MEGAN BASHAM, HOST: Good morning!
It’s Legal Docket Monday and we’ll have two cases to bring you up to date on: one involving those arbitration agreements you run into almost every time you buy something. The other concerns pension plans and the age-old question of how to balance risk and reward.
KAVANAUGH: How do we resolve what I see as that tension?
NICK EICHER, HOST: Also today, businesses are really struggling with how to respond to the coronavirus, because they make so many products in China.
Plus the World Radio History Book and Trillia Newbell with a word of encouragement.
BASHAM: It’s Monday, February 24th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Megan Basham.
EICHER: And I’m Nick Eicher. Good morning!
BASHAM: Up next, Kent Covington with today’s news.
KENT COVINGTON, NEWS ANCHOR: South Korea steps up response to COVID-19 amid spike in cases » South Korean President Moon Jae-In said Sunday that his country is ramping up its response to the COVID-19 coronavirus amid a spike in new cases.
JAE-IN (translator): The government will elevate the crisis alert to the highest level, serious, in accordance with the suggestions of the epidemic experts and greatly step up the response system.
The virus has infected more than 600 people in the country, mostly in the last few days. Under the highest alert level, authorities can order the temporary closure of schools and even restrict public transportation and flights to and from South Korea.
Meantime, in Italy, authorities battled to contain Europe’s first major outbreak of the virus. In the northern Lombardy region, the governor announced Sunday that the number of confirmed cases stood at 110. Italy now has more than 150 cases in total, the largest number outside Asia.
And in Iran, the health ministry raised the death toll from the virus to eight. Iran now has 43 confirmed cases.
Globally, COVID-19 has infected 78,000 people.
Sanders rides momentum toward Super Tuesday after Nevada win » Senator Bernie Sanders is racing toward Super Tuesday with the wind at his back.
SANDERS: Let me thank the people of Nevada for their support.
He rallied in El Paso, Texas after winning the Nevada caucuses Saturday.
SANDERS: In Nevada, we have just put together a multi-generational, multiracial coalition, which is going to not only win in Nevada. It’s going to sweep this country.
Sanders grabbed 46 percent of the vote in Nevada—besting second-place finisher Joe Biden by 26 points. While some say the former vice president’s campaign is on the ropes, Biden told supporters in Las Vegas…
BIDEN: You know, the press is ready to declare people dead quickly, but we’re alive, and we’re coming back, and we’re going to win!
Biden and other top contenders are counting on a big showing on Super Tuesday, one week from tomorrow. That’s when roughly 40 percent of voters will head to the polls—including the delegate-rich states of California and Texas.
White House continues push back against new Russian meddling reports » The White House is again pushing back against media reports about an intelligence warning that Russia is interfering in U.S. politics, trying to get President Trump re–elected.
The president charged that the reports are a continuation of the Democrats’ Russia hoax. And he accused House Intelligence Committee Chairman Adam Schiff of selectively leaking information to the press.
TRUMP: Nobody told me about it. They leaked it, Adam Schiff and his group, they leaked it to the papers. And as usual, they ought to investigate Adam Schiff for leaking that information. He should not be leaking information out of intelligence. They ought to investigate Adam Schiff.
Marc Short is chief of staff to the vice president. He told Fox News Sunday he doesn’t believe the reports are accurate.
SHORT: We know that foreign governments try to interfere to sew chaos. They’ve been doing that for many years, and it’s not just limited to Russia. But there’s not intelligence that suggests that they’re trying to help Trump.
And national security advisor Robert O’Brien said he’s spoken with the leaders of the intelligence community, and they—quote—“don’t have it,” referring to intel that Russia is helping Trump. But he did not dispute other media reports that the Kremlin is also trying to boost the campaign of Senator Bernie Sanders. He said that’s no surprise.
U.S. lawyers begin arguments in Assange extradition case » The U.S. government and WikiLeaks founder Julian Assange will face off today in a high-security London courthouse.
U.S. lawyers will try to convince a judge to send Assange to the United States to face trial on espionage charges. The U.S. government says Assange participated in stealing and then publishing classified military documents.
Supporters of Assange rallied in London over the weekend, insisting the only thing he’s guilty of is practicing journalism. Wikileaks Editor-In-Chief Kristinn Hrafnsson…
HRAFNSSON: It’s a protest to wake more people up and to get more people on board, and to support Julian, and to support the future of journalism because the extradition request is an attack on journalism in general.
The extradition hearing follows years of diplomatic dispute and legal drama. For years Assange remained out of law enforcement’s reach until the Ecuadorian Embassy in London revoked his asylum status and kicked him out last year. British authorities immediately arrested him for violating his prior probation.
Assange has been indicted on 18 U.S. charges that carry a maximum sentence of 175 years in prison.
I’m Kent Covington. Straight ahead: an international arbitration case at the Supreme Court.
Plus, Trillia Newbell with a reminder about the value of encouragement.
This is The World and Everything in It.
MEGAN BASHAM: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 24th of February, 2020. Good morning to you, I’m Megan Basham.
NICK EICHER: And I’m Nick Eicher. Justices of the U.S. Supreme Court are back on the bench today hearing oral arguments after taking a one-month break.
Mary Reichard is at the Supreme Court this morning, observing arguments first hand. She’ll bring us coverage of some of those next week.
For today, she’s prepared the two remaining cases argued in January. So after today, you’ll be completely caught up on every argument heard this term.
BASHAM: But before we get to it, I’d like to take a moment to remind you that we’re down to our final week for our free offer to put WORLD Magazine in the mailbox of a friend, or the mailboxes of many friends.
EICHER: Yes, lots of you have taken us up on the offer. But we did promise to hold it open through the end of the month … and we are people of our word. And, really, the more, the merrier.
But our thinking was, if you read WORLD Magazine, it stands to reason you’ll know others just like yourself who’d appreciate sound journalism, grounded in God’s word. And our desire is to make that easy.
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EICHER: Well, on to oral arguments.
This first case deals with arbitration. It’s likely arbitration applies to you, because many contracts include an agreement to arbitrate. That’s arbitrate instead of litigate. You often find arbitration clauses in employment contracts and consumer-purchase agreements.
By agreeing to one, what you’re doing is giving up the right to take your dispute to court, and settling in an arbitration setting, which is usually less expensive than the court system and much faster.
The case before the Supreme Court now concerns another kind of arbitration agreement. But this is about an agreement between two companies from different countries.
An international treaty governs this arbitration: it’s called the New York Convention. It took effect in the late 1950s and as of today 161 countries have signed on to it. The convention enforces arbitration agreements between businesses and member states.
As we mentioned, Mary’s back in D.C. today doing some reporting at the Supreme Court for another series we’re working on.
But she did explain the rest of this case for us, and left it on tape so we could play it for you.
MARY REICHARD: Digital tape! Nick, you’re so old school.
Well, let’s keep this as simple as possible. And I’ll begin by simplifying terms to describe the three parties here. I’ll just call them “American company,” “French company,” and “subsidiary company.”
Each one of these is involved in some aspect making stainless steel. So American company and French company signed a contract that included an arbitration clause.
And here’s the key part: the contract bound subcontractors to the agreement. This would be subsidiary company. But the problem here is, subsidiary company didn’t sign on first. Nobody asked. Everybody assumed.
So the companies are all getting along, making steel things together, when a production problem cropped up. When it did, guess who got the blame: the subcontractor, subsidiary company.
American company seemingly ignored the arbitration provision and headed straight to court. Subsidiary company pointed to the provision and said, hey, that original contract gives us the right to insist on arbitration.
Chief Justice John Roberts got down to basics.
ROBERTS: I thought it was one of the central propositions of our arbitration precedents that arbitration is based on agreement. And here somebody who never agreed to arbitration is being forced into arbitration, even though he has a clear right to take his dispute to court.
Subsidiary company argues that the New York Convention says nothing about third parties.
So subsidiary lawyer Shay Dvoretzky wants to convince the Supreme Court to analyze this another way. Some lower courts use a legal doctrine called “equitable estoppel” to enforce arbitration agreements like this. Equitable estoppel more or less means what it sounds like: to stop someone from acting in a way that harms another. Here’s Dvoretzky:
DVORETZKY: Other contracting states are close to unanimous that the Convention does not preempt domestic law allowing non-signatory enforcement … . And allowing doctrines like equitable estoppel serves the Convention’s overriding purpose, to overcome widespread resistance to arbitration.
That may be so, but Justice Samuel Alito sounded skeptical.
So did Justice Elena Kagan, who had her doubts that the New York Convention didn’t say exactly what it meant.
KAGAN: If I say federal courts shall have jurisdiction over federal questions, would this statute also permit those courts to exercise jurisdiction over state questions?
DVORETZKY: No, and Justice Kagan…
KAGAN: I’m going to give you one more. Just to prove the point. (laughter) Shareholders shall appoint two directors to the board. Does that mean shareholders can appoint 20 directors to the board?
DVORETZKY: No …
KAGAN: Because “shall” means “shall only” in many circumstances, right?
DVORETZKY: It depends on context …
So things weren’t going so well for subsidiary company.
On the other side, Jonathan Hacker. He’s the lawyer for the American company trying to avoid arbitration and go to court instead.
Hacker argued the New York Convention rule absolutely requires written consent between the two parties. No legal fiction can cancel that out.
So, he argued, his client can’t be forced to arbitrate here.
But Justice Neil Gorsuch pushed back.
I want to explain a term you’ll hear Justice Gorsuch use: “privity.” That just means parties in a legal dispute who are entitled to the same powers. Here he is.
GORSUCH: You’ve admitted that there are other doctrines that allow third parties to be brought in as privities who may not have strictly consented. Alter-ego theory, veil-piercing theory. It’s a fiction to call that consent.
HACKER: I disagree, Your Honor …
The justices are clearly divided on this matter. On one hand, it’s a simple matter of two parties who didn’t come to an agreement. On the other hand, a desire to encourage arbitration as a very good thing to do.
However the court decides, it’ll have wide application for subcontractors doing business with international companies.
This last case today is another battle over a federal law called ERISA. That’s an acronym for the Employee Retirement Income Security Act of 1974.
ERISA disputes are frequent flyers at the Supreme Court.
This one arises out of a split in the circuit courts of appeal: one appeals court ruling one way, another ruling the other. This is a classic “split in the circuits” that almost always requires the Supreme Court to intervene.
Here are the facts of this ERISA dispute.
I’ll start with the main players: James Thole and Sherry Smith. Both of them are retired from U.S. Bank, another player in the dispute. Thole and Smith alleged U.S. Bank mismanaged their defined-benefit pension plan.
Now, another player: the fiduciaries. These are the financial experts who make investments to try to grow the value of the pension plan.
The alleged mismanagement comes down to this: Against other professional advice, the fiduciaries invested plan assets in high-risk equities. When the financial crisis hit the stock market in 2008, the plan lost over a billion dollars in value.
Here’s another key fact: U.S. Bank eventually replenished those funds, and the retirees wound up with the money they’d been promised. You might think, that’s the end of it.
But a legal question remains: Even though they didn’t lose any money, do Thole and Smith still have standing to sue for breach of fiduciary duty?
Chief Justice Roberts had this question for their lawyer, Peter Stris.
ROBERTS: But what did your clients lose? I mean, your friend on the other side says they get nothing. They’re in the same position if you win or if you lose.
STRIS: Well, so I mean I couldn’t disagree with that more. There’s always risk. Pension plans fail. Businesses fail. In 2008, AIG had $100 billion until they didn’t.
And so, Stris pointed to multiple concrete injuries his clients endured: risking their pensions in the first place and reckless investing in general.
STRIS: Your property interest has been impaired. I want to be very clear about this. This has been the case since the 15th century …. To have an equitable interest in trust assets, a beneficiary has never had to show that she’s likely to receive the trust assets. As long as she has the possibility of benefiting from the assets, she has a present property right to prevent others from damaging them. That’s the lesson …
Justice Stephen Breyer couldn’t resist following up with this:
BREYER: I don’t remember the 15th century, surprisingly, but, nonetheless — (Laughter.) We did look up some things. And … at least a quick research suggests that … there are different duties, fiduciary duties. One is the duty of loyalty. Another is the duty of prudence.
KAVANAUGH: Those duties do exist, yet the lower courts had found that Thole and Smith suffered no individual financial harm. So they had no standing to sue.
Finally, Justice Kavanaugh voiced the competing interests in the case in this comment to another lawyer arguing in support of the retirees:
KAVANAUGH: The tension in this case as I see it, and I think it’s a close case, is the history is strong but the answer to the question — it’s 99.99 percent certain that the benefits promised are going to be there. And how do we resolve what I see as that tension? Because it would be odd for us to grant standing in a case where the chances are so small.
On the other hand, you’re right about the history. I mean, you make a good point about the history.
This sounds like another divided bench, with conservative justices not really seeing how standing to sue exists here, and the liberal justices going the other direction.
Either way, clarity is needed. Millions of Americans have pensions held in defined-benefit plans. The right to sue for mismanaging assets hangs in the balance, as does tolerance for risk versus reward.
And that’s this week’s Legal Docket.
BASHAM: All right! Mary, I know you’re listening. Safe travels!
MEGAN BASHAM: Coming up next on The World and Everything in It: the Monday Moneybeat.
NICK EICHER: A topsy-turvy and holiday-shortened week on Wall Street featured a few new record highs midweek, and then what followed was a two-day plunge that left all the major indexes down for the week from 1.4 to 1.6 percent.
It didn’t help that two big companies issued warnings about the economic effects of the coronavirus outbreak—very specifically, they warned about their ability to generate profits. Apple was first to say last week it wouldn’t meet its iPhone sales numbers, then Procter & Gamble said the disruption would have a material impact on sales and earnings.
Lots of global corporations have China in their supply chains, and there’s no end in sight to the outbreak and no easy way to work around it.
BASHAM: We have another week to go in February, but a preliminary dataset suggests business activity may slow down this month. If that bears out, then it’ll be for the first time since 2013 that business contracted instead of grew. A London-based business information company IHS Markit raised the alarm on Friday. It reported that an economic indicator measuring manufacturing and services-business activity dropped to the lowest level seen in six years.
And a government report on inflation came out unexpectedly high. The Labor Department’s Producer Price Index jumped half a percentage point in January to its highest level since October of 2018. Year-on-year, that index is just above 2 percent. That’s significant, because it matches what the Federal Reserve regards as manageable inflation. Much beyond that point, and you start hearing about higher interest rates.
EICHER: Speaking of that, Wall Street seems to have its collective heart set on lower interest rates from the Fed. We talked about the coronavirus uncertainty that’s spooking traders, and now the markets are sending signals they expect the Fed to ride to the rescue with a rate cut.
The current Fed stance is to change nothing.
Fed policymakers, though, are listening and debating whether to do something. At a monetary conference in New York on Friday, two leading Fed policymakers took opposite positions. The head of the Cleveland Federal Reserve bank said, her words, we have to “be open to the possibility that the markets’ view may be more in alignment with [economic] fundamentals than the policymakers’ view.” That prompted a response from the vice chair of the policymaking committee that the markets are sending mixed signals: in other words, there’s as much good news on the economy as news to be concerned about.
Speaking to financial journalists on CNBC, the president of the Atlanta Federal Reserve Bank Raphael Bostic poured cold water on the idea that the coronavirus is going to blow up the global economy and start destroying jobs.
BOSTIC: … it’s going to be a short-run disruption … . But they’re not expecting they’re going to lay off folks. They’re not expecting there will be an extended negative impact. So, I think this is going to be a short-time hit, we’ll get the economy back to its usual level about 2 to 2.25 percent sometime into the future.
Two to two-and-a-quarter percent economic growth is what he means. And that is today’s Monday Moneybeat.
NICK EICHER: The very idea of waking up in the middle of your own surgery sounds like a nightmare.
But for Dagmar Turner, the waking up was by design. More on that in a minute.
See, she’s a professional violinist with a brain tumor that surgeons said needed to be removed. The audio here from Britain’s ITV News…
TURNER: First thing they asked me was if I’m right- or left-handed, and I said, ‘I’m right-handed,’ and they thought, ‘ah, that’s fine, that’s no problem.’
I said, ‘What do you mean?’
‘Well, your tumor is on the right-hand side, so it will not affect your right-hand side. It will affect your left-hand side.’
And I’m just like, ‘oh, hang on guys!’
Yeah, guys, hang on. She needs both sides to continue playing, so she made the suggestion: wake me up during the surgery and I’ll play the violin while you work. Which is what they ended up doing.
MUSIC: [Sound of violin]
First thing was the doctors mapped her brain, found out which areas controlled which actions. Then, as you hear, she played to help the surgeons not to “damage any crucial areas of the brain that controlled [her] delicate hand movements.”
They did manage to remove 90 percent of the tumor, including all the most aggressive parts, leaving her left hand free to continue to make beautiful music.
We are fearfully and wonderfully made.
It’s The World and Everything in It.
NICK EICHER: Today is Monday, February 24th. Thank you for turning to WORLD Radio to help start your day. Good morning. I’m Nick Eicher.
MEGAN BASHAM: And I’m Megan Basham. Coming next on The World and Everything in It: the WORLD Radio History Book.
Today, the New York Philharmonic attempts cultural diplomacy in North Korea. Plus, excerpts from a 1940 Academy Awards acceptance speech.
But first, 100 years ago, the birthday of a false prophet and delusional messiah. Here’s Paul Butler to tell you who that is.
PAUL BUTLER, REPORTER: We begin today on February 25th, 1920, in North Korea: the birthday of Moon Yong Myeong. One of eight children, his father is a farmer, and devoted Confusionist. When the boy is 10 years old, his family converts to Christianity and joins the Presbyterian Church.
As a young adult, he becomes active in a Christian Korean independence movement and sees resistance as God’s kingdom work. He’s part of a church with great Messianic hopes—earnestly awaiting the second coming. During this time, he changes his name to Sun Myung Moon.
In 1954, Moon starts his own church in South Korea—the Holy Spirit Association for the Unification of World Christianity or simply, the “Unification Church.” It borrows a lot from Christianity, but is essentially a gnostic heresy. Moon says that he’s the second coming of Christ. He believes he’s been anointed to carry on Christ’s unfinished work—cut short by the crucifixion.
One of Moon’s key theological tenets is “the law indemnity.” The doctrine maintains that self-sacrifice and personal trial constrain the physical, and make spiritual salvation possible. Fasting, fund-raising, and evangelism are necessary for becoming sinless. Marriage is also a requirement for all believers.
Moon conducts his first mass wedding ceremony in 1961, marrying 36 couples. Some later ceremonies include more than 20,000couples. Almost all matches are arranged by Moon or his family.
AUDIO: [SOUND OF WEDDING CEREMONY]
As the “third Adam,” Moon—previously divorced—grants perfection to his current wife. Together they become humanity’s “true parents.”
Moon moves to the U.S. in the 1970’s and calls his home “the new Eden.” Within two years, he opens “Unification Centers” in all 50 states. Due to his anti-communist rhetoric, and pro-family values, he finds many religious and political allies.
In 1982 the U.S. government convicts Moon of tax evasion. Religious leaders, including Joseph Lowry and Jerry Falwell, come to his defense—arguing for religious freedom.
After his early release, Moon begins the Washington Times newspaper and further increases his political and financial influence. A number of highly publicized defections from his inner circle make headline news in the 1990’s and church membership plateaus and begins to fall.
Moon died in 2012, at the age of 92. Internal power struggles have characterized the cult ever since—with two major factions competing for followers. One is led by his widow, and the other, by one of his 12 children.
Next, February 29th, 1940. During the 12th Academy Awards, Actress Fay Bainter presents the Oscar for Best Supporting Actress.
BAINTER: It is with the knowledge that this entire nation will stand and salute the presentation of this plaque to Hattie McDaniel. [APPLAUSE]
Hattie McDaniel played the strong-willed house slave Mammy in Gone With The Wind. She was criticized for the role and its racial stereotype. McDaniel defended the character, saying she enjoyed the role as it allowed her to honor her grandmother who worked on a plantation.
MCDANIEL: I want to thank each one of you who had a part in selecting me for one of the awards for your kindness. It has made me feel very, very humble…
Hattie McDaniel is the first African American to win an Academy Award. In her acceptance speech, McDaniels says it’s the happiest moment of her life.
MCDANIEL: My heart is too full to tell you just how I feel. And may I say thank you and God bless you. [APPLAUSE]
And finally, we head back to the Korean Peninsula and an act of cultural diplomacy:
NEW YORK PHILHARMONIC: ARIRANG
On February 26th, 2008, the New York Philharmonic performs at the East Pyongyang Grand Theatre, in North Korea. It is the largest group of U.S. citizens to enter the country since the Korean War.
The 90-minute concert features the national anthems of both countries, as well as works from Wagner, Gershwin, Leonard Bernstein, and others. But the piece that receives the most enthusiastic response is the Korean folk song “Arirang.”
Following the concert, the North Korean vice-minister of culture said the concert opened the hearts of the Korean people, fostering “mutual understanding between the two countries.”
Back home, the reception was much less optimistic. White House Press Secretary Dana Perino said, “we consider this concert…to be a concert” adding it wasn’t a diplomatic coup—though it did seem to lessen anti-American propaganda following the trip.
That’s this week’s WORLD Radio History Book, I’m Paul Butler.
MEGAN BASHAM: Today is Monday, February 24th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Megan Basham.
NICK EICHER: And I’m Nick Eicher. Commentary now from WORLD’s Trillia Newbell.
TRILLIA NEWBELL, COMMENTATOR: Recently retired pastor Ray Ortlund is a friend of mine, and something he wrote online caught my attention. He said—quote—“No one you meet today, or any day, will be suffering from over-encouragement.”
My immediate response was to shout out yes and amen! Our temptation is to believe that everyone around us is doing much better than we are. Or maybe our perception of strength is because we tend to lack real vulnerability with those around us.
Just think about the way we greet one another:
“How are you?”
“Fine, thank you.”
Only once has someone, after I’ve asked that question, looked me in the eye and told me she wasn’t fine. At that moment I realized how easy it is to ask but not truly care about the answer. I paused, looked back at her, and listened. I was convicted.
But the reality is that most of us—whether on a good day or not—still need encouragement. And sometimes it’s hard for us to admit it. I believe the best assumption we can make is that everyone needs encouragement—and sometimes desperately so!
Indeed no one, truly no one you meet today, or any day, will be suffering from “over-encouragement.”
And God designed the church to be an encouragement machine. Paul exhorts us in 1 Thessalonians, “Therefore encourage one another and build one another up, just as you are doing” (5:11).
The language in this text is one of urgency. The Lord is returning and although we don’t know when, we need strength to endure as we wait. We need grace and power to obey His word in this broken world. Part of enduring and helping one another is through speaking words that build up rather than tear down.
Without the kind encouragement of my friends, my church, my pastors, my husband, and my co-laborers, I think I’d have given up on much of what I do. There is a reenergizing and faith-building effect of encouragement.
And I’m not talking about a passing word from a friend like, “You look nice today.” Although that’s delightful, we need words that can help sustain us. I’m thinking of specific, direct, detailed encouragement. Encouragement that is pointed and gracious.
Encouragement points out the ways God is moving in the lives of others. Thus encouragement points others toward God. Encouragement isn’t about us, and it really isn’t about the person receiving it either. Rather, it’s about the Lord and His grace at work in their life.
Encouragement guards us from sinful comparison and envy, too. When we recognize the gifts God has given someone—whether it is creative, administrative, leadership, or fruits of the Spirit—we are waging war against envy and jealousy.
We can thank God for those who have gifts different than ours. We can thank God for the way he has made our brothers and sisters.
And when we do, we’re heeding the call of Hebrews 10:24—spurring one another on toward love and good works.
For WORLD Radio, I’m Trillia Newbell.
NICK EICHER: Tomorrow: Lawmakers in Utah are considering reducing penalties for polygamy. That’s a big deal in a state that outlawed the practice in the 19th century just to be admitted as a state. We’ll tell you what’s behind this.
And, you’ll hear a new voice on our program: one of the most fearless contenders for the rights of those who cannot speak for themselves.
That and more tomorrow.
I’m Nick Eicher.
MEGAN BASHAM: And I’m Megan Basham.
The World and Everything in It comes to you from WORLD Radio.
WORLD’s mission is biblically objective journalism that informs, educates, and inspires.
As we just heard from Hebrews: Let us hold fast the confession of our hope without wavering, for he who promised is faithful. So encourage one another!
I hope you’ll have a great rest of the day. We’ll talk to you tomorrow!