My recommendation for people protesting all across the country is to roll up your sleeping bags and open a book. Since the Wall Street protesters began attracting news coverage of their clashes with the NYPD, the media have been interviewing protesters in an effort to determine their agenda and demands. Short of general demands such as “end corporate greed” and “end corporate personhood” the message has been rather garbled. Although the problems currently facing our nation are rather severe — high unemployment, a sluggish economy, multiple foreign military adventures — the solutions to these problems are less clear than they may have been in the past. Mass protests are a useful instrument for demonstrating popular support for a novel policy solution to a social problem. Protesting prior to the discovery of a solution is thus at best a waste of energy, and at worst counterproductive.
The poor state of the American economy is public knowledge and already a cause of concern for important decision makers. Likewise, the troubles a foibles of large financial institutions, most graphically seen in Bank of America’s mass layoffs and the theft of billions of dollars from UBS, indicate that some sort of regulatory changes are called for. Unfortunately, macroeconomics and securities regulation are relatively complicated fields not susceptible to clear or easy answers. Americans’ time would be better spent trying to solve these problems than camping out in lower Manhattan.
Take for example the slogan “end corporate greed.” Managers of a corporation have a legal duty to seek to increase profits. Are protesters holding these signs demanding that officers violate their fiduciary? Maybe they are demanding a change in Delaware corporate law designed to decrease executive accountability. No one thinks that it was intelligent or desirable for big banks to heavily invest in bad loans, we just don’t know a regulatory scheme to prevent it.
One runs into a similar problem with the slogan “end corporate personhood,” an inherently problematic saying as a corporation is a fictional legal person. In Citizens United v. Federal Election Commission the Supreme Court placed strict limitations on Congress’ ability to stem corporate influence in elections by placing restrictions on corporate speech. It may be more profitable to look for novel ways to solve the problem rather than demand a return to previous case law. This approach may lead to a political system that functions equally well but with the advantage of fewer restrictions on speech.
The issues that America encounters today stem not so much a lack of will but a lack of creativity. In the wake of the collapse in the housing market many states enacted usury laws designed to prevent some of the particularly exploitative practices of subprime lenders. Some of these lenders responded by selling their businesses to Native American tribes not subject to state law so as to continue these practices. A group of clever lawyers were able to foil the intent of the new regulations.
A major obstacle to any sort of meaningful reform is that there are so few people who actually understand our current financial regulatory scheme. Those with the wherewithal and perseverance to specialize in this area of the law are highly sought after and well compensated. I urge those people interested in actually changing Wall Street to put the time in to understand exactly how it functions under current law. I don’t have solutions to all any of the problems I have outlined, and as of now I lack the expertise to even begin trying to solve them. It seems likely that there are no more easy fixes; America’s problems are solvable, but they will be solved by experts.
The new waves of populism and anti-elitist sentiment in the form of the Tea Party and Occupy Wall Street present a danger to the economic and intellectual health of our country. Our willingness to pay through the nose to attend Cornell is based on a belief that there are experts, they know things that we do not and with hard work and dedication we can learn something new. Our nation needs contemplative and creative experts in securities regulation, not mobs blocking traffic on the Brooklyn Bridge.
Daniel Green is a second-year law student at Cornell. He may be reached at firstname.lastname@example.org. Barely Legal appears alternate Fridays this semester.