Saturday, January 31, 2009


Here at Reason, Commerce, Justice & Free Beer, we support artists. Americans have an appetite for good art, including good literature. Authors such as Scott Turow and John Grisham made names for themselves by producing high-quality novels involving legal questions. We express our particular praise for these authors because we believe that good art and the law go hand in hand. When an artist can move hearts at the same time he instructs the public about our legal system, everyone wins. Our society depends upon the law; if citizens enjoy reading about it, they support it even more. And when citizens support the law, they guarantee order, commerce and prosperity in society.

Legal literature performs a valuable function in our social system. Aside from its salutary social effects, legal literature is exciting to read. The public adores hearing about high-stakes litigation, courtroom antics, cross-examination and even notorious criminals. They love reading about conspiracies, robberies, murders and the bold prosecutors who bring them to justice. Although readers feel good when justice prevails, everyone has a special fascination with the criminal mind. Readers want to know how outlaws think. After all, those who read legal literature support the law; it is always fascinating to peek into the other side.

Today, we are proud to share a chapter from a new legal thriller by Ernie Bamberg entitled “The Contract.” Ernie was a commercial litigator in Chicago for over twenty years. He tried numerous civil cases and represented highly influential business clients, from AT&T to AOL. He experienced firsthand how our justice system works. In his books, he tells compelling tales about litigation, negotiation, settlement, trial and all the characters who must work together to win. In 2002, he published the award-winning novel “Taste My Deposition,” which the New York Times called an “edge-of-your-seat nailbiter about the nastiest antitrust suit filed this side of the Mississippi.” Ernie’s characters are as memorable as they are exciting. And through plot, narration and subtle commentary, Ernie always delivers a top-notch reading experience.

In The Contract, Ernie tells the story of Wilmer F. Branward III, Esq., a hard-boiled partner at Chicago’s Pluckett Welle Crotchford LLP, an insurance defense firm. Branward represents an insurance company against allegations that it defrauded its clients during a transaction in May 1999. As he makes his way through the case, he encounters a sultry songstress, a risk manager with something to hide, an irascible pretrial judge and a homeowner with nothing to lose. Below, we print “Chapter 4 – The Morning,” from Ernie’s new novel. We hope you enjoy it... and buy the book!


By : Ernie Bamberg, Author of "Taste My Deposition" (2002)

Chapter 4 – THE MORNING

Wilmer woke up groggy. It was hard work yesterday, reviewing those insurance claim reports from 2003. His head hurt. He looked to his right. It was 6:02 AM. Friday. Light rain pattered against the window. It was dark and gray. He had to be back at the office in 45 minutes. “Fuck,” he thought, “I hope they have that bold Starbucks blend in the conference room when I get there.”

Wilmer wiped his face, stretched and jumped in the shower for three minutes. That was enough. He had to get back to the office. There was no time to lose; he had too much to do. Wilmer shaved in the shower, threw some shampoo in his hair, scrubbed his crotch and shut off the faucet. It was time to get dressed. Two minutes later, he was in his suit. He was ready to get back in the trenches. It was a dangerous job. But somebody had to do it. Wilmer was that somebody. “If I can’t win this case, nobody can,” he thought as he hailed a cab. “Washington and Wells,” he barked to the cabby.

6:45 AM. Wilmer whisked his way past building security at the Kuntenheimer Building. The security guard gave him the usual half-asleep nod. Wilmer returned it. The elevator doors opened. Wilmer instinctively made the right turn toward his office. He had a sense of foreboding. “Who knows what might happen today,” he thought. “They were having too many problems with the copier yesterday. Bad sign.”

6:48 AM. Wilmer threw off his trenchcoat and tossed his bag onto his desk. Everything was just as he left it earlier that morning. “I’ve only been outta this place for three hours,” he grumbled. “But there’s no time to waste.” It was a critical time. The company needed something done. Something big. Something almost unspeakable: a parol evidence exclusion section in the Master Security Agreement.

Bang! Wilmer looked up from his desk. It was a file cabinet closing. He looked out from his office. There she was: Maria Alvarez, Tom Collins’ paralegal. “What is she doing here so early?” thought Wilmer.

“Good morning, Mr. Branward,” she said.

“Morning,” growled Wilmer.

“Would you like some coffee.”

“ ’d be great,” he replied. Off she went. Forty seconds later, she brought back a steaming mug full of Starbucks bold blend. “Thanks a lot,” he said, without looking up from his papers. Out she went, leaving a cheap scent in her wake. She didn’t make that much a year and probably had kids. What else could she afford? Wilmer did not give it any more thought.

You never could trust a paralegal. You had to watch out for them. Like in the Garfield Funds merger case. Wilmer remembered chasing paralegals away from his car on his way home one night. A narrow escape. Paralegals stop at nothing to get papers organized; they were prepared to go to any lengths to do it. “Good thing she’s just bringing me coffee,” thought Wilmer. “I don’t trust any of them.” It was a tough job; who knows what a paralegal might pull.

Elsewhere in the office, lights were coming on. It must have been past 7 AM. Wilmer did not notice. There was too much to do. Danger was lurking around the corner. With a flash of adrenaline, Wilmer wrote: “Parties hereto agree that this Agreement be a writing; and that this Agreement be the complete and final Agreement between them; and that this Agreement shall supersede any prior or contemporaneous oral declarations, alterations or modifications and any prior written declarations, alterations or modifications; and that this Agreement be a full and final integration of the terms hereinbefore enumerated. No prior or contemporaneous oral or written evidence inconsistent with—or tending to contradict—the full and final terms of this Agreement shall be admitted under any circumstances to modify or alter this Agreement.”

Heat flashed through Wilmer’s body. He looked over both shoulders. Then he felt strangely cold. “This is it,” he said to himself. “There’s the parol evidence exclusion section.” Wilmer paused for a moment to reflect on how dangerous his work truly was. Somewhere out there in the city, a worker toiled around live electric wires. Somewhere else, a laborer risked his life washing windows 90 stories up. But those jobs were child’s play compared to Wilmer’s work. Parol evidence exclusions make even a strong man’s heart palpitate. Did he get the words right? Were the semicolons in the right place? Did he remember the parties’ names? Commercial litigators face danger 24-7. Great lawyers need nerves of steel; and Wilmer had them.

Wilmer pulled up a presaved contract from his computer. “OK, let me paste the new section in there. That ought to do it.” Click. Click. Click. He leaned over and opened a drawer. “Where is that paper?” Terror momentarily raced through his body. “I need to remember whose name to put in the blanks.” A terrible thought passed through his mind: “Malpractice.” “Where is that fucking paper!” Wilmer’s eyes began beating out. "Did I pay my premium this month? Did the check go out? Was it automatic debit?" Wilmer's heart was in his throat. The walls started closing in.

“Ah, there it is.” Relief overtook him. He had dodged another bullet. He faced danger yet again and came out on top. “So, purchaser is Goldblatt Funds and seller is Maxwell Bunns.” Wilmer typed the names into the standard form contract, then added in the parol evidence exclusion section. “Done deal.”

7:31 AM. Another successful morning. Hard challenges, sure. But Wilmer faced them down. Cabinets. Drawers. Light rain. Parol evidence. Malpractice scares. Paralegals with coffee. Missing papers. “I have to file this answer in court by 9:15 AM,” Wilmer thought. It was just another day. He knew what to expect at court: Small talk, scheduling, card-swapping. Maybe even filling out a carbon-copy order or making a duplicate. Later on, back at the office, there would be time to check out the computerized discovery database. Who could say what perils might emerge.

“I’ve got this,” Wilmer said to himself. He gulped his coffee. He hit the print button. Somewhere in the office, a fax machine beeped. Subdued conversation emanated from the legal assistants’ cubicles. Someone coughed. A toaster oven buzzed in the break room. Tension mounted. But Wilmer overcame it. Checking his corners, he walked out of his office and picked up the standard form contract from the printer. “Done deal,” he said to himself.

Now it was time to staple the contract and send it to the copy center. Then a new threat: “I better make sure that contract goes to the right fax number.” Wilmer ran back to his office. He thumbed through a stack of motions on his desk. “Found it,” he exclaimed. “The service list on the Goldblatt/Bunns deal. Perfect.” Again, Wilmer had overcome massive challenges. He had the fax number. Despite the odds, the contract was going to right fax number. Despite the odds, a hard copy was going out the right address by U.S. Mail. Wilmer was the only man who could have gotten it done.

“Done deal,” he said to himself with a pleased smirk. And it was not even 8:30 yet.

Friday, January 30, 2009


As I child, I remember feeling terrible when people verbally abused me. “What is this awful feeling?” I thought. “I feel like someone hit me with a sledgehammer; I just want to sit down and cry.” My mother told me never to verbally castigate anyone. She told me not to call people names, or to make jokes about them, or tell them they were stupid, incompetent, ugly or retarded. “You don’t like the way you feel when people say things to you, so don’t inflict the same misery on them.” That was the reasoning. It made sense to me. I hated how I felt when someone mocked me or yelled at me, so I tried my best never to do the same to others.

Yet my mother also employed a pernicious falsehood to conceal the truth about verbal power. “Sticks and stones will break your bones,” she said, “but words can never hurt you.” In my heart, I knew that was not true. Words did hurt me. Although I repeated the rhyme when I faced verbal abuse, I never really believed it. I knew how I felt when someone called me a mean-sounding name or threatened to beat me. It hurt like hell, no matter what my mother said. Now, I see even more that words hurt. Often, words can inflict far worse pain than sticks or stones.

Human speech is a two-edged sword. On the positive side, it enables us to communicate our thoughts, feelings and intentions for mutually beneficial activity. It allows us to pass information from our minds to others, increasing knowledge. It allows us to coordinate effectively with one another, allowing us to organize societies and common values. It empowers us to express our personalities and reveal our memories. Without speech, no one would know what other people have seen, heard, thought, felt, experienced, touched or believed. We would be left to infer things based on external signs; and that is rarely enough to get the full picture about events outside our sight. In short, speech—and writing, of course—are the foundations of civilization. In his Politics, Aristotle wrote that speech was inherently good, because it allowed human beings to work harmoniously together for common enrichment. In many cases, he was right.

But there are many cases in which Aristotle was wrong about speech. Quite simply, it is not always good. Thomas Hobbes famously illustrated that speech can harm just as much as it can help. In Leviathan (1651), Hobbes noted that human beings use speech to “deceive themselves” and “deceive others.” Leviathan, Part I, Of Man; Chap. IV (Of Speech). Hobbes even compared human verbal malice to an intrinsic natural trait: “[F]or seeing nature hath armed living creatures, some with teeth, some with horns, and some with hands to grieve an enemy, it is but an abuse of Speech, to grieve him with the tongue.” Id.

How true. Words are man’s natural weapons. While words may lead to harmony and cooperation, they can also yield fraud, deceit, conspiracy, dishonesty, misrepresentation, defamation, browbeating and malicious cruelty. People use words to destroy others’ feelings and reputations. They use words to intimidate, threaten, steal and tyrannize. In a more direct way, words enable men to destroy one another, even without personal ill will. Combined with organization, government, technology and interlocking personal loyalties, words can cause wars and massacres. With the words: “Open Fire on coordinates 2 0 9 West by 2 0 7 North,” an artillery commander can instruct a battery to lay waste an entire town, killing hundreds. With the words: “Operation Barnstorm is in effect; the order is confirmed,” a President can set events in motion leading to nuclear holocaust.

I would take sticks and stones over words in these circumstances.

Words are deadly. But in an abstract sense, it is amazing how powerful they have become. After all, spoken words are nothing but air transferred from the lungs over the palate and tongue, yielding a particular sound that triggers a mental image when a person hears them. Written words are nothing but visible symbols that trigger a similar image when a person sees them. Intrinsically, they are nothing. Words signify nothing to a duck; they are just noise. Only through human agreement, recognition and understanding have they assumed their true power. When mothers say: “Words can never hurt you,” they think too abstractly. Words may be little more than manipulated air, but they are mental triggers. What begins as mere air transforms into tangible action; and that can easily hurt you. For example, a judge may utter these sounds: “I sentence you to death by gas chamber.” In the abstract, those words do not hurt the prisoner; they are mere sounds. But they trigger a series of physical actions by others that lead to his death, even many years later.

I have learned never to underestimate speech. While I never forget that words are simply symbols, I recognize how much power they have assumed through mutual agreement. Words bring out the best and the worst in human beings. They can build civilizations as easily as they can destroy them. They can heal human beings as easily as they can kill them. They can bring comfort as much as they can inflict misery. They can create beauty as much as they can create ugliness. They can evoke any emotion, from joy to anger, from despair to terror, and from relief to suspense.

Words allow human beings to broadcast themselves—and their wills—onto the external world. They are the intermediaries. In themselves, they are nothing. But in particular contexts—and in particular settings—they are everything.

Thursday, January 29, 2009


Yesterday, the House of Representatives passed a massive $819 billion economic stimulus bill. The bill provides massive cash infusions to public agencies in an effort to jolt the economy from recession--or depression, depending on who defines the terms. Every single House Republican voted against the measure. Some representatives even labeled it "insane." Why? "Because it does not contain enough tax cuts for businesses."

Our economy is in ruins. People are starving. They are going homeless. Their life savings are evaporating. They are losing their health coverage. If the government does not act soon--and boldly--they will suffer even more. Just as Franklin Roosevelt had to act fast in 1933, so too must President Obama act fast today. Roosevelt understood that modern crises demand radical programs, even if those programs ruffle conservative feathers. Republicans in the 1930s, for instance, believed that the government had no power to create a social security office or regulate the stock markets. But national crisis shunted their pedantic criticism aside. Seventy years later, no one would argue that social security or stock market regulation are bad. At the time, however, critics said the government was "going too far" and "exceeding its powers."

Republicans are putting up a similarly doomed fight now. They do not recognize the magnitude of the crisis we face. They apply reasoning that might be sound in a stable economy, not in a depression. Rather than take bold steps, they cling to economic slogans and talismans. I often use the word "talisman" to describe hypnotic allegiance to concepts, even when it does not make sense to apply those concepts. Republican resistance to sweeping economic reform is a perfect example of a talisman at work. This is the talisman: "Government spending is bad. Tax cuts are good." If government action violates this simplistic formula, Republicans start crying bloody murder and threaten to vote against it. They reason that job creation, wealth and prosperity result when private enterprise gets to keep more money, on the assumption that rich people will use it to spend on the rest of us. On the other hand, they reason that government spending does not create "real wealth" because it results in waste and mismanagement. Republicans want low taxes all the time. That is their talisman.

That is why Republicans voted against the Obama stimulus plan to a man. It violated the talisman: Too much government spending; not enough tax cuts. Perhaps they are also just a little spiteful that a Democratic black man is so popular among the populace; and this is their chance to "sock it to him" in whatever institutional way they can. Motivations aside, Republican critics all say the same thing: "This plan is insane because there is not enough tax relief for business." They ignore the fact that the bill sends billions to Americans who need mortgage relief, health care, unemployment benefits and social help. In the Republicans' view, these desperate people don't matter; only tax cuts matter. That's it. There is nothing subtle about it. No tax cut, no vote. Too much government spending, no vote. That's how Republicans think when it comes to economic legislation.

In theory, businesses should create jobs and invest more money in the public when they do not have to pay as many taxes. After all, if a company has gross receipts of $15 million and must pay $6 million in taxes, one would think the company could hire more workers if it only had to pay $4 million in taxes. But there is a fatal assumption here, namely, that companies and wealthy individuals will spend their savings on others, rather than on themselves. In the preceding scenario, what if the company owner preferred to take his $2 million tax savings and redo his living room? What would make him hire 5 more employees, withhold their taxes and pay their health benefits? Why not enrich himself with the money? In other words, tax cuts do not necessarily lead to the public good. They could lead to reinvestment and job creation. Or they could lead to mere self-aggrandizement and personal consumption. I would venture that human beings are more likely to spend extra money on themselves than on others. Admittedly, this is a cynical view. But experience confirms that it is usually true.

Republicans are right that government spending can result in waste and mismanagement. But they are incorrect that tax cuts are a magic potion that automatically cures economic ills. In our private enterprise system, people do not spend money to help others; they want money to enrich themselves. What is the point of success if you must take your winnings and give them to others? That defeats the whole point of capitalism. The whole point is to get richer and richer, not to diffuse your money to others. Charity might be a reason to spend money on others, but that ultimately inures to the capitalist's benefit, since it lets him pay fewer taxes at year's end. Self-interest does nothing selflessly. Yet Republicans assume that tax cuts will make business owners act selflessly voluntarily. That is a pipe dream. If you give more money to a rich man, he will not transform into a saint. He will go buy a new house.

We need government spending now, not tax cuts. Government must approach this economic crisis the way Roosevelt approached the Depression in 1933. Government must take a more active role. In the 1980s, Ronald Reagan said that "government is the problem." That is not the case today. Unfettered private enterprise created this mess; winking government lassitude only exacerbated it. In 2009, we need strong government to rein in cowboy capitalism. Tax cuts will only worsen current problems. If anything, the government needs more revenues to rebuild the economy. This may chafe against Republican virtues--"it's wealth redistribution, by God!"--but rigid allegiance to private enterprise will lead only deeper into Depression. Tax cuts may be appropriate when the economy is relatively stable and the government does not need to intervene. But today the economy is not stable, and government must intervene. In crisis, people turn to the government. Government cannot ignore them. After all, despite all the technical squawking about whether we are in a "recession" or a "depression," economic strength really depends on popular faith. When people panic, lose their savings and go homeless, they think they are in a depression, no matter what the numbers say on CNBC. In the 1930s, government intervention restored public faith. Today, government must do the same.

Most people in America today have lost their faith in unfettered private enterprise. That is why they voted in Obama and an overwhelmingly Democratic Congress. They want economic reorganization, even if that means "more government spending." It is no coincidence that the Republicans--who want tax cuts--are in the minority. Congress reflects the popular will better than any other national institution. The stimulus bill is an aggressive push for change. That is what the people wanted. They have no more faith in pure private enterprise for economic strength. Only strong action will restore national faith in the economy. The stimulus bill is a good measure to begin that work. Like it or not, economic strength is as much about perception as it is about numbers. When people feel that their government is doing something about the economy, their perception will improve. That is the first step to recovery.

Wednesday, January 28, 2009


Two days ago, New York Times columnist David Brooks published an editorial titled “What Life Asks of Us.” See N.Y. Times Jan. 26, 2009. In it, he argues that modern “liberal education” fosters individuality and personal self-definition, but leads also to “meaninglessness” in life. On the other hand, he argues that “institutional thinking” “saves us from our weaknesses and gives meaning to life.” I strongly disagree. Institutional thinking only gives meaning to those willing to accept the institution’s values. Meaning cannot be imposed. Meaning is subjective. To that extent, liberal education appears a far better path to meaning than institutional stricture. Only those too weak to think for themselves need an institution to “give them meaning” in their lives.

Brooks explores a critical issue: The schism between individual worth and institutional belonging in our society. The two concepts stand in fundamental conflict. On the one hand, there are institutions, which dominate conventional thought, property relations and “success” in America. On the other, there is individuality, which represents every human being’s unique perspective on the world, unguided by institutional dogma. To some extent, it is impossible to survive in this world without recourse to institutions. We all must contend with schools, employers, churches, families, courts, governments and even the post office. We must find our place within institutions to gain the credentials necessary to fend for ourselves. These are not “individualistic” pursuits. These are institutional challenges. We either follow the path set for us by the institution, or we do not receive the institution’s blessing. Without the institution’s blessing, we cannot fully realize our individual potential.

What is an institution, anyway? I thought about consulting the dictionary on this question, but I think it better to offer a definition tailored to the concepts at issue here. In this context, an “institution” is any human organization, endeavor or enterprise accepted as an authority over specific subject matter involving other human beings. This is a broad term. But it encompasses the most significant aspect about institutions: They are authoritative. Institutions impose rules and procedures on their adherents. They control knowledge and create hierarchies. If one does not accept the institution’s judgments, one must either face punishment or otherwise “fail.” And in every case, the institution has power over the adherent. The adherent is a “student,” “employee,” “practitioner,” “devotee,” “soldier,” “patient” or “prisoner.” He is an inferior party. He must take orders from someone with a higher station in the institution. In this system, individuality is only important to the extent that it supports the institution. It has nothing to do with personal meaning or definition. One either plays by the rules or fails. David Brooks calls this “meaning.” I call it imprisonment.

What, then, is “institutional thinking?” Institutions are systemic. They function like machines. Every man has his place in the system, and every man must play his part. When a man follows his appointed role properly, he is rewarded. He may even advance higher in the institutional hierarchy. But if he is too willful, or if he does not follow his appointed role, he faces harsh consequences. In school, the student may fail or be expelled. In prison, the prisoner may be thrown into solitary confinement. In the military, a soldier may be court-martialed. In the criminal justice system, a citizen may be branded an “outlaw” and punished accordingly. To avoid these fates, people in institutional settings must “act appropriately.” They must tailor their thoughts and behavior to institutional values and norms. If they “think institutionally,” they will succeed. They will please their institutional masters. But if they do not, they face negative consequences. Institutional thinking, then, represents a perverse form of loyalty. The adherent forgoes thinking for himself and follows the procedures that the institution expects. By yielding his individuality, he “finds institutional meaning.” In other words, he finds his “function” within a larger system.

How does liberal education fit into this calculus? Liberal education and individual self-definition tend to go hand in hand. As David Brooks explains: “The aim of a liberal education is to unsettle presumptions, to defamiliarize the familiar, to reveal what is going on beneath and behind appearances, to disorient young people and help them find ways to reorient themselves.” Put another way, liberal education leads students to “question preexisting arrangements,” “examine life from the outside and discover their own values.” Liberal education deliberately exposes students to far-reaching, widely diverse knowledge from all over the world. It does not restrict itself to a particular viewpoint. In so doing, it breaks down the student’s preconceived values and replaces them with a healthy, inquisitive skepticism. Liberal education reconstitutes the mind and emboldens individual perspective. By studying across the gamut of human knowledge, students learn that no single argument and no single institution has a monopoly on truth. And in the end, they learn that they do not have a monopoly on truth, either. They have only their own minds, memories, impressions and emotions to formulate truth. This is true “individualism.”

Yet liberal education is inappropriate training for the institutional world that awaits graduates. After four years of exploration, iconoclasm and reinvention, they emerge into a world that demands institutional obedience. They take jobs in the private sector. They occupy the lowest rung in the institutional hierarchy. They are no longer individuals; they are now “Employee #4452A-L: Assignment: Word Processing Design.” Their wide exposure to diverse viewpoints will not serve them as they struggle to fulfill their superiors’ demands in the company. If they wish to succeed, they must stop thinking individually and start thinking institutionally. Those who cling too strongly to individuality and the values of liberal education cannot adapt to institutional thinking—and they fail. But they are not discouraged; they must simply find another way in life. Contrary to David Brooks’ assertion, there is certainly “meaning” beyond institutions. One must simply be daring enough to find it alone.

Not everyone is daring. Life would not be interesting if they were. To borrow from Friedrich Nietzsche, we cannot all be Zarathustra. Yet those who truly digest the values of liberal education feel the urge to become Zarathustra. Nietzsche put it best when he railed against “Good People” in Thus Spoke Zarathustra (1884)(my translation): “The Good People must crucify anyone who invents his own virtue! That is the truth! But there was a second man who discovered their land, the land, heart and earthly kingdom of the Good People and the Just People: the man who asked: ‘Who is it whom they hate most?’ He who creates; that is he, whom they hate most; they hate the one who breaks tablets and old values, the breaker—they call him ‘criminal.’” Von Alten und Neuen Tafeln 26 (Of Old and New Tablets verse 26).

Nietzsche’s metaphors apply squarely to “institutional thinking.” “Good and just people” follow the institutional path in life. They do not create their own virtue; they merely recite the “tablets” and observe “old values.” They would not rise within the institution if they did not conform their thinking to “the tablets.” And Nietzsche brings out another key characteristic of institutional thinking: It hates. To continue the metaphor, institutions have no tolerance for those who “break tablets and old values,” because “tablets and old virtues” represent the institution’s defining traditions and protocols. Institutions define themselves against anyone who dares to break their codes, just as a court brands a deviant a “criminal.”

David Brooks suggests that we should not dare to be Zarathustra. We should not dare to find our own truth in life, nor should we break tablets. Rather, we should become “good and just people” who merely follow “the tablets” and old values. He says that we can find “meaning” by giving ourselves to institutions. He may be right in some cases, for not everyone has the strength to hew his own path in life. In fact, most people do not. Institutions can supply a “roadmap to meaning” for all those people who do not have the courage, capacity or strength to be Zarathustra. Most people simply want comfort in life, with minimal challenge. Institutional thinking offers an easy path to that destination. One must merely understand the institution’s requirements, acknowledge one’s place in the hierarchy, follow the protocol and do as one is told. In the end, this may bring comfort and even a sense of “having done the right thing.” But is it really the right thing? In my view, institutional thinking means playing by others’ rules. What good is life if we cannot even follow our own thoughts? Surely there are other paths to “meaning” than surrendering one’s existence to institutional dogma.

David Brooks’ article deeply affected me because I always reflect on my unconventional approach to life. I took my liberal education to heart. I relished my time in the world of ideas. I enjoyed exploring problems from numerous perspectives. It broadened my enthusiasm for life because it made me see how multifaceted life can be. Yet that very enthusiasm led me to despair once I saw that “success” depends on membership in a constricting institution. It seemed that my education had been a cruel joke: Struggle to reinvent yourself, learn to be your own person, then go out into the world and be the same as everyone else. I learned to prize and defend individuality; then I found it meant nothing in a world dominated by institutional thinking. In the years that followed, I have tried my best to adhere to my individuality, despite constant needling from institutions. After all, most people define themselves by institutional standards, and as Nietzsche pointed out, they hate anyone who does not subscribe to those standards. It has not been an easy path, but I am unbowed. After all my effort, I do not like to hear authors like David Brooks admonishing me to “get with the program” by adopting institutional thinking. I have not surrendered and I do not plan to. Contrary to Brooks’ advice, I do not allow institutions to “ask things of me.” Let others find meaning in institutional standards and protocols. Let them—as Nietzsche wrote in Human, All-Too Human Part II (The Wanderer and His Shadow)(1879)—“dance in chains.” Menschliches, Allzu Menschliches, Teil II, Der Wanderer und Sein Schatten Aph. 140.

I will simply dance, thank you very much. I will leave others to put on chains. In either event, I will find meaning. I do not need to chain myself to an institution to do that.

Tuesday, January 27, 2009


By : Mr. Clarence Thomas (Republican), Associate Justice, United States Supreme Court; Former Head of the Equal Employment Opportunity Commission; Republican Connoisseur of Fine Adult Entertainment; Beneficiary of Affirmative Action Programs offered by Yale Law School and the Federal Government; Member, Federalist Society Section Against Affirmative Action

You don’t hear from me very often. I never say anything in Court. I never ask any questions. I just kind of sit there and gaze off into the gallery or read a novel in my lap while some dude rattles off about free speech. I let Justice Scalia do most of the talking. People call me an idiot, a mute, a dummy, a moron and an Uncle Tom. That hurts. But I don’t let the turkeys get me down. I have powerful friends; and I have everybody fooled. I might not know anything about the Constitution, but I sure know how to make it look like I know what I’m doing up here.

I’m a proud black Republican. There aren’t many of us, but we are a happy few. Black guys call me a “traitor to my race.” My predecessor—Thurgood Marshall—even called me “decidedly the wrong kind of negro.” They can yap all they want; look who’s in prison, and look who’s on the Supreme Court calling shots. They ain’t my brothers. I’m down with Bush, Roberts, Scalia and Cheney, fool. Call me crazy, but I like to know I’ll be taken care of. They needed a black man on the Supreme Court in 1991. George Bush the First was President in those days. He was a Republican. I am, too; and I’m black. Like I said, there aren’t many of us, so I stepped on in. They gave me a hard time in the Senate, but I made it, because there were more Republicans (51) than Democrats (48). They asked me what Supreme Court cases influenced me the most. I said: “I’ll need to think about that one for a minute.” In the end, I never answered, because I don’t know any Supreme Court cases. Even Strom Thurmond voted for me, the same guy who wanted to resegregate America in the 1950s. I guess he thought if a black man is a Republican, all is forgiven. It’s like he ain’t even black no more once he puts on the elephant button.

Harry Reid wanted to impeach me a couple years ago. He said I was “ignint” and didn’t know the Constitution from a hole in the ground. Player, please. I know what the Constitution is. It’s that thing we talk about, you know what I’m saying? Harry Reid is just an angry white racist Democrat trying to lynch a hard-working Republican black man. There were more Republicans than Democrats in Congress back then, so nobody impeached nobody. My Republican homies stepped up for me. Can I get my Republican brothers to put your hands in the air for Justice Thomas? Thank you very much. Much love to Senator Cornyn. I’ma keep on doing what I’m doing up in here, if you know what I’m taking about. Hells to the yizz-eah. We got this.

I do a lot more than people think. If you listened to the Democrats, you would think I’m a race traitor and a political hack. You would think I’m intellectually retarded and can’t write for shit. You might even think that someone else is doing my job, but I just show up and sit behind the bench. Look here, I ain’t lying: My law clerks do my writing. But I tell them what to write. I know what I know, and that’s what tells me how to decide a case. I know I don’t like affirmative action. I know I don’t like anything that helps a black man. And there ain’t no such thing as “discrimination.” When some lazy black man steps up and says his employer “discriminated” against him, I say: “No he didn’t. People don’t discriminate no more.” And I don’t let black men off the hook for anything in the world. Death penalty cases are my favorite. Like when some Georgia hoodlum named Billie or Willie says: “I didn’t do it.” I say: “Shit yes you did,” then I let the State execute him. This is what I’m talking about. Always it’s some black man saying life ain’t fair in the United States. They dead wrong. Look at me. I made it. Why can’t you? I got mine. You best get yours. Yeah, I had affirmative action to help me get where I’m at, but that don’t mean you should get it, too. Let me tell you black men something: Be a Republican. It worked for me. Maybe it will work for you.

It is not easy to be a Supreme Court justice. You need to have a particular facial expression when you walk into the courtroom. You need to look the part. And you need to look like you know what you’re doing. I don’t know anything about precedent or legal reasoning. But I sure as shit know how to look like I do. That’s hard work. That’s acting. I have rehearsed that serious stare in the mirror every day since 1990. When you peer into my eyes, it looks like I’ve read all the cases and thought about the briefs. But actually I was down at the Supreme Court cafeteria eating beef franks with my clerks. Justice Scalia can do the reading for both of us. Most of the time I just vote with him, anyway.

People say that I am Justice Scalia’s dog. Look, I do vote with Justice Scalia on the big cases, but I am my own man. I am tired of hearing that I’m just a lackey. I’m a black Republican, and that means I go beyond what Republicans expect. I am Republican plus. Just like Jackie Robinson had to be superstar plus, I have to be Republican plus. I don’t just decide against the liberals; I take superconservative positions. I say the federal government should not be able to regulate airlines. I say all black men should be executed without right to appeal. I say there is no more discrimination. I say States have no interest in correcting “racial imbalances” because there is already equality in this country. I say black people live in bad neighborhoods because they made “voluntary housing choices” to be there. I say the federal government cannot restrict advertisers from speaking, even when they are misleading. I say there should be no limit on campaign spending as long as the candidate is Republican. I say abortion is murder and a woman must bear the offspring of rape. I say welfare is waste. I say police should be able to search homes without warrants. And I say that the President can lock up anyone he wants without a reason. Justice Scalia may agree with me, but he does not go as far as I do. That’s because I am a black Republican. I need to achieve 200% to get 100%. He is white. He just needs to do the bare minimum to win. I need to go the extra mile; and I do. All in all, I agree with Justice Scalia on most things. I just am more Republican than he is because I’m black.

I love my job. No matter what the Democrats say, I’m in for life. I just turned 60. I have many more years to sit here and listen to arguments, take naps and tell my clerks what to do. The pay is pretty good and the food is great.

I am a little concerned about President Obama. He has publicly said that he believes in affirmative action and civil rights legislation. That puts us on a collision course, because I reject anything that helps black people, especially poor ones. America is equal; it’s right there in the Declaration of Independence. Government has no business doling out handouts to black folks. What you trying to say? That we need help because we're inferior? Just look at me. I made it. I don’t need anyone’s help, whether it’s from Obama or anyone else. I’m no different than any other black man. Obama and all the others just need to see that black men can succeed if they just join the Republican Party. Black people don’t need any more extra help. They are doing fine. They are equal to whites. When you treat black people better than whites, you hurt whites. This is an equal society. Allowing a black man to get into Harvard more easily denies a qualified white man a Harvard education. That ain’t right. It is unjust to treat white people unequally. Black people don’t need help if it hurts an innocent white man. And I’m going to continue saying that as long as I sit here listening to arguments while reading novels.

I get a bad rap. That is why I’m talking to you today. I’ve always said that I don’t speak much because listening is better than speaking. At least, that’s what I tell law school audiences. But I understand that some people might get the wrong idea about me because I don’t really say that much. I’m here to set the record straight. I am a black Republican. I am no race traitor. I got mine; you get yours. I don’t need anybody’s help. I have strong friends. I let other people write my opinions; I just tell them what to say in a nutshell. I like my job. I have it for life. I basically know what the Constitution is. I affirm death sentences for black men. I support religion in public life. I don’t like free speech, unless a company is speaking. And I never, ever give a black man a break. This is an equal society; they don’t need any help. Just look at me. Nobody discriminated against me; I made it all the way to the Supreme Court.

Stop whining. If I can be a Supreme Court justice, so can you, whether you’re white, black, red, yellow, mullatto, Filipino, Colombian, Czech, crippled, blind, schizophrenic, ignorant, mute, deaf, retarded, dead, comatose or an ape. Just make sure you’re a member of the party that will confirm you.
It’s lunchtime. I need to get to the cafeteria. Peace out: That’s enough talk for the next few years.

Monday, January 26, 2009



Two months ago, I wrote a piece called "Rushing and Listening." There, I asserted that the "single-player program for success in American life" creates ingrained cultural impatience. Because not everyone can be successful, there is unforgiving competition for limited resources. That leaves no time to listen to other people. After all, to truly listen to someone, you must suspend your own concerns, focus deeply on the other person's words and consider life from his perspective. For the American success-seeker, that is not an option; there is just not enough time. He has somewhere to be or someone to call. He might listen to another person, of course, but only if it would benefit him in some way. In my previous article, I lamented this because it bespeaks an acute lack of humanity on the "road to success" in America. If we cannot truly listen to others, we will never understand them. And without simple understanding between human beings, there is isolation, frustration, suspicion and emptiness. Yet impatience--and its concomitant burden on listening--prevail in our society. In my estimation, cultural impatience reflects our society's dominant view that "other people" are fungible resources to be exploited, not unique individuals to be respected.

I revisit this topic to consider a specific issue: Listening to injured people. Cultural impatience makes it difficult to listen to other people, even if they are physically and mentally fit. There is no time or energy to waste attempting to understand another person's perspective. Yet if a person is mentally or physically impaired, there is even greater incentive not to listen to them. Even if a fit person tries to listen to an injured person, how can the fit person truly relate to the injured person's predicament? At best, the listener walks away with a superficial understanding about the injured person's circumstances. He says: "Too bad for him. It must be hard." Or: "I can't imagine what he's going through." Then he returns to his everyday affairs: Going to work, paying bills, watching television, visiting family, commuting, eating dinner and doing his best to find some joy in existence. At worst, the listener simply does not care. He says: "Well, thank God it's not me. I need to go back to work." Or: "I'm in such a hurry to get these errands done. Wait--didn't I see some injured guy today? I can't remember anything he said to me. Doesn't wife is expecting me home, and I have things to do tomorrow." Then he completely forgets the encounter.

What does it take to truly listen to an injured person? I discuss this because I know someone who suffered a devastating accident last year and now suffers from incessant post-traumatic stress. He cannot sleep or rest. Nightmares torture him every night and he wants to commit suicide. He talks about his pain and despair. There is no way I can really feel the same pain he does, nor can I understand what it must be like to go months on end without sleeping at night. I try my best. I want to show him that I am genuinely concerned and that I will do anything I can to help him. Yet even in this I feel helpless. It is emotionally difficult to listen to an injured person in a compassionate way. It burdens the mind. To listen, you must set aside your own daily activities and even your thoughts. You must focus exclusively on another person's thoughts, impressions, words and actions. You must even remember who the person is, and--if you know it--consider his history. It is difficult work. And it is exhausting.

Listening to an injured person alone is difficult. Imagine what it is like to actually be injured.

Yet most people do not put in any work to understand others who have suffered misfortune in life. They either do not have time or they do not have the energy. There are "more important things" to be done. Success-seekers have a distinctly egotistic mental state. Their thoughts are regular and calculated. They follow familiar patterns. They do not deviate far from "the plan." In order to listen, however, one must put aside comfortable, self-centered thoughts to consider matters from an entirely different perspective. Success-seekers cannot do this, even when listening to uninjured people. They can never abandon their mental outlook long enough to comprehend an injured person's predicament. They may be successful, but they do not have enough simple humanity to lay off "the plan" for a few moments.

True, there are contexts in which success-seekers listen to injured people in a professional capacity. When I practiced law, it amazed me to see how little lawyers cared about their injured clients, even though they had listened to their stories with meticulous, technical precision. For a personal injury lawyer, clients become dollar signs with stories to tell. Trial lawyers make their fortunes listening, processing, grooming and retelling the stories of injured people, milking details likely to generate sympathy in unsophisticated jurymen. But this is all show. Lawyers listen to injured people with an ear only for money-making details. They do not listen for humanity's sake; they listen as detached, calculating technicians. There is something morbidly perverse in this; among many other things, it drove me away from personal injury practice. For example, I will never forget a highly successful personal injury lawyer who said: "I spent all that time listening and she didn't even have a fracture, just a sprain. A fucking sprain! Where are all the good clients with fractures? Don't people get permanently injured anymore? Now we're just stuck with these shitty soft tissue cases."

No doubt about it: Lawyers listen to injured people. For all the wrong reasons.

In my heart, I always felt deeply for genuinely injured people. In fact, my basic compassion for them led me to practice as a trial lawyer. I spent hours listening, even when my boss screamed at me for "taking too long with them." They cried when they told me about living with debilitating headaches. They cried when they showed me their scars. And they cried when they told me how violated they felt after someone sexually abused them. I did my best to consider what they said. I did all I could to banish my own thoughts in order to focus on what they were telling me. I knew I could never understand their anguish. But I never listened to them merely to shoehorn their words into a money-making legal formula. That is why I failed as a trial lawyer. I did not "manage my time properly" because I did not rush clients through their stories. Strangely, lawyers constantly listen, but they are also extremely impatient. Put simply, they "rush to listen," get all the information they need to win, then move to the next speaker before repeating the process. But this is not true listening. This is mere self-serving sorcery.

I do my best in life to listen truly. It is a difficult road, but the rewards are worth it. In our hectic society, ruthless self-interest and egotism win the accolades. Winning is everything; how you played the game really does not matter once you have the prize money. The race always hangs in the balance; there is no time to listen to a story that has nothing to do with the race. But even the winners sometimes face hardships in life. They may even suffer injury, knocking them out of the race. They want someone to understand their circumstances and pain when the bad times come. Should it surprise them that "no one has time" for their stories, either? This is the hard, lonely truth about American life: There is no time for humanity when you need it most. Impatience is the pulse of success. It is all well and good to be impatient while mercilessly pursuing success. Yet when misfortune strikes, who will listen to you? Who will have time to care? I think we would all be better if we slowed down a little bit, took some time out and truly listened to each other once in a while. After all, it feels good to know that someone else understands us and cares about us. Listening makes that possible. What a shame that more people do not practice it.

Sunday, January 25, 2009


NOW COMETH INVITOR, Dirk Fitzwell, Esq. (hereinafter “the Invitor”), resident now and at all times relevant of the County of Cook, State of Illinois, Country of the United States of America, Western Hemisphere, Christendom, by and through himself, and as attorney therefor, subject to law and pursuant to all notice reasonably calculated to apprise an interested listener herein, Mullane v. Central Hanover Bank, 339 U.S. 306 (1950), et al., in capacities both legal and moral, corporate and personal, pursuant to a “Writing” as that term is defined in the Uniform Romantic Courtship Code (URCC), notwithstanding any considerations to the contrary thereof, pursuant to said considerations, exception to which is hereby taken, unless by agreement the parties so vary the same, and presenteth this REQUEST FOR INVITATION ACCEPTANCE (hereinafter the “Invitation”), as that term is defined in the Uniform Romantic Courtship Code (URCC, §§ 12.2, 13.6, et seq.)(West 2009), and pursuant to any judicial interpretation thereon by any competent tribunal acting pursuant to personal and subject matter jurisdiction, to Bertha H. Jigglesworth, Esq., (hereinafter “the Invitee”); but in no event shall this Invitation be valid if read by Invitee on a Sunday; unless it be Easter Sunday, in which case aforesaid Invitation shall be read as if it be Thursday, provided that notice be given pursuant to law.

Invitor hereby informs, announces, declares, makes known, conveys, apprises and giveth notice, subject to all rules, formalities, solemnities and means authorized, provided and prescribed by law, that Invitor, being desirous of a Mutually Convenient Social Meeting for Nonprofessional, Relational or Sexual Purposes (hereinafter “Date”), herewith respectfully requests Invitee to accompany Invitor to a commercial establishment of his choosing, first class postage prepaid, U.S. Mail, subject to fees and taxes, payment whereof shall be borne in full by Invitee, but in no event shall aforesaid commercial establishment be named Red Lobster® (subsidiary of Darden Restaurants, Inc., a Delaware corporation); except in cases wherein the parties mutually vary such exclusion by agreement. Invitor, being the open, obvious, notorious record holder in fee simple under color of right of that certain Real Estate situated in Ridewell Street, County of Cook, State of Illinois, Country of the United States, Western Hemisphere, Christendom, Latitude 45.14 W by 24.21 N, surveying insurance, title guarantee, proof of warranty deed and indemnity wherefor is hereby given, being 41 years old, and being unmarried, doth respectfully request, petition and move (subject to the Rules of Civil Procedure, Rules of the Supreme Court and Rules of Court; all limitations reserved) that he be granted leave to compel Invitee to accompany Invitor on said Date, pursuant to the exceptions hereinbefore mentioned (cf. Federal Rule of Civil Procedure 37). Failure to respond to this Invitation constitutes Criminal Contempt, a Class 2 Misdemeanor pursuant to § 234.12 of the Criminal Code of 1961 (West 2009). Reckless Refusal to Provide an Answer to this Invitation in a Manner Suitable to Invitor is a Class 2 Felony pursuant to § 234.14 of the Criminal Code of 1961 (West 2009). Any judicially assessed fines under this Invitation shall be payable to the Invitor, applicable taxes to be borne by Invitee, notwithstanding the Internal Revenue Code (Title 26, United States Code). This Invitation shall constitute conclusive evidence that Invitee received, read, understood, comprehended, mentally processed, acquiesced to, recognized, assented to, consented to, waived any and all objections to, and otherwise agreed to all terms contained in this Invitation; unless Invitee speaks fluent Flemish, in which case this Invitation shall be void ab initio, per tempore, ultra vires, non audio alteram partem and contra omnes, notwithstanding Invitee’s desire or constitutional right to the contrary, it being recognized as a matter of law, there being no genuine issue of material fact, that Flemish speakers shall not, and shall never, enjoy equal right, protection or privilege under these, the laws of the States of the United States of America, or the Federal Government thereof, because the customs, language and inhabitants of Flanders be fundamentally noxious to a Free People, Invitor included therein. Further, Invitee hereby waives any right to trial by jury for any dispute, altercation, crime, tussle, tiff, battle, catfight, acrimonious verbal exchange (AVE), controversy or claim (for property or otherwise) related in any way, shape, form, incarnation (either real or imagined) or semblance to this Invitation, jurisdiction whereover is hereby conferred upon the Fitzwell Arbitration Consultants Corp. (hereinafter “FACC”), an Illinois Corporation, Dick Fitzwell, Esq., President, CEO and Chief Arbitrator, the judgments whereof shall have preclusive, collateral estoppel, res judicata and binding effect upon any subsequent claim by Invitee, any constitutional principle notwithstanding.

For the foregoing reasons, explication whereof by Invitor is hereby acknowledged, Invitor expresseth his true hope, expectation and wish, that Invitee accepeth this Invitation, pursuant to law, notice and the exceptions contained herein; but in no event shall Invitor consent to any such acceptance if Invitee appeareth overweight at the time of Date.

Respectfully Submitted, postage prepaid, Notice of Filing having been duly affixed, pursuant to URCC §§ 14.2, 15.8 (West 2009), and all applicable court rules, Civil Procedure rules and judicial exceptions not herein mentioned, this 25th Day in the Year of our Lord 2009.

Mr. Dirk Fitzwell, Esq.

Thrust, Stickett & Fitzwell, LLP, Attorneys and Counselors at Law
Atty No. : 32156
DF : ldg

Saturday, January 24, 2009


By : Mr. John G. Roberts, Chief Justice, United States Supreme Court; Harvard Law School Graduate, magna cum laude; Former Law Clerk to Hon. William H. Rehnquist, Chief Justice, United States Supreme Court (1986-2005, deceased); Highly successful lawyer in private corporate practice with annual income exceeding $1,000,000; white male Republican with no love for radical Baptist socialist upstarts.

Several weeks ago, I wrote that I promised to deliver occasional, irrational conservative judicial opinions in the Obama era. But I was writing before I administered the constitutional oath of office to President Barack Hussein Obama on January 20, 2009. I have never been so embarrassed in my life. And I am not at all happy with this smug, svelte demagogue. By every judicial means at my disposal, I intend to wage constitutional war on this insolent black man, commander-in-chief or not. He didn’t appoint me. And he’s not in my branch.

Who does this guy think he is? The New York Times is calling him the next FDR. People are buying Obama dolls, hanging up Obama posters and reciting absurd slogans like: “Mr. Obama, please give us hope.” What is going on here? In my previous article, I noted that I would write constitutional opinions in whatever way I chose, because I hold my office “during good behavior.” See U.S. Const. Article III, § 1. I reminded giddy Democrats that it is not so easy to sack Supreme Court justices, and George W. Bush put both me and Sam Alito on the bench before flying back to Texas last week. We are both in our mid-fifties; no matter what Obama says, we are here to stay. But now I intend to do more than merely write occasionally irrational conservative judicial opinions to contradict Obama’s policies. This is no longer about the law. Obama made this personal. He said I flubbed the constitutional oath, and every news network in the country is calling me a doofus or worse. “Oaf of office,” says the New York Times.

Screw you liberal assholes. I’m Chief Justice; you’re just a bunch of European-loving reds.

What do these pansy reporters know about the Constitution? Or tell me, what does this African rabble-rouser in the Oval Office know about the Constitution? I went to Harvard Law School. I graduated magna cum laude. I clerked for Judge Friendly on the Second Circuit, then Chief Justice Rehnquist on the Supreme Court. These are top legal jobs; you can’t do any better than what I’ve done. I have lived, breathed and eaten the Constitution my whole life. I have argued dozens of constitutional cases before the Supreme Court. I know my grammar, too. I am a superb writer, and I am extremely intelligent. Yet these losers say I “flubbed” the oath of office.

So what if I did? I said: “I, Barack Hussein Obama, do solemnly swear (or affirm) that I will execute the Office to President of the United States faithfully.” True, the constitutional text appears as follows: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States.” Article II, § 1, cl. 8. I used the preposition “to” instead of “of,” and I put the adverb “faithfully” at the end, not before the verb “execute.” They’re calling it the “oaf of office” because I missed a word here and there? Well, I meant what I said. I actually wanted to mis-administer the oath so that we could sue to remove him from office later. Unfortunately, Obama called me in the next day to correctly repeat the oath. But they are not leaving me alone with this “oaf” nonsense. I am not feeling good about this at all, especially because these people have no business challenging my constitutional expertise.

Nobody calls me an idiot and gets away with it. I am Chief Justice. I am the ultimate authority on the United States Constitution. This is about right and wrong; and it is not open for interpretation. President Obama thinks he can just smile broadly and give a high-flown speech to avoid danger. Well, not if I have anything to say about it. I may not be a thrilling orator. I may not even be that good looking. But I command the Constitution, and I intend to muster every constitutional weapon at my disposal to have my revenge on Obama.

Obama has no idea what he has gotten himself into. I am going to make his life a living hell. I will use judicial review on him every chance I get. Every time he issues an executive order, I will waive the standing rules, grant certiorari and declare it unconstitutional. Every time his commie Congress passes a wasteful civil rights bill, I will invalidate it on Contract Clause grounds. I will also make direct rhetorical attacks on the President without the usual Supreme Court elegance. For example, I will no longer say: “In our separated system of government, the President must heed constitutional bounds.” Instead, I will say: “Obama has his head up his ass if he thinks he can pass this bill, so help him God.”

I have no more time for half-measures and polite discourse. True, I’ll have to make Justice Stevens and Justice Ginsburg “disappear” for a while, but that will not be difficult. A few free opera tickets will entice Ginsie to stay away from Court, while some sleeping pills for old John Paul will render him comatose in his seat during oral arguments. With those two liberal relics out of the way, I will have a 5-2 majority to block every damn thing Obama tries to pull. And there is nothing Obama can do about it. You can’t remove us, baby. See Article III, § 1.

You can’t call me stupid. I am smarter than you will ever be. And nobody opens me up to public ridicule without serious consequences. I will not just frustrate Obama’s legislative initiatives. I intend to personally embarrass him, too—in public. I command the Supreme Court police. I can order them to trip the President during press conferences, or throw popcorn at him on the White House lawn. These are my guys. They do what I tell them to do. They do not take orders from the President, and we’ll see who’s “the oaf” after my officers toss a crème pie in Obama’s face during a tete-a-tete with Russian President Medvedev. That may not be constitutional, but it sure will make me feel good. Let’s not forget who is Chief Justice. You cross me, and I’ll cross you. The era of judicial restraint is over, Mr. President. This is war.

President Obama may think he’s a righteous crusader. He may think America looks up to him as the savior. But no matter how many crowds cheer him, and no matter how many news articles praise him, I am still the Chief Justice. George W. Bush appointed me, not Obama. I am true to my benefactor; Obama actually voted against me in the Senate. Bad move, my friend.

It’s time to settle the score, Hussein. I will take you down from your pedestal faster than you can say: “Faithfully Execute.” Are you ready to get judicial, Mr. President? I am. Let’s get it on. The Courtiznit is now in sessioniznit, bee-ochiznit.

Friday, January 23, 2009



By : Mr. Francis G. Raeder, Ph.D., Policy Director, The Retribution Association of America, Inc.

Bernard Madoff stole $50 billion. That is correct: $50 billion. He plundered innocent investors all over the world, from elementary school pension funds to charities to Fortune 500 retirement accounts, leaving bankruptcy, desperation and broken lives in his wake. Although he has not yet faced trial for his crimes, he is the worst sort of criminal: A defrauder. Through deceit, he ruined countless lives. He has caused incalculable pain, uncertainty and suffering to millions. He must be punished. But he has only one life to give. There must be some way to make him pay more for his fraud.

Americans depend on the stock market for their financial security. Without orderly markets, they would not be able to finance their retirements, their educations or even their monthly expenses. In America, we believe in financial independence; we reject governmental assistance. We make our own money. We depend on our own investments to sustain our financial lives. When market swindlers filch our money, they rob not just our savings, but also our independence. They take away our trust and betray their loyalties. Thieves are bad because they disrespect property. But Judas burned in hell because he betrayed a solemn relationship. In America, investors had a solemn relationship with Bernard Madoff. Like Judas, he betrayed that relationship for personal gain. And like Judas, we demand blood for his treachery.

Law embodies our beliefs as a society. When we punish a criminal, we attempt to tailor his suffering to the blameworthiness of his conduct. To that extent, we express our condemnation for his conduct. We give petty thieves 1 year in prison, but we give car thieves 6 years. Why? We agree that all stealing is bad, but it is worse to steal something worth more money. Amounts matter. We give rapists 15 years in prison, but we electrocute murderers. Why? Because it is worse to kill a person than merely to sexually defile one. The law reflects our moral judgments. If we punish something more severely, it means we hate the conduct more. We want greater revenge.

Bernard Madoff did not commit petty theft. He did not steal a car, either. Nor did he rape or kill. He did something far worse: He betrayed our trust, then stole $50 billion. That is an incomprehensible amount. That amount represents the lives, dreams and ambitions of millions of Americans. Stealing is bad, but stealing $50 billion stands in a class by itself. Madoff stole more than money. He stole lives, futures, hope and trust. He ruined fortunes and vaporized inheritances. He condemned old women to poverty and heirs to low-wage work. Most Americans would rather lose a cousin or even a sister than their savings. Madoff may not have killed a person, but he killed people’s savings. In our view, that is a far worse offense. Americans spend their whole lives working, making money and saving. Respectable sources tell them that saving is good. They live, work and save responsibly all their lives. Then Madoff pulls the rug out from under them. All their toils now mean nothing. He attacked the very fabric of American life. He has cast doubt on the responsible way Americans learn to live their lives. For that, he must suffer accordingly. This is no ordinary killer. This man assassinated the entire “American life program” in cold financial blood.

How can we proceed against this assassin? We have charged him with “securities fraud,” a crime that does not carry a death sentence. In fact, it does not even carry a life prison term. We can force him to repay all the money he stole, but he has already spent most of it. There is no way he can truly make amends to the millions of responsible Americans whose financial lives he killed. No “justice” can avenge his betrayal. No fine, penalty or fee can inflict the misery on him that he inflicted on America. Defrauded Americans deserve to revisit some suffering on Bernard Madoff. Even if the law allowed the federal government to put Madoff to death, he would face far too easy a road. He would merely be transported into a sterile chamber, injected with two intravenous tubes, then pumped full of toxic chemicals. He would slip peacefully into oblivion, leaving all his victims behind to live in financial hell. Put simply, in Bernard Madoff’s case, death is not enough.

We believe that Bernard Madoff must suffer more than any criminal has ever suffered in America. To accomplish that goal, we must suspend the Constitution’s ban on “cruel and unusual punishments.” U.S. Const. Amd. 8. We must allow the public to participate in Bernard Madoff’s punishment, because he injured the public. History provides an ample guide in this regard. Until the 18th Century, French, German and Russian monarchs applied a penalty called “breaking on the wheel.” This method involves lashing the prisoner—naked, and in public—to a large wooden or iron wheel. An executioner then takes a heavy steel mallet and strategically smashes the prisoner’s bones, beginning with the ankles and feet. In order to prolong the procedure, the executioner can administer only one hit per hour, or one hit per day, leaving the prisoner to suffer with his injuries until the next encounter. All the while, the public can watch him writhe, scream, bleed and despair.

We believe it is time to revive this practice. America deserves a chance to make Bernard Madoff suffer for his indescribable crimes against the financial order. Individual investors are not going to get their money back, nor will Madoff’s death in a private chamber make them feel any better about their loss. Defrauded investors should have a chance to repay Madoff for his deceit. We should allow each investor a chance to smash one of Madoff’s bones. We should allow penniless widows to vent their despair on Madoff in the most personal way possible: With an iron mallet. Every investor who lost money with Madoff must file a petition to participate in the punishment ceremony, and every news network—especially the financial markets networks—must broadcast the ceremony for all to see. This is the only way we can assure Americans that the government cares about their money. And it is the only moral way we can show ourselves that we do not tolerate financial treachery that undermines responsible saving.

In his Inferno, Dante Alighieri reserved the lowest level in hell for traitors. We think he was right. Bernard Madoff is the worst of the worst. He deserves not only to die for his massive fraud, but also to suffer the most ignominious end humanly possible. It would be perverse to execute a worthless beggar for an inconsequential killing, yet allow this financial mass murderer to escape a horrible death for exterminating Americans’ money. We must send a message that it is worse to kill $50 billion in savings than it is to kill a homeless person. Under the law, a fraud artist like Madoff faces a comfortable prison term, yet any murderer faces capital punishment, no matter how unimportant the victim. Here, Madoff victimized America’s financial lifeblood. He deserves a penalty far worse than someone who merely killed a person without savings. If we do not send a clear message that savings plunder will not be tolerated, we undermine the very reasons why Americans live. We must not allow that to happen.

If you care about work, savings, fidelity, honest markets, responsibility and justice, tell your Congressman today: “Break Bernie Madoff on the wheel.” It is the only way to punish him for his atrocities.

Wednesday, January 21, 2009



Obligations dominate life. We spend our lives struggling to fulfill commitments—or avoiding them. The law imposes some obligations upon us. Culture, family and tradition impose others. We even make personal obligations to ourselves. In every case, obligations constrain our action. We must either satisfy them or suffer the consequences. Those consequences might be financial or even corporal. Or they might be ethical consequences that weigh on our own conscience without any effect on our bodies or property. Obligations tell us what we must do. They darken our lives as much as they offer opportunities to advance our lot. They darken our lives because they represent compulsory duties imposed by some higher authority. They brighten our lives because when we fulfill them, we rise in others’ esteem by demonstrating our loyalty. They also brighten our lives because by fulfilling obligations, we may at times serve something larger than ourselves.

Obligation and loyalty spring from a similar source. But obligation comes in many guises, and so does loyalty. There are private obligations, such as a promise to repay a loan to a bank. Similarly, there are public obligations, such as an elected official’s promise to uphold the Constitution. Finally, there are ethical obligations, such as a person’s own commitment to live a principled life. In the first two cases, there are verifiably superior powers at work: In the private case, the debtor acknowledges that he “owes” the bank money, placing the bank in a superior power position. In the public case, the elected official acknowledges that he is a mere “servant” who swears to uphold the larger principles embodied in a public document, namely, the Constitution. In both cases, the law punishes failure to adhere to obligations. The debtor must pay, while the elected official could face impeachment or prosecution for violating established constitutional rules. Only in the final case is there no “superior party” at work. When it comes to individual obligations to one’s own conscience, only the will can adhere to the obligation. There is no superior force to compel allegiance. Ethical conundrums have nothing to do with external forces, despite what the ABA thinks. (Cf. Immanuel Kant: “[Ethical rulemaking] is internal and cannot have an external legislator.” Introduction to the Metaphysics of Morals, III. They are individual obligations, and only individuals can enforce them. Today, I wish only to speak about “classic” external obligations involving superior and inferior parties. I will leave ethics for another day.

External obligations imply a power relationship. There is a strong party (the “obligor” or “master”) and a weaker party (the “obligee” or “servant”). Against this background, an “obligation” means: 1. a binding contract, promise or moral responsibility; 2. a duty imposed legally or socially; a thing that one is bound to do by contract, promise, moral responsibility, etc. or 3. the condition or fact of being indebted to another for a favor or services rendered.” Webster’s New World College Dictionary (4th Ed.). Several words in these definitions underscore the uneven power relationship in any obligation. “Duty,” “impose,” “bound,” “indebted” and “responsibility” all suggest that one party must do something or face consequences from a higher power. Only higher powers can “impose duties” on weaker ones, while “responsibility” implies that a weaker party must answer to a higher one. There is a conceptual complex at work here that effuses power, and for good reason: Obligation cannot exist without disparities in power. And it is no accident that these definitions use the words “bound” and “must.” Obligations are compulsory. There is no choice. One must either fulfill them or face the consequences. Put another way, either the weaker party serves his master or he will be punished.

Power drives obligations. For that reason, loyalty plays a significant role in most obligatory settings. At first glance, loyalty has a positive connotation. Colloquially, we admire “loyal” people because we think they will not betray us. Loyal people hold to their words. They are honorable. They do not “cheat.” The word is shorthand for “a good character.” After all, in common experience, a “loyal” person typically has many other good characteristics, too.

These superficial understandings may hold in a colloquial sense. But loyalty has many other, more technical shades involving power relations. The dictionary tells us that “loyal” means: “1. faithful to the constituted authority of one’s country; 2. faithful to those persons, ideals etc. that one is under obligation to defend, support or be true to.” Webster’s New World College Dictionary (4th Ed.). In this light, we see that “loyal” really means “dedicated to ‘established authority’ and ‘faithful to obligation.’” In other words, to be “loyal” means to respect one’s betters, whether they are good or bad. After all, “established governmental authority” does not always act nobly. Heinrich Himmler was loyal to an “established governmental authority” led by Adolf Hitler. Similarly, a lawyer under contract with a law firm would be “faithful to his obligation” to advance firm interests by derailing a government investigation intended to harm one of the firm’s clients. Thus, “loyal” people are not necessarily good. They merely fulfill their obligations. If an obligation is bad, then it is also bad to be loyal to it.

Loyalty identifies the strong and the weak. “Servants” are loyal to their “masters.” The “master” “imposes” the “duty,” and the “servant” is “faithful to the person” who “he is under obligation to defend.” The master owes nothing. He commands. The servant, on the other hand, must obey or face the consequences. If he is “disloyal,” he disobeys his master and will suffer. Yet there is no reciprocal obligation on the master’s part. The master can act any way he wants, so long as he pays the servant for his loyalty. The servant must act only as the master directs; and he may not act in a way that would be “unfaithful” to the master. This power complex may seem simplistic, but it is extremely prevalent in private life, all the way from petty employment to corporate management. Corporations, for instance, are “pseudo-masters” over every person who works under their name. Every corporate employee—whether a director, officer or wage-earner—theoretically must “serve” the corporation as “master.” Directors owe “fiduciary duties” to the corporation’s “best interests.” “Fiduciary duty” is legal jargon that means little more than “loyalty.” When a director acts, he must consider whether his action would serve his master or himself. If he serves himself, he is “disloyal” to his master and must suffer. If he serves his master, he fulfills his obligation. No matter what he does, a superior power constrains him. He is the “weak party” who owes loyalty to the “strong party.”

Power controls both public and private obligation. In both cases, weak parties owe loyalty to strong parties who control their actions. Yet there are cases in which loyalty does not indicate subservience or slavishness. Does the difference lie in the nature of the obligation at issue? I would venture that public obligations are somehow more enduring than private ones. For example, yesterday President Obama swore an oath to “preserve, protect and defend the Constitution of the United States.” He entered into an obligation to support the public ideals enshrined in the Constitution. Those ideals are basically good. They are enduring. They stand for principles beyond private enrichment. Strictly viewed, President Obama is the “servant” and the Constitution is his “master.” He has a duty to protect the Constitution above all else. In that sense, his “loyalty” to his “public master” is a good thing. It does not make him a bootlicker to say he “serves” the Constitution. In fact, he should be praised for putting his “constitutional master’s” interests before his own. Viewed in these terms, it seems to me that “public obligations” have a more lasting resonance than private ones.

Private obligations do not have the same thematic appeal as public obligations. For example, there is nothing particularly memorable or praiseworthy about a phone company Vice President’s obligation “not to compete” with his former employer’s company for six months following his resignation. Conceptually, he has an “obligation” just like President Obama, but the subject matter is private, not public. Here, the “master” is a private corporation that has no goal other than private profit. It stands for no larger ideals. Like the Constitution, the company is a “superior power.” It demands loyalty from its “servants,” in this case the departing Vice President. Yet “loyalty” in these circumstances has a profoundly different character than it did in President Obama’s case. Here, “loyalty” requires the company Vice President to refrain from taking a job in his old line of work for six months so that the phone company’s profits will not suffer. The master benefits financially from the servant’s loyalty, while the servant gains nothing. Still, if he defies his master, he could face legal consequences. In a word, loyalty here is pedestrian, forgettable and petty. It concerns no one but master and servant. It may be necessary to protect private enterprise, and theoretically it may be identical to public loyalty. But I venture that it differs in character from public loyalty.

Loyalty and obligation interest me because they pervade our society, yet very few people understand how they function. In sum, I believe that loyalty is not necessarily a “good word” because it depends on the obligation to which a person is loyal. Generally, I believe that public obligations are thematically more appealing than private ones, but that does not mean that all private obligations are bad, or that all public obligations are good. Yet I think it is important to understand how obligation and loyalty operate on a conceptual level, because they are hallmarks of power. When I say that obligations dominate life, I necessarily say that we live in a world of disparate power. When we understand that, we can better understand our lot. And we can also see whether our masters are justified.

Tuesday, January 20, 2009



I write passionately. When I write, I cannot escape the fact that I believe strongly about certain ideas and issues. When I convey my ideas, I sometimes betray how forcefully I feel about them. My ideas arouse more than just intellectual stimulation; they evoke my emotions, too. At times, my emotions color the way I address an issue, whether seriously or through satire. In short, I can be polemical. I am not always that way. I just know that I can be.

I use the word “hate” from time to time in my writing. I reflected on that the other day. Does this mean I am a “hateful” person? Will someone investigate me because I dare to say that I hate things, arguments or situations? After all, “hate” has become a modern-day “dirty word.” We are taught to revile people who “hate.” But this is simplistic reasoning that fails to truly understand the word. Rather, the negative connotations surrounding “hate” refer only to one sense of the word, yet they pollute the whole.

“Hate” is a powerful, core English word. It has no Latin frills. It is pure German (derHass). It sounds strong. It conveys individual emotion, but that emotion does not necessarily reflect bigotry or personal malice. Rather, the verb “to hate” refers to any personal feeling of “strong dislike” for anything at all, whether another man or a plate of broccoli. See Webster’s New World College Dictionary (4th Ed.), “Hate” definition, Meaning 1. Beneath the definition, the dictionary tells us that “hate” “implies a great dislike or aversion, and, with persons as the object, connotes the bearing of malice.” Id. at Explanations (emphasis added).

This is a significant distinction. It explains why people misunderstand the word “hate.” When paired with an individual person or people, the word takes on a more negative character. To say: “I hate Joe” means something entirely different than: “I hate injustice.” In the first example, the speaker voices his personal ill-will, malice and contempt for an individual human being. In that sense, “hate” carries a negative load; it is not good to “hate” other people. But in the second example, the speaker voices the fact that he has a “strong dislike” for a concept, namely, injustice. It is not a bad thing to “strongly dislike” injustice. Rather, one might say it is praiseworthy to strongly dislike injustice, because it suggests that the speaker “strongly likes” justice. “Hate,” then, is not intrinsically bad. It all depends on the object and the context in which the word appears.

“Hate” often appears negatively in racial, political or religious contexts. In these contexts, the word has an especially bad ring, and that ring has corrupted the word’s core. For example, people commonly say: “The Nazis were evil because they hated the Jews.” Here, the verb “to hate” targets individual people (“the Jews”), and an identifying characteristic (their religion). When used in this way, the verb “to hate” not only implies personal malice toward others, but also reveals that the malice flows from a religious source. In this context, “hate” shows not only strong dislike, but violent contempt for other people “for who they are.” It shows a bad motivation for the speaker’s “strong dislike.” It unfairly targets people for their intrinsic characteristics. It is the language of intolerance and bigotry.

Few people would argue that racial or religious bigotry are not “bad.” Colloquially, however, “hate” commonly identifies bigots. Most native English speakers, then, associate this “narrow sense” of the word “hate” with “bigotry.” Bigots undoubtedly “hate” other people. But linguistically, their “brand” of hate is not the only one. There are far less offensive—and far more legitimate—ways in which to use the word. The fact that we tend to associate a core English word with a particularly bad group should not deny its expressive force in contexts in which it should be used. It is eminently possible to use the word “hate” without suggesting that the speaker is a racial or religious bigot. Sometimes it is the best word for the situation. At times it is not. It all depends.

It saddens me that racial and religious intolerance have corrupted the word “hate” because “hate” can honestly convey how a person feels about issues, ideas and concepts. Language is most effective when it gives voice to an individual’s thoughts, impressions, memories, tastes, inclinations, experiences and beliefs. These are things that other people cannot directly perceive; language is the imperfect tool that can convey them. Words that directly voice a person’s mental processes and feelings are among the most vital. “Love,” “like,” “dislike,” and “hate” tell us how other people feel about their world. They reveal passion, indifference and everything in between. Without these words, we would never know how people feel about their circumstances. To that extent, it is essential to free them from unnecessary connotative baggage.

It is possible to use “hate” in a perfectly legitimate way. If a person is not the verb’s object, the word signifies personal belief about something. For example, to say: “I hate this job” indicates that the speaker has “strong dislike” for his work environment. In one stroke, it reveals the speaker’s intense dissatisfaction, unhappiness and frustration with a situation we can all understand. Additionally, by revealing his feelings, the speaker begs more questions: “Why do you hate your job? What is so bad about it? What drives you to feel so strongly about it?” These questions invite the speaker to impart his world to us. They ask him to tell us about the bad office, his malicious coworkers, the ill treatment and bad pay. We learn facts about his situation that make us understand why he feels “hatred” for his job. There is nothing illegitimate about this. Rather, when coupled with a non-personal object, the verb “to hate” tells a unique, individual story about the speaker.

“Hate” can also reveal passion in a speaker’s viewpoints. This is especially true when the verb “to hate” takes a concept or idea as an object. I do this often, and sometimes consciously choose the word “hate” because it honestly conveys my “strong dislike” for certain ideas or concepts. Recently, for example, I titled an article: “I Hate Euphemisms.” That accurately reflects how I feel about circuitous, weak language that attempts to obscure patent realities. I “strongly dislike” it. It bothers me on a fundamental, theoretical level. It does not make me a “hateful” person, nor does it make me intolerant. It simply reveals that I do not like condescending, pretentious, fluffy language that takes its listeners for fools. In these circumstances, the verb “to hate” fits. It voices my subjective view on a particular issue, nothing more.

Public dialogue and knowledge suffer when people stop before using words that best suit their expressive purposes. When conveying ideas, the human mind should not limit itself only to “acceptable” words. While prudence may dictate whether using a certain word in a certain context is advisable, one thing is certain: We cannot “excise” words from popular use. In an especially noteworthy opinion, the United States Supreme Court recognized the danger inherent in efforts to stamp out individual words: “Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” Cohen v. California, 403 U.S. 15, 25 (1971), and: “Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning expression of unpopular views.” Id. at 26.

Although the Court restricted its comments to State efforts to ban words, its rationale applies with equal force in private discourse. Our civilization advances when every voice may accurately be heard. Information cannot travel effectively without robust, accurate language. We must understand what our words mean when we use them, and we must not shirk from upsetting “popular sensibilities” when certain words best express us. “Hate” upsets “popular sensibilities” in some settings. There are people today who categorically refuse to say they “hate” anything because they learned that the word “hate” cannot be used in any circumstances. That is unfortunate. There is no one alive who has never felt hatred for something. Does anyone not hate “bad luck” or “illness?” In short, if people restrict themselves from using words that best express their individual thoughts, others will never truly understand them. And without true understanding, there can never be true dialogue.