You Can’t Fix Stupid

The Need for Perspective, the Importance of History,

and

What We Can Do (Now)

Author’s Note 

A writer knows he’s in trouble when he borrows a title from the book written by a cigar-smoking, heavy-drinking, profanity-speaking (but hysterically-funny) comedian like Ron White – and for that, I apologize in advance. However, his title encapsulates a big part of America’s problems right now. And maybe it is time for all of us to start thinking about things differently.

 Preamble

Our American democracy is neither young nor innocent. We have wrapped ourselves in theories of exceptionalism and just like all ageing celebrities, too many Americans still think of themselves as vibrant and energetic with a deep reserve of hard-earned wisdom.

Amongst both the wildly optimistic and the darkly cynical, America is still seen by some as the only real and deserving world power; still at times cresting in greatness. But actions matter. Headlines accumulate. And as we are discovering, the years don’t lie.

For example, America is not young. Our democracy is more than 225 years old. It is the longest surviving, constitutional democracy in the world. That is both a hard fact and a noble accomplishment.

We have survived much. We have always been more inclined to action than reflection. Possibly in spite of this or because of this, we are in rarefied company. We have already lasted nearly half of the duration length of The Roman Empire itself.

But now we have choices to make. Important choices. Maybe we can remain some strange admixture of contentment and cantankerousness. But this writer thinks that this is a dangerous gamble. It is time both to speak out and to demand better.

The choice is ours. We can accept the force-of-history inevitability of some American version of Gibbons’ Decline and Fall. Or we can get back to writing a better history for our nation.

Essay

Introduction

I never met my uncle; my mother’s brother; my grandmother’s son. He died in the third year of World War II while carrying a machine gun up the lonely, rocky hill at Monte Cassino in Italy.

For reasons that I cannot easily explain, I miss him; a man whom I never met. In a manner similar to the thousands of others who lost a father or son or uncle or mother or aunt or sister in World War II, Korea, Vietnam, Lebanon, Desert Storm, or more recently in Iraq or Afghanistan — I sense my life would have been different had he lived; had we met. Many years ago, in a small town in Montana, my grandmother gave me his Purple Heart and a scrapbook which he kept as a young boy. And now, so many years later, I still feel his presence and feel indebted to his sacrifice.

Possibly because I observed the quiet pain of my mother’s missing of her only brother, possibly because I too am a veteran, and possibly because I am honored by the bequest which my uncle and so many others gave to this country, I feel like an explanation is somehow owed to them about the state of our country, about the seeming confusion of our peoples, and about the staining of our principles.

It is comforting to know that there are millions of good, hard-working, decent and law-abiding Americans. However, something has been amiss in our society for decades now. And it is not good. 

How Has That Been Working For Us?

I was raised amidst a generation in which judgments were rarely made. Ethics were deemed “situational.” Morals were always “relative.” And everyone somehow claimed a birthright entitlement to his or her own “space” regardless of whether or not there was enough of it to go around.

Even apart from my generation, America has long been a country where individualism is not just tolerated, it is exalted. But of late there have been societal changes, the ramifications of which are not yet fully understood or appreciated.

Our communities have become increasingly fluid and self-defined. Our culture and especially our politics have become monetized. Darwinism has become the most powerful component of our business life and economic structure. Consumerism is conspicuous, and toys and bling are routinely displayed as the material rewards of success. And centrism is everywhere. “First me; then us” is not just said out loud; it is done out loud.

It is probably a rule that no serious writing should ever quote Dr. Phil, but his routinized question here applies — how has all that that been working for us? In a world where for personal safety is merely a memory, where some schools are a joke, where politics has become a blood sport, and where insecurity is a tolerated component of our economic system, I suggest that all that has not been working for us “all that” well.

There are some concrete places to begin changing “all that.”

Try Telling That to the Coach at Half-Time

Reflection, Spirit, Footing, Confidence, Composure, and Calm

One place to begin is to focus upon our communities and our conversation. In the context of our communities, however they are now defined, and in the context of the substance, tone, and style of our national conversation, we need to reflect upon our actions and our words. As a nation and as a people, we need to regain our spirit. We need to find our footing. We need to regain our confidence. We need to regain our composure. We need to calm our tone. And – for those who have the time and the means – we need to double our commitment.

In our face-paced, anger- and data-driven culture, matters of tone and style – reflection, spirit, confidence, composure, calmness, and commitment – may seem like dismissible platitudes. But try telling that to the coach at half-time. These matters of tone and style are not platitudes.

Consider these matters in the context of business. There is a reason your HR staff (and its new AI buddy) weeds through thousands of resumes. Because raw talent is rarely enough. Most employers look for independent minds, self-starters, go-getters, and team players. And no enterprise needs another critic. No enterprise seeks out the naysayers; welcomes complainers; or long tolerates slackers, whether they work remote or down the hall.

To the contrary, reflection, confidence and composure are the very basis upon which we must act. Spirit and confidence contribute to momentum and increase the likelihood of success. Calmness and commitment define the manner in which we analyze the data. These things literally and tangibly assist us in our ability to move towards sensible objectives.

The Dangerous Ground of Critics

I realize that I am treading on dangerous ground. I know that no essay – no matter how well-meaning — should approach moralizing; that there is a reason that “pontifications” – just as the word implies — should be left to The Man in Rome.

I also realize that no one likes critics — or even “commentators” in the jargon of the 21^st Century media. No one could write or speak with more bite than H.L. Mencken or Dorothy Parker (or their later-day compatriots such as Thomas Franks and George Will and now Tucker Carlson, Bill Maher, Charlamagne the God, and the rest). Indeed, there is a reason that critics are wined and dined —- but rarely invited out for beers or over for dinner.

Part of the problem of critics and commentators lies in the very dubiousness of their profession. Whether critics are right or wrong, they are still a dime a dozen. It just doesn’t take much effort — or even skill to find fault. Literally anyone can sit in their corner bar or their corner office and find five problems by lunch. ten excuses by dinner, and 20 other people to blame by sunrise.

Thus, please know that I am not talking from high on any horse. I willingly admit that I have made more mistakes than I can count. In fact, I stopped counting after my first thousand mistakes — even though my son still rejoices in keeping the tally running for me.

But dangerous ground or otherwise, sometimes one must go out on the limb. Someone must remind us of how much we can’t see with our heads in the sand; how much we can’t hear amidst the clamor of that which is passed off as our contemporary American dialogue. Someone must venture a few ideas of where to start and what to do.

 America’s Devolution

One place to begin is to understand that America’s devolution has been a process. America’s devolution cannot be tightly tracked to any date, blamed on any event, or — despite the convenience and temptation — pinned on any leader, party, or group. Consider, for example, the horrific tragedy of 9/11, the calamities which flowed from the financial collapse in 2008, the rise of MAGAism, or the seeming demise of one or both of America’s political parties.

These events are huge. They are significant. But they are at best contributory. They affect but not, by themselves, they need not define the state of our country. And things started to change much earlier.

Long before both 9/11 and the financial collapse of 2008, the American community had become dangerously divided – by politics, by social alliances; by varied definitions of one’s community (or, more precisely, one’s communities); by income, wealth, and opportunity; and by – stubbornly and still – race, ethnicity, and gender identity. This has all been logarithmically accelerated by the anger and divisiveness of Trump.

More than three decades ago religion was re-infused into “the public square” with, for example, the 1979 formation of Jerry Falwell’s Moral Majority. Shortly thereafter Reagan accelerated the debate about the role of the government. Though well-intentioned, he took the country to a place of great risk by the over-stated simplicity of defining the government as “the problem.” But there were a lot of hands stirring the anger and enflaming the passions.

Both political parties helped enhance the power of money – albeit of late with the help of the Supreme Court’s 5-4 and 6-3 decisions. Both parties and the nature of the election process itself helped assure that political and social movement campaigns became encased with the tools and methodologies of marketing and advertising. Egged on by a news-cycle media and the media’s thinly-concealed use of news as entertainment, candidates and elected officials helped assure that politics became a blood sport. Both parties helped assure that real conversations are rare.

Honest debates now seem a distant memory. They have been replaced by tight scripts, honed message points, and guarded conversations. We are left to keep our ear on the ground listening for code words. Only amongst like-minded friends do we exchange facts and data like so many little gold nuggets. Concessions are deemed a sign of weakness, and bipartisanship is increasingly seen as an empty promise. By some, bipartisanship is now even seen as a sign of weakness, as a dangerous concept.

America’s problems are certainly more complicated than the demise of our national conversation, and accepting the breadth of our problems is neither fun nor easy.

It is hard to get the “stolen election” and “agin’ Joe” lines out of our memories. It is hard to ignore the sound-bites still ringing in our ears. And the barking diatribes of our leaders continue to fog the issues and taint our perspectives.

As a nation, we seem as if we have no choice but to choose a side. We have allowed ourselves to become split – not into teams, but into warring factions. We have become twisted in our own tangles and lost amidst our close-minded, yah-but conversations. It is hardly surprising that in our exhaustion or disgust, we have become anxious, irritable, and cranky; that we have lost our spirit and our confidence. Others have withdrawn into self-protective, but understandable, silence.

Hope itself is too often contained. Expectations are kept low. “It is what it is” has replaced our sense of public confidence. America seems tired; exhausted. Unsurprisingly, our collective morale has diminished. The consequential side-effects are numerous, pervasive, and prolonged.

Good, talented, and decent men and women, exercising their personal prudence and sometimes wise prerogative, decline to enter the public sphere. And in the end, another generation does its own version of “duck-n-cover.” But we can’t blame it on the Russkies this time around. We are doing it to ourselves.

And it is even more serious because we are quietly (and even unconsciously) forsaking other things and other responsibilities. We are not teaching our children well. One of the great re-discovery joys of parenting is being constantly reminded ab out how much is learned by our children by their watching; by their listening …. And, eventually, by their imitating. Their actions are then magnified – and become imbedded — on the playground. Analogously, none of us need to touch the Mensa ring to know that bullies abound and that too many Americans no longer play well or share often. But our kids still need, and if I may – deserve, our protection.

And, thus, maybe as a place to start — it is part of our responsibility both as citizens and parents (or grandparents, as the case may be) to chart a new path and to start helping one another.

How? There are many ways, and both the good news and the bad news is that the place to begin is everywhere.

One First Step

One place to begin is to help ourselves and to help one another – our children, our friends, and our peers, better and more correctly understand the relative significance and the real meaning of events. And this is best achieved with understanding the need for perspective and importance and context of history. Perspective and context are not just the niceties of history. They can simultaneously offer comfort and bolster confidence.

One first step may be to remember that America has faced and survived far greater calamities than those which we face today. December 7, 1941, was a bad day, and for literally millions of American families, Pearl Harbor changed everything. Tom Brokaw’s Greatest Generation came of age during the long winters of the Depression. Then, there was November 22, 1963, which is etched in the minds of many older Americans — and Lee Harvey Oswald’s bullet was followed by the assassination of Martin Luther King, Jr. and Bobby Kennedy just a few years later. 9/11 speaks for itself both because of what happened and the fact that millions of Americans literally saw it on television.

We can even track our tough recent history from the perspective and in the context of epidemics. We have all been impacted (and isolated from one another) by the ravages of the worldwide Covid epidemic. But it was only about ten years ago that the media (and especially poor Brian Williams on NBC and everyone at CNN) became obsessed with Ebola. Ebola is a horrendous, tragic and frightening disease, but perspective and context can help us as a nation absorb and deal with this challenge. Before Ebola, it was SARS. Before SARS, it was the bird flu. Before bird flu, it was AIDS. Before Aids, it was polio. Before polio, it was the influenza epidemic of 1918-1919. Before that it was the smallpox epidemic of 1898. And before that, the real killer and when America really put it all on the line, The Civil War. But we made it. And it is part of our obligation, literally our duty and obligation, as citizens to remember that.

You Can’t Fix Stupid

Despite the echo of “you can’t fix stupid” and even apart from the useful infusions of perspective and context, there IS much more we can do. WE need not be stupid. WE need not stand by and watch. WE can accept that leading by example is just not enough. And even if WE can’t fix stupid, we can lend variant forms of constructive aggressiveness into our citizenship.

We can start off by accepting that a chunk of money and boundary gates are not enough. In the end, we cannot expect our police alone to keep us safe. The graffiti will not miraculously wash off the walls of our cities. We cannot ask – or expect – our schools to be responsible for instilling character in our children. And possibly most important of all, we cannot expect our laws, by themselves, to define the parameters of right and wrong. Decency requires much more than mere legality. “I paid my taxes” is not enough to get us Pass Go.

And, thus, though you can’t fix stupid, we still can listen better. We can be more selective (and cautious) about what we read and whom we listen to. We can – indeed, it is time, for us to try to guide our friends and to use our influence. We are going to have to start stepping in to chastise wrongdoing and loudly criticize those who suggest it. Power must again be viewed as a gift – not a weapon.

It is going to be awkward, but we must start more openly criticizing intolerance and show more disdain for the close-minded. We can still honor those who try. We can still encourage the weak. We can still help the struggling, and we can give more to the poor and needy. But from others, we might have to start expecting more.

For example, there is a drumbeat debate in this country about “fair shares” – in the context of, for example, charitable giving and tax rates. I am not flippant with my own money, and it is certainly never my place to be flippant with respect to other people’s money. However, I am mindful that for reasons not inherently obvious, the poor and the middle class in this country always donate higher percentages of their annual incomes to charity than the wealthy. For reasons that are more obvious and disturbing, I am also mindful that the middle class almost always and almost without exception pay a far higher percentage of their annual income in taxes (income, payroll, sales, property combined) than do the wealthy. Thus, in the small context of even charitable giving and taxes and in the context of classes, elitism, and judgmentalism, we can’t fix stupid, but we should know and act on the facts.

You can’t fix stupid, but we may have to consider adopting community-fusing policies. For example, to break down some of the distortions caused by the geographic and social isolations of the wealthy and the poor and to cement a stronger sense of national community, we may need to implement some form of widely diversified, but meaningful and mandatory national service.

You can’t fix stupid, but we may have to alter America’s toleration of individualism and even the boundaries of the familial province. The public may need to carefully assert an even stronger role in protecting our country’s children. The phrase “national security” is rightfully inserted into many of our national discussions — from ISIS to travel restrictions; from resource development to the drug war. However, this country’s national security – wholly apart from the depth of our moral obligation — is not inserted often enough into our conversations about the needed protection and education of our children.

It is with caution and with the greatest respect for the “family unit,” but the care, feeding, and protection of children is a rightful public interest as well — and something is terribly wrong when there are millions of children in this country who are without food or shelter or (again echoing the Nation At Risk Report written more than 30 years ago) who are receiving inadequate education. Every President in the last 40 years has proclaimed himself to be the “Education President” — to it seems no avail and no change. And thus, we are left with foster care and state variants of child protective service. Although neither of them is adequate to protect our children at risk, they remain this country’s spear tips because we have not yet adequately addressed the crisis of our children. This year we are focused upon the “fentanyl crisis” — but it is ALL inter-related. We can’t fix stupid, but is anyone else tired of funding prisons rather than schools; hearing about drug busts and lost lives. It is time. This too must change. One child; one community, at a time.

You can’t fix stupid, but we may have to make radical changes in our political and electoral systems. Since it is increasingly obvious that the Supreme Court is not going to take the money out of politics, we may have to take the money out of the politicians. In contemporary jargon, the lives of politicians and their careers need to be severely de-monetized. For example, in the context of business, an employee (such as a public official?) is oftentimes precluded from second jobs and outside income. Until recently, non-compete clauses were routinely enforced. Non-use of inside information and trade secrets are routinely required for at least a number of years. Well, politics must be viewed similarly — as a monetarily constrained profession. The place and expectations of public service must be re-instilled by a circumvention of term limits, by restrictions upon after-office lobbyist or representative employment, and even by contact and access privileges.

You can’t fix stupid, but to the extent that cynicism, disillusionment, spirit and confidence are parts of our problem, then possibly we should adopt some of the marketing, branding, semantics, and labeling practices which America’s businesses use every day. A 4% unemployment rate remains disappointing, but there is a greater sense of accomplishment when it is restated conversely as a 96% employment rate. Even though the unemployment rate among blacks remains at 10% — nearly double that of whites, possibly the hardened and ingrained racism of some people can be tamed a bit by remembering that even within the black community the employment is 90%!!

You can’t fix stupid, but to the extent that Americans don’t know, remember, or appreciate what the government does do – and do even well — every day, it may be in the public interest for public achievements to be better reported and at times even promoted. While there are propaganda and self-aggrandizement issues associated with this type of suggestion, knowing what our government does and does well is in the public interest as was brilliantly discussed a number of years ago in an article in The Atlantic Monthly.  

 

Lastly, while we can’t fix stupid, we can remember that the very nature and reality of democracy is to seek improvement; not to demand or expect perfection. Democracy is clumsy. We have had our clarion moments. We have been blessed with some visionary leaders. However, most of the time and by most historical measures, democracy is little more than the fact that only 51% of our people have been right 51% of the time. And now is no different. On any given subject – whether it be immigration reform, judicial appointments, tax reform, crime and punishment; moral or immoral majorities, or even the Keystone Pipeline — any one of us and any one of them might be wrong. We can demand honesty. We can demand (and in the political context, by voting, assure) accountability. But we cannot expect perfection.

But once again, like a broken record, leading by example is not working. It is not enough. I have never met a person who couldn’t influence a few people – members of his family or his friends. I have met many people who could influence many people – members of his family, friends and associates, employees and co-workers, readers of his or her works, listeners to his or her speeches. It is time for each of us to participate more aggressively in our communities.

There is no easy way to end a diatribe … but in the Closing which follows, I have tried.

Closing

One of my best friends lives on the other side of the country – a long ways from the West Coast.

I called him the other day and asked him what he was up to.

He said he had been busy all day counting his blessings and thinking about what he should do next.

And in that brief sentence, he reminded me why I always liked him so much.

He was right.

And maybe, especially as we all enter this holiday season,

We should join him.

 

Blog No. 176 

November 14, 2023

Fixing America 

The Brilliance of Many – Part II

By Mack W. Borgen

University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author; 2023 Listee – Who’s Who in America.

Call Me Anytime

General Business Planning

or Corporate, Business or Real Property Law Matters

805-450-2602

— 

Introduction

(Note: This is materially the same Introduction as appeared in my last Brilliance of Many article (Oct 31, 2023). If you wish, you may go directly to the New Ideas starting below at Idea 21.) 

In 2010, 13 years ago now, I started writing my series of books. For nearly the first two (2) years, I meandered with how and where to begin. I felt motivated in part because I believed than (and still do) that America had lost its way a bit – and that “the place to begin was everywhere.”

I eventually decided to write a series of books entitled “The Chance of a Lifetime – A Series of Seven Books about the Patient Remaking of American Life.” The working title of the last book in this planned series was to be “The Brilliance of Many.” This book was to set forth, page after page, a relatively detailed description of the hundreds of ideas for change which I had developed or which I had come across in my research and reading.

My writing plans changed, however, and the rest is, as they say, “history.”  In 2012 and 2013, I released The Relevance of Reason series. In 2018-2019 I released the Dead Serious – The Memorable Words of Modern America series. And then in 2021 I released my far more personal “Writings of a Lifetime.”

But I always regretted not presenting – or at least listing — the many ways in which we might help us, step by step, to move our country forward.

Recently, I came across nearly 300 pages of my notes and outlines of such ideas. Start with my last article (Blog 175, October 31, 2023), and although that Brilliance of Many book is not going to be written (by me at least), I have started to present at least some of those ideas for your consideration. The second set of twenty ideas (Ideas 21-40) is set forth below. Many more will be included in later blog articles.

The below descriptions of these ideas are, as you will see, presented in a very summary manner. I have not included any background of the issue or any identification of the probable issues of implementation.

Nevertheless, I believe that some of them may resonate. Some of them may – in some small way – motivate others where I have left off.

Also, some of the ideas are very broad in scope and “major.” In a few cases, they are even “philosophical” in nature. Others are individually “minor” and, in a few cases, almost borderline pedantic in nature. They are included because theoretically every step in the right direction might help.  Enjoy.

Quick Listing of (Both Simple and Complex) Ideas

for “Fixing America”

Idea 21. Reinstitute Campaign Contribution Limits and Campaign Donation Transparency. Especially after the devastating 2010 USSC ruling in Citizens’ United, it is nearly impossible to eliminate – or even materially diminish – the impact of money or in-kind donations upon our political campaigns. Nevertheless, three (3) things can be done. First, at least some caps on campaign contributions above $X should be reinstated (whether made to a candidate, a party, or a PAC). Second, full and timely donation transparency should be made to the voting public, and the identities of contributors should be rigorously tracked. Third, criminal violations of campaign laws must be strictly enforced — not through the (currently-lame) Federal Elections Commission but through normal federal and state criminal enforcement prosecutions.

Idea 22. Lessen the Impact of Single-Issue or Single Party Voting. Although extremely difficult to do, single-issue voting (e.g., Second Amendment, abortion-related issues, LGBTQ, foreign policy, or tax fairness issues) or single-party voting (Republican vs Democrat) should be discouraged. It is not proposed that one should not work for and towards defined goals and objectives, but single-issue voting should be discouraged whenever possible and wherever feasible. This might be partly achieved by emphasizing (a) the concept of community, (b) the simultaneous importance of a wide range of issues, and (c) the fact that our world does not, and never will, allow us a single-issue existence.  

Idea 23. Eliminate the Annual Production of the 4.3BB (yes, billion) Pennies. This was done relatively recently by Canada, and it is estimated that the U.S. Treasury could save $100MM per year. In the scary numbers of the government, $100MM may not, at first, seem like a lot. However — to use one example — using a rough average of K-12 teacher salaries, the easily saved money by merely NOT producing more pennies every year would equate to about another 1,500 to 1,900 schoolteachers in America every school year!!

Idea 24. Periodic and Scheduled Review for Assuring Appropriate Compensations for the Use of Federal Lands. Nearly one-third of this country is owned by the federal government. Periodic close and public review should be regularly conducted (e.g., at least once every two years) to assure that the federal government (i.e., our” government) is receiving reasonable compensation for the use of the use of such land for grazing rights, timber removal, etc. 

Idea 25. Sunsetting – Institutionalize the Regular (and Ongoing) Review of All Federal Laws and Regulations with respect to whether or not such laws and regulations should be proposed for sunsetting. The reviews should be conducted by independent commission which, in turn, could rate the current relevance and utility of such laws and regulations on a scale of, for example, 1 = No Longer Serving an Identifiable Purpose to 10 – Critically important for the purposes such law was enacted or such regulation was promulgated. All review ratings should be publicly reported, and all laws receiving a “low” continued utility score should be revoked.

Idea 26. Enhance Governmental Contract Banning Practices so that any individual (using, as applicable, the RCO (responsible corporate officer) standard) or corporation which is convicted of a serious federal crime shall be banned from any federal contract for a period of not less than X years. Once again, transparency is critical so that state, county, and city jurisdictions may likewise, if they so choose, ban such parties.

Idea 27. Elimination of Congressional Pensions. All federal congressional pensions (except to the extent they are currently vested) should be suspended and hereafter barred. (Author’s Note: This would be unnecessary if term limits were adopted). However, even before the hopeful adoption of term limits, this pension-restriction step could reinforce the honorable concept (and earlier tradition) of the citizen, rather than the career, politician. (Blog 110, December 10, 2019).

Idea 28. Cap Congressional Pay Increases to the greater of CPI or X% (e.g., 3%). (Blog 110, December 10, 2019).

Idea 29. Eliminate the Congressional Health Care System so that members of Congress receive (or endure) the same health care system which is available to the American public. (Blog 110, December 10, 2019).

Idea 30.  Increase the Necessary Prosecution of “White Collar” Crimes by Defining, Tracking, and Reporting Their Occurrences. Data regarding nearly all crimes is carefully tracked by numerous federal and state law enforcement departments. However, since there is literally no formal definition of “white collar crime,” data regarding such crimes (e.g., frequency, type, number of victims) de facto goes untracked and unreported. Some argue that this is one of major reasons “white collar crimes” are (a) too frequently perceived as almost “victimless” crimes (other than rough references to X number of customers, etc.) and (b) too frequently under-prosecuted in the United States.

Idea 31.  Increase the Prosecution of “White Collar” Crimes by creating a new division in the DOJ and by allocating increased budgets for the prosecution of white-collar crimes. These cases are oftentimes highly complex and defendants in these types of cases are oftentimes, if not usually, represented by sophisticated and experienced counsel. The DOJ (and state authorities as well) need to create their own white collar prosecution divisions with parallel expertise and resources. Relatedly, the use of deferred prosecution agreements (“DPAs”) and non-prosecution agreements should be rarely, rather than commonly, used. Furthermore, they should not be allowed unless responsible high-level executives are prosecuted.  It should be noted that “I-promise-not-to-do-it-again” release tickets are not available anywhere else in our criminal justice system.

Idea 32.  Media – Clarity in Reporting. The media should be encouraged to report all civil penalties imposed against corporations in both absolute dollars and as a percentage of such corporation’s average corporate earnings for the last X (e.g. three (3) years). While large lump sum penalties imposed upon corporate defendants may appear to be substantial, when they are juxtaposed against such corporation’s average annual earnings their probable impact becomes far more meaningful. Compare, for example, a seemingly large $460.0MM fine. Certainly, such sum seems substantial to most Americans. However, if the media reporting shows that such amount represents only, for example, 4% of the corporation’s annual income (i.e., a measly 14 days of the corporation’s year), the “truth” of such amount becomes far more meaningful. (See M. Borgen Blog 106, October 16, 2019).

Idea 33.    Alllocation of Payment of Legal Fees and Costs. Adopt the European system of allocating the payment of attorneys’ fees to the losing party. This simple, but hugely impactful, change could help equalize the respective rights and powers of litigation parties – and the true right of access of all citizens to America’s judicial system.

Idea 34. Institutionalization of “Goodness” and the Routine Recognition Thereof. Encourage all departments of government and all schools, businesses, and organizations to more routinely recognize “goodness” – whether by nomination or selection. Better promote and publicize the recipients of award such as, to name just a few, Purple Heart recipients, Volunteer Service Awards, and the Carnegie Hero Fund Commission which honors civilians who risk their lives to save others and organizations. America needs to slowly elevate the recognition of not just the rich and powerful but the best, bester, and bestest of all Americans. (See M. Borgen Blog 119, July 20, 2020, for discussion of the use of Lifetime Citizenship Awards).

Idea 35. Expend Parental Leave Laws and Job Security Provisions and, relatedly, expand the role of fathers in the routine provision of childcare. While the U.S. is getting, if I may interject my personal beliefs here, better and better with respect to family leave protections, we are still distant and far behind the tolerance — indeed, encouragement — of family leave of other countries (e.g., in Scandinavia, family leave is normally for up to one year and in Sweden at least three (3) of those months must be taken by the father).

Idea 36. Limit “Automatic” Jus Soli Citizenship. Though a highly sensitive subject amidst our country’s currently too-heated discussions about immigration and though it would require amending the 14^th Amendment to the U.S. Constitution, it would be advisable to possibly restrict or qualify the principle of jus soli (right of the soil) so that anyone born in the US does not automatically become a citizen. “Birthright” citizenship may have made more sense – and been less impactful — decades ago when international mobility was far more limited.

Idea 37. Transform the Concept of “Affirmative Action” away from race and instead upon economic status. In other words, arguably a “better vision” of affirmative action would be based one’s economic status rather than one race. This is not offered as a “fixed idea,” but merely as an idea which may be worthy of considered evaluation.

Idea 38. Institutionalize Independent Fact Checking with respect to all media reporting and provide accuracy ratings. Such ratings could guide, but not dictate, viewership. Such media accuracy ratings could be done in a manner somewhat paralleling the institutionalized (and now routine) movie content ratings – From PG to X-Rated. To assist readers or listeners in understanding what they are reading or hearing, many useful ratings could be quietly posted with respect to all such media. Examples could include E (Entertainment), N (News), C (Opinion and Commentary). Critically important as well, is for there to be some form of rating and reporting (e.g., A-F) reflecting this media’s historical factual accuracy.

Idea 39. Teacher’s “Bonus” and “Incentive” Pay. Encourage school districts to institutionalize the use of bonus or incentive pay whereby teachers can receive school year bonuses (a) for achieving good academic results, (b) for working in historically poorly performing schools or school districts, (c) for teaching traditionally hard-to-teach or hard-to-staff subjects, or (d) for whatever defined goals and objectives are from time to time identified by such school districts. While this may at first seem, to a degree, “inappropriate” reward system, the general concept of bonus and incentive pay is widely recognized throughout our country’s economic system – why not in the context of education as well. 

Idea 40. Two Closing Quotes Humbly Presented as Both Idea and Reminder. As FDR once said, “there are many ways of going forward, but there is one way of standing still.” And at this juncture of our American history and with the rise of the hostility in our public conversations, it seems like today is not a good time to “stand still.” So, when should we start – well, as Harriet Beecher Stowe once said, “the past, the present, and the future are really only one – they are today.”

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Copyright 2023 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.

 

 

 

Blog No. 175

October 31, 2023 

Call Me Anytime

General Business Planning

or Corporate, Business or Real Property Law Matters

805-450-2602

–

Fixing America 

The Brilliance of Many – Part I

By Mack W. Borgen

University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author; 2023 Listee – Who’s Who in America.

Introduction

In 2010, 13 years ago now, I started writing my series of books. For nearly the first two (2) years, I meandered with how and where to begin. I was motivated because I believed that America had lost its way a bit – and I believed that “the place to begin was everywhere.”

I initially decided to write a series of books entitled “The Chance of a Lifetime – A Series of Seven Books about the Patient Remaking of American Life.” The working title of the last book in this planned series was “The Brilliance of Many.” This book was to set forth, page after page, a relatively detailed description of the hundreds of ideas for change which I had developed or which I had come across in my research and reading.

My writing plans changed, however. And the rest is, as they say, “history.”  Instead, in 2012 and 2013, I released The Relevance of Reason series about the “hard facts and real data” about the state of Modern America. In 2018-2019, I released the Dead Serious and Lighthearted. In these books i tried to present Modern American history in an entirely new and more engaging way — by presenting “The Memorable Words of Modern America.” And two years ago, in 2021, I released my far more personal “Writings of a Lifetime.”

But I always regretted not presenting – or at least listing — the many ways by which we, as a country, might make constructive changes in the way we live, the economy in which we work and invest, and the society of which we are all a part.

Recently, I came across nearly 300 pages of my notes and outlines of such ideas. Now, and although that book is not going to be written (by me at least), I have decided to present at least some of those ideas for your consideration. The first twenty (20) such ideas are set forth below. Many more will be set forth in later blog articles.

Please understand that the descriptions of these ideas, as you will see below, are presented in a very summary manner. I have not included any background or analysis of the subject issue or any identification of the probable issues of implementation.

Nevertheless, I hope that some of these ideas may still resonate. Some of them may – in some small way – motivate others where I have left off.

Some of the ideas are very broad in scope and “major,” and in a few cases, they are even “philosophical” in nature. Others are individually “minor” and, in a few cases, borderline pedantic in nature. They are nevertheless included because theoretically and collectively every step we take in the right direction might help. Enjoy and know that your comments are always welcome. 

Quick Listing of (Both Simple and Complex) Ideas for “Fixing America”

Idea 1.   Mandatory Public Service for all young Americans for a period of X years. (See my Blog No 109, December 3, 2019).

Idea 2. Long-Run Planning. Re-focus our societal planning upon long-run planning, actions, and analysis and re-introduce the consideration of long-term benefits.

Idea 3. “Name and Shame” – A Consolidated, Interstate, Simple-to-Use Registry for Reports of Convictions, Vexatious Persons Findings, and License Suspensions and Revocations. Adapt various means of “name and shame” as is readily done in other countries whereby people can readily identify in one consolidated database, for example, corporate and personal wrongdoers, felony convictions and sexual offenders, unduly (i.e., “vexatious”) litigious people, and medical, attorney and other forms of license suspensions (possibly with form of passage-of-time deletions). (See My Blog No. 106, Oct 16, 2019).

Idea 4. More Citizen Awards and Honors. Create a consolidated, easy-to-use, national and possibly state-based inspirational award and honor roll reporting system – possibly by age categories. Such honor roll recipients may include military citations and Purple Heart recipients, Peace Prize recipients, Pulitzer Award winners, school, public service, police and fire department awards recipients, etc.

Idea 5. Inspirational Signage. Post inspiration and motivational saying on the sides of school buses – e.g. “Do Well,” “Get Manners,” “Play Fair,” and “Be Kind.” I believe that this idea sounds inherently “lame “ — but why should these words and ideas and motivations not be regularly “advertised” as well.

Idea 6. Encourage Participation in social, community, and political affairs and thereby countering our growing “culture of complacency.” Gently teach that neither communities nor democracy itself can be a “vicarious experience.”

Idea 7. Senior Good Citizen and Recognition Awards. Recognize – or even monetarily award — those American Seniors who have reached a certain age and have, for example, (a) performed X years of public service (including military service), (b) never been convicted of a felony, (c) never filed bankruptcy. (See my Blog No 110, December 10, 2019).

Idea 8. Philosophical – “Business” vs “Personal” Ethics. Decrease the tolerated distinction between one’s “business” ethics and one’s “Personal;” ethics.

Idea 9. Corporate Ratings and Reviews. In a manner paralleling (albeit relatively lame and rarely tracked) Good Housekeeping’s “seal of approval” and Better Business Bureau ratings, formulate and publish corporate reviews with respect to their overall legal compliance, climate ratings, employment practices, etc. Such ratings could even track turnover rates and a multitude of other factors.

Idea 10. Material Modification of California’s Prop 13. Change the 2/3 majority for modification of property taxes down to a simple majority or, at a minimum, distinguish between residential and commercial properties whereby with such a “split roll” commercial properties would be subject to annual reassessments. It was never intended that by a massive percentage, the largest beneficiaries of Prop 13 capping of property taxes are commercial properties.

Idea 11. Implement the “Buffett Rule” whereby there would be at least a minimum tax on all individuals (and corporations?) with gross annual receipts or r venues in excess of $X.

Idea 12. Commence taxation of only domestic corporate income, rather than worldwide corporate income in order to confirm American corporate taxation laws with those of other developed nations (and to lessen the incentive for corporation to migrate to more tax-friendly nations. The US is now the only G-8 country and only one of six countries out of the 34 members of the OECD to use a “worldwide taxation system.”

Idea 13. Small-Business Short Form Tx Reporting. Adopt a de facto taxation and reporting short-form system for small business. Currently the taxation compliance costs even for small businesses are inordinate and a form of short-form reporting could be easily created and used.

Idea 14. Review All Property Tax Exemptions and the qualifying criteria therefor with such review focusing, for example, upon universities (especially non-profit universities), charitable organizations, and even churches and religious organizations (especially if they are de facto owned, managed, and controlled as de facto “profit-making organizations).

Idea 15. Mandatory Publication of Effective Tax Rates Paid Annually by Major Corporations and the CEO:Worker Pay Comparison Ratio for all publicly-held corporations.

Idea 16.  Create a High-Tech Version of Our National Guard (e.g., National Emergency Technology Guard) to expedite the rebuilding of our country’s technology infrastructure in the event of natural disasters.

Idea 17. Expedite Project Review Methodologies.  Facilitate all corporate, property, and development review and review systems to emulate Canda’s “one project-one review” process so that the federal government internally brings requests to various agencies rather than asking an army of lawyers and engineers to do the work for firms and entrepreneurs.

Idea 18. TERM LIMITS!! Of all ideas, this idea may be the single most constructive and important. Adopt term limits for at least all national elected offices. It is this author’s belief that this is single-handedly the one most important and curative change which can be made in our American society. The establishment of term limits could be, for example, a maximum of two six-year terms (i.e., 12 years) in U.S. Senate and four (4) two-year terms (i.e., 8 years) in House of Representatives. Nearly all U.S. polling shows that this idea is widely supported by most Americans – but the idea is (and will be) fiercely opposed by America’s growing hoard of professional politicians. Nevertheless, the adoption of term limits could simultaneously assist in (a) minimizing the concept of a “political career,” (b) diminish the power and leverage of lobbyists, (c) respectfully diminish the issues related to the age of many of our currently-servicing politicians, and (d) lessen the temptation of “investment-lobbying-bribery” by individuals and corporations in and to selected politicians.

Idea 19. Eliminate the tax-rate distinction between capital gain “income” and “wage/W-2/ordinary” income. The offering of the lower capital gain rates may have been initially driven by the concept of attracting investors in furtherance of the American economy. However, now, these significantly disparate income rates are, by and large, merely the different rates of income taxation imposed on America’s increasingly distinct classes – “the wealthy” and “the rest.” Though a highly complicated subject, it is believed that the elimination of the favorable capital gains rates will not diminish investments since the placement and use of investment money is largely a decision based upon relative returns – and the wealthy will not hoard cash (to be diminished by raw inflation) or placed into lower-paying CDs. Capital gains is more of an unjustified windful than a centerpiece of our American capitalistic society.

Idea 20. Award Attorneys’ Fee to Winning Party. Following the lead of most other industrialized nations to achieve fairness and to lessen the monetary leverage of wealthy (including corporate) litigious parties, require the courts to award attorneys’ fees to the winning party. (See my Blog No. 107, Oct. 29, 2019).

Regarding My Last Blog

Relating to an Alternative Means for Student to Repay Their Student Loans

Thanks to my readers regarding my October 17, 2023, Blog (“The Need and Means for the Honorable, Full Repayment of Student Debt”). This article proposed allowing public service to be recognized as a preferable means of repaying (as opposed to “forgiving”) student loan debt. Laren Bright, a brilliant and good friend from Los Angeles, suggested that permitting volunteering service to qualifying charitable and non-profit organizations should also be used. Another reader, my great friend Scott King from Medford, Oregon, observed (correctly I believe) that the ready availability of federally guaranteed loan programs has greatly contributed to the substantial raising of tuition rates by universities over the last 20 years.

My thanks to Messrs. Laren Bright and Scott King for making these fine observations.

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Blog No. 174

October 17, 2023

Fixing America – Idea 33

By Mack W. Borgen

University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author; 2023 Listee – Who’s Who in America.

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or Corporate, Business or Real Property Law Matters

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—

Quick Facts 

A Glimpsing of the American Workforce and Work Practices

The most dominant change in American work habits over the last decade has unquestionably been the growth in the practice and expressed desirability of flexible or hybrid work.

Some New Buzzwords:

Coffee Badge:  The act of going into the office to “show face” for a few hours and then leaving work.

Polyworking:  Workers who have a second job or a “side hustle.”

Some data:

69%   Workers who believe their employer company is requiring them to work from the office due to traditional work expectations.

23%   Employees who changed companies in 2023.

33%   Workers who spend 1 hour to 1.5 hours a day commuting.

46%   Workers who are polyworking (i.e., with a side hustle) (and another 36% plan to start doing so in the future).

25%   Workers who would be willing to sacrifice 15% of their annual salary for flexible working hours.

58%    Hybrid workers who regularly “coffee badge.”

56%    Workers who feel their stress has increased in the last year.

94%    Workers who could be convinced to come to the office.

54%    Workers who believe that business trips have returned to a pre-pandemic level.

68%     Managers who believe that hybrid/remote working employees are missing out on impromptu or informal feedback.

From 41% to 66% – Increase in in-office workers between the years 2022 and 2023.

46%      3-days in the office: By far the most popular working style amongst hybrid  workers (46%).

Source: owllabs.com (“The State of Work 2023”).

“Fixing America” Series of Article

                Over the last three years, I have presented a wide range of ideas for “resetting” and “fixing” America. This blog presents Idea 33 in this his “Fixing America” series of articles.

Fixing America – Idea 33

Repayment of Student Loan Debt

Creation of Means for the Honorable Loan Repayment of Student Loan Debt — Rather Than Debt Cancellation

Background: The student debt problem in the United States is substantial. It is a problem for both the nation and the millions of individual student debtors and their families.

Starting with the GI Bill in 1944 and the National Defense Education Act of 1958, the U.S. government for many decades has assisted students finance their higher education in order to bolster our country’s economic independent and national security. However, student loan debt has grown enormously in recent years – in fact, it has doubled over the last two decades. Student loan debt now affects millions of U.S. families with 44 million U.S. borrowers aggregately owing about $1.6 trillion. In the U.S., only aggregate home mortgage debt ($12.0Trillion) is higher.

Over the last several years there have been multiple proposals to “forgive” substantial portions of these debts by legislation or Executive Order. However, in each instance they have faced fierce political and fiscal objections.

For many reasons – and especially because student loans are critical to assisting young Americans in getting such higher education, the elimination of student loans is not a real choice. Also because of the rapidly increasing cost of U.S. universities (tuition, housing, etc.), student loans will continue to be both necessary and advisable. However, this author suggests that loan forgiveness is not the best solution to the repayment difficulties faced by many young Americans. Indeed, there is a far better way.

The recommendation against mere loan forgiveness has at least three (3) easily identifiable reasons. First, such forgiveness would be offensive (and, de facto unfair) to the millions of students and their families who did pay off their student loans. Second, such forgiveness would send the dangerous and misleading life message that debts, once incurred, do not need to be repaid. Third, there exists an honorable means by which students can efficiently and fully pay off their student loans early in their career.

Idea: The federal government should allow all (or some substantial percentage of) student loans to be deemed “paid in full” upon the completion by the student borrower of X months or years of national public service. Military service should be deemed only one form of debt-paying qualifying service. Indeed, it should not – and need not – be the only manner in which young Americans can repay their debt by service. Upon graduation, students should be allowed to repay their student loans by volunteering for any number of national or state programs. Qualifying loan repayment programs could include service in AmeriCorps VISTA (originally established in 1965), the Peace Corps (originally established in 1961), or in a multitude of federal and/or state conservation, parks and national forest, or teaching or inner-city programs. An inspiring model for such public service is certainly the glorious Civilian Conservation Corps (the “CCC”) which existed from 1933 to 1942. This program was major part of FDR’s New Deal, and it supplied jobs and offered work relief to hundreds of thousands of young men (ages 18-28) during the depths of the Depression. Equally importantly, the CCC completed hundreds of amazing conservation and development projects in rural lands owned by the federal, state and local governments (structural improvements (e.g., bridges), transportation (e.g., truck trails and minor roads), erosion control (e.g., dams), flood control (e.g., irrigation and drainage), and on and on. Qualifying loan repayment public service programs can achieve similar results for this country.

The amount of student debt repayment achievable under a government service program as here proposed, could be calculated based upon matching repayment funds equal to all or a percentage of the individual’s salary.

America would benefit from the enhanced growth of these volunteer service programs, and the student debtors would benefit from not being burdened for years by substantial levels of student debt. To a degree, this could be viewed as a de facto form of compulsory national service. If it is so viewed, then this author believes that would be fine and honorable as well.

(NOTE: While it is beyond the scope of this article, the federal government should also aggressively scrutinize any student loans owed to for-profit universities. It has been reported that while only 10% of the defaulting students attended for-profit colleges, almost 40% of all student loan defaults were to “for-profit” attendees. Maybe this is not surprising – but it is tragic – that the schools with the highest amount of debt are “universities” like the University of Phoenix. Especially if the U.S. government is going to participate in a means for the honorable repayment of student debt, governmental review and scrutiny (and, if and as necessary, closure) of these “for-profit” institutions is critical.

Implementation: The implementation of this type of service repayment plan could be relatively simple. Much of the “repayment infrastructure” is already in place. First, wholly apart from 2- and 3- year military enlistment plans, many non-military community service programs already exist at both the federal, state, and even local level. All that would be required is for the U.S. government, in its capacity as the loan guarantor, (i) to review and select qualifying community service programs, and (ii) thereafter, to track student borrower services and to eliminate their student debt depending upon the length of their service in such qualifying programs. 

Authors Note: I have long advocated some form of compulsory governmental service (military or non-military) (Borgen, M. “Fixing America” Idea No. 9, Nov., 2019) and achieving this — while at the same time assisting our young students in their honorable repayment of their student debt — could be extremely beneficial for this country.

 Quotes for the Day 

Luck is when an opportunity comes along,

and you are prepared for it.

 –

Don’t judge each day by the harvest you reap,

But by the seeds that you plant.

Robert L. Stevenson

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Copyright 2023 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.

 

 

Blog No. 173 

October 3, 2023 

Reading Time: 12 Minutes

By Mack W. Borgen

2024 Listee – Who’s Who in America; University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author.

Call Me Anytime

General Business Planning and Guidance

or Corporate, Contract or Real Property Law Matters

805-450-2602

—

Quick Facts

Many More Young Adults Now Living at Home

Reflecting the tricky (and evermore expensive) world in which we live, about 45% of young adults (ages 18-29) are now saving or sharing rent by living with family.

This is a radical shift in living demographics, but it also reflects the substantial increases in our general cost of living and especially the exorbitant increases in urban area rents and house prices – even modest home prices.

Top 10 States for Young Workers to Find Jobs, Live (Relatively) Affordably, and Have Fun

All “listing studies” are to a degree suspect and subjective, however a recent study examined employment rates, financial considerations (such as median household income), and lifestyle priorities ranging from the quality and cost of health care and the availability of restaurants, bars, museums, and movie theatres. Based upon those multiple factors, one study concluded that the following ten (10) states offered young workers the best possibilities for good employment, affordable living, and fun amenities.

• Massachusetts
• Rhode Island
• New Hampshire
• Maryland
• Connecticut
• Vermont
• Washington
• Minnesota
• New Jersey
• Oregon

Obviously, New England (and to a lesser extent the Pacific Northwest) “win.” There is no need to pack right away – but interesting.

American Religiosity and Spirituality

Gallup first attempted to measure the level of America’s religiosity and spirituality 24 years ago, in 1999. Recently, Gallup sought to again measure America’s “religiosity.”

In response to a series of questions, Gallup found that 47% of Americans described themselves as “religious,” and another 33% identified themselves as “spiritual but not religious.” Thus, fully 80% of Americans consider themselves “religious,” but two observations can still be made by comparing the 2023 data with the 1999 data, First, the nearly 20% of Americans who are neither religious nor spiritual has doubled in these 23 years, and possibly more significantly, the number of people who identify as “religious” has declined by 7% (extrapolated to the full U.S, population, that would be about another 23,100,000 Americans).

(Many) More Women in Positions of Power

After literally centuries, more and more women are assuming positions of power in the U.S. Set forth below is the summary data regarding the number and percentages of such women holding certain seats of power.

Women in U.S. Senate: 25% (25 Women) (16 Democrats and nine Republicans).

Women in House of Representatives: 28% of voting membership (91 Democrats and 33 Republicans).

State Legislatures: 29.9% of state senate seats and 33.7% of state house or assembly seats. (Note: In 2019, Nevada became the first state with a majority-women state legislature – Currently 62% majority). West Virginia was the state with the lowest percentage, at 11.9%).

Governors: 24% (Eight Democratic and four Republicans women governors).

Cabinet-Level Positions: 48% (12 women out of the 25 positions designated as Cabinet or Cabinet-level).

Fortune 500 CEOs: 10.6% (with 53 women heading major firms).

Fortune 500 Board Members: 30.4% (increased from a mere 9.6 percent about 30 years ago in 1995).

College and University Presidents: 32.8% (A tripling in the last appr. 40 years).

Source: Schaeffer, E., “The Data on Women Leaders,” Pew Research Center, September 23, 2023.

Recent Business and Real Estate Law Developments

Real Estate Law – Types of Guarantees in Commercial Leases

It is common for commercial landlords to require that a guarantor secure the obligations and liabilities of a tenant. This is especially true since frequently the commercial tenant is itself a “shell” limited liability company or corporation formed solely for the leasing of the subject space and the engaging of a business at the subject commercial site.

Therefore, it is now almost routine for commercial landlords to require either a personal or a corporate guaranty from a third-party to secure a tenant’s obligations under the lease. However, there are several different types of commercial lease guaranties. These types of lease guaranties fall generally into one of the following types:

1. Full or Absolute Guaranty. This type of “gold standard” guaranty requires the guarantor to cover all of the tenant’s obligations under the lease – including both monetary obligations (e.g., rent, operating expenses and utility charges) and non-monetary obligations (e.g., maintenance of insurance coverage, repairs, licenses and permits).
2. Partial or Limited Guaranty. This type of lease guaranty may be limited to just a tenant’s monetary obligations under the lease or may, for example, may be capped at a specific dollar amount. Note also that a guaranty may start as a “full guaranty” and then transition into a partial guaranty after a designated period of time.
3. Springing or Bad Acts Guaranty. This is actually a type of partial guaranty. This type of guaranty only becomes enforceable upon the occurrence of a specified event. The triggering event may be the filing of bankruptcy by the tenant or the discovery of a tenant’s bad act such as the commission of fraud or the tenant’s damages to the premises.
4. Good Guy Guaranty. Under this type of guaranty, the guarantor’s liability ceases upon the tenant’s vacation of the premises or after some reasonable advance notice of such intended vacation of the premises. There are, however, multiple variations of this type of limited guaranty. For example, the guarantor’s obligations may extend to reimbursing the landlord for the cost of restoring the premises, removing the tenant’s “improvements” to the space, or even assuring the full payment of lease brokerage commissions.

As noted above, especially because the tenant is oftentimes a space-specific LLC or corporation, the obtaining of personal or entity guaranties is oftentimes one of the most important aspects of commercial leasing.

California Strengthens Prohibitions Against Non-Competition (and Non-Solicitation) Agreements

Citing the need for employee mobility and open competition, California has again – by the addition of Section 16600.5 of the Business and Professions Code — strengthened the prohibition against the use of almost any form of non-competition agreements. Subject to some very narrow prohibitions, such agreements are null and void and effective January 1, 2024, they will be unenforceable – regardless of when or where they were signed and regardless of where the employee works (inside or outside of the state).

Possibly as significant is that employees and former employees can now bring private rights of action for both injunctive relief and/or actual damages (and the right to attorneys’ fees and costs) to enforce this prohibition.

It is frequently overlooked that California courts have also de facto expanded this prohibition to include post-employment customer non-solicitation provisions and even employee non-solicitation prohibitions.

Some would argue that possibly these prohibitions can be avoided by using a non-California choice of law provision if the employee has been represented by independent counsel when negotiating the employee’s employment agreement. However, this author believes that it is, at best, a risk to rely upon this possible exemption.

This author also believes that the courts may – and should – distinguish between the application of restraints during one’s employment vis-a-vis after one’s employment. However, even in these instances, the clear direction and seeming intent of these law is to fully ban the enforceability of these types of agreements.

California Enacts Powerful Legislation Adding Significant Climate-Related Disclosure Requirements for Many Corporations

In September, California passed two pieces of legislation which will usher in significant climate-related disclosure requirements for thousands of U.S. public and private companies which do business in California. These are unquestionably the most extensive emissions- and climate-disclosure laws enacted in the U.S., and these will be the first mandatory climate-related risk disclosure laws in the U.S.

While they only relate to large companies, it is estimated that as many as 10,000 or more companies will need to commence such disclosure compliance. Companies with more than $1.0BB in annual revenues must file extensive emissions- and climate-disclosures annually. Significantly, these disclosures must be verified by qualified, independent third-parties. Starting in January 2026, companies with $500MM in annual revenues also will need to file biennial disclosure reports.

This legislation is largely due to the impacts of climate change which have impacted California – such as wildfires, sea-level rise, extreme weather events, and extreme droughts. While there is still a small of community of Americans who elect to ignore or deny climate change, it cannot be ignored that the last year alone there were 23 separate billion-dollar climate/weather-related disasters in the U.S. alone.

Surprisingly, there is buried in the legislation an insultingly mild penalty for noncompliance. It appears that that companies which do not timely file such disclosure reports would be subject to only an administrative remedy of “up to $50,000.” While it is almost likely that more legislative and regulatory actions will be permitted, this non-compliance fine is at this time relatively small.

The underlying theme of these new climate-impact disclosure requirements is transparency for policy makers, investors, and shareholders. However, it is the opinion of this author that despite the certain value of such data assemblage and disclosure, some far more aggressive steps will have to be eventually taken to minimize the adverse impacts of greenhouse gas emissions and other climate-impacting matters.

A Quick Thought for the Week

 “Fight for things that you care about,

But do so in a way that leads others to join you.”

My Most Recent Publication

The White Binder (2022)

For Your Personalized and Detailed Personal Asset and Liability Management,

Estate Organization, and (Detailed) Disposition Planning Book 

 –Order Today–

Just email me at mwborgen@live.com (Mailing Address and Number of Copies)

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Copyright 2023 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.

Blog No. 172 

September 5, 2023

 Reading Time: 10 Minutes

By Mack W. Borgen

2024 Listee – Who’s Who in America; University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author.

Call Me Anytime

General Business Planning

or Corporate, Business or Real Property Law Matters

805-450-2602

—

Quick Facts

The World’s Largest Cities

In my book series, Dead Serious and Lighthearted – The Memorable Words of Modern America (Vols I-III), I devote an entire chapter to explaining the selection of the Year 1957 as the beginning of “Modern America.” It is there noted that in 1957 the entire US population was 157,000,000 – less than half of the current approximate 330,000,000 U.S. population — a mere seven (7) decades later. With those numbers in mind, examine the list of the world’s largest cities.

Note: Technically, city populations can be reported as the number of person’s living within the city’s “administrative” boundaries. However, it is much more accurate and revealing to use the populations of “urban areas.” These are oftentimes referred to as “metropolitan” measurements.  Because city “boundaries” are so misleading in describing the true size of urban areas, the following populations are “metropolitan” measurements.

1          Tokyo, Japan               37,300,000

2          Jakarta, Indonesia     33,400,000

3          Delhi, India                 29,000,000

4          Seoul, South Korea    25,500,000

5          Mumbai, India            24,400,000

6          Mexico City, Mexico  21,800,000

7          Sao Paulo, Brazil        21,700,000

8          Lagos, Nigeria             21,000,000

9          New York, NY, U.S.   21,000,000

10        Moscow, Russia          20,000,000

—

17        Los Angeles, CA, US 13,300,000

In a humbling manner, it should be noted that only one (1) U.S. is in the “proverbial” Top 10 Largest Cities. Only two (2) U.S. two cities are in the world’s Top 20 cities.

The Strained Explanation of the Airlines’ Right to “Bump” Passengers and Which Airlines Are Mostly Likely to Bump You

The sad place to begin is to recognize (if not understand) that an airline overbooking a flight is completely legal. Basically, this practice allows airlines to sell more boarding passes than there are seats on a plane. The concept is that this somehow “compensates” the airlines for passengers that do not arrive for the flight. However, this author wonders why it is the responsibility of on-time passengers to de facto assure the maximization of the airline’s seating capacity and profit margins – and do not the airlines keep the fairs of no-show customers.

Nevertheless, when a flight is oversold, the airline may ask for volunteers to give up their seat. If there are not enough “volunteers,” then some passengers may lawfully be involuntarily denied boarding.

Fortunately, the US Department of Transportation tracks how many passengers are denied boarding due to oversold flights.

Based upon the DOT data, one airline stands out as the worst – Frontier Airlines. 2,440 Frontier passengers were bumped in January-March 2023 (i.e., about one for every 2,500 passengers). Frontier Airlines’ bump rate was about eight (8) times higher than the next airlines. While vastly far fewer bumped passengers than Frontier Airlines, American Airlines has the second highest number of involuntarily bumped passengers. Southwest and Spirit also made the bad airlines list again.

A slight word of caution – the references to Frontier Airlines were based upon 2023 data. By far, Southwest Airlines was the worst in the year 2022.

Only three great airlines reported NO involuntarily bumped passengers – Hawaiian, Allegiant, and Delta.

Recent Business and Real Estate Law Developments

Real Estate Law – Commercial Leasing

In drafting commercial leases, it may be necessary for landlords to recognize and adapt to the growing trend amongst tenant employees and implement “dog-friendly” policies in the workplace. Various leases, insurance, and other documents may need to address this issue as vastly more people are using pets for social or stress-related issues. Note that leases oftentimes already lease-based or rules-and-regulations-based provisions relating to service dogs. However, some commercial landlords are now openly addressing requests for allowing tenant occupants to bring emotional support dogs.

This author does not have a social or legal opinion on this matter yet, but it is recommended that this growing trend be recognized and formally addressed in lease documents.

Real Estate – The Possible Use of Tenancy-in-Common Structuring as a Lawful Means of Avoiding Los Angeles’ New “Mansion Tax”

Recently, the voters of Los Angeles changed the City’s real property transfer tax ordinance so that the real property taxes due upon the event of a sale, transfer, or conveyance of Los Angeles real property have been dramatically increased. Although this change is colloquially referred to as the “mansion tax,” the higher taxes apply to the sale of all LA property – not just residential property.

To understand the potential cost of this tax, compare the traditional (small) about 0.56% documentary transfer tax to the “mansion tax.” Under the new tax, the transfer taxes can be as much as 4% to 5.5% of the gross sales price – a 10-fold increase resulting in potentially hundreds of thousands of dollars.

Although I advise caution because I believe this methodology may be challenged in court, some counsels believe that the impact of the mansion tax can be minimized by the use and transfers of tenancy-in-common interests rather than the more normal fee ownership manners of holding title.

Business Structuring – Disclosure of LLC Ownership Information 

Introductory Note: Many lawyers, including this author, track certain other jurisdictions (e.g., Delaware and New York) since they oftentimes portend laws, rules, and regulations which may soon be enacted in California.

There are many reasons why individuals and entities desire to keep confidential their ownerships of and investments in other businesses or real estate transactions. In some instances, individuals go to great lengths through the use, for example, of stacked LLCs and trusts, to maintain privacy regarding their ownership and investments portfolio.

Recently, however, there may be signs that this may change. The New York Assembly passed the “LLC Transparency Act.” This Act, if signed by New York Governor Hochul, would require limited liability companies (LLCs) formed or registered to do business in New York to disclose the beneficial owners to the NY State government. This enactment follows the 2021 Congressional enactment of the Corporate Transparency Act (Effective Jan 1, 2021) which established a reporting procedure of the beneficial owners of both corporations and LLCs. This effort to make beneficial ownership information available to law enforcement and, in some circumstances, to financial institutions.

Caution:

Increasing Use of Deceptive California Statement of Information Scams

California requires that businesses (both corporations and LLCs) to file Statements of Information in order to maintain their legal standing. Corporations are required to file them annually in the month of registration, and LLCs must do so biennially (and within 90 days of registration).

The stated purpose of such filings is so that the State maintains accurate information about companies doing business within the state. The filings can be done easily and inline at https://bizfileonline.sos.ca.gov/ .

Recently, there has been a surge of misleading (i.e., fraudulent) mail solicitations sent to both domestic and foreign corporations and to limited liability companies. These mail solicitations are designed to mimic official forms. Unsurprisingly, these solicitations are often accompanied by threats of penalties, fines, suspension, and even business seizure. To avoid all of these issues and to avoid sending your business information to unknown third-parties, it is strongly recommended that your business file Statements of Information directly with the State Office (the CA SOS Business Programs Division) at https://bizfileonline.sos.ca.gov/ .

Contracts – Necessary to Read Agreement Prior to Its Execution

Unsurprisingly, the fact that an individual did not read an agreement (a purchase of a minority ownership interest in a Delaware LLC), proved fatal to his claim that he had been fraudulently misled. Considering the plaintiff’s de facto negligence, the Delaware court denied the plaintiff any relief and dismissed the case.

The court found that the plaintiff had executed the signature page, and thus, because he admitted – in fact, insisted, that he had not read the agreement, the court would not entertain any claims of fraud and would not rescind the relevant agreements based upon any of the plaintiff’s supposed fraudulent inducement claims.

Employment Law

Increased California Minimum Wage

Effective January 2024, the minimum wage in California will increase to $16.00 per hour from $15.50 per hour.  This change may trigger higher base salary requirements for employees deemed exempt under the so-called “white-collar” exemptions (i.e., the professional, administrative, and executive exemptions). This is because to be “exempt” the employees must be paid a fixed salary equivalent to at least two times the state minimum wage for full-time employment.

New Compliance Obligations for Employers Using / Considering Criminal History of Employees and Prospective Employees

California employers have for many years been subject to the state’s Fair Chance Act. Very summarily, this Act requires employers (a) to wait until after a conditional offer of employment to inquire about or consider the prospective employee’s criminal history, (b) to conduct an individualize, job-related assessment before rejecting an applicant due to his or her criminal history, and (c) to follow a two-step notice process if action is taken based upon a person’s criminal history.

Now, effective October 1, 2023, there may come a number of additional requirements. For example, the “non-consideration of criminal offense” prohibition would be extended not only to employment decisions but also to decisions regarding promotions, training, discipline, lay-off, and termination. There are also additional prohibitions of referencing criminal history prohibitions in any job posting.

Some (Random) Thoughts for the Week

 “A time comes when silence is betrayal.”

Dr. Martin Luther King, Jr.

–

And on a lighter note,

– 

You only live once,

But if you do it right,

Once is enough!!

Mae West

 

 My Most Recent Publication

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More Than 130 Pages of Personalized Data Organization, Contact Information, Personal Gifting, Estate Reminders

For Your TOTALLY Detailed Personal Asset and Estate Organization

 It will take about 2-3 Days to complete

But It Will Be Invaluable to Your Heirs

–Order Today–

Just email me at mwborgen@live.com (Mailing Address and Number of Copies)

(Binder Format, $49.95 plus $6.95 Shipping, Pay After Delivery)   

Copyright 2023 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.

 

 

Blog No. 171 

August 22, 2023

 Fixing America – Idea 32

By Mack W. Borgen

2023 Listee – Who’s Who in America, University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author.

Call Me Anytime

General Business Planning

or Corporate, Business or Real Property Law Matters

805-450-2602

—

“Fixing America” Series of Articles

Over the last three years, I have presented a wide range of ideas for “resetting” and “fixing” America. This blog presents Idea 32 in this his “Fixing America” series of articles.

EDITOR’S NOTE: In this blog, for the first time ever, I am offering an article written by others. The co-authors are two Dean’s List college students – my son, Brody S. Borgen, who is attending the University of Montana, and Sofia Castillo, who is attending Oregon State University. Their article is included because it is my humble opinion that our society, and especially our aged leaders, are not listening often enough or carefully enough to these younger Generation Z Americans. Many of these young Americans will be voting in next year’s Presidential Election, but even more importantly, they, for the proverbial better or worse, will soon be picking up where we leave off. For these reasons, it is both appropriate and critical that we know now “their issues” — those issues which they deem to be the most critical to our nation.

The American Rift 

The Growing Divide in Our Nation Between Generations 

Co-Authored by

Brody S. Borgen (Dean’s List Student, University of Montana)

and

Sofia Castillo (Dean’s List Student, Oregon State University)

Throughout American history, people’s views and ideas of what this nation stands for have changed. As young people begin to mature and emerge with their own political views, a rift often exists between young and old generations as they struggle to see eye to eye on many issues. Despite this rift and the many differences of opinions, it is important for all of us to attempt to understand each other. After all, our democracy relies upon us coming together – not coming apart – to formulate and implement ideas that will help build a better nation for all Americans, young and old.

Listed below are ten issues that we believe our peers, our fellow younger Americans, see as the biggest threats both to our nation and to our individual lives. These issues are not listed below in any particular order, and again, this list is based solely upon our perception of those issues which we believe our generation, Generation Z, sees as America’s biggest problems. These issues certainly may differ greatly from what older generations tend to see as important to the survival of the nation. However, to a degree, that is exactly the point of this essay. We hope that this listing may help, in some small measure, to bridge the gap between our generations so we can all come to a better understanding about the future direction of our nation.

Black Lives Matter Movement: Younger generations are continuing to recognize how forms of racism in the past have evolved and become so institutionalized that they remain almost unnoticed. Police brutality against unarmed Black people is the main injustice that has shaped and created the Black Lives Matter (BLM) movement. This movement started in 2013 with the killings of Trayvon Martin, Micheal Brown, Eric Garner, and Rekia Boyd, among others. As more innocent African Americans were killed, the movement grew. Unsurprisingly, Black Americans and young Americans are among the demographics most likely to support this movement. The growing support from younger generations could itself be a reflection of the changing racial demographics in the United States. As far back as the 1990s, the white population proportion in the United States has been steadily declining, increasing the ethnic and racial diversity of American society. For reference, the population percentage of Non-Hispanic White Americans has shrunk from 55.8% in the millennial generation to 51% in Gen Z. The rest of the population includes a mix of other ethnic groups, namely Hispanic, Black, Asian, mixed race (have two or more races), and American Indian. Over the last couple of decades, the younger generation of BLM activists were also able to effectively bring in more supporters by utilizing digital tools. Video footage of George Floyd’s death in 2020 was spread throughout a variety of media platforms including news programs, YouTube, Twitter, and Facebook. After Floyd’s death, hundreds of protests were held all over the nation. While most of these protests were peaceful, some turned into violent riots. After the initial protests against George Floyd’s death concluded, the number of supporters of the BLM movement has been declining. However, despite the declining numbers, the BLM movement has made young American population realize the powerful political influence of social media in modern day America.

Climate Control: I do not think anyone will be surprised that climate change is included in this list. Climate change tends to worry younger generations because many of them fear that they will have to live with the consequences in the many coming years. There are so many different factors that people worry about from waste to CO2 and shrinking polar ice caps. All of these components of climate change lead many members of Generation Z to be more conscientious of their impact on the world around them. Many previous generations have not had to think about this problem as the science surrounding it has only emerged in the past few decades. Regardless, many young Americans make it their priority to fight for what they believe to be an issue of human survival on Earth. Whether that be from the high school students in Montana who have sued their state government for damaging the ecosystem to the simple act of Greta Thurnberg skipping school to protest climate change. For many young people, this is the issue of our time. It should be noted that the big focus and perspective separation between young generations and older generations is because climate change is such a slow-moving process. Many members of the older generations are not worried about it since they do not believe they will ever live to see the full consequences of it. The issue is thus kicked down the proverbial road to future Americans, but many members of the younger generation believe that we can no longer afford to push off the inevitable. However, with the truly massive scale of this problem, there continues to be a struggle to find viable solutions that would not have massive negative impacts on other parts of human life across the world.

Abortion/Women’s Health: When Roe v. Wade was overturned in 2022 it upset many people across the United State. Since 1973, Roe v. Wade protected a person’s choice to get an abortion up until the fetus could survive outside the womb. However, after Roe v Wade was overturned by the U.S. Supreme Court in the Dobbs case, many states introduced laws that restrict individuals access to abortions or banned them entirely. So far twenty-one (21) states have banned abortions or placed restrictions on them. These states include Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin. Contraceptives and emergency contraceptives, such as Plan B (the “morning after” pill) are still legal in all 50 states so far. Nevertheless, more than 90 million women now live in areas that do not provide a full range of reproductive health care. Some states have expressed intents to restrict emergency contraceptives or general contraceptives in the future. In response to abortion restrictions and the possibility of restricting contraceptives many people around the United States are gathering in groups to protest. Younger generations generally are more supportive of abortion rights. Around 72% of people that are 18-29 years old, which combine Gen Z with young Millennials, believe that abortion should be legal in all or most cases. While men and women of most generations typically hold similar opinions on abortion rights. Gen Z is the only generation where men and women have significantly differing beliefs about abortion. 71 percent (71%) of Gen Z women believe abortion should be legal in all or most cases while only 59 percent (59%) of Gen Z men hold this belief.

Student Loan Debt: A challenge facing the young generation that threatens our future is massive amounts of student loan debt. More young adults pour into colleges year after year, and they take on thousands of dollars of debt to pay for an education which may itself have diminishing returns. Over the past 40 years, the cost of college tuition has increased an exorbitant 1200% while the average change in prices over this time period was only 250%. This has led the American student population to owe over $1.75 trillion dollars or an average of $36,500 per person. The change in pricing is well exemplified by private universities that now routinely charge well over $50,000 a year. This student loan debt crisis is not helped by the fact that many young adults fall into college as the default without any other options and end up spending thousands of dollars for “experiences” that colleges claim to provide. Unlike former generations, college is not the one road to prosperity because there are many other career-oriented educations (e.g., trade schools) that can provide valuable work experience while costing a fraction of the amount demanded for the traditional college education. Nevertheless, many members of the public still feel that a college education is the only way despite the ever-increasing costs. This continued lack of understanding about the impact of this debt leaves young Americans vulnerable to falling into a financial hole just as they begin their professional careers. College is still a very viable option, however, but it needs to be approached more carefully than in the past. Although there is still great value to be gained, the costs of college need to be measured against the debts that one must incur to obtain such a higher education.

Cost of Living: This section is, to a degree, a continuance of the student loan debt issue addressed immediately above because, in a similar vein, young Americans have a darker outlook on their own personal financial future. Housing prices have increased at rates well above CPI such that, for example, the median home price in America has quadrupled over the past 30 years to nearly $400,000. Almost 70% of Millennials have no belief that they will ever own their own home. A key part of the American Dream is no longer a reality for most young Americans. Similarly, there is no longer a way for young Americans to work a normal job and to support a family on a single income like in previous generations. In those previous generations, honorable and simple store managers could support their families and own their own home. But that is now something that younger generations could only dream of because inflation has so outpaced wage growth. More and more young Americans rely on interest heavy debt like credit cards and payday loans to be able to pay bills. More and more Americans have to live with roommates or live at home well into their late 20’s early 30’s just to be able to pay their bills. This not only hurts younger generations but also it places personal and financial pressure on older generations who are thus forced to financially support their children for more years. Looking down the proverbial road, younger generations will also struggle to put money away for their own retirement as older generations have. More and more Americans are now planning to work well into their 70’s in order to financially survive. In sum, through a combination of increased home prices, slow wage growth, and a lack of financial literacy, many young Americans worry about their financial future.

Lack of Trust in Government: Younger generations are increasingly pessimistic about the ability of the government to protect the American people and to build a better society for us to live in. In past generations, the government was seen as a stable force for good in the world. It was not until the truth about Vietnam came out and how the government lied to its citizens that more people began to doubt the true honesty, intentions, and nature of the government. Over the past 50 years, faith in the government has further slipped away as our politicians are continuously rocked by scandal after scandal. Younger generations were never raised in a time where the government was seen as “the good guys.” Instead, we look at our government with more of an apprehensive fear of their choices, and we ponder the extent to which governmental decisions may have been influenced by corruption or bribery. This leads us to have to try and figure out different avenues to try to solve problems in our society because we do not have faith that our leaders will help us. That is why many young people join non-profits or other independent organizations in an attempt to try to solve societal issues with as little governmental actions as possible. I believe older generations are beginning to agree with younger generations that as more and more corruption on both sides of the aisle is exposed. All we can hope for is that we may come together to build a better and more representative government going forward — one that accurately reflects our beliefs and one that does merely serve to divide us – even further. 

LGBTIQA: LGBTIQA+ rights should be expected to make this list, especially considering that younger generations in the United States are more likely to identify with these communities. For instance, 19.7% of the adult population of Gen Z identify as LGBTIQA+ whereas only 11.2% of millennials and 3.3% or less of older generations do. This is significant for many reasons including the fact that people who are part of these community’s experience significantly higher rates of discrimination in healthcare, employment, education, and public spaces than heterosexual individuals. These disparities lead to adverse effects on economic, physical, and mental well-being among LGBTIQA+ individuals. As younger generations take a stand against these issues, they also incorporate their newfound political power within social media to reach a larger audience. In a parallel manner, today, more and more film companies are incorporating gay, trans, and bisexual characters into their new movies and series. However, even despite increased representation in films, cartoons, and series, the stigma surrounding LGBTIQA+ communities persists. In a similar manner, drag shows are believed by some to be dangerous, especially when children are exposed to them. This ideology has led to some states to pass legislation that bans or censors’ performances such performances. Unsurprisingly, protests against drag performances are becoming increasingly common and all over the nation threats and violence are being made against drag performers. Another concern among parents with younger children is the notion of allowing gender affirming care in schools. Gender affirming care is roughly defined as a range of psychological, social, medical, and behavioral interventions intending to assist and affirm an individual’s gender identity when it varies from the gender they were assigned at birth. The concern that exposing children to this type of care too early can have negative consequences to their mental health has led to states banning or restricting minors’ exposure to gender affirming care. As members of the Gen Z generation are more likely to identify as gay, lesbian, bisexual, transgender, asexual, intersex, or queer/questioning it is of little surprise that they are also more likely to support gender affirming care.

Body Positivity: Body positivity and acceptance started as a movement in the late 1960s. Since then, it has evolved and gained popularity. Initially, the Fat Acceptance Movement’s main goal was to end fat-shaming of white people. As more issues arose through the years the movement was expanded to address each such new issue. Now, the body positivity movement aims to change how society and individuals view weight, size, and appearance. The movement’s intent is to encourage more acceptance of all types of people including people of color and other minority groups. Mainstream fashion has been majorly impacted by this movement. For example, fashion companies used skinny white women for decades to model their new clothes in magazines, runways, and commercials.  Now, the fashion industry is becoming more accepting of different ethnicities and body types. Many popular clothing brands such as Aerie, Old Navy, Target, and Abercrombie & Fitch are incorporating more diversity in their clothes by providing sizes up to 4X and even creating mannequins to showcase their bigger sizes. Models in ad campaigns and magazines are becoming more representative and presenting curvier people, plus sized people, and people of different ethnicities. Some critique this movement as encouraging an unhealthy lifestyle by praising obesity, however unrealistic beauty standards themselves can lead to extremely unhealthy lifestyles as well. Eating disorders have been increasing in the United States, especially among younger people. According to the National Library of Medicine, nearly one in seven males and one in five females will experience an eating disorder by the age of 40. Teenagers and people in their early to mid-20s are most likely to suffer from an eating disorder. In addition, LGBTIAQ+ people, females, victims of bullying, and athletes are most at risk of developing some form of eating disorder. To a real, but regrettably unmeasurable degree, the increasing prevalence of eating disorders may also be from negative mental impacts of COVID 19 and social media.

Mental Health: Mental health is another huge concern for younger generations in the United States because teenagers and young adults are being diagnosed with psychiatric disabilities at alarmingly high rates Tragically, roughly 42% of Generation Z’s population has been diagnosed with a mental health disorder. The most common disorders are anxiety followed by depression, ADHD, and PTSD. Some factors that may be influencing Gen Z mental health include school shootings, financial stress with student debt, politics, and joblessness. Certainly, the use and abuse of social media is also recognized by many as something that can worsen one’s mental health. On a positive note, and despite social media’s negative influence, Gen Z has also used social media to raise awareness and destigmatize mental disabilities. In the past both social and intellectual disabilities were dealt with in a very private manner because of the stigma surrounding the subjects. It was believed that if one had a mental illness, it reflected poorly on their mental state. It was also believed that people with intellectual disabilities could be a danger to society and themselves. For instance, if one was diagnosed with schizophrenia or bipolar disorder, they were more likely to be seen as dangerous to themselves and others than someone with ADHD. These ideologies have persisted through the years, but younger generations like Gen Z are making efforts to change people’s misconceptions about the implications of mental health issues. Instead of isolating intellectually disabled people in private shame, Gen Z tends to be open and actively attempt to connect people who are struggling. Therapy is now viewed in a more positive light than before, and in some cases, accommodations now exist as well as extra help for those who need it. For example, many elementary schools, middle schools, high schools, and universities offer various forms of support for intellectually or emotionally disabled students. Similarly, as a result of growing empathy and understanding and in some cases legislation, there is also more awareness and some provisions and protections for people with psychiatric disabilities in the workplace.

Gun Control: Gun control and gun rights continue to be a hotly contested issue across America, and in many cases young Americans tend to be at the center of that conversation. Many young people have strong feelings surrounding gun control as school shootings have become more prevalent over the past 20 years than ever before. Growing up in a time where shootings were on television everyday has led many young Americans to believe gun control to be a valid solution to the plethora of gun violence. However, over the past two decades very little has changed in the way of America’s gun laws. For this reason alone, many younger Americans put gun control at the forefront of how they cast their vote. There are many examples. This change has been seen by many young Americans become supportive of gun control organizations such as March for Our Lives and Moms Demand Action. These organizations attempt to turn all the young voices into one coherent voice that can be heard by legislatures. However, many other young Americans still view gun rights as an essential part of American life. With trust in the government at all-time low and especially with the arrival of more advanced technologies, more people, including young Americans, believe that having firearms to protect yourself against the government is both a valid and a necessary idea. These opposing viewpoints are both spearheaded by discussion on future generations and how pervasive gun violence may impact their lives going forward. Regardless of one’s view on these issues, it is deeply on the minds of many members of Generation Z.

 Closing

America is always changing, and we change our beliefs. However, if we wish to come to a resolution on any issue, it is important for us to see other’s perspectives and attempt to reach a mutual agreement on them. Hopefully, this article helps to bridge the gap between the old and the young so we can all come to a better understanding as we try to move forward in our ever-changing world.

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A Million Little Details – Tons of Names, Addresses, and Reminders 

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Copyright 2023 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.

 

 

Blog No. 170 

July 25, 2023 

Reading Time: 7 Minutes

By Mack W. Borgen

2024 Listee – Who’s Who in America; University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author.

— Call Me Anytime —

General Business Planning

or Corporate, Business or Real Property Law Matters

805-450-2602

—

Quick Facts

AI Laws – It Was Only a Matter of Time …

New York recently began enforcing a first-of-its-kind AI law centered upon the use of AI in hiring. Under the new law, employers using AI technology in the hiring of new employees must inform the prospective employees and must submit audits showing that such AI systems are themselves “unbiased.” This is not a small matter — it is reported that AI technology is now used by as many as four in five employers for everything from resume screening to initial chatbot interviews. Unsurprisingly, AI hiring laws are currently being drafted in several states, and there is broad consensus that some form of federal guidelines will likely be needed.

West Hollywood – The Highest Minimum Wage in the Country

The “Fight for 15” protests for a $15 minimum wage have long since been surpassed in many jurisdictions. And now, as of July 1, 2023, West Hollywood, CA mandates the highest minimum wage in the country with a record $19.08 per hour mandate (Author’s Note: I have no idea why a more “rounded” number such as $19.50 or $20.00 wasn’t used). However, even here, the city enacted some limited relief for certain employers. For example, a business can apply for a one-year waiver if they/it can show that compliance would force (a) the filing of bankruptcy or (b) the reduction of its workforce by more than 20%.

While there are valid arguments both for and against the imposition of minimum wage requirements, a far more productive focus would be upon the constantly widening disparities of wealth and the (since the mid-1980’s) decline of our countries’ middle-class – and with it, successful, “middle-class” businesses.

Uses 95% Less Water – World Largest “Vertical” Farms Opens in Dubai

Scheduled to produce more than 2.0MM pounds of leafy greens annually and using a closed-loop watering system, the facility uses 95% LESS water than traditional farms. The facility is scheduled to still produce three (3) tons of output per day.

In light of the devastating water shortages especially in the Southwest U.S., it might be advisable to consider using such “vertical” farming. See also, Borgen, Mack W., “Fixing America – Idea 28 – Two Solutions to the Western States’ Drought and Water Shortage Problem,” March 13, 2023, at www.mackwborgen/com . .

More and More (Private) College Closings and Mergers

While students continue to flood into flagship universities and “brand-name” colleges, more and more smaller colleges and universities have been struggling. As a result, about 200 colleges have closed in the last decade. This is quadruple the number which closed in the prior decade. In addition, in the last four years alone, there have been 95 college mergers — compared with 78 over the prior 18 years!

The advantages of college merger can be compelling – broadening of enrollment base, diversification of programs, expansion of facilities, and efficiencies of scale.

And Some Universities Are Getting Larger (and Larger!)

As of the 2022-2023 academic school year, the following is a list of the countries’ largest ten (10) public universities.

1          Texas A&M                            College Station, TX    74,869 students

2          Univ of Central Florida          Orlando, Florida          68,442 students

3          Rutgers University                  New Brunswick, NJ    67,620 students

4          University of Florida              Gainesville, Florida    61,112 students

5          Ohio State University             Columbus, Ohio          60,540 students

6          Arizona State University        Tempe, Arizona          57,588 students

7          Univ of Illinois-Champaign    Champaign/Urbana, IL  56,644 students

8          Florida International               Miami, FL                   55,687 students

9          University of Minnesota         Minneapolis, MN        54,955 students

10        Univ of Texas at Austin          Austin, Texas              52,384 students

Special Thanks to Mr. Robert Badal

Recently, I have written a couple of articles about various aspects of corporate wrongdoing and the resultant fines, judgments, and settlements. As Idea 29 in my Fixing America series, I summarily outlined the need for some personal liability on the part of senior management for corporate wrongdoing. As Idea 30 and so that the U.S. public could more accurately assess the appropriateness of the amount of any fine, judgment, or settlement, I suggested that the media implement “perspective reporting” whereby the imposed amounts is compared to, for example, the defendant corporation’s annual earnings.

Mr. Robert Badal, a great friend and brilliant attorney, pointed out to me that possibly the reader should also be reminded that not only may such fines, judgments, or settlements be small in comparison to the firm’s annual earnings but also they are tax deductible! Consequently, albeit indirectly, the U.S. taxpayers “contribute” to the payments of these fines and settlements. This is an excellent point, and my thanks to Mr. Badal for adding this note.

Recent Business and Real Estate Law Developments

BofA Agrees to Another $250,000,000 in Bank Fraud Settlements

The Bank of America recently agreed to another $250.0MM in settlement of its multiple consumer frauds. $100.0MM will be used to reimburse customers, and $150.0MM are fines relating to its “double-dipping” on overdraft fees, knowingly withholding reward bonuses on credit cards, and opening customer accounts without their knowledge or consent.

This is especially disappointing since the BofA was supposedly trying it “clean up its reputation” after many prior settlements and judgments. Instead, it appears to be following the Wells Fargo model of consumer deceits.

As I have written previously, it is the opinion of this author that until some form of direct and personal financial liability or criminal liability is imposed, these types of “no-admission-of-wrongdoing” settlements will continue. They will be included as line-items in corporate budgets, and they will be written off and viewed as merely a “cost of doing This is despite the fact that double-dipping, fake accounts, and other forms of “junk fees” are nothing less than straight fraud. Please see my recent article entitled “Fixing America – Idea 29 – The Need for Some Direct, Personal Liability of Senior Management for Corporate Wrongdoing.” (Blog No. 167, June 6, 2023, at www.mackwborgen.com ).

Employment Law

– Birthdate Ban – Prohibition of Many/Most Age-Related Inquiries –

More states are enacting prohibitions against employers’ asking age-related questions or even obtaining age-disclosing information. For example, Colorado’s new law (effective July 1, 2024) prohibits Colorado employers not only from inquiring about a prospective employer’s age or date of birth but also from asking about or obtaining information about a prospective employee’s dates of attendance at or date of graduation from schools and colleges. As always, there are normal exceptions relating to jobs which themselves have age-based requirements such as those involving the sale of alcohol or driving of certain types of equipment. It should be noted that this Colorado law applies not only to employers based in Colorado but also multi-jurisdictional companies which advertise and hire within the state. Under Colorado’s law, there is not a private right of action, but substantial fines can be imposed by Colorado’s Department of Labor and Employment.

Authors Recommendation: It may be prudent to routinely advise prospective employees’ of their right to redact any information about their age (including any university graduation date(s)).

Corporate Transparency Act (the “CTA”)

– New Federal Reporting Requirements on Small Businesses –

The CTA’s effective date of January 1, 2024, is coming soon. With it comes a series of reporting requirements to be made to the US Department of Treasury FinCEN division. These new reporting obligations are under the CTA legislation which, in turn, is a part of Congress’ Anti-Money Laundering Act of 2020.

Basically, these reporting requirements apply to small companies with fewer than 20 employees and require them to report certain “beneficial ownership” information. Adding to the list of a business’ burden, the idea is that the data from such reporting can be used to create a national registry of beneficial ownerships of companies. Then, this “national registry” can be used to more effectively combat money laundering, tax fraud, etc. Companies. Even (indeed especially) small companies will normally be required to make only a one-time filing in order to provide beneficial ownership information. There are many exemptions – such as (a) large corporations with more than 20 employees, more than $5.0MM gross receipts or sales, and an operating presence at a physical office in the US., (b) publicly-traded companies, (c) venture capital funds, (d), trusts, and (e) subsidiaries etc.

The reporting content focuses upon identifying the “beneficial owners” of the companies, their date of birth, complete address, and some unique identifying number (e.g., from a passport or state-issued driver’s license etc.).

Implication. Basically, this new CTA reporting just adds to the complexity of business formation and operation in the U.S. and arguably reinforces the necessity, in this author’s opinion, of having close and competent (i) business, (ii) employment, and (iii) tax counsel (or an experienced CPA firm) both at the formation stage and during the operational phases of one’s business.

Real Estate – Managing Commercial Real Estate Taxes

in Today’s Challenging Commercial Real Estate Market

There are multiple examples of the poor state of our country’s commercial real estate market. In San Francisco, an office building which was worth $300.0MM in 2019 just sold for less than $70.0MM. Also, the owners of San Francisco’s premier downtown shopping mall recently announced that they are abandoning the property due to plunging sales, high vacancies, and low retail foot traffic. Similarly, the vacancy rates for downtown office space in Los Angeles is 24% and 22% in San Diego.

Many local jurisdictions are seeking ways to address this issue and to minimize the attendant consequences. For example, Boston recently announced a major plan to offer huge (and long-lasting) tax breaks to owners of commercial buildings which convert their buildings to residential space. Also, property owners and their counsels should closely review the possible use of Proposition 8. It was adopted shortly after the 1978 passage of California Prop 13, and under Prop 8, property tax assessments may be reduced when there is a decline in market value. Basically, the combined effects of Propositions 8 and 13 is that the taxable value of locally assessed real estate is limited to the lesser of its fair market value or its base year value (usually the year of acquisition or construction).

In addition to close tax assessment reviews, sometimes — with the advice of real estate and tax counsel — commercial property owners should closely identify all alternatives – even the most “creative” alternative such as initiating direct negotiations with governmental and quasi-governmental authorities and/or utilizing the many ground lease alternatives which might help preserve at least some long-term value in the property.

Employment Law – Family Medical Leave Act Continues to Expand

There are now 14 states which have family and medical leave programs – including California, New York, New Jersey, Oregon, Washington, and Minnesota. They vary slightly in details (e.g., applicability, time of permitted paid leave), but the common themes are that if a person has been employee (full-time or part-time) for at least X months (e.g., 12 months) and/or worked at least Y hours (e.g., 1,250 hours) over the past year, then they should be entitled up to 12 week of paid leave for (a) serious medical conditions, (b) bonding leave for biological, adoptive or foster parent), (c) family care lease (care for a family member with a serious medical condition), (d) safety leave (time off for victims of domestic abuse, sexual assault, or even stalking of the employee or a family member of such employee), and (e) qualifying exigency leave (relating to an employee being call to active military duty).

Despite the existence of these Family and Medical Leave Act, it is estimated that only about 50% of employees in the U.S. qualify especially because of the minimum 50-person employees’ requirement. 

Copyright 2023 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.