November 18, 2017

Archives for October 26, 2017

Whatever Happened to Working For a Living?

“Politically, every transformation has begun
with a repudiation of the certainties of the previous age.”

– Economist Guy Standing

Guy Standing is a research professor at the University of London and a prolific author and world-traveling speaker. In his book, The Corruption of Capitalism (2016), he analyzes how the concept of working for a living has fared under the two economic models we looked at last time (the Fabian Society’s social democratic model and the Mt. Pelerin Society’s free market). I can add little to his analysis by rephrasing it, therefore I’ll quote excerpts at length in this post and the next.

The period from the nineteenth century to the 1970’s saw what Karl Polanyi, in his famous 1944 book, dubbed “The Great Transformation” — the construction of national market economies.

[T]he model that underpinned the Great Transformation made “labour,” not all forms of work. Socialists, communists and social democrats all subscribed to “labourism.” Those in full-time jobs obtained rising real wages, a growing array of ‘contributory’ non-wage benefits, and entitlements to social security for themselves and their family. Those who did not fit this model were left behind.

The essence of labourism was that labour rights — more correctly , entitlements — should be provided to those (mostly men) who performed labour and to their spouses and children. As workers previously had little security, this was a progressive step.

Labourism promoted the view that the more labour people did, the more privileged they should be, and the less they did the less privileged they should be. The ultimate fetishism was Lenin’s dictate, enshrined in the Soviet constitution, that anybody who did not labour should not eat.

The labourist model frayed in the 1980’s, as labour markets became more flexible and increasing numbers of people moved from job to job and in and out of employment.

Labour and social democratic parties everywhere became ‘reactionary’ — reacting to events rather than forging the future — and regressive, allowing or even fostering inequality.

Around 1980 saw the beginnings of a Global Transformation — the construction of a global market system. As with the Great Transformation, the initial phase may be called ‘dis-embedded’ because the emerging economic system rendered old forms of regulation, social protection and redistribution obsolete or ineffectual.

Politically, every transformation has begun with a repudiation of the certainties of the previous age. This time the attack was on labour-based security, previously the objective of governments or both left and right. Now it was seen as an impediment to growth. Once again, policy changes were dominated by financial capital. Intellectual justification came from the so-called ‘Chicago school’ of law and economics at the University of Chicago, whose leading lights went on to receive Nobel Prizes. Their agenda, honed in the Mont Pelerin Society set up by Friedrich Hayek and thirty-eight like-minded intellectuals in 1947, evolved into what is now called neo-liberalism.

This meant the liberalization of markets, the commodification and privatization of everything that could be commodified and privatized and the systematic dismantling of all institutions of social solidarity that protected people from ‘market forces.’ Regulations were justifiable only if they promised economic growth; if not, they had to go.

As a consequence of these developments, ‘in-work poverty’ has rocketed. In some OECD[1] countries, including Britain, the USA, Spain and Poland, a majority of those in poverty live in households where at least one person has a job. The mantra that ‘work is the best route out of poverty’ is simply false.

I.e., according to Prof Standing, historical and contemporary adherence to the Fabian and Mt. Pelerin ideals has skewed and will continue to skew the notion of working for a living in ways that are unsustainable in current economic reality.

Ironically, Lenin’s dictum that “If any man does not work, neither let him eat” was first articulated two thousand years ago by none other than St. Paul. 2 Thessalonians 3:10. Thus the idea of “working for a living” has long persisted as a cornerstone belief in communist, socialist, and capitalist economic theory, giving it nearly universal sacred status. To question this ideal is truly to trample on hallowed ground.

More next time.

[1] The Organization for Economic Cooperation and Development has 34 mainly industrialized countries as members.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Colorado Court of Appeals: Clerk Should Have Omitted Mental Health Respondent’s Name from Filing System

The Colorado Court of Appeals issued its opinion in People in Interest of T.T. on Thursday, October 19, 2017.

Index of Cases—Involuntary Mental Health Treatment—C.R.S. § 27-65-107(7).

T.T. accepted voluntary mental health treatment, but the physician did not believe T.T. would remain in a voluntary program and filed a certification for short-term treatment pursuant to C.R.S. § 27-65-107. The district court issued a notice of certification for short-term treatment. Six days later the physician filed a notice of termination of involuntary treatment.

Two years later T.T. learned that his name still appeared on the court’s index of cases. The clerk refused T.T.’s request to remove his name. T.T. filed a pro se motion requesting that his name be omitted from the court’s index in accordance with C.R.S. § 27-65-107(7). The district court denied the motion without making any factual findings or legal conclusions.

A division of the court of appeals issued an order remanding the case for the district court to hold a hearing and make findings of fact and conclusions of law. The district court granted in part T.T.’s motion to omit his name from the index by directing the Arapahoe County Clerk to omit his name from “any list generated or produced, even for the purpose of storage.” The court also denied in part, stating that T.T’s name will “remain in the [Eclipse] database for the purposes of the Clerk of Court’s maintenance of records and to comply with Section 27-65-107(7).”

On appeal, T.T. argued that the district court erred in denying his motion because based on the plain language of the statute and the stipulated facts, his name should also have been omitted from the Eclipse system when he was released from treatment. The public’s right to access to official records is not absolute. Court records for mental health cases, including indices, are not open to public access. The plain language of C.R.S. § 27-65-107(7) requires the clerk to omit a respondent’s name from the index of cases after the clerk is notified of a respondent’s release from involuntary treatment. Finding the phrase “omit the name of the respondent from the index of cases in such court” to be ambiguous, the court of appeals liberally construed this language in light of the General Assembly’s stated objective to “provide the fullest possible measure of privacy, dignity, and other rights to persons undergoing care and treatment for a mental health disorder.” The court concluded that the index of cases in this instance referred to the Eclipse system.

The order was reversed and the case was remanded for the district court to order T.T’s name be omitted from the Eclipse system and lists generated from that system.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Surety Erroneously Required to Return Part of Bond

The Colorado Court of Appeals issued its opinion in People v. Fallis on Thursday, October 19, 2017.

Bond—Refund—C.R.S. §16-4-110(1)(d).

Defendant was charged with and arrested for allegedly murdering his wife. The district court set a $500,000 bond. Defendant posted bond through Perna by paying a $25,000 premium. Thereafter, defendant cooperated with all court orders and appeared at all hearings. Fourteen months later, just before defendant’s trial was to begin, Perna moved to surrender defendant back into the custody of the court. The court granted the motion. Defendant spent several days in jail while his family secured a second bond and paid another $25,000 premium to a different surety to secure defendant’s release. Defendant was ultimately acquitted. Defendant moved for return of the premium he had paid to Perna, which the court partially granted, ordering Perna to return $11,031.25 to defendant.

On appeal, Perna contended that the district court erred by ordering that he refund a portion of the bond premium to defendant. Under C.R.S. § 16-4-110(1)(d), a court may order return of all or part of the premium defendant paid to prevent unjust enrichment only if the surrender occurred before the defendant’s initial appearance. Here, Perna surrendered defendant to the court 14 months after the court process began, well after defendant’s initial appearance. Accordingly, the court was without the authority to order Perna to refund all or part of defendant’s premium.

The order was vacated.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/25/2017

On Wednesday, October 25, 2017, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Toombs

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.