updated my talk in this paper. When I analyzed my subject, I realized how exten sive it was and how difficult preparing a comprehensive but short presentation would be. It truly was deserving of books, which will be written by others later. Thus, what you will see here is the pro verbial “tip of the iceberg.” And what my limited presentation hoped to accomplish was to show that our pandemic “iceberg” is dynamically in motion and is constantly changing its shape as it traverses the natural and human seas in which it is drifting. Some of its obstacles are the result of natural forces, such as the corona virus itself. Others reflect human responses, such as the amazingly rapid scientific achievements of creating several effective vaccines (which have prevented a million deaths in this country alone in 2021), and still others demonstrate—in the name of “individual freedom”—human resistance to the vaccines and other methods of fighting the virus. I also consider and discuss here the disorder and damage that has resulted from the pandemic as well as some of the advances and benefits that have emerged from it. What the outcomes of this quagmire will be for our societies and lives remain unclear, but understanding the forces at play at workplaces and beyond is essential. And I have tried to explain those forces here as best as I can.

When I spoke to our group over Zoom, I began by stating that rather than starting by discussing statistics or analyses regarding why so many workers were quitting their jobs at this time, I would allow my listeners to hear a few workers describe their decisions to quit, and then move forward from there. This I did by sending my audience “Stories from the Great American Labor Shortage: An Update” (The Daily [The New York Times], December 27, 2021). Then when I made my presentation, I read a statement of a doctor who chose to cease treating patients after thirty years of having done

so because of the conduct of the family of a single unvaccinated COVID-19 patient at a hospital where the doctor worked. I have attached that doctor’s narrative as an appendix to this paper. It is an extreme example of the kind of situation that many frontline pan demic “essential workers” have faced during the past two years, but it is hardly unique. The situations I describe and the responses that I reference reflect both the best and worst of humankind’s abilities to respond to the tragedies and catastrophes that have befallen us, with the hope that our stronger and more generous and humane instincts prevail to the advantage of all, rather than allowing the rapacious parts of our natures to succeed to our common detriment.

1. Some Facts

First, let me provide you with a few facts regarding “quits” in the economy as a whole.

In 2021, there probably will have been close to 50 million vol untary “quits” in a workforce of over 160 million. Indeed, many individuals may have left their employment more than once. And what 2022 has in store remains to be seen. But over the past few days, I read that a common New Year’s resolution has been “I am going to find my dream job this year.” We shall see.

According to the Bureau of Labor Statistics, 4.5 million Americans voluntarily quit their jobs in November 2021, a record high, which is 3 percent of the workforce; 4.2 million in October; 4.4 million in September; and 4.3 million in August. Compare this to 1.4 million in August 2009 and 2 million in May 2020. At the same time, 6.7 million workers were hired in November 2021.

The unemployment rate fell from 4.8 percent in September to 4.2 percent in November, and there still are 6.9 million individuals looking for work. At the same time, there were 11 million job open ings in November, up from 10.4 million in August. The median hourly wage was $31, up 4.8 percent in a year.

A million workers in the leisure and hospitality industry resigned or were terminated in November 2021.

The size of the labor force was down by about 3.6 million by late 2021 to 61.8 percent, down from 63.5 percent at the end of 2019. Of those who have left the workforce, a majority are fifty-five and older, and most of those have retired, many early. Women especially have left, mostly because of their inability to find childcare and because of public school disruptions caused by the pandemic.

Employee quitting is usually an expensive proposition for most employers, and so it is a longtime management objective to keep their turnover rates low. This excludes Amazon, on the other hand, since it deliberately promotes a 150 percent annual turnover rate, from which it believes it profits. Over the long haul, American workers generally change jobs about every four years, with younger workers doing so more frequently and older workers less so.

When quitting jobs has been studied pre-pandemic, the fol lowing factors, which are somewhat within employer control, are considered the most common reasons for employees’ quitting:

• Inadequate pay • Bad bosses • Overwork • Lack of recognition • Broken commitments • Poor relations with co-workers • No telecommuting or schedule flexibility • Lack of career and compensation advancement • Micromanagement or lack of management direction

• Bad work-life balance

The foregoing and other “normal” personal factors, such as retirement or going back to school, still account for most resignations,

but the pandemic’s disruptive influence and the fact that there pres ently are about 11 million job availabilities are additional factors that explain today’s high quit rates. People are finding better avail able jobs.

Simply put, low-wage workers presently are able to find jobs with better pay, benefits, and working conditions; their employers must therefore find replacements, and to do so, they are often required to raise wages and improve conditions, driving up costs if they are successful, or putting pressure on remaining employees if they are not by having them work substantial amounts of overtime. But before looking at these specific pandemic-related factors and cases, a word needs be said about the beginning of the pan demic early in 2020, since it set the stage for what has come later, insofar as tenure of employment is concerned. And there we should look first at “essential workers.”

2. Essential Workers

The great realization: When the current pandemic began during the first four months of 2020, it inflicted a huge shock to the American people, economy, and workplaces. In February 2020, the national unemployment rate was a low 3.5 percent. On March 13, Presi dent Trump declared a national emergency based upon the arriving pandemic, and on March 17, the Trump administration asked Con gress to enact a bipartisan emergency relief package to deal with the developing health and economic crisis. A mere ten days later, Trump signed into law the so-called CARES Act (Coronavirus Aid, Relief, and Economic Security Act), which provided direct aid to American families, businesses, and the unemployed. This totaled about $2 trillion, which was 45 percent of all federal government expenditures in 2019, or $6,000 per American. By April 2020, the national unemployment rate had skyrocketed to 14.8 percent, and nonfarm payrolls had shed 22.1 million jobs.

As far as unemployment compensation was concerned, the CARES Act provided an additional $600 per week across the board that was added to existing state unemployment benefits, which then varied from an average of $473 per week in Massachusetts to an average of $236 per week in Florida. The number of weekly ben efits was extended as well.

In addition, the CARES Act established for the first time a fully federally funded unemployment benefit for the self-employed, inde pendent contractors, and so-called “gig” workers who were directly affected by the pandemic in that they were unable to work because they or their family members needed to remain at home to be cared for because of COVID, or because their jobs or businesses were shut down as a result of COVID.

The federal supplement was reduced to $300 effective Janu ary 2021, and it terminated on September 6, 2021. There is no question that the number of the unemployed and the size of the federal subsidy caused many states to be unable to handle the large administrative workload in paying out benefits. This in turn caused substantial disruption and delay in benefit distribution. And the Secret Service estimates about $100 billion may have been paid out from all of the CARES Act’s programs through fraud.

I should mention that I am involved in litigation over whether twenty so-called red states illegally terminated some of the CARES Act unemployment benefits about three months early in 2021.

On March 19, 2020, California was the first state to issue a lockdown stay-at-home order, except for what were described as “essential workers.” This was a relatively new term, and shortly thereafter most if not all other states followed suit. According to the Centers for Disease Control and Prevention, such essential employees included health care, transit, sanitation, agriculture, gro cery, delivery, food preparation, manufacturing and warehousing, teachers, police and fire workers, and many others. They numbered

about 55 million. Of these, about 43 percent were Black, Hispanic, Asian American, and other non-whites. In New York City, 75 per cent of essential workers were people of color. The white population of New York City is 43 percent, and the non-white population is 57 percent.

About 70 percent of essential workers did not have college degrees, 30 percent had some college, and 10 percent didn’t have a high school diploma.

Essential workers were divided evenly between men and women. About 22 percent of the 55 million essential employees were among the country’s most poorly paid workers. They received few employment benefits and had minimal financial security. And to a significant extent, they consisted of Black and Hispanic workers. Some 22 million of them (40 percent) earned pay of less than $15 an hour.

These revelations and the public’s dependence upon “essential workers” resulted in a national expression of respect and appre ciation for them for the generally necessary and hazardous work they did, especially because they were facing on-the-job exposure to the virus. The situation was worsened by the fact that these workers were often not provided with the required protective gear and equipment to do their jobs and were working exceedingly long hours. Indeed, many of these workers contracted COVID and died.

Similarly, expressions of public appreciation for the work and sacrifices these workers were making on behalf of the public gave them a better sense of their enormous worth to society. But they also saw the hypocrisy of that appreciation. They felt that they had been undervalued, underappreciated, underpaid, and socially mar ginalized in the past and were deserving of improvements in their compensation and benefits, which too often did not materialize. In their position, my line would have been “Keep Your Praise! We Need a Raise!”

By today, many of these “essential workers” are among those who have quit rather than continue to suffer harm and burnout in their “essential” frontline jobs, especially where better-paying and less hazardous jobs have become available. And finding replace ments is proving most difficult for their public- and private-sector employers. It is estimated that the number of health-care workers is down one-fifth from two years ago, and both federal and state gov ernments are now calling upon the National Guard and the military to fill in at hospitals and elsewhere upon the arrival of the Omicron variant in 2021.

3. Health Care

According to the Census Bureau, in 2019 there were about 22 million people employed in the health-care industry, which prob ably is the largest and fastest-growing industry in the United States. Of these, 9.8 million were employed as physicians, sur geons, nurses, technicians, and other practitioners. Another 5.3 million worked as nursing assistants, home health- and personal-care aides, and in other health-care supportive occupa tions. Women accounted for 75 percent of year-round, full-time health-care workers. The largest health-care occupation was reg istered nurse, of whom there were more than 2.2 million. The median annual earnings of nurses was $68,509. The median annual earnings of nursing assistants, of whom there are about 800,000, was $28,606.

According to the Bureau of Labor Statistics, about 18 percent of health-care workers left their jobs since the pandemic began, and perhaps as many as 12 percent were laid off, causing a serious short age of nurses across the United States.

The reasons for the departures are many, but as one observer declared, “2020 was the year of ‘Everyone . . . hit the barricades, let’s solve this national [pandemic] problem,’ but 2021 has been

more like ‘If this is what it’s going to be like, I’ve got to reevaluate my life.’”

The Biden administration ordered that employees at health-care facilities that are funded by Medicare and Medic aid must be vaccinated by early January 2022. The regulation allowed for medical and religious exemptions. The religious objections frequently relate to the fact that aborted fetal cell lines have been used in the testing or development of vaccines. Similarly, the administration’s Occupational Safety and Health Administration (OSHA) issued an order that employers with one hundred or more employees require those employees to be vaccinated or tested weekly for COVID-19 on pain of dis charge. Both of these regulations were challenged in court. On January 13, 2022, the United States Supreme Court, by a vote of 5–4, upheld the Medicare-Medicaid health-care facility rule, but by a 6–3 vote, it set aside the OSHA rule. As to the health-care facilities’ rule, the Court held that it was within the government’s power to require Medicare and Medicaid benefit recipients to conform to such mandates. But as to the OSHA rule, the Court held that Congress had not authorized OSHA to issue what the Supreme Court considered a far-reaching public health rule.

As for nurses during the continuing pandemic, faced with an aging, retiring, and “burnt-out” nurse workforce, and a shortage of foreign nurses or available nursing students, there has been an expansion of the already substantial phenomenon of travel nurs ing, in which nurses take on thirteen-week “gigs” through travel recruiting agencies. Traveling critical-care nurses earn three times and more than their normal pay in these temporary jobs. It has been reported that there presently are 100,000 positions open for traveling nurses, with only 60,000 presently occupied and 40,000 openings remaining. It has also been observed that while a nurse might earn a year’s pay in three or four months this way, the rewards

are often balanced by the travel jobs being located in high-COVID locations.1

That health-care workers have been the most challenged and damaged both physically and emotionally in our country during the past two years seems indisputable.2

4. Education

I said earlier that women were leaving the workforce in significant numbers because of childcare problems. But insofar as working in education is concerned, there are many other reasons as well.

There are roughly 4 million elementary, middle school, and high school teachers in the United States, with 3.5 million working in public schools and another half million employed in private schools. Women make up 76 percent of all such teachers, with 89 percent female teachers in public elementary schools, 72 percent in public middle schools, and 60 percent in public high schools. Public elementary teachers average an annual salary of $58,700; public middle school teachers, $3,200 more per year; and public high school teachers, $5,600 more. Among all public school teachers, about half hold master’s degrees. Among these teachers, 9 per cent of women and 7 percent of men hold even higher advanced degrees. Teachers are exempt from the overtime provisions of the wage and hour laws and therefore never receive any additional pay for working beyond forty hours a week.

In addition to teachers, it is estimated that public schools employ an equal number, namely 3.5 million, of nonteacher employees, including teacher aides, special-education specialists, nurses,

1. See Alice Herman, “The Big Business Behind Travel Nursing,” In These Times, December 22, 2021, p. 16.

2. For more details on the health-care workers’ situation, see Ed Yong, “Why Health-Care Workers Are Quitting in Droves,” The Atlantic, November 17, 2021.

supervisory and administrative employees, coaches, bus drivers, security personnel, engineers, janitors, food service employees, crossing guards, etc. Some 50.7 million students attend almost 100,000 public schools in the United States.

During the pandemic, the operation of schools has been extraor dinarily difficult and even traumatic, regarding the unique challenges faced both by teachers, other school personnel, and students and their parents. According to the RAND Corporation, teachers “were more likely to report experiencing frequent job-related stress and symptoms of depression than the general population.”3 A National Education Association survey of 2,690 teacher members released in June 2021 reported that one-third of respondents said that the pandemic had led them to plan to leave the profession much sooner than they had anticipated, and many teachers have left teaching after the first and second school years that ended during the pan demic, leaving large and disruptive teacher shortages. Substitute teachers are in short supply as well.

Public education became a political football during the Trump presidency. Coping with local controversies over masking, vaccines, testing, remote learning—not to mention disputes over so-called “critical race theory”—can be expected to keep teachers and other workers at schools in a disruptive state that will likely set public edu cation back significantly in the years to come.

5. Other “Quitters”

There are some miscellaneous reasons for job quitting during the pandemic that deserve mention.

3. Elizabeth D. Steiner and Ashley Woo, Job-Related Stress Threatens the Teacher Supply: Key Findings from the 2021 State of the U.S. Teacher Survey (Santa Monica, CA: RAND Corporation, 2021), https://www.rand.org/pubs/research_reports/RRA1108-1. html.

“EPIPHANY” RESIGNATIONS

One of the themes that has appeared frequently in the many reports about what is being called “the Great Resignation” are the so-called “epiphany quitters.” These are people whom the pandemic caused to reexamine what they are doing with their lives, and what they’d rather be doing to make them happier and more fulfilled. This might include deciding that their current job or employer was unsatisfying and that they needed to try something entirely new and different. There also are many who have decided that they’d like to become their own bosses and open a small business.

PANDEMIC SUFFERERS AND AVOIDERS

Experts and surveyors in the field also believe that there are many workers who quit their jobs and are not now seeking new ones because of pandemic-related reasons. They may be unwilling to be vaccinated, be suffering from long COVID, fear being infected at a new job, or need to provide support and care at home for fam ily members, such as elderly parents, children, and grandchildren. Here again, a motivating factor may be the unavailability of home care workers.

Another large number of former members of the workforce are people who have quit and are simply not seeking new employment during the pandemic. The Bureau of Labor Statistics believes there are at least 1 million in this category.

RETIREES

There have been an extraordinary number of retirements, including unanticipated early retirements, during the pandemic. According to Goldman Sachs, 2.5 million of the 5 million missing from the labor force are recent retirees, and 1.5 million of them are early retirees.

6. Childcare

One might think that with so many women sidelined from the workforce because of the unavailability of childcare, especially for young unvaccinated children, there would be a great effort to fill the childcare void. But such is not the case. Treasury Secretary Janet Yellen recently opined that while families spend about 13 percent of their incomes for childcare for young children, day care workers earn so little that they are in the lowest 2 percent in income for all professions. According to Yellen, “Childcare is a textbook example of a broken market.”4 For example, childcare employment is down 126,700, which is more than 10 percent less than its pre-pandemic level. And wages are well below $15 an hour and do not include benefits. Better jobs are available for actual and potential childcare workers, and they are taking them. So, with high costs for parents, and low wages for childcare workers, women are not able to get back to work. Federal childcare relief has been proposed in President Biden’s Build Back Better legislation, but it is stalled at this time.5

7. Anti-Work

Even before some COVID-motivated “quitters” had started to reevaluate their relationships to their work, and to work in general, an online community was advancing an “anti-work” perspective. It is known as “r/antiwork” and describes itself as “a subreddit for those who want to end work, are curious about ending work, [and]

4. U.S. Department of the Treasury, “Remarks by Secretary of the Treasury Janet L. Yellen on Shortages in the Child Care System,” press release of September 15, 2021, https://home.treasury.gov/news/press-releases/jy0355.

5. See Julie Kashen and Nina Pérez, “The Urgent Need for Child Care Solutions,” The Century Foundation, January 6, 2022, https://tcf.org/content/commentary/ urgent-need-child-care-solutions/.

want to get the most out of a work-free life.”6 Reddit is an online community website where people congregate to discuss particular subjects. Their r/antiwork community had 13,000 members in 2019 and now has over 1.3 million members. It is one of the most subscribed-to subreddits. It is nearly double the size of “r/career guidance.”

While some may scoff at this utopian meme, we should consider that the idea of no longer working, at least at a certain age, and receiving payments in lieu of a paycheck thereafter, is hardly new. It goes back at least to Germany under Chancellor Otto von Bismarck in the 1880s. He proposed pensions at least in part to avoid more radical proposals. As Bismarck put it in a speech to the Reichstag in 1881: “Call it socialism if you like. It doesn’t matter to me.” The retirement age then enacted in Germany originally was seventy, but it was reduced to sixty-five in 1916 during World War I.

While pensions had been provided to Revolutionary War veter ans and Union veterans of the Civil War, our Social Security system was not enacted until 1935, as part of FDR’s New Deal. We were the last of the modern industrial countries to adopt Social Security, and by reason of its exclusions of agricultural and domestic workers, twothirds of the then Black working population was excluded.

As for private pensions, American Express started one in 1875, which provided payments for retirees at age sixty for those who had worked for the company for twenty years. These low age and tenure requirements may have reflected shorter life spans in the nineteenth century as against today.

Other state and federal legislation dating from the early twenti eth century sought to limit working hours of women and children, to protect them against overwork and exploitation. And the Fair Labor Standards Act, enacted in 1938, sought to discourage

6. “Antiwork: Unemployment for All, Not Just the Rich!” r/antiwork (Reddit), https://www.reddit.com/r/antiwork/.

private-sector employers, and later, public and federal employers, from requiring overtime work beyond forty hours per week without paying time and a half for such work. This was intended to inhibit overtime in favor of hiring more workers. But these laws have too often been evaded by employers who engage in “wage theft.” And many employers and even employees have preferred overtime work, since it is less expensive than hiring additional employees and pro vides employees with greater income.

Also, the federal minimum wage has not been increased by Congress from $7.25 per hour since 2009. However, pressure from unions, workers, and liberal groups, as well as from the labor market itself, have succeeded in making $15 per hour the de facto minimum wage. At the same time, if the minimum wage had kept pace with productivity increases since 1968, it would exceed $25 per hour, which would add up to $50,000 per year.

Finally, the vast disparity in wealth in the United States would make it possible for 1 million individuals who are in the top 1 per cent of asset holders and whose assets exceed $10 million to avoid working for the rest of their lives.

Thus, merely thinking about not having to work, or working less, is hardly preposterous. Let’s recall that in 1930, John Maynard Keynes predicted that within one hundred years, the great-grandchildren of his contemporaries would be working fifteen-hour weeks. Perhaps he was overly optimistic, but hardly deranged! And in his defense, Keynes had no children, hence no great-grandchildren—and further, he was no idler. He is thought to have worked himself to death. More recently, in Keynes’s defense, anthropologist David Graeber in his 2018 book Bullshit Jobs argues that Keynes was right and that but for the meaningless and useless jobs we’ve created, people would be working fifteen hours each week. Also, the idea of universal basic income (UBI) without requiring conventional work is being experimented with in certain cities and countries.

8. Unionization

Quitting one’s job and finding a better one is not the only way for workers to seek to improve their pay and other conditions of employment. Nevertheless, some observers have described the cur rent movement by employees to quit their jobs and find better ones as a clandestine national general strike. This is hardly the case. However, the old-fashioned method of union organizing, collective bargaining, and striking after reaching a bargaining impasse is mak ing a comeback in the now substantially reduced unionized sector. Today, unionized workers make up about 11 percent of the national workforce, or about 14.8 million employees.

Indeed, going on strike can be viewed as a temporary quit (at least one hopes), in which workers are subject to permanent replace ment if their employer can find scabs to replace them. In either event, if you are in an environment in which there are few who are willing to cross picket lines and go to work as strikebreakers, as against other job opportunities, union bargaining power is enhanced. This may have been the case recently at Kellogg’s, in which the company threatened to replace 1,400 members of the Bakery, Confectionary, Tobacco Workers and Grain Millers’ Inter national Union employed in four Midwestern plants who went on strike early in October 2021. The rank and file overwhelmingly rejected two company offers but later settled in December.

The principal issue arose from the fact that the employer, with union agreement some years earlier, created a two-tier wage system, with long-term employees being paid more than $30 an hour and new hires at about $19 an hour. The workers (30 percent of whom are now second tier) sought to limit this differential arising out of the two-tier system and to curb massive amounts of mandatory overtime. The settlement brought the second-tier workers much closer to the first-tier wage rates. (I believe the settlement may have occurred because of Kel logg’s inability to find replacement workers as well as fear of a national

boycott of its products.) Earlier in 2021, the same union won improved pay and conditions after striking Frito-Lay and Nabisco.

A common situation these days finds workers self-organizing without immediate union help. This is the case, for example, with unorganized pharmacists who held a national demonstration in December.

9. Amazon

The impact of the pandemic upon Amazon and its approximately 1 million employees in the United States is somewhat unique. It’s the result of the longtime game plan that Jeff Bezos imposed on the company and its employees. For Amazon, the pandemic served as a medium for its growth and expansion because of the reach of its online sale of almost everything and the public’s greater depen dence on online shopping.

By 2016, Amazon had about 350,000 full- and part-time employees in the United States. Its employment total increased by about 600,000 workers over the past five years. Close observers of Amazon concluded that CEO Jeff Bezos believes that rather than trying to keep its workers from leaving, as most companies do, Amazon benefits from a high employee turnover rate because its employees are assumed to lose interest and initiative and become less productive after about two years. Thus, Amazon has experi enced a 150 percent annual employee turnover. This means that 3 percent of the workforce quits each week and must be replaced, while at the same time, the size of the workforce must grow in order to be able to meet the increasing public demand for Amazon’s prod ucts and services. This is especially true during the pandemic, when in-person shopping has been reduced.

If my figures are correct, it appears that Amazon will have said farewell to over a million quitters and dischargees in 2021. Nonethe less, during the pandemic, and even before, Amazon’s need to hire

and train more workers continued. It met this need by raising wages gradually to $15 an hour in 2018, and since then somewhat higher, plus providing signing bonuses when necessary. These increases have resulted in Amazon attracting lower-wage and lower-skilled workers who were receiving wages well below $15 an hour in lowwage employment areas, causing employers in those areas to raise wages in order to compete. This makes Amazon a wage and benefit setter at the low end of the employment market. As a result, wages have gone up for many—including, for example, casual workers. At the same time, Amazon is happy to see burnt-out employees, who work long hours on their feet and suffer a high rate of on-the-job injuries, quit.

By comparison, FedEx has hiring problems, while unionized UPS, with its higher wages and benefits as well as its more stable unionized workforce, is in a better competitive position than Amazon or FedEx to maintain its operation making deliveries during the pandemic.7

Also, the newly elected Teamsters Union president has indi cated that the Teamsters plan to organize Amazon’s employees nationwide at some point. However, organizing in an environment where the workforce is constantly “churning” will be difficult.

10. The Bubonic Plague

There are historians who point to King Edward III’s Ordinance of Labourers of 1349, which was ratified by Parliament two years later, as the beginning of modern labor law in the English-speaking world. In my view it would be more accurate to describe the ordi nance as the first known imposition of wage and price controls. In

7. As you may recall, in a recent unionizing election of workers at Amazon in Bes semer, Alabama, the Retail, Wholesale and Department Store Union (RWDSU) lost, but the National Labor Relations Board (NLRB) set the election aside because it found election interference by Amazon. Another election is expected to take place this February.

fact, the king’s controls were similar to those imposed by President Nixon in 1971. Let me explain the ordinance’s relevance. The Black Death resulted from the bubonic plague, which raged across Europe beginning in 1347, after making its way there from Asia. It killed about one-third of the population of England, which then was about 7 million, causing huge disruptions, trauma, and loss. The losses were suffered especially by laborers who worked the land as tenant farmers or as serfs for wealthy landlords. The impact of the plague, having caused the death of so many, resulted in a huge labor shortage. The simple application of the law of supply and demand caused the surviving workers to see that their services now had greater value, and they were pursued for their services by land lords who offered them significantly higher wages. One clergyman opined that “if anyone wanted to hire them, he had to submit to their demands”; otherwise, “his fruit and standing corn would be lost or he had to pander to the arrogance and greed of the workers.”8 Another contemporary commentator wrote that such a shortage of workers ensued that the humble turned up their noses at employment and could scarcely be persuaded to serve the eminent unless for triple wages. . . . As a result, churchmen, knights and other worthies have been forced to thresh their corn, plough the land and perform every other unskilled task if they are to make their own bread.9

I was reminded of a recent Washington Post headline that declared

8. Fourteenth-century Augustinian clergyman Henry Knighton, quoted in “Why the Wealthy Fear Pandemics,” The New York Times, April 9, 2020, https://www. nytimes.com/2020/04/09/opinion/sunday/coronavirus-economy-history.html.

9. From a cathedral priory chronicle at Rochester, England, written no later than 1350, quoted by Christine R. Johnson, How the Black Death Made Life Better (St. Louis: Washington University Center for the Humanities, 2021), https://humanities. wustl.edu/features/christine-johnson-how-black-death-made-life-better.

“The principal is cleaning the bathroom: Schools reel with staff shortages” and a recent news story about how a former FBI deputy director was now driving a school bus.

To combat Labor’s newfound ability to contract freely, the Ordi nance of Labourers required that despite the “scarcity of servants,” employees could not be employed at rates that would allow them to “receive excessive wages,” and that they might work only under preplague wage rates or be jailed. Price controls were imposed as well. (The law was not effective, and some historians believe that the overall impact of plagues ultimately resulted in the end of serfdom.) The ordinance also provided that none were permitted to make contributions to beggars because it would discourage work and cause “idleness and vice,” and sometimes even “theft and other abominations.” Accordingly, the ordinance was enacted so that beggars might be “compelled to labor for their necessary living [and not beg].”10 This was years before the advent of the English poorhouse and workhouse laws.

The current pandemic has not had a human impact anywhere as severe as that of the Black Death upon work, life, and death. Indeed, deaths in the U.S. from COVID are under 2 percent of the 60+ million COVID cases. But clearly, the effect of the current pan demic upon the world of work nevertheless is dramatic, based upon the same economic principles that were at work in mid-fourteenthcentury England. Wages and prices increased because of labor and product scarcity and strong consumer demand and spending.

The news reports regarding inflation and its impact as well as the supply chain disruptions and reduced immigration are well known and have adversely affected the employment situation as well, but the final outcome of the struggle of these economic forces continues to unfold.

10. “Sources of British History: Ordinance of Labourers, 1349,” Britannia: America’s Gateway to the British Isles Since 1996, https://web.archive.org/web/20140701104840/ http://britannia.com/history/docs/laborer1.html.

11. Mistrust, Anger, and Fear

There are many extrinsic factors that need to be accounted for if we are to understand why many have adverse reactions and attitudes to governmental and scientific responses to the pandemic. These include general mistrust of government—especially hostility to the Biden administration, which tens of millions of Republicans believe stole the 2020 election—and fear of both COVID-19 itself and the vaccines and other methods that help prevent and control it. Together these serve to explain reluctance or refusals of many citizens to be vaccinated or even leave home to go to work.

As to mistrust of government, the fact that we lived through four years of Donald Trump’s mendacious presidency, ending with his “Big Lie” about his stolen victory, is a significant factor in explain ing anti-vaxxing sentiment. Some 74 million Americans pulled the election lever for Trump in 2020, and opinion surveys taken in Sep tember 2021 showed that at that time the tally of those who were vaccinated was 90 percent Democrats, 68 percent Independents, and 58 percent Republicans. Mistrust of government accounts for vaccine avoidance by other groups as well. According to the December 25, 2021, Los Angeles Times, the large Armenian com munity in L.A. is only 32 percent vaccinated, principally because of its holdover mistrust of governments in general resulting from long and adverse European experiences. (L.A. as a whole has a 76 percent vaccination rate.) And other ethnic and religious groups are vaccine-averse as well. Rumors and myths are in the picture too.

Insofar as fear of vaccinations is concerned, vaccines in the past have been responsible for injuries that pharmaceutical com panies and the federal government continue to compensate. The most recent situation is a rare clotting disorder called thrombosis with thrombocytopenia syndrome (TTS): Among 17 million people who got the J&J vaccine, 54 cases of TTS have been reported, and 9 individuals have died as a result. Among women ages thirty to

forty-nine, the odds thus far of getting TTS are 1 in 100,000, so the risks seem minimal. The J&J vaccine is still available, but concerns have been expressed by some medical experts, and they continue to observe its course.

As to the involvement of “anger” in the mix, public hostility and emotional and physical outbursts and abuse against vaccination mandates as well as mask wearing and social distancing require ments have emerged to cause frustration and fear on the part of workers attempting to do their jobs of enforcing these requirements. This has caused many to leave jobs as flight attendants, hospital workers, retail employees, teachers, and others because of victim ization by antisocial behavior. See the appendix of this section, which describes the experience of a doctor who chose to withdraw from seeing patients rather than suffer additional abuse.

12. Change

The scope of changes that might be anticipated in a post-pandemic country and world has not as yet fully emerged, but it seems cer tain that it will impact society’s way of thinking and working in the future. In this connection, I should mention the work of Pro fessor Ulrike M. Malmendier of the Haas School of Business at UC Berkeley. She has long advanced the idea that the “experience effect” of events affects the brain’s reaction to future circumstances. Thus, for example, she concluded in a paper published in 2011 that the Great Depression caused the unwillingness of many who lived through it to take risks purchasing stocks, preferring to invest in bonds. She also posited that Germans are inflation-averse today because of the destabilizing influence of inflation in Germany after World War I, during the Weimar Republic, which led to the rise of Hitler. Recently she suggested that the influence of the pandemic, including the rise of remote work, will influence the way we view our lives, the world, and the way we earn our livings in the future.

There are several aspects of the possible long-term impact of the pandemic upon future work that need be mentioned. While some of these developments appeared before the pandemic, its arrival served to bring them on at a heightened pace, and it seems as if they will become permanent fixtures in many post-pandemic workplaces.

First, and perhaps most significant, is the phenomenon of work ing from home by workers whose jobs permit it. It became a necessity for many businesses during the early lockdown, but it has become an almost total or at least partial and desired part of the jobs of many employees. Insofar as working from home offers employees less personal contact, more time flexibility, and the avoidance of lengthy commutes, it seems clear that many businesses will continue to make at least some hybrid form of working from home perma nent. And employers are busily trying to adjust to satisfy employees and at the same time improve productivity. Along the same lines, shorter hours and a four-day week can be anticipated.

As to the expansion of remote work, let me refer you to a recent book, Remote Work Revolution: Succeeding from Anywhere by Harvard Business School faculty member Tsedal Neeley, who has been following remote work for many years. She comments:

[T]here is no doubt that remote work has benefits. Com mute times disappear. Operational costs get slashed. Bloated travel budgets are no longer imperative. Hiring and retaining employees without asking them to relocate from their home countries or domestic cities becomes conceivable, resolving global travel barriers. Astronomical real estate costs that exist in some locations have the potential to get reduced significant ly, a welcome solution in an economic downturn. Societal ills like poverty gaps between rural and metropolitan areas might have the opportunity to close while simultaneously creating an untapped labor pool for companies. Gender gaps may shrink

as organizations rethink their remote capacities for maternity leave. Gas emissions can decline, having a measurable impact on environmental sustainability.11

Professor Neeley addressed the downsides of remote work as well and seeks to advance solutions.

Additionally, Zooming is being used to avoid person-to-person meeting contacts and travel during the pandemic and to facilitate working from home. It has become increasingly popular and useful in business, education, and otherwise, and it appears as if it, too, is here to stay.

I earlier discussed artificial intelligence, robotics, and automa tion. (See “AI and Robotics in the Twenty-First Century: A Tsunami Without a Safety Net,” pages 149–170.) To be sure, the pandemic, accompanied by labor scarcity and the need to pay higher wages, has accelerated management’s move in the foregoing directions. For example, Tyson Foods, which produces one-fifth of the nation’s poultry and is the nation’s largest chicken producer, announced last month that it planned to spend $1.7 billion over the next three years to automate its labor-intensive production lines. And it plans to open twelve new plants within the next two years to meet increased demand. Poultry processing has long been a major venue for serious federal and state occupational health and safety as well as wage and hour violations, including high noise levels; the use of dangerous equipment; slippery floors; the use of hazard ous chemicals, including ammonia; and wage and hour violations. Poultry industry employees were among the earliest victims of COVID-19 in 2020. There are approximately 250,000 employees engaged at poultry processing plants. There would appear to be no question that the pandemic’s continued labor scarcity, increased

11. Tsedal Neeley, Remote Work Revolution: Succeeding from Anywhere (New York: Harper Collins, 2021), pp. 12–13.

compensation costs, and other factors will result in the acceleration of labor-saving technology.

Conclusion

The foregoing descriptions and analysis of American workers and their outlooks toward work and working during the current pan demic, and the pandemic’s impact upon their working lives, are just snapshots of a major occurrence that is deserving of much greater and continuing study. Such issues as the breakdown in the supply chain during the pandemic, the rise in the inflation rate, the decline in immigration and the birth rate, and the operation of the health care and educational systems all deserve further study as well. What I hope I have presented here is a modest beginning for further inquiry and thought.

Appendix

My Career of Treating Patients Has

Ended12

after more than three decades as a physIcIan, the Q manIacs have succeeded in driving me out of providing care to patients. I, like many of my colleagues, am moving into medically adjacent work, where we can continue to apply our training and decades [of] knowledge without ever having to come in contact with sick people. I’ve been able to deal with the years of patients who attended Google Medical School, and the hours wasted explaining things such as why cinnamon cannot be used to treat diabetes, or that garlic and beetroot can’t treat HIV. And Lord save me from essential oils.

COVID and Q finally proved to be the one of amateur “experts” that was too much for me. The horrific deaths are beyond what you might imagine. They emerge almost unrecognizable to their fami lies. Since June, I have never seen a horrible case of someone who was vaccinated. I have seen people struggling to breathe through lungs that have hardened to near uselessness, begging us in their ignorance to give them the vaccine now. We can tell, almost without fail, which ones will die when they come through the door of the ICU, but we do everything in our power to keep them alive—BIPAP, ECMO, ventilator—knowing we are stretching out the inevitable. We use paralytics with ECMO and ventilators, then ease them off to see if they can function. And as the drugs wane, the look of terror emerges, the tears. We try to calm them, to swallow our desire to scream at them: This is your fault! This didn’t have to happen! Often, their spouse or their uncle or neighbor is nearby, dying along

12. This addendum is reproduced from “r/QAnonCasualties” (Reddit), https:// www.reddit.com/r/QAnonCasualties/comments/rakxun/my_career_of_ treating_patients_has_ended/

with them. And we work hard for those rare cases where we can pull them back from the edge.

I could deal with all of that. What I can no longer handle is the screaming, not from the patients, but from the families. They are not screaming in anguish, or in recognition of how their foolishness has led them to this point. No, they are screaming at me. Because, you see, I am part of the global conspiracy to commit genocide. If only I would give 10,000 mg of vitamin C—even though the body can only absorb a maximum of 100 mg a day, with the rest cre ating the world’s most expensive urine—they would be saved. Or hydroxychloroquine. Or ivermectin. Those have never been stud ied, they assure me, and when I tell them they have been, they snap that I don’t know what I’m talking about. I want, oh [God,] I want, to tell them that if we are the ones responsible for killing their loved ones, then why the hell have they brought them to the hospital? Why throw them into our clutches? I know the answer: They know it is all lies. But their egos are so huge they can’t bring themselves to admit it.

My breaking point came three weeks ago. I dealt with a particu larly horrible case. This was a husband and father, 38 years old. A wife, two daughters, one son. All of age to get vaccinated, none vac cinated. If you could have seen his face, and the ravages left by both COVID and the time he spent prone on his stomach. An enormous clot kept reforming in his leg, and we had been forced to amputate his foot in hopes of keeping him alive. When he was awake, the look of terror in his eyes, the crying, the pain. It was nothing new. But the begging, over and over, “Don’t let me die.” And “Give me the vaccine.” All I could tell him is “We won’t let you”—although I never said we might not have any choice in the matter. And I told him, repeatedly, it was too late for the vaccine.

He begged me to bring in his family. A nurse called them, because they had never come to the hospital. They refused to wear masks, and so would not be admitted. The nurse told the wife that

her husband was likely dying, and was begging to see them. All she cared about was masks. She would only come if she and her daugh ters didn’t have to wear any.

The nurse came to me and told me the wife wanted to speak to me. I got on the phone, and she ordered me to cure him with iver mectin and vitamin C & D. I explained to her, those do not work, they have been extensively studied and the amount of ivermectin needed to treat even mild COVID would kill a human being. Once again, I was told I was ignorant. I asked her to come down to the hospital, to bring her children, to at least wait outside. Somehow, she agreed.

The nurses were all busy, and I took over the role they usually perform, comforting the dying. I sat beside the man’s bed. Through tears, he rasped out sounds I could vaguely understand as a ques tion. I guessed at what he was asking, and assured him that yes, his family was coming. He was so frightened, and I could tell he knew death was unavoidable. I’m not religious, but I knew he was, and I talked about the comfort of Jesus as I held his hand. About a minute later, he coded. We tried to save him, but there was nothing to be done. He died.

Twenty minutes later, I heard from a nurse that the family was here, that they had made a ruckus down in the lobby demanding to be let upstairs without masks, and had been thrown out of the hospital. I consulted with a few colleagues who agreed to cover me so that I could speak to them in the parking lot. I took the elevator down, and asked security to point out the family that refused to wear masks. Fortunately, they had not left.

I stepped outside, went to the wife, and identified myself. I told her that I was sorry, that we had done everything we could, but her husband had passed a few minutes earlier. I did not manage to get the words of the sentence fully out of my mouth when I felt the fist strike my face and heard the screamed words “You murderer!” I fell backward, tripped, and plopped onto the pavement, the back of my

head striking asphalt. I vaguely heard the words being screamed about ivermectin and hydroxychloroquine and [God] knows what else. I heard “you could have saved him if you listened!” I tasted blood from the top of my lip. It took a moment to know it was seep ing from my nose, which she had broken. My mask was getting wet, and thus useless. Security grabbed her. They were getting ready to call the police, but I knew if they did, I would become the next national target for the Q maniacs. I told them to just put her in her car. I wasn’t going to press charges. I went back to the hospital. I started looking for a new job the next day. I will never treat a patient again. Thank God.

about the author

Jules BernsteIn was born in 1935 in Brooklyn, New York, during the Great Depression. His family were working-class Jews whose parents had immigrated to the United States in the early part of the twentieth cen tury to escape the pogroms of Eastern Europe. As a young child he lived through the turmoil of World War II, and later was fortunate enough to attend Brandeis University during its earliest years.

While at Brandeis, Bernstein was greatly influenced by his teachers, who included Irving Howe, Herbert Marcuse, and Max Lerner. Following graduation, he attended the University of Chicago Law School and was by then involved with the labor and socialist movements, which he continues to support today.

Bernstein has practiced labor law since 1961 in Washington, D.C., beginning with a seven-year stint on the legal staff of the International Brotherhood of Teamsters during the tumultuous period when the union was led by James R. Hoffa. He continues to practice labor law with his wife, Linda Lipsett. To gether, they have spent more than 100 years representing workers and unions in their continuing struggles in both the public and private sectors.

While pursuing their law practice, Bernstein and Lipsett have raised three children, Beth, Mike, and Annie, all of whom attended the re nowned Georgetown Day School in Washington, D.C. Founded in 1946, Georgetown Day was the first racially integrated school, either private or public, in the nation’s capital, and is currently celebrating its seventy-fifth anniversary. The couple has five grandchildren: Lea and Noa Yamashiro; and Moza, Avé, and Jonah Bernstein, and are “shvigger” and “shver” (mother-in-law and father-in-law) to their son-in-law, Cyn Yamashiro, and their daughter-in-law, Courtney Stein.