The TPP: Toward Absolutist Capitalism

By Lambert Strether of Corrente.

There are many excellent arguments against the Trans-Pacific Partnership (TPP), two of which — local zoning over-rides, and loss of national sovereignty — I’ll briefly review as stepping stones to the main topic of the post: Absolutist Capitalism, for which I make two claims:

1) The TPP implies a form of absolute rule, a tyranny as James Madison would have understood the term, and

2) The TPP enshrines capitalization as a principle of jurisprudence.

Zoning over-rides and lost of national sovereignty may seem controversial to the political class, but these two last points may seem controversial even to NC readers. However, I hope to show both points follow easily from the arguments with which we are already familiar. Both flow from the Investor-State Dispute Settlement (ISDS) mechanism, of which I will now give two examples.

TPP’s ISDS and Local Zoning

I’m starting with local zoning because I think it’s an issue where “strange bedfellows” on left and right can work together (and so letter writing campaigns and visits to Congressional offices can be organized accordingly). I think it will be very hard to find find a constituency for a foreign corporation determining local land use, and easy to find constituencies against it.

Ben Ross wrote in Naked Capitalism:

Homeowners’ power to influence development—what I call “suburban land tenure” in my book Dead End—is an entitlement that most people in the United States take for granted. But it is just the sort of local decision-making the TPP seeks to curb.

Trade treaties aim for decision-making that is stable, predictable, and rational. US land use regulation, on the other hand, bends to meet the often capricious desires of the neighbors. Local officials turn to hard-to-pin-down concepts like “compatibility” and “historic significance” to justify their responsiveness to constituents.

Whatever one thinks of this arrangement, its linguistic evasions are unlikely to satisfy panels of trade lawyers meeting thousands of miles away, under rules that don’t even guarantee the local government the right to speak.

Consider this hypothetical case, which is also utterly routine: A foreign landowner proposes a new city building. Neighbors petition for a “historic” designation for the house now standing on the property, and the preservation board approves, blocking new construction. Meanwhile, there are no petitions or designations for nearby houses similar in age and architecture. Is the landowner entitled to compensation?

Or let’s say the master plan for an area near a Maryland Metro station calls for 15-story buildings. The zoning allows such tall buildings only if the planning board approves the design; otherwise property owners are limited to three stories. A foreign landowner applies to build a 15-floor building, but neighbors protest against the height of the structures and the planning board cuts the size to nine floors. Will the landowner get the value of the square feet he wasn’t allowed to build?

The landlord might the “compensation” for blocked construction, or “get the value” of the square feet, because an ISDS court would award them for “lost profits” (of which more in a moment).

TPP’s ISDS and State Sovereignty

Even though sovereignty, as an issue, seems absurdly large put beside zoning, I choose it because it too is an issue where the grassroots on left and right can unite. After all, whether you are a big government liberal who admires FDR, or a small government conservative who admires Coolidge, you don’t want the government of your country to be under the sway of an unelected, trans-national entity like Agenda 21 New World Order the ISDS putative courts.[1] Again from Naked Capitalism, here’s a description of ISDS:

[T]he investment chapter for the TPP was leaked, and the excellent Public Citizen[2] published it (link to the PDF). Their summary in relevant part describes the investor-state dispute settlement (ISDS) provisions:

These provisions are so extreme that many people unfamiliar with them tend to dismiss description of them or their implications…

Procedural rights that are not available to domestic investors to sue governments outside of national court systems, unconstrained by the rights and obligations of countries’ constitutions, laws and domestic court procedures (Section B). There is simply no reason for foreign investors to pursue claims against a nation outside of that nation’s judicial system, unless it is in an attempt to obtain greater rights than those provided under national law. Moreover, many of the TPP partners have strong domestic legal systems . For example, TPP partners New Zealand, Australia and Singapore are all ranked by the World Bank as performing at least as well as the United States with regard to control of corruption and adherence to rule of law. Yet in a manner that would enrage right and left alike, the private “investor-state” enforcement system included in the leaked TPP text would empower foreign investors and corporations to skirt domestic courts and laws and sue governments in foreign tribunals. There, they can demand cash compensation from domestic treasuries over domestic policies that they claim undermine their new investor rights and expected future profits. This establishes an alarming two-track system of justice that privileges foreign corporations in myriad ways relative to governments or domestic businesses. It also exposes signatory countries to vast liabilities, as foreign firms use foreign tribunals to raid public treasuries.

(Check the post for the actual text of the Invetment Chapter, as opposed to this summary.) Closer to (my) home, suppose a locality manages to block the East-West Corridor with a zoning regulation, or some farmers band together to block it under laws that protect wetlands, or the Penobscot Nation manages to block it from crossing the river on fishing rights grounds. And suppose Irving, the massive but privately held Canadian Energy firm that would almost certainly be an investor in the Corridor, sues any one of those small entities, or the State, under ISDS for “lost profits”? Even if we could afford to, how could we ever get a day in court? It’s hard enough to get standing, even in a country where we have the vote. Under ISDS, we’d have neither standing nor vote. Citizens of the United States would have acted entirely under the law of our own sovereign state, and the United States could end up on the hook for a billion or two, to a foreign corporation, Irving.[1] Irving could even demand to be paid in Canadian dollars!

Toward Absolutist Capitalism

Let’s look more deeply into the ISDS as an institution. First, we’ll look at the “Absolutist” nature of the TPP. Then we’ll look at “Capitalism” under the TPP.

The TPP Implies a Form of Absolute Rule, a Tyranny as James Madison Would Have Understood the Term. First, the ISDS tribunals, putatively courts, are completely unaccountable. Public Citizen:

TPP ISDS tribunals would be staffed by highly paid corporate lawyers unaccountable to any electorate or system of legal precedent.

Second, the ISDS tribunals are riddled with conflicts of interest and open invitations to corruption.  Public Citizen:

Many of [the corporate lawyers] involved rotate between acting as “judges” and as advocates for the investors launching cases against governments. Such dual roles would be deemed unethical in most legal systems. The leaked text does not include new conflict of interest rules, despite growing concern about the bias inherent in the ISDS system.

Third, there is no appeal from the judgements of these putative courts. Public Citizen:

There is no internal or external mechanism to appeal the tribunal members’ decisions on the merits, and claims of procedural errors would be decided by another tribunal of corporate lawyers.

Fourth and finally, the discretion of the ISDS tribunals is so great that they can write the rules, as well as interpret them. Public Citizen:

There are no new safeguards that limit ISDS tribunals’ discretion to create ever-expanding interpretations of governments’ obligations to foreign investors and order compensation on that basis.The leaked text reveals the same “safeguard” terms that have been included in U.S. pacts since the 2005 Central America Free Trade Agreement (CAFTA). CAFTA tribunals have simply ignored the “safeguard” provisions that the leaked text replicates for the TPP, and have continued to rule against governments based on concocted obligations to which governments never agreed.

In  the first three points, the ISDS tribunals are acting as putative courts, albeit conflicted, potentially corrupt, and anti-democratic and unaccountable courts. However, in the fourth point, the tribunals are, functionally, legislatures. Here is what Madison had to say about mixing judicial and legislative power. Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. … Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.

So, what Madison warned of is exactly what ISDS does: The judge is the legislator, leading to “arbitary control.” And arbritary control is absolutism, just as surely as it was in the age of the divine right of kings.[2] And for bonus points, the judges and the legislators are conflicted, open to corruption, and accountable neither to the voters nor to any system of precedent.[3]

The TPP Enshrines Capitalization as a Principle of Jurisprudence . At this point one may ask, what do we mean by “Capitalism”? Answers differ (!), but for the purposes of this post, I’ll use the definition from Capital as Power (hat tip alert reader Sibiriak), by Jonathan Nitzan and Shimshon Bichler, which I’m reading with great interest. Page 153 and following:

The comprehensive reach, complexity and uniformity of the price system have made capitalism the most ordered society ever. … Now, price is merely the unit with which capitalism is ordered. The actual pattern of order – namely, the way in which prices are structured and restructured relative to one another – is governed by capitalization. Capitalization is the algorithm that generates and organizes prices. What exactly is capitalization? We have mentioned the term several times in the book, and it is now time to examine it more closely. Most generally, capitalization represents the present value of a future stream of earnings: it tells us how much a capitalist would be prepared to pay now to receive a flow of money later.

By the 1950s, capitalization was finally established as the heart of the capitalist nomos, engraved on both sides of the balance sheet. On the asset side, net present value became the practice of choice in capital budgeting to allocate corporate resources. Meanwhile, on the liabilities side, the invention of portfolio selection theory by Harry Markowitz (1952) and of the capital asset pricing model (CAPM) by William Sharpe (1964) and John Lintner (1965) bureaucratized the concept of risk and in so doing helped formalize the calculus of financial investment….

And, so, finally the floodgates were open. Nowadays, every expected income stream is a fair candidate for capitalization. And since income streams are generated by social entities, processes, organizations and institutions, we end up with the ‘capitalization of every thing’. Capitalists routinely discount human life, including its genetic code and social habits; they discount organized institutions from education and entertainment to religion and the law; they discount voluntary social networks; they discount urban violence, civil war and international conflict; they even discount the environmental future of humanity. Nothing seems to escape the piercing eye of capitalization: if it generates earning expectations it must have a price, and the algorithm that gives future earnings a price is capitalization.

Of course, government — at least hitherto — has re-ordered prices, income steams, claims on future income streams, and capitalization generally since forever; one might even say that’s the purpose of government, its raison d’etre, at least in a capitalist society.[4] However, TPP’s jurisprudential innovation is to reframe such re-ordering as “expropriation,” and to set up the ISDS to compensate the capitalists for it. Naked Capitalism again, with images of the text of TPP’s “Investor Clause”:


Note that the expectation of profit is one of the characteristics of an investment. And what better judge of those expectations could there be than the investor?


Can “expropriation” include state actions that damage an investors expectation of profit? You betcha! Here’s how that “direct or indirect” wording gets teased out:


Get a load of those loopholes! “Intangible property rights” and “indirect expropriation” are to be determined on a “case-by-case, fact-based inquiry” as to whether “distinct” (sez who) and “reasonable” (sez who) “expectations” (sea who) were “interfered with.” But don’t worry, little governments! Only in “rare circumstances” will your “legitimate” (sez who) “public welfare objectives” be considered expropriations.

So, if you were a corporate lawyer, sitting in judgement on a TPP tribunal, totting up the damages some hapless government had wreaked against a corporation by, oh, providing its citizens with single payer health care or preventing an oil company from poisoning their groundwater through “excessive regulation” — or halting development to protect a historic site under local zoning ordinances, or halting the East-West Corridor to protect the Penobscot — what would you consider “distinct, reasonable, investment-backed expectations”? I’d guess it would be the Net Present Value (capitalization) calculations done by the wounded corporation itself, eh? Like on an Excel spreadsheet. What could be more credible? Or more just?

In other words, TPP elevates capitalization — the expectation of profit — as a principle to the level of, say, the Bill of Rights, or the Declaration of the Rights of Man. And then, government, when it provides concrete material benefits to its citizens, must “compensate” capitalists whenever their calculated, immaterial expectations — capitalization — have been “expropriated.” What a racket! TPP is the biggest enclosure in the history of the world!


“Arbitrary control” — absolutism — in service of capital as a global change in the constitutional order, and all done in secret. What could go wrong?


[1] Elizabeth Warren:

This isn’t a partisan issue. Conservatives who believe in U.S. sovereignty should be outraged that ISDS would shift power from American courts, whose authority is derived from our Constitution, to unaccountable international tribunals. Libertarians should be offended that ISDS effectively would offer a free taxpayer subsidy to countries with weak legal systems. And progressives should oppose ISDS because it would allow big multinationals to weaken labor and environmental rules.

[2] To be fair, neither ISDS nor TPP has formal executive power; it joins only the legislative to the judicial power; ISDS decisions would have to be executed by the member states, or (and why not?) the corporations themselves.

[3] Madison indeed argues that the judiciary is the weakest of the three branches of government. Federalist 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. … It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

However, I’m not sure that Madison had in mind a putative judiciary made up of lawyers representing powerful corporate interests, powerful enough to have their own powers of the purse, and even of the sword.

[4] Here’s a fun example: Could Pearson, the test publisher, sue the School Districts in New York where parents recently opted-out of legally required high-stakes testing, if they lost any profits, or expected profits? How about the state of New York?

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. grumpy

    I believe that the worst thing about this whole obamantion is that it makes profit making a right. No longer is it a result of an investment and some risk, it is now a right, to be claimed when any local ordinance, or sovereign law gets in the worries you will get your profit you will be made whole. It is nothing more than disgustingly pathetic..

    1. Lambert Strether Post author

      I should have made that point. (I had a harder time than usual cutting through the b.s. on this one.)

      Entrepreneurs used to be all about risk. Now it isn’t. Any losses where the entrepreneur makes a bad political judgment get socialized. That’s insane to begin with, and the possibilities for gaming and fraud seem limitless.

  2. Paul Greenwood

    You forget TTIP to bind Europe into the American Global Empire (AGE) which is rather like Opium Trading in 19th Century China to create total dependence on global MNC like East India Company. The Boston Tea Party was about local merchants destroying the cheaper surplus supplies from The East India Company MNC and protecting their local business………..the Chinese had to take the opium the EIC exported and watch the country annexed in Opium Wars that’s how Britain acquired Hong Kong

    1. different clue

      It isn’t “America’s” empire. It is the Global Overclass’s private class-based global empire. It is designed to do the same thing to America as it is designed to do to Europe and the Pacific Rim countries.

  3. andyb

    True Capitalism is a system wherein a “free” market dictates interest rates which, in return, dictate capital flows. The TPP is not capitalism; it is pure fascism. True capitalism died in 1913 with the founding of the FED and the illegal legislation that gave us the IRS.

    1. diptherio

      I get the feeling that “true capitalism” is, much like the “true Scotsman,” something that exists only in the mind, and is different depending on whose mind it’s in. What we have now is “true capitalism,” as it is the result of the capitalists winning control of social decision-making. My reading of history has lead me to the conclusion that “true capitalism” has involved everything from enclosure of common lands to the enslavement of entire peoples to the extermination of others. I’d prefer we work towards a truly humane system, rather than waste our time trying to create “true capitalism.”

      1. Cassiodorus

        Right. “True capitalism” is the propaganda vessel of capitalists who wish to justify their capitalism from capitalism which doesn’t profit them.

      2. Steven

        I can see how “true capitalism” is supposed to (and from time to time actually does) work. But I agree that trying to (re?) create it is a dangerous waste of time. With apologies to its hundreds of millions of victims over the last several centuries and a provincial focus on here in the US, I’ll go so far as to say capitalism DID work to at least create the potential for a Great Society. Where things went south was the failure to take that last step.

        In the bloodless, amoral values-free tradition of his profession (economics), Yanis Varoufakis identifies the need for a “global surplus recycling mechanism” (GSRM) allowing capitalists in any given country to take the money made for them by the ‘labouring cattle’ in their respective countries and move it beyond that country’s borders in search of higher returns than could be achieved in domestic markets increasingly filled with contented customers.

        This GSRM is the essence of the international banker’s ‘cosmopolitanism’, his / her ‘altruism’. The alternative at this stage in history, unfortunately, appears to a ‘national surplus recycling mechanism’ (NSRM) in which the surpluses racked up by a given nation’s capitalists are turned over to their respective national governments so psychopathic politicians can pursue their quest for ever more power.

        In an era of industrial scale death and destruction, NSRMs don’t work very well. The nations of ‘Old Europe’ demonstrated that pretty well in the last century. They also bought some time for capitalism here in the good old USA. Whatever the potential for turning ‘labouring cattle’ into a genuinely productive ‘leisure class’ (think a literate population at least somewhat versed in the science and technology that sustains them) the powers that be here in the US chose instead to sell Old Europe the means with which to destroy each other thus clearing the board for a great game of global hegemony with one player – the US of A.

        The GSRM the US put in place following WWII has gone south, a failure caused in equal parts by the excessive ambitions of the US political class and the money hunger of financial elites in the US and around the world. Rather than put the finishing touches on Great Societies in the countries that furnished their wealth, they chose to send their money beyond national borders in the form of with bonds or bombs and bullets – and not just the wealth expropriated from their ‘labouring cattle’ (hoping for a better life for their posterity in exchange for their current deprivation but that wealth times whatever the current reserve ratio (i.e. leverage) the “irrational exuberance” of their respective bankers and financial engineers would permit.

        I think that is why the fate of Greece interests us so much. ‘There but for reserve currency status go we.’ NC readers are more than capable of finishing this story. (Sorry to run on so long.)

      3. Lambert Strether Post author

        Reread the long quote from Nitzan and Bichler Capital as Power; I think that’s a good definition. Capitalism is a political economy where capitalization (today, determined by Net Present Value calcuation) is the dominant power relation. And that’s what TPP enshrines. This is hugely dangerous! It’s the mother of all doubling downs!

        1. diptherio

          That is a pretty good definition.

          Capitalism: the triumph of net present value over all other values.

        2. hemeantwell

          The basic point is sound enough, but I don’t think it’s particularly new. Take Michael Perelman’s book, Railroading Economics, which focuses on how the consolidation of the US railway system in the late 1800s was carried out by Morgan in order to reduce destructive competition that threw Net Present Value into question. TPP involves an extension of the same principle into a supranational system. If you want to play around with it, you could say that it’s akin to Skynet, the point where the national incubation of capitalism bursts the bonds of nationalism and overwhelms national sovereignty. That’s also straight Marx, in the sense we’re just talking about another set of Chinese walls getting knocked down.

    2. Praedor

      Ugh. There has never been a time where there was “true capitalism”, that is, unregulated/uncontrolled except by itself. Governments and other actors have ALWAYS regulated it, controlled it, reigned it in, shaped it for public goods. In fact, that is precisely what a government SHOULD do. Nothing in capitalism should be allowed except that it serves a public good, a general good to the society. Anything that primarily serves the interests of a scattered few private individuals should be banned, particularly if it does any harm to the public, society, or real harm to the environment (and the species within it).

      1. jrs

        But has there ever been a government that entirely reined it in and wasn’t in some sense serving the capitalists? If so I don’t think the U.S. and it’s history is the place to look for it.

      2. jrs

        “Nothing in capitalism should be allowed except that it serves a public good, a general good to the society.”

        triple bottom line or you have no chance to do business. What’s the chance our capitalists governments would ever agree to that?

        1. Jess

          And so who decides what is a public good, a general good to society? Is a pro sporting event as entertainment a public good? How about a movie? TV show? Ballet? Opera?

          1. stephen

            “so who decides what is a public good” – the public should decide. And how should they decide? Via democratic institutions. The problem is that democracy is disappearing.

      3. Larry

        “Nothing in capitalism should be allowed except that it serves a public good, a general good to the society.”

        Not to be antagonistic Praedor but the same could be said for government and religion. The fly in the ointment is always human greed which free marketers euphemistically refer to as self-interests

    3. Joe Firestone (LetsGetitDone)

      I hate to tell you, but the IRS was the consequence of a constitutional amendment authorizing an income tax. As far as I can tell the amendment process involved was completely legitimate. You may hate the income tax and the legislation establishing it. But after the amendment passed, the legislation establishing it was perfectly legal and still is.

  4. grayslady

    I called my three representatives last week, telling each that I considered anyone who approved fast track or the underlying treaty to be a traitor to the nation. I backed up my comment with examples such as you have provided in your article–just to make sure that they didn’t think my use of the word “traitor” was overkill. Still, I feel like the mailman in the gyrocopter. Unless we have an ethical congress, we can’t have a democracy. The D.C. crowd is simply Wall Street on the Beltway–completely amoral. I don’t know what else I, as an individual, can do. My age and other factors preclude me from running for office, and I don’t have the kind of money to influence politicians away from the Dark Side.

    1. Desertmer

      I agree Grayslady. Thirty years of calling and letter writing , attending forums, reading and keeping up with politics and economics( I even have a Political Science degree!) and I have finally faced the fact that I have had ZERO effect on anyone or anything – except maybe my spouse and two children. The TTP seems to about the worst culmination of policy gone awry in my lifetime short of our destabilizations/ subversions of other countries’ governments since WWII. I don’t have money or a position of influence. Nor the personality or physical stamina to run for public office.
      My conclusion, with our choices of another Clinton or another Bush, is that I am done. Done. No longer will I be casting a ballot, working for the lesser of two evils from local to national elections, no more time spent on trying to influence the direction of policy. As far as I am concerned I have cried ‘uncle’. I shall heed the advice of sadder but wiser Candide and ‘tend my garden’. Because in the end that’s the only thing of importance we really have to leave the world…. Please no’you can’t give up or they will win’ replies. I am an intelligent woman who has given this tremendous thought.

      1. Jim

        “My conclusion, with our choices of another Clinton or another Bush, is that I am done. Done…I shall heed the advice of sadder but wiser Candide and “tend my garden” Because in the end that’s the only thing of importance we really have to leave the world…”

        It would be so great if you could elaborate in more detail about what, for you, are the particular ingredients, within your garden that are of primary importance to leave the world.

        My bet is that within such conceptions and concerns is a viable foundation for a new politics/culture.

        It is highly unlikely that such a politics will emerge from critiques of TTP. To enter into the logic of multinational corporate lawyers and their State enforces is to have already conceded to their world.

      2. Lambert Strether Post author

        It takes thirty years. The ancien regime was known, by its elite, to be hosed from the 1740s onward. A lot of smart people tried to fix it, and it wasn’t fixable. And ultimately, the peasants burned all the feudal land records, and that was the end of feudalism in France. “You lose until you win” is, unfortunately, true….

      3. Lambert Strether Post author

        Adding, I have noticed that when I’m waiting for a bus, I have a very bad tendency to give up and leave the bus stop one or two minutes before the bus arrives. This tendency is so pronounced that I’ve trained myself to always look back when I leave the stop! Just saying.

        That said, “person must not do what person cannot do” (Marge Piercy). I would never tell anybody not to garden, but if you think of gardening as an escape from political economy… Good luck with that ;-) But do let us know how it comes along!

      4. jrs

        The young will see, as they always do, their elders giving up as giving up, and they will have the energy to fight another day, as they always have. Ok it’s possible most of the young may be too busy staring at their iphones, or too destroyed by ‘no child left behind’ brainwashing, or narrow concern about their own personal economic situation. But that’s never all of them. Some will turn to activism.

    2. Lambert Strether Post author

      Thank you for making the call. The personal call has a lot more impact than click-based campaigns. And just because you can’t see a result doens’t mean the effort wasn’t worth making.

    3. different clue

      One can hope that some officeholders are more invested in the ego-gratification of holding office than they are invested in the material benefit of selling a pro Fast Track vote now for millions of dollars later. Perhaps those officeholders can be reached and swayed.

      I wonder if it would pay to simply say to Democratic officeholders that if Fast Track passes, one will never vote for another Fed level Democratic officeseeker ever again. One wonders if one should tell ambitious state-level Democratic ladder-climbers the same thing, to hold their future tomorrow hostage to the fate of Fast Track today. Perhaps that would turn them into a “don’t do this to me” lobby against the Fast Track Traitor Democrats in House and Senate.

  5. JTMcPhee

    Calling an ISDS opinion that gifts a corporate person money (and do the tribunals also get to order injunctive relief too, speaking of sovereignty?) for “anticipated profits lost,” calling that money “compensation” surrenders the argument at the start. That is not “the c word.” That is an EXACTION, an EXTRACTION, an EXTORTION, a TAKING OF SOVEREIGNTY AND FORCEFEEDING OF EXTERNALITIES WITHOUT COMPENSATION. Presumably the tribunal accounting will not allow counterclaims, or discount them, for all the externalities that would reasonably be anticipated.

    It would not, NOT, be “compensation,” in any commonly understood sense, even what’s spelled out in legal dictionaries and treatises — only in the Libertarian Redefinitional Crazy World. I don’t see Randians or MisesHayekians standing up against what is clearly a development most of them would applaud. Until they were face to face with the corporate monster SLAPPing them down as they dared to claim a right not to have a pig farm, tannery or tracking facility in their back or front yards…

    And a curse on Obama and his neoliberal gang for even carrying this bulls it as far as it has gone.

    Gee, I wonder what Wonderwoman Hillary will do, not say, on this issue.

    And again, what would the enforcement mechanisms be? Guys in black with headsman’s axes to extract money from any locale that just said ” A fig for your ruling”? Diminishing returns, on the road to the endgame. But like with recent marine disasters, flipped ferries and gutted cruise ships, the owners are not on board and the captain and crew are the first ones into the lifeboats…

    1. Matt

      A curse and a pox on both Obama, the neoliberals, and ALL the republicans in Congress who each and every one have supported the TPP to the dismay of the both the far left and the far right.

    2. jrs

      “And again, what would the enforcement mechanisms be? Guys in black with headsman’s axes to extract money from any locale that just said ” A fig for your ruling”?”

      It strikes me that it’s in some sense self-reinforcing. A few localities being sued and localities know they can be sued and lose. Growing protests (oh let’s be optimistic and imagine that), not to poison the water supply let’s say. But the local governments know that if the protestors were even given even an inch much less their full demands, they might get sued. Enter the police state, stop those protests before they start. The local governments don’t even have to want to be oppressive, it’s just that schools need funding, a few meager programs to help the poor need funding, if the city or state constantly let it’s funds be drained in lawsuits, this good can’t be served now can it?

    3. Mel

      “And again, what would the enforcement mechanisms be? ”

      Pretty much like international sanctions, I would think. Asset seizure. Transfers from bank accounts. State and municipal public works departments would have a lot of plant and equipment to lock down. Literally legal because the national TPP/TPIP signator will guarantee that the judgements of the ISDS tribunals will be honoured.
      How can a state or municipality survive without without the Public Works equipment? Hmmm. Why does the word “Leasing” suddenly spring into my mind? There has to be some profit there. If there isn’t, there’s always the ISDS.

      1. Mel

        Per Madison’s statement, “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”, I think Madison got it right. The ISDS judges will just be two or three guys in suits, they’re not going to drive your road graders away. It would have to be equipment operators under the eyes of U.S. Marshals who did that. In the ‘States, anyway.

        1. Lambert Strether Post author

          I disagree. I’ll requote from today’s Water Cooler:

          [T]he global trade community has figured out how to solve a problem that has bedeviled philosophers and political leaders for centuries: how to craft international agreements with teeth. The WTO’s dispute-settlement process, which serves as a model for the TPP, puts pressure on countries to actually keep the promises they make in trade deals” [Vox]. That’s why — in separation of powers terms — the combination of judicial and legislative power in the ISDS tribunals tends toward absolutism, even absent the formal existence of an executive.

          1. hemeantwell

            [T]he global trade community has figured out how to solve a problem that has bedeviled philosophers and political leaders for centuries

            Perhaps I’m quibbling, but this apparent innovation reflects and responds to an underlying material demand by a segment of capital for such measures. TPP reflects a change in the balance of power between political actors who are primarily oriented to the needs of nation states and political actors who are oriented to transnational corporations. The problem is a political one, and the way their solution gives the finger to local jurisdictions world-wide is possibly a very serious miscalculation on the part of the supranational absolutists. To recall Marx once again, philosophy’s devils, its unsolvable problems, were spawned in a nation-state system that has become obsolete for transnationalized capital. Those devils are duly succumbing to its religion of value. Hopefully these developments will prove to be equally inspirational to those who are trying to preserve and extend democratic power by forcing them to organize internationally. To preserve local jurisdictional power international organization will be necessary. Maybe that will be our devil.

      2. JTMcPhee

        I think that still does not answer the how-will-they-enforce-it question. Corps, particulary-supra-trans-post-national corps, don’t subject themselves to the jurisdiction of local authorities, they scoff at it more often than not.

        A legal system depends on agreed cooperation, mutuality, and as a last recourse, fear of enforcement. As the race to the bottom becomes more visible and the horrors more patent, do you think localities and state governments and such are going to just roll over and ask to be kicked and neutered? In a culture where you get a nice turnout of well-armed loonies ready to protect the “property interests” of some thief of a cattle feeder in Nevada who refused to pay the public for grazing cattle on public lands? Where the Tea Party in 1763 is part of the history, along with various rebellions and the “resistance to evictions and foreclosures” of the Great Depression and even our current woes?

        How fast have people found ways around “sanctions?” Again, how exactly will the powers-that-would-be enforce their judgments? Not dispositive to simply say that “because people will abide it, because they should, because it would be ‘legal,’ if it ain’t legitimate.” us mopes might h ave to suffer the pains of anomie on the way to some different distributive arrangement, but I sincerely doubt that all the ex-military people and cheerfully violent souls that make up a good part of at least the US population are going to say “Oh, they’ve got a judgment, okay, here’s the keys to the water works and sewage plant and the right to put up toll booths on all the formerly public roads.” And yes, much of that thievery of supposed losses of NPV can be accomplished with keystrokes and code. But not all of it.

        1. Lambert Strether Post author

          Well, the U.S. seems to be doing a rather effective job of inflicting pain on Putin without the use of troops, using the financial system as a weapon. Threatening a resisting state or locality’s bond rating for non-compliance with an ISDS “judgment” would be one effective method, I’m sure.

  6. John Parks

    Predictions as to how far corporate rule will extend are all conjectures but I think it would be prudent to expect the worst. With unlimited power to parse and twist their justifications and needs, decided only by themselves, I can see the most entrenched government policies being torn apart. There are many such targets. Minimum wage!? Employer Social Security contributions? Clear cutting national parks? Unlimited open pit mining? Unrestricted pollution!? These are already under assault but the TPP would certainly “fast-track” corporate hegemony.

    1. Lambert Strether Post author

      I see “Capitalist Absolutism” (or, alternatively “Absolutist Capitalism”; I’d be happy if either phrase propagated) as really “sharpening the contradictions,” as it were. It makes the power relations very, very clear. And I downplayed the “one global government” aspect of this, but it’s definitely there, and that sort of change in the Constitutional order just doesn’t come with no fuss and muss.

  7. wbgonne

    TPP elevates capitalization — the expectation of profit — as a principle to the principles of, say, the Bill of Rights, or the Declaration of the Rights of Man.

    Indeed. The purpose of these so-called “trade deals” is make global structural changes that preclude future generations in any nation from ever adopting Leftist, socialist, communist or even progressive policies. It is the establishment of vicious capitalism as the world’s permanent ideology. This is exactly what one expects from a neoliberal ideologue like Obama.

      1. Lambert Strether Post author

        One of the interesting things about Capital as Power is that it doesn’t depend on the labor theory of value, which has its issues. It’s really worth a read. I see the idea of capitalization as the dominant ideology as very fruitful, and breaking down conceptual barriers between production (for wage labor) and reproduction (of wage labor). That’s important if you want to fit things like food (and food sovereignty) into your world view.

      1. RUKidding

        I agree. No love lost on my part vis Obama, but it really wouldn’t matter who was “employed” by the 1% to be their puppet in the White House. Had Mad Dog McCain or Mitt RMoney been “elected,” we would still be discussing TPP at this site bc it would’ve gone through just the same.

        The issue is the 1% v the rest of us, and just like NAFTA, TPP screws over the 99s in favor of the 1% and the corporations, banks, Wall St, etc. Yes, it is fascism.

        Obama is window dressing and a distraction.

        1. wbgonne

          Obama is window dressing and a distraction.

          Without Obama there is no TPP, at least not now. More to the point, Obama was supposed to be the “good guy” working for the “people’s party,” not the one we have to protect ourselves against. Now you may scoff at those quaint ideas — and, yes, Obama’s presidency has made cynics of many — but they still have currency. Let me put it this way: if Obama had been seriously criticized and attacked for his prior neoliberal policies by the Democratic Establishment or by Democratic partisans, I don’t believe Obama would even push TPP, much as he wants it. Instead, it turns out the Democratic Establishment wants neoliberal policies, while Democratic partisans are so blinded by Obama’s skin color and their quivering fear of Republicans that they are mute and willfully blind. Obama has operated with impunity from the people who could embarrass and pressure him. To think that is all irrelevant is a bridge too far even for my cynicism. These elected officials are still politicians and human beings and they will respond to pressure, properly-applied. OTOH: you are correct that it is probably too late now to get Obama to change course. Congress, however, is another matter.

    1. ifthethunderdontgetya™³²®©

      He’s been horrible, and continues to get worse. Just like Bill Clinton in his 2nd term.

      So…is anyone going to ask Hillary about her position re: the TPP?

  8. nycTerrierist

    I’m particularly horrified to imagine how the TTP will affect factory farming and the shameful trend toward ‘ag-gag’ laws criminalizing whistleblowers who reveal cruel conditions (gestation crates, confinement, abuse, etc.) If global food corporations can show ‘expected profits’ are impacted by transparency and less cruel practices, this will foreclose efforts by animal welfare advocates to alleviate the vast suffering of non-human animals raised for food.
    It’s a nightmare scenario.

    1. Vatch

      The evils of factory farming go beyond extreme cruelty to animals. Significant pollution of both air and water is caused by the waste produced by densely concentrated animals. Bacterial resistance to antibiotics increases because there’s no way that animals can avoid serious illnesses in such conditions without the routine use of antibiotics to fight the diseases that are constantly present in CAFOs (Confined Animal Feeding Operations, a.k.a. factory farms). If the regulators ever seriously attempt to restrict the routine use of antibiotics in agriculture, the international drug companies will fight back with every tool at their disposal, which, under TPP and TTIP, will include private law courts (ISDS).

      1. Lambert Strether Post author

        Right, right, but none of those “externalities” go into the Net Present Value calculations that capitalize those businesses.

        And it’s even clear that they should. AFAIK, NPV isn’t relevant to Common Pool Resources at all, or (for that matter) in the “everyday communism” that Graeber identifies, where you give a stranger directions to the Post Office without mentally billing for your time.

    2. human

      Sorry, but, this avenue was closed to you in ’06 by the Animal Enterprise Terrorism Act (AETA) “a United States federal law (Pub.L. 109–374; 18 U.S.C. § 43) that prohibits any person from engaging in certain conduct “for the purpose of damaging or interfering with the operations of an animal enterprise.”[1] The statute covers any act that either “damages or causes the loss of any real or personal property” or “places a person in reasonable fear” of injury.” (wikipedia) and conveniently codifies criminal penalties for interference with corporate profit or expected profit, preceding by nearly a decade our instant target of dehumanization!

      1. jrs

        That may affect personal activism. State laws to improve the treatment of animals, like the California law, are still legal. Doesn’t sound like we can have any confidence such laws will be legal under the TPP, TPIP.

        1. Mel

          One quibble to remember, like a Whitehouse spokesman said a week or two ago: TPP/TPIP does not make any local laws invalid or illegal. It would just make it very, very (prohibitively,) expensive to enforce them. Regulate all you want, as long as you pay for it. The whole thing is couched in commercial terms.

  9. Mbuna

    In this modern age what is considered “Capitalism” is in reality the exploitation of others and gaming the system for monetary gain. It has come to this because there is no longer any definable culture to restrain this activity. “Culture” infers actions and limits based on socially accepted wisdom and there is very little of that left in this society. The source of real wisdom is largely absent in this world and without addressing that we will never get a handle on this runaway train of unfettered corporate dominance. What used to be considered illegal or morally wrong is no longer the case particularly when it comes to corporate activity. Left unattended this will ultimately result in some kind of corporate enslavement of the human race and the TPP is enabling a sneak peek of how and where this is headed.

  10. TheCatSaid

    The valuation of intangible assets is a quagmire.
    Investors & investors will have huge “expectations” of profits–that often prove to be only pie-in-the-sky. (As per all the PE investments with poor returns, compared to the “expected profits” touted to prospective LPs.)
    Whose valuation will prevail, regarding so-called “expected” profits foregone?
    It is insane to give away so many of our remaining sovereign rights, for a corporation’s “expectations” of profits.

    1. Lambert Strether Post author

      It is. NPV makes so many assumptions that implicitly factor in “Hype” (as Capital as Power calls it), which, if I have this right, assumes that things will be as they are, that the elaborate calculations are worthless (worthless, that is, for every purpose but accumulation).

  11. James Levy

    A few months ago I broke out my old copy of Perry Anderson’s Lineages of the Absolutist State in response to discussion going on here to see how relevant it seemed. Anderson contends that in order to keep the game of agricultural labor exploitation going (which after the Black Death was under serious threat due to labour shortages and a growing sense that the system was unjust), the aristocracy saw buttressing the power of the monarchy as more important that their own individual autonomy (which they had fought like maniacs to uphold for much of the Middle Ages). The deal was that the aristocrats got to keep their money and land but the monarch and his or her bureaucracy got to run the show. Today, it would appear that the great capitalist firms are trying to wrest the powers of the State unto themselves and their reliable flunkies. They no longer even want to rule through their bought-and-paid-for politicians. It’s a weird transnational process that is different from, but as disconcerting as, the rise of the Absolutist State.

    1. tim s

      They no longer even want to rule through their bought-and-paid-for politicians

      Even if a politician has a black hole where his moral center ought to be, this probability alone ought to be more than sufficient to get the politicians to turn against it. If they do not, they will only find themselves out with all of the rest of the dispossessed, being of no more use to the corporate system.

      Anyone and everyone who contacts their “representatives” should heavily stress this issue – maybe nothing else will spur them into action.

      1. hunkerdown

        The corporate lawyers on the Supreme Board of Directors will still need their think tanks for ideological respectability. Any politician that faithfully serves wealth in fact need never worry about where their next meal comes from.

        1. tim s

          The oligarchs are pushing things so far I think that before long they will not concern themselves with ideological respectability, but perhaps mainly with force. So, mercenaries, oops – I mean security forces, may see no reduction in numbers (perhaps an increase), the politicians required in our quaint political system to continually pull the hood over our eyes may see a significant decrease in numbers.

    2. Jim

      “They no longer even want to rule through their bought-and-paid for politicians. It’s a weird transnational process that is different from, but as disconcerting as, the rise of the Absolutist State.”

      One of the great mistakes of the Tea Party and other more far Right organizations(as well as far Left organizations) is to have accepted corporate conceptions of property ownership.

      In a sense American history can be can be interpreted as a struggle between two types of property–widely distributed small property and concentrated corporate property. Both the far Right and the far Left need to argue that their is a distinction between the corporation on the one side, and the small business, farm or cooperative on the other.

      If the distinction between a widely distributed small property and concentrated corporate property is maintained then their is an opening for arguing that freedom comes partially from some degree of control over the means of production.

      But that degree of control does not have to mean Big corporate capital or Big State collective ownership.
      It could mean a left/right populism advocating a more distributist vision of widespread ownership of productive property on a large scale.

      I would maintain that this absence of understanding of the difference between the property of small business and large corporations is one of the reasons for the absence of a modern left populism and our apparent unstoppable slide into monopolized plutocracy.

    3. Lambert Strether Post author

      Yes. And it’s a process taking place in history, and right now. And like everything else, it’s messy, accidental, not predictable yet tendentious, and so on.

      I do think it’s absolutist, however. When the same people who write the rules interpret them, that’s absolutism. The fact that the work is being done, “working toward the squillionaires,” as it were, by a system of collective leadership (the corporate lawyers) as opposed to a king makes the proposed rule no less absolute.

    4. hemeantwell

      Yes! Two thumbs up for Anderson’s work. That and the companion Passages from Antiquity to Feudalism are great. They’re dense, but Anderson’s word merchantry makes for a near-lyrical kind of concept-heavy social history.
      And, your point about seeking independence from bought-out politicians is spot on. I think it reflects what Peter Mair talks about in Ruling the Void, wherein he describes two complementary movements, the abandonment of the parties by the disgusted masses, and the abandonment of the masses by the parties, with the latter becoming essentially hired electoral manipulators, and explicitly selling themselves as such. Pols like that have no attachment to their constituents in any vital sense. They simply want to rationalize capital’s process of rationalization. The better they get, the larger the speaking fees, endowments, etc.

  12. Ulysses

    Thanks for this very thought-provoking post! One of the benefits of looking at this through an “absolutist” lens is that it helps clarify our thinking– as to the sort of dystopia our corporate overlords have in mind for our near future.

    When the Sun King declared “l’état, c’est moi” he was making an aspirational claim that could never be perfectly realized. As a practical matter a certain amount of social, political, and economic power had to be shared among nobles, clergy, and even some commoners for the system to function.

    The only right that mattered was the divine right of the king to rule. Lesser humans could only hope to be awarded privileges based on their usefulness to him. Courtiers who gained royal favor could then generously confer benefits on their inferiors, all the way from the glittering halls of Versailles on down to the occasional coins tossed to starving beggars near the church door. The only “rights,” and protections, the powerless enjoyed were the very weak protections offered by the cultural and religious restraints on the powerful– enshrined in ancient traditions.

    This is how the transnational kleptocrats see our future. A tiny handful of semi-divine “job-creators” will be masters of all that they survey. The rest of us will have to justify our existence by proving ourselves useful cogs in their wealth extraction machines. The only “right” that will matter is the “right” of capital to find the highest possible rate of return for this tiny handful of transnational kleptocrats who control all the money. Clean water and air, humane standards of living, etc. will no longer be considered as “human rights,” but rather special privileges– doled out as rewards for the most faithful servants of Mammon.

    You could say they seek to replace the bill of rights with the right to pay the bill for their greed and arrogance.

  13. William Hunter Duncan

    “Controversial”? That is the nut of it. WWI was about the rise of nation states and the fall of monarchy/aristocracy, WWIII seems to be about the rise of a technocratic, “absolutist,” supra-national class of money managers, and the fall of nation states. And the Republic is mostly oblivious. From Citizen to consumer.

    1. jrs

      At least a consumer has some power (I could go either way on whether it’s more power than in the citizen role if consumer power was properly used such as targeted boycotts).

      Maybe it’s from citizen to wage slave – which is more the essence of what capitalism is.

  14. TedWa

    Allowing any President to be above the law allows that President to allow anyone else he wants to also be above the law. Being above the law in that office is now enshrined as Bush and Cheney did not even have to get pardoned. No charges at all. Now we have banks above the law and soon TBTF corporations above the law with these trade agreements. Obama needs to be impeached and Bush and Cheney charged with war crimes if we want to restore civil order and reign in these criminal renegades that have been placed above the law. The criminals have their 1 light shining to get inside and that is a President with the powers of a King that no one can question. Restore law and order and impeach. Hard to be believe I voted for this traitor to the Constitution and this countries history of the last 200+ years in 2008. We have hard fought and won freedoms that he wants to give away with the stroke of a pen.

    1. TedWa

      Add in – The growing disparity between the rich and poor is directly related to the power of the Presidency in making theft by corporate friends above the law. We no longer elect Presidents, we elect Kings with the powers of a demigod. If we allow this to continue then we’ve sealed our own fate.

  15. JTMcPhee

    Interesting. I got a snail-mail offer from a “friendly lender” which touted “personal treatment” for giving me an unsecured loan of up to $4,625.30, for only 29.9% APR. I also get offers from Nigerian princes and the Finance Ministers of Sierra Leone and other sovereign nations for all kinds of financial deals. One wonders how many of the folks who play in those cat boxes are also looking at the opportunities to be presented by “investor”-state and other provisions of the incipient SupraRules. I guess statutes limiting usury-for-profit would then be one of the Local Laws that could get the expectation-of-profit treatment, alongside zoning silliness and health and environmental laws and regulations? And securities regulation? And corporate governance rules? C’mon, folks, we all can add items to the lists of what will “go away” with that Giant Sucking Sound that Ross Perot pointed out in his clobbered-by-Big-Al presidential run, ?

    History of Usury?

    Who’s behind all that Hate That Sharia Law Thing, nominally about that traditional abuse of women and stuff but really, consequentially, and most importantly, as it might be applied to the Great Western Financialized Satan, a real brake on the race to the bottom and the death of the biosphere? “Islamic Investment,” , and “Islamic Funds: Sharia Law and Investment Structures,” Surely not the Kochs and ALEC, or the dissatisfactions of a Blankfein or Dimon… They apparently go to church and temple, but seem not to be burdened by any of the moral constraints that other major world religions hold to apply.

    And one has to ask how this will all interact with bankruptcy law, in a context where its most significant use any more is offensively, and a means of escape for corporate interests and now, apparently, corporatized municipalities like Detroit, trashed by following the advice of Financial Consultants and looking to escape pension obligations and such fripperies after being stripped of all public assets. Bankruptcy is not a “fresh start” reset for individuals any more: “Other countries do not generally apply the fresh start in bankruptcy and they treat debtors much more harshly. For example, in Germany, individual debtors are not allowed to file for bankruptcy voluntarily and their debts are not discharged in bankruptcy, although creditors’ efforts to collect are stayed. Debtors are required to repay from future earnings. Other European countries are similar. See Alexopoulos and Domowitz (1998) for discussion. Buckley (1994) compares the Canadian approach to bankruptcy, which does not mandate a fresh start for consumers, to the U.S. approach. He argues that the Canadian approach is preferable, mainly because it reduces the number of bankruptcy filings. Note that, even in the U.S., not all debt is discharged in bankruptcy [e.g., credit cards and student loans], so that in practice debtors receive only a partial fresh start.” .But what happens when that foreign corporation holder of a debt instrument or contract with some “expectation of profit” crashes the creditors’ feeding frenzy with an ISDS “claim?”

    One more opinion: “Revere Copper and labor agree: TPP trade deal is bad for economy,”

    Maybe I should have kept my law licenses — Naaaah, I don’t have it in me to play in this racket… “What profit it a man if he gain the whole world, but lose his soul?” BWAHAHAHAHAHAHAHAHA!

  16. lawyercat

    The 3 part test – 1) economic impact 2) investment backed expectations and 3) character of government action is from the Penn Central (Grand Central Station) SCOTUS case and has been incredibly deferential to government actions. Thousands of cases brought and almost all won by the government . The legitimate welfare objective comes from Euclid where zoning falls under the police power. This is even more deferential to the government actions. Of course, this is no guarantee that an ISDS would interpret this precedent as US courts have, but it’s still almost verbatim US law.

    I’ve got my property exam tomorrow so these terms are all fresh in my mind, haha.

    1. lawyercat

      Just to expand on my phone-based comment.

      Village of Euclid v. Ambler Realty Co. (US 1926) – uphold zoning regulations unless clearly arbitrary, unreasonable, having no substantial relation to public health, safety, morals or general welfare 1) fairly debatable that a land use ordinance 2) has a substantial relation to 3) a police power purpose.

      Challenges to Euclid include regulations about pets inside houses – lost and zoning for house aesthetics – lost. Basically, every challenge to zoning under Euclid loses.

      Penn. Central Transportation Co. v. City of NY, (US 1978) – Penn Central Factors – 1) Economic impact of the regulation on the claimant – measures economic loss against reasonably related benefit to the general welfare 2) extent to which the regulation has interfered with distinct investment-backed expectations – reasonable expectations when buyer invested in the property and 3) character of the government action – physical invasion vs regulation for the common good.

      Penn Central said that even a 95% reduction in property value wouldn’t be enough to make the government pay “just compensation” for a regulatory taking. The takeaway we got from Penn Central was that if a court is analyzing your case under this doctrine, then you’ve already lost against the government.

      So the language itself isn’t really a problem, but the fact that an ISDS gets to interpret it is definitely cause for alarm.

      Interestingly, the Erie Doctrine was a response to the ISDS problem – corporations could sue under state or federal common-law and thus had a procedural advantage over private citizens. The whole purpose of the Erie Doctrine was to prevent some class of people from choosing the most beneficial judicial forum that another class of people couldn’t choose.

    2. Praedor

      All very well and good and it might just be peachy if it were actual judges who adjudicated the cases. It is the LAWYERS of the corporations that are adjudicating with interpretation entirely up to their personal best interests (which coincide with the best interests of their employer). Many judges are elected and can be unelected. Appointed judges can be impeached. In all cases the identity of the judge is known. The lawyer scumbags of the ISDS will be a secret mutual fellatio club where a group of the ethically bereft will “adjudicate” in favor of the corporation and its investors of their compatriot and fully expect to receive likewise favorable “adjudication” when they are on the receiving end by the other serving in the ISDS system.

      The ISDS system is corrupt and unnecessary from day 1. IF it must remain, it must be subject to actual appeal to a REAL court with a judge and jury. Also…the members of all ISDSs must be named and it must be made known when they serve and how they ruled. PUBLICALLY.

  17. Yonatan

    My understanding is that signing on to TPP is also effectively irrevocable, in the sense that 100% agreement is needed for a country to opt out later. That of course would never happen. Signing on thus binds each and every successor government which is a big no-no. For example, look at the Republicans response to Obama’s proposed Iran deal. They are saying they will rescind it irresepctive of its merits. If TPP went ahead, and some corporation could profit from the Iran deal, the US would not be allowed block it without incurring massive costs.

    1. JTMcPhee

      As to irrevocability and enforcement of Supra-Dupra-Alley-Oopra-Law, like the TPP-TTIP is supposedly shaping up to supposedly be: Well now, corporations, through their officers, agents and employees, routinely welsh on contracts and obligations, commit criminal violations and ignore and flout applicable law, left, right and center, and have done so since the earliest days. See, e.g., Hamurabi’s Code.

      Mutuality is kind of a root principle of jurisprudence in several areas. Maybe someone can tell the rest of us why WE, us ordinary mortals without the Supra-Dupra-Alley-Oopra Presence of Rich Sh_t Corporations, are expected to abide by some Ad Hoc Liberterrarium Ruling by some Tribunal of Oracles/Mouthpieces? Will the Imperial Military be called out to enforce these impositions of “expectations” on ordinary people? They gonna repossess our ’97 F-150s and ’88 Camrys? Levy on our bank accounts? Take our 401Ks and IRAs? Or start attaching highways and “taking ownership” of water and sewer systems and schools, oh wait, that’s already happening…

    2. jrs

      “Signing on thus binds each and every successor government which is a big no-no.”

      One Trade Agreement to rule them all, One Trade Agreement to find them,
      One Trade Agreement to bring them all and in the darkness bind them

  18. two beers

    You’re unfairly beating up on the Risk Takers who are our Job Creators. The heroic Risk Takers are the engine of the economy, and the source of all progress and civilization; without them, we’d be naked eating grubs in caves, clubbing each other over the head for fun, instead of pecking at keys on iPhones. To achieve the perfectly-functioning economy, we have to remove all risk from their risk-taking, i.e. their ROI must be guaranteed, hence the ISDS mechanism. Capitalism is robust and invincible; therefore, it needs vigorous and universal legal protection from every possible risk, so it can extract every last cent that is its proper due. Capitalism is a beautiful machine god.

  19. JEHR

    Your article prompted me to send my own letters to the negotiators and MPs that are trying to pass, in secret, the TPP in Canada:


    The Council of Canadians is doing a masterful job of bringing to light Harper’s outrageous actions as well as taking him on in court:

    When Capitalism has reached its zenith, how will it in any way be different from the worst example of Communism? It won’t be. It seems that the two ideologies run along parallel tracks but have the same end-point. What a metaphor that is!

  20. kevinearick

    Space Timing: Horton Hears A Who

    Power is the rate of work over time. NPV feudalism, contract codependence mimicking marriage to replicate sociopathic behavior, employs machines to separate the feudalists from the violence of poverty that they create, to feed the actuarial middle class ponzi, but it doesn’t work. You have a universe full of resistors, capacitors and inductors. Why create more?

    From the perspective of labor, capital is historical overhead. From the perspective of capital, labor is present overhead. The net is marginal utility. The middle class, with artificial monetary and fiscal feedback from capital, increasingly leans toward capital over time, loading the spring. Capital, regardless of how you define it, is a legacy convention. Upon which side do you suppose Nature finds itself?

    RE inflation, systematically eliminating economic mobility, is the solution for capital, and a problem for the middle class, voting itself fiscal control, but is merely a problemsolution for labor. Why would you adjust the artificial spikes of PWM when you can simply build a bridge? Why would you throw away an appliance, like a car, just because the manufacturer hid the failing resistors? What is the psychographic of Ford Explorer owners?

    Feudal control is a function of psychology, peer pressure, which is entirely dependent upon the stupidity passing for public education, under the law, which rewards bankrupt behavior with arbitrary credit, at the cost of penalizing individuals who do not comply, with arbitrary debt.

    What is the counterweight of a horizontal elevator? What is the counterweight for an elevator on a slope? What determines the spacetime between gravitational bodies? Why does the universe appear elastic? Looking back, how much of your ‘work’ at an empire entitlement job has benefitted your family’s future, versus the noise of empire, which hasn’t changed in thousands of years, regardless of parachute color or the rotation employed to keep it going?

    Feudalism, civil marriage, is held together by fear of change, up to environmental threshold. Why can’t you adjust the counterweight to eliminate the load locally, in real time? How might you employ multidimensional regeneration to do so? What would change? What is the threat to capital? What is the effect of empire noise, the voltage drop across the psychological event horizons, on your work product, V/Hz, relative to momentum?

    Government replaces parental judgment with herd judgment, which is easily swayed by sociopaths, offering something for nothing, your children as economic slaves, and voting to rotate the sociopaths, along with their crackpot theories, changes nothing, because G, and its derivatives in GDP, is the counterweight.

    Creating a job by printing money, creating a training program to propagate the associated propaganda, and training people to populate it, long after the money has vanished, into real estate inflation and its derivative food inflation, is a stupid back-a-ward system, but that’s communism, and why the Chinese stock market has doubled in a year, as yet another rigged lottery, for a new reserve currency, dead on arrival. An equal right to abortion, creating and protesting war, that’s government thinking for you.

    Certification is designed to pull the rug out from under you on a regular basis, at increasing extortion cost, and give the feudalists a pre-punched card; public education is geared to implement the communism, with test questions written by bureaucrats at central planning accordingly; and the critters are migrating behind Chinese communism as the future, surprise. The empire is welcome to move its headquarters back to China. We don’t need shiny metals, oil or any other empire hoarded resource to raise the load.

    Have some faith. Everyone is not quite as stupid as Internet TV would have you presume. Don’t fight the system; jump from the counterweight to an elevator, of your choice. With love, you don’t need a script. Without love, no script will save you. The false prophet will tell you what he/she thinks you want to hear, in return for control, expecting confirmation. Someone who loves you will tell you what you don’t want to hear, when no one else will.

    The counterweight attracts divide and conquer politicians from birth, and some parents choose to be unpopular, in a process of discovery, in which the politicians are represented by the politicians they deserve. Who do you suppose that elevator is lifting? “A person is a person, no matter how small,” and an automaton is an automaton.

    Ben Franklin and Albert Einstein were a few thousand years late to the party, and their peers still didn’t understand what they stole from the patent office. You will not find me working in the basement at 3am, and having a double in the coffee shop at 10am, by accident. If you listen, the majority opens it mouth and assumptions fall to the ground.

    Funny, Dr Seuss had a train in his yard, what you see when you look.

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