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Whose Common Good?

There was something about Philip K. Howard’s presentation this past Tuesday night which troubled me. Actually, there were several items which did not sound quite right.

I did some research and attempted to both look and read between the lines of his presentation. The first item that came to my attention was Mr. Howard’s place of employment.

Philip K. Howard • Senior Partner and Vice-Chair • Covington & Burling LLP

” For many clients, Mr. Howard acts as coordinator of lawyers in different practice areas, particularly in corporate and litigation matters that have a significant regulatory or public relations component. ” – Philip Howard bio page at Covington and Burling LLP

Mr. Howard is both founding partner (1999) and vice-chairman of the international law firm of Covington & Burling LLP.

Covington and Burling is not a typical law firm.  In 1919 it represented the Kingdom of Norway against the United States, employs over 800 lawyers, offices including one in Beijing, Brussels, London, Seoul, and five in the United States.  In January of 2011, Covington & Burling LLP became affiliated with the Institution Quraysh for Law & Policy which has offices in Doha, Jeddah, London, and Riyadh.

Partners at Covington and Burling are said to earn $665,000/year.   As a senior partner and vice-chairman, Mr. Howard’s compensation package may be substantively greater than that of other partners.

Money has its own momentum.  The momentum of directed wealth possesses the power to change laws, policies, and history.  Vast sums of money focused on an issue transform momentum into pure energy and cause water to run uphill, blue skies to become pink, and to subvert the will of the people to that of  corporations.

Aside from subverting the intent and will of the people and of law, wealth is able to recruit loyalty, and purchase the services of all who sell themselves.

If you let every case come down to the vote of the jury you never know where you stand.” – Philip K. Howard

Given the right to a jury trial is part of the United States Constitution exactly whose “Common Good” would be represented by the changes Philip K. Howard proposes?   The manufacturer of an automobile whose gas tank was known to explode on impact or the human being (or their estate) affected by corporate negligence?

Who will lose when multi-billion dollar corporations are allowed to corrupt our government and have their way?

Covington and Burling LLP an international corporate law firm successfully serving the interests of multinational corporations above those of citizens and governments

Covington and Burling LLP an international corporate law firm successfully serving the interests of multinational corporations and royalty since 1919.

16 comments to Whose Common Good?

  • Omer Shapira

    If you want to get an even better mirror of what happens with the absence of legal checks and balances, Israel is a perfect example.

    The right wing governments of the late 90s and the majority of the 00s opened the floodgates for privatization of almost every public sector. Healthcare, for example (“Medicare is broken and inefficient” -P.K Howard) is first capped (if you’re interested, read this chilling account of a government meeting discussing capping healthcare expenses as a mean of “regulating a supply that generates demand”- google translate, sorry), then drugs are removed from the healthcare schedule (that concept doesn’t exist in northern Europe – all medicine is covered there), then hospitals are allowed to host private clinics in off-hours activities. You know what happens next.

    And it’s not just healthcare. Lack of relevant legislation allowed Benjamin Netanyahu, when serving as Finance Secretary to push nation-regulated pensions to the stock market without the involvement of the pension recepient. It allowed Israel to push a fireseale of some of its national industries to a private company held by billionare brothers Sammy and Yuli Ofer, citizens of Monaco, which in turn also faced lax legislation in pollution control (oh, P.K Howard is against that) to have them favor their purchase. Pollution is abundant in their factories, it isn’t heavily fined, and even the taxes that are demanded – the country has a really hard time collecting. You see, there’s not a lot to do with a several-billion tax debt from a single corporation not based in Israel (but mysteriously called “The Israel Corporation”), due to lax legislation and, well – those people who were put there instead of strict law not representing public interest.

    There are many more examples to that, but you get the point. A lawyer trying to tell you that the govermental system is too entangled to do work should be pretty damn flawless in order to sell you an alternative vision. And even if he does, other speculators wait dormant. You can’t see them right now, but just like nature in harsh circumstances, corruption finds a way.

  • Omer Shapira

    If you want to get an even better mirror of what happens with the absence of legal checks and balances, Israel is a perfect example.

    The right wing governments of the late 90s and the majority of the 00s opened the floodgates for privatization of almost every public sector. Healthcare, for example (“Medicare is broken and inefficient” -P.K Howard) is first capped (if you’re interested, read this chilling account of a government meeting discussing capping healthcare expenses as a mean of “regulating a supply that generates demand”- google translate, sorry), then drugs are removed from the healthcare schedule (that concept doesn’t exist in northern Europe – all medicine is covered there), then hospitals are allowed to host private clinics in off-hours activities. You know what happens next.

    And it’s not just healthcare. Lack of relevant legislation allowed Benjamin Netanyahu, when serving as Finance Secretary to push nation-regulated pensions to the stock market without the involvement of the pension recepient. It allowed Israel to push a fireseale of some of its national industries to a private company held by billionare brothers Sammy and Yuli Ofer, citizens of Monaco, which in turn also faced lax legislation in pollution control (oh, P.K Howard is against that) to have them favor their purchase. Pollution is abundant in their factories, it isn’t heavily fined, and even the taxes that are demanded – the country has a really hard time collecting. You see, there’s not a lot to do with a several-billion tax debt from a single corporation not based in Israel (but mysteriously called “The Israel Corporation”), due to lax legislation and, well – those people who were put there instead of strict law not representing public interest.

    There are many more examples to that, but you get the point. A lawyer trying to tell you that the govermental system is too entangled to do work should be pretty damn flawless in order to sell you an alternative vision. And even if he does, other speculators wait dormant. You can’t see them right now, but just like nature in harsh circumstances, corruption finds a way.

  • dm1346

    This is a heartening response, Peter. Thank you for taking the time to lay it out so clearly. I found Howard’s talk wholly disingenuous, and his attitude towards the audience somewhat dismissive. I will respond more fully later today.

  • agq202

    Let’s start off with some fun facts about “Jury Nullification”

    http://www.economist.com/blogs/democracyinamerica/2011/06/jury-nullification
    http://en.wikipedia.org/wiki/Jury_nullification

    The most successful use of Jury Nullification came in the 1850’s against the Fugitive slave law.
    http://en.wikipedia.org/wiki/Jury_nullification#Fugitive_Slave_Law

    Perhaps the role of the jury should be not to decide the guilt of the party, but also for the relevance of the law at hand. It is currently only limited to criminal cases. But perhaps if it were extended non criminal cases we’d be better off. “Well what do you think? The law is dumb. Everyone go home”. That sounds fantastic, bet perhaps a waste of everyone’s time. But maybe that’s what we need, to start waisting each other’s time, so we start to realize how many frivolous laws there are out there. “Why am I here? The cheese was how warm? Fuck it, go home, this is ludicrous. I eat warm cheese all the time.” So maybe the revolution starts with wasting each other’s time until we get so fed up with being called into jury duty every two weeks because of a noise complaint that we start to set each other free. I could imagine a scenario where this would completely backfire, and we’d end up just waisting each other’s time, never reaching the tipping point to stop the whole practice once and for all. So the scenario goes like this. 1) Everyone must go to trial for every type of crime. 2) This becomes an enormous waste of resources and energy. 3) Either we get rid of the jury, or we get rid of the laws. I’m guessing the jury thing wouldn’t work out, but let’s just say that we start getting rid of dumb laws on a basis of Jury Nullification. The laws that are most nullified by the jury get tossed. The ones that seem relevant to the public stay. Viola. Solved. But there’s a caveat. The knowledge of the jury of the law and facts of the case. Take the McDonalds case of the spilled coffee. Most of know the case, but most of us don’t know that the coffee was knowingly being served at temperatures that cause 2nd degree burns. I don’t serve my guests boiling hot coffee, do you? No. Because it’s dangerous. Because they knowingly served this dangerous beverage, Liebeck spent 8 days in the hospital, lost 20% of her weight, had a skin graft and 2 years of medical treatment afterward… all because McDonalds was getting claims that commuters were complaining that their coffee was cold by the time they got it to work, so this particular chain was serving it extra hot… http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants

    So really, I have no idea where I stand on this. Should McDonalds keep it’s restaurants (if you can call the restaurants) from knowingly serving dangerous beverages? Yes. I think they should have to do that. I think it benefits everyone. But this is an internal regulation, not a law. “A twelve-person jury reached its verdict on August 18, 1994.[16] Applying the principles of comparative negligence, the jury found that McDonald’s was 80% responsible for the incident and Liebeck was 20% at fault.” That sounds fair to me… and guess what, a jury decided it. As for Mr. Howard, perhaps a jury is really your best friend.

    On the downside, Jury Nullification is not so popular. “as officers of the court, attorneys have sworn an oath to uphold the law, and are ethically prohibited from directly advocating for jury nullification.” So what do you do as a defendant who has broken a law that is outdated? I don’t know. Perhaps represent yourself, talk to the jury like the creator of your own destiny, aware of your actions, and at odds against a system created by the dead to keep you from living. Perhaps it’s a bit grandiose, but we can dream can’t we?

  • Peter, this explains a lot about what concerned me about his presentation.

    There was little discussion of the manipulation of (very) prescriptive laws and regulations by mutli-national organizations and their lawyers (to avoid taxes, environmental regulation, etc). Given that this manipulation is practically an accepted practice, we’re not prepared to move to a guidelines and ‘best practices’ based law system.

    Sure, if everyone always did the ‘right’ thing and if judges were empowered to make the ‘right’ decisions we could simply transfer every specific regulation into guidelines. Unfortunately, the ‘right’ thing isn’t black and white, especially when an organization has no particular allegiance to the country in which it conducts business. We would need to reengineer the way corporations interact with the legal system at this point.

    It’s disappointing that he didn’t’ discuss the role of litigation from firms like Covington and Burling. I agree the current government behavior isn’t sustainable, but when put in context to his past, his concepts seem to have the potential to serve organizations who try to operate above the law (‘we didn’t know we couldn’t do that, it didn’t say so in the law’), not the people of a particular nation.

  • Karl Ward

    Be careful when you use the genetic fallacy (dismissing an argument because you dislike the person making it). Where Mr. Howard works and how much he makes is irrelevant to his argument–on its own merits, his argument is neither good nor well-delivered.

    First and foremost, his argument fails because it presents a bunch of absurd laws and then draws the conclusion that all current laws share this absurdity and tend to become absurd in this way. He also neglects to show any examples of the absurd choices that are made by elected leaders–there are many, many of these. For example, abortion is legal in the US but the leaders of the state of Mississippi have chosen to prevent abortion clinics from existing in their state, and they have almost succeeded in fully disallowing abortion. Or let’s talk about how local leaders throughout the American South chose to deny the right to vote for African Americans, for almost a century after they were given the right to vote by the 15th amendment to the Constitution. Or looking at it from the conservative side, what about how the city of New York has effectively banned its people from owning or carrying a gun, despite what the Bill of Rights says? This is the other half of the picture, which he conveniently left out.

    Second, he uses conservative arguments (States’ rights, basically) and language (entitlement programs) to make an argument for supposedly liberal aims. That is no way to win-over any liberal, and it won’t work on conservatives either. In other words, he used an exceptionally poor way to deliver his argument. When he started moaning about entitlement programs he probably lost 40% of the people in the room.

    That being said, I very much agree with him that we need a radical change in government. But I’m disappointed that Mr. Howard:

    1. dodged every question about the role of capitalism and privatization in the shoddy state of our government
    2. considers campaign finance reform a less significant part of the problem than it is
    3. doesn’t perceive or acknowledge the potentially transformative nature of Occupy and other similar grassroots movements
    4. avoided discussion of how his simplification argument would address any of the truly divisive and poisonous topics in this country (abortion, voting rights, gerrymandering, racism, economic inequality) that have resulted in the need for prescriptive laws

  • HannahMishin

    I like concepts of common sense. I like taking BS out of laws and society. However, all of the laws he mentioned (from Historical Buildings Protections to not closing state employee organizations without a years notice), though, in those circumstances, the law may not have been “working”, were generated with purpose. I don’t know the particulars, but I do know that state run organizations may require more protections, as they are at whim of the political climate and we, as a nation, have a vested interest in keeping state employees (if they were hired/fired with the changing political climate, the stability might be prohibitive to most) . Who knows how many times a law like that protected Planned Parenthood or (what is a conservative group that us prone to similar threats?- insert it here).
    I do not know the particulars of the creek/flood/tree example, but perhaps the law that prevented people from pulling the tree out of the river- protected that river from a manufacturing threat years back that would have contaminated the water. Perhaps the law protects it from a still real threat of pollution? Yes, on its face it sounds silly that the people affected by the log damming the river and causing their properties to flood were prevented from simply extracting the tree. At least the water flowing into their homes was not filled with X-Nasty-Horrible-Pollutant.
    Though I appreciate, on the surface, an Occam’s Razor approach to life, we are a multifaceted nation with various interests and needs. Each law is in service to one or more of those interests and needs. Yes, there are examples of bill-padding, where law-makers tack on completely self-serving caveats and yes, sometimes laws are really ridiculous, but they exist, for the most part, for purpose.
    I am certain that were the laws generated under his proposed “good faith” and “common sense” rule of thumb that the majority would supersede any minority interest. I bothered me that he did not even entertain these notions in his examples.

  • Everyone likes the concepts of simplicity, common sense, black and white, right and wrong.

    Like you said, society is much more complicated than that.

    A big issue is that recently the United States courts decided to allow corporations to donate money in the same manner as a normal (carbon-based, living and breathing ) citizen.

    Large sums of money put into local, regional, and federal elections, can sway reality to serve corporate interests over that of a majority of human beings. The recent failure of a California measure which would have required the labeling of Genetically Modified food products is a good example.

    This link shows what happens when 46 million dollars is spent to obfuscate the truth – and who/what did the spending.

    It might be argued that some lobbyists (e.g. those who work for the tobacco industry) make things even more complicated by obfuscating the truth.

    According to a public database Covington and Burling has been receiving close to 10 million dollars a year for the past six years for their work as lobbyists.

    Yes, Mr. Howard’s tree flooding the stream was an odd issue.

    Not being able to run a live power line across a parking lot without adequate public safety present, sounds like part of the building and electrical code which makes New York such a safe place.

    Processing, Java, coding the Arduino, circuits, relationships, the weather: life in general is complicated!
    Especially with 7 billion people on a planet!

  • Erin Finnegan

    I thoroughly enjoyed PKH’s talk last Tuesday, although I get the creeping feeling I’m in the minority here.

    Peter, PKH admitted he was a lawyer during his talk. It is ironic that he’s written a book called Life Without Lawyers, but who would know problems with the law better than a lawyer?

    The way you say that PKH may have earned $665,000/year (in the past, as he no longer practices) sounds accusatory and suspicious. Is there an income threshold above which one should not be trusted? I mean, OK, I guess that makes him part of the 1%, but does that mean we should disregard anything he suggests? Are the 1% not capable of contributing to conversation? Or telling the truth?

    >The momentum of directed wealth possesses the power to change laws, policies, and history.

    If anything, as a member of the 1%, PKH has more access to world leaders and CEOs, and I don’t know, dinner parties with Rhodes scholars than I probably ever will. (That is to say, unless I someday strike it rich and suddenly ITP classmates disregard me as automatically suspicious.)

    I’ve been so cynical about politics since high school that I usually don’t bother to participate in political discussions, in real life or online. I didn’t think real change was possible, and so much political debate is so bloodthirsty that I simply disengage. I found PKH very inspiring, insomuch as he’s someone on the inside, and on no one side in particular, who is advocating real change.

  • Hi Erin,

    Thanks for your feedback. It’s ok to be the minority: at least at ITP! (The way that I see it our entire program is an amalgam of minorities.)

    Mr. Howard’s salary was in bold as it contained a hyperlink to a article referencing his corporate agenda. Here is the link again. Incidentally, for someone who is purportedly so controversial, there is very little literature on-line which opposes him or his viewpoints.

    If Mr. Howard was a documentary filmmaker just scraping by, and told us that we were never going to become rich making films, but that they were important to make, we would have considered this when weighing his presentation.

    The introduction which presented him was read from this page:
    http://www.commongood.org/pages/philip-k.-howard

    We were not read his other bio:
    http://www.cov.com/biographies/detail.aspx?attorney=11415&morepubs=true

    In addition to the current areas of practice described on the bio page above, a conversation with the operator at Covington & Burling confirmed that Mr. Howard was a senior partner. As far as I can tell, he is still a practicing attorney at Covington which employs 800 attorneys in four countries.

    Had we been presented with a more complete picture of the professional who presented to us that evening, I might not have reacted as strongly. But that wasn’t the case.

    In the past eleven years I have seen and heard attorneys of Mr. Howard’s caliber representing electric utility companies, a mining and construction company, and a landfill project.

    They always win.

    They win over whether or not to bulldoze a road right through Native American Sacred Sites, through state parks and private lands, destroy the headwaters of the last wild river in Southern California, or to turn sacred sites into a landfill.

    The Environmental Protection Agency has been getting a lot of negative attention from people who insist on freeing up this nation’s natural resources in a quest for energy independence. EPA rules are in the way of a lot of drilling and work which the petroleum industry requires.

    From what I can tell, Mr. Howard’s campaign is part of a larger corporate agenda which would weaken laws and policies which protect all who live in the United States.

    Mr. Howard and his followers have a lot of traction out there and they are gaining momentum.

    I do not have all – or any answers.

    I do know that I would prefer not to not sit back while the truth is misrepresented and watch old paradigms for energy production (and distribution) destroy irreplaceable natural resources.

    Peter

  • Hi Karl,

    Thank you for your criticism; they are points well made and noted.

    Peter

  • Erin Finnegan

    Peter, I know your link was bolded by default (especially after I posted a link) and I read all your sources before responding, just in case.

    I am more interested in knowing your source when you say “Mr. Howard and his followers have a lot of traction out there and they are gaining momentum.” He sounded incredibly unpopular when asked about his matrix for calculating his own success. What have you read that indicates Mr. Howard is gaining traction somewhere?

    “…As far as I can tell, he is still a practicing attorney at Covington…” during his talk at ITP, Mr. Howard says he rarely practices corporate law anymore.

    I absolutely believe what you have to say about corporate lawyers in general, and their lack of regard for the environment. However, I don’t believe all corporations are evil by default. A lot of the high-powered lawyers I’ve met also happen to do a lot of pro bono work on things like the Bronx Defenders project.

    I suppose, in part, I liked the presentation because historically I’ve always liked to listen to people with very different political opinions, whether or not I agree with them. I wide up having friends with bizarre extremists opinions who don’t get along with my other friends who have much more mainstream liberal views. I’m always interesting in hearing the third party opinion, even if I don’t agree in the least.

    “If Mr. Howard was a documentary filmmaker just scraping by, and told us that we were never going to become rich making films, but that they were important to make, we would have considered this when weighing his presentation.”
    So making no money would make his points more valid and you’d be more open to his ideas, instead of dismissive of people like that or lawyers of his ilk? That’s a logical fallacy. I’d like to think good ideas can come from anywhere, be it rich corporate lawyers or starving documentarians.

    Don’t get me wrong, I also believe in questioning everything and following the money.

    By the way, I looked at The Sky is Pink when you linked to it the first time (thanks), because I don’t care about how much money you have in the bank, I’m still willing to consider your perspective.

  • “…As far as I can tell, he is still a practicing attorney at Covington…” during his talk at ITP, Mr. Howard says he rarely practices corporate law anymore.

    He may have in fact said this to our class. A call to the firm confirmed his bio at Covington which indicates that he is an active partner in the firm.

    “If Mr. Howard was a documentary filmmaker just scraping by, and told us that we were never going to become rich making films, but that they were important to make, we would have considered this when weighing his presentation.”
    So making no money would make his points more valid and you’d be more open to his ideas, instead of dismissive of people like that or lawyers of his ilk? That’s a logical fallacy. I’d like to think good ideas can come from anywhere, be it rich corporate lawyers or starving documentarians.

    Confusing analogy on my part and I apologize. Let me try this again.

    The documentary panelists were clear about their belief and commitment to their chosen profession.
    I had little difficulty believing what they had to say.

    We then had a corporate attorney presenting an agenda promoting fewer strictures on business and for a “Life Without Lawyers.” I was not convinced by what he had to say.

    I am more interested in knowing your source when you say “Mr. Howard and his followers have a lot of traction out there and they are gaining momentum.” He sounded incredibly unpopular when asked about his matrix for calculating his own success. What have you read that indicates Mr. Howard is gaining traction somewhere?

    Subjective assessment based upon Google returns when looking for information beyond his classroom introduction. Lots of links to his appearances with presidents, books, interviews and columns at the Atlantic, Wall Street Journal, NPR, Ted Talks, The Daily Show, network television, and more. I am uncertain what rubric Mr. Howard is using to call himself “unpopular.” I found very few posts critical of Mr. Howard.

    I’m probably wrong about my hunch that Mr. Howard is a spokesperson for select business interests.

    Peter

  • Erin Finnegan

    I don’t think Mr. Howard is pro-fracking, per say. We didn’t ask him about fracking specifically, after all. I didn’t have the same knee-jerk reaction to simplifying regulations as you did, I guess. I don’t feel quite so threatened by the idea of reducing 300 page environmental reviews down to something that’s more of a compromise towards common goals.

    When Mr. Howard described Kentucky as being like The Heart of Darkness I was so shocked that I laughed out loud, (and I was the only one, which was awkward). I’m from the Rust Belt myself, and I understood instantly what he meant about the desperation of the people there, the high unemployment, the decay and general hopelessness. In my hometown, the state prison is the biggest employer, and I think that similar things are true of places in upstate New York and Pennsylvania that have been desperate for money for decades.

    Mr. Howard, as someone from Kentucky, probably understands how poor people are willing to get black lung, “sell their soul to the company store“, and how communities are willing to blow off sides of beautiful mountains for money.

    Personally, I’m anti-fracking. When someone sells out the health of their neighbors, their pets, and their children for a few thousand dollars, I’m not so quick to blame the politicians and corporate leaders that allowed it to happen. If people in “frackable” areas had more opportunities to make money in the first place (like we do here in NYC), they wouldn’t be so desperate to sell their souls and poison the drinking water.

  • Todd Bryant

    I find that what’s also very interesting is that Mr P K Howard is wanting someone or something to change the way that the government operates in a more streamlined manner, yet he ignores his own profession and that of many of the leaders in the political field. Many presidents and other elected officials come from a law/legal background. I find this is where they learn their common “speak” which facilitates being able to hide agendas in plain site using their code words and pervert simple and effective changes into convoluted meandering legal jargon that removes their readability away from the democratic public. Essentially this club of people start out at law school and learn to circumnavigate clarity and add unneeded layers to effective legislation from the first year of law school and this way of thinking continues on to the regional and national levels when they run for public office.

    My suggestion is – Shouldn’t we be looking at the american legal system first. We can make changes there in an academic setting. Once the legal system is stripped of the the bureaucracy that Mr Howard finds so appalling, wouldn’t that streamlined mindset follow through to the government as well. How can the government be ridded of a systemic problem when it’s being reinforced by a legal system that’s suffering from the same symptoms.

    It’s now been a few weeks since he spoke and I am asking my fellow students – Did he mention the american legal system at all. It seems that he and his non-profit and sitting around with their hands in their pockets waiting for a paradigm shift to happen instead of looking at core issues and problem solves ways to root them out. Instead it seems that he and people in his position and politicians instead use their system of being able to argue and persuade to build more non-effective non-profits and (more alarmingly) more lobbyist groups and super PACs. Essentially he is the result of the same corrupt system that he wishes to ameliorate.

    I realize this is a gross oversimplification and I’m welcome to hear all other opinions, but I still thought it merits touching upon if it wasn’t already mentioned during the lecture and the question and answer session afterwards.

    In the end I feel that real change in our governmental system will only come about from a one-term president – someone who runs on a platform of ridding the government of lobbyists, and campaign reform, and returning the control of the country over to the popular vote. In essence, to continue my previous metaphor, the campaign version of a cataclysmic natural disaster that can shake up and unroot all of the deeply layered stata of of bureaucratic sludge.

    I guess this is the same as his idea of moving the capital to Wyoming (or wherever he said.

    Yeah, that would work.

  • Nancy

    Well, I am glad I invited him because of the spirited discussion/outrage that’s gone on since. I tend to agree with a lot of what you all say, but especially Erin. I don;t hold his profession or his salary against him. It’s best not to get into ad hominem territory. It is unusual to hear someone in his position putting forth some of his proposals. He’s an evangelist and he will point to laws and absurdities that make his point. But his BIG idea that we need to figure out a way to make the system work.. that we’ve gotten away from common sense. that people are trying more to comply with rules than do the right thing has the ring of truth for me.