"Heat" by JUDY ARAUJO VOLKMANN, via ArtProv Gallery, Providence.

"Heat"

Grad Student Unionization Drives Heat Up / by David Felper/Anthony J. Dragga

BOSTON

Efforts to unionize students at private universities are gaining momentum. The National Labor Relations Board (NLRB) has agreed to reconsider whether graduate students at private nonprofit colleges and universities should be treated as employees under the National Labor Relations Act. The case, New School, Case No. 02- RC-143009, involves a United Auto Workers petition to organize graduate students at New York’s New School and marks the NLRB’s latest attempt to revisit, and potentially overturn, its decision in Brown University, 342 NLRB 483 (2004). 

In its Brown ruling, the NLRB determined that Brown University’s graduate students could not unionize. The NLRB’s decision to review this important issue has led many to believe that a change is in the works, and private colleges and universities need to be prepared for the implications of this decision.

In Brown, the NLRB held that graduate students performing teaching and research services are not “employees” within the meaning of Section 2(3) of the National Labor Relations Act, because their relationship with the university was primarily educational. The NLRB concluded that graduate student assistants are primarily “students” rather than “employees,” because they are admitted into, rather than hired by, their universities, and because supervised teaching and research are integral components of their academic development.

 Accordingly, they do not need to be treated as employees for purposes of collective bargaining under Section 2(3) of the act. It should be noted that public universities are governed by state labor laws, and many states permit union formation and collective bargaining for graduate teaching assistants.

The road to reconsideration of the Brown decision has been anything but direct, and it has often been difficult to comprehend the NLRB’s evolving position on the issue. For example, as recently as Aug. 17, 2015, the NLRB unanimously declined to assert jurisdiction over whether football players at Northwestern University may form a union. The NLRB did not rule on whether the players are employees under the act, but made it a point to distinguish student athletes from graduate student workers, stating that “scholarship players do not fit into any analytical framework that the board has used in cases involving other types of students or athletes. … In this regard, the scholarship players bear little resemblance to the graduate student assistants or student janitors and cafeteria workers whose employee status the board has considered in other cases.” The NLRB’s refusal to take action in the Northwestern matter has led many to believe that it required a case involving graduate students, like New School, to overturn the Brown ruling.

The implications of employee recognition for graduate students, and perhaps other students, will likely have a broad impact on the relationship between students and their universities should the NLRB overturn Brown. Here are a few considerations as the board revisits this important issue:

The NLRB’s decision to revisit Brown is a long-time coming. The NLRB has long considered graduate students outside the scope of the National Labor Relations Act, save for a brief period from 2000 to 2004. However, the NLRB also considered a potential Brown reversal when it asked for amicus briefs in 2012, regarding a petition for graduate assistants at New York University. Before the NLRB could issue a ruling, the NYU administration opted to voluntarily recognize a UAW affiliate for the graduate assistants, agreeing to a representation election that bypassed the NLRB. 

Graduate assistants at NYU voted in favor of union representation and to ratify a collective bargaining agreement, and NYU remains the only private university in the nation whose graduate assistants have exclusive representation and a labor contract.

Other private universities will follow suit. Should the NLRB reverse its decision in Brown, the nation’s private higher education institutions can expect a dramatic increase in the efforts of unions to represent their graduate students involved in teaching, research and perhaps other higher education areas. Beyond New School, graduate students from other private universities have partnered with the UAW to push for union recognition, including students at Columbia University and Harvard College. On Oct.15, 2015, students at Harvard, Yale, Columbia, Cornell and other prominent universities throughout the U.S. launched a national day of action to promote graduate worker unions.

Teaching and research assistants may be covered employees under employment laws. The U.S. Department of Labor has taken the position that graduate assistants who perform teaching and research related to their course of study are considered students, rather than employees. However, if the NLRB rules that graduate teaching and research assistants are employees under the National Labor Relations Act, private colleges and universities may need to take other steps to ensure that these students receive the benefits of other employment laws, such as the Fair Labor Standards Act. This will certainly involve closer scrutiny of graduate student stipends.

It remains to be seen whether the NLRB will reverse Brown in the coming year, and if so, ultimately how far it will be extended. Of course, all this concern could go away with a new presidential administration and a different National Labor Relations Board. Regardless of the outcome of New School, it is important that private institutions prepare for a future in which graduate students seek, and potentially receive, collective bargaining and union rights.

David Felper is a partner and Anthony J. Dragga is an associate at the law firm of Bowditch & Dewey, LLP,  in Boston.  They are both members of the firm’s Labor and Employment and Higher Education Groups. This piece comes via the New England Board of Higher Education's Web site (nebhe.org).

Peter Baker: The centrality of menhaden

Fisheries managers for the Atlantic Coast states face an important decision May 5 about what is sometimes called the most important fish in the sea: Atlantic menhaden. Officials could increase the allowable catch to appease the East Coast’s largest fishing industry. Or they could begin to manage this forage species in a way that protects fish, seabirds and whales, as well as the interests of the people who care about and depend on those animals from Florida to Maine.

The Atlantic States Marine Fisheries Commission is under pressure from the menhaden fishing industry to raise the catch quota put in place in 2012. Some menhaden are used for bait, but roughly 80 percent of the catch is allocated to a single company that pulverizes and renders the fish into animal feed and oil. The industry points to signs of improvement in a menhaden stock assessment released in January as evidence to support an increase in the catch.

But menhaden matter as more than just ingredients in industrial products; they are an immensely valuable public resource. Schools of menhaden form a crucial part of the coastal food web, as the fish gulp plankton, composed of tiny plants and animals, and turn it into fat and protein that other animals then consume. An array of wildlife, including striped bass, humpback whales and ospreys, thrives when menhaden are plentiful and suffers when they are not.

Unfortunately, the proposals to increase the menhaden quota don’t take into account the needs of these predators. Allowing hundreds of millions of menhaden to be taken from the ocean without understanding the ecological impact would be risky and could undermine conservation efforts for many species. There’s a safer way to proceed.

More than a decade ago, the commissioners set a goal to “protect and maintain the important ecological role Atlantic menhaden play along the coast.” Now they have the opportunity to do just that, by making sure the catch limit for 2015 also accounts for the menhaden that marine predators rely on. The commissioners could also initiate an amendment to their management plan for Atlantic menhaden in order to bring a modern, big-picture approach to future decisions about this fish and its place in the ocean food web.

Appropriately set population targets would make sure that those that prey on menhaden have plenty to eat.

Although the most recent assessment of menhaden offered some good news, it raised concerns in other aspects. It indicated that the total biomass — the estimated combined weight of all fish — has increased, but also found that the actual abundance — the estimated number of fish — remains near historic lows. The menhaden population is still in need of conservation and hasn’t recovered throughout its historic range, from Maine to Florida.

The continuing lack of abundance is arguably more critical for predators such as striped bass, a fish that is highly prized by anglers but declining in numbers. The commissioners recently made a difficult decision to reduce the striped bass catch in order to address this coast-wide problem.

These and other important predator fish need abundant food if they are going to recover and thrive.

This gallery of images gives an idea of what we can expect to see when we realize an ample supply of menhaden in the water: humpback whales in New York’s waters, striped bass on fishermen’s lines, and ospreys and bald eagles feasting in bays. These are more than just pretty pictures. They are snapshots of a healthy ecosystem that supports coastal residents and businesses, such as charter boat captains and ecotourism operators.

Peter Baker directs ocean conservation in the Northeast for The Pew Charitable Trusts.

US Capitalism Seems to be Taking Another Turn

US capitalism seems to be taking another turn.  The Old Normal (Carmen Reinhart and Kenneth Rogoff, This Time Is Different) was the expectation that, even after a serious banking crisis, growth would resume its long-term annual trend of 2.0 percent in five years or so. The New Normal says, “Forget the trend.”

Robert Gordon, of Northwestern University, and Lawrence Summers, of Harvard University, expect slow growth for decades, thanks to various “headwinds,” or constraints on potential output  (Gordon); or insufficient demand, stemming from a savings glut (Summers).

A lively discussion of these bold new claims is taking place, so far mainly on blogs, here,here, and here, for example. Soon enough such considerations will impinge on official forecasts, Federal Reserve Board policy, and, naturally, on asset markets. That’s bad news, especially for the bottom 99 percent of the income distribution, where, according to Gordon, growth will be least of all.

It’s always possible the current path it will be altered somehow:  a major new invention, an unexpected war, a plague. But at the moment much of this seems already to be written in the cards of growth accounting.

The debate over GDP growth has put me in mind of a favorite book.  I don’t mean Diane Coyle’s GDP: A Brief but Affectionate Portrait (Princeton, 2014), though her essay certainly makes very good reading in the present circumstances. GDP is a narrative of activity deemed to be “economic success,” she writes, so it is no surprise that the measure’s primacy should be challenged by those who see it as a symbol “of what’s gone wrong with the capitalist market economy.”  She writes,

For example, environmentalists believe it leads to an overemphasis on growth at the expense of the planet, “happiness” advocates think it needs to be replaced with indicators of genuine well-being, and activists… argue that a focus on GDP has disguised inequality and social disharmony.”

Instead, the book I mean is Citizenship and Social Class (Cambridge, 1950) by Thomas Humphrey Marshall, of the London School of Economics, a noted sociologist of his day (he died in 1981.) In 1950 Karl Marx loomed somewhat larger than he does today.  By “social class,” I think Marshall meant something like what we call “capitalism” in the present day – or, in shorthand, GDP.  Here’s a key excerpt, courtesy of W.W. Norton and J. Bradford DeLong.

The concept of citizenship had been evolving in England since at least the late seventeenth century, Marshall wrote, which meant that the growth of citizenship coincided with the rise of capitalism in that nation. The concepts seemed in near-total opposition.   Capitalism was all about inequality, the creation of new classes. Citizenship bestowed equal status on all members of the community, rich and poor alike. Capitalism was about creating new classes. Citizenship was about class-abatement.

Were they related?  Certainly rights seemed to have grown hand-in-hand with GDP (starting long before there was any such statistical index of capitalism). Sometimes citizenship advanced in alliance with economic growth, other times in opposition.

This political narrative is very well known – far better than the narrative of, say, the Industrial Revolution. Civil rights, those associated with personal liberty, were established mostly in the eighteenth century, by a series of democratic revolutions; political rights in the nineteenth; social rights in the twentieth. Marshall described them thus:

[Civil rights include] freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice. The last is of a different order from the others, because it is the right to defend and assert all one’s rights on terms of equality with others and by due process of law. This shows us that the institutions most directly associated with civil rights are the courts of justice.

By the politica1element I mean the right to participate in the exercise of political power, as a member of a body invested with political authority or as an elector of the members of such a body. The corresponding institutions are parliament and councils of 1ocal government.

By the social element I mean the whole range from the right to a modicum of economic welfare and security to the right to share to the fuIl in the social heritage and to live the life of a civilized being according to the standards prevailing in the society. The institutions most closely connected with it are the educational system and the social services.

In 1950 Britain, social rights had to do with extending the welfare state. It seems to me that the second half of the century had to do with bringing economic rights within the meaning of the term, especially in nations formerly deemed to have been socialist. Thrashing out the balance between the right to participate in markets and to share in their fruits, against non-market rights to education, health care, lifetime employment and retirement income, seems to have been what much of the shouting of the last fifty years has been about – in slightly different ways, in the First, Second and Third Worlds (unless, of course, you think that the broadening of the meaning of citizenship was finally settled, once and for all, sometime in the mid-century.

On this (admittedly idiosyncratic) argument, it seems to me that citizenship in the twenty-first century is likely to have to do with the extension of environmental rights to an ever-increasing community of citizens – not just clean air and clear water, which is where the movement began, but the rights to a temperate and at most slowly changing climate; relatively stable borders; and a thoughtfully managed biota.

Now here’s the thing: for the last three hundred and fifty years or so, the battle for expanded rights has led the way. We make our wish list in the political sphere; growth follows in its train. At the moment the top item on the list probably has to do with curbing slowing, then managing climate change. This is not just a matter of  “climate week,” the demonstrations in New York, or the UN preparations there for next year’s conference in Paris.  Businesses all over the world for years have been incorporating reduced carbon emissions in their spending decisions.

Eventually we can be expected to change the definition of economic success – that is, change the calculation of growth in the GDP – to include the expense of the maintenance of the atmosphere. (Solid waste and water pollution can come later.) In a recent article in Science by Nicholas Muller, of Middlebury College, a faculty research fellow of the National Bureau of Economic Research, showed how such adjustments would increase GDP growth, not diminish it, in periods when the air pollution intensity of output was decreasing — estimated gross external damages (GED) from greenhouse gases fell by half in the US, from 6.4 percent to 3.2 percent of GDP, between 1999 and 2008

In the meantime, it is hard to know how much slow GDP growth may eventually be interpreted as measurement error. Northwestern’s Gordon acknowledges as much. He writes,

… GDP has always been understated. Henry Ford reduced the price of his Model T from $900 in 1910 to $265 in 1923 while improving its quality. Yet autos were not included in the CPI until 1935. Think of what GDP misses: the value of the transition from gas lights, that produced dim light and pollution and were a fire hazard, to much brighter electric lights turned on by the flick of a switch; the elevator that bypassed flights of stairs; the electric subway that could travel at 40mph compared to the 5mph of the horse-drawn streetcar; the replacement of the urban horse by the motor vehicle that emitted no manure; the end of disgusting jobs of human beings required to remove the manure; the networking of the home between 1870 and 1940 by five new types of connections (electricity, telephone, gas, water, and sewer); the invention of mass marketing through the department store and mail order catalogue; and the development of the American South made possible by the invention of air conditioning. Perhaps the most important omission from real GDP was the conquest of infant mortality, which by one estimate added more unmeasured value to GDP in the 20th century, particularly in its first half, than all measured consumption..

In other words, the New Normal is going to take some getting used-to.  Capitalism in the twenty-first century is obviously going to be different from capitalism in the twentieth century.  More fundamentally, so, too, the rights of humankind.

Meet That Ham Sandwich: Governor Rick Perry

  Lawyers will tell you that any good prosecutor could convince a grand jury to indict a ham sandwich.

Well, meet that ham sandwich: Governor Rick Perry. He’s a real ham — only not as smart.

A Texas grand jury indicted Perry, charging the Republican with official abuse of power. Specifically, he’s accused of threatening to veto all state funding for a public integrity unit. Among other things, that office was investigating corrupt favoritism in one of the governor’s pet projects.

Perry was trying to muscle out of office the woman who is the duly elected head of that unit, presumably to halt its inquiry. Leave office, he publicly barked at her, or I’ll take away all your money. She didn’t, and he did.

Not smart, for that’s an illegal quid pro quo, much like linking a campaign donation to an official favor. This led to the selection of a judge, the appointment of a special prosecutor, the establishment of a grand jury and the indictment of the gubernatorial ham sandwich.

Perry and his Republican operatives quickly denounced and even threatened both the special prosecutor and the jurors as partisan hacks who, in the governor’s words, “will be held to account.”

Thuggish as that is, the national media have mostly swallowed Perry’s hokum that he’s the victim, indicted for nothing more than exercising his veto power. It’s crude politics, Rick howled, as he turned his courthouse mug shot moment into a raucous Republican political rally.

Perry has hornswoggled the pundits, but don’t let them fool you. This is serious.

Again, the issue isn’t Perry’s veto, but his linking of a veto threat to his effort to oust an elected public official. His hamming it up about being a poor victim of Democrats doesn’t withstand scrutiny. The judge who appointed the prosecutor is a Republican. And the prosecutor himself was nominated to federal office by President George H.W. Bush and endorsed by two Texas Republican senators.

OtherWords columnist Jim Hightower is a radio commentator, writer, and public speaker. He’s also editor of the populist newsletter, The Hightower Lowdown. OtherWords.org

Chris Powell: GE's exit from Conn. might be good for the state

MANCHESTER, Conn. Now that nearly a dozen other states are bidding for General Electric to move its headquarters out of Fairfield, Connecticut probably will lose the 800 jobs there. Merely to keep something it already has, Connecticut is far less able to pay and to justify paying GE's extortion than other states will be able to pay and justify paying GE to get something new.

Paying GE to stay would incur a financial loss for Connecticut. But a state that used cash grants and tax breaks to pay GE to relocate and promise to stick around for a while would gain jobs, personal-income and property-tax revenue from GE employees, and general commerce to offset the expense.

Connecticut might be able to justify paying GE to expand here. But GE isn't planning expansion. Rather, the corporation is upset about the "unitary tax" just enacted by the General Assembly and Gov. Dan Malloy, under which a corporation's worldwide income is subjected to state taxation. Many states have unitary taxation, but while it may be fair, Connecticut's avoidance of it had been an advantage in attracting and keeping businesses, just as the state's avoidance of an income tax was a draw until 1991.

Presumably Connecticut could mollify GE only by repealing unitary taxation or subsidizing GE in some way that in effect would reimburse the tax. But repealing the tax would require the governor and legislature to raise other taxes or cut spending, while reimbursing GE its new tax would invite all big corporations in the state to demand the same treatment even if they had to threaten to move out as GE has done.

If keeping GE induces Connecticut to repeal unitary taxation and start making policy changes to save money and start putting the public interest over the special interest, the corporation will have done the state a service. But the corporation also may do the state a service if it leaves, for then the state may start to realize that paying extortion to businesses is no substitute for ordinary good and efficient government in pursuit of the public interest.

With a little luck GE's departure from Connecticut would end state government's policy of pretending that mere political patronage is economic development.

xxx

New London's is the latest municipal government to "ban the box" -- that is, to remove from city job application forms the box asking if an applicant has a criminal record. State government already has done the same thing. It is said that the question discourages otherwise qualified applicants who are trying to rebuild their lives and that, if an applicant is considered seriously, a criminal records check will be done on him anyway.

This is politically correct but not persuasive. For the application forms with the "box" don't say that anyone with a criminal record will be disqualified automatically. Instead the forms with the "box" signify that a criminal record may be relevant to job qualifications, which is why applicants are supposedly to be subject to a criminal records check at some point before hiring.

That is, forms with the "box" tell the whole truth while forms without the "box" mislead.

Further, forms with the "box" deprive personnel departments of an excuse to forget to do criminal records checks. Forms with the "box" remind personnel departments to be conscientious.

That such reminders may be needed was demonstrated by the massacre in June at the church in Charleston, S.C. The perpetrator should have been disqualified from purchasing his guns because he recently had admitted a narcotics offense, but that admission was not properly recorded in federal, state, and local law-enforcement databases.

Since government databases can be mistaken and since personnel departments can be negligent, job applicants themselves should continue to be asked at the outset if they have criminal records. While it's politically incorrect, it's a lot safer.

Chris Powell is managing editor of the Journal Inquirer, in Manchester, Conn.

Meanwhile, in the Annals of Citizenship

Meanwhile, in the Annals of Citizenship

US capitalism seems to be taking another turn.  The Old Normal (Carmen Reinhart and Kenneth Rogoff, This Time Is Different) was the expectation that, even after a serious banking crisis, growth would resume its long-term annual trend of 2.0 percent in five years or so. The New Normal says, “Forget the trend.”

Robert Gordon, of Northwestern University, and Lawrence Summers, of Harvard University, expect slow growth for decades, thanks to various “headwinds,” or constraints on potential output(Gordon); or insufficient demand, stemming from a savings glut (Summers).

A lively discussion of these bold new claims is taking place, so far mainly on blogs, here, here, and here, for example. Soon enough such considerations will impinge on official forecasts, Federal Reserve Board policy, and, naturally, on asset markets. That’s bad news, especially for the bottom 99 percent of the income distribution, where, according to Gordon, growth will be least of all.

It’s always possible the current path it will be altered somehow:  a major new invention, an unexpected war, a plague. But at the moment much of this seems already to be written in the cards of growth accounting.

The debate over GDP growth has put me in mind of a favorite book.  I don’t mean Diane Coyle’s GDP: A Brief but Affectionate Portrait (Princeton, 2014), though her essay certainly makes very good reading in the present circumstances. GDP is a narrative of activity deemed to be “economic success,” she writes, so it is no surprise that the measure’s primacy should be challenged by those who see it as a symbol “of what’s gone wrong with the capitalist market economy.”  She writes,

"For example, environmentalists believe it leads to an overemphasis on growth at the expense of the planet, “happiness” advocates think it needs to be replaced with indicators of genuine well-being, and activists… argue that a focus on GDP has disguised inequality and social disharmony.”

Instead, the book I mean is Citizenship and Social Class (Cambridge, 1950) by Thomas Humphrey Marshall, a noted Cambridge University sociologist of his day (he died in 1981.) In 1950 Karl Marx loomed somewhat larger than he does today.  By “social class,” I think Marshall meant something like what we call “capitalism” in the present day – or, in shorthand, GDP.  Here's a key excerpt, courtesy of W.W. Norton and J. Bradford DeLong.

The concept of citizenship had been evolving in England since at least the late seventeenth century, Marshall wrote, which meant that the growth of citizenship coincided with the rise of capitalism in that nation. The concepts seemed in near-total opposition.   Capitalism was all about inequality, the creation of new classes. Citizenship bestowed equal status on all members of the community, rich and poor alike. Capitalism was about creating new classes. Citizenship was about class-abatement.

Were they related?  Certainly rights seemed to have grown hand-in-hand with GDP (starting long before there was such any such statistical index of capitalism). Sometimes citizenship advanced in alliance with economic growth, other times in opposition.

This political narrative is very well known – far better than the narrative of, say, the Industrial Revolution. Civil rights, those associated with personal liberty, were established mostly in the eighteenth century, by a series of democratic revolutions; political rights in the nineteenth; social rights in the twentieth. Marshall described them thus:

[Civil rights include] freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice. The last is of a different order from the others, because it is the right to defend and assert all one's rights on terms of equality with others and by due process of law. This shows us that the institutions most directly associated with civil rights are the courts of justice.

By the political element I mean the right to participate in the exercise of political power, as a member of a body invested with political authority or as an elector of the members of such a body. The corresponding institutions are parliament and councils of 1ocal government.

By the social element I mean the whole range from the right to a modicum of economic welfare and security to the right to share to the fuIl in the social heritage and to live the life of a civilized being according to the standards prevailing in the society. The institutions most closely connected with it are the educational system and the social services.

In 1950 Britain, social rights had to do with extending the welfare state. It seems to me that the second half of the century had to do with bringing economic rights within the meaning of the term, especially in nations formerly deemed to have been socialist. Thrashing out the balance between the right to participate in markets and to share in their fruits, against non-market rights to education, health care, lifetime employment and retirement income, seems to have been what much of the shouting of the last fifty years has been about – in slightly different ways, in the First, Second and Third Worlds (unless, of course, you think that the broadening of the meaning of citizenship was finally settled, once and for all, sometime in the mid-century.

On this (admittedly idiosyncratic) argument, it seems to me that citizenship in the twenty-first century is likely to have to do with the extension of environmental rights to an ever-increasing community of citizens – not just clean air and clear water, which is where the movement began, but the rights to a temperate and at most slowly changing climate; relatively stable borders; and a thoughtfully managed biota.

Now here’s the thing: for the last three hundred and fifty years or so, the battle for expanded rights has led the way. We make our wish list in the political sphere; growth follows in its train. At the moment the top item on the list probably has to do with curbing slowing, then managing climate change. This is not just a matter of“climate week,” the demonstrations in New York, or the US preparations there for next year’s conference in Paris.  Businesses all over the world for years have been incorporating reduced carbon emissions in their spending decisions.

Eventually we can be expected to change the definition of economic success – that is, change the calculation of growth in the GDP – to include the expense of the maintenance of the atmosphere. (Solid waste and water pollution can come later.) In a recent article in Science by Nicholas Muller, of Middlebury College, a faculty research fellow of the National Bureau of Economic Research, showed how such adjustments would increase GDP growth, not diminish it, in periods when the air pollution intensity of output was decreasing — estimated gross external damages (GED) from greenhouse gases fell by half in the US, from 6.4 percent to 3.2 percent of GDP, between 1999 and 2008

In the meantime, it is hard to know how much slow GDP growth may eventually be interpreted as measurement error. Northwestern’s Gordon acknowledges as much. He writes,

… GDP has always been understated. Henry Ford reduced the price of his Model T from $900 in 1910 to $265 in 1923 while improving its quality. Yet autos were not included in the CPI until 1935. Think of what GDP misses: the value of the transition from gas lights, that produced dim light and pollution and were a fire hazard, to much righter electric lights turned on by the flick of a switch; the elevator that bypassed flights of stairs; the electric subway that could travel at 40mph compared to the 5mph of the horse-drawn streetcar; the replacement of the urban horse by the motor vehicle that emitted no manure; the end of disgusting jobs of human beings required to remove the manure; the networking of the home between 1870 and 1940 by five new types of connections (electricity, telephone, gas, water, and sewer); the invention of mass marketing through the department store and mail order catalogue; and the development of the American South made possible by the invention of air conditioning. Perhaps the most important omission from real GDP was the conquest of infant mortality, which by one estimate added more unmeasured value to GDP in the 20th century, particularly in its first half, than all measured consumption.

In other words, the New Normal is going to take some getting used-to.  Capitalism in the twenty-first century is obviously going to be different from capitalism in the twentieth century.  More fundamentally, so, too, the rights of humankind.

Chris Powell: One Democratic Party Enough for Connecticut?

Benighted as Connecticut's Republican Party may be in the eyes of some, it is
obligated to reject the advice given the other day by the state's former U.S.
senator and governor, Lowell P. Weicker Jr. Interviewed by Connecticut's Hearst
newspapers, Weicker said the party should let people vote in its nominating
primaries without regard to party membership, as the party did briefly in the
1980s when its Weicker faction led the party. 

Of course no party is going to win elections without appealing to a majority of
voters. But not everyone's politics is as adaptable as Weicker's was over a long
career, in which he went from being a Goldwater and Nixon supporter, advocate of
the Vietnam War, and red baiter to hobnobbing with Cuban dictator Fidel Castro
and becoming the darling of government-dependent liberals when, as governor, he
filled their troughs with the proceeds of the personal income tax he imposed on
Connecticut, earning not just the liberals' forgiveness but their amnesia. 

That is, some people want their political views and principles given expression
more than they want to win elections at the cost of having to give up their
views and principles. By letting people participate without regard to party
registration, open primaries prevent people of distinct views and principles
from even [ITALICS] having [END ITALICS] a party. 

Indeed, when Weicker, as senator in the 1980s, sought to survive in increasingly
Democratic Connecticut by moving from political right to left and began to
alienate Republicans and risk being denied their renomination, his objective in
advocating open primaries was precisely to prevent Republicans from controlling
their own party. What may have been the most apt political cartoon drawn in
Connecticut during his years in politics depicted Weicker telling Castro
confidentially, "All you have to do is register Republican long enough to vote
in the primary." 

Besides, Connecticut's Republican Party is not very conservative anyway, largely
indifferent to abortion, homosexuality, gun control, and the other social issues
on which the national party feeds and unwilling even to challenge the major
spending policies on which the state's Democratic Party feeds. That is,
Connecticut Republicans are often hard to distinguish from Democrats, and the
state won't gain political choice and change from more Weickerism, from
Republicans becoming still more like Democrats. 

* * * 

... Rising housing prices are not really good news ... 

For the most part news stories treat an increase in housing prices as an
indicator of prosperity, something to be welcomed, as happened the other day
when the Greater Hartford Association of Realtors reported that the median
housing sale price in the Hartford area had risen by almost 1 percent over the
past year. That's because for many people homeownership constitutes the bulk of
their assets and a decline in housing prices can wipe out the heavily mortgaged. 

But housing isn't only an investment; it is also a necessity of life, like food
and fuel. Only food and fuel producers would celebrate an increase in the price
of those necessities — and an increase in housing prices means more expense for
renters and more difficulty for them in becoming homeowners. 

Of course real estate long has been highly cyclical, a boom-and-bust market,
made more mercurial by the Federal Reserve's manipulation of interest rates for
political purposes. The Fed's recent suppression of rates in the name of
stimulating the economy has worsened the country's housing situation, driving up
prices while depriving small savers of interest income without increasing
employment, wages, and the [ITALICS] ability [END ITALICS] to buy housing. Real
unemployment -- counting people who have withdrawn from the labor market, been
demoted to menial or part-time jobs, or claimed disability pensions -- is
several times the official unemployment rate. 

Reducing the cost of living is pretty much the definition of rising living
standards and progress, so rising housing prices are as much a bad sign as a
good one. 

----- 

Chris Powell is managing editor of the Journal Inquirer in Manchester, Conn. 

-END-

Mary-Pat Cormier: Liability of higher education institutions (HEIs) for off-campus housing risks is tricky,

Liability of higher education institutions (HEIs) for off-campus housing risks is tricky, focusing on the institution’s role in off-campus housing arrangements.

If an HEI “assumes a duty” to its students who rely on that duty, it must fulfill the duty with due care. This general rule applies to off-campus safety: For example, if the college offered a limited shuttle bus service to or from off-campus events where it was aware of drinking, it can be liable for injuries to its student struck off campus by a car driven by an intoxicated student returning from an off-campus party. By offering the shuttle service, the HEI assumed duties to students for safety while traveling between the campus and the parties.

In the off-campus housing context, the “assumed duty” theory was determinative in a 2006 Delaware Supreme Court case. A student was assaulted by the boyfriend of another student in the parking lot of off-campus housing. The housing was “offered” by the defendant university to the plaintiff who did not get into a residence. The case went forward on negligence and detrimental reliance claims, because the university “assumed” the duty to exercise reasonable care when it undertook to provide off-campus housing.

Likewise, in 2014, a New Jersey case involved a student injured by a broken window in off-campus housing that the defendant college “arranged.” The plaintiff relied on the duty of care owed by the HEI with respect to the off-campus housing it “arranged.” Therefore, it had a duty to warn the student of the defective window in the off-campus housing unit.

Where a court may “extend” a duty

Courts seem willing to “extend” duties to an HEI, related to off-campus housing, even where the institution has not “assumed” a duty.

In Massachusetts, a landlord near Boston College complained of slander and tortious interference by BC arising from alleged statements by BC to students. The court observed BC could have a duty regarding safety to a student living off campus, because it acted like it had a duty: 1) the college had an off-campus housing office (OCHO); 2) it had a Community Assistance Patrol between students and surrounding communities; 3) BC police responded to off-campus housing disturbances involving BC students; 4) the BC student handbook referred to students’ “responsible citizenship ... in local neighborhoods.”

A 2014 New Jersey case involved the liability of a private school for the violation of fire codes in off-campus housing. The school spun-off its dorms into a separate entity that the court concluded was little more than a legal fiction, and it found the school liable for the violations. The court suggested that a school may be responsible for statutory violations in off-campus housing, where there is a “mandate to liberally construe an Act to achieve the goal of fire safety.” A school may be liable for fire code violations off campus: 1) where there is some affiliation or relationship between the landlord and the school and 2) due to the nature of violated laws—i.e. fire/safety violations.

Risk management concerns

These cases demonstrate a continuum or spectrum of liability exposures for off-campus housing (Fig. 1). Risk management strategies for the liability spectrum, include:

• Language where the student waives any legal claims that they may have against the HEI arising out of off-campus housing issues, assumption of risk or limitation of liability to gross negligence in written information provided to students by an OCHO;
• Remove properties on OCHO list after written complaints—with or without investigation of complaints by the OCHO or other office of the HEI to determine whether the complaints are valid;
• Allow students to rate off-campus housing and landlords in OCHO database;
• Where a college is “arranging” or “offering” off-campus housing pursuant to a written agreement with a landlord, include indemnification, limitation of liability to gross negligence language in the contract, and “Additional Insured” status on landlord’s liability policies;
• Educate/empower students on basic landlord-tenant rights and code violations, including fire safety.

Regarding insurance, if a college or university has potential liability for off-campus housing (“assumed duty,” “offered” or “arranged”):

• Liability policies should contemplate losses taking place at those locations;
• Liability policies should respond to negligence claims, subject to exclusions, terms and conditions; whereas a breach of contract claim or a claim arising out of fire-code, housing-code, or building-code violation would likely not be covered by a liability insurance policy.
• If a school has reason to know of pre-existing hazardous conditions in off-campus housing, coverage could be barred.
• If the claim is related to a prior claim or act, there may be no coverage at all, depending on whether the insured knew of the prior matter or provided notice to the insurer.

---

For an HEI that owns or manages off-campus housing, these same concerns apply to liability policies. Plus, those properties are susceptible to “increase in hazard” theories, which could limit property coverage. (Generally, “increase in hazard” means that where there is an increase in hazard to insured property in the knowledge or control of the insured, insurance coverage will be suspended. If a loss occurs while that coverage is suspended, an insurance claim may be denied. If the hazard is cured, a loss after the reinstatement is covered. An increase in hazard will generally not be found if there has been merely a casual or temporary change in character of the premises. An insured’s negligence is not an increase in the hazard, unless it results in a change to the property, use, or occupancy.) Where there is an increase in hazard to insured property, which effects the safety of property–like increase in occupancy in the knowledge or control of the insured, coverage will be jeopardized.

Understanding where an HEI falls on the spectrum of liability exposures is essential to a risk-management strategy.

Mary-Pat Cormier is a partner in the Massachusetts law firm Bowditch & Dewey.

Charles Chieppo: Fighting charter-school success

The Eli and Edythe Broad Foundation and other advocates have developed an ambitious plan to place nearly half of Los Angeles's public-school students in charter schools within eight years. To fund the nearly half-billion-dollar effort, backers plan to tap Broad and several other foundations, along with a number of area billionaires.

Given the powerful, well-funded interests behind the plan, no one would describe it as the kind of grassroots effort the Founding Fathers had in mind when they dreamed of a dynamic democracy driven by engaged citizens. But you can't help but wonder if L.A.'s charter advocates arrived at their plan after studying Massachusetts's experience.

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Massachusetts Gov. Charlie Baker recently kicked off yet another battle to lift a state cap of 72 on the number of so-called commonwealth charter schools, which are independent of local school districts and more numerous than the in-district schools known as Horace Mann charters. About 3 percent of the state's public-school students now attend both types of charter schools, which are concentrated in urban areas.

The cap was last raised in 2010, driven largely by the prospect of $250 million from the Obama administration's "Race to the Top" grant program. A thriving charter sector was one of the criteria for receipt of the federal money.

Across the country, there is wide variation in the quality of charter schools. But few would disagree that Massachusetts' charters are the nation's best. One 2015 study, from Stanford University's Center for Research on Educational Outcomes, found that Boston charter schools are doing more to close the achievement gap than any other group of public schools in America. And a 2009 study commissioned by the Boston Foundation and conducted by Harvard and MIT researchers found that the academic impact of a year in a Boston charter school is roughly equivalent to a year spent in one of the city's elite public "exam schools."

And it isn't just Boston's charters. Massachusetts' K-12 public schools are the best-performing in the country, and across the state 18 charters finished first last year on state tests. That's a big part of the reason 37,000 state students are on charter-school waiting lists, a situation that Baker calls "a disgrace."

So why, given the outstanding performance of so many of Massachusetts' charter schools, is it always such a battle to allow more of them? Opposition from superintendents, school boards and teachers' unions is a very powerful thing in what is -- with the exception of Gov. Baker and Lt. Gov. Karyn Polito, who are Republicans -- a one-party state when it comes to officials who are elected statewide.

Opponents make a number of arguments, but the main one comes down to the claim that charters drain money from traditional public schools. In a sense, they do. In Massachusetts, the money follows the student; when a student chooses to go to a charter school, the per-pupil funding goes along with him or her.

But what opponents rarely mention is that districts are fully or partially reimbursed for six years for each student they lose. During the first year, they receive 100 percent of the funding they would have received had the student stayed, then 25 percent for each of the next five years. That fact makes the opponents' money argument dubious at best.

Sadly, dysfunction breeds dysfunction. The resistance that Massachusetts supporters encounter in trying to expand the number and availability of charter schools is familiar to charter advocates across the country. Plenty of that resistance exists in Los Angeles, so the L.A. advocates' effort to do an end-run around democratic processes surprises no one.

In the end, we all lose when promising school reforms are blocked by interests threatened by changes in the status quo. Families are denied educational opportunity, local economies become less competitive because the potential of thousands of students is never realized, and citizens' faith in government sinks even lower.

Charles Chieppo (Charlie_Chieppo@hks.harvard.edu) is a research fellow at the Ash Center of Harvard's Kennedy School and the principal of Chieppo Strategies, a public-policy writing and advocacy firm. This piece first ran in governing.com, the Web site of Governing magazine.

That old saw about...

bigsaw

"Unihemispheric Existence'' (detail) (steel, wood, gallery wall), by WILSON HARDING LAWRENCE, in the show "Nuanced: open-endedness, capaciousness and other provocative conditions of making,'' at the Dedee Shattuck Gallery, Westport, Mass., through Nov. 8.

Safer up here

Goldsmith

"Humming II'' (mixed media and resin on panel), by SUSAN GOLDSMITH, at Lanoue Fine Art, Boston.

Chris Powell: An immigration policy that might save America

  Pope Francis told Congress last week that the United States should welcome migrants and refugees, as if the country's record in that respect wasn't already infinitely more liberal than that of Vatican City, over which the pope presides.

For while the United States has plenty of immigration law, lately it has had little immigration law enforcement. Most people caught entering the country illegally are given a summons to attend an immigration court proceeding and are waved through.

Of course three-quarters of them never show up in court. Instead in many instances they head for "sanctuary cities" like Hartford and New Haven, where local police are forbidden to assist enforcement of immigration law, and for "sanctuary states" like Connecticut, where illegal immigration is facilitated by the award of driver's licenses, city identification cards, and resident tuition discounts at public colleges.

This is nullification of federal immigration law and the nullifiers include President Obama, Governor Malloy and a majority of Connecticut's state legislators, as well as the people in charge of city government in Hartford and New Haven.

Of course this doesn't make any particular immigrant a bad person, but any country that cannot control its borders and enforce conditions for permanent residency and citizenship will not remain a country for long. Indeed, in New Haven, where the "sanctuary city" movement is an especially ideological one based at Yale University, it is sometimes admitted that the objective is indeed to erase the country's borders. As a practical matter that is treason.

So for the United States the primary question about immigration is whether the country wants to maintain itself as a republic with a distinctly democratic and secular political culture, the more so as immigrants from totalitarian and religiously fanatical cultures, immigrants who have little intention to assimilate into the cultures of their new countries, are extensively penetrating what used to consider itself as the West.

Europe is already fairly mocked as Eurabia, having accepted millions of Arabs who were economic rather than political refugees and who have formed separatist communities seeking to be governed by religious rather than secular law. By the European Union's own statistics, 80 percent of its migrants lately are not as generally imagined, refugees from the civil war in Syria, but economic migrants from throughout Africa and the Middle East. They have run welfare costs up and the wage base down.

In the United States organized labor has pretty much capitulated to uncontrolled immigration, though unlimited immigration here also undermines the wage base and weakens the economy when much of the money earned by immigrants is only sent out of the country to relatives abroad.

Organized labor can take such a position only because it strives to be politically correct and has come to represent mostly government employees, whose jobs and compensation are immune to immigration, rather than private-sector workers, whose jobs and compensation are not immune.

There is probably no compromise between the immigration law nullifiers and the angry and heartless people who want to deport the estimated 11 million illegal aliens in the country, including innocent young people who were brought here by their parents and know no other homeland and whose plight is partly the result of the U.S. government's own negligence with immigration enforcement.

But a political majority might be mustered behind the sort of immigration reform that moderates in Congress have long proposed:

*Strict border control, with no more waving illegals through, but with close tracking and prompt expulsion of visitors who overstay visas.

 *Once strict border control is established to everyone's satisfaction for a year, grant eligibility for permanent residency to those who can demonstrate self-sufficiency, proficiency in English, knowledge of U.S. history, and devotion to a democratic and secular culture, and after five years make them eligible to apply for citizenship.

Such a policy of generous, strict, controlled, careful, and patriotic immigration would safeguard the country and its culture, be generous to its illegal aliens, and advance the country's ideals as the universal nation.

Call it a Lincolnian plan, as it was implied by Lincoln as he campaigned for the U.S. Senate in Illinois in July 1858, just after Independence Day.

We hold this annual celebration to remind ourselves of all the good done in this process of time, of how it was done and who did it, and how we are historically connected with it, and we go from these meetings in better humor with ourselves.

We feel more attached the one to the other, and more firmly bound to the country we inhabit. In every way we are better men in the age, and race, and country in which we live for these celebrations.

But after we have done all this we have not yet reached the whole. There is something else connected with it.

Besides these men descended by blood from our ancestors, we have among us perhaps half our people who are not descendants at all of these men. They are men who have come from Europe -- German, Irish, French, and Scandinavian -- who have come from Europe themselves or whose ancestors have come hither and settled here, finding themselves our equals in all things.

If they look back through this history to trace their connection with those days by blood, they find they have none. They cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us.

But when they look through that old Declaration of Independence they find that those old men say, “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration -- and so they are.

An immigration policy that offered citizenship to those who wanted not just to live here but to be fully American might give the country a better class of citizens than the native-born, so many of whom are ignorant about their country and take it for granted.

Chris Powell is managing editor of the Journal Inquirer, in Manchester, Conn.

Exploring a sweet but threatened industy

Pettibone

"Karl with Honeybears'' (oil on canvas), by DAVID PETTIBONE, at the Corey Daniels Gallery, Wells, Maine.

Mr. Pettibone's "Beekeeper'' series explores the beekeeping business, from "honey harvest to monoculture pollination to fighting the diseases that threaten our complex relationship with the honeybee and its very existence.''

Transnational art

anderson

"Arcology'' (detail; gouache and Lascaux acrylics on archival papers), by Ilona Anderson, in her show "Arcology,'' at Kingston Gallery, Boston, through Nov. 1.

The gallery says the ..."diverse and radiant conglomerate says as much about the potential for transnational understanding as it does for racial relations, both in her native South Africa and in the United States.''

Beautiful land, in a way

"Whale's Jaw, Dogtown,''  from the archives of the Cape Ann Museum, in Gloucester.

Dogtown is an abandoned inland settlement on Cape Ann.  Once known as the Common Settlement and populated by respectable citizens, the area later known as Dogtown is divided between Gloucester and Rockport.  It's in an area not well suited to agriculture, because of poor and very rocky soil. It's not all that great for building either. You need a lot of dynamite.

The boulders above, of course, came from what is now Canada in the last Ice Age.

The look of such landscapes is chilling, even in summer. The whaling reference is to be expected in coastal New England.

The quiet catboat

bakercatboat

"Sailing Off Morris Island (Chatham, Cape Cod),'' by BOBBY BAKER (copyright Bobby Baker Fine Photography).

This is a catboat. I love catboats, with their  comfort, especially their wide cockpits, and lack of pretension. Pure sailing pleasure, albeit without a lot of adrenaline involved, and with mediocre upwind performance.

Catboats have centerboards, which make them very handy along sandy coastlines such as Cape Cod and Long Island.

'When I was a boy, about half the boats in West Falmouth (Mass.) Harbor were catboats. There are far fewer now; they aren't sexy enough.

--- Robert Whitcomb

Paul A. Reyes: Jeb Bush has had freebies his whole life

The Republican Party has struggled for years to attract more voters of color. In a recent campaign appearance, candidate Jeb Bush offered yet another useful case study of how not to do it. At a campaign stop in South Carolina, the former Florida governor was asked how he’d win over African-American voters. “Our message is one of hope and aspiration,” he answered. So far, so good, right?

“It isn’t one of division and get in line and we’ll take care of you with free stuff. Our message is one that is uplifting — that says you can achieve earned success.”

Whoops.

With just two words — “free stuff” — Bush managed to insult millions of black Americans, completely misread what motivates black people to vote, and falsely imply that African Americans are the predominant consumers of vital social services.

First, the facts.

Bush’s suggestion that African-Americans vote for Democrats because of handouts is flat-out wrong. Data from the Joint Center for Political and Economic Studies shows that black voters increasingly preferred the Democratic Party over the course of the 20th Century as it stepped up its support for civil rights.

These days, more than 90 percent of African Americans vote for the Democratic Party’s presidential candidates because they believe Democrats pay more attention to their concerns. Consider that in the two GOP debates, there was only one question about the “Black Lives Matter” movement. When they do comment on it, Republican politicians feel much more at home criticizing that movement against police brutality than supporting it.

Bush is also incorrect to suggest that African-Americans want “free stuff” more than other Americans. A plurality of people on food stamps, for example, are white.

Moreover, government assistance programs exist because we’ve decided, as a country, to help our neediest fellow citizens. What Bush derides as “free stuff” — say, Medicaid, unemployment insurance, and school lunch subsidies — are a vital safety net for millions of the elderly, the poor, and children, regardless of race or ethnicity.

How sad that Bush, himself a Catholic, made his comments during the same week that Pope Francis was encouraging Americans to live up to their ideals and help the less fortunate.

Finally, Bush’s crass comment is especially ironic coming from a third-generation oligarch whose life has been defined by privilege.

Bush himself is a big fan of freebies. The New York Times has reported that, during his father’s 12 years in elected national office, Bush frequently sought (and obtained) favors for himself, his friends, and his business associates. Even now, about half of the money for Bush’s presidential campaign is coming from the Bush family donor network.

And what about those corporate tax breaks, oil subsidies and payouts to big agricultural companies Bush himself supports? Don’t those things count as “free stuff” for some of the richest people in our country?

It’s also the height of arrogance for Bush to imply that African Americans are strangers to “earned success.” African-Americans have been earning success for generations, despite the efforts of politicians like Bush — who purged Florida’s rolls of minority voters and abolished affirmative action at state universities.

If nothing else, this controversy shows why his candidacy has yet to take off as expected. His campaign gaffes have served up endless fodder for reporters, pundits, and comics alike.

Sound familiar?

As you may recall, Mitt Romney helped doom his own presidential aspirations by writing off the “47 percent” of the American people he said would never vote Republican because they were “dependent upon government.”

In Romney’s view, they’re people “who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it.”

Sorry, Jeb. The last thing that this country needs is another man of inherited wealth and power lecturing the rest of us about mooching.

Raul A. Reyes is a lawyer  and columnist based in New York City.Distributed by OtherWords.org. 

But not touching

"Physicality'' (photography, oil, narrative text and resin on panel), by SHERRY KARVER, in her show "Objects of Affection,'' at Lanoue Gallery, Boston, through Oct. 31.

'Ground Cover'

graham

"Multistory'' (plaster, wood paintings on panel), by JULIE GRAHAM, at Kingston Gallery, Boston, in its current show, "Ground Cover: Contemporary Abstraction Between Figure and Ground.''