Although it was only a few weeks ago that I was first introduced to the particulars of antitrust law, I am not going to let that stop me from expressing my disappointment about the recent opinion in California v. Safeway, which I find disheartening in a bitterly familiar way.
Several of the major Southern California supermarket chains (Safeway, Ralphs, Vons, and Albertsons), together accounting for 60% - 70% of the market for groceries in that area, entered into a Mutual Strike Assistance Agreement (MSAA). This agreement included a "revenue sharing provision" according to which, in the event of a strike, any grocer earning more than their typical share of revenue would give 15% of those excess earnings to any grocers who were losing money relative to their typical share.
Let me run that by you one more time in case you missed it: the agreement provides that competing grocery stores will share profits for the duration of a strike in order to blunt its effects.
As I said above, I really only just started studying this whole antitrust deal, but this seems like a pretty blatant violation to me. Sadly, the 9th Circuit only sort of agrees. An en banc panel held that this might be an antitrust violation but that it's not per se illegal, placing a considerable burden on the state to jump through a lot of evidentiary hoops to win its case. Why? Because the agreement was not permanent (i.e. revenue would only be shared during a strike) and because the signatories only controlled some of the market -- not all of it. I have to say that I really don't understand this. Does this mean that it's OK to fix prices for one month out of the year? Or to fix the price of a single product? Can competitors who control a sizable share of the market but not the whole market effectively do whatever they want?
What I am left wondering about is whether there is a consumer protection angle here: after all, for many consumers the fact of a strike is a material aspect of their decision to purchase a particular product or patronize a particular business. (This seems similar to Kasky v. Nike -- a California Supreme Court case holding that lies Nike told about its labor practices in order to boost sales were not protected by the First Amendment.) It is certainly reasonable for a consumer to believe that the money she spends at one grocery store is being kept by that store and not being funneled to its competitors. If that isn't the case, then shouldn't there be signs in the windows -- "Up to 15% of your purchase will be donated to the store across the street for the until its workers are no longer on strike"?
As political and legal protections for labor, the environment, and general health and safety gradually erode, legislators offer us the same cold comfort over and over: that we can vote with our dollars, that by buying the right things we can become better people and make the world a better place, or, at the very least, avoid causing additional harm. This is, at best, a problematic notion -- there are all sorts of dignitary and social ills that might arise from viewing purchasing as our main form of political expression. But it seems to me that one of the biggest problems is that, when businesses are allowed to lie like this, it just isn't true.
Sunday, July 17, 2011
Saturday, July 09, 2011
Small Talk
The sense of betrayal San Franciscans feel at the hands of the weather heightens
with each whipping week of summer wind.
It doesn't matter that this happens every year.
Maybe it's because so many of us are from other parts
of the country where the summer heat soaks every layer
until there is nothing left to take off
and even the panes of glass in the windows warm foreheads laid in desperation against them.
Or maybe it's because we would like to believe that these words
-- June, July, August --
mean something more than the sounds of their syllables slinking together
like the thin bracelets Rose wears that clip and ring while she loads bags with the fruit I have bought
apples and peaches and mangos balanced
on top so their skin won't split on the walk home.
with each whipping week of summer wind.
It doesn't matter that this happens every year.
Maybe it's because so many of us are from other parts
of the country where the summer heat soaks every layer
until there is nothing left to take off
and even the panes of glass in the windows warm foreheads laid in desperation against them.
Or maybe it's because we would like to believe that these words
-- June, July, August --
mean something more than the sounds of their syllables slinking together
like the thin bracelets Rose wears that clip and ring while she loads bags with the fruit I have bought
apples and peaches and mangos balanced
on top so their skin won't split on the walk home.
Mind Over Matter?
Taken together, several articles in the Ideas Issue of the Atlantic (July/August 2011) evidence a certain ambivalence about the relationship between our minds and our bodies. Or maybe ambivalence is not quite the right word -- maybe these stories only seem to contradict one another because they are starting from opposite ends of the spectrum, both trying to write the way back to a central point: mirror images about to converge.
In The Triumph of New Age Medicine, David Freedman argues that Western medicine is floundering in the face of chronic illnesses like diabetes, Alzheimer's, heart disease, and cancer because it is too focused on treating the mechanical failings of bodies in crisis and not attentive enough to teaching the minds in charge of those bodies how to best care for themselves. Mainstream medical practitioners wait until someone falls ill so that they can intervene with drugs or surgical procedures instead of sitting down early on with patients, listening to their troubles, and coming up with ways to help them improve their diet, get more exercise, and reduce their day-to-day stress.
"Medicine has long known what gets patients to make the lifestyle changes that appear to be so crucial for lowering the risk of serious disease: lavishing attention on them. That means longer, more frequent visits; more focus on what's going on in their lives; more effort spent easing anxieties, instilling healthy attitudes, and getting patients to take responsibility for their well-being; and concerted attempts to provide hope." (p. 96) In other words, the problem is that doctors see themselves as technicians or engineers rather than healers and caretakers. Freedman is not positing that positive thinking alone will cure you but instead pushing us to expand our concept of health beyond the body to include aspects of mind like awareness, patience, discipline, confidence, and self-care.
Contrast that with David Eagleman's The Brain on Trial, which argues that because biology -- especially biochemistry -- is so determinative of action and character, the criminal justice system should shift its emphasis away from blame and towards rehabilitation. The current model is premised on the idea that since free will is absolute the system can hold people absolutely accountable for their actions; Eagleman proposes a model in which we have far less control and therefore far less responsibility. I don't disagree that we need to spend more time rehabilitating those in prison -- helping them find jobs, build family connections, rejoin their communities -- and less time reviling, castigating, and excluding them. But what's surprising here is Eagleman's reasoning, skirting as it does all discussion of social issues like race, poverty, and the economy. It is more than somewhat disturbing to evoke the idea of biological determinism in the face of a prison population that is so demographically skewed.
"As we become more skilled at specifying how behavior results from the microscopic details of the brain, more defense lawyers will point to biological mitigators of guilt, and more juries will place defendants on the not-blameworthy side of the line. . . . The crux of the problem is that it no longer makes sense to ask 'To what extent was it his biology, and to what extent was it him?,' because we now understand that there is no meaningful distinction between a person's biology and his decision-making. They are inseparable."(p. 120) The gist is that we cannot locate "crime" or "criminal behavior" entirely on the mind side of the ledger -- that there is no mind side of the ledger -- and that instead we must consider how some people's physical designs may make it effectively impossible for them to accede to society's demands.
What is striking, I think, is that, placed side by side, these articles tell a larger story about how our institutions -- our laws, policies, and technologies -- divide us from ourselves and deprive us of a certain wholeness. There are books that have been and will be written about how these systems evolved (I think maybe Descartes was involved) and there are also arguments in favor of some level of reductiveness, mostly based on efficiency and administrative ease.
But perhaps the moral of this story belongs in the mouth of Christopher Hitchens who, reviewing a book about Gandhi in the same issue, says: "[Gandhi's suggestion that the British surrender their land to the Germans while rebelling in their souls] is revealing, not so much for its metaphysical amorality as for its demonstration of what was always latent in Gandhism: a highly dubious employment of the mind-body distinction. For him, the material and physical world was gross and polluting and selfish, while all that pertained to the 'soul' was axiomatically ideal and altruistic. . . . This false antithesis is the basis for all religious fundamentalism, even as its deliberate indifference permits and even encourages sharp deterioration in the world of 'real' conditions." (p. 142)
In The Triumph of New Age Medicine, David Freedman argues that Western medicine is floundering in the face of chronic illnesses like diabetes, Alzheimer's, heart disease, and cancer because it is too focused on treating the mechanical failings of bodies in crisis and not attentive enough to teaching the minds in charge of those bodies how to best care for themselves. Mainstream medical practitioners wait until someone falls ill so that they can intervene with drugs or surgical procedures instead of sitting down early on with patients, listening to their troubles, and coming up with ways to help them improve their diet, get more exercise, and reduce their day-to-day stress.
"Medicine has long known what gets patients to make the lifestyle changes that appear to be so crucial for lowering the risk of serious disease: lavishing attention on them. That means longer, more frequent visits; more focus on what's going on in their lives; more effort spent easing anxieties, instilling healthy attitudes, and getting patients to take responsibility for their well-being; and concerted attempts to provide hope." (p. 96) In other words, the problem is that doctors see themselves as technicians or engineers rather than healers and caretakers. Freedman is not positing that positive thinking alone will cure you but instead pushing us to expand our concept of health beyond the body to include aspects of mind like awareness, patience, discipline, confidence, and self-care.
Contrast that with David Eagleman's The Brain on Trial, which argues that because biology -- especially biochemistry -- is so determinative of action and character, the criminal justice system should shift its emphasis away from blame and towards rehabilitation. The current model is premised on the idea that since free will is absolute the system can hold people absolutely accountable for their actions; Eagleman proposes a model in which we have far less control and therefore far less responsibility. I don't disagree that we need to spend more time rehabilitating those in prison -- helping them find jobs, build family connections, rejoin their communities -- and less time reviling, castigating, and excluding them. But what's surprising here is Eagleman's reasoning, skirting as it does all discussion of social issues like race, poverty, and the economy. It is more than somewhat disturbing to evoke the idea of biological determinism in the face of a prison population that is so demographically skewed.
"As we become more skilled at specifying how behavior results from the microscopic details of the brain, more defense lawyers will point to biological mitigators of guilt, and more juries will place defendants on the not-blameworthy side of the line. . . . The crux of the problem is that it no longer makes sense to ask 'To what extent was it his biology, and to what extent was it him?,' because we now understand that there is no meaningful distinction between a person's biology and his decision-making. They are inseparable."(p. 120) The gist is that we cannot locate "crime" or "criminal behavior" entirely on the mind side of the ledger -- that there is no mind side of the ledger -- and that instead we must consider how some people's physical designs may make it effectively impossible for them to accede to society's demands.
What is striking, I think, is that, placed side by side, these articles tell a larger story about how our institutions -- our laws, policies, and technologies -- divide us from ourselves and deprive us of a certain wholeness. There are books that have been and will be written about how these systems evolved (I think maybe Descartes was involved) and there are also arguments in favor of some level of reductiveness, mostly based on efficiency and administrative ease.
But perhaps the moral of this story belongs in the mouth of Christopher Hitchens who, reviewing a book about Gandhi in the same issue, says: "[Gandhi's suggestion that the British surrender their land to the Germans while rebelling in their souls] is revealing, not so much for its metaphysical amorality as for its demonstration of what was always latent in Gandhism: a highly dubious employment of the mind-body distinction. For him, the material and physical world was gross and polluting and selfish, while all that pertained to the 'soul' was axiomatically ideal and altruistic. . . . This false antithesis is the basis for all religious fundamentalism, even as its deliberate indifference permits and even encourages sharp deterioration in the world of 'real' conditions." (p. 142)
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