No Rules, Only Power
Laws
A lot of people on the Internet have become Constitutional scholars, but I assure you I have not joined their ranks. Despite this, I did find the framing used by a guest on a recent Chris Hayes podcast helpful to put recent events in context. He said that, ideally, judges exist to mediate disputes between parties, not to write laws or tell society how to function. As we’ve seen, the ‘originalist’ judicial movement - dating all the way back to the 1980s - has taken it upon themselves to explain to us how a document written by a small group of white men in the 18th century should govern the way we live today.
This is an important distinction, because our current Supreme Court spills much ink explaining that because the Founders did not tackle issues like abortion - women couldn’t vote, own land, or get divorces at the time - the US government can’t do so in the present day. It’s a truly deranged view of how the law, government, and society at large should be run, and it’s also ahistorical.
After the Civil War, the people who drafted the Fourteenth Amendment - a more pragmatic group of white men - told the former Confederate states that they had to acknowledge federally enforced civil rights or they couldn’t rejoin the union. For the first time, the country’s laws stated that certain protections would be extended to all citizens, in all states. Sure, we spent another eighty years not actually doing that, and still haven’t fully, but we decided that in order to have a functioning country, government, and something resembling a democracy, rules had to change and evolve with the times.
The Supreme Court has stripped away those core protections in favor of an imagined version of American society - one that is coincidentally white, Christian, and patriarchal - and invented legal arguments to support their worldview. It is blatantly undemocratic - in one case, the Court ruled against the EPA even though the agency had withdrawn the rule in question, because it wanted to preempt any new climate legislation. There was quite literally no dispute to adjudicate, but the Court wanted to have its say anyway.
America functions as a country because we mostly all agree to follow rules and norms. Some are explicit laws (don’t murder people), and some are unspoken compromises we make to keep the peace (don’t clip your toenails on the train). Now, six unelected judges have decided to write laws and mandate how we can and cannot behave. They have turned our democracy into something more closely resembling a monarchy.
There are three ways this story ends. In the simplest version, the legislative and executive branches could take back their power to write laws and govern society and relegate the Court to its intended role - resolving disputes. This seems unlikely at the moment as the Biden White House seems eager to find legal excuses not to and the Senate is content to rubber stamp defense bills and exist in a state of otherwise permanent legislative gridlock. In a less pleasant version, the country could Balkanize, splitting into smaller nations with aligned ideologies. Or, as seems likely right now, the US will become a Christian monarchy, ruled by a small number of right wing zealots, who have spent decades accumulating power with little opposition from a ‘liberal’ party run mostly by rich white Christians who have a lot to lose by opposing the status quo.
What is clear is that without a major change - revolution, a civil war, or a political purge - the US will cease to be a democracy. If the outcome of this year’s federal elections goes the way it’s currently predicted, that future will be sealed. While lawyers debate jurisprudence and politicians fiddle with the knobs of bureaucracy, remember that at the end of the day laws are societal rules we all agree to, and the house of cards is a lot more fragile than those in power want to believe it is.
Elon Musk
Speaking of people who don’t believe in laws, Elon has backed out of his agreement to buy Twitter, and Twitter is suing him. Matt Levine has written a lot about it, and if you want in-depth analysis of the legal nuances of the case, I suggest you go there.
Levine raises an interesting societal question - what is the most ‘fair’ legal punishment for Musk’s behavior? Whatever you may think about Twitter, it has become the de facto platform for political debate in the West. Musk briefly thought it would be a good idea to buy it - probably for selfish reasons - then backed out for similarly selfish ones. He now spends his time disparaging the company and its employees. Maybe the legally correct move is for a judge to force him to buy Twitter, but that could be disastrous - he could, as the owner of a private company with no employee unions, wreak havoc. The alternative is likely to be a compromise where the judge searches for the correct amount of money to force Musk to pay Twitter, so all parties are unhappy but things return to the status quo. Twitter shareholders recoup some of their losses from the charade, and Musk has to cut a check big enough to dent his considerable wealth.
What many in the financial world are concerned about is the precedent it would set letting Musk wriggle out of the deal. As I wrote above, we’re in a precarious transitional period in our society, as rules and norms are flagrantly violated by the rich and powerful - see also: the Trump presidency - and the ‘laws’ we expected to protect us from chaos are found lacking.
Inflation
The Consumer Price Index came out this week, and it was…not great. Inflation was at 9.1% last month, though we are skeptical about what that actually means around here. For instance, PepsiCo made a lot of money last quarter charging people more for soda and snacks but, perhaps to keep up appearances, was careful not to highlight their big profits:
The company, which makes Pepsi, Mountain Dew and Doritos, did not raise its profit outlook in line with its revenue forecast because of uncertainties about “consumer elasticity,”
[…]
The company now expects revenue to grow 10 percent this year, up from an 8 percent expectation last quarter, and for-profit to gain 8 percent, the same as it expected before.
Oh, well that’s nice. Revenues will grow 10% as it charges consumers more for the same products, but they might buy a little less. Maybe. Pepsi’s underlying costs remain largely unchanged:
Notably, PepsiCo’s second-quarter revenue and profit, which both beat analyst expectations, grew faster than sales volumes, implying that the company was able to charge more for each can of soda and bag of potato chips.
Very cool! Pepsi’s stock has outperformed the market by 10x, which means it’s only down two percent while the market is down twenty. They’re making a lot of money, and there isn’t much anyone can do about it. You want that bag of chips? They’re ten percent more now, too bad. Free markets!
When the Fed warns about out of control inflation, and politicians use it as a talking point, remember that many companies are simply using the word as cover to charge more for their products, pocketing the difference. They aren’t even pretending to hide it anymore.
Elsewhere in ‘inflation’, the nation’s largest food distributor is suing the big 4 meat packers for price fixing.
Cricket
As a palate cleanser, please enjoy this excellent story about a fake cricket league in India:
The video is soundless - a blue strap at the bottom of the screen tells you the scores of the batting team, the two batters, the projected score and the bowling records. It says that Chennai Fighters are chasing a score of 151 set by the Gandhinagar Challengers.
The outfield is brown and dusty, and the cricket pitch is a whitish carpet nailed to the ground. The Chennai team is scoring at a steady clip of nearly seven runs an over. Strokes are sometimes played but we never see a ball reach the boundary. The batters mostly run clumsy ones or twos.
As someone who only vaguely understands cricket, this seems…fine? I don’t know:
The umpire appears to be more enthusiastic than the players, waving his hands vigorously, signalling wides and no balls. In keeping with the rather amiable mood of the game, a bowler doesn't seem to be interested in running out a batsman who's stranded yards away from the crease.
A young man comes running to the field with what looks like an ice box, and players take a drinks break. There are no close-up shots of the players, most of the fielders and no views of an audience.
Sure, sure, okay:
All this looks like a local, video-recorded Twenty20 cricket match being played somewhere in India.
Except this was part of what the police call a "fake" cricket tournament involving a group of unemployed men in Gujarat state and a bunch of punters curiously based in Russia.
Ahhhh yes. A ‘punter’ in this context is a sports bettor. Some scammers created an entire fake Indian cricket league, broadcast the (fixed) matches on YouTube, and took bets from Russians over Telegram. It worked, for awhile:
The Mehsana "tournament" was busted after more than nine games were played in a remote location in Molipur village, the police said. They seized cricket kits, cameras and even speakers which would amplify the running commentary to "basically set the mood".
The league - which was called Century Hitters T20 - had half-a-dozen "teams" named after different Indian states, nearly two dozen locals who were paid to turn out for all the teams, two umpires, and two organisers, the police said. One of the organisers doubled up as a commentator and mimicked a well-known cricket Indian pundit.
I love it. Century Hitters T20. I’d wear the merch. Organizers mimicked team names from the wildly popular Indian Premier League and convinced(?) some Russians it was real.
Obviously the people behind the scam are going to jail or whatever but it’s tough to see who the victims are here - shady Russian punters so desperate to gamble on sports they’ll watch bad cricket on a YouTube channel with no viewers? Whatever, man. At least the players from the village got paid a little money for their troubles and a chance to hone their cricket skills.
Tuna
We love food lawsuits around here, so this was welcome news:
U.S. District Judge Jon Tigar in San Francisco called it premature to accept Subway's argument that any presence of non-tuna DNA might result from eggs in mayonnaise, or cross-contact with other ingredients that its restaurants' employees handle.
"Although it is possible that Subway's explanations are the correct ones, it is also possible that these allegations refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product," Tigar ruled on July 7.
I know I just got done disparaging judges as a profession, but Judge Tigar is doing his best to redeem the judiciary. He’s shown admirable restraint, as some of the claims against Subway are pretty spurious:
The judge also said the plaintiff Nilima Amin, an Alameda County resident who claimed to order Subway tuna products more than 100 times from 2013 to 2019, could try to prove that the salads, sandwiches and wraps "wholly lack" tuna.
He rejected Amin's argument that "reasonable consumers" would expect only tuna and nothing else, calling it a "fact of life" that tuna products could contain mayonnaise and bread.
Right, yes. Unfortunately, as we’ve discussed before, US consumer protection these days is mostly done by consumers themselves - people so aggrieved they find a lawyer willing to sue Subway for them over a sandwich. Maybe the whole suit is spurious, but fast food companies are no paragons of virtue. There is some worrying evidence in the case:
Testing at UCLA's Barber Lab found that 19 samples contained "no detectable tuna DNA sequences," while all 20 had chicken DNA, 11 had pork DNA and 7 had cattle DNA, the complaint said.
If Subway is allowing pork or beef to contaminate their tuna, I can think of two or three groups of people who’d be pretty upset about that! The desired result here - aside from the plaintiffs receiving money - is Subway cleaning up its operations so the tuna subs are made of tuna (and bread, and mayo) and the sickos who enjoy them don’t have to worry about violating any convenants with their deity.
Short Cons
NYT - “The shocking budget cut meant that the school board suddenly had to craft a new financial plan, while many parents suddenly had to come up with thousands of dollars to keep their children in public schools.”
Eater - “Restaurants including Avant Garden in the East Village, Dame in Greenwich Village, and Huertas in the East Village are among the first to be hit by the online scammers who are threatening to leave one-star reviews on restaurants’ business pages until their owners hand over gift cards to Google’s app store.”
WSJ - “Swiss bankers and transparency campaigners say billions of dollars of Russian clients’ assets have been transferred to the names of spouses and children in recent years—a phenomenon that accelerated in the run-up to the war, they say.”
Tips, thoughts, or Century Hitters merch to scammerdarkly@gmail.com