Current COVID policies result in a small percentage of us endangering a big percentage of us

Editor’s note: This commentary is by Rick Hubbard, who is a native Vermonter, retired attorney and former economic consultant, now living in South Burlington. It appeared as a VTDigger Commentary on January 3rd, 2022.

     COVID noncompliers, a small but significant percentage of us, claim to be standing up for their rights to freedom and liberty. Refusing medical advice to be fully vaccinated, mask in public, and social distance speeds the spread of COVID among themselves and to the rest of us. More suffer.

     We must stay home from work, either because we’ve caught COVID, or must watch over our school-aged kids who can’t be in school due to increased COVID, or we don’t feel safe enough to work. Family earnings drop, our hospitals become stressed, schedules are disrupted, our well-being suffers, and our economy is impaired.

     But let’s remember, our Constitution provides those rights to us all. And each right is balanced by an appropriate level of responsibility.[1] Noncompliers currently face minimal, if any, sanctions or penalties when their behavior denies those same freedom and liberty rights to the largest percentage of us who do our best to comply.

  In recent decades, our courts and elected leaders at all levels of government have increasingly emphasized our rights with much less emphasis on the responsibilities required when each of us exercises these rights. Poor management of COVID spotlights the shortsightedness of this approach. It’s time to adjust.

    Most of us would not be happy with China’s authoritarian “zero tolerance, strict lockdowns,” approach to limit COVID’s spread. But even allowing for plenty of error in the data, it appears our nation’s biggest competitor has been extremely effective in holding down the spread of COVID. From inception through 12/20/2021, China’s death rate was 0.3.[2] (1/3rd of 1 person) per 100,000 people while our US death rate was 245 people,[3]  and  Vermont’s was 71 people.[4]

     Governor Scott argues that consistent “jawboning” about the benefits of good COVID practices is most effective, and that “mandates” will just cause pushback and be ineffective. Vermont’s approach is more effective than our nation’s.

  But let’s be clear. Most current laws of Vermont, states, and our nation, fail to enact measures to require covid noncompliers and the rest of us to responsibly exercise our rights. This speeds COVID to many more of us. This failure to act results in large additional numbers of avoidable sicknesses and deaths. It doesn’t have to be this way.  We can find middle ground between policies we now have and China’s more draconian approach.

  It’s the job of the President, governors, Congress and our legislatures to enact laws and policies that benefit the greatest percentage of us all. To properly do that job we must have consistent policies at all levels, national, state, and local. Currently, we have nothing remotely like this.

   In part, these measures must require what most of us already do. All medically eligible Americans must follow best public health advice to be vaccinated, properly mask up, and social distance when in close contact with others in enclosed spaces.

   But more must happen. Employers must be required to adjust their facilities and operating procedures to provide safe and social distanced working conditions for all employees and customers. Vaccines and COVID testing must be easily available to all, prepaid by our government from our taxes.

  Most important of all, our elected leaders must impose disincentives strong enough to make noncompliers likely to comply. If we want to work in buildings with others, we must be in compliance or be furloughed without pay. If we want to shop for groceries, or other goods, or to enter any other buildings (except medical facilities) in public for whatever reason, we must be in compliance.

     When the stakes are high enough, evidence shows most noncompliers will change their behavior. High compliance benefits the personal and economic well-being of us all.

     For those who are still unconvinced, step back. Ask yourself, how many more hundreds of avoidable Vermont deaths, plus hundreds of thousands of deaths nationally, we should accept by having noncompliers bear little responsibility for their actions?

  Our Constitution envisioned effective decision-making by those we elect, and by us as citizens. It’s time for us all to step it up.


[1] 9-5-2021 New York Times Sunday Review, David Cole and Daniel Mach, Vaccine Mandates Protect Freedom. David Cole (@DavidColeACLU) is the national legal director of the A.C.L.U., and Daniel Mach is the director of its program on freedom of religion and belief. Link: https://www.nytimes.com/2021/09/02/opinion/covid-vaccine-mandates-civil-liberties.html

[2]  BBS News-Visual and Data Journalism Team figures as of December 20th, 2021, based upon data from Johns Hopkins University and national public health agencies. Link: https://www.bbc.com/news/world-51235105

[3]  Ibid.

[4]  Vermont Department of Health, COVID deaths since inception, as of December 20th, 2021 were 457. US Census 2020 estimate of Vermont’s population for apportionment was 643,503. Dividing 457 deaths by 6.435 (643,503/100,000 persons =s 6.435) gives 71 deaths per 100,000 persons for Vermont.

Link #1: https://www.healthvermont.gov/covid-19/current-activity/case-dashboard

Link #2: https://www.census.gov/data/tables/2020/dec/2020-apportionment-data.html


President Trump’s legal teams, now backed by at least 17 Republican Attorneys General and many Congress members, are trying to use state and federal courts to reverse the outcome of our presidential election.

Constant repetition of lies without factual basis stating that the election is rigged and that massive fraud occurred, is no substitute for actual facts, even though large numbers of Americans believe them.

America’s legal system is designed to achieve justice based on an accurate and thorough examination of both facts and law. Attorneys are legally obligated to practice law in accordance with a Code of Ethics that obligates them to advance and serve their client’s interests. But that duty is not unlimited. It does not trump the ethical obligation to their legal profession not to bring or defend a legal action unless there is a basis in law and fact for doing so.

When they proceed and bring a frivolous lawsuit, they violate both the law and the oath they took when admitted to practice in their respective jurisdictions. In doing so, they demonstrate rot in the very foundation of our legal system. Shame on every one of them.

To date, courts have resisted, ruling that without presenting sufficient allegations of fraud or illegality, their lawsuits may not proceed.

But, watch to see how many of these attorneys are sanctioned under law for breaking their oath of office. We are testing the foundation of our democracy. Will it hold?

Electoral College does not provide equal representation

VTDIGGER Nov 1 2020, 6:00 PM

Editor’s note: This commentary is by Rick Hubbard, who is a native Vermonter, retired attorney and former economic consultant, now living in South Burlington.

When adopted in 1788, our Constitution gave Americans a republic with representative democracy. Today, the underlying question about our representative democracy is: How well is it working? More narrowly, is our Electoral College providing proper representation?  

If you believe in equality of representation, the Electoral College fails miserably. By design, it ensures highly unequal representation. 

A first reason for this inequality

Since our U.S. Constitution provides every state with a minimum of two senators plus one representative (and therefore at least three electoral votes), each voter from a small state has more representation per electoral vote than each voter in larger states. This occurs in every election for president.

Each state gets its allotted number of electoral votes based on its number of senators and representatives. There are currently 538 electors, and in order to win, a candidate must get a majority of at least 270 electoral votes. 

The 538 electoral votes consist of the following: 100 senators – two from each of the 50 states — plus 438 representatives. 

These 438 representatives are calculated as follows: The first 50 relate to our Constitution’s requirement that each of our 50 states shall have at least one representative. The next 385 are divided among the 50 states, based on the most recent U.S. Census, which by law is updated every 10 years. The final three electors are from the District of Columbia, which is not a state, but for the Electoral College, is treated as if it were equal to the smallest states. 

In Vermont’s case, our 2010 population was 630,337, and we have one representative and two senators, so we may select three electors. Each electoral vote from Vermont represents about 210,112 Vermonters. 

Contrast this with one of the largest states, Texas. With a 2010 population of 25,268,418, Texas has 36 representatives plus two senators for a total of 38 electoral votes. Therefore, each electoral vote from Texas represents about 664,958 Texans. 

If we believe in the important democratic principle of one person, one vote, why should a vote from a Vermont voter be worth more than three times a vote from a voter from Texas in selecting our president? We’re all equally United States citizens, so shouldn’t we all have an equal voice in selecting our president? But we don’t. In two of the last five elections (G.W. Bush in 2000 and Donald Trump in 2016), the candidate that received the most votes nationwide did not become president.

A second reason for this inequality

In 48 out of 50 states — all except Maine and Nebraska — the votes for president from tens of millions of Americans are simply cast aside and not reflected in the Electoral College vote. 

This is because each of these 48 states allocates 100% of that state’s electoral votes to whichever candidate is the plurality winner. In Vermont’s 2016 vote for president, Hillary Clinton received 55.7% of the votes, Donald Trump received 29.8%, Bernie Sanders — despite losing the primary election — still received 5.7% through write-ins, and the remaining 8.8% were distributed among other candidates. Yet in the Electoral College, all those who voted for Trump, Sanders, and others – some 44.3% of all Vermont voters – had their votes for president completely ignored when Vermont’s Electoral College votes were cast 100% for Hillary Clinton.

In Texas in 2016, Donald Trump received 52.2% of the votes, Hillary Clinton received 43.2 % of the votes and the remaining 4.6% were spread among several other candidates. Voters for Clinton (some 3,877,868 votes) plus the votes of the other 4.6% had their votes for president completely ignored when Texas’s Electoral College votes were cast 100% for Trump.

Other problems

In every election, a majority of most states are largely ignored by campaigns since the voting outcome is fairly predictable. Thus, little money or time is spent in these so-called “safe” states. This unequally limits the opportunities of voters in the majority of “safe” states to learn about the candidates because of winner-take-all.

Sometimes, in the Electoral College vote, no candidate obtains a majority. Then the 12th Amendment of the Constitution mandates that the House of Representatives choose the president, but with each state having but one vote. If this doesn’t produce a majority there are further measures specified in the Constitution. This further undermines the equality of one person, one vote. Wyoming, with the smallest population, has as much voting power as California, with a population more than 65 times Wyoming’s.

When our Constitution was enacted, there were no political parties in existence, and much evidence suggests our Founders clearly expected electors would exercise their individual judgment in deciding who to vote for in the Electoral College. Yet, just this year, when this question about whether states could require that their electors not act independently, and even fine, remove, or replace them if they indicated they might, the U.S. Supreme Court overwhelmingly ruled against this “originalist – textualist” argument, and affirmed the right of states to do so. This raises further questions about the value of the Electoral College today.

There is also the matter of the Electoral College and its connection to slavery. Our country and its Constitution were created in the 18th century, when only white men were permitted to vote and slavery was well established. This gave more representation to slave-holding states. Although slavery was abolished in the 1860s, some think we should revisit the Electoral College because its origins were dubious.

Fixing this inequality

These examples of inequality, suggest our Electoral College is ripe for a rethink.
Some advocate replacing the Electoral College with a national popular vote which would do away with electors, electoral votes, and the Electoral College. Others advocate getting rid of winner-take-all allocation of electoral votes. Certain fixes require an amendment to our U.S. Constitution. Others can be accomplished by the states, or by Congress. Each comes with its own advantages and disadvantages. The question is: how can we best improve things?

A national effort is just beginning to grapple with all of this. It’s called Fix the College.It’s a project of the nonprofit Equal Citizens organization and its nonpartisan board, founded by Lawrence Lessig, a professor of law at Harvard.

Rather than start with one possible solution, or mix of solutions, Fix the College plans to begin with a process to carefully assemble the pros and cons of various solutions, and then to engage in vigorous debate and discussion.

It plans to launch a process committed to two principles: understanding, and conversation. It wants to identify fixes for the college that the vast majority of us could agree upon, and further, wants to find those fixes through conversations had by many, at different times, with different people. If you’d like to be part of this experiment, you can join it here.

Everything is on the table. Fix the College wants to discuss what you like and don’t like about the way we elect the president. It also wants to discuss existing reform options, including the National Popular Vote Compact, plus new ideas, and how they might help achieve a durable lasting reform that everyone can be proud of.

Massive evidence documents that our republic and its representative democracy is failing to provide representation that prioritizes serving the broad, public interests of American citizens. Necessary reforms involve fixing/repairing/strengthening many currently dysfunctional parts. If we want to unlock progress on climate change, health care, education, infrastructure, voting rights, financial protections, consumer protections, and much more, it’s time to get going. Fixing the College is one important part of this.

BOOK REVIEW – Vermont Bar Journal, Fall 2020

A review of “America Compromised” by Lawrence Lessig and “The Chickenshit Club – Why the Justice Department Fails to Prosecute Executives” by Jesse Eisinger

By Rick Hubbard Esq.

Do our rules of professional conduct that require us to act in our clients’ best interest combine with wage inequality to actually prevent us from achieving justice? Both of these books raise troubling questions about whether the way we attorneys practice law fails to regularly deliver the justice our legal system is supposed to deliver.

As stated in the book jacket description of America Compromised, “through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards – the first steps to corruption.” This review is limited to only his thinking about our legal profession.

Lawrence “Larry” Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School with a formidable CV, including clerking for Justice Scalia. He is well prepared to raise ethical questions about how the practice of Law in accordance with our attorney Rules of Professional Conduct interferes at times with achieving justice.

His book begins with a story. While Lessig, an expert on internet law, was at Stanford Law School, he accepted a side-gig to work “of counsel” at a major San Francisco law firm on issues related to his expertise. Within a week there was a problem.

In a meeting with partners, the managing partner explained that a client had told the firm either the client or Lessig had to go. It seems the client was upset by Lessig’s writing in Wired magazine and other popular and broadly read publications about how aspects of internet law worked against certain public interests. The managing partner proposed a solution, that Lessig restrict his writing to legal publications like the Stanford Law Review. A second partner explained that the firm had an ethical issue since lawyers for the firm had an ethical duty to advance the business interests of their clients, and a third partner added that Lessig had an obligation not to act or write in a way that threatens those interests.

In response to Lessig’s assertion that what he wrote in Wired and other popular magazines was true, the partner stated that truth was not the issue.

Lessig briefly reflected on the nice retainer check he’d just deposited, and how easy this extra money was going to be, before he replied: “I do think there’s an ethical issue here. It is my ethical obligation to myself. I’m sorry this didn’t work out.” With that, the meeting was over and Lessig’s job “of counsel” was ended. [1]

Lessig comments: “There’s no clear rule that guides the conflict I was alleged to have created. A lawyer has a fiduciary obligation to her clients and from using information acquired in the course of representation to the client’s disadvantage.[2] That duty is not unlimited. It does not trump a lawyer’s obligations to her profession. But the rule does create ample opportunity for a firm to bend the independence of the lawyers toward better service toward the clients.”[3]

“But when an ethical rule tells the lawyer that her views should be at least consistent with the “business interests” of her client, then she’s not free to do what’s right. If her view conflicts with those business interests, then the rule of ethics comprises her obligation as a lawyer to the profession. She can choose to do what’s right, or choose to obey the rule. She can’t do both.”[4]

Here Lessig turns to Jesse Eisinger’s book “The Chickenshit Club – Why the Justice Department Fails to Prosecute Executives” to incorporate Jesse’s argument of corruption of outcomes within the Justice Department. Eisinger is a Pulitzer Prize winning senior reporter at ProPublica. His work has appeared in the New York Times, the Atlantic, and the Washington Post. In 2009, Eisinger began work on a series of stories, “The Wall Street Money Machine,” that revealed how Wall Street’s morally questionable practices had led to the worst financial crisis since the Great Depression. It was co-authored with Jake Bernstein and was awarded the Pulitzer Prize for National Reporting in 2011.

Eisinger’s book opens with a story about a new U.S. Attorney for the Southern District of Manhattan giving his first speech to staff of the criminal division. These lawyers were the nation’s elite.

The speaker opened with: “We have a saying around here: We do the right things for the right reasons in the right ways.” He then asked the seated prosecutors a question: “Who here has never had an acquittal or a hung jury? Please raise your hand.”

Hands shot up from those in the office who thought themselves to be the best trial lawyers in the country. “Me and my friends have a name for you guys.” the speaker said. “You are members of what we like to call the Chickenshit Club.”[5]  

That speaker was James Comey in 2002. Eisinger then goes on to explain Comey’s subsequent comments to his trial attorneys. “I don’t want any of you to make an argument you don’t believe in.” Prosecutors – unlike other lawyers – are not simply advocates for one side. They are required to bring Justice. They should seek to right the biggest injustices, not go after the easiest targets. Victory in the courtroom should be a secondary concern, meaning that government lawyers should neither seek to win at all costs nor duck a valid case out of fear of losing.[6]

Lessig then incorporates the argument Jesse makes in his book that white collar prosecution in America has changed in more recent years. Both authors then dig into why this has changed and how these changes work against delivering justice.

In earlier times, our government prosecuted white collar criminals while prosecuting white collar crime. It prosecuted more than 1000 people in the 1980s after the savings and loan crisis, and subsequently aggressively pursued the leaders of the junk bond crisis in the late 1980s, and after the tech bubble burst in the late 1990s and early 2000s it pursued fraud again, including fraud within major telecommunication and energy firms like World Com, Qwest Communications, Adelphia and Enron, with many ending up in prison.[7]

These prosecutions were not political, they were important for both Republicans and Democrats.[8] But as Eisinger tells it, this all changed.  “After the 2008 financial crisis, the government failed. In response to the worst calamity to hit capital markets and the global economy since the Great Depression, the government did not charge any top bankers. The public was furious.”[9]

As Eisinger relates it – “While a Republican president had presided over the crisis and a Democratic one had saved the financial system, Hillary Clinton, Obama, and the Democrats could not claim to be the protectors of the working class and the scourges of investment bankers. That was due, in large measure, to the lack of corporate prosecutions.”[10] Lessig then poses the question, “Why?”[11]

Lessig writes that while many experts have written in answer to this question, and while no doubt the causes are many, he focuses on the incentives affecting the many great trial attorneys in our Justice Department because, in that one dynamic, we can see the pattern that is the subject of Lessig’s entire book: institutional corruption.

Perhaps the book jacket cover states it best:

And it’s our fault. What Lessig shows, brilliantly and persuasively is that we can’t blame the problems of contemporary American life on bad people, as the pundits all too often tend to do.” Rather, he explains, ‘We have allowed core institutions of America’s economic, social, and political life to become corrupted. Not by evil souls, but by good souls. Not through crime, but through compromise.’ Every one of us, every day, making the modest compromises that seem necessary to keep moving along, is contributing to the rot at the core of American civic life. Through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards – the first steps to corruption.[12]

With respect to our legal profession, Lessig’s critical analysis is so central, and so important to the way we practice law, to our reputation as a profession, and to its relation to the core of American civic life, that I hope each of us will carefully consider his argument and think about its implications, as well as what we should be doing in response, if anything.

Lessig begins with an analysis of prosecutors, who are simply people with families and expectations. At a certain point, when in law school, all aspiring attorneys are equal. But after graduating, all scramble in different directions based on our expectations as set by our families, friends and our own dreams. Some go to big firms, others to small firms, and some become prosecutors, and more.

Lessig goes on to say that:

Thirty years ago, that choice was less significant than it is today, at least financially. Thirty years ago, a prosecutor in New York could “afford” to be a prosecutor for his (and it was mainly his) or her whole life. ‘Afford’ not in the sense that they would starve on a prosecutor’s salary. Obviously, even today, the top prosecutors with the most experience get paid $160,000. But “afford” relative to others – their contemporaries, their friends, and their colleagues in private practice.  And ‘afford’ relative to what relative sacrifice they could expect their families to bear. No doubt there has always been a gap. But the gap was tolerable. No one was going to get rich, but no one need feel poor.

In the past thirty years, that gap has grown. While the top pay-scale for federal prosecutors increased by as much as 60%, the average salary at the top firms increased by almost 160%. As the gap has grown, the ability to be a prosecutor for life has changed. Again, not in an absolute sense – a New York US Attorney gets paid three times the median income in America. But changed in a relative sense. Earlier, the choice was not difficult. If you liked the work, you could stay. Today, it has become increasingly difficult. The sacrifice feels real, not just to the lawyers, but to their families. And more and more are beginning to think about how they can make the law work better for them, or at least, better for their families.[13]

Lessig continues:

To revolve (as in the revolving door) successfully, the prosecutors need to be hirable. Which means they need to do their job in a way that lawyers in the white-collar defense firms respect. Which means they need to prosecute in ways that lawyers in white-collar defense firms agree with. Which means they need to prosecute in a way that doesn’t get the clients of the white-collar defense firms too upset. ‘The revolving door was not just a way for government employees to cash in,’ Eisinger says. ‘Both sides were changing the other – ultimately to the benefit of corporations.’[14] …A symbiotic relationship developed between Big Law and the Department of Justice.’ ‘The business had become much more commercial and more mercenary.[15]

…Those needs are consistent with the changing practice of criminal prosecution in America today. As Eisinger says, more and more, prosecution is not against individuals. It is against corporations. And more and more, those corporations settle the prosecution without admitting guilt, with something called a ‘deferred prosecution agreement,’ and by paying a tiny fine. Criminal prosecution becomes, as Eisinger has described it, a simple cost of doing business.’[16] And corporations become repeat offenders, taking the profits from the crime, and using a small part of those profits to buy the ability to commit those crimes again.[17]

Although there are exceptions, Lessig notes that “the rule is not set by the exception.’ ‘More and more, the expectation is that great lawyers will ‘subsidize’ their practice by practicing privately for at least some time. And who could think that subsidies have no effect on the subsidized?”[18]

Lessig names dependency as “the lens through which this example fits the model of institutional corruption. The purpose of prosecution is to do justice. That means never prosecuting anyone believed to be innocent; it means never declining to prosecute just because the case might be difficult. It also means not bending the prosecution to make the lawyers defending the alleged criminals happy. Yet in a world where prosecutors depend upon jobs from the lawyers defending the alleged criminals, the temptation to that bending is endemic. It is unavoidable. And the history of the change of practice by prosecutors over the past decades is consistent with the consequence one might expect; from such an influence.”[19]

However, Lessig is careful to say that corruption is not the only cause, and he cites Eisinger as doing “an admirable job of highlighting the bizarre activism of the judges carving back on prosecutions and discovering all sorts of new rights that happen to apply to white-collar criminals but not so clearly to the rest.”[20]

Lessig goes on to make the point that “prosecuting individuals is costly – especially when their corporations pay the legal fees. It takes time. One mistake on appeal can start the whole process over again. It takes a real commitment by the Justice Department to see these prosecutions through. And, more importantly, to convince the potential white-collar criminals that breaking the law is not costless.”[21]

But, as Lessig says:

If there is a reason for laws against fraud, or insider trading, or manipulation of the market, then we ought to have a Justice Department that enforces those laws enough to convince the criminals not to violate them. For these are not street-level crimes. They impose real costs on society. No doubt, crime doesn’t explain 100% of the cause of the financial crisis. But it does explain a significant slice of it. Had the law been enforced fully and reliably, there is a significant chance that these crimes would not have been committed. And that means that the millions who actually suffered from that crisis – not so much the individuals in companies that received massive government bailouts, but the homeowner who lost her home, or job, or future – have a fair complaint against this culture of corruption.

…Indeed, when you think about where criminal law is severe and where it is lax, it’s pretty clear the law has it exactly backwards. The law is very harsh against the individuals who are least likely to make calculations based on the expected value of their behavior. Not because they’re stupid, but because when you’re desperate, you do what you can. But corporations are the perfect machines for tracking the expected cost of their behavior. Make the cost of violating the law high enough, and corporations won’t violate the law. That’s especially true if the CEO realizes that violating the law means he goes to jail. Here the law treats with a rational actor. Yet the law is lax here with the rational, and extreme with the non-rational. [22]

Lessig doesn’t believe this balance was selected self-consciously. “It is the product of pressures that manifest incentives not properly aligned – or, more simply, institutional corruption, given the clear purpose of prosecution in a rule of law system.”[23]

Within his book America Compromised, Lessig has at this point described two causes that contributed to the absence of prosecutions after the financial crisis of 2008. In  Chapter 2-Of Finance, which is not covered in this review, Lessig “mapped a political cause, grounded in the reality that the Democratic Party simply could not afford to alienate its funders on Wall Street any more.”[24] However, in Chapter 5-The Law, which is being reviewed, Lessig described a more internal cause. For lawyers protecting their future, aggressive prosecution of Wall Street made no sense. Lessig maintains he has no way of reckoning which of these causes was more significant.

However, to the extent the corruption of justice was driven by dependence on Wall Street’s money in political campaigns, Lessig is convinced that problem could be solved relatively cheaply, and that “we could fund political campaigns publicly for a fraction of the cost that we spend on bizarrely expensive weapons of the military each year.”[25] But to the extent that the corruption of justice comes from the culture of prosecution, Lessig finds it extremely hard to imagine the cost of solving that being borne by anyone. “We’re not going to see government lawyers being paid more than the president.”[26] I could well imagine changing the way campaigns are funded; I can’t begin to imagine changing the way government lawyers are paid.”[27]

Lessig ends his Chapter 5 with the observation that “what drives the distortion in the culture of prosecution is much more than lawyers.”[28] Indeed. It may well have much to do with the dramatic rise in inequality as well as the increasing dysfunction of our federal political system over the past forty years.

There is much in these two books for attorneys as well as the entire American public to consider. When a real estate mogul, as a business strategy, stiffs many building subcontractors and successfully works through attorneys to use the legal process to either avoid payment altogether, or substantially underpay, is justice being served? Most of us know of instances where attorneys, to serve the interests of their clients, use the legal process in ways that do not line up well with justice.

The issues raised in these two books cry out for consideration, discussion and debate. I maintain: who better in Vermont to lead this process than the leaders of our judiciary system, the Vermont Bar Association, and Vermont Law School? But will this happen? Or will the issues raised by Lessig and Eisinger simply pass us by as we continue on our way as before?

Rick Hubbard Esq. is a native Vermonter, retired attorney and former economic consultant now living in South Burlington.


[1] Lawrence Lessig, America Compromised, Chicago and London, The University of Chicago Press, 2018, 159-160.

[2] Lessig, America Compromised, 161. And See ABA Model Code of Professional Responsibility, EC 4-1, 4-5, American Bar Association, adopted August 12, 1969, last amended August 1980; “Restatement Third of the Law Governing Lawyers,” Sec. 16, 49 (3rd 2000)

[3] Lessig, America Compromised, 161.

[4] Lessig, America Compromised, 162.

[5] [5] Lessig, America Compromised, 164, citing Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (New York: Simon & Schuster, 2017), xiv.

[6] Lessig, America Compromised, 164, citing Eisinger, The Chickenshit Club, xv-xvi.

[7] Lessig, America Compromised, 165, citing Eisinger, The Chickenshit Club, xv-xvi.

[8] Lessig, America Compromised, 165.

[9] Eisinger, The Chickenshit Club, xvi

[10] Eisinger, The Chickenshit Club, xvi

[11] Lessig, America Compromised, 165

[12] Lessig, America Compromised, jacket cover.

[13] Lessig, America Compromised, 166, citing Eisinger, The Chickenshit Club, 201.

[14] Ibid.

[15] Lessig, America Compromised, 167, citing Eisinger, The Chickenshit Club, 192.

[16] Lessig, America Compromised, 167, citing Eisinger, The Chickenshit Club, 44-45.

[17] Lessig, America Compromised, 167.

[18] Id at 169.

[19] Ibid.

[20] Id at 169-170.

[21] Id at 170.

[22] Id at 170-171.

[23] Id at 171.

[24] Ibid.

[25] Ibid, 171.

[26] Ibid, 172

[27] Ibid, 172

[28] Ibid, 172






Commentary in VTDIGGER, Friday, August 7th, 2020

In deciding how to vote in our August 11th primary election, many of us are faced with a dilemma.

It’s due to our widespread use of plurality voting in which the candidate or candidates with the highest vote totals, but not necessarily a majority of voter support, go on to the general election in November.

Do I vote for the candidate or candidates I like best, or should I narrow my option(s) to choose among only the candidate(s) I believe are most likely to be elected, so I don’t waste my vote? Our present way of voting in Vermont can and likely often does result in our electing candidates that a majority of us would not necessarily support, and this increases the political division and partisanship we see in our American politics today.

Unless choosing among only one of two candidates, we face this dilemma every time we vote, whether in the primary or general election for electing our US President and Vice President, US Senators and Representative, our Governor and all other state and local representatives. If I vote for my first choice, will I actually help elect my worst choice?

This dilemma applies across all parties in all elections. However, this year’s Democratic primary ballot in the Chittenden District to select among 13 candidates to fill 6 Vermont Senate seats provides an extreme example. Four current Senators are up for re-election and thus are better known to many voters. But there are many potentially well qualified alternatives in the race. If 100 percent of votes were equally divided among all 13, each candidate would receive less than 8 percent of the vote. This hardly indicates that a majority of voters would support any particular candidate. When the actual votes are counted, the 6 with the highest number of votes will go on to the general election in November. However, with so many candidates, it’s highly unlikely that any of the six will obtain a 50% majority of the vote. Most of the six winners will be nowhere near 50%.

Whether locally, statewide or nationally, our present plurality-based voting system works in ways that undermine, rather than strengthen, our democracy. It helps to elect leaders with a passionate but minority base of support, that a majority of voters might never approve of. As voter interest and participation drops in elections, it makes it easier for the passionate minority to win. It also provides incentive for the passionate minority to “game” the system to their advantage by, for example, limiting voter turnout by others who might vote differently.

This system of electing our representatives with a plurality rather than a majority of votes is one, though not the only, big reason our country is so ideologically divided and our federal political system has become so widely viewed as dysfunctional. It doesn’t have to be this way.

We can and should instead strengthen our democracy by adopting a method of voting that ensures that each of the candidates we ultimately select, regardless of party or ideology, has a majority of all voters in support. This can easily be done in an election by using ranked choice voting. This popular electoral system allows voters to rank candidates by preference, meaning they can submit ballots that list not only their first-choice candidate for a position, but also their second, third and so on.

The candidate with the majority (more than 50%) of first-choice votes wins outright. If no candidate gets a majority of first-choice votes, then it triggers a new counting process. The candidate who did the worst is eliminated, and that candidate’s voters’ ballots are redistributed to their second-choice pick. In other words, if you ranked a losing candidate as your first choice, and the candidate is eliminated, then your vote still counts: it just moves to your second-choice candidate. That process continues until there is a candidate who has the majority of votes.

At a time of great national political division and discord, it’s time to strengthen our democracy in a wide variety of ways to better serve our broad public interests. Adopting ranked choice voting is an important first step.