Time has come for permanent DST, but too many legislators prefer to keep Americans in the dark

Google Gemini image CC0

When the clocks turn back to standard time on the first Sunday in November, the sun will set where I live at about quarter before 5 in the evening, and it will set closer and closer to 4 p.m. thereafter.

I'm lucky because I work remotely and get to make my own hours a lot of the time. Still, I feel depression beckon. I often cannot get away from my computer during sunlight hours. There's no time to exercise outdoors, and treadmills are mind-numbing. I gain weight. The sun comes up in the six o'clock hour, but like most people, I have to get my workday going first thing.

My heart breaks to think of people—I once was one—who head off to the office first thing in the morning, an hour-plus commute requiring transit too soon after dawn to have any meaningful personal time in sunlight; who then toil all day in an office with limited windows and violet, artificial light; and who then leave work in darkness. 

And it's not necessary. We squander sunlight in unusable morning hours upon the wildly outmoded notion that we have to get our farming done before the heat of the day.

New England state legislators perennially debate shifting wholly to Atlantic Time, GMT -4, a subterfuge to accomplish permanent daylight savings time without defying federal law. Maine has been most eager for the measure; the sun sets in the 3 p.m. hour in the Bangor winter. But no one state wants to be the first to pull the trigger, an economic collective-action problem.

Congress perennially debates permanent daylight savings time. The House recently passed the bipartisan Sunshine Protection Act. History suggests the bill will fail in the less democratically representative Senate.

Nevertheless, today I sent the following letter to my Rhode Island senators, Jack Reed and Sheldon Whitehouse.

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Letter to Senators Jack Reed (D-R.I.) and Sheldon Whitehouse (D-R.I.)

Dear Senators:

I would like to see you support permanent daylight savings time.

I am not an RI native, but in my 15 years here, I have seen, for myself and others, that a full hour of darkness, thus the full termination of twilight, at the time one finishes weekday work is an engine of depression. New Englanders working inside don't see the sun for five days a week.

The testimony of healthcare professionals that standard time is somehow best for "circadian rhythms" is ludicrous, and, I can only imagine, motivated by murky commercial interests I cannot perceive. The House rightly rejected these arguments.

Time zones are based on longitude,* Greenwich, which is arbitrary. The medical claim seems to be based on the idea of workers having to rise before the sun, which happens regardless, and meanwhile ignores the problem on the evening end. How is NO sunlight during waking hours possibly the better option for human health?

If there's a healthcare problem you want to address, let's start with food and shelter for all persons, or compulsory vacation and family leave comparable to Europe, or a shorter work week, freedom from 24/7 responsiveness, efficient public transit, and living wages. Rising before or after the sun is meaningless in comparison.

At minimum, the states should be free to decide. You must know that already there is a New England state pact in the works to move the region to Atlantic Time so as to subvert the federal scheme. The plan never gets going, because no state wants to be the one that pulls the trigger. But subterfuge should not be required anyway.

It's easy now, in summertime, to buy into the weak arguments against permanent DST. If the Senate cannot pass the House bill, I would like you to have a press conference at 5 p.m. on the first Monday in November. In the dark. Then you can explain to constituents why Congress made an arbitrary choice that they don't deserve to see their families in sunlight until the weekend.

Sincerely,
R.J. Peltz-Steele

* Word corrected from my typo in original. 

Whitehouse laments mandatory arbitration, civil jury woes; SCOTUS-nominated Jackson does not engage

Senator Sheldon Whitehouse (D-R.I., one of my state senators) just questioned U.S. Supreme Court nominee Judge Ketanji Brown Jackson on the importance of the civil jury.

(I wrote recently about Judge Jackson's trial court record, here and here.)

Tort law does not usually figure much into U.S. Supreme Court confirmation hearings, so when it does, it's worth paying attention. While tort law can be implicated directly in the work of the U.S. Supreme Court, for example, in the application of federal common law in admiralty, tort law is more likely to make an appearance ancillarily to constitutional law, the area of senators' greatest interest in the confirmation process.  

Those appearances of tort law usually are indicative of the interests of the day.  When gun control and the Second Amendment were hot topics in the 20-aughts, tort law made cameos in questioning about the defenses of self and property.  Senators have been interested periodically in the scope of civil rights law to combat gender discrimination.  Dialog on that point has imported principles of causation, because civil rights law, especially in private remedies, borrows both procedural and substantive machinery, including limiting principles, from common law tort.

At about quarter to one in the extended morning of today's confirmation hearings, Senator Whitehouse sought Judge Jackson's endorsement, which she gave, of statements on the importance of the civil jury.  The Seventh Amendment to the U.S. Constitution guarantees a right, if qualifiedly, to a civil jury, and the mechanism was famously admired by Alexis de Tocqueville in Democracy in America (1835).  Yet the institution has been a waning feature of American civil justice, largely as an incidental function of the dramatic decline in civil trials during the 20th century, but also as a deliberate effect of corporate America's embrace of mandatory arbitration.

Mandatory arbitration, removing cases from the courts upon the purported consent of consumers and victims of tortious wrongdoing and breach of contract, has been a preoccupation of consumer protection advocates and anti-tort reformers (or plaintiff-side "tort reformers"), such as Ralph Nader.  (The issue was among those addressed by the documentary Hot Coffee in 2011, particularly in the painful context of purported consent to dispute resolution in event of criminal sexual assault.  Unfortunately, because the point hardly diminishes the problem on the merits, the story highlighted in the film was later challenged as a possible fabrication.)  Among the many shortcomings of arbitration as a mechanism in the service of justice that rub me the wrong way, besides its overwhelming favoritism for corporate respondents, is the lack of transparency, which allows wrongdoers to persist in misconduct in defiance of public accountability.

Senator Whitehouse has been focused lately on what he perceives to be politicization of the judiciary through the use of "dark money," that is, money of unknown or vague origin, to influence the appointment (and in some states, election) of judges, typically to further the interests of big business.  Whitehouse wrote about the problem in the Yale Law Forum in 2021, and I recently wrote about Whitehouse writing about the problem.  He talked about that issue both in his opening remarks on the Judiciary Committee yesterday and at the start of his questioning today.  This focus is a natural extension, and broadening, of his concern over civil juries, about which he wrote also, in a law review article for William & Mary in 2014.

I created a C-SPAN clip from today's hearing.  C-SPAN has a transcript below it, but be warned, the automated system made some egregious errors, e.g., reading "civil juries" as "simple majorities."

Frankly, I didn't care for Judge Jackson's response.  Her initial reflection about citizens sitting in judgment over one another seemed to speak to the criminal trial.  She failed to acknowledge the separate, separately important and separately threatened, civil dimension on which Whitehouse was focused.  When he pressed her again on the question, in relation to the risk of jury tampering, her response, again, was painfully generic and indicated no recognition of the particular problem of the vitality of the civil jury.  On a third go, Whitehouse explicitly cited mandatory arbitration, the Seventh Amendment, the employment context, and corporate power.  Judge Jackson had no opportunity to respond.

I simply can't tell whether Judge Jackson was unclear on what it is Whitehouse is worried about, or she was simply trying, presumably upon handlers' instructions, to remain utterly bland and uncontroversial in any declaration.  Whitehouse thanked Jackson for answering his questions with clarity and expressly recognizing the importance of the civil jury.  But she had not. 

After the exchange, Senator Dick Durbin (D-Ill.) noted pending legislation that would override purported consent to mandatory arbitration in sexual assault matters.  The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was signed by the President on March 3: a welcome change, a long time coming (since Hot Coffee; #MeToo revived the appetite), though redressing only a sliver of the mandatory arbitration problem.  Durbin was talking about, I assume, the Forced Arbitration Injustice Repeal (FAIR) Act, which, as H.R. 963, narrowly passed in the House, 222-209, just last week.  Its companion S.505 has been long pending in the Judiciary Committee.  The FAIR Act would apply to employment and consumer disputes.

Incidentally, just before the jury discussion, Senator Whitehouse asked Judge Jackson whether it is ever appropriate for an appellate court to do fact-finding outside the record.  She said that she knew of no such occasion.  Neither of them referred to, nor, doubtless, even thought about, the latitude afforded appellate courts to research the law of foreign jurisdictions, which is treated for most purposes as a question of fact.  I note the issue only because American appellate courts' unwillingness to investigate foreign law in cases in which it is implicated often impedes the attainment of justice in the jurisdictionally transnational cases increasingly generated by globalization, not only in corporate matters such as business contract disputes, but in family law and civil rights.

The Sullivan question has come up today, too, this afternoon by Senator Klobuchar (D-Minn.).  She seemed to suggest that journalists' lives will be put at risk without the "actual malice" standard.  Never mind the reputations and careers that have been ruined in the name of protecting press negligence and blissful ignorance.  I don't have the stomach today to tackle such uninformed melodrama.  As one might expect, Judge Jackson stuck close to tried-and-true principles of stare decisis.