It’s a tough road being a contrarian on Russia. This is especially true today when the entirety of the U.S. and European political system is aligned to demonize Russia at nearly every level.
And the main reason for this is that Russia under President Vladimir Putin refuses to do the West’s bidding both at home and abroad. The central tenet of U.S. foreign policy is that U.S. concerns, no matter where they are, are supreme and everyone else’s are subordinate.
Russia under Putin doesn’t play that game. He hasn’t for nearly twenty years now. This is not to say, of course, that objectively speaking Putin is a good man or even a good leader. In studying Putin for the past seven years I’ve come to one inescapable conclusion.
He was exactly the leader Russia needed to dig the country out of the abyss it found itself in when he took over. He is exactly the kind of leader Russia needs to guide it through the next period of history.
So much analysis of Putin and Russia is so thoroughly ideologically tainted that, on that basis alone, it should be dismissed out of hand. And it has been successful enough that even the best analysts who are truly skeptical of the U.S. narrative still get some of the basics about Russia and Putin horribly wrong.
I’ve been recommending Russia as an investment to people since early 2015 and its state-owned gas giant Gazprom (NYSE:OGZPY) since mid-2014. I haven’t wavered in that recommendation, despite the ups and downs.
And the reason for this is simple. While markets do not trade on fundamentals every day, over the long run a market’s or stock’s fundamentals do eventually overcome sentiment and assert themselves on the price.
So, in 2014 when oil prices collapsed so did the price of Gazprom. The ruble went through a crisis intended to oust Putin from power in revenge for his thwarting the U.S. takeover of Crimea.
Putin’s deft handling of the ruble crisis and Russia’s impeccable national balance sheet allowed both to survive and begin digging the country out of the latest hole placed in front of it.
Since then the U.S. has piled on obstacle after obstacle in front of Russia in the global marketplace for capital. The Magnitsky Act has been used like a bludgeon to scare investors away from the land of the Evil Putin.
False flags and overt provocations to war in Syria, Ukraine and the U.K. have slowed the pace of investment in Russia’s capital markets. Gazprom for years languished both because of the political risks of U.S. pressure in Europe to stop first the South Stream and then the Nordstream 2 pipelines.
Frivolous lawsuits from Ukraine, the EU and the Baltics have dogged the company for years. The EU has changed its laws to retroactively try and gain a legal upper hand on Gazprom’s pricing of natural gas. But, ultimately, none of it has worked.
Slowly, but surely, Russia’s fundamentals and its stable and improving political situation are winning the hearts of investors looking for yield in a yield-free world.
“They’ve made themselves bulletproof,” says James Barrineau, co-head of emerging-market debt for Schroders Investment in New York.
“They can pay off all their foreign debts with their central bank reserves. Plus, they’re cutting interest rates. The currency is very stable. And they have room on the fiscal side to spend on their economy.”
The first point is something I pointed out in 2015. The numbers were this good then. And yet, the ratings agencies, like dutiful quislings, cut Russia’s ratings to junk status.
And they did this against fundamentals like having enough money to pay off the entire country’s debt load, public and private, and at the time at 13.3% debt-to-GDP ratio. Today that ratio stands, after a currency crisis, at just 11.8%.
Someone remind me what the U.S.’s is?
As always, what the world responded to was the hardship of the U.S. all but kicking Russia out of the dollar-funding markets. The only step not taken against Russia was removing it from the SWIFT interbank messsaging system.
That wasn’t done for the same reasons that it wasn’t reinstated by Trump on Iran after he pulled out of the JCPOA. It doesn’t work. All it does is hasten the rate at which the country learns to work without U.S. dollars.
By 2019 Russia, China and Iran have alternatives to SWIFT to prosecute international trade outside of the U.S.’s purview. Once those transactions leave SWIFT the U.S. loses a very powerful monitoring tool.
And in surviving this full court press to destroy Russia financially and keep capital from fleeing there the U.S. has made it a stronger destination today than it would have ever been had it not gone this route.
Instead of isolating Russia financially and destroying the ruble, it actually made the dollar more suspect and raised the profile of the ruble across central Asia.
President Trump has weaponized the dollar to such an extent that he’s raised the costs of using it for countries that do significant business with Russia above that of the ruble.
And it starts with the political stability created by Putin and his deft diplomatic corps, led by Foreign Minister Sergei Lavrov. Putin has made it a point of always keeping his promises on the world stage, no matter how rocky the relationship.
Trump on the other hand has unilaterally bullied and sanctioned most of the world for not doing what he wants. Putin keeps making this point over and over again, Trump is destroying the long-term viability of the dollar. The key to that statement being ‘long-term.’
Because a country that acts honorably on the world stage, encourages trade over blackmail, honors its contracts even when the rules are arbitrarily changed against them and stands by its allies will generate the kind of good will that will increase the willingness of people locally to accept that country’s currency.
Since Trump went on his sanction the world policy, the ruble has been on a tear in international markets. While mildly strengthening versus the dollar (0.8%), the ruble has risen 11% versus the total basket of its trading partners (REER).
This is the clearest picture I can paint of the ruble decoupling from the U.S. dollar and it’s a trend worth watching into the future. Because as the dollar rises into the teeth of the brewing financial crisis (think European banking meltdown currently underway) the ruble will act as a port in the storm for those economies terminally short dollars.
With the Bank of Russia finally letting its boot off the neck of the Russian economy by lowering interest rates aggressively over the past four months, the Ruble hasn’t degraded one bit.
If anything all this has done is strengthen demand for the ruble as pent-up demand in the form of huge domestic savings now can be deployed as new business loans and corporate bond issues at far better rates a few months ago.
That said the Bank of Russia is still behind the curve by looking at the spread between the Overnight lending rate (a proxy for the benchmark rate) and the yield on a 1 year government note.
All that’s happened since Elvira Nabullina began cutting rates is demand for Russian debt has skyrocketed as investors in the West search for safe returns and across Emerging Markets starved of dollars. And while the ruble is nowhere close to overthrowing the dollar on the global stage and likely never will, it only takes a small shift in demand to create outsized effects on markets as comparatively small as Russia’s.
The rate of de-dollarization of the Russia economy is not as fast as the headlines would have you believe, but it is happening. The ruble now accounts for more than 30% of Russian exports and 20% of its overall international trade.
The world is insanely short dollars at this point and will continue to be for the next decade. That much is certain. It will fuel a massive dollar rally ove the next few years.
But Russia isn’t alone in the woods anymore on this path. India, Turkey, China, Iran and others understand what that reliance on the dollar means during economic downturns. And they are working with Putin to lay the groundwork to keep their economies from collapsing as the dollars flow out.
This is why Putin and Xi have been adamant about building ways to bypass the dollar for local trade. It will allow the dollar short positions of local companies to fade just like did for Russian companies after the ruble crisis in 2015.
Now that we’re four years beyond the worst of that and the political reality surrounding Russia far better than it was then, its stock market is booming, demand for its debt is rising and contrarian investors are looking for the next generational play to park their cash despite the obstacles the U.S. places in front of them.
The key for this will be the EU, as Russia’s trade with the EU in euros is nearly as big as it is in dollars now. This is what will prompt the rescinding of sanctions against Russia this year.
When that happens you can expect a big pop in the Moscow Exchange.
We are led to understand that the unipolar ‘moment’ of US ascendency is giving way – grudgingly – to a multipolar world: a reversion perhaps to a more nineteenth century ‘concert’ of powers (or, of significant ‘poles’ – since size is not always the prime determinant). And that Trump is trying simply to prolong that hegemonic, US moment – albeit through different means, which is to say, adopting seemingly bizarre, and sometimes counterproductive, acts and language, that infuriate the American foreign policy establishment.
But is this view right? Maybe – Trump is more of a crab. Maybe he needs to proceed towards his ends, crab-like, rather than full-steam straight-ahead, precisely because he is subject to such concerted political attack.
Some in Russia think the very notion of America ‘First’ carries ‘in its belly’ the implication of a letting-go of the globalist ‘Empire’ project, and a return to focus on the internal American situation, and the challenges which the US faces internally (i.e. a return to the type of non-interventionist conservatism which Pat Buchanan represented, but which the US neo-cons loathed, and set out utterly to destroy precisely – because it foreclosed on ‘empire’).
In practical terms, Obama can be viewed, as some in Moscow suggest, as the Gorbachev of the American regime, (i.e. the man who began the retrenchment out from certain of the Empire’s more extended nodes); and Trump then, in this analogy, is the Yeltsin of this regime: (i.e. the president who has re-focused on the internal arena, and on reducing the burdens of the republics that used to constitute parts of the Soviet Union).
The retrenchment-and-rebuild-at-home shift is hard. And it did not turn out well for Russia.
The motives for Trump’s focus on China as a hostile challenger is clear: It serves the need of having a simple popular narrative to account for America’s relative decline (it is all China’s fault – stealing ‘our’ jobs and our intellectual property). It provides too, an unequivocal enemy that culturally threatens ‘our’ way of life – and it offers a solution: ‘We shall take back our economy’.
But what may not be so clear is whether Trump is actually so opposed to the notion (in principle) of a concert of powers. Though bearing in mind the neo-con and liberal interventionist rage at Pat Buchanan’s earlier policy inwardness (and scepticism of intervention), it might be unwise of Trump to admit to such inclinations – even were he to have them. Hence, the crab-like sideways motion towards its destination.
Is then Trump’s outreach toward Russia (whilst China is demonised), simply a Mackinder-ish attempt to divide Russia and China from each other, in order for Trump to be able to triangulate his interests between a (separated) China and Russia – and which therefore is integral to a continuing US hegemonic project – or is it not? Or, does it have another purpose? It is, after all, pretty obvious that such a divide-and-rule ruse will never work, so long as the close personal relationship between Presidents Xi and Putin, holds good. Both leaders understand triangulation, and both view the ‘concert’ of poles initiative – as an existential requirement for their states.
Or, is Trump’s continuous effort at outreach to Russia somehow connected to his understanding of how the US might quietly transition from a moment of overextended empire – to something smaller, within a multi-polar framework?
Why might Trump want – even indirectly and covertly – to encourage such transition? Well, if you were hoping to exit one of empire’s more troublesome nodes, you do not want immediately to be pulled right back-in, through another war, just as you start to pack your bags – the Middle East is one very obvious example.
And by escalating against Iran, Trump both appeals to the globalist ‘realpolitik’ component of the deep state, and to those liberals who support interventions under the ‘moral high ground’ banner, but who implicitly also seek to consolidate globalization. Are Trump’s tactics – berating Iran at every opportunity – somehow an effort at neutralising the globalists (mindful of Pat Buchanan’s fate)?
Trump knows at bottom that his core electoral base is isolationist, and wants an end to ‘forever’ wars. He campaigned precisely on this pledge. Is the ‘maximum pressure’, and threats of war, then precisely meant to substitute for actual war? Whilst, at the same time, appeasing Israel, by effectively taking negotiations with Iran ‘off the table’ (i.e. by undoing Obama’s having putting rapprochement on the table – thus unsettling the sense of security of Israel and the Gulf States?).
Iran seems to think so: both Iranian and Hizbullah leaders have asserted rather emphatically that Iran tensions will not result in war. In such a play, Russia plays a key role: It tries somehow to ‘balance’ between Iran and Israel (at least for now). Is not this exactly how a concert of powers is supposed to work?
So when we speak of Trump’s geo-political ‘strategy’, we mean the meshed strategy of firstly retaining key electoral bases of support: the deplorables, of course, but also AIPAC and the Evangelicals (25% of the electorate claim to be Evangelical, and who are attached to a literal, eschatological view of a Greater Israel, in the context of Redemption); and secondly, of weakening the internal currents in overseas states which support globalism and seek closer relations with the US. This effectively strengthens the sides who not want strong relations with America, and by extension, have a clear interest in a multipolar world.
Wherever you look around the globe, America’s policies have strengthened the sovereigntists: i.e. Iran, Russia and China. Is this simply paradoxical – or deliberate? As one Russian thinker has noted:
“Trump’s conservative tendencies and his deep isolationist predisposition, are placing him in the position of being an objective ally of ours (i.e. Russia and China). One who is facilitating the realisation of our project.”
Is this Iran’s understanding, too? Possibly, but in any event, were it to be so, it would fit well with Iran’s geo-strategy. It would not demand of Iran its compliance with the regional status quo (which it would never agree to).
The seven year Iran-Iraq war had left the revolution intact, but the population war-weary. This war however, taught the Iranian leadership the imperative of preventing another head-to-head conventional war – and instead, to prepare its forces for a new-generation unconventional conflict – mounted ‘far away’ from the homeland, and calibrated carefully, precisely to avoid going head-to-head with a state – or its people, if possible.
And just as the US Evangelicals see the coming into being of Greater Israel as an eschatological necessity, so the founders of the Islamic Republic embraced an eschatology (the Jafari School, named after the Sixth Imam Ja’far al-Sadiq), which names Jerusalem as central to the return of the Mahdi, and to the establishment of Islamic government throughout the world – as promised by the Prophet Mohammed. According to both Sunni and Shia prophecies, the army foreordained to conquer Jerusalem is to be comprised mostly, but not exclusively, of people from the region of Iran, with Iranians having a great and important role in the event. Yes: We have almost exact opposite symmetry between the Hebraic and Islamic eschatologies.
A role for Russia as maintaining the ‘balance’ then, is not surprising. This may be how a concert of powers is supposed to work. But will it? Or will it end as disastrously as Yeltsin’s effort, with the collapse of the US economy?
The shift from a unipolar ‘order’ to a concert of poles (in which Iran, Turkey and India may be expected to feature) is a complicated exercise. Much of the Iranian leadership (though perhaps not President Rouhani), may – in principle – think it an excellent idea, were the US to take a turn inwards, and go away. But this sentiment is definitely not reflected in Israel.
In spite of all the unilateral Trump ‘gifts’ to Israel (Jerusalem as capital, Golan as Israel, the settlements as not illegal, etc.), Israel is feeling an existential fear and loneliness. Thus, it is an exceedingly fragile – and indeed increasingly improbable balance – that Trump is trying to mount (with President Putin’s tacit assistance).
It may well collapse – and with it, Trump’s hope for ‘clean’ exit: leaving the Middle East to stew on its own.
And, as a final speculation: Is this somewhat similar to what has been going on between Trump and Xi (i.e. a play analogous to that with Iran)? Is Trump ramping up the max-pressures, and threats of Cold War against China, to substitute for the military war that some of his deep state might love him to fight, but which Trump has no intention of doing?
Is there some tacit understanding that China collaborates in Trump’s blowing of the stock market bubble in the US (China plays well its part in Trump’s market manipulation – with a trade deal always ‘almost there’), as Trump, in his turn, tries to keeps Hong Kong ‘off the table’? All good ‘concert of power’ type trades?
And is the US Congress – with its bill from both ‘Houses’ aimed at putting Hong Kong right back ‘on the table’ – intent, with this bill, on destroying Trump’s implicit collaboration in the creation of a multipolar order?
Today, we live in a low-interest-rate environment, where the cost of borrowing for governments and institutions is lower than the historical average. It is easy to see that interest rates are at generational lows, but, as Visual Capitalist’s Nicholas LePan notes below, did you know that they are also at 670-year lows?
This week’s chart outlines the interest rates attached to loans dating back to the 1350s. Take a look at the diminishing history of the cost of debt—money has never been cheaper for governments to borrow than it is today.
The Birth of an Investing Class
Trade brought many good ideas to Europe, while helping spur the Renaissance and the development of the money economy.
Key European ports and trading nations, such as the Republic of Genoa or the Netherlands during the Renaissance period, help provide a good indication of the cost of borrowing in the early history of interest rates.
The Republic of Genoa: 4-5 year Lending Rate
Genoa became a junior associate of the Spanish Empire, with Genovese bankers financing many of the Spanish crown’s foreign endeavors.
Genovese bankers provided the Spanish royal family with credit and regular income. The Spanish crown also converted unreliable shipments of New World silver into capital for further ventures through bankers in Genoa.
Dutch Perpetual Bonds
A perpetual bond is a bond with no maturity date. Investors can treat this type of bond as an equity, not as debt. Issuers pay a coupon on perpetual bonds forever, and do not have to redeem the principal—much like the dividend from a blue-chip company.
By 1640, there was so much confidence in Holland’s public debt, that it made the refinancing of outstanding debt with a much lower interest rate of 5% possible.
Dutch provincial and municipal borrowers issued three types of debt:
Promissory notes (Obligatiën): Short-term debt, in the form of bearer bonds, that was readily negotiable
Redeemable bonds (Losrenten): Paid an annual interest to the holder, whose name appeared in a public-debt ledger until the loan was paid off
Life annuities (Lijfrenten): Paid interest during the life of the buyer, where death cancels the principal
Unlike other countries where private bankers issued public debt, Holland dealt directly with prospective bondholders. They issued many bonds of small coupons that attracted small savers, like craftsmen and often women.
Rule Britannia: British Consols
In 1752, the British government converted all its outstanding debt into one bond, the Consolidated 3.5% Annuities, in order to reduce the interest rate it paid. Five years later, the annual interest rate on the stock dropped to 3%, adjusting the stock as Consolidated 3% Annuities.
The coupon rate remained at 3% until 1888, when the finance minister converted the Consolidated 3% Annuities, along with Reduced 3% Annuities (1752) and New 3% Annuities (1855), into a new bond─the 2.75% Consolidated Stock. The interest rate was further reduced to 2.5% in 1903.
Interest rates briefly went back up in 1927 when Winston Churchill issued a new government stock, the 4% Consols, as a partial refinancing of WWI war bonds.
American Ascendancy: The U.S. Treasury Notes
The United States Congress passed an act in 1870 authorizing three separate consol issues with redemption privileges after 10, 15, and 30 years. This was the beginning of what became known as Treasury Bills, the modern benchmark for interest rates.
The Great Inflation of the 1970s
In the 1970s, the global stock market was a mess. Over an 18-month period, the market lost 40% of its value. For close to a decade, few people wanted to invest in public markets. Economic growth was weak, resulting in double-digit unemployment rates.
The low interest policies of the Federal Reserve in the early ‘70s encouraged full employment, but also caused high inflation. Under new leadership, the central bank would later reverse its policies, raising interest rates to 20% in an effort to reset capitalism and encourage investment.
Looking Forward: Cheap Money
Since then, interest rates set by government debt have been rapidly declining, while the global economy has rapidly expanded. Further, financial crises have driven interest rates to just above zero in order to spur spending and investment.
It is clear that the arc of lending bends towards ever-decreasing interest rates, but how low can they go?
Elites. They’re all over the news these days. But who are they and what do we know about them? An excellent new study, Who Rules the World? A Portrait of the Global Leadership Class, takes a systematic approach to answer these questions. At its heart lies a new database, the Global Leadership Project (GLP), which covers 145 nation-states and 38,085 ‘leaders’, each of whom is given biographical information. In total, the database has approximately 1.1 million data points. Academics at several leading institutions, John Gerring, Erzen Oncel, the late Kevin Morrison, and Daniel Pemstein, then sliced and diced this data to arrive at a compelling picture of today’s leadership elite.
Who Are Counted As The Global Elite?
They look at the country’s top political leader, the political executives, cabinet ministers, executive staff, party leaders, assembly leaders, supreme court justices, and members of parliaments. They also include unelected leaders such as monarchs, religious leaders, military leaders, junta leaders, CEOs of important companies, and NGO leaders.
So What Does the Typical Member of the Elite Look Like?
Male (81% of the total), married (91%), and on average 55 years old. They speak roughly two languages, with over one third speaking English. They are normally university educated with almost half educated in the West. Their most common degrees were in Economics/Business/Management or Law. The majority had white collar jobs or political backgrounds before entering the leadership elite. Typically, they earn thirteen times more than national average.
Chart 1: Education of Political Elites
What About the Leader at the Top?
The top political leaders tended to be older (on average 61), and more of them were male (92%) and could speak English (59%). They tend to be educated abroad, rather than domestically. Also, they are likely to have studied Economics/Business/Management (35%) more than any other subject (next is law at 17%). They are as likely to have political backgrounds as white collar backgrounds.
Regional Variations
The variation of gender, marital status, and age was relatively small across regions. Marginally, Europe tended to be more balanced, and the Middle East and North Africa (MENA) were least balanced. The elite in the Americas and MENA tended to speak the least amount of languages. But the elite in MENA was most educated, while in Africa, they were the least – the variation was small though. The least white collar leaders were in Africa, while the most white collar leaders were in the Americas. Finally, the earnings of the elite in rich countries were only three times the national average while in poor countries it was seventeen. Africa stands out as the region with the highest earning elites – leaders there earn thirty-five times the national average.
Other Observations
After English, French, Spanish, and Arabic were the next most commonly spoken languages. More of the elite have occupational backgrounds in the education sector rather than media or military. The most common political experience of the elite is to work within political parties. Only 7% have no political experience.
Final Words
This new database and study is an important step to understanding the profile of the global elite. It highlights the dominance of men of a certain age often with an economics background. The real question is whether populist events of recent years, which the database doesn’t cover, have changed this picture or not. Time will tell.
For most people nowadays, their smartphone is within arm’s reach 24 hours a day. It’s in their pocket while they’re at work, it’s in their hand on the train ride home and it’s on their bedside table as they go to sleep. With this level of proximity and usage, many can’t quite shake the niggling feeling that they might be risking damage to themselves in the long run.
While conclusive longitudinal research on the effects of cell phone radiation is still hard to come by, for those looking to hedge their bets, Statista’s Martin Armstrong shows in the infographics below, the phones that emit the most (and least) radiation when held to the ear while calling.
The German Federal Office for Radiation Protection (Bundesamt für Strahlenschutz) has a comprehensive database of smartphones – new and old – and the level of radiation they emit.
Following the criteria set for this chart (see footnotes), the smartphones creating the lowest level of radiation are the Samsung Galaxy Note8 and the ZTE Axon Elite – with a specific absorption rate of 0.17 watts per kilogram.
In fact, alongside Nokia, Samsung handsets feature prominently, with eight of the smartphones on this ranking coming from the South Korean company.
This contrasts starkly with their major rival Apple. Two iPhones occupy a place in the list of phones which emit the most radiation, compared to none from Samsung, but, as Statista’s Martin Armstrong notes, the current smartphone creating the highest level of radiation is the Mi A1 from Chinese vendor Xiaomi.
Another Xiaomi phone is in second place – the Mi Max 3. In fact, Chinese companies are represented heavily in this list, accounting for 7 of the top 15 handsets. Premium Apple phones such as the iPhone 7 and the iPhone 8 are also here to be seen, though, as are the latest Pixel handsets from Google.
While there is no universal guideline for a ‘safe’ level of phone radiation, the German certification for environmental friendliness ‘Der Blaue Engel’ (Blue Angel) only certifies phones which have a specific absorption rate of less than 0.60 watts per kilogram.
All of the phones shown in the second chart above come in at more than double this benchmark.
It’s beginning to seem like an assault by the Zulu army of American politics – they just never stop coming.
We are referring to the Russophobic neocon Deep Staters who have trooped before Adam’s Schiff Show to pillory POTUS for daring to look into the Ukrainian stench that engulfs the Imperial City – a rank odor that is owing to their own arrogant meddling in the the internal affairs of that woebegone country.
This time it was Dr. Fiona Hill who sanctimoniously advised the House committee that there is nothing to see on the Ukraine front that involved any legitimate matter of state; it was just the Donald and his tinfoil hat chums jeopardizing the serious business of protecting the national security by injecting electioneering into relations with Ukraine.
She warned Republicans that legitimizing an unsubstantiated theory that Kyiv undertook a concerted campaign to interfere in the election – a claim the president pushed repeatedly for Ukraine to investigate – played into Russia’s hands.
“In the course of this investigation,” Dr. Hill testified before the House Intelligence Committee’s impeachment hearings, “I would ask that you please not promote politically driven falsehoods that so clearly advance Russian interests.”
Folks, we are getting just plain sick and tired of this drumbeat of lies, misdirection and smug condescension by Washington payrollers like Fiona Hill. No Ukrainian interference in the 2016 US election?
Exactly what hay wagon does she think we fell off from?
Or better still, ask Paul Manafort who will spend his golden years in the Big House owing to an August 2016 leak to the New York Times about an alleged “black book” which recorded payments he had received from his work as an advisor to the Ukrainian political party of former president Yanakovych. As we have seen, the latter had been removed from office by a Washington instigated coup in February 2014.
By its own admission, this story came from the Ukrainian government and the purpose was clear as a bell: Namely, to undermine the Trump presidential campaign and force Manafort out of his months-old role as campaign chairman – a role that had finally brought some professional management to the Donald’s helter-skelter campaign for the nation’s highest office.
In the event, this well-timed bombshell worked, and in short order Manafort resigned, leaving the disheveled Trump campaign in the lurch:
…… government investigators examining secret records have found Manafort’s name, as well as companies he sought business with, as they try to untangle a corrupt network they say was used to loot Ukrainian assets and influence elections during the administration of Mr. Manafort’s main client, former President Viktor F. Yanukovych.
Handwritten ledgers show $12.7 million in undisclosed cash payments designated for Mr. Manafort from Mr. Yanukovych’s pro-Russian political party from 2007 to 2012, according to Ukraine’s newly formed National Anti-Corruption Bureau. Investigators assert that the disbursements were part of an illegal off-the-books system whose recipients also included election officials.
In addition, criminal prosecutors are investigating a group of offshore shell companies….. Among the hundreds of murky transactions these companies engaged in was an $18 million deal to sell Ukrainian cable television assets to a partnership put together by Mr. Manafort and a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.
Mr. Manafort’s involvement with moneyed interests in Russia and Ukraine had previously come to light. But as American relationships there become a rising issue in the presidential campaign – from Mr. Trump’s favorable statements about Mr. Putin and his annexation of Crimea to the suspected Russian hacking of Democrats’ emails – an examination of Mr. Manafort’s activities offers new details of how he mixed politics and business out of public view and benefited from powerful interests now under scrutiny by the new government in Kiev.
The bolded lines in the NYT story above tell you exactly where this was coming from. The National Anti-Corruption Bureau had been set up by an outfit called “AntAC”, which was jointly funded by George Soros and the Obama State Department. And there can be little doubt that the Donald’s accurate view at the time – that Crimea’s reunification with Mother Russia after a 60 year hiatus which had been ordered by the former Soviet Union’s Presidium – was unwelcome in Kiev and among the Washington puppeteers who had put it in power.
For want of doubt that the Poroshenko government was in the tank for Hillary Clinton, the liberal rag called Politico spilled the beans a few months later. In a January 11, 2017 story it revealed that the Ukrainian government had pulled out all the stops attempting to help Clinton, whose protégés at the State Department had been the masterminds of the coup which put them in office. Thus, Politico concluded,
Donald Trump wasn’t the only presidential candidate whose campaign was boosted by officials of a former Soviet bloc country.
Ukrainian government officials tried to help Hillary Clinton and undermine Trump by publicly questioning his fitness for office. They also disseminated documents implicating a top Trump aide in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies research damaging information on Trump and his advisers, a Politico investigation found.
…President Petro Poroshenko’s administration, along with the Ukrainian Embassy in Washington, insists that Ukraine stayed neutral in the race…..
But Politico’s investigation found evidence of Ukrainian government involvement in the race that appears to strain diplomatic protocol dictating that governments refrain from engaging in one another’s elections.
While it’s not uncommon for outside operatives to serve as intermediaries between governments and reporters, one of the more damaging Russia-related stories for the Trump campaign – and certainly for Manafort – can be traced more directly to the Ukrainian government.
Documents released by an independent Ukrainian government agency – and publicized by a parliamentarian – appeared to show $12.7 million in cash payments that were earmarked for Manafort by the Russia-aligned party of the deposed former president, Yanukovych.
The New York Times, in the August story revealing the ledgers’ existence, reported that the payments earmarked for Manafort were “a focus” of an investigation by Ukrainian anti-corruption officials, while CNN reported days later that the FBI was pursuing an overlapping inquiry.
Yet Fiona Hill sat before a House committee and under oath insisted that all of the above was a Trumpian conspiracy theory, thereby reminding us that the neocon Russophobes are so unhinged that they are prepared to lie at the drop of a hat to keep their false narrative about the Russian Threat and Putin’s “invasion” of Ukraine alive.
Needless to say, Fiona Hill is among the worst of the neocon warmongers, and has made a specialty of demonizing Russia and propagating over and over flat out lies about what happened in Kiev during 2014 and after. Thus, in one recent attack she claimed,
Russia today poses a greater foreign policy and security challenge to the United States and its Western allies than at any time since the height of the Cold War. Its annexation of Crimea, war in Ukraine’s Donbas region, and military intervention in Syria have upended Western calculations from Eastern Europe to the Middle East. Russia’s intervention in Syria, in particular, is a stark reminder that Russia is a multi-regional power…..
There is not a single true assertion in that quotation, of course, but we cite it for a very particular reason. Shifty Schiff & his impeachment tribunal have brought in Hill – and Lt. Colonel Vindman, Ambassador Taylor, George Kent and Tim Morrison previously – in order to created an echo chamber.
That’s right. The Dems are parroting the neocon lies – whether they believe them or not – in order to propagate the impression that the Donald is undermining national security in his effort to take a different posture on Russia and Ukraine, and is actually bordering on treason.
Thus, Adam Schiff repeated the false neocon narrative virtually word for word at the opening of the public hearings:
“In 2014, Russia invaded a United States ally, Ukraine, to reverse that nation’s embrace of the West, and to fulfill Vladimir Putin’s desire to rebuild a Russian empire.”
That’s pure rubbish. It’s based on the Big Lie that the overwhelming vote of the Russian population of Crimea in March 2014 was done at the gun point of the Russian Army. And that event, in turn, is the lynch-pin of the hoary canard that Putin is seeking to rebuild the Soviet Empire.
So it is necessary to review the truth once again about how Russian Crimea had been temporarily appended to the Ukrainian SSR during Soviet times.
The allegedly “occupied” territory of Crimea, in fact, was actually purchased from the Ottomans by Catherine the Great in 1783, thereby satisfying the longstanding quest of the Russian Czars for a warm-water port. Over the ages Sevastopol then emerged as a great naval base at the strategic tip of the Crimean peninsula, where it became home to the mighty Black Sea Fleet of the Czars and then the Soviet Union, too.
For the next 171 years Crimea was an integral part of Russia (until 1954). That span exceeds the 170 years that have elapsed since California was annexed by a similar thrust of “Manifest Destiny” on this continent, thereby providing, incidentally, the United States Navy with its own warm-water port in San Diego.
While no foreign forces subsequently invaded the California coasts, it was most definitely not Ukrainian and Polish rifles, artillery and blood which famously annihilated The Charge Of The Light Brigade at the Crimean city of Balaclava in 1854; they were Russians defending the homeland from Turks, French and Brits.
And the portrait of the Russian “hero” hanging in Putin’s office is that of Czar Nicholas I – whose brutal 30-year reign brought the Russian Empire to its historical zenith. Yet despite his cruelty, Nicholas I is revered in Russian hagiography as the defender of Crimea, even as he lost the 1850s war to the Ottomans and Europeans.
At the end of the day, security of its historic port in Crimea is Russia’s Red Line, not Washington’s. Unlike today’s feather-headed Washington pols, even the enfeebled Franklin Roosevelt at least knew that he was in Soviet Russia when he made port in the Crimean city of Yalta in February 1945.
Maneuvering to cement his control of the Kremlin in the intrigue-ridden struggle for succession after Stalin’s death a few years later, Nikita Khrushchev allegedly spent 15 minutes reviewing his “gift” of Crimea to his subalterns in Kiev.
As it happened, therefore, Crimea became part of the Ukraine only by writ of one of the most vicious and reprehensible states in human history – the former Soviet Union:
On April 26, 1954. The decree of the Presidium of the USSR Supreme Soviet transferring the Crimea Oblast from the Russian SFSR to the Ukrainian SSR…..Taking into account the integral character of the economy, the territorial proximity and the close economic and cultural ties between the Crimea Province and the Ukrainian SSR….
That’s right. Washington’s hypocritical and tendentious accusations against Russia’s re-absorption of Crimea imply that the dead-hand of the Soviet presidium must be defended at all costs – as if the security of North Dakota depended upon it!
In fact, the brouhaha about “returning” Crimea is a naked case of the hegemonic arrogance that has overtaken Imperial Washington since the 1991 Soviet demise.
After all, during the long decades of the Cold War, the West did nothing to liberate the “captive nation” of Ukraine – with or without the Crimean appendage bestowed upon it in 1954. Nor did it draw any red lines in the mid-1990’s when a financially desperate Ukraine rented back Sevastopol and the strategic redoubts of the Crimea to an equally pauperized Russia.
In short, in the era before we got our Pacific port in 1848, and even during the 170-year interval since then, America’s national security has depended not one whit on the status of Russian-speaking Crimea. That the local population has now chosen fealty to the Grand Thief in Moscow over the ruffians and rabble who have seized Kiev amounts to a giant: So what!
The truth is, when it comes to Ukraine there really isn’t that much there, there. Its boundaries have been morphing for centuries among the quarreling tribes, peoples, potentates, Patriarchs and pretenders of a small region that is none of Washington’s damn business..
Still, it was this final aggressive drive of Washington and NATO into the internal affairs of Russia’s historic neighbor and vassal, Ukraine, that largely accounts for the demonization of Putin. Likewise, it is virtually the entire source of the false claim that Russia has aggressive, expansionist designs on the former Warsaw Pact states in the Baltics, Poland and beyond.
The latter is a nonsensical fabrication. In fact, it was the neocon meddlers from Washington who crushed Ukraine’s last semblance of civil governance when they enabled ultra-nationalists and crypto-Nazis to gain government positions after the February 2014 putsch.
As we indicated above, in one fell swoop that inexcusable stupidity reopened Ukraine’s blood-soaked modern history. The latter incepted with Stalin’s re-population of the eastern Donbas region with “reliable” Russian workers after his genocidal liquidation of the kulaks in the early 1930s.
It was subsequently exacerbated by the large-scale collaboration by Ukrainian nationalists in the west with the Nazi Wehrmacht as it laid waste to Poles, Jews, gypsies and other “undesirables” on its way to Stalingrad in 1942-43. Thereafter followed an equal and opposite spree of barbaric revenge as the victorious Red Army marched back through Ukraine on its way to Berlin.
So it may be fairly asked. What beltway lame brains did not chance to understand that Washington’s triggering of “regime change” in Kiev would reopen this entire bloody history of sectarian and political strife?
Moreover, once they had opened Pandora’s box, why was it so hard to see that an outright partition of Ukraine with autonomy for the Donbas and Crimea, or even accession to the Russian state from which these communities had originated, would have been a perfectly reasonable resolution?
Certainly that would have been far preferable to dragging all of Europe into the lunacy of the current anti-Putin sanctions and embroiling the Ukrainian factions in a suicidal civil war. The alleged Russian threat to Europe, therefore, was manufactured in Imperial Washington, not the Kremlin.
In fact, in 1989 and 1990, the George H. W. Bush administration assured Soviet leader Mikhail Gorbachev that if he accepted German unification, the West would not seek to exploit the situation through any eastward expansion – not even by “one inch,” as then-secretary of state James Baker assured Gorbachev. But Bill Clinton reneged on that commitment, moving to expand NATO on an eastward path that eventually led right up to the Russian border.
NATO, with just 16 members in 1990, now includes 29 European states, with all of the expansion countries lying east of Germany. As this was unfolding, Russian leaders issued stern warnings about the consequences if America and the West sought to include in NATO either Ukraine or Georgia. Both are considered as fundamental to Russian security.
True, many in western Ukraine have pushed for greater ties to the West and wanted their elected president, Viktor Yanukovych, to respond favorably to Western financial blandishments. But Yanukovych, tilting toward Russia, eschewed NATO membership for Ukraine, renewed a long-term lease for the Russian Black Sea Fleet in Sevastopol, and gave official status to the Russian language. These actions eased tensions between Ukraine and Russia, but they inflamed Ukraine’s internal politics. And when Yanukovych abandoned negotiations aimed at an association and free-trade agreement with the European Union in favor of greater economic ties to Russia, pro-Western Ukrainians, including far-right provocateurs, staged street protests that ultimately brought down Yanukovych’s government. Victoria Nuland gleefully egged on the protesters. The deposed president fled to Russia.
Nuland then set about determining who would be Ukraine’s next prime minister, namely Arseniy Yatsenyuk. “Yats is our guy,” she declared to U.S. ambassador to Ukraine Geoffrey Pyatt. When Pyatt warned that many EU countries were uncomfortable with a Ukrainian coup, she shot back, “Fuck the EU.” She then got her man Yats into the prime minister position, demonstrating the influence that enables US meddling in foreign countries.
That’s when Putin rushed back to Moscow from the Winter Olympic Games at Sochi to protect the more Russian-oriented areas of Ukraine (the so-called Donbass in the country’s east and Crimea in the south) from being swallowed up in this new drama. He orchestrated a plebiscite in Crimea, which revealed strong sentiment for reunification with Russia (hardly the “sham referendum” described by Taylor) and sent significant military support to Donbass Ukrainians who didn’t want to be pulled westward.
The West and America have always been, and must remain, wary of Russia. Its position in the center of Eurasia – the global “heartland,” in the view of the famous British geographic scholar Halford Mackinder – renders it always a potential threat. Its vulnerability to invasion stirs in Russian leaders an inevitable hunger for protective lands. Its national temperament seems to include a natural tendency towards authoritarianism. Any sound American foreign policy must keep these things in mind.
But in the increasingly tense relationship between the Atlantic Alliance and Russia, the Alliance has been the more aggressive player – aggressive when it pushed for NATO’s eastward expansion despite promises to the contrary from the highest levels of the US government; aggressive when it turned that policy into an even more provocative plan for the encirclement of Russia; aggressive when it dangled the prospect of NATO membership for Ukraine and Georgia; aggressive when it sought to lure Ukraine out of the Russian orbit with economic incentives; aggressive when it helped foster the street coup against a duly elected Ukrainian government; and aggressive in its continued refusal to appreciate or acknowledge Russia’s legitimate geopolitical interests in its own neighborhood.
George Kent and William B. Taylor Jr., in their testimony last week, personified this aggressive outlook, designed to squeeze Russia into a geopolitical corner and trample upon its regional interests in the name of Western universalism. If that outlook continues and leads to ever greater tensions with Russia, it can’t end well.
That is, what is being desperately defended on Capitol Hill is not the rule of law, national security or fidelity to the Constitution of the United States., but a giant Neocon Lie that is needed to keep the Empire in business, and the world moving ever closer to an utterly unnecessary Cold War 2.0 between nation’s each pointing enough nuclear warheads at the other to destroy the planet.
Uber Helicopter Rides To JFK Cost Less Than Its Car Rides At One Point
Ah, the wonders of city gridlock, and the gifts it showers upon us…
It turns out that Manhattan is so congested and impossible to drive through that, at one point in time, it actually cost less to take an Uber helicopter to JFK airport from downtown than it did to take a car, according to Bloomberg.
The helicopter ride, which takes about 8 minutes, cost $108.98 at one point, which is almost 33% less than the $163.11 charge a rider would have racked up taking an Uber Black and slightly higher than the $100.35 it cost to take an UberX on the same trip.
The pricing of its helicopter rides varies with demand, location and time of day. Still, it was an odd arbitrage given Uber’s new commitment to slashing rider discounts in order to try and achieve profitability.
The chopper rides usually cost between $200 and $225. The discount was called a temporary offer for “a small, random set of riders,” the company said.
The company declined to talk about how many total chopper rides it has given since it introduced the service this past summer. The company is collecting data from its NYC service, which runs Monday through Friday during afternoon rush hour.
Uber will use the data to try and determine whether or not to expand the service.
The company’s Uber Elevate program – a larger aerial ridesharing initiative – is still set to test flights in Dallas, Los Angeles and Melbourne next year. The service is set to become available in 2023.
Uber’s expansion into aerial highlights the company’s ambitions of growing, while at the same time targeting becoming a profitable company.
Chief Executive Officer Dara Khosrowshahi said in November that the company would only focus on businesses and markets where it could establish or defend a top leadership position, putting more focus on the company’s quest to stop burning cash.
From a big picture perspective, the largest rift in American politics is between those willing to admit reality and those clinging to a dishonest perception of a past that never actually existed. Ironically, those who most frequently use “post-truth” to describe our current era tend to be those with the most distorted view of what was really happening during the Clinton/Bush/Obama reign.
Despite massive amounts of evidence to the contrary, such people now enthusiastically whitewash the decades preceding Trump to turn it into a paragon of human liberty, justice and economic wonder. You don’t have to look deep to understand that resistance liberals are now actually conservatives, brimming with nostalgia for the days before significant numbers of people became wise to what’s been happening all along.
They want to forget about the bipartisan coverup of Saudi Arabia’s involvement in 9/11, all the wars based on lies, and the indisputable imperial crimes disclosed by Wikileaks, Snowden and others. They want to pretend Wall Street crooks weren’t bailed out and made even more powerful by the Bush/Obama tag team, despite ostensible ideological differences between the two. They want to forget Epstein Didn’t Kill Himself.
Lying to yourself about history is one of the most dangerous things you can do. If you can’t accept where we’ve been, and that Trump’s election is a symptom of decades of rot as opposed to year zero of a dangerous new world, you’ll never come to any useful conclusions. As such, the most meaningful fracture in American society today is between those who’ve accepted that we’ve been lied to for a very long time, and those who think everything was perfectly fine before Trump. There’s no real room for a productive discussion between such groups because one of them just wants to get rid of orange man, while the other is focused on what’s to come. One side actually believes a liberal world order existed in the recent past, while the other fundamentally recognizes this was mostly propaganda based on myth.
Irrespective of what you think of Bernie Sanders and his policies, you can at least appreciate the fact his supporters focus on policy and real issues. In contrast, resistance liberals just desperately scramble to put up whoever they think can take us back to a make-believe world of the recent past. This distinction is actually everything. It’s the difference between people who’ve at least rejected the status quo and those who want to rewind history and perform a do-over of the past forty years.
A meaningful understanding that unites populists across the ideological spectrum is the basic acceptance that the status quo is pernicious and unsalvageable, while the status quo-promoting opposition focuses on Trump the man while conveniently ignoring the worst of his policies because they’re essentially just a continuation of Bush/Clinton/Obama. It’s the most shortsighted and destructive response to Trump imaginable. It’s also why the Trump-era alliance of corporate, imperialist Democrats and rightwing Bush-era neoconservatives makes perfect sense, as twisted and deranged as it might seem at first. With some minor distinctions, these people share nostalgia for the same thing.
This sort of political environment is extremely unhealthy because it places an intentional and enormous pressure on everyone to choose between dedicating every fiber of your being to removing Trump at all costs or supporting him. This anti-intellectualism promotes an ends justifies the means attitude on all sides. In other words, it turns more and more people into rhinoceroses.
Eugène Ionesco’s masterpiece, Rhinoceros, is about a central European town where the citizens turn, one by one, into rhinoceroses. Once changed, they do what rhinoceroses do, which is rampage through the town, destroying everything in their path. People are a little puzzled at first, what with their fellow citizens just turning into rampaging rhinos out of the blue, but even that slight puzzlement fades quickly enough. Soon it’s just the New Normal. Soon it’s just the way things are … a good thing, even. Only one man resists the siren call of rhinocerosness, and that choice brings nothing but pain and existential doubt, as he is utterly … profoundly … alone.
A political environment where you’re pressured to choose between some ridiculous binary of “we must remove Trump at all costs” or go gung-ho MAGA, is a rhinoceros generating machine. The only thing that happens when you channel your inner rhinoceros to defeat rhinoceroses, is you get more rhinoceroses. And that’s exactly what’s happening.
The truth of the matter is the U.S. is an illiberal democracy in practice, despite various myths to the contrary.
An illiberal democracy, also called a partial democracy, low intensity democracy, empty democracy, hybrid regime or guided democracy, is a governing system in which although elections take place, citizens are cut off from knowledge about the activities of those who exercise real power because of the lack of civil liberties; thus it is not an “open society”. There are many countries “that are categorized as neither ‘free’ nor ‘not free’, but as ‘probably free’, falling somewhere between democratic and nondemocratic regimes”. This may be because a constitution limiting government powers exists, but those in power ignore its liberties, or because an adequate legal constitutional framework of liberties does not exist.
It’s not a new thing by any means, but it’s getting worse by the day. Though many of us remain in denial, the American response to various crises throughout the 21st century was completely illiberal. As devastating as they were, the attacks of September 11, 2001 did limited damage compared to the destruction caused by our insane response to them. Similarly, any direct damage caused by the election and policies of Donald Trump pales in comparison to the damage being done by the intelligence agency-led “resistance” to him.
“Liberal resistance” since 2016:
– Pussy hats
– Russiagate flop
– Let’s beg the tech giants to censor speech we don’t like.
– Hurray for permanent, unelected government. Such smarties!
We don’t have to be. Turning into a rhinoceros happens easily if you’re unaware of what’s happening and not grounded in principles, but ultimately it is a choice. The decision to discard ethics and embrace dishonesty in order to achieve political ends is always a choice. As such, the most daunting challenge we face now and in the chaotic years ahead is to become better as others become worse. A new world is undoubtably on the horizon, but we don’t yet know what sort of world it’ll be. It’s either going to be a major improvement, or it’ll go the other way, but one thing’s for certain — it can’t stay the way it is much longer.
If we embrace an ends justifies the means philosophy, it’s going to be game over for a generation. The moment you accept this tactic is the moment you stoop down to the level of your adversaries and become just like them. It then becomes a free-for-all for tyrants where everything is suddenly on the table and no deed is beyond the pale. It’s happened many times before and it can happen again. It’s what happens when everyone turns into rhinoceroses.
* * *
If you enjoyed this, I suggest you check out the following 2017 posts. It’s never been more important to stay conscious and maintain a strong ethical framework.
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I’m delighted that the third edition of Ames, Chafee, and Re on Remedies has gone to press, and it will be in print next month. My coauthor is Emily Sherwin. Although this is the third edition since Emily (with Ted Eisenberg and Joseph Re) revived the book and gave it its current name, the book has a much longer history–it goes back to materials on equity put together by James Barr Ames in 1904. If you’re interested in remedies, this book offers a different view than the leading (and excellent) remedies casebook by Doug Laycock and Rick Hasen. Part of the difference is pedagogic approach–our book has more of a private law focus, has more history, and relies less on notes and more on a judicious pairing of cases of cases from different contexts to teach a principle. Another part of the difference is in the approach to equity.
Our preface puts the point this way:
This book treats equity as a vital part of modern law. Although equity has been procedurally retired, it continues to influence judicial decisionmaking. In particular, the division between legal and equitable remedies has proved stubbornly persistent. Accordingly, this book devotes significant space to equitable doctrines. In this edition the presentation of equity is more systematic, including new chapters on accounting for profits and equitable compensation.
Before saying more about equity, let me give a quick overview of the structure of this edition. There are five parts. The first is an introduction to remedies and the purposes of remedies. The second is damages. The third is legal restitution, which in this edition is now given its own place and a more coherent structure that is organized around four paradigm cases of restitution: mistaken payments, unsolicited benefits, failed contracts, and interference with property. The fourth part is equity. The fifth part is a miscellany–a chapter on remedies against the government (with a focus on suits against government officers and on structural injunctions), and new chapters on statutory damages and declaratory judgments.
The presentation of equity is focused on remedies. This is, after all, a remedies casebook. If you want a guide to substantive equity, the best source is Meagher, Gummow, & Lehane, an outstanding Australian treatise–it’s what my colleague Paul Miller and I are using as the main text this semester for our equity seminar at Notre Dame. Nevertheless, even though it is a remedies casebook, the forthcoming edition of Ames, Chafee, and Re on Remedies is almost certainly the most systematic American presentation of equity in 60 years. There are ten chapters:
10. The History of Equity. This chapter starts with Maitland on equity’s development, sketches the American history, addresses the formative idea of equity acting in personam, and covers the current state of the fusion of law and equity in the United States. Among the new materials in this edition are Alexander Hamilton on equity (alas, it never made it into the musical) and a better teaching case on the Seventh Amendment right to a civil jury trial–then-Judge Breyer’s In re Evangelist opinion.
11. Equity’s Powers and Principles. This chapter introduces equity’s maxims and its enforcement apparatus (duty to obey, persons bound by a decree, contempt, receivers, various enforcement writs, and more). It also discusses the relationship of equity to territorial boundaries (including domestic and international anti-suit injunctions), the “equity will not” doctrines, and the relationship of equity to the Constitution–Article III, federalism, and the First Amendment. New materials in this edition include summaries of all the major maxims of equity from the latest edition of Meagher, Gummow, and Lehane (used with permission); two cases on the “equity will not” doctrines (one old, and one from 2017 in the California Supreme Court); Frothingham v. Mellon on equity and the Article III judicial power; and two cases on equity and the freedom of speech.
12. Injunctions. This chapter covers the core equitable remedy in contemporary American law, and it needed only some polishing and refining. The one new case is on the preliminary injunction, and there is also a more thorough discussion of the principles that preliminary injunctions are disfavored when they alter the status quo or require affirmative conduct.
13. Measuring Injunctive Relief. This is a short chapter–seven cases–on problems of specificity and scope for injunctions. There are no major changes in this edition.
14. Equitable Compensation. This completely new chapter introduces equitable compensation as a distinctive loss-based remedy in equity. It resembles damages at law, but with a number of differences (including no juries, no punishment, looser causation, offsets for expenses, and so on–you can read more in my Oxford Handbook chapter on Fiduciary Remedies). Four cases work through equitable compensation in tort, contract, and fiduciary settings, including the Supreme Court’s decision several years ago in Cigna Corp. v. Amara. The last part of the chapter considers whether equitable compensation (and equity more generally) can punish, with the old standby of Rothko and also–introduced for the first time, I think, in an American casebook–the leading Commonwealth decision of Harris v. Digital Pulse. This part of the chapter has taken on increased salience in light of the Supreme Court’s recent cert grant in Liu v. SEC.
15. Accounting for Profits. This chapter is also new, or perhaps more precisely it is set free to be itself instead of being mashed together with legal restitution. The first half of the chapter is on accounting by fiduciaries (a new case is the old classic of Keech v. Sandford); the second half is on extensions beyond fiduciaries to other conscious wrongdoers and to infringers of IP rights (including two new cases).
16. Constructive Trust and Other Proprietary Equitable Remedies. Here, too, separating out legal and equitable restitutionary remedies allows a more logical structure. The “other proprietary equitable remedies” discussed are equitable lien and subrogation. Some of the expository materials and notes are new, and there is one new case (Kent v. Klein).
17. Specific Performance of Contracts. This is a lengthy and in-depth chapter, and as with the injunction chapters it was already in great shape. No major changes.
18. Equitable Rescission, Reformation, and Cancellation. Here there was addition by subtraction, with accounting for profits and declaratory judgment moved out to have their own chapters. Some of the older materials focused on remedies that grew up in the interstices of equitable procedure–quia timet, bill of peace, interpleader. Although those are still helpful topics for any judge or scholar who wants a sound grasp of equity’s history, it is harder to justify them for a book about remedies today.
19. Equitable Defenses. In the previous edition, the chapter was called “Defenses” and included statutes of limitation and estoppel. Those are now cut, and the new chapter has a focused attention on equitable defenses, including excellent new cases on laches and unclean hands.
In short, if you are looking for a treatment of the law of remedies that is open and unabashed about how U.S. courts continue to distinguish law and equity, this book is for you. It is not a treatise. It is not the last word on equity. But if you’re intrigued and want to learn more about this old idea that is increasingly important in American law, this casebook is a place to begin.
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Bostock v. Clayton County was argued on October 11, 2019. This case considered whether Title VII prohibits discrimination on the basis of sexual orientation. Shortly after the case was argued, there was a flurry of writings. Advocates on both sides contended that textualism supported their position. And, in due time, interest in the case petered out. As usually happens, writers go on standby until a decision is announced at the end of June.
But that silence was interrupted. On November 19, National Review published an essay by Robbie George (Princeton). He explains that Justice Gorsuch’s opinion in Masterpiece Cakeshop cuts against Justice Kagan’s textualist argument. “But Gorsuch’s rigorous logical analysis,” George writes, “proved that Kagan’s description stacked the deck.”
Three days later, the Wall Street Journal published an unsigned editorial that sounded a similar theme. The subhead explained, “Kagan tries to lure Gorsuch and Roberts off the Scalia method.” The editorial continues:
Justice Kavanaugh, Justice Gorsuch’s generational peer, will also have a say in defining what textualism means in the years ahead. If Justice Gorsuch or the Chief Justice follow Justice Kagan in defining textualism down, we hope Justice Kavanaugh and the others will explain their errors.
When I saw both of these editorials, in short succession, I had immediate flashbacks to May 2012. In the span of 48 hours, the National Review and George Will wrote that Chief Justice Roberts should not buckle under the pressure and uphold the ACA. I discussed these incidents on pages 227-232 of Unprecedented. Here is an excerpt:
On May 24, the editors of the National Review continued the theme. Supporters of the ACA were “threatening dire consequences for the reputation of the Supreme Court and especially for Chief Justice John Roberts if he joins a majority of the justices to strike down the individual mandate.” The editorial concluded, “We suspect that Chief Justice Roberts wants his legacy to consist of promoting fidelity to the rule of law, not a few months of liberal approbation followed by further blackmail attempts. He should call a strike, and give his would-be advisers the brush- off they deserve.”
Finally, on May 25, 2012, under the headline “Liberals Put the Squeeze to Justice Roberts” in his syndicated column, George Will claimed that progressives were “waging an embarrassingly obvious campaign, hoping [Roberts] will buckle beneath the pressure of their disapproval and declare Obamacare constitutional. . . . They hope to secure it by causing Roberts to worry about his reputation and that of his institution.” These “clumsy attempts to bend the chief justice,” Will wrote, “are apt to reveal his spine of steel.” [Jeff] Rosen speculated to me that Will’s intent was to “switch Roberts back.” One Supreme Court reporter told me that the motivation of Will’s article was “obvious”— to “shore up their side,” or at least “raise questions about the other side.”
The message from the right was loud and clear: Chief Justice Roberts should not be intimidated by Obama, Leahy, Rosen, and others.
In Unprecedented, I observed that there were leaks from the Court during the deliberations. These writings were offered in response to the leaks. I wrote:
However, conservatives were not reacting merely to Rosen’s article. Our unpredictable and unprecedented journey took another sharp turn to the right. There were leaks from within the Court that directly influenced this response. Though Crawford’s report was published on July 1, 2012, I’ve been told by those who heard the leaks that this information was known as early as May. Several in the Supreme Court press corps confirmed to me that they heard rumors about the chief justice’s shifting position, but “nothing was firm enough for anyone to report on.” It was speculative, but some on the right decided it wasn’t worth risking it and sprang into action to shift the chief back. With the outcome of the most important case in decades on the line, something had to be done.
Soon after the message trickled from the Court that Roberts’s vote was “in flux,” a right-wing bat signal went out, with a clear message: we need to tell the chief justice to grow a backbone. George Will and others answered that call. Conservatives, who had been noticeably quiet about the outcome of the case after the conference, suddenly perked up in the home stretch, precisely when the war was being waged within the Court over the final vote. A Supreme Court reporter told me that in May “there seemed to be some sense in the conservative press that maybe this wasn’t going to work out. It wasn’t Kennedy to worry about. It was Roberts.
Has there been a leak in Bostick? Are conservatives trying to shore up Justice Gorsuch during the home stretch? The two pieces, published in short succession, with a similar message, remind me of the campaign waged in 2012.
But within 72 hours, between November 19 and November 22, National Review and The Wall Street Journal published similar criticisms of Kagan, claiming that her textualism is counterfeit. The near-simultaneous attacks may be a coincidence, or they may mean that conservatives have learned something about what’s happening in the Court’s chambers—something that worries them. …
It is a remarkable coincidence that National Review and the Journal published these two critiques in quick succession. Perhaps some conservative justice indiscreetly complained to a friend that Kagan is winning. Let us hope.
I have no inside knowledge about the deliberations. These sorts of leaks, however titillating, are extremely harmful to the Court. They need to stop.
Disclosure: The Jewish Coalition for Religion Liberty, on whose board I serve, filed an amicus brief in this case.
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