The Law and other Anomalies -

This morning’s mail has upset a part of my world view.

Universities long have been accused of being bastions of populist, liberal thought; Northeastern elite universities (along with anomalous Berkeley, the Harvard of the West) have borne the brunt of this accusation. 

Such was not my experience at Harvard Law School; during my attendance (decades ago) it was the bastion of pro-corporate thinking.  Corporations should be minimally regulated so as to return greatest profit to their sole relevant constituency: the shareholders.

My 7:44 AM email today from The Harvard Law School Shareholder Rights Project reports that that group, “a clinical program through which Harvard Law School faculty, staff and students assist public pension funds and charitable organizations to improve corporate governance at publicly traded companies in which they are shareowners,” has been working all year to force public companies to de-stagger their boards.

They have submitted proposals to over 80 of the S&P 500, and 42 (one third of the S&P 500 with staggered boards) have agreed to move to annual elections of the entire board.  The list includes Alcoa, BlackRock, Cigna, Lilly, McDonald’s and PPG.

Several aspects are fascinating.  Leave it to Harvard to apply some of its student outrage in the support of retirement funds who have invested in public companies; not exactly the poor huddled masses being dragged upwards by the power of the law.  Leave it to Harvard to take the training ground of the conservative corporate advisors and turn it towards the “democratization” of corporate governance.  Leave it to Harvard to undertake the remaking of concepts of corporate governance in a way that empowers shareholders whose interests may be short-term and inconsistent with long-term measured corporate growth.

It is not clear where they will turn next, but this kind of success is not going to do anything except further inspire Professor Bebchuck and his hearty band.  The shopping list of corporate democracy demands includes broad proxy access, greater ratchet on comp,  independent board chairs, and independent board majorities.

While no doubt entrenched boards beholden to management sometimes in the past led to failure to respond to favorable takeover bids and to over-compensation of top executives, the causes for these lapses are many and complex and cannot be made to disappear by granting greater power to shareholders.  The small shareholder is and will remain without power.  The larger shareholders have, and are legally entitled to, their own agendas; those agendas may be short term and short sighted and not consistent with healthy corporate growth or innovation.

Two lessons emerge: first, this initiative will ultimate fuel the M&A market; second, directors had better start listening more closely to Professor Bebchuck, whose message and flat presentation have not exactly made him the darling of the corporate speakers’ circuit around Boston.  He is single-handedly remaking corporate governance in America and he is doing it under many radar screens that ought to be picking up the incoming blips.

Reagan made famous the phrase "there you go again" and I am guilty.  One day after I promised myself not to post about the now-closed Occupy Boston site, I am compelled to do it again.

From my office directly above the site, a modest irregular parcel across the street from the austere and graceful Federal Reserve Bank tower, I look down expecting to see the trash clean-up, and perhaps something of a mini-construction project.  Instead, I see -- green.

Here in Boston, where the heart of downtown was torn up for three years in front of the historic old State House (where zillions of tourists each year congregate); here in Boston, where the interminable Big Dig scarred half the city for a decade; here in Boston, where police details are required to direct traffic away from the supervisors who supervise the sub-supervisors who tell the foremen to stand close to the worker on any public works job to make sure he doesn't move too fast, we have virtually erased the Occupy site in less than one work day.

Loads of bright green sod, fully grown grass squares, have been carted in and cover a good deal of the carefully raked rich brown loam.  Hoards of orange-clad workers jump to the task of covering the offending brown.  Well over half the site has been cleansed and reclad; even now a new truck is disgorging another load of green forgetfulness.

It is almost as if --  dare I say it -- someone very high up in the city government decided it was an absolute highest priority to erase every vestige of Occupy from the face of the polity.  Very important to renew this vital plot in the heart of the city (although for over two months the Occupy tents dwelt there without interference with commerce, the offices, the commuters crossing the site to South Station).

I am glad the city can replant an acre in a day.  Why it takes ten months to restore working escalators to handi-capped inaccessable subway stations is I guess a different matter.

And while I (may) have your attention, a parting shot at a column in today's Boston Herald that to my mind focused the anomaly of Occupy.  The columnist predicted that without physical presence the Occupy movement would become a memory; he may be right.  But he continued that Occupy proved we had raised a generation of spoiled brats; apparently a discarded placard declared that student loans were the equivalent of slavery.

So let me get this straight.  Business can pay lobbyists to get tax breaks so they need not pay for the costs of government.  Businesses can set up multi-national structures to avoid paying US taxes.  Wealthy folks tax-plan within the law to reduce taxes and preserve personal wealth.  But if a student asserts that education should be free, a proposition by the way that is a given in many places and represents a rational proposal for how to run a society in an education-dependent world, he or she is a spoiled brat. 

Seems to me that whoever controls the nomenclature defines the playing field.  The people who were at Occupy and argued for free tuition or other social welfare benefits are of equal moral footing with the business people, the banks, the corporations who express also the very human desire that, all things being equal, they would rather have benefits at lowest possible net personal cost.

Are the business people spoiled brats by reason of their parents? Of course not.  It is legitimate, if within the law, to run a business as a business, to lobby and to plan.  But it does not follow that the same type of efforts by non-organized, non-business-related constituencies are unworthy of expressing and attempting to achieve THEIR own legal goals; if they are selfish goals, they are no less worthy than the legitimately selfish goals of the business community.

The only difference here is that business folk don't need to carry a sign to accomplish their lobbying.  They have people to carry their signs for them. 

I would write about corporate  law if it were as interesting as what is happening under my window in Dewey Square. 

Yesterday the Occupy people were to move a winterized tent into the compound.  The Boston police announced they would resist this effort as no "construction material" will be allowed on site.  At noon there was a crowd 25 floors below me, and a couple of police cars (normally well out of view) but no sirens or signs of a scuffle.  While you could not tell much from up here, the news reports this morning said that the police politely turned away a fireproof tent that was procured in response to the city's stated fear that the encampment was a fire hazard.

All this plays out against the backdrop of an already argued legal case, taken under advisement by a judge, wherein the Occupy people sought to enjoin their removal by the city.  The city has assured Occupy that while the city lacks present intent to clean our the compound (as has been done in many other places), they must reserve the right to react to prevent breach of public order or lack of sanitation or creation of public nuisance.  Boston's blue collar mayor has been surprisingly supportive of free speech rights in this case, perhaps reflecting the demographics of his electorate (Monday's Globe reported that poorer people and Obama supporters identify with the Occupy folks, not a surprising conclusion).

But is it in fact true that there is danger in those tents?  Or are they just the flimsly housing of the disadvantaged who are speaking their minds under Constitutional protection? 

According to the head of one social service agency (with whom I spoke yesterday) whose mission is to protect runaway teens and young people, there is in fact danger lurking in the tents.  He describes a community run by student anarchists, and occupied by runaways and street people; the philosophical founders of the Boston Occupy are "back at Harvard and Tufts writing their term papers."  He describes a community in which drugs of all sorts are freely available, where security is provided by the homeless, where runaway kids show up for the glamor and have 48 hours to be extracted or else get sucked into the sexual underground.

Every view of everything is determined by where you stand.  It is not surprising, although it is also true, that many business people I speak with find Occupy to be without focus or program; I think that that does not matter, Occupy is (or should be)  witness to a problem, they are not likely to have the answers no one else seems to have.  It is equally not surprising that social service professionals have such a frightening view of Occupy Boston -- but to what extent is that view accurate, and to what extent is it just the projection of implicit judgment bent by the prism of where one is standing?

I don't know, but I don't like people who are not bankers or lawyers criticising Occupy.  It erodes the warm feeling I have held that democracy is being acted out from the grass roots upwards.  The idea that people in the tents are speaking truth to power is not strengthened by the picture of runaway teens getting sucked up into bad stuff.  I don't like my idealized rush to embrace protest, where there is clearly so much to protest and so few ways to effect change, being sidetracked by tawdry revelations, particularly when they seem like they may be accurate.  It would be a shame if Occupy were to fall of its own weight and its failure to live up to my self-constructed image of what it might have been.

Today I write about the breakdown of the American social compact. 

The Congress cannot engage in dialog on important issues.  We do not speak to each other, we do not listen.  Republicans stonewall.  The President campaigns rather than inspires a dialog.

A candidate for school committee in Newton campaigns on the platform of building a bridge between the schools and the 80% without children in the schools.  This in a city noted for its educational system, and where once all taxpayers understood investment in the future of the children.

Commentators on the Occupy movement criticize the participants because they do not have a program, as if having a solution to incredibly complex problems is easy to articulate in a 140 character sound bite digestible by our slogan-ized polity.  Is not the message clear, that many of our fellow citizens feel grossly disenfranchised and mistreated in our society in a variety of ways?  Even suburban populations are forming support groups for the Boston "Occupy" movement.

Is it not clear that movements such as this always attract marginal issues, but that we must strip out the clutter and understand the fundamentals, rather than marginalizing the fundamental content?

The Boston Globe reports a heightened concentration of US wealth over the last three decades, and the Globe may be the last publication on earth to discover this reality.  This factual driver of "Occupy" seems to be missed by some of "the one percent," and the "movement" seems unable to communicate the core issue to many who clearly are not hearing it.

What do non-Americans think of our political state?   The other day in our offices, which overlook Dewey Square and Boston's tent city, a dozen Russian entrepreneurs attended a business conference to discuss their companies.  One or two commented on the protesters, but most were politely silent. The business of business is business, not politics. 

This convenient dichotomy is perhaps learned in countries where growing economic opportunity must co-exist without political freedom;  but is this a dichotomy (business as divorced from public debate of politics) that Americans living under our Constitution should embrace?  Aside from a mixture of embarrassment and distaste, what should the 1%-ers, looking down on the tents, be thinking?  How many go down to the streets and talk with the people?  Not many, to my experience. 

Why is it repellent when people exercise the rights they have under our Constitution?  Seems as if many folks in the office towers love the geographic or non-specific idea of America, but not the actual exercise of American rights which are part of our social compact: free speech, free assembly, economic opportunity in fact, and open communication leading to jointly reached and mediated solutions.

For those people who think that John Locke is a bolt for your toilet door, I suggest an elevator down to the street and a modest exercise in the way in which American society ought to operate: talk with, not over your fellow citizens. THAT is the social compact we once thought we had, and the one we need to redeem.

Yesterday, one of my partners forwarded to me an on-line article complaining that the Occupy people smell bad.  This is what purports to pass for political analysis today.  I'll bet George Washington's armpits stank at Valley Forge; let's give the country back to the British, seemingly smelly people don't deserve our attention.  Although I would bet my bankbook that the author of the smell test never visited the tents and, well, sniffed around.

And, returning to the young Russian entrepreneurs for a moment, as one of them said: "The people downstairs just want to be treated as people."  If a twenty-something Russian engineer with marginal English and no tradition of free politics can understand what "Occupy" is all about, why do so many Americans have a problem doing so?  Maybe we have stopped listening....

I am not into body piercing and tattoos.  In fact, when I sat down to write this blog I originally misspelled “tattoo,” that is how alien the whole thing is.

As for the “fat” part, as we say in the law racket, “Further deponent sayeth not.”

This weekend I drove through the moist warmth of a New England August and visited Canobie Lake Park.  For those who do not know it, the Park is an old-fashioned amusement facility that seems to have found a nostalgic niche in competition with more flamboyant and up-to-date amusement venues.  There are the kinds of rides that I rode as a  kid.  There is a water park with short safe slides, nothing – well—splashy.  There are entertainment venues with impersonators of Tim McGraw, Michael Jackson, Janet Jackson and Elvis.  The demise of at least half of those people seems to pass unnoticed.

You can even bowl Skee-Ball.  And earn tickets for high scores, redeemable for useless trinkets.  Just the way I grew up….

But there is a difference here.  And it has to do with, yes, fat, body piercing and tattoos.

I hasten to observe that although the Park draws an incredible diversity of people (the population more reflects the demographics of the region, with people of Asian and African and Latin background, than just about any other venue I can recall except perhaps Boston’s decayed Downtown Crossing), the phenomenon seems to ignore ethnicity, age, skin color, and everything else save the one common element: if you are fat, have lots of body piercing and/or are replete with tattoos, you are statistically much more likely to be at Canobie Lake Park than anywhere else – Boston City Jail only excepted.

And this is not a population gathered to make a statement.  You find these people as they are in real time: skin-tight T-shirts further shrunken by a drenching in the water park or some flume ride, shorts so brief as to make leer-ers of us all, tattoos on men’s arms and shoulders and necks and legs, tattoos disappearing into fatty crevices that polite people do not describe when referring to women, iron and brass sticking out of ears and noses and tongues and, yes, in visible outline under shirts from nipples and navels.

Are these people fundamentally slovenly as a group?  Well, frankly, yes they are.  Not dirty, just not suburban middle class neat, scrubbed and coordinated.  In fact, the key word is “uncoordinated.”  Nothing matches anything; the tattoos are blue and red, the do-rags around the head are black and white, the Celtics shirt is of course green, the shorts are striped, and the shoes are likely to be unlaced work boots on men, unlaced sneakers on women.

The kids can get away with it, but you just feel compelled to probe the adult adherents, hopefully in what seems a casual manner.  My efforts:

In line for a head-jerking spinning ride, me: “Nice tattoo.”  [Unspoken: does the tiger have a tail or has it lost it in a fight, the tiger’s butt has disappeared into a roll of fat sticking out of your shirt and falling down your back.]  Reply, “Thanks, man, got it in Iraq.”  [He looks like a jerk and he defended my liberty?  Oops….]

Eating an ice cream and turning to a sixty-ish woman with a nose ring, dripping powdered sugar down her shirt-front from her fried dough, me: “How long have you had the, you know….” Reply, “Last year, I got it in Hampton Beach, my granddaughter and I did it together.  You like?”  [Oh yeah, what do I mumble now?]

Stopping an enormous  woman with flabby arms, bright tattoos of snakes and a bar through her nose and with what seems like forty children under the age of seven in tow: “Excuse me, are all those children yours?”  Reply, “No, I got them in that booth there, if you break a balloon with a dart they give you one.”  [Whoops, a regular Mae West on steroids.]

There is no rhyme, reason or predictor except, here they all are.  In a ten minute “experiment” I find that 15% of all adults I see have tattoos, about 10% of the men have earnings, and fully half are what might be classified as “obese.”  Not chunky.  Not full-bodied.  Not overweight.  Just plain really really fat.

So what can you buy to eat, here at the Park?  I will spare you the litany, you can imagine.  One pushcart has fruit cups; one stand has salads in plastic.  No signage for either.  Advertising for all that is not good abounds (the signs for onion rings, fries, soft-serve ice cream and dough are ubiquitous). 

The kids don’t care; they don’t see it, or it does not register.  They are at that lucky early stage where passing judgment on people with a different personal style is ahead of them (although from what I hear about Middle Schools, not all that far ahead).  For us button-down types in crisp khaki shorts and collared shirts and our backpacks filled with sun screen and deet-laden bug spray, it is an exercise in self-control and unrestrain-able snobbish moments.

On the way home we stop in an ice cream shop in our neighborhood in Newton.  The shirts have polo players or logos from golf clubs.  Even though these people are buying an ice cream, they are trim, their tops tucked neatly into crisp shorts or proper golf skirts.  Not a tattoo in sight.  No body ornaments except for those lovely small seashell gold earnings, and those are all on the women.  As for body fat – these people, even the pudgiest, are in the minor leagues of lard.

Safely at home in the neat suburbs, I have survived our August walk on the wild side.