The Keystone pipeline as a Vietnam crisis

A letter to John Kerry on the Keystone pipeline and civil disorder..

Tomorrow (22 April) is the closing date for public submissions to the State Department on the Keystone pipeline approval. I just put in my pennyworth - it is an international issue, else why has it landed on Kerry’s desk? Here it is, raising an issue that’s not been properly aired.

Dear Secretary Kerry:
I invite you to consider that approval of the Keystone pipeline would be divisive and lead to months or years of turmoil. There is no doubt that its construction would be the target of massive civil disobedience and non-violent protest. I personally would think such action justified, but regardless of the merits it cannot be ignored as a factor in your and the President’s decision.

You are both, by temperament and conviction, conciliators. Your approval of the Keystone pipeline would ignite a bitter and long-drawn-out conflict that would be chalked up to your legacies and undermine your historic reputations. Lives might be lost; certainly some protesters would be injured and a good number serve time in jail. It is also a burden on policemen to ask them to use force to protect a private interest many of them will think insufficient.

It is sadly possible that the intense anger aroused, and the broad non-violent protest already announced, would lead fringe groups to engage in violent sabotage. A pipeline is very vulnerable to this. I’m sure that the overwhelming majority of opponents of the pipeline would join me in rejecting and condemning such tactics. Still, the possibility is a real cost of your decision.

Taking these severe risks into account is not “giving in to blackmail”. If the pipeline were truly necessary to US national security, the risks should be accepted. But no case has been made that it is. The pipeline would merely allow the commercial development of a dirty Canadian oil resource to proceed, and US oil prices to stay slightly lower than they would otherwise be, at enormous environmental cost. Any benefits it offers are largely private; the harms are public.

When you weigh all the costs carefully and soberly, the Keystone pipeline is simply not worth hazarding the credibility of your office, the President, and the US Government.

Yours sincerely”

RIP Aaron Swartz

An enormous system of legal and commercial machinery (i) makes it possible for you to read this, or to read anything, or to listen to music or see a show, and (ii) makes it worthwhile for anyone to provide it for you.  This machinery was created by some of the most brilliant minds in the law, government, and business, but they made it for a world that no longer exists.

When industrial machinery breaks, it produces less, or worse, stuff, and sometimes it maims or kills workers.  The machinery of intellectual property worked more or less well until about thirty years ago, despite wrenches like mindless and venal copyright extension to make Disney heirs even richer being thrown into it.  That machinery has not, however, survived being tasked to process digital content, which has broken teeth off its gears, garbled its control system, and clogged its conveyor network.   Stuff is falling out of the system to be swept up as trash, lost in transit, delivered broken or with parts missing, sent to the wrong recipients, and it’s piling up in warehouses where no-one can use it.  Half-finished goods sit, sometimes forever, waiting for essential parts.  The waste of the most precious stuff in the world is bad enough, and the prices my students are paying for textbooks (and for my services) are bad enough, but today we learned that the malfunctioning machinery has killed a worker, and not just any worker but a genius engineer, and philanthropist in the best sense of the word, who had only begun to design priceless parts of it.

Aaron Swartz’s death isn’t just  overreach or judgment error by a Boston judge and prosecutor, though if either of them ever again  dines with anyone whose cultural competence is higher than a Big Mac it will be an outrage.  It was an industrial accident caused by ongoing, feckless, reckless failure to maintain the intellectual property machinery, a core piece of social infrastructure being run into the ground for greed (no, not for efficient price signals) by the ignorant, the frightened, and the incompetent.  The reasoning of the captains of this industry, as their sales fall, bookstores close, newspapers shrink and close, and our best musicians wait on tables,  goes as follows: “It’s our property, shut up!”  It is a failure of the law to accommodate reality.

Aaron isn’t the only casualty of this system, either: people are dying all over the world for want of drugs trapped in the patent system.  Maybe we should think of him as channeling Mario Savio: “There’s a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part! ….you’ve got to put your bodies upon the gears and upon the wheels…upon the levers, upon all the apparatus, and …make it stop!”

Joe Hill would say, “Don’t mourn for Aaron, organize!”  We need Aaron’s Law, a reform of intellectual property law that recognizes the world the way it is, more than we need anything except climate stabilization; indeed, if we don’t get Aaron’s Law we will not be able to do the politics (or the science) that could save the planet, or whatever your favorite piece of collective work may be. If you read, write, sing, listen, or think, you will be talking about this with your other friends who do those things and watch for a chance to get engaged.  I’m looking, too, and when I find some, I’ll post them here. [minor edits 9:16PM PST 12/I/13]

Learnt climate helplessness: an Xmas puzzle

A survey on American attitudes to climate change consistently gives self-contradictory results.

A holiday post-prandial puzzle for you.

Another chart of the attitudes of Americans to climate change, from a long-term Yale/GMU project - it’s nice to know that GMU has some reality-based faculty, unconnected to the Koch payroll at the Mercatus Center. As usual, apologies for the poor-resolution screengrab. Better version in the source pdf, page 10.

This is more than odd. In the latest survey, only 32% of respondents who accept climate change thought that the carbon-saving actions they’d taken or were considering would “reduce my contribution to global warming a lot/some” (call this question A). Then (question B) 60% agreed that “if most people in the USA did these same actions, it would reduce global warming a lot/some”. Question C was the same, extended to “most people in modern industrialized countries “: 70% agreed.

On the face of it, this combination of positions is contradictory; a logical mistake, of the same order as found in Kahneman and Tversky’s famous Laura experiment. Continue reading “Learnt climate helplessness: an Xmas puzzle”

One Book, Three Challenges

Good Counsel: Meeting the Legal Needs of Nonprofits
by Lesley Rosenthal
(John Wiley & Sons 2012)

As I embarked on writing Good Counsel: Meeting the Legal Needs of Nonprofits, well-meaning and concerned folks cited at least three reasons why no one had written such a book before, and (implicitly) why I shouldn’t try: it’s too dangerous, too hard, too scary.

The “too-dangerous” crowd, personified by some of the most successful leaders of nonprofit turnarounds on several continents, worried that legal information in non-lawyers’ hands would result in the unlicensed practice of law by a bunch of irresponsible, budget-strapped do-it-yourself nonprofiteers. Who knows what kinds of mission mischief non-lawyers would make with their newfound knowledge – the legal equivalent of sewing your own sutures! Fortunately my own boss, the President of Lincoln Center, and several of my other mentors before him, including a former Bar Association president and a federal judge, helped forge my conviction that the law belongs to the people. They encouraged my desire to put it into plain English for all to know.

The “too-hard” folks, also well meaning, recognized the enormous variety of laws that commonly arise in nonprofits and thought it impossible to provide a general overview in one volume. I know what they meant: the tangle of specialized state and federal laws that make our sector one of the most highly regulated in the whole economy, such as state nonprofit corporations laws, Section 501(c) of the internal revenue code, IRS rules, regulations and expectations surrounding the tax exemption and good governance, multi-level filing and disclosure requirements, pension, endowment and investment laws, lobbying restrictions, and a web of 50 different states’ fundraising laws. Many fine books have been written on each of these subjects, but rare is the legal resource that touches upon them all. Then, the skeptics continued, there are also general business laws that apply to these organizations – contract law, labor and employment laws, intellectual property laws, consumer regulatory laws, real estate laws, building codes and more. And business laws apply to the nonprofit sector in weird ways not necessarily intended by lawmakers, forcing volunteer-driven organizations, for example, to think long and hard about how to structure their activities to comply with minimum wage and hours laws. Pile on top of all of those layers the additional specialized laws that apply to the wide world of nonprofits, such as FDA regs for blood banks, student privacy laws for higher ed, permitting and accreditation for hospitals and mental health facilities and so on, and the whole enterprise of writing a book about the legal context of nonprofits threatens to die under its own weight.

The “too-scary” people are the most sympathetic people of all. They are the good-hearted lawyers who are already serving as counsel, as board members – or as both simultaneously – to nonprofit organizations. Their values may line up perfectly with the mission of the organization they serve – an elder care lawyer, for example, serving on the board of a community-based senior center, a real estate lawyer counseling a neighborhood development organization, a sports and entertainment lawyer doing board duty on her town’s local Little League or scout troop – but their legal expertise may be far afield of the legal issues facing the organization. It scares them to no end when a legal question arises in the boardroom and all eyes turn toward them. UBIT – what’s that? Conflict of interest policy pertaining to co-investment interests? Ugh. Section 501(h) election for lobbying activities? Isn’t this meeting almost over? They could have just begged off answering these questions – that’s not my area of law, you see, you wouldn’t ask a dermatologist about your chest pains, would you? – if only Good Counsel didn’t exist to connect the dots between the law they do know and the law they need to know to better serve their favorite charity.

Good Counsel is intended – charitably – to defy all three objections. In 300 pages it places the law of nonprofits in the hands of board members that oversee and executives that actually run the organizations – CEOs, CFOs, program managers and staff, fundraisers, personnel directors, communications professionals, operations and facilities managers and more. Does it answer every question? No. Does it sensitize non-lawyers to common legal issues in the highly regulated context in which they operate? I sure hope so.

Lawyers who make their living practicing in this field needn’t worry that this one volume will displace them; to the contrary, placed in the right hands, the book will generate more sophisticated questions and ultimately more and better client relationships. Corporate and transactional lawyers who have not yet found an outlet for their volunteer yearnings – because it seems that most pro bono projects are more aligned with the skills of litigators, not business lawyers – may feel empowered to see how readily they can translate what they know to the legal needs of prospective nonprofit corporate clients.

Law school deans concerned about the criticism being leveled at the entire enterprise of legal education may find a path forward in Good Counsel. With case studies, work plans and focus questions following each chapter, the book lays out a path for law students supervised by clinical professors to engage with a particular nonprofit organization and assess its legal needs – growing the students’ legal skills and stretching their capacities as counselors in ways that will serve them well even if they do end up in private practice after graduation, as most do.

And the legal profession, which despite the canon of lawyer jokes is as public-spirited as any I know, may find that Good Counsel can be used to foster and strengthen more pro bono relationships between lawyers and organizations. There is a great deal of goodwill for nonprofit organizations among public-spirited lawyers. I know, because I have been both a purveyor and voracious consumer of pro bono legal services, that there is more time and willingness to serve among the legal profession than has been fully tapped to date. A pilot program of the New York State Bar Association and the New York Attorney General’s Office Charities Bureau has adopted Good Counsel as a training resource for that very purpose: to help launch up to 50 new pro bono relationships between lawyers and charities in the initial pilot year of a program called Charity Corps: Lawyers Helping Nonprofits.

Far too many of our nation’s one million public charities lack regular access to counsel. At the same time, good-hearted lawyers are floundering in their efforts to help their favorite nonprofits, or are afraid to try because they think the field is so distant from subject matter they know. Law students graduate in debt up to their ears but lacking the practical skills they need to begin servicing clients after law school. Good Counsel is a playbook, intended for all three audiences.

And while I admit it was a little hard, scary and dangerous, ultimately there were far more supporters than skeptics for this project. I invite readers – lawyers, nonprofit leaders, and academics – to take a look and let me know if it works.

Lesley Rosenthal

Schedule of upcoming Good Counsel events in NYC, LA, Detroit, Miami, Philadelphia, Boston, DC and Buffalo, NY available on or at the book’s website,

Available for purchase at

Review copies for academics, media, upon request to

What should (but won’t) be the last word on the charitable tax deduction

The most powerful argument in this LA Times op-ed piece opposing the charitable tax deduction is that it’s a poor trade-off.  Retired foundation executive Jack Shakely points out that charities have permitted themselves to be shorn of their ability to influence policy and politics in return for a mess of pottage.  Of course the restrictions on charitable participation in the public arena aren’t as draconian as nonprofit executives (and especially Boards) think they are—but the point is that nonprofits understand themselves to be constrained, and rather than bothering with the details remain quiescent politically.

As strong a proponent as I am of the pursuit of individual gifts, in the real world virtually every social service agency needs seriously more government money if it’s going to make any dent in the social problems it faces.  The more social service agencies feel free to advocate for this particular budget bill or that particular provision in a piece of legislation—both prohibited by the current tax-code provisions—the more likely it is that those bills and provisions will pass, which would serve way more of the agencies’ clients than the most blue-sky estimates of their potential for growth in individual giving.

And for someone with foundation cred to say this!  All hail Jack Shakely.

h/t The Nonprofit Quarterly Newswire.

The dog that caught the car

OWS is losing public support, [correction: polling numbers ungarbled 16/XI] to  33 for-45 opposed  from 35F-36O a month ago.  The project is suffering from a variety of problems mostly related to the lack of focus and leadership that appeared to its adherents as a virtue when it began.  This doesn’t mean it shouldn’t have happened, but it might be time for advocates of more income and wealth equality, and fixing the economy so ordinary people can make a living in it, to move to new tactics. Napoleon lacked a plan for the occupation of Moscow and found, as Bush did in Iraq, that a successful invasion is to a wedding as the occupation is to a marriage.

A core problem is the mismatch of tactics to realistic goals.  An occupation or a hunger strike (in contrast to a self-immolation) is understood to be a process that will go on until demands are met.  This means the demands have to be within the capacity of someone or something, but (for example), the demonstrators at Berkeley are targeting the university regents and administration for not reducing tuition, as though they had a significant sum of money with which to cut student fees.  There is some small change around the edges, maybe from excessive administration salaries, but not enough to matter: the problem is that UC money from the legislature is being throttled back by Republicans who are down to one idea and one fake fact about the world.  Similarly, the time scale of public attention to outdoor camping demonstrations and the real national process of tax law changes, not to mention financial sector regulation, do not match.  Serious advocates of big change need to be planning their next move, as the occupations are becoming old news.  We know from psychology and the dog-bites-man rule, also from information theory, that the strength of a stimulus is proportional to the logarithm of the change in its level.  The change, not the level.

One reason to confront authority in cases like this is to provoke a response (that’s a classic example of a change in stimulus) that demonstrates moral deficiency or viciousness in the authority, so public opinion will change its mind.  Cops clearing the campsites, and brutalizing transparently harmless and peacable students and occupiers, may be such a response, and the bad press he’s been getting at Cal has certainly changed the tone of our chancellor’s attempts at leadership lately (and, so far, the behavior of the police).  But moving tents back after that PR victory looks to me like a real failure of imagination; even if its successful, it will just add a piece of static scenery to the campus daily theater.   Occupy, good symbolism (but better tactics with sharper demands and goals).  Get kicked out forcibly, good symbolism.  Keep occupying against “concessions” no-one can really grant, not so good.

As to my students, I wish they had asked some of us faculty fossils who made a lot of these mistakes back in the day, and learned from them, for help and advice: this wheel does not need to be reinvented (of course it needs to be adapted and updated). [Update 16/XI : I’m not sure I correctly interpret the tone of some of the comments, but to clarify: my generation failed at a lot of the reforms we tried to achieve, partly because we made mistakes I identify below.  I didn’t at all mean we did everything right and the current generation isn’t up to our standard, I meant we learned some bitter lessons from failure that might be appropriated this time.]  Some tips I’ve picked up chatting with colleagues and organizers, no charge: Continue reading “The dog that caught the car”

Occupy Wall Street: hopeless leaders, perfect catalysts.

Let’s put it plainly. The demands of Occupy Wall Street are both valid and popular. The people occupying Wall Street are total flakes. The second fact in no way discredits the first. The people in Zuccotti Park aren’t the best people to carry forth their message—but they don’t need to be. They’ve already catalyzed others to do the job.

I’ve been reading a lot about Occupy Wall Street.  Last Saturday, I visited Zuccotti Park and took a look for myself. I think it’s time we recognized a clear but complex set of truths.

The demands of Occupy Wall Street are both valid and popular; Democrats and Progressives of all tendencies should endorse them. The people actually occupying Wall Street are total flakes. The second fact in no way discredits the first. The people in Zuccotti Park aren’t the best people to carry forth their message—but they don’t need to be. They’ve already catalyzed others to do the job. Like Lieutenant Dunbar in Dances with Wolves, their impotent flamboyance can inspire others to fight the battle that they started but won’t take part in.

Dances with Wolves : Suicide Attempt or see more Kevin Costner Videos

 Taking these theses one at a time: Continue reading “Occupy Wall Street: hopeless leaders, perfect catalysts.”

On Wisconsin!

On Tuesday I’ll drive from Chicago up to Sauk City, Wisconsin, to do voter protection, that is, pollwatching while holding a law degree.  Wisconsin historically has offered exceptionally inclusive voter access, including in-precinct same-day registration.  But one of the many delightful consequences of the Republican takeover of the state is a photo-i.d. law which isn’t supposed to take effect til the first of the year but is unclear enough to make for messy election days-precisely what the sponsors intended.  So I’ll go up there and do what I can to make sure everybody can vote, and hope that the selfsame “everybody” will throw the anti-collective-bargaining rascals out.

(Last weekend at the Bughouse Square debates-the Newberry Library’s annual effort to restore the fine art of soapbox speaking-the central topic was public-sector collective bargaining.   The young man speaking in opposition wore a Solidarity t-shirt as he argued that “public employee collective bargaining inserts needless conflict between citizen and citizen.”  Does he realize that Solidarity was a public-sector union?)

I’m going to Wisconsin because it’s a political situation about which I can do something-contra the whole debt-ceiling mess, about which I can do absolutely nothing.  I disagree with my colleagues on the left who think the President got backed into a corner on the debt ceiling because he’s weak.  He got backed into a corner because he’s actually trying to govern and the people he’s dealing with are not.

When the President was awarded the Nobel Peace Prize, skeptics wondered what he could possibly have done to deserve it.  It seemed pretty straightforward to me: his election meant the restoration of constitutional government in the world’s only superpower.  What could be more essential to peace?

Unfortunately, the Constitution had been damaged more than most of us realized, and merely electing a President didn’t guarantee its restoration-not when anti-government idealogues control the legislature and the judiciary.   All the finger-pointing on the left ignores the extent to which the right is engaging in the deliberate destruction of our governmental system.

The idea that people who hate government are controlling ours is actually more frightening than the notion that the President somehow betrayed us by averting a default.  The scary thing is, he did as much as he could.

Why Obama can’t play every role at once

The Democratic Strategist has just posted a strategy memo by me on why Obama can’t be an activist, an organizer, a legislator and a president all at once.  It applies some of my ideas from Ruling Passions to what’s going on now.  My fans might find it of interest; my critics, great fun to insult.  Or the other way around—who knows.

How To Eliminate Female Genital Cutting

If the New York Times editoral board really wants to get rid of female genital cutting, then it needs to understand the actual work going on in the Global South.

Today the New York Times editorial board endorses the Girls Protection Act which would criminalize anyone taking a girl out of the country to have the female genital cutting (“FGC”) procedure.  There is nothing really wrong with the Act, or with some of the other measures the Times endorses, such as education campaigns in those immigrant communities where the procedure is still endorsed, hot lines for pediaticians, and safe harbors at international air terminals.

But that really misses the point.

Three weeks ago, I was lucky enough to participate in a delegation of rabbinical students to Senegal, sponsored by the American Jewish World Service.  We went there to see the work of Tostan, a pathbreaking community development NGO that has done far more to eliminate FGC than any of the paths that the Times talks about or that Congress has addressed.  Why?  Because Tostan operates bottom-up, not top down.

AJWS was one of the first big backers of Tostan, because it saw that the Tostan method was effective.  Molly Melching, Tostan’s founder and executive director, spoke to us about her organization’s approach.  Instead of telling rural communities what they should do, Tostan asks them what they want, empowers them through education on the issues that they care about, and as this process takes hold, the communities often come around to rejecting FGC.  Tostan’s motto is “community-led development,” and my experience was that they live that model.  (Incidentally, that’s why Tostan insists on calling it “cutting” instead of “mutilation”.  People generally react badly when you tell them that they are mutilating their children; it’s about efficacy, not political correctness).

So instead of marching into a village and telling people to end the practice — which they won’t, because they want their daughters to be able to get married, and traditionally without FGC they will not be seen as eligible — Tostan listened to villagers, heard that they were interested in improving health care, and worked with them in developing their own capacity.  Only then did villagers begin to talk about a variety of health problems that unsurprisingly were connected to FGC.

The results are impressive: when Tostan started their work, estimates were that 5,000 villages in Senegal practiced FGC; today, 4,300 of them have publicly declared that they are abanding the practice.  That’s particularly important, because it means that the thousands of parents who didn’t like the practice but went along with it because they thought there was no choice now know that there is one).

I’m particularly proud of AJWS’ role in this.  Instead of developing its own vision of development and implementing it itself, it looks for local partners known for their integrity and efficacy and supports them.  Just as important, it is flexible with its grantees.  Melching explained to us that AJWS had originally funded Tostan to do early children education work, but that Tostant found that the villagers really wanted to do health care work.  No problem, said AJWS: respond to the needs on the ground.

Don’t believe the story?  Take a look at Nick Kristof and Sheryl WuDunn’s recent book Half the Sky: Turning Oppression Into Opportunity for Women Worldwide.  There’s a whole chapter on Tostan, with a considerable amount devoted to its partnership with AJWS.

Oh yes — and while you’re doing that, make sure to give a big contribution to AJWS here.  Reward good behavior.  It’s really worth it.