You need it. You want it. Here it is, at the beautiful Cornell Club in Manhattan.

Social Media in the Workplace – Practical Solutions for Companies Panel Discussion and Networking Breakfast

  Tuesday, October 18, 2011 8:00-10:00a.m.

The Cornell Club, 6 East 44th Street, New York, NY

 

In a time of “Tweeting” about the significant and the mundane, impulsive Facebook posts, and employees divulging company information on LinkedIn, many businesses are trying to figure out how to deal with employee social media use.  Some companies embrace employee social media use for sales, recruitment, and exposure to clients and customers.  Other companies consider social media a drain on employee productivity and a source of potential liability.  The practical, human resources, and legal issues of social media in the workplace, including an international perspective, will be addressed by our panel: 
 

       George Freeman, Deputy General Counsel, The New York Times

       Ellen Dember, Executive Director of Human Resources, KPMG LLP

       Keith Corkan, Solicitor, Laytons (London)

       Joseph Cartafalsa, Attorney, Putney, Twombly, Hall & Hirson LLP

8:00 – 8:30 a.m. Breakfast

8:30 – 10:00 a.m. Presentation

 

Co-Sponsored by the ILR Alumni Association of Cornell University and the law firm of Putney Twombly.

Please register at http://www.ilr.cornell.edu/alumni/events/10182011-NYC-PanelandBreakfast.html

And there will be a special color commentator curmudgeon (Cornell ILR ’79) who, I promise, won’t disappoint.  Who?  Maybe this will give you a hint.



Or maybe I just love this song. Be there.

At Volokh Conspiracy, Eugene has given the bully pulpit to Clark Neily of the Institute for Justice, a libertarian “public interest” law firm.  The IJ has established the  Center for Judicial Engagement.

The courts were meant to be an integral part of keeping legislators and executive branch officials within the proper bounds of their authority.  But as the Institute for Justice has seen too often, judges are either unwilling or feel unable to enforce constitutional limits on the size and scope of government power.

Changing that is the mission of IJ’s Center for Judicial Engagement.  The Constitution was designed to be a bulwark of liberty against overreaching government, but it can only serve that vital function when judges actually enforce it.  Increasingly, however, courts are inclined to disregard constitutional limits on government power under the rubric of judicial minimalism or restraint, when often a more accurate term would be “judicial abdication.”  That must change.  The Center for Judicial Engagement will cut through unhelpful rhetoric about supposed judicial activism and simply ask whether judges are properly engaged in their role of interpreting and applying the Constitution.

Many readers will applaud this goal, reading into it what they believe to be the proper limits on governmental power.  Others will realize the sweetness of the words mask the potential deregulation of a wealth long-appreciated initiatives, leaving it to megacorporations to behave in a socially safe and acceptable fashion because market forces and enlightened self-interests compel it to do so. 

The IJ is engaged in legal action that many hear will vigorously applaud, such as challenges to the evil of civil forfeiture.  But as Neily discusses at VC, there are other issues high on its agenda.

Consider IJ’s ongoing challenge to Florida’s interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers.

Whether licensure of interior designers strikes you as an evil sufficiently worthy of attention, the argument behind the challenge is one that is likely to pique interest.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis cases, and “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).

If occupational freedom were considered a “fundamental” right, then the reviewing court would evaluate the government’s true objectives based on “actual, reliable evidence.” In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government’s actual — and in this case wholly illegitimate — objectives might be.

In a world of legal fictions, where courts strain, to the point of sophistry, to find some explanation that would uphold the constitutionality of legislation despite its “true” purpose, the rational basis test is a killer.  What many consider “rights” that fall a penumbra or two shy of fundamental are regulated, maybe even criminalized, and this gets the courts’ seal of approval because some cockamamie rationale that no one actually believes has anything whatsoever to do with either the purpose or effect, under the rational basis test.  Not only are such fictions allowed, but they are used without the slightest sense of shame to uphold legislative action.

And I would be remiss not to mention that such silly gymnastics find their way into rationales upholding restrictions on fundamental rights as well, but let’s not talk about the  bizarre paragraph in Heller that undermines everything else in Justice Scalia’s decision. If J-dog were alive, he’d ironically admonish me to give it time.

The presumption of constitutionality, predicated on the notion that legislative action reflects the will of the people, and that courts should show restraint in their rejection under constitutional grounds lest they substitute judicial sensibilities, makes challenges difficult.  And they should be difficult.  And to suggest otherwise smacks of a cry for judicial activism, to demand that judges toss laws that are stupid, counterproductive, or, we believe, just plain wrong.  But those aren’t the test.  The legislature is entitled to pass laws that are stupid.  They just can’t enact laws that are unconstitutional.

Yet one can’t help but appreciate the IJ position that the reluctance to question the constitutionality of laws has become so overwhelming, particularly given legislative activism that either regulates or criminalizes everything shy of passing gas in public, as to render judicial review as an historic relic.

The thrust of the post, that rational basis analysis as the test of constitutionality for less-than-fundamental rights, resonates.  Why, one has to ask, do we persist with judicial fictions, that any explanation no matter how false and absurd, is sufficient for a law to pass constitutional muster?  What’s so wrong with real?  What’s so bad about limiting legislative initiatives to their intended purpose?  He’s got a point.

It’s been a while since I’ve played the legal fashinista, but Justice Eduardo Pardo’s sign compels me to don the fedora of excellent taste again.  The sign says

Pull Up Pants

Urkel-like?  Await the flood (New Jersey pants version)? Nope.  The dreaded saggy pants, worn sufficiently low as to bare the colorful boxers worn casually (and thankfully) beneath.  Been there?  Sure, And been there again.  But Justice Padro, whose  career began at the Legal Aid Society, sits in a Manhattan courtroom, and Manhattan sits at the heart of American fashion.

It’s not my taste, saggy pants and exposed under-drawers.  No client of mine has or will ever step into a courtroom dressed in that fashion, regardless of their preference and desire for self-expression.  As part of the service I render as a legal fashionista,

I explain that there’s no benefit to be gained from using the courtroom as the runway, potentially annoying a judge who doesn’t appreciate couture choices, whether she says something or not. If you want to dress like a fool, do it elsewhere.  That also includes  the “gang rape” t-shirts (available on Amazon until it was noted that this was disgusting and outrageous, and removed).  Seriously bad choices for court attire.

Yet, this is a matter of choice and guidance.  It’s downright foolish to demonstrate disrespect to the person who will exercise discretion with your freedom.  Justice Padro, however, has put up a sign, turning choice into mandate.  From my old pal Laura Italiano at the New York Post :

Whenever I write something about the slackoisie, I’m told I’m just a mean, old curmudgeon engaging in gross generalizations to the detriment of wonderful millennials who are stuggling to take their rightful place in society after boomers screwed everything up.

Me and State Farm, apparently.

Yup.  Just a mean, old curmudgeon, cuz ain’t no such thing as slackoisie. 

For the benefit of bar association types and judges, let’s get something straight off the top.  The word “blog” is short for web log.  The word “blawg” is a bastardization of blog meaning a web log that focuses in law. It’s a bit cutesy, but it differentiates blogs about babies and kittens from blogs about the law.

If a writing is self-promotional, it is marketing and not a web log, blog or blawg (or any other variation on the theme).  Stop calling them all blogs. They’re not.  And when the decision is finally handed down in Horace Hunter’s case, it will not be a decision about blogs, but a decision about something he calls “news” on his website, and a “blog” when he argues his entitlement. It’s marketing. It’s no blog.

Via Carolyn Elefant,

As the saying goes, bad facts make bad law. And there’s going to be some very bad law for lawyer blogs indeed if Virginia small firm lawyer Horace Hunter loses his First Amendment challenge to the Virginia Bar’s attempt to require the firm to include certain disclaimers on its blog.

Don’t get me wrong – I’d love to see Hunter pull this one out.

Unfortunately, the law and facts are still on the Virginia Bar’s side. According to the Washington Post, the Virginia Bar alleges that Hunter violated Virginia’s ethics rules by failing to include on his blog a disclaimer stating that the results reported are specific to the unique facts of the case and do not guarantee favorable results in other future cases.

There was no claim of deception that caused the Virginia bar to go after Hunter, but only a routine audit.  By sheer kismet, he’s become the new first amendment hero, fighting the good fight against putting a disclaimer on his marketing that past results do not guarantee similar results in the future. 

But here, I don’t find this disclaimer – or at least some kind of caveat stating that the cases are “representative” matters – entirely unreasonable or unduly burdensome on the First Amendment.  Without any type of disclaimer specifying that a listed case is representative or not a guarantee of results, lawyers can “cherry-pick” the cases that they seek to list on their website giving the impression that the lawyer has only enjoyed a string of victories and is capable of winning any case that comes his way.

Or, lawyers can just lie about their results. Losses miraculously become wins, huge wins, if that’s how a lawyer chooses to present them. The reader wouldn’t have a clue.  And then there’s the problem with disclosure, as lawyers who write about themselves tend to forget that there’s another person’s life involved in their self-promotion.  From the Washington Post;

The charge, filed in March, also says Hunter blogged about information that would be “embarrassing” or “detrimental” to his clients, including using a pseudonym to discuss the case of a juvenile client. Hunter failed to show that he had obtained his clients’ consent to talk about the cases, the charge said. Hunter calls the claims “frivolous” and maintains that the matters discussed on his blog are public, and that he had the permission of the juvenile’s parents to talk about the case.

But it was good for Hunter and his marketing scheme, and Hunter, the person who benefitted from this conduct, didn’t see a problem.  Really, isn’t the person who’s gaining the self-promotional benefit in the best position to assess the harm done others?

It would be one thing if Horace Hunter fought for his free speech rights based upon the nature of his peculiar choice of content.  While neither Carolyn nor I see any real problem with a disclaimer when the content is all about past results (which are hopefully true, or that raises a separate issue of deceptiveness). And I have long had significant issues with any lawyer happy to sacrifice his client’s privilege and privacy in order to promote himself.  Horace Hunter’s approach to the internet has some very real issues, and the bar’s case against him hardly strikes me as overly burdensome.

But, that’s not what Hunter is fighting for.

Trouble is, Hunter has made this case about more than just website disclaimers, but about blogging.  Here, if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  To impose disclaimer requirements on blogs and not any other types of scholarly or informational legal resources diminishes their credibility and in so doing, violates the First Amendment.

That’s right, Horace Hunter is fighting for me, for my blawg, as if there is any similarity between what I do here and what he does.  Thanks, but no thanks.  This has nothing to do with my blawg, or blawging, or blogging.  Hunter is fighting for the right to market himself, and nothing more.  Calling his tripe a blog doesn’t make it so, but the issues has been framed, discussed and argued as one involving the whole of blogging.

Hard as it may be to imagine (kidding here, folks), those not engaged in the blawgosphere have little if any understanding of blawging.  We’re all tossed together as “those lawyers on the internet,” and the distinction between substantive commentary and self-aggrandizement gets lost in the ether. 

And many quasi-or faux-blawgers don’t help matters, as they are busy doing what Hunter is doing, promoting themselves while trying to appear as if their writings are legitimate thought. Without a real feel for the deal, you wouldn’t know that they’re self-promoters like Hunter, just more artful in their presentation.

Whose free speech rights rest in the hands of Hunter? Mine do.  So does Joseph Scura, a New Jersey lawyer who wrote his first blog post entitled “Two Years in Solo Practice.”  This violates every rule of social media marketing, since it’s absolutely critical for a lawyer with only two years under his belt to conceal that fact.  But Scura makes truth his headline.  And more:

People seem to like checklists on the internet, so if I had to distill what I’ve learned (still learning) into a few morsels (that I hope to remember)  they would be:

• Giving a crap goes a long way.  It’s not an outright substitute for experience but it can certainly close   the gap. 


• No matter how smart you are, you need someone to turn to for questions.  Luckily, CDLs are amongst the most generous and collegial in the profession.


•  It’s always about the client first.  Just do good work and your efforts will be rewarded. 


• Don’t expect a “thank you”, but if you get one, be grateful and you can be sure you earned it.


• Be wary of off the rack advice – (paraphrasing) Alan Dershowitz, Letters to a Young Lawyer

Better still, Scura’s post, which strikes me as more of an anthology written for his own benefit than anything a potential client would care about, talks about his path from n00b to second year:

This is by no means a how-to-guide to starting a practice.  This is the way I did it, and I’m not saying it’s the best way, or even a good way…just a way. 

What?  Is he not setting himself up as a legal rainmaker consultant, selling his magic sure-fire methods to the unwary?  Nope, just sound choices he’s giving away for free.  While my blawg will survive a bad decision in Horace Hunter’s case, it would be a terrible shame for Joseph Scura’s wonderful new blawg to suffer for it.

The  New York Times did a feature on Second Circuit Judge Denny Chin that offers one of the most intimate, and painful, visions of how a judge comes to decide the price to be paid for a conviction.  It’s a lengthy article, and remarkably frank in many respects.

Judge Chin served on the Southern District of New York for 16 years before he was elevated to the Circuit.

He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or the equivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: “Rule and roll.” Be decisive. Don’t second-guess yourself.

Few paragraphs about judicial decision-making are as illuminating and fear-inducing than this one.  We would never give children a loaded gun, yet we give people with “little experience in criminal law,” which may well over-state Judge Chin’s experience, the power to put human beings in prison for decades, with the admonishment to “rule and roll.”

This isn’t to say that Judge Chin took the task lightly.

“It is just not a natural or everyday thing to do,” Judge Chin explained, “to pass judgment on people, to send them to prison or not.”

“I mean, there is so much at stake,” he added, “and there are so many different considerations that come into play.”

Fair enough, but what little comfort comes from the seriousness with which he undertakes this task is subject to the interpretation of his words.  What to some reads as empathy for the defendant to others may signify a stoic concern for the victims.  Which it is can only be ascertained from how it’s played out.

One thing to bear in mind is that Judge Chin’s sentencing experience has to be viewed in light of pre-Booker mandatory sentencing guidelines, where draconian a sentencing regime was not merely the norm, but required.  For a judge without experience in criminal law, his on the job “education” came from a grid that mandated imprisonment of extraordinary length, with essentially no break for all the things that reasonable people would think should factor into the equation.

Aside: In the post-Booker, non-mandatory guidelines world, where consideration of 18 USC §3551 is permitted, consider that most sitting federal judges, who came from a world where “criminal law” was never uttered, spent their career imposing sentences mandated by the Sentencing Guidelines, are now authorized to impose a sentence that is no greater than needed. What meets that criterion, however, is informed by their tenure under the Guidelines, as they have no other experience from which to draw.

The articles goes on to offer some examples of sentences imposed by Judge Chin, together with his rationale for his decisions.

Her lawyer, though, was asking the judge to sentence her only to home confinement, because she was raising five children who ranged in age from 5 to 13, and also caring for her 14-year-old sister, as their own mother had been a crack-cocaine addict. He had said that sending Ms. Kidd to prison would almost certainly result in her children being placed in foster care, destroying what was left of the family.

His arguments gave Judge Chin pause.

Empathy?

“The report cards had an impact on me,” Judge Chin recalled in a recent interview. “She was getting them out to school every day, and they were holding their own. I was impressed by this.” Ms. Kidd, who had also apologized for her crime in a letter to the judge, was “a decent mother,” he concluded. Moreover, one of his law clerks had shown him a news report on the terrible conditions in foster homes and facilities for children in New Jersey, where the children would most likely be sent.

Concern for the hugely destructive collateral damage to innocent children?

But the robbery had been violent, with one robber killed in a police shootout. And the judge was seldom persuaded to grant leniency because of family circumstances — it was, after all, the defendants’ crimes, not the sentence, that caused hardships for families.

In the end, he decided that Ms. Kidd had to go to prison, but he imposed only a 30-month sentence. “I cared very much about the future of the children,” Judge Chin recalled, “but I was willing to take the risk that they would be sent to foster care, even with a shorter sentence.” His decision involved weighing conflicting concerns and interests, he said, “something we have to do all the time.”

It would seem that this example, at the front of the article, is offered to show the terrible choices a judge faces in imposing sentence.  If so, it fails to satisfy.  Neither the generic “a crime is a crime,” nor the omnipresent facile argument that the defendant should have thought about her kids before committing the crime (as most crack-addled defendants give serious consideration to collateral consequences before making choices) explains this sentence.  While 30 months is a break, no doubt, the harm to the children is done.  That Judge Chin may be “willing to take the risk,” one can’t help but recognize that he’s taking the risk with someone else’s children.  Rule and roll.

Another case mentioned in the article involves a criminal defense lawyer, Pat Stiso.  Just so it’s clear, Pat was a good friend of mine. Still is, even though almost every other criminal defense lawyer ran from him the minute his indictment was announced.  He was a good lawyer, which is how he ended up in a bad situation.

Unlike commentary based on media accounts, I have intimate knowledge of Patsy’s case.  This is how the Times describes it:

If Judge Chin believed that some defendants deserved leniency because of their otherwise unblemished history, in his eyes others forfeited their right to a break.

Such was the case with Pat V. Stiso, a Bronx lawyer, who had pleaded guilty to narcotics conspiracy and obstructing justice after being accused of, among other things, hiding money for the leader of a drug gang. He faced a guideline range of 70 to 87 months, for a possible term of more than seven years.

While true, it fails to capture Pat’s downfall.  By doing what almost every lawyer does, trying to keep his client happy and on board, he ended up making some monumentally dumb decisions.  At the time, they hardly seemed to lead inexorably to his sliding into the fringes of a conspiracy, but when his client flipped, that’s where he found himself.  He didn’t want to be there, and tried to get out, but the stupid decision, innocuous at the time, left him in an untenable situation.  And so he pled out.

He said Mr. Stiso’s supporters had not seen his other side, which had allowed him to accept “tens of thousands of dollars in cash in grocery bags, money that was earned from the sale of heroin.” Defense lawyers had to do their jobs, he said, “but this is not a case about the blurring of a line. This case doesn’t even come close.” He sentenced Mr. Stiso to 87 months.

I was one of those supporters. I wrote a letter on Patsy’s behalf.  I knew all about the grocery bags of money, “earned from sale of heroin.”  To read that quoted phrase makes me cringe, as if criminal defendants’ invariably paid out of their Nobel Prize winnings.

Judge Chin was shocked and outraged by this, enough to whack Pat with the maximum sentence.  As it turned out, he served it under BOP constraints that largely prohibited him from outside contact, including speaking to his wife and children.

According to the article, Judge Chin estimates his handiwork at 1100 sentences.  If you do something enough, you come to believe you do it well.

“What did I learn?” Judge Chin recalled 15 years later. “I learned that this was going to be hard.” But he said he had gained confidence, and did not agonize over the decision. “I felt I had done the right thing.”

While Judge Chin’s sentencing legacy will surely be the 150 years imposed on Bernie Madoff, in anticipation of a miraculous medical breakthrough, my memory hangs on his sentence of Pat Stiso, a ” case [that] doesn’t even come close.”  It comes far too close for me.

My favorite marketing philosopher, Seth Godin, asks a question, and being the kind, gentle, helpful soul that I am, the least I can do is offer an answer.  The query:

Which are you?

…competent, inspiring, passionate, obsessed, provocative, impatient, hungry, driven, adoring, inspired, an artist, a genius, someone who cares…?

With all these remarkable, powerful, important options available to each of us, why do so many of us default to competent?

Here are the organization’s revenues for recent years (amounts in dollars):

And here’s how much they actually spent on “death benefits” for families of dead troopers over the same period:

Assholes. How is it that the IRS, the Department of Justice or the Texas Attorney General hasn’t pulled the plug on this scam and others like it long ago? As, Grits wrote in August “This group is about as much about helping troopers as buzzards are about helping roadkill.”

But they’re driven and passionate, even if they took in $2.4 million in 2005 and didn’t pay out a dime.  It can be expensive to be driven and passionate, you know.

Today is Columbus Day, when courts and markets are closed.  While I have no horse in the Columbus Day debate, closed courts and markets are always a good thing.  They may not be able to do any good when closed, but they can’t do any bad either. 

I was reminded of the controversy when I saw Jon Katz’s  Underdog post that his office will be open today because “Columbus did not discover America.”

We will be open today, October 11. I do not agree with the holiday, particularly when no federal holiday exists to remember the Native Americans who suffered tremendously from the lengthy brutal and unjust treatment that followed over the years and centuries after Columbus’s arrival in the Western Hemisphere.  

Well, he’s got a point.  It’s pretty clear that Columbus didn’t “discovery” America, a holiday characterized as going to somebody else’s house and telling them that you’re moving in.  And there is no Native American Day, although I’m not sure that lumping all the tribes into one holiday makes any more sense than Columbus Day.

But then, Marco Randazza at  The Legal Satyricon has staked out a different view.

This is COLUMBUS DAY.

I’d like to invite anyone whose name ends with a vowel (Persians excluded) to raise their hands, extend their middle fingers, and flip off the Native Americans, the hippies, and everyone else in the International Association of Crybabies who has a piss and a moan about Christopher Columbus.

This is not “indigenous people’s day,” it is not “la dia de la raza” and it isn’t frigging “wear a beret, listen to Joni Mitchell, and wear patchoulli day.”

It’s unclear to me how Joni Mitchell got into this mess, but Randazza isn’t about to let anyone take away this day.  It’s not that he’s entirely unsympathetic to the Native American’s plight.

You want a holiday? Be my guest. Pick any day on the calendar except October 31, February 14, March 17, January 1, or July 4. I don’t even care if you want Christmas, but picking THAT will be a marketing nightmare.

You know which day would be an awesome Indigenous People’s Day? How about the Friday after Thanksgiving? Most of us have the day off anyhow. The pilgrims wouldn’t have survived without your help. So, the day after Thanksgiving, as we’re all resting up and glad that we have four days in a row off, we can thank you. Thank you for saving the Pilgrims’ asses.

Just not today.  And in honor of Columbus Day, Randazza-style, a song.

In our hearts, we hoped it was just a fiction, an interesting concept for the movie “Minority Report” that no one in a position of governmental power would ever take seriously.  In our minds, we knew someone would eventually do it. And they have.

Via Wired’s Threat Level, an  internal Department of Homeland Security document was disclosed, or more precisely, revealed in response to a freedom of information demand by EPIC, the Electronic Privacy Information Center, revealing a program called FAST, Future Attribute Screening Technology.  As explained at CNET :

Josh King, Avvo’s general counsel, watched as OccupySeattle, the north-left coast version of OccupyWallStreet, parked itself across the street from his office.  He wasn’t thrilled.

“Occupy Seattle”, a thinly-attended offshoot of Occupy Wall Street, has been going on across the street from my office this last week. What do the “occupiers” want? If you view this rant narrated by Keith Olbermann (shredding whatever scraps of integrity he might have left), they want America to know that corporations are evil.



Don’t get me wrong – I like a good protest. Lock yourself to the gates of nuclear plant, protest the war, demand equal rights, whatever. But here are the problems I have with this protest:

Me, I’m going with the gouging angle. The revenue that Bank of America, and many other banks, is seeking to replace with its new fees is lucre that a more honorable profession would never have touched in the first place. Indeed, 30 years ago, banks themselves would have turned their backs on it. Of course, back then, banks viewed customers as people to be helped, not marks to be taken advantage of.

It was, to be sure, a different world then, with regulated interest rates, the Glass-Steagall Act preventing banks from getting into lucrative trading and a sleepy business model that valued a steady dividend over a highflying stock price. As interest rates were deregulated, Glass-Steagall abolished and investors demanding that bank stocks perform like Internet stocks, that ethos changed. Banks began looking in some dark corners for new revenue; this is when hidden fees began to creep into credit-card agreements, for instance.

We need banks.  Banks are a wonderful thing, as Jimmy Stewart explained.  But while we still call them banks, that wonderful “sleepy” business ended years ago, replaced by financial institutions.  What Nocera is saying is that banks don’t want to be banks anymore, as banks don’t make the big bucks that financial institutions make.  

Banks gouge because they couldn’t care less if you use them as banks.  And they gouge and gouge and gouge, and couldn’t care less if you go elsewhere, as if there was a bank that didn’t gouge.  If they can’t gouge you, they aren’t interested in doing the bank thing.  There’s nothing in it for them.

But we need banks.  It’s not like we can go back to using cash (that’s the paper and coin stuff your parents keep in their pockets and wallet, for you digital natives).  The government has made cash illegal and proof that you are aiding the terrorists.  You don’t want to get put on a cash watch list, do you?

There are many things we need in modern society that don’t provide as big a payback as our need would would seem to justify.  We desperately need someone to remove the garbage we create, yet aren’t prepared to pay garbagemen their due in proportion to our need for their services.  And we aren’t prepared to pay Bank of America $5 for the pleasure of using a debit card to access our money.  And BoA doesn’t care.

One suspects that these new fees will only generate more anger, for they will make plain what has long been hidden: that, fundamentally, retail banking makes its money by gouging the have-nots. Post-financial crisis, the essence of big banking has not changed. It’s just become more obvious.

If you put aside some of the sillier nuts and bolts demands of the Occupy wherever, and focus instead on the core of the anger and frustration, it’s pretty hard to disagree with the protesters. Indeed, it’s hard not to respect their views, grudgingly or not.  The balance of power has gotten out of whack, it seems, and the gouging is out of control.

Some will argue that market forces will eventually smack down the gougers and crush the excessively greedy.  Market forces, of course, is another word for people, us, consumers unwilling to take what they’re dishing out.  These protestors are market forces.  All of us are market forces.  Josh is a market force, as am I. Alone, we may not have an impact, but when enough of us say no, it adds up.  Kinda like a million here, a million there, pretty soon you’re talking about real money market force.

Like Josh, not all the demands strike me as something I can get behind.  In fact, many of them aren’t my issue at all, and I don’t support them. But I do support activism, and some of the demands are right on the money. 

It’s no surprise that this mash of anger and frustration is going to bring up a laundry list of horribles, and overstate the evil of corporate American without recognition of our need for a viable economic existence.  But we have to take the good with the bad.  I won’t pay anybody for a debit card. Heck, I won’t even pay anybody for a credit card. And if somebody rips me off, I’m not going silently into the night. But I’m fond of some modern conveniences and realize that they wouldn’t exist without corporations big enough to develop, produce and distribute them.  And I’m fond of the people who work for them and earn a living so that they can enjoy them too.

As the balance of power is out of whack, it needs to be reined in. We are the market forces capable of doing so. But it’s about giving corporations a damn good smack to remind them who pays the money that creates the revenues that pay the salaries and dividends.  And we need to remember that we need them too, even if not as much as they think we do.

As many readers know, and as has been discussed here in relation to matters of greater importance, I’ve been enjoying an ongoing twitter “conversation” with the social media team at KitchenAid over problems with a  built-in refrigerator purchased at ridiculous expense.  I’ve kept this completely transparent, all on public twitter, refusing their invitation to discuss this via “DMs” (direct messages) so that it’s out there for all to see and enjoy.

One the one hand, this has been great fun, providing hours of #brandfail and general hilarity, as @KitchenAidUSA trips over itself in its effort to explain away incompetence at every turn.  On the other, this serves as a reminder to lawyers that dealing with corporate masters, as run through the hands of children charged with maintaining a happy “customer experience,” is what normal folks suffer regularly without the benefit of being a lawyer.

Matters came to something of a boil yesterday, as the social media team, Kyle, Mandy and Rachel (and, I was told, their supervisor, Mitzy), hit the wall.  Having a subcontracted tech show up, putatively to fix the problems but in reality to observe and report back, the bent frame of the fridge was quickly and easily fixed, but meant that the built-in fridge (question: why does a built-in fridge cost 4-5 times the price of a stand-alone fridge? No answer from KitchenAid) had to be reinstalled, or more accurately, installed correctly.

The reaction from KitchenAid was as expected. They had contracted out the delivery and installation to a logistics company called Optima Solutions out of Georgia, who subcontracts the actual work to trucking companies elsewhere.  Optima Solutions had few options available to it, as they apparently had but one sub in the New York area, which I’ve dubbed Moe & Larry’s Movers.  They are less than optimal, being the same guys who did the terrible installation in the first place, and then failed to show for the reinstall last Monday, as I sat there awaiting their arrival.

This is where Rachel at KitchenAid made a crucial error, attempting to  lie her way out of things by twitting that their “records show that 1 service call was canceled by you on 10/4.”  She immediately back off when called on it, but falsus in unum, falsus in omnibus.  As anticipated, KitchenAid sought the path of least resistance, throwing the problem back to Moe & Larry, Optima’s subcontractor, by trying to dictate the solution, a great solution for KitchenAid but a worthless response for the consumer.

@scottgreenfield They will be the ones who will correct the installation of the refrigerator. -Rachel

No Rachel, @KitchenAidUSA They won’t. They blew it. They failed to show. They are not coming back. They were a total screw-up, never again.