Sunday, November 30, 2008



Living in the United States, you could be forgiven if you truly thought that all Germans were militaristic killers who secretly worship Hitler. You could be forgiven if you thought that Germans were all icy technocrats who prize efficiency over all else. You could even be forgiven if you thought that all Germans hate Jews. In a word, the American media--through television, film and press--has perpetuated a dangerous stereotype linking "Germans" to "Nazis." Television programs involving Germany typically focus on some barbaric cruelty inflicted during World War II, while most movies involving Germany show Germans murdering innocent civilians, or at least goose-stepping around in slickly-polished boots. The image alternates between the savage and the ruthlessly efficient. If these are the only images an American sees, he can be forgiven for thinking that all Germans are like the sadistic concentration camp commandant in Schindler's List or the treacherous soldier in Saving Private Ryan who slowly stabs an American Jew to death. If this is all you see, what impression will you form?

At the outset, I must be very clear: the Holocaust DID happen and I cannot condemn more strongly the conduct of Germany's National Socialist regime between 1933 and 1945. But I find it unfortunate--and historically unfair--to judge Germany solely on these 12 years. By focusing exclusively on Nazi atrocities during World War II, we blind ourselves to earlier German history. That history reveals an image far less brutal than the one so often shown in movie theaters.

World War II fascinates virtually everybody; and for good reason. There has never been such a cataclysmic encounter between clear "villains" and "the forces of freedom." No war in history has even approached the immense scale and horror experienced between 1939 and 1945. But for all our fascination, we cannot view World War II in a vacuum; earlier events led to the war. The key "earlier event" was World War I.

Almost no one talks about World War I anymore. Almost all World War I veterans are dead. Hollywood does not make movies about it, and it all seems impossibly remote to a modern listener. This is a terrible mistake, because World War I is the key event in modern history. World War II--along with the villainous Germany that facilitated it--would never have happened had World War I never taken place. No other war in history has so altered accepted political and social systems as World War I. Before 1914, monarchs held sway over vast European and foreign empires. After 1918, monarchy was out. The true "modern age" had begun, along with all its intractable modern complexities and industrialized violence. World War II continued the battles left unfinished in 1918. Yet because its scale and drama was greater than World War I--and because it came later--it overshadowed its predecessor. World War II is like the noontime sun, while World War I is like a star that cannot be seen during the day: The light from the sun overpowers the light from the star, even though the star is right there next to the sun.

What does all this have to do with Germany? Just because World War II has burned itself more intensely into our collective memories does not mean it should blind us to other history. If we use World War II as our only historical guide, we would be right to think that Germany was always an intolerant, brutal Nation, even in World War I. But this would be utterly inaccurate. I have often asked acquaintances what they think would have happened had Germany won World War I. Most say that Germany would have conquered all of Europe and subjected all Nations to Hitler-style persecution. I disagree with this assessment, but I know where it comes from: The superimposition of World War II onto all other historical inquiries concerning Germany.

So what was Germany like in the years preceding World War I? Was it a ruthless, intolerant dictatorship as so many Americans believe? Absolutely not. Germany was a constitutional monarchy ruled by a Parliament and an Emperor. The Emperor--like an American President--had Executive power but could not make laws. All males could vote, whether Catholic, Protestant, Jewish, Polish or Muslim. The fact that only males could vote at the time should not be seen as repression; even in the United States women were excluded from voting during the same period. Beginning in the 1880s, Germany guaranteed health care, unemployment insurance, social security pensions and accident compensation to all its citizens. Germany dedicated an immense part of its budget to caring for wounded veterans. In 1901, Germany had the third-largest Jewish population in Europe, thanks to a State policy of religious tolerance and excellent commercial opportunities. In 1912, Marxists composed the largest contingency in Parliament. Although the Emperor was unelected, he depended on the democratically-elected Reichstag to enact legislation. There was even a constitutional free press guarantee.

Does this sound like Nazi Germany? Religious freedom? Freedom of the press? Universal health care and unemployment insurance? Marxists in Parliament? Democratic elections for representatives in Parliament? It is hard to imagine a starker contrast. Although Imperial Germany vested executive power in a monarch, virtually every European country embraced monarchy in some form during this period. Even "democracies" like the United States did not provide social care to their citizens, nor did they so readily tolerate left-wing political expression in government.

Why does no one remember these liberal traditions in German history? Again, World War II has poisoned foreign understandings about Germany. It would not fit the barbaric stereotype about Germany if Americans suddenly learned that Germany had universal health care and unemployment insurance in 1884. After all, barbaric governments do not provide such compassionate assistance to their citizens. Nor do tyrannical governments allow political expression and universal suffrage. Yet Imperial Germany provided all these things to its citizens at a time when even the United States did not.

World War II also poisoned foreign understandings about Germany's motives in World War I. Under the "World War II" view, Americans think that Germany was a belligerent Nation bent on world domination. In 1939, Germany launched a war of aggression against its neighbors. It initiated vicious racial purification programs in the conquered territories, eradicating both ethnic and political opposition. It appeared to have no intention to relinquish the countries it conquered. But in 1914, Germany blundered into war without any intention to permanently annex new territory, let alone to exterminate millions in ethnic and religious minorities. Germany invaded France because it had treaty obligations to Austria-Hungary, which foolishly triggered war with Russia, France's ally. Throughout World War I, Germany was not fighting to exterminate "Untermenschen" or expand Germany's "Lebensraum." It was fighting due to a failed system of European alliances. If Germany had won World War I, there would have been no World War II-style oppression. Most likely, Germany would have taken some punitive steps against its adversaries, but would certainly not have begun slaughtering Jews, Poles, gypsies, homosexuals and Communists. After all, Jews, Poles, Communists and--although not declared as such--homosexuals formed essential parts of Germany's political system. In a word, Germany in World War I was not an intolerant Nation bent on world domination. Yet through the lens of World War II, many Americans assume that Germany "has always been" both intolerant and repressive.

I do not hide the fact that I am partial to Germany for several reasons. First, I am of direct German descent. Second, based on my studies I believe that Germany has borne an unfair stigma for a very limited period in its history. While this does not excuse Germany for its actions between 1933 and 1945, it also does not excuse us from simplistically assuming that Germany "has been and always will be" a violent, repressive society. Indeed, any fair investigation will reveal that precisely the opposite has been true for many centuries. Germany has a long history of liberalism, from artistic excellence to religious tolerance to intellectual freedom. The corrupt legacy of World War II has unfairly overshadowed all these cultural achievements. True, Germany also has a profoundly militaristic history, but its unique position in central Europe--caught between at least three powerful foreign enemies--partially explains its insistence on military strength. Furthermore, it is unfair to brand Germany "militaristic" for its actions during a time when all European powers jockeyed for military dominance, whether at home or in overseas colonies. In that sense, Germany's military prominence in the 18th and 19th Centuries is hardly unique. If military power alone signified a tendency toward repression, then Great Britain must certainly be counted as a "naturally repressive" State. Indeed, Britain waged nearly constant war during the 19th Century, from North America to Belgium to Portugal to South Africa to the Crimea to Hong Kong to India. It constantly maintained the world's most powerful navy, yet few Americans today view Britain's military prominence as proof that it was a naturally repressive State.

In sum, I think German history has suffered from gross historical distortion. Modern media has perpetuated this distortion. Unless Americans do their own research about German history, they will have no reason to think that Germany has been--and always will be--something akin to the Third Reich. Germans are profoundly aware of this distortion. While virtually all Germans deeply regret the darkest part of their history between 1933 and 1945, many now feel that continued prejudice against them is unwarranted. For generations now, Germans have been instructed to be ashamed of themselves for actions they never took. They have been instructed to suppress patriotic expression because they are told it is "dangerous" to have nationalistic feelings for Germany. These impositions have led to greater and greater resentment, precisely because Germans understand that they should not be over-punished for a discrete period in their long history. They know that for generations Germany has been a beacon for liberalism and tolerance in Europe. Yet in world media they see themselves portrayed as inveterate Nazis. These portrayals ignore all German history aside from World War II, perpetuating a lasting historical distortion.

Once living links die, media and second-hand accounts shape public understanding. We no longer have a living link to World War I, and the trauma of World War II has so dominated popular thought that it allows little room for reflecting on what came before. But it is dangerous to rely on popular history, because history will always reflect a distinct political or social perspective. Only by investigating all the evidence can we gain a clearer understanding about historical events. That means looking beyond stereotypes forged from a single historical experience. When it comes to German history, it is essential to examine more than just the National Socialist experience. We must look further back to see what Germany truly was. It is not an exaggeration to say that postwar Germany simply picked up the pieces scattered by the Nazis in 1933. Modern Germany--like Imperial Germany before it--enshrines many of the liberal ideals that have traditionally found expression in German life. Postwar Germany broke radically from the Nazi regime, but it did not break radically from overriding German political and social traditions. Today, Germany is again one of the most liberal Nations on earth. But that is nothing new; it only seems surprising because many Americans think that before 1945 Germany had never been anything but a savage, repressive State.

America has a perplexing interest in maintaining the idea that Germany is a dangerous, habitually violent Nation. In 1999, I applied for a Fulbright scholarship under which I proposed to explore many of the ideas raised in this essay. I wanted to illustrate that America has distorted the historical record about Germany by creating a stereotypical understanding about Germans that fixes all inquiry on World War II. My application was denied on "political grounds." It was too inflammatory. Apparently, the American government did not want me to disturb the fabric underlying German-American relations, or to expose the embarrassing cultural myopia that plagues most Americans' understanding about Germany. In America today, many still equate Germans with Nazis, thanks in large part to the endless media bombardment that reinforces that connection.

In hindsight, I am happy that I did not receive funding from the American government. I have given up on America's ability to conduct fair foreign relations. Perhaps Obama will restore some of America's credibility on the world stage. But I doubt he will influence the endless tide of negative press and media about Germany. Only time will tell whether the historical distortion about Germany will ever subside.

Friday, November 28, 2008


Did you get the dreaded jury summons in the mail? "Oh, God," you're thinking. "I need to waste four whole weeks at $4.00 per day listening to lawyers in bad suits argue whether someone signed something or not.

Not so. If you follow these easy steps, you will never serve on a jury. Here at Reason, Commerce, Justice & Free Beer, we believe in employment. To that extent, we believe that we have a duty to publish information that will allow employees to honor their private obligations to their employers. When public service interferes with private enterprise, economic prudence demands that private enterprise prevail. After all, without private enterprise, there would be no government. In that spirit, please learn and use these jury avoidance procedures. And make sure you get back to work quickly. Our economy needs more work days, not more jury trials.

We salute Employers Against Worktime Excuses for their generosity in sharing these procedures. Although we believe in the rule of law and fair trials, we must be prepared to sacrifice both when they impact workplace productivity.


Here are some tips on how to be excused if you are not an attorney: (1) If it is a criminal case, say: "I support the police in every single case, no matter the facts. My father was a cop, his father was a cop and my grandfather was a cop back in Ireland. Criminals must be punished and I strongly support the death penalty for every crime, including shoplifting;" and (2) If it is a civil case, say: "I work for an insurance company. I support insurance companies in every case, no matter the facts. I think all private individuals are liars and no one deserves money for an injury. I only trust insurance companies. Other than that, I can be fair and impartial."

Thursday, November 27, 2008


The Party for People Who Love Money

By : Mr. Gabriel H. Silver, Accounting Director and Party Policy Administrator

Do you love money? How about cash? Checks? Paychecks? Cashier’s checks? Certified checks? Bank drafts? Wire transfers? Money orders? What about gold coins, ingots and bars? Do you get excited when you see a large balance next to your name when you log in to your investment account? Do you like dividends? How about refunds and cash advances? If you do, I’ll bet you also like interest-bearing high yield international money markets and deferred tax savings funds. If you like all these things, it’s time to join a political party that shares your sentiments. We, The Party for People Who Love Money, stand for a simple principle: To make and defend money at all costs, no matter the price. For too long, political leaders have ignored this principle. Rather than maintaining their attention on money, they have focused their energy on conscience and justice. We are sick and tired of this nonsense. We demand government composed of people who share our love for all things financial. True, we are small in number, but we are great in spirit. Our hearts burn for money, and we do not let conscience, justice, dignity or even decency stand in the way. Neither conscience, nor belief, nor justice, nor dignity, nor decency pays rent or bills. Bill collectors do not accept statements of conscience as legal tender for payment of debts. Bill collectors accept only cash, check, money order or charge, and it would behoove us as a Nation to get back to reality. Conscience is for dreamers and weaklings. Money is for leaders and visionaries. If elected, we promise to restore faith in cold hard cash, not vague ideals. A government devoted to money will serve its people better than a government devoted to unattainable abstractions such as “freedom,” “peace” and “equality.” It is time for a simple new era of dualities in American life. If a course of action makes more money than another, we will pursue that course. If war makes more money than peace, we will wage war. If commerce in guns makes more money than gun control, we will allow commerce in guns. If allowing deforestation makes more money than forest conservation, we will allow deforestation. Our approach will remove difficult subtleties from governmental decisionmaking and reduce every thorny question to a simple numerical inquiry: “How much money will it make?” If one proposal will make $4.00 and another will make $4.50, we will adopt the proposal that makes $4.50. Americans want transparency and predictability in government, not vacillation. Americans have a right to know what their government will do in advance. Under our system, they will know. We realize that we face an uphill battle. But together we can prevail. Ask yourself: “Do you love money?” If you answer “yes,” cast your ballot for a party that thinks the way you think. It’s time to end complexity in government. It’s time to get back to first principles. We need to stop wasting time chasing impossible goals like “freedom.” We need to start doing things that make a profit. Do everyone a favor: Put a party in power that pays the bills. Forget idealism; embrace realism. When you get right down to it, one phrase makes the world go around: “It’s all about money, honey.” For decades, government has forgotten that. Let’s refresh our memories. Vote Money. Because with money, all things are possible.

Wednesday, November 26, 2008


By : Mr. Ernest A. Coldwell, President and Chairman of the Board of Directors, E-Z-On-N-Off Bandage Mfg. Co., Inc.

It’s Thanksgiving week again, and we are not happy about it. It happens every year: An entire production week wasted to honor an antiquated 19th Century holiday.

Thanksgiving is stupid and bad for business. In these dark economic times, we need to work more and relax less. Thanksgiving makes it impossible to work for the entire week. Why the hell does it have to fall on a Thursday every year? If you give people a Thursday off, why bother showing up on Friday? So there’s another production day out the window. Worse, if people know they will be off on Thursday, they will leave early on Wednesday, assuming they come in at all. “I need to travel; there will be long lines this year,” they say. Lazy bastards! We have deadlines and profit goals to meet, and you’re bitching about going home to Kansas to see your stupid-ass cousins and in-laws. And because employees know that they will have at least a 4-day weekend beginning on Wednesday night, they are totally distracted during the beginning of the week, further weakening productivity. Put simply, because Thanksgiving falls on a Thursday and people start leaving the helm on Wednesday, the entire week goes down the fucking toilet. Economically, it is the most crippling holiday on the calendar.

E-Z-On-N-Off Bandage Manufacturing Company, Inc. gets nowhere when its employees take off from work. You need to be on the job every day for our company to succeed. Don’t you care about helping your employers meet their profit goals? If you do, you should be ashamed of yourselves for running home to Mom for cranberry sauce, peanuts, pumpkin pie and badly-cooked turkey “home-style” dinners. Yeah, yeah, yeah, you say it’s an “American tradition.” But traditions don’t pay the rent, pal. Not only that, but this is a really stupid, outdated tradition from the Civil War. Maybe Abe Lincoln had something to be thankful for. But he was not working for E-Z-On-N-Off Bandage Manufacturing Company, Inc. He was not in business, and he was not pissing his pants watching production totals go to hell for an entire week. Do you think we’re in business for the fun of it? Hell no! We’re in it for money, and we don’t make money when your ass is in Wisconsin watching football with your father and uncles. Basically, Thanksgiving might have been a good idea in 1864. But guess what? It’s 2008. It’s a new goddamned century, and we have quarterly production totals to worry about.

You are all a bunch of lazy bastards. Go ahead; enjoy your four or five days off, you selfish jerks. Don’t you care about the company that pays your mortgage? You say you do, but you sure got the hell out of Dodge pretty damn quick for Thanksgiving, didn’t you? You’re going to sit around the house all day for four days, munching snacks and drinking beer. Meanwhile, production levels will fall to zero, and the shareholders will start feeling the pinch. You selfish animals! You enjoy yourselves while the shareholders take a financial hit.

You think I’m being unreasonable, eh? You think I’m acting the Scrooge, eh? You think I’m raining on the all-American Thanksgiving Day parade, don’t you? You say to me: “Thanksgiving is a time for reflecting on what we have, remembering those we’ve lost and giving thanks for our many blessings.” Well, we give you everything you have! Our money gave you your house, your car, your stereo and your stupid plasma-screen TV. We gave you your “blessings.” Yeah, you made your kids on your own time, but if it weren’t for our money, you wouldn’t be able to take care of the little frigging brats, now would you? So frankly just shut the hell up about me being “Scrooge.” I am just being realistic. You should be thankful for one thing: Your job. And you would give thanks a heck of a lot better showing up for work this Thursday rather than scarfing down bread pudding and sweet potatoes with your ugly-ass sister-in-law.

Look, we only give you the day off because we are required by law to give you the day off. Do you really think you would be getting a free PAID day because we care about your family’s Thanksgiving time? Fuck ‘em! All we care about is you working to meet our profit goals. We don’t give two good craps about your wife, your daughter or your mother. This might be your grandmother’s last Thanksgiving because she has cancer? Is that our problem? Remember this: You have a job to do and we pay you for it. Beyond that, we don’t care. But here’s what we do care about: Productivity will be dead for the entire week. There are only 52 weeks in the year, and we can’t afford to fall behind for even one.

Do everyone a favor, you lazy bastards. Eat your fucking turkey fast and get your ass back to work ASAP. If you even think about taking another day off before year’s end, you might as well just quit, because we’ll fire you quicker than you can say: “Mashed potatoes.” Go ahead. Call us cruel. We pay your salary. Deal with it. We own corporations because we know how business works. We act the way we do because we know how to win. We don’t put family before work. If you did the same, maybe you’d be more successful than you are. Think about that while you’re sitting at home with your cousin’s acquaintances eating Ritz crackers.

See you on Monday. And don’t be late.

Tuesday, November 25, 2008


This question normally follows "What is your name?" In other words, your work is tantamount to your identity. Worse, the person asking the question typically has a preconceived notion concerning "decent" work, and will judge you harshly if you give an inappropriate answer. If you are applying to live in a co-op apartment, you may even be denied the honor to live among "respectable people" if you answer: "Unemployed; self-employed; artist; teacher or bricklayer." Your work brands you. You have either respectable work or suspicious work. Suspicious people do suspicious work. "We don't want those kind of people living with us," thinks the co-op admission board member.

Later that night, the board member goes to sleep, then gets up the next morning. He has a brief breakfast, kisses his wife goodbye, then commutes to an office, where he begins work as a doctor. He has "respectable work." He comes home, has dinner and goes to sleep. He repeats the process the next day. Nothing changes. He feels empty, but he is comfortable. That consoles him and staves off the meaninglessness. He deserves to live among respectable people. There is nothing to worry about with this man. He is employed in a decent profession and we can assume he is a decent person, even if he occasionally feels that his life is empty.

Leaving aside decency, what is it about work that hypnotizes people so much in our society? We live in a world of external obligations that constrain our activities. We must pay rent. We must buy food. We must take care of our spouses and children. We must go to school in order to secure the education necessary to make the money needed to fulfill all the other obligations. We must commute every day to make it to the job where we make the money necessary to fulfill all the other obligations. And on and on: Life is a stressful web of warring, insistent obligations. Work is the means to fulfill those obligations. Without work, we would have no money. And without money in this world of obligations, we would breach our obligations, leading to homelessness, destitution, ruin, physical misery and death. Avoiding that fate is an achievement in itself. That is one reason why people take some pride in their work, even if they truly detest getting up every morning and doing the exact same thing for ungrateful employers day after meaningless day.

Employed people harshly judge unemployed people. They deride them for laziness, indecisiveness and even stupidity. At the same time, many employed people absolutely detest their existence because their time is not their own. They wait to fulfill personal business until the weekend. They forgo doctors' appointments to avoid displeasing their employers. They tolerate worsening work conditions, lower pay and reduced benefits in order to preserve the steady paycheck they receive, which in turn wards off the relentless obligations lurking on the first of the month. They go about their work lives under constant supervision and review, fearing even to take a phone call from their children lest their bosses censure them. Despite all these daily indignities and frustrations, employed people nevertheless take smug pride against the unemployed. "At least I'm working," says one, even if he positively hates his daily work life. "I am a Junior Analyst; he's a do-nothing," says another. Perhaps the do-nothing is actually enjoying his life. The employed person does not acknowledge that possibility. For him, employment is talismanic: It exerts a powerful influence on him even though he does not really know why. Still, something tells the employed man that work is a two-edged sword. Yes, he has a means to fulfill his own obligations and he can take pride in independently avoiding homelessness. But there is distinct lack of joy that stems from an acute lack of free time. Without occasional joy, life takes on a drab grayness. After a while, the pride that comes from fulfilling obligations weakens, replaced by an itching desire to simply reclaim one's own time from an employer's grip.

Many people reject my hypothesis that working people are generally unhappy with their lives. Yet I challenge anyone to ride a subway train on a Monday morning and simply look in an average commuter's face. Facial expressions do not lie. You will see abject resignation, despondence, frustration, anger, numb neutrality and some outright despair. Many will have their eyes closed in a desperate attempt to do something immensely personal that endless employment often robs: Sleep. Other commuters will bury themselves in daily newspapers to distract their minds from what they know awaits them at the office. This palliates the misery, but it never cures it. What would these people rather be doing? One might have dozens of errands that she would like to get done. Another might want to visit his children. Yet another would simply like to sit on the couch and relax, rather than face performance reviews, belligerent coworkers and office intrigue.

In a word, most working people would rather be doing anything but their jobs. Yet they criticize and judge anyone who chooses to do what he wants every day. "I work," they say. "He is lazy." In other words: "I go through hell every day while this bum sits on his ass and does whatever the heck he wants from hour to hour." It is a strange form of envy. In his criticism, the employed man tacitly wishes that he, too, could do what he wants from hour to hour, because at his job he knows he will be under another's supervision and control. He resents the unemployed man's freedom from workplace control and discomfort. Yet he stifles his resentment with the stubborn pride that his own suffering allows him to pay his bills, while the unemployed man's freedom will ultimately destroy him. By working, the employed man bears suffering, which entitles him to live without economic worry. It is a perverse reward for denying his own happiness for days, months and years at a time.

Work has talismanic significance in the United States. If you don't have a "job," people look at you with contempt. And even if you work, they will still look at you with contempt if it is not "appropriate" work. Bartenders and lawyers both work, but only lawyers can suitably answer the crucial question: "What do you do?" Why does this have to be? Is this what life is all about? People say: "I live in this neighborhood and I work in that neighborhood," as if life and work were separate existences. Are we living when we're working, or not? At the end of our lives, will it really matter whether we tended bar or passed the bar? In our commercial world, we take disproportionately strong pride in our ability to acquire property. Because work provides us the means to acquire more property, work assumes an essential place in our own sense of worth. Work enables us to win at the "life game," even if it inflicts psychic and physical agony on us every day. That agony comes in many forms, including the cruel realization that we have only two days out of every seven--and often fewer--to enjoy life. We cannot get our time back, and work voraciously consumes time. If death strikes unexpectedly during our work lives, we will have never had any time--aside from childhood--to have lived life as we please.

Human existence comes down to subjective impressions. Like any mammal, human beings experience emotions. Money, success, property and work all cause either good or bad subjective emotions. When we succeed, good feelings pervade our bodies. When something goes wrong, negative feelings darken our minds. In our quest for abstract success, anxiety overwhelms us. Subjectively, we have no peace. We fear the negative emotions that our circumstances might cause. At the end of our lives, we will look back and think about the feelings and emotions we experienced, not about the things we bought. And we certainly will not think about the endless hours we toiled at our desks wishing for 5 PM.

In the end, what difference does it make "What you do?" Time is ticking. Will you regret how you spent it?

Monday, November 24, 2008


Unimaginative Learners’ Union for More Sports Analogies in Public Discourse

By : Coach Stan F. Buckpits, Offensive & Defensive Party Coordinator

Americans know that the pressure is on. We’ve got two runners in scoring position, it’s the bottom of the 9th and we’re down by two. You might also say that it’s 4th & Goal and we’re down by two field goals. The bottom line is that we need some clutch performances to save this country from ruin. For years, Americans have faced criticism that they are not sufficiently engaged in the political process. We, the Unimaginative Learners’ Union for More Sports Analogies in Public Discourse, believe that this criticism is unfair. Our critics say that Americans are too dumb to understand complicated political, social and economic issues. They say that Americans cannot properly analyze questions and arguments. But our critics are wrong: Americans know how to analyze. They minutely discuss sports events for weeks after the event, presenting cogent arguments concerning the outcome. Americans know how to dissect arguments about their favorite sports teams and Americans know how to speak eloquently about why their sports teams deserve victory. In our view, Americans will become more politically engaged when their political leaders speak their language: Sports. If elected, we promise to compare every single political, economic and social issue to a sports situation. This will not only make Americans understand issues such as health care, social security, income tax and the Bush Doctrine, but it will empower Americans to formulate wise opinions concerning the proper course of action in every case. Americans will care about their government when they begin to understand their government. By drawing parallels between government and sports, they will become active citizens overnight. We will assign new names to every government official and department. We will rename every American State after a professional sports team that plays in that State. For example, the Massachusetts Bureau of Corrections will also be known as “The Patriots’ Tight End Rush Training Camp.” The Arizona Tax Authority will also be known as the “Diamondbacks’ Stat Management Front Office.” The President of the United States will be known as the “NFL Commissioner.” And so forth and so on. Today, we face the worst financial crisis in generations. Let us step up to the plate and dig down, because we can’t afford to go down looking this time. We need to work the count and put the ball in play. We need a full-court press and we have no time to go 40-love. Nothing short of a birdie will save our Nation, and we won’t settle for an extra point; we demand a 2-point conversion. It’s time to bring in the beefy offensive linemen and blitz all the way to national solvency. This year, vote for understanding in political life. Tell your leaders to learn your language. Make them call audibles. Let’s get it together, people. Let’s get in the game and start banging some hoops. Because when Americans know what they’re doing, it ain’t nothing but net—SWISH! BOO-YEAH!

Sunday, November 23, 2008


An open letter to the Managing Profit-Sharing Partners of Brightgold & Billings, LLP, Attorneys at Law specializing in antitrust litigation

Dear Sirs,

We write to you as your humble associate servants. For 3100 hours per year, we conduct legal research for you, write memos, organize files, make copies, sit at depositions, update docket sheets and eat lunch at our desks while listening in to conference calls. We are proud legal professionals, and we are pleased to serve the financial interests of Brightgold & Billings, even if that means withholding material information from the securities markets or governmental investigators. Our loyalties lie squarely with the firm. Our billing records and timesheets prove it. We are always here. We are always billing. And we are doing it all for you.

We take seriously the firm's motto: "When losing is not an Option®." We are not afraid to work from 5 in the morning until 1 the following morning for three weeks straight in order to secure an injunction for your clients. We are not afraid to work on Thanksgiving, Christmas, Easter Sunday or New Year's Day. We don't take vacations; but if we do, we take work with us. We don't sleep to make sure you don't lose. Your clients' money matters; that is why we never stop working. At the risk of mental illness, suicide, gastrointestinal injury, depression, anxiety disorders, heart attack, obesity and high blood pressure, we stay in the office through the weekend. We ensure that every color-coded sheet is correctly placed in every filed brief. We ensure that your case citations conform to accepted citation format. And we meet every deadline you set--every time.

In a word, we are your dedicated servants. Our track record speaks for itself. We would never abandon you. Nonetheless, we confess that we are tired. In that light, we humbly request no more than 10 hours off per weekend. We realize that this is a very bold request. We fully respect the fact that the firm's business can never wait, and we are prepared to hear that you cannot grant our request. Rest assured that if you decide that you cannot grant us 10 hours off per weekend, we will in no way feel resentment or disappointment. We will continue to render you the same, unswerving service that you have come to expect from us.

Please bear in mind that our request does not stem from laziness. Rather, we sincerely believe that approximately 10 hours' rest per weekend will freshen our minds to the extent necessary to ensure maximal productivity once we return to work. We venture to suggest that granting us a few hours off may actually be in your financial interest, because we will be able to achieve more with rested minds. True, we will not be billing for up to 10 hours per weekend. But if we are rested, we will produce more tangible benefit to the firm during our billing hours.

We welcome your suggestions concerning our request. We are amenable to any compromise you may propose. For example, you may ask that we take our time off during traditionally quiet periods, such as Sunday evenings between 7 PM and 5 AM. You may also ask that we take no time off during firm emergencies, such as filing a summary judgment brief or preparing an SEC report. We are completely open to such modifications. We emphasize that you should in no way consider our request to reflect a rebellious spirit. We remain your humblest and most loyal legal servants. Our loyalty to you demands that we advise you that our service has made us tired. We want to continue serving you 24 hours a day, plus holidays. Yet without a little rest, we will be unable to deliver the maximum client satisfaction you have come to expect. We believe in winning as much as you do. But to keep winning, even champions need a few hours off the field.

We hope that you will understand this letter for what it is: A humble request from humble servants. In the everyday crush of business, it is sometimes difficult to know what lower-level employees are thinking. Indeed, we recognize that you have much more important things to worry about during the day, including golf outings with clients and preparing monthly travel expense sheets. You are entitled to assume that your servants will attend to your business with the same zeal and vigor that they have always shown. Still, we believe that it is important to understand your servants' needs from time to time. To be truthful, we do not have many needs. We can tell you candidly, however, that our primary need is to ensure your total financial success. To fulfill that need, you need the best team. The best teams occasionally need rest. Thus, we seek approximately 10 hours off per weekend end in order to continue to be the best team. We believe that 10 hours per weekend will provide us the reprieve we need to remain your best possible servants.

Thank you for your time and consideration. Again, if you choose to say no, we will not feel disappointed or resentful. We will continue to provide top-notch client service as we always have, fully consistent with firm business growth and financial goals.

Yours sincerely, truly, gratefully, humbly, loyally and in full knowledge of your superior station,

Curtis A. Bummlicker, Esq.,
Associate Attorney (Specializing in Antitrust Defense; J.D., summa cum laude Harvard University (2007), Order of the Coif, Best Oralist) on behalf of the Associates and Junior Non-Profit-Sharing Partners of Brightgold & Billings, LLP.

Saturday, November 22, 2008



I detest customer service centers. More generally, I do not even like most telephone calls. When I need to get "customer service" by telephone, I cringe with resentment and foreboding. If something goes wrong with a product I buy, I look for the dreaded 800 number, knowing full well that I will waste hours on hold for someone who ultimately will not help me in the end. For years, I simply resigned myself to this result. But in recent months, I discovered the truth about customer call centers: It's not about you; it's about the company.

Merchants sell goods. Goods sometimes fail. Merchants want to continue selling goods, and they know that angry customers will not buy from them if they had bad experiences with their goods in the past. For that reason, merchants want to produce at least the illusion that they care about their customers. But it is not practicable to spend time with every individual customer; that would eat into profit margins. How, then, can merchants appear to help their customers without sacrificing profitability? The Call Center. By providing an 800 number in product packaging, merchants can claim that they "care about the customer's experience" and "will do all they can to ensure that the product operates the way it is supposed to."

What happens when you call a "customer service center?" First, you will wait on hold. It would be economically prohibitive for a company to provide sufficient staff to handle every inquiry from every past customer concerning all its products. Second, when you do get through, you will hear a foreign voice, most likely an Indian one. Companies want to maintain the illusion that they care about their customers. But they are unwilling to take away their own time to speak to individual consumers. So they "farm out" customer service to third party companies in India that attempt to answer customers' questions. This makes economic sense for the company because it can pay the customer service clerks in rupees rather than dollars. Although Indian clerks may not give the same comforting assurances to American customers as American clerks, they cost much less. And every company wants to lower costs, because lower costs mean higher profits. Third, provided you can understand the clerk's dialect, you will be asked to answer dozens of questions about the product, where you bought it, what the problem is, how long you've had it, whether you've had past problems with it, whether you plan to buy another, etc. Fourth, if you have not yet hung up the phone, the clerk will read from a list of possible solutions to your particular problem. After all, the company cannot teach an officeful of Indians about the precise technical details of all their products; it makes much better economic sense to merely print a list of model numbers and a corresponding list of potential problems with potential solutions. That costs next to nothing. In the end, the company can claim that it cares about its customers, no matter how you actually feel.

All this may seem self-evident. But there is another purpose to the call center that may not seem apparent at first glance. From time to time I consult for law firms that represent huge companies. During one such engagement, I learned that companies use call centers for a much more significant reason than merely reflecting the "appearance of caring" about their customers. They also use call centers to gather information about common issues with their products. They want to know what people like about their products, what they don't like and what they'd like to see improved. Call centers, then, act as "information cauldrons" from which companies can scoop out lucrative ideas for new products. Companies can identify problems with products that they would not have noticed before, correct them, and begin designing new products that will satisfy annoyed customers. Companies go to great lengths to put together call centers that fulfill these purposes. They impose protocols on the clerks to make sure they get all the profitable information they can from customers. If they do not follow the protocols, they lose their jobs. Companies regard call centers as a significant investment in future profitability, not merely as gratuitous gestures to their customers. Nonetheless, they wrangle incessantly to hire low-cost call center staff. In virtually every case, their advisors tell them that American staff would be most qualified to obtain the information they want. And in virtually every case, the managers opt for India, because they do not want to pay American wages and withhold American taxes. True, they know that American customers prefer to talk to fellow Americans, but they do not really care about the customer's desires. They want to fulfill their own business purposes at minimal cost. If that means hiring Indians at 45 rupees per day, then so be it. Companies need human beings who speak English. Indians are the best buy.

Call centers reflect insidious commercial realities. They demonstrate the lengths to which companies go to delude customers into thinking they they "actually care," when in fact they merely want to use customers as information wells. They also demonstrate companies' relentless quest for lower costs, no matter what. Some may call the quest for lower costs "anti-patriotic" because no reasonable company wants to pay American workers American wages. But commerce has no national loyalties. The commercial spirit senses only profit and loss, and if hiring Indians means higher profit and lower loss, then Indians will be hired, even if they are baking American apple pies. To the commercial mind, numbers matter. That is why call centers operate they way they do. The next time you think to yourself: "Why don't they care about their customers enough to provide truly helpful staff who actually speak American English?" remember this: Companies could care less about your subjective impressions. You are speaking to an Indian in Bombay because it saves the company millions of dollars, while at the same time you are funneling priceless information to the company that it will transform into future profit. Your individual frustration with the process is a cost the company is willing to bear. It means nothing compared to the financial benefits it will gain from the information you provide.

In commerce, numbers matter, not feelings. Feelings only matter when they cause numbers to decline. As long as call centers allow companies to maintain their numbers, your frustration about call centers will do nothing to alter them.

Friday, November 21, 2008


Yesterday, the Illinois General Assembly unanimously passed a bill that alters the common law hearsay rule in First Degree Murder prosecutions. This is a dramatic step. I have often written that the law's main purpose is neither justice nor fairness. But evidence rules such as the prohibition against hearsay are one example of the law's concern for just results. I have also written that the common law generally reflects chauvinistic, outdated values that do little but protect property interests against those with less property. Yet the common law gave us the hearsay rule to ensure that no one loses their life or their property without strong, empirical proof. The hearsay rule protects justice because it is a safeguard against bad evidence. Without it, people could go to prison on fabricated testimony. People could lose their liberty without a chance to challenge the person who spoke out against them. This is intolerable in a society dedicated to liberty under law.

Law concerns only body and property. True, these may not be the only important things in human existence, but we gain insights into a government's character by evaluating how it treats the bodies and property of its citizens. Both the English and American systems profess respect for bodily liberty and integrity. To that extent, their legal systems developed evidence rules that indulge every ambiguity in favor of the person who stands to lose his bodily liberty. England enshrines this principle in Magna Carta: "No man shall be executed, imprisoned or otherwise disseized but by the law of the land." America picked up this ideal in the Fifth and Fourteenth Amendments, namely that neither State nor Federal governments may deprive a citizen of "life, liberty or property without Due Process of law." These two principles reflect the same core idea: That government may not take away a person's life, bodily liberty or property without affording him a relatively fair process under law. While "fair process under law" may often be less than perfect in practice, the principle is a sound one. It sets an aspirational standard that expresses respect for the individual in his confrontation with government power.

Evidence rules developed in England in order to provide "fair process under law" prior to adverse government action against an individual. Before government could condemn a man, it had to show that the man violated the law by convincing sensory evidence. To do this, it had to bring in the best facts. People believe what they directly see; they are much less likely to believe something reported to them by a third-party. This is pure "common sense." One much more readily believes that a man stole an apple if one sees the man surreptitiously taking an apple from a cart than if one heard from a jealous neighbor that he took the apple. The common law recognized this by enforcing the hearsay rule. At common law, the court refused to even consider statements made outside the courthouse if they were offered to prove the truth of the matter asserted. Without going into excruciating detail, the common law carved out a great many exceptions to this general ban, but the principle itself is simple and just: You cannot take away a man's liberty by presenting a witness who simply recites what he heard from a person who is not in court. After all, how can the accused man challenge a statement when the speaker is not there? The witness could simply invent what he heard. Invention is no basis to send a man to prison or--worse--put him to death. Such a result would contravene the very spirit of "fair process under law" that Magna Carta and the Constitution both intended to protect.

But Illinois decided it would "relax" the hearsay rule in First Degree Murder cases. In its new legislation, the General Assembly declared that hearsay statements only by a murder victim may be considered against the Defendant if there is a "likelihood" that the Defendant killed the victim in order to prevent her testimony. This undermines the very purposes that animate the hearsay rule. It allows a jury to convict a man for murder based upon a dead person's statements to a third party. Obviously the Defendant cannot challenge the dead person's version of events. Consider what mischief this could cause. For example, in a murder prosecution, the State may present the testimony of the victim's mother--who is biased and hostile to the Defendant--to say her daughter told her a week before her death: "My husband wants to kill me." At common law, this statement is pure hearsay if it is offered to prove the Defendant either killed or had a motive to kill his wife. There is no way the Defendant can challenge the accusation because his wife is dead. Yet under the Illinois law, this statement may be used to condemn the Defendant. He could even face the death penalty on this evidence.

Defendants have a categorical right to challenge the evidence presented against them. No matter how much we may "think" a murder Defendant committed the crime, our Constitution requires much more than mere intuition to take away his life or liberty. They must be allowed to challenge adverse testimony face-to-face. U.S. Const. Amd. 6. A famous evidence scholar wrote: "Cross-examination is the greatest legal invention for the discernment of truth." Yet under the new Illinois hearsay rule, Defendants will be forbidden from applying that invention. They must sit helplessly by while witnesses recite the victim's statements. By the same token, witnesses will be free to invent, embellish and fabricate the "victim's words" as much as they wish. True, a good defense attorney could undercut the witness' recollection of the victim's words, but this is modest recompense for the damage such statements can do. The common law had very good reasons for excluding hearsay; and the Illinois law brings them disturbingly back to the light.

I am quite confident that the Illinois law will not survive constitutional scrutiny. Aside from technical constitutional violations, the law squarely arouses a sense of unfairness. You don't have to be a lawyer to know that hearsay is usually extremely unreliable, and it is doubly problematic to think that Illinois now allows its use to justify convictions for murder. Hearsay is inherently suspect. It borders on the absurd to consider that Illinois wants to allow it in the most serious criminal prosecutions, but not others. This differential treatment presents separate constitutional problems under Equal Protection principles. Specifically, a legislature must have "rational basis" for allowing hearsay in prosecutions for one crime, but not in others. Is it rational to allow victim hearsay in First Degree Murder cases, but not Second Degree Murder cases? If the State has an interest in convicting killers, it should allow hearsay in both situations, yet it selectively targets only one. Beyond that, hearsay lends itself to fabrication. To rest a conviction on fabrication would be to deprive a man of liberty without "fair process under law."

Illinois' law makes further constitutional missteps. In 2004, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). In that case, the Court concluded that the Sixth Amendment forbids any court from considering a statement made by an "unavailable witness" for "testimonial reasons" if the Defendant had no prior opportunity to cross-examine the speaker. "Testimonial" statements mean statements made with a reasonable expectation that the statement would be used in a criminal investigation or prosecution. Classic "testimonial" statements include statements made to police, detectives, prosecutors and other "law enforcement professionals." The Illinois law places no limitation on the "type of listener" to whom a murder victim makes a statement. In Illinois, a police officer may testify: "The victim called me 4 days before the murder and said: 'My husband is going to kill me soon.'" Any reasonable person would feel that such a statement would be used in a subsequent criminal proceeding. The Defendant had no prior opportunity to cross-examine it. Indeed, it may be pure fabrication. Obviously the victim is dead and she is now "unavailable" as a witness. Under Crawford v. Washington, the statement violates the Sixth Amendment. Yet Illinois now presumes to admit such statements.

I rarely defend legal technicalities. But when legal procedure operates to defend individual liberty against governmental intrusion, I am a vigorous advocate for the individual. Illinois' new hearsay rule should shock anyone who cares about limitations on governmental power. As much as I ridicule the common law, I am thankful that it has been wise enough to ban hearsay as a basis for condemning people to imprisonment or death. Illinois' new hearsay rule denies a Defendant the right to challenge evidence arrayed against him. It also provides an opportunity for vindictive witnesses to fabricate a dead person's words in order to convict the Defendant. While the law may not always provide fairness, the hearsay rule is an instance when it does. To undercut the hearsay rule is to introduce a whole new dimension of unfairness into the already unfair confrontation between individual and State in criminal prosecutions. I am an unabashed theorist; I care about fairness and justice. The hearsay rule is a procedural mechanism that protects both. To that extent, I oppose any legislative attempt to reduce those protections.

Every government wants to enforce its criminal laws and convict the guilty. But we must never allow its zeal for convictions to dismantle the constitutional protections that shield us from brute government power. If we allow even one deviation, we set a precedent for further erosion. When that happens, we will be hard pressed to stop the government from assuming more and more tyrannical ways.

Thursday, November 20, 2008



I have always mocked lawyers for their pedantic attention to minor details. This is not to say that I do not attend to details when detail is important. But lawyers have a reputation for insisting on details that—in the grand scheme—are less than trifling. This morning I read a case review discussing the Illinois Supreme Court’s rules for filing appeals in the correct format. If an appeal does not precisely meet the Court’s formal requirements, the Court will not consider the issues, even if a person’s liberty is at stake. If an imprisoned man wishes to petition the Illinois Supreme Court for a writ of habeas corpus, he must precisely list each issue he intends to discuss in his appeal. If he fails to include an issue in the list, the Court will refuse to consider it, even if he discusses the issue in his legal brief. To my mind, this is formalism run amok. And it confirms my hatred for lawyers’ obsession with procedure, even when procedure leads to injustice.

Hate is a strong word, but I use it quite consciously in these circumstances because I feel that most people mistakenly look to the law as a source of justice and good. In the law, justice is merely a side effect; it is not the law’s true object. Law professors roll their eyes when naïve first-year law students struggle to recognize this sad truth. “How could this case come out like this? What about justice?” Only after reading hundreds of cases does the student see that “justice” is not the law’s purpose. “Justice” refers to an intuitive, unwritten notion of basic right and wrong in a given situation. It draws upon common, unstated humanity, not rigid written rules and procedures. Yet the law is rarely intuitive, and it is always written. It is a product of human reason, not human intuition. Its goals are purely administrative. The law aims to lay down predictable, recognizable rules that encourage people to do business and to restrain them from injuring one another. At times the law will lead to justice. Other times it will not. It is simply not important.

Legal rules often reflect the judgment of the powerful over the weak. The law rarely comes into play without conflict, and most conflicts involve a strong party and a weak party. Strong parties like their strength and want to keep it. They will do their best to write laws in such a way as to keep their strength. English common law, for example, always favored the “more propertied” party in any dispute. Ownership was strength, and the owner had rights against the non-owner. Even criminal laws protected property. The common law reserved harsh penalties for those who disrespected merchants’ property rights. Until the mid-19th Century, England hanged thieves who targeted merchants. Merchants had strength and they lobbied Parliament to draft laws that preserved their strength. It is a familiar refrain. While we may no longer hang thieves, our law nonetheless responds far more readily to the strong than the weak.

Legal procedure ensures that the strong win, even if the weak have a good case. The Illinois Supreme Court rules requiring a “precise statement of the issues on appeal” reveal this phenomenon at work. A prisoner is a “weak” party who naively attempts to use the law as a vehicle for justice. The government, however, is a “strong” party that attempts to use legal procedure to foil such naïve defiance. The prisoner may have been falsely convicted on the basis of improper police work. But if he fails to list that issue in his petition, the Court will not even consider it. The government will win, even if the prisoner is absolutely correct in his assertion. Because the prisoner did not technically meet the formal requirements, he loses. He will never get another chance to argue the issue because the legal procedures ensnared him.

Lawyers would say that this is a perfectly acceptable result. They would say: “Read the rulebook before playing in the courts.” As true as that may be as a technical matter, they miss the point. The crucial question is not whether someone conforms with technical requirements; the crucial question is whether a court does justice. If a court keeps an innocent man in prison simply because he lacked the linguistic acumen to avoid a procedural trap, it holds itself up to ridicule. A court may be perfectly accurate in applying a procedural rule, but if it fails to do clear justice, it arouses outrage. Outrage, of course, does not depend on rulebooks or technical requirements. Outrage breaks out when a person—as an intuitive matter—feels that wrong has been done. Obsessive attention to legal procedure can lead to this. After all, legal procedure often misses the forest for its own trees. In its ruthless insistence on compliance, legal procedure brings to mind Jesus’ rebuke to the Pharisees: “You pay a tenth of mint, dill and cumin, yet you have neglected the more important matters of the law—justice, mercy and faith. These things should have been done without neglecting the others. Blind guides! You strain out a gnat, yet gulp down a camel!…First clean the inside of the cup, so the outside of it may be clean.” Matthew Ch. 23:23-24, 26.

Justice is the “inside of the cup” that legal procedure so often ignores. The law does not seek justice. It seeks only to compel compliance with technical, written requirements. It fixates on the “outside of the cup.” In other words, the law concerns itself only with external matters, not conscience. In many cases, compliance with legal requirements comports with justice, but justice is merely incidental. Dedication to the law, then, requires dedication to the external world. That means dedication to the banal demands of body and property.

Martin Luther commented that the true Christian lives in an internal world of faith and conscience. His goodness flows from his belief in Christ as his Savior and as intermediary between God and man. See, e.g., Commentary on St. Paul’s Epistle to the Galatians (1535). Luther observes that justice lives in the heart, not in the external world, just as Jesus observed that the “more important matters of the law” reside “inside of the cup.” Luther praises the true Christian who “lives in the heart” and does good works that “flow from [] faith,” not external commands. Indeed, Luther draws a sharp distinction between “faith” and “law.” True Christians, he argues, need only faith. All others live in the “world of the law,” which is not only cruel, but also “God’s enemy.” Cf., Treatise on Governmental Authority (1523). In a stinging rebuke, Luther says that without faith, “[w]e shall not be able to observe true theology, but shall immediately become lawyers, ceremonialists, legalists and papists.” Luther equates lawyers with the hateful “world of the law” and its slavish attention to meaningless details. The “world of the law” cares not for justice. It cares only for technical compliance with rules that ultimately mean nothing.

What does this say about lawyers? Lawyers spend their careers arguing whether people have complied with written regulations. They spend their careers arguing whether people should suffer harm to their bodies or property. They need believe nothing; they must merely observe external behavior. They do not live internally. They need no faith. In other words, a lawyer’s trade is spiritually vacuous. That is not to say that there are not lawyers who have spiritual lives. There are undoubtedly many lawyers who believe that their work does justice. But they do not comprehend that the law—in its pure essence—has nothing to do with justice. The law leaves no room for intuition or imagination. A person’s actions either conform to the written standard or they do not. A paper is either “properly filed” or it is not. An application either meets the requirements for an exemption or it does not. Answering these questions does not require a subtle sense of justice; one must merely determine whether the facts meet the governing rule.

Law is mechanical. But law traverses such a vast array of human conduct that it inevitably conflicts with values other than technical compliance. Outrage is common in legal questions because people truly believe that the law should respond to intuitive justice. When the law arrives at an unjust result, it is not because the law failed to do its job. Indeed, unjust results often flow from faithful applications of the law. This is what most people do not understand: That often the law intentionally perpetuates injustice by sustaining dominant social values. Law regulates only the external world. Those who rule the external world enjoy inherent advantages over those who do not. They have the opportunity to preserve their power through law; and they take the opportunity whenever they can. Legal procedure and legal rules preserve power structures. At times it may be just to preserve power structures. At times it is not. Yet the law preserves them in both cases, whether it is just or not.

It comes down to this: A falsely accused man has been tried. The evidence supports conviction. The jury would comply with the law’s technical requirements if it found him guilty. The accused man stands up and says: “All I ask for is justice.” That may be a moving appeal, but he does not understand the law’s purpose. The law dictates a result. It demands compliance. A daring jury would acquit him, but it would violate the law if it did. Query: Must it be daring to do justice? Should not justice be our goal in every instance? Or is orderly administration more important than doing right?

Wednesday, November 19, 2008



Earlier this week, I wrote that advertising is the language of commerce. To speak for commerce, advertising must reinforce commercial values. A commercial speaker has his own economic interests in mind. To that extent, his messages will attempt to do one thing: To entice the listener to buy whatever he offers. Advertising seeks to stimulate the senses in just such a way as to excite a desire to buy. "Successful" advertising generally appeals to emotion, not to reason. Advertisers want to create impulses, and impulses are not based in reason. Bearing that in mind, it is not surprising that most advertising resorts to extremely basic language. Some advertising uses no language at all, choosing instead to display images and sounds. To use an old cliche, "pictures are worth a thousand words." It is a cliche, but it is true. The human mind derives its most lasting impressions from sight, not hearing. Advertisers know that, so they prefer to stimulate the eye far more than the ear.

But what about the language in commercial messages? True, advertising packs its most powerful punches in images, but language helps frame an image to make it even more memorable. The key is to simplify the linguistic message as much as possible to make the words almost as stark as an image. Advertisers do this by breaking down traditional grammar rules. For example, I saw an advertisement today on an ATM machine that said: "Get your cash. Twice as Fast." It made two sentences out of one. It would be perfectly accurate--as a grammatical matter--to say: "Get your cash twice as fast." "Twice as fast" modifies "get your cash." It describes the way in which you'll get your cash. But the advertisement here splits the ideas in an effort to isolate each concept. It says bluntly: "Get your cash." That is a separate, very basic idea. We all want money, especially if it is "ours." It targets a fundamental human urge for ownership. We earned it, so we have an immediate right to it. Once the first message grabs our attention, we move to the second idea: "Twice as fast." That alone is not a sentence. Yet we know it refers back to the penetrating "Get your cash" we heard first.

Everyone loves to "get their cash." And they love it even more when they "get it twice as fast." Of course they'll buy what's offered! Getting money fast...can anyone resist that?

What is going on here? Why abandon grammar in this situation? Simple: Because advertising is not normal language. In most cases, language has a communicative function. It works to convey one person's subjective impressions to another in as clear a manner as possible. Advertising, by contrast, has an inductive function; it acts to induce a person to do something through subtle (or not so subtle) sensory hints. Advertising will strip language bare to fulfill its inductive purpose, and that is exactly what happens in the ATM advertisement I described. It targets extremely basic ideas. It isolates them in the listener's mind, then acts on them to induce a desire to buy something that will address those ideas. This is not intellectual discourse; it is sensory manipulation.

Many other commercial messages isolate ideas in an ungrammatical way. It is an efficient way to tap directly into basic human desires. Once the message awakens those basic urges, the listener will more likely respond to the speaker's enticements. Another example: An advertiser wants you to buy his hamburger. He takes a beautiful, full-frame photograph of a freshly-made, luscious-looking hamburger with all the fixings. He places the photograph on a red background. In bright white letters underneath the image, he prints the words: "You know you want it. Get it. Now." Again, the language is extremely basic. After targeting the listener's basic desire to eat, it tells the listener that he can satisfy his desire by buying the hamburger. If there was any doubt about timing, the third message tells him that he can satisfy his hunger "Now."

These tactics appear in all commercial fields, not just those dealing with hunger, thirst or other base bodily functions. Even law firms use ungrammatical language to entice potential clients to hire them. Go on to any law firm website and you will encounter slogans such as: "Winning matters. Get winning results. Get them here. No joke. Hire winners. Stop talking. Start winning. Because success is what we do." It does not matter what the speaker is selling. He simply targets a basic desire, hammers it with simple language then entices the listener to satisfy that desire. In the law firm example, a business listener would definitely respond to the initial overture: "Winning matters." Business people lust for winning as much as any human being lusts for food. A business person would surely want to hear more about a product or service that might satisfy his lust for winning. Good advertising need not convince the listener that the speaker's product or service will actually do the job; it must merely arouse the listener to make contact and spend some money. Grammar and linguistic clarity do not matter when simple inducement is the goal.

I find all this noteworthy because I do not like condescension. Advertising condescends; and it is unbelievably crass and banal. It aims to arouse childish impulses that I long ago should have abandoned. It aims to make people say: "I want it! I want it! I want it!" even if they really do not. It intrudes into our own subjective processes for commercial gain. Advertising takes people for fools and children. Sadly, however, it is very successful, even if it holds a captive audience. You cannot escape advertising in our commercial world. Its messages besiege you every day and every hour. We are only sensory creatures, and no matter how we try, it is very difficult to banish advertising from our senses. True, we all need to buy things in life to survive. But advertising bothers me because it presumes to make our choices for us. We cannot exercise our own judgment without first hearing endless entreaties from self-interested speakers. More often than not, we defer to their messages because they know more than we do. Other times, their messages and images excite a desire in us to buy what they offer. They did not win our minds; they simply overwhelmed our senses. Advertisers play on human weakness. That is what bothers me the most.

"You need it. You know it. Do it. Buy it." Is this what it's all about? Someone else knows what I want, and my sole function in life is to buy what he tells me I want? This is a pitiful state of things.

Tuesday, November 18, 2008


I tend to overgeneralize in my arguments. For me, rhetoric takes precedence over technicalities, even if I overlook detail. After all, rhetoric should cut to the heart of a question rather than bog down in mundane specifics. That is not to say I ignore specifics. I simply believe that good rhetoric should address the philosophical core of a question, while detailed analysis should follow in different expressive media.

Our American health care debate arouses my passions. I know full well that my beliefs really don't make sound economic sense. But they come from my conscience. I use a simple line of reasoning to boil down government's relationship to health care: Government is composed of "units," namely human beings. Human beings are mortal creatures who get sick, just as machine parts wear down and fail. Government also depends on healthy people to achieve its functions, whether military, economic, administrative or financial. For that reason, government has an interest in keeping the population relatively healthy. After all, the machine can't function without functioning units, and no one benefits when sick people don't work, or worse, when they die. Dead people pay no taxes. Dead people do not serve in the army. Dead people do not engage in commerce.

Government would be wise to subsidize the health of its citizens so as to preserve the very human units that compose it. Yes, we have a "free market system." But I think government-sponsored health care can coexist with private alternatives. After all, private individuals can always opt for more expensive health coverage if they want more than the government can offer. Still, working people who happen to have a misfortune should not endure a lifetime financial nightmare to compound their physical agony; they should receive free care from the government if they cannot afford otherwise.

Last year the doctor told me I had skin cancer on my right temple. At the time, I was working as a consultant with very basic health coverage. The hospital performed a relatively routine operation to remove the bad tissue. Thankfully, the operation was a success. Afterward, my health plan refused to cover the procedure and I got stuck with a $21,000 bill for an operation that lasted 45 minutes under local anaesthesia. For months I haggled with insensitive hospital "billing staff" who kept repeating: "So how would you like to pay for this? So how would you like to pay for this?" I told them I didn't have remotely close to that amount saved. They responded: "So how would you like to pay for this?" Eventually I sent enough letters and raised enough of a stink to convince the right hospital bureaucrats that I could not pay the bill, and they wrote it off.

I went through a bureaucratic crucible for a simple operation. Just imagine what other people go through for more serious procedures. It is not an answer to say "buy better health coverage." Even employed people don't get the same coverage they used to, and unemployed people can't afford $450 a month for decent coverage. My mother is a cancer survivor and widow who pays $700 a month for extremely basic coverage. Thankfully she has a little money saved from my Dad's life insurance policy, but if she had a serious illness, she'd be out on the street. As my old evidence professor used to say: "Many Americans are just one illness away from bankruptcy."

This is a shameful state of affairs, and no talk about economic incentives or doctor profitability will shake my beliefs on it. Doctors should not be in the medical profession because they want Mercedes-Benz cars and luxury condos. They should be in the profession because they want to ease others' pain and cure diseases. Government has an interest in those goals, too, and if private people can't cough up the cash to get it done, then the Government should. We scold Russia for its autocratic ways, but the Russian Constitution makes health care an individual right. Even Nazi Germany provided health care to its citizens. We manage to pay incredible amounts every month to sustain a pointless war in Iraq. Why can't government increase funding for health care? I think more Americans would prefer to know that they will not go bankrupt from illness than to blindly fight insurgents in a war that has nothing to do with the United States. If taxes must increase, let them. At least we will get something for our money, rather than the bodies of slain soldiers.

Monday, November 17, 2008



Different human discourses have different languages. Academics, for example, use particular words and modalities that lawyers do not. Salesmen use different words than scientists, and artists speak differently than politicians. Language gives people away; and there really are not that many ways to say the same thing. Some call this group-specific language “jargon,” but I view it more broadly. “Jargon” has a negative connotation because it suggests that a listener cannot understand the technical words that characterize a “professional” group. But I think you can completely understand any group simply by recognizing the special words they use.

With time, I have seen that you can expect certain words from certain sources. And from those words, you can peer into the group’s values. To give an example, I expect colorless coinages about teamwork and profit from a business that seeks new clients, while I expect staccato sentences and vacuous dramatic strokes from a politician, such as: “It is a new day. Let us wake up and rise together.” In summary: You know what you’re getting in advance simply by understanding the group that is speaking.

Commerce speaks through “advertising.” Commerce is that far-ranging human discourse that brings people together for material exchange. Commerce is not just buying, selling, renting, leasing and lending. It is the entire mental exercise that surrounds these activities. Anyone who makes money can tell you that the “mental exercise” necessary to win business success is all-encompassing. Every action, every thought, every inclination, every word and every dream becomes “commercial” because they all focus the mind on the ultimate act of buying or selling. Put another way, commerce dominates human life. We live for it, even if we would rather not. It is a vast game in which there are winners and losers. We all struggle to be winners, ushering in frantic competition for jobs, contracts, deals and customers. Commerce is war, even though commerce functions best in peacetime.

Commerce is war between buyer and seller. It is also war between vendor and customer, landlord and tenant, employer and employee and lender and borrower. Commerce pits those who benefit against those who suffer detriment. Yet commerce also does its best to conceal its warlike nature. Advertising helps commerce hide its true colors. Advertising is a special linguistic form that provides just enough information to entice the listener to benefit the speaker without realizing that he will suffer in the process. Because human beings live for commerce, and because commerce is warlike, it is no surprise that advertising surrounds us no matter where we turn. It is printed on buses and painted on buildings. It emanates orally from radios and televisions. It flashes before our eyes on computer screens. It constantly bombards our senses with messages intended to entice us to enrich the speaker.

Human beings are sensory creatures. Advertising overruns their senses. They respond to the most memorable sensory stimulation. That is why “good advertising” is like a “lasting memory;” we only remember things that engage our senses in a special way. Just the same, we only respond to advertising when it engages our senses in a striking way that other advertising does not. To that extent, advertising does not need to stimulate the intellect to be successful; it must merely trigger a very basic sensory response in the listener. A good example is the GEICO gecko. This is successful advertising for precisely the same reason that is so intellectually barren: GEICO sells car insurance, yet its advertising says nothing about car insurance except for a tiny sound byte at the end of the message that says: “You could save up to 15% on your car insurance.” Prior to that, we witness an encounter between a cockney-speaking animated gecko and some potential insurance client that explains nothing about GEICO’s products or services. The listener learns nothing that might help him make an informed decision about why GEICO is better than its competitors. But GEICO is wildly successful because its advertising burns itself into the listener’s mind. Through sheer repetition and memorable sensory stimulation, GEICO forges an association in the listener’s mind between car insurance and the gecko. One day, the listener will have to buy car insurance. When he does, the mental connection will kick in and he will immediately call GEICO. This is successful advertising.

GEICO’s advertising shows that most advertising does not focus on the goods the speaker wishes to sell. Rather, it simply attempts to forge a mental connection between the goods and a memorable—though unrelated—sound or image. In this sense, advertising has drifted far from the United States Supreme Court decision that granted First Amendment protection to so-called “commercial speech:” Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). Prior to that decision, States could freely ban advertising because the Court had previously concluded that advertising was not the “sort of speech” that the First Amendment was designed to protect. Valentine v. Christensen, 316 U.S. 52 (1942). Rather, the First Amendment protected only speech that had a part in the “exposition of ideas;” in other words, only speech expressing individual conviction, belief and thought deserved protection. By contrasting implication, “advertising” had no part in that exposition. After all, advertising is remarkable for its banality. It does not express “ideas” in the profound, individual sense. Rather, it merely attempts to entice a listener to enrich the speaker. The First Amendment protects a “hierarchy” of values, and advertising did not fit within that hierarchy.

But the Court decided to open a Pandora’s box in Virginia State Board of Pharmacy. It backed away from its conclusion that advertising was “valueless,” reasoning instead that “advertising” is necessary to maintain a “free flow of information” about products and services. According to the Court, such a “free flow of information” was essential to allow the public to make the “numerous private economic decisions” that maintain a “free market economy.” Still, the Court seemed to recognize that it was playing with fire by giving a free hand to advertisers. Later in its decision, it emphatically pointed out that “commercial speech” was not the “same as other varieties,” and that the State could suppress it more readily than, say, political speech. Recognizing this distinction, the Court said that commercial speech could only claim First Amendment protection if it was “truthful and legitimate.” It could not claim protection if it was “false, misleading or deceptive.” The Court knew that commercial speakers possess far more information about their products than their listeners, and that this disparity allows commercial speakers to selectively choose the information they disseminate. The Court attempted to address this danger by noting that States could require commercial speakers to include “warnings and disclaimers” on their messages to avoid deception.

Warnings and disclaimers? Have you ever seen these on a television advertisement? Sure you have—but you probably did not read them. Just watch any advertisement for an investment service, a lawyer or a medication. At the end of the message, a block of illegible text will flash on the screen. If you have TIVO, you could pause the program and try to read the text. If you took the time, it would say something like this: “These results are not typical. Restrictions, limitations, qualifications and exceptions apply. Offer not valid in all areas. Some fees are applicable. The State of Wyoming makes no warranty as to financial success. Seller is not responsible for financial loss. Financing though Bank of Minnesota, N.A., subject to credit approval at Buyer’s expense; not all applicants will qualify. 0.0% APR financing only for qualified buyers; not all buyers will qualify. Seller may alter the terms of this offer without notice…” And so on and so forth.

Advertisers would not publish these “warnings and disclaimers” if they did not have to. After all, their goal is to entice as many people to enrich them as possible, and negative information reduces the chance that people will spend their money. Yet the Supreme Court “requires” them to avoid “deception.” Advertisers meet this requirement by publishing these meaningless, illegible block texts that no listener can even read, let alone rationally consider. I have little doubt that the Supreme Court truly wished that advertisers would do their best to present a balanced view about their products. But it is not at all surprising that advertisers chose simply to comply with the Court’s reasoning in letter, not spirit. After all, commercial speech is warlike. If advertisers played fair, they would lose the war. Perfectly truthful advertising would damage an advertiser’s business: It would create negative associations in the listener’s mind. After all, who would buy GEICO if GEICO had to reveal that they received low marks from consumer advocacy groups? The key, then, is to present as little bad information as possible without being declared “legally deceptive.” It is permissible to be “actually deceptive,” for advertisers need only comply with legal definitions. And everyone knows that legal reality rarely corresponds to actual reality.

Today, commercial speech mocks the Supreme Court’s reasoning in Virginia State Board of Pharmacy. Most advertising does not present “truthful and legitimate” information about goods and services. Rather, it presents as much deceptive information as possible—and withholds as much damaging information as possible—to avoid being declared “legally deceptive” under various legal standards. To be blunt, it is easy to conform behavior to avoid violating written law, and advertising is no exception. While the Court may have wanted to introduce “fairness” into commercial discourse by requiring “truthful” advertising, it grossly misunderstood what commerce means. Commerce is war. War is not fair. The goal is victory at all costs. Advertisers have sidestepped Virginia State Board of Pharmacy simply by avoiding outright lies. It is easy to refrain from saying that the sun is purple. It is also easy to say: “Our medication is widely successful” when in fact it had no effect on 40% of patients who took it. In short, advertisers can completely ignore Virginia State Board of Pharmacy by skillfully crafting vague, appealing claims.

Advertisers have undoubtedly won the legal war to say what they want. But that does not end the analysis. Now that we know what advertisers will say, we can understand their values through their language. We can assume that advertisers will not give us all the information they possess. If they did, we would not buy from them. We can also assume that an advertiser wants to entice us to buy something because his products are “better” than others. What makes them better? We will have to analyze values to determine that.

Equipped with these tools, consider this commercial slogan, printed on the side of a bakery truck: “Stonewell Bakers : People and Products You Can Depend On.” What does this say? The advertiser wants to entice us to buy baked goods from him because his “products and people” are “better” than the competition. Why are his products and people better? Because “you can depend on them.” What is the implication here? That most “people and products” are not dependable? That people want dependability, but rarely get it? I think we can make both conclusions, and I also think we can make some generalizations about commercial values at the same time.

Human beings are generally not dependable. They do not listen to us attentively, they forget to do things they promise and they deceive whenever it is advantageous to do so. In commercial life, people fail to deliver what we order, they forget details and their products do not work. Stonewell Bakers understands these concerns. Its advertising claims that it is “dependable” in an industry where others are not. Is it truthful? In the abstract, it is impossible to say. It is not an outright lie, so the State cannot suppress its message. Nor is the message “legally deceptive.” To that extent, this banal commercial appeal enjoys the same constitutional protection as a speech about the War in Iraq.

Advertising gives us an opportunity to understand commercial values. It is not easy to ignore commercial speech because it bombards our senses every day in an attempt to trigger basic mental associations, not intellectual responses. Yet if we closely examine advertising and the words it uses, we can defend ourselves against deception to make individual decisions about what we really want. We can safely assume that advertising will not tell us the full story about goods and services, and we can safely assume that the speaker really wants us to give him our money. It is important to hold these assumptions in mind when we engage in commerce, because deception is the norm, no matter what aspirations the Supreme Court may have to the contrary. We may not be able to make human beings truthful and decent, but at least we can understand their discourse in a way that allows us to protect ourselves. By understanding advertising as a language, we understand commerce. And that allows us to avoid being manipulated every day.

I go a step further: I mute advertising on television. I refuse to even hear the messages. After all, I understand the language. I know what I will hear. I can’t shut out advertising on the street; I just do my best not to look at it. Advertisers may fight for my senses, but I don’t even give them that.

Sunday, November 16, 2008


Minutemen Mobilized to Defend the Constitution Against Big-Government Washington Pork Barrelers and Activist Judges

By : Maj. Horace M. Springfield, Commanding Officer of the Arkansas State Militia, Pine Bluff Battalion

We are the People of the United States. We created the greatest Nation on earth from brambles and wilderness. In the process, we confronted many dangers: Hostile redskins, slave rebellions, wild animals, bloodthirsty pirates, foreign invaders, Mexican infiltrators, smallpox, Civil War and criminal renegades. We never could have vanquished these dangers without weapons. In our early history, America was a dangerous place because our forefathers lived on the frontier. Today, America is still a dangerous place because violent criminals stalk our midst, burglarizing, raping, robbing and killing. Illegal immigrants violate our borders, threatening violence and theft. We, like our forefathers, need guns to defend the American dream from our enemies. Our forefathers knew this when they drafted the Constitution. In our democracy, they put freedom of speech and religion first; and freedom to carry guns second. Speech, religion and guns: The framers knew that only armed people can speak and worship as they please. But in recent years, lawmakers and judges have lost sight of these cherished freedoms by disarming the People. For decades, Americans could not purchase firearms to defend hearth and home without first complying with impenetrable bureaucratic nonsense. In many cities, local governments completely outlawed gun possession. In the process, local governments left the American People defenseless against vagabonds, highwaymen and rogues. Local governments left elderly women to be raped while vicious thugs pillaged their homes. In the name of “protecting security,” local governments and radical judges ignored the People’s Constitution. Our Supreme Court took a bold step against the tide this year by declaring in Heller v. District of Columbia (2008) that every American citizen has an individual right to bear pistols to defend himself. This has been the Supreme Court's most sensible decision in generations. After all, it simply read the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amd. 2. Can anything be clearer? It says that the people can carry arms, and “arms” means pistols, rifles, double-barrel shotguns, slingshots, flamethrowers, assault rifles, grenades, artillery, anti-tank missiles and landmines. Justice Scalia wisely observed that the language about the “Militia” was merely “prefatory” and did nothing to weaken the Amendment’s “operative” language. That means the Second Amendment actually says: “The American People have an individual right to carry weapons to defend themselves, whether they serve in the Militia or not.” Americans need guns to defend themselves, their liberty, their property and their homes. We will no longer tolerate Ivy League judges and Congressmen who disingenuously argue that the Second Amendment allows “gun control.” No. No. No. The Constitution says nothing about "controlling guns." It says the American People may bear arms. In a word, the American People need heavy weapons to protect our way of life. We need more access to weapons, not less. Gun control advocates say that more guns mean more crime and more killing. Wrong. People kill people, not guns, so it makes no sense to blame guns for something that people do. Responsible Americans know that guns are made for legitimate purposes. It makes no sense to disarm a responsible American in order to lessen the chance that an irresponsible American will abuse a gun. It is time to reinvigorate our civil spirit as Americans by rearming ourselves as a Nation. We are citizen soldiers and we are at war. And we cannot win the war without all the weapons we can muster. Vote Minutemen. Defend our Nation and our Constitution. When our forefathers confronted tyranny on Lexington Green, they fired first and asked questions later. Today, we the People of the United States must fire first on our constitutional foes.