The GOP and Corporatism



Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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29 Responses

  1. Avatar Sam M says:

    The rape case is bizarre, not only in its claims, but in the “sides” people are taking. My initial reaction in such a case is, well, if I were working at a sub shop and someone raped or asaulted me there, why WOULD I sue the sub shop? Seems like I should have the assaultee arrested and try to have that person punished. Because it’s not related to the work.

    But in this case, KBR’s whole case rests on the notion that the case IS related to the work. That somehow the work is important here. The assault was not something that happened outside of work. It was… part of the job? That would seem to make them more culpable. Not less.

    And the victim is doing something similar. She is arguing that this is something beyond or outside work in an imprtant way. Which would seem to… leave KBR out if it, right?

    Either way, something really bad happened there. Weird.Report

    • Avatar Scott in reply to Sam M says:

      Jones signed an arbitration agreement so it seems as if the whole thing should stop there. Let’s not forget that KBR has the deep pockets and those with deep pockets are the ones usually sued.Report

    • Avatar greginak in reply to Sam M says:

      What seems weird is KBR attempting to prevent the rape victim from getting justice and people defending that.

      but just to keep perspective ACORN.Report

      • Avatar Scott in reply to greginak says:

        KBR is fighting her attempt to break the agreement she signed agreeing to arbitration, not keep her from “justice.”Report

        • Avatar Will in reply to Scott says:

          Read the article. Her arbitration agreement did not cover sexual abuse.Report

          • Avatar Scott in reply to Will says:

            I did read the article. The question is whether her assault was related to her employment. Of course, KBR would like the arbitration agreement to apply so as to shield them from liability. Generally, juries don’t like big companies with deep pockets.Report

      • Avatar Sam M in reply to greginak says:

        You don’t find it at all strange that the person suing the employer is forced to say that the assault was not related to the employment, or that the employer defending itself is taking the position that it WAS related to the employment?

        I can’t see how this can chake out in court. And I can’t see why each side isn’t using the other’s argument. Let’s say it does go to court. Seems that KBR could say, “Hey, why sue us? The assault was not realted to the employment.” To bolster its case, it could quote the woman saying… the assault was not related to the employment. And the various legal briefs her lawyers have filed arguing that the assault was not related to the employment.

        Of course, she could do the same.Report

        • Avatar Scott in reply to Sam M says:

          Sam M:

          Speaking for myself only, I am an attorney, so no I don’t find the arguments odd.Report

        • Avatar Mark Thompson in reply to Sam M says:

          I think she’s on relatively firm ground in arguing that the rape was outside the scope of her employment agreement but that KBR nonetheless owed her a duty of one kind or another.

          As I explain below, though, I think it difficult to argue that the rape was within the scope of her employment but that KBR owed her no duty.Report

  2. Avatar Jaybird says:

    I wonder how much of this is vestigial.

    Decades ago, when one saw someone from the opposition attacking corporations and/or the military (and especially military corporations!) one had serious reasons to wonder if the opposition was acting as, at least!, a useful idiot for the USSR (“Commie Dems”, if I recall the term correctly).

    Well, the USSR has been proven a failure and its apologists… well, they haven’t been discredited, exactly. Duranty still has his Pulitzer. They’ve slowed down, I guess. Stalinism isn’t Marxism, after all, the right people weren’t trying to implement the policies, plus there were oh-so-many wreckers.

    Where was I? Oh yes. The vestigial response of the Republicans.

    They’re still fighting not even the last war or the one before that (or the one before that?) but the one before that.

    They’re still fighting Stalin’s useful idiots… whether or not any actually show up.Report

    • Avatar greginak in reply to Jaybird says:

      Perhaps your confusion is that many people used to like to scream STALISIMCOMMUNISM as a way of shutting down debated they don’t like want to engage in. Smearing another person is a time tested way of ignoring ideas and issues a person doesn’t want to hear. After all if the stupid factory workers don’t like the unsafe conditions then shouting AHHHHH COMMIES is a much cheaper way of dealing with the situation.Report

      • Avatar Jaybird in reply to greginak says:

        Which, of course, ignores the lessons of Solzhenitsyn.Report

      • Avatar Kyle in reply to greginak says:

        If I understand Jaybird correctly, he’s saying that back in the day people blindly blamed corporations/private enterprise and so defenses against that have not become habit. So the current pro-business GOP’s defenses are leftover from a time when they had some reactionary validity. Now, their just rote because nobody bothered to see if the criticisms today are ideological or you know grounded in reality.

        I don’t know this way or that but it seems like a fairly solid supposition. If that’s the case, I agree with Will, the GOP is going to have to deal with that tendency before their opposition to Obama turns into a corporate apologia – at least as viewed by independents/Reagan Democrats.Report

        • Avatar Jaybird in reply to Kyle says:

          Yes, exactly.

          I wasn’t offering a defense as much as an explanation that made sense to me.Report

        • Avatar Kyle in reply to Kyle says:

          err “defenses against that – have now become habit”

          “Now, they’re just rote.”Report

        • Avatar greginak in reply to Kyle says:

          Why yes people have blamed corps unfairly. People have blamed unions unfairly. People have blamed teddy bears, unicorns and ice cream unfairly.

          My contention that people used to scream communism as a way of bashing unions or people who just wanted some basic safety regs seems true. You might have even noticed a few people screaming “socialism, communism” nowadays. Well that might be a vestigial tendency dating back decades, but it doesn’t make it any less an example of shit smearing.Report

          • Avatar Kyle in reply to greginak says:

            No one is talking about shit smearing other than you, so it hardly seems germane, unless you’re using it as a somewhat vulgar form of tu quoque, in which case it still isn’t germane but makes sense.

            Jay was explaining where it might come from, I thought you misunderstood him and clarified, then connected Jay’s explanation to Will’s prediction.

            I don’t see why an explanation of something requires a normative judgment or some sort of he said/she said balancing act ala CNN.Report

            • Avatar greginak in reply to Kyle says:

              Yeah my bad. Jay offered an explanation of the R response by noting that for many years R’s blamed commies for things and they just haven’t learned to stop. I noted that much of the blaming of commies were attempts to delegitimize opposition and that is still done today. Certainly people actually believe every gov action they dislike is somehow communism but that doesn’t mean it actually is. So some of this vestigial response seems like a tendency to shout insults and smears at opponents.Report

    • Avatar Bob Cheeks in reply to Jaybird says:

      Ah…the good old days.
      “Useful Idiots,” now they run the gummint!Report

    • Avatar Rufus F. in reply to Jaybird says:

      It’s an interesting question. I often wonder how much of Reagan Republicanism doesn’t make perfect sense in about 1978, and less now. You look at the late 70s and there are hostile authoritarian or totalitarian regimes all over Africa, South America, Eastern Europe, and Asia. I think there were something like 80 of them at one point. Now, I’d be hard-pressed to think of ten, and it’s hard to compare the threat posed to the US by Soviet Bloc to, say, Burma. As a result, the Cold War military mentality: do everything we possibly can to protect our people from a hostile world: doesn’t really make as much sense. With the war on terror, I often thought we were using Ian Fleming tactics to fight Dostoevsky characters. It felt like trying to re-stage the Cold War in a totally inappropriate context.

      In terms of culture, it’s the same thing- in the late 70s, cities like New York are crumbling, the US divorce rate is reaching a level unprecedented in human history, you have some really bad drugs appearing, there’s suddenly porn and punk and some really ugly political radicalism… I always tell people, if you want to understand the Reagan Revolution, go rent the George C. Scott movie “Hardcore”. People had good reason to believe the culture was collapsing. Now… the divorce rate is down, the abortion rate is down, the crime rate is down, at least a few cities have been revived, and the gay rights movement is aiming for domesticity! I don’t know if there’s not something very retro about Reagan Republicanism (as opposed to conservatism). Maybe it’s a matter of translating the good ideas to a new era, or maybe it’s a matter of switching to other good ideas.Report

  3. Avatar JohnR says:

    “..I predict that this highly-touted Republican renaissance will prove fleeting.”

    It may well be, but not, I think, for the reasons you assume. People generally still pay far less attention to actions than to words, and the Republican operation is still supported by great masses of focused words. That alone will very likely restore them to rule (they are, after all, still effectively in power) in the next few elections, but only until they succeed yet again in demonstrating that Republican rule brings down the government and the Constitution. Of course, after one or two more of these Cheneyite administrations, it may not be possible to remove the Republicans from office by Constitutional means.Report

  4. I’d like to shed some light on some things without getting into the obvious moral issues here that so correctly justify the outrage over this case.

    First, it seems to me that KBR’s position on the arbitration clause is wrong, although under the circumstances, it’s not a frivolous position either. The big problem I see with what they’re trying to say is that it would render the phrase “related to” utterly meaningless and would require ignoring the examples given in the contract as to what constitutes something “related to.” In essence, they seem to be taking the position that arbitration is appropriate for literally anything that occured during her time in Iraq, and that the phrase “related to” thus contemplates that during that time she is on the clock for the company 24/7 and that literally anything that happened to her over there would be considered “related to” her employment. That’s a tough argument to swallow.

    Second, though, I want to address the claim made in the Lithwick piece (and in more depth in one of the Mother Jones posts to which it links) that arbitration would necessarily be biased in favor of the employer because of the fact that the employer pays for arbitration. One of the articles linked to in the Lithwick piece makes clear that the arbitration would be with the AAA. As someone who has handled a few arbitrations before both the AAA and other organizations, let me say…..bullshit. First of all, I can assure you that a lot of employers are less than happy to have to pay for arbitration costs, which can be surprisingly expensive even in relatively simple cases. In employment arbitration, the AAA actually mandates that employers pay all arbitration fees no matter how frivolous the claim. Employers cannot contract around this requirement. I have my share of problems with arbitration, but I have not found the AAA, at least, to be a particularly friendly environment for employers. Much is often made about the fact that employers have a very high success rate before the AAA, but this ignores that the requirement that costs be borne by the employer encourages the filing of claims that otherwise might not be filed. Moreover, where there are meritorious claims, they are far more likely to be settled before an arbitration hearing and thus would not appear in any statistics about success rates. Due to the nature of employment arbitration, I would also expect (though I’m not certain) that you’re less likely to see dispositive motions filed even in a relatively frivolous case. The economics of it just don’t make sense since the employer is solely responsible for paying for the arbitrator’s time and since the arbitrator is also the fact-finder (ie, there’s no jury).

    Third, it seems to me that KBR made a big tactical mistake in fighting for arbitration here, which Sam M alludes to above. In claiming that the rape was related to her employment, they are effectively saying that they are responsible for what happened to Ms. Jones, and specifically that it occured on their watch. I strongly suspect that they will now be at least partially estopped from arguing that they had no duty to protect Ms. Jones or provide a safe environment for her. Moreover, this case has received so much publicity since their argument was first rejected that most, if not all, of the potentially embarassing evidence about KBR’s activities in the case has already gotten out into the public, enough so that Congress has taken action against them that may severely limit their ability to obtain future government contracts. Moreover, the appeals have kept the case in the spotlight far longer than necessary. Beyond that, having effectively conceded their liability, the only defense KBR will have left when the case goes back to the trial court will be to claim that there was no rape at all (hence the abhorrent “blame the victim” claims). Given the evidence that’s out there already, this will kill them even more in the court of public opinion, and I’m not sure how exactly they plan to convince a jury of that position. Had KBR instead conceded jurisdiction, they’d have had a reasonable (though IMHO, still losing) argument that the rape was not only outside the scope of her employment, but also outside of their control such that KBR owed her no relevant duty.Report