Wednesday, September 30, 2009



We always hear about doomed criminals running away from the police. Chases always make the news. They seem to happen in California more than anywhere else. But no matter where they happen, the key element remains the same: Some desperate person tries frantically to delay the moment at which he will be physically restrained. He wants to be free. He wants control over his own body. So he thrashes with incredible energy to maintain that control. He even puts himself and others in mortal danger for a few more free moments. Even the most insignificant infractions put people to desperate flight. They even cause fatal car crashes while trying to escape from a traffic stop. In other words, men love freedom; and they cling to it no matter the cost or the danger.

Freedom has many meanings. It is a common word. George W. Bush used it ad nauseam as shorthand for a complex, biased political value system that had nothing to do with "a lack of restraint on physical movement." But today I want to examine the word's base, bodily meaning, not its metaphorical or rhetorical overlays. "Freedom" is an old English noun that stems from the adjective "free," which in turn relates to the German "frei." In essence, it implies a "lack of physical restraint on bodily movement." At base, it is corporal. It suggests an ability to move the body without being held back. It also suggests an ability to "go where one pleases" without facing opposing physical forces. In this sense, a "lack of physical restraint" intertwines with mental tranquility. People like to go where they want. No one likes to know he could be physically stopped from going somewhere. Physical "freedom," then, closely relates to mental "freedom," and even happiness: You can't be happy if someone prevents you from using your body as you please. Emotional satisfaction flows from physical freedom.

I like the words "free" and "freedom" more than "liberty." I am partial to hard-hitting, German-based words over obscure, imported Latin ones. "Liberty" is a Latin refinement on "freedom." At times, "freedom" and "liberty" mean the same thing. Yet "liberty" sounds somehow more grandiose than mere "freedom." During the Enlightenment, philosophers opted for majestic "liberty" over plebeian "freedom" when discussing man's "natural rights." In the process, they transformed "liberty" into a technical term. "Liberty" was no longer a simple synonym for "freedom." No, "liberty" carried its own theoretical weight. It became shorthand for an entire economic and social value system premised upon "individual choice, conscience and enterprise." John Stuart Mill named his famous ode to free market economic choice "On Liberty," while Adam Smith based The Wealth of Nations on the fundamental assumption that man must enjoy "economic liberty." In the Declaration of Independence, Thomas Jefferson famously asserted that man's "inalienable rights" included life, liberty and the pursuit of happiness." In all these examples, "liberty" took on a meaning far beyond "lack of restraint on bodily movement." It was something more than just "going where you want when you want." It was something freighted with metaphysical assumptions.

But today I am not writing about Mill's "liberty conception" or even "economic liberty." I am writing about pure, animal "freedom:" The subjective desire to be free from direct bodily restraint. Based upon my own observations, I believe that human beings have a natural desire to be free. There is both a physical and emotional dimension to this desire. Human beings--like their mammalian forebears--relish the ability to move as they please. They feel at ease when nothing constrains their bodies. By the same token, they hate the emotion that arises when some superior power prevents them from moving their bodies as they please. Dogs and monkeys scream when caged. They become agitated and violent. They obviously do not like limitations on their freedom to move. When restrained, their behavior shows they hate it.

Human beings hate being confined, too. Unlike animals, they know when others seek to confine them. That is why they struggle to avoid capture and "maintain their freedom," even if there is no prospect for success. They know how they will feel when they lose their bodily freedom, so they resort to anything to hold onto it. Human beings anticipate the emotional pain that flows from losing freedom. That explains why doomed criminals flee in desperate attempts to remain free. Even when they have no chance to succeed, people will always try to escape, if only for a few minutes.

But how is that reasonable? If there is no chance to succeed in an endeavor, why bother attempting it? In my view, the "urge to be free from bodily restraint" trumps human reason. After all, if human beings trusted their reason in all events, they would never try to avoid inevitable capture. They would not jump over electrified fences or drive 85 miles per hour the wrong way down a one-way street if reason guided their actions. No, something else guides their actions when they feel something threatens their freedom. Human beings will resort to utterly unreasonable behavior to avoid physical restraint. The "urge to be free" transcends virtually all reasonable imperatives. It overwhelms rational calculation and leads men to engage in dangerous behavior that is almost bound to fail.

In my eyes, all this proves that human beings are not purely reasonable creatures. No matter how much we applaud our ability to triumph over nature through reason, we retain extremely unsettling instincts. Our "urge to be free from bodily restraint" illustrates the lengths to which human beings will go to maintain their ability to move their bodies as they wish. Viewed rationally, who would think that mere bodily movement could trigger such intense emotional responses? But that is exactly the point: Reason cannot account for men's violent emotional responses to certain stimuli. For better or worse, men want control over their bodies, just as chimps and dogs want to roam uncaged. And just like chimps and dogs, they rage uncontrollably when anything constrains their ability to roam.

Physical confinement touches a base nerve in our minds. That explains why human beings resort to anything to avoid it, no matter how unreasonable or ineffectual. This has nothing to do with complex coinages like "liberty." It is just a fact of nature. And we will never escape nature.

Tuesday, September 29, 2009



By : Mr. Gabriel F. Ziegenbaum, Senior Partner, The Equity Family LLC (A Real Estate Holding Company Specializing in Must-Do Sales); Licensed Market Broker; Licensed Fisherman, Town of Poughkeepsie, New York.

At The Equity Family LLC, we sell and lease attractive properties throughout the New York metropolitan area. We are committed to providing quality services to our customers. That means dealing fairly, fully and honestly. When our agents show properties, we tell the whole story. And when deal time comes, we make sure that our customers know everything they need to know.

We believe that fairness is the best way to do business. We understand that buying or leasing a home can be stressful. That is why we strive to make the experience as easy as possible with our "Fair Shake Guarantee™." We guarantee our customers that they will get the fairest possible deal and price allowable under applicable New York State law. We understand that many people are cynical about property sales. But we buck the trend: We are proud to make a commitment to fairness.

We think that customers should know what they are signing. All too often, buyers and renters hastily read 45-page leases or sale contracts without really looking at what they say. After all, who knows what the "Parol Evidence Rule notwithstanding applicable New York exclusions, et seq." means, or even "the right to quiet enjoyment having been waived, it being the intention of Lessor to obviate all Rights appurtenant hereto, there shall be no cause of action, in either law or equity, as against that certain Lessor as hereinabove named and described." We do not believe that sellers should confuse customers with legal gobbeldeygook. Rather, we think that buyers and renters should know exactly what the contract says.

Our lawyers do not like our "Fair Shake Guarantee™." They say it leaves open too many liabilities. They even say that it is much more profitable to write contracts inscrutably than clearly. Although we agree that profits are important, we think integrity is more important. We want our customers to know exactly what they are signing, even if that scares them away from a deal. For us, honesty is the best policy. And contrary to our lawyers' admonishments, we have stayed profitable every year since we opened our doors. In our view, honesty is its own reward.

To demonstrate our commitment to fair dealing and transparency in property sales and rentals, we would like to share our standard lease format with the public. This lease tells potential renters everything they need to know about their obligations, rights and powers in a property relationship. It also tells them what their landlords can and cannot do under law. We believe that the key to economic prosperity is knowledge. That is why we want to tell the public about our standard-form lease. Our economy grows when everyone does business with confidence. When customers see that The Equity Family guarantees fairness, every customer will feel confident. Nothing hurts business more than a suspicious client base. Here at the Equity Family, we make sure that no one stays suspicious. We tell everyone exactly what the contract says in plain, layman's English. You don't need a lawyer to understand our lease. You won't find any "pursuant" or "notwithstanding same" in our lease. It won't even take you 10 minutes to read.

Do business with confidence. Read this lease. You will never have to read another one; every lease says exactly what this lease says. Know your rights. Know your responsibilities. And understand your place in every commercial relationship. Because confident customers are good customers (R).


1. The Equity Family LLC ("Lessor") promises to allow You ("Lessee") to remain on a property it owns, namely: 12 Church Avenue, Apartment 4C, New York, New York ("Property"), from January 1, 2010 until December 31, 2010.

2. In return for Lessor's promise to allow Lessee to remain on Property, Lessee promises to pay four thousand three hundred dollars ($4300) on the first of every month, beginning January 1, 2010, until December 1, 2010.

3. Lessor has almost all advantages under this Lease.

4. Whenever unexpected expenses arise, chances are Lessee will have to pay for them.

5. In case of dispute, it is presumed that Lessor will win, unless a court says otherwise.

6. Lessee has no right to sue Lessor for anything, unless a court says otherwise.

7. If a court says something against Lessor's interests, Lessee agrees to pay for all Lessor's costs.

8. Lessee agrees that there is nothing is unfair about this Lease. Lessee would not have signed it otherwise. As a result, Lessee waives any claim that this Lease is "unconscionable" or "unenforceable."

9. Lessor promises to provide a safe Property, but will contest any claim that anything about the Property is unsafe, and even blame Lessee for causing the problem in the first place.

10. Anything Lessee does to improve Property will inure to Lessor's benefit. EXAMPLE: If Lessee buys a new fridge and installs it on Property, the fridge immediately belongs to Lessor. Lessee cannot sue Lessor for this result, no matter what the law or Constitution says. It is not theft. It is a contract--and Lessee signed it. Theft is illegal. Contracts are legal.

11. If Lessee breaks this Lease, he owes Lessor every month's unpaid rent. Lessor has no obligation to honor any request for mercy or mitigation. EXAMPLE: You break the lease on September 1, 2010. That means you owe rent for September, October, November and December, each at $4300 per month: You owe $17,200. If you don't pay, Lessor will get a judgment against you and tap into your bank account to get every nickel you owe: That's the law.

12. Lessor understands that he enjoys most of the power under this Lease. Lessee understands that Lessee enjoys very little power under this Lease. In all cases not specifically addressed in this Lease, Lessor shall prevail, unless a court says otherwise.

13. Lessee may not destroy Property. If he does, he must pay for all repairs at a double rate. If Lessee refuses to pay, Lessor gets a default judgment against Lessee and can tap into his bank account to get whatever amount he wants. EXAMPLE: Your dog destroys Lessor's parquet floors with urine. Lessor's contractor charges $5400 to repair it. You owe $10,800. You don't pay. The Court enters judgment against you for $10,800. The Sheriff authorizes Lessor to garnish your bank account and transfer $10,800 to Lessor.

14. This is the final agreement. It can't be changed, unless Lessor wants to change it.







Sunday, September 27, 2009



Today I tuned in to watch the Red Sox-Yankees game. I don't really follow sports; if you read this blog with any regularity, you know the reasons why. But if I had to choose a sport to "follow," it would be baseball. I like the fact that it goes back so far in American history. It is uniquely American. And I like anything with a long, well-documented history because it lets you see developments over time. Baseball certainly has that; Americans have obsessed over it since at least 1880.

During the broadcast, there was an interesting moment. It had nothing to do with the game; I really could care less who wins and who loses. The camera fixed on two Yankees sitting in the dugout watching the game. I have no idea who they were. One was black, with a round face, a goatee, moustache and big, brown eyes. The other was white, blondish, shaven, with an angular, Nordic-looking face, piercing iron-colored eyes and high cheekbones. These two men wore the same uniform. They wore the same hats with the same insignia. They leaned over the dugout railing. Their jackets even touched. They appeared to mutter a word or two to each other in between blowing sunflower seeds onto the field. Each man looked around; their eyes briefly met a few times. Then the camera moved back to the game.

Here were two Americans, united to play the "all-American game." A hundred years ago, every player in baseball was a European descendant. Well, at least all the players in the "American and National Leagues." Back in those days it was OK to segregate the races: the "negroes" had their own league. Players' names bespoke Europe: Honus Wagner; George Sisler; Walter Johnson; Rogers Hornsby.

Now, barely half the players are European descendants. Baseball officially desegregated in 1947. Since then, new ethnicities and races have completely altered baseball's face. Players' names, too, tell us that "times have changed" in America. Yes, there are still Buchholzes, Smoltzes, Cobbs, Saberhagens and Bretts. But much more often there are Gonzalezes, Rodriguezes, Ramirezes and Martinezes. And most of the players with names like Johnson, Brown, Williams and Jackson are black. The American population--just like baseball--is fundamentally different than what it was a hundred years ago.

This one moment reminded me how perplexing it is to be "an American." Who are we? What are we? With every passing generation, our identity as a Nation changes, just as our population changes. The original residents are extinct (our ancestors eliminated them a long time ago). We are now a bewildering mishmash of fresh immigrants and the descendants of people who "used to live somewhere else, far far away." And not all came voluntarily.

Who is an American? Those two Yankees on the TV screen were both Americans. Yet they looked nothing like one another. In fact, they came from radically divergent cultural heritages. They both played America's "truly American sport." But what else united them but the game? In this sense, the image on TV told a misleading story: Although it seemed that black and white happily coexist--and even "wear the same hat" while struggling as peers to win a mutual contest--a brief look at social realities tells us that the opposite is usually true.

American life is a strange thing. We pull in so many different directions because we all hail from disparate cultural traditions. No matter how much government or private institutions attempt to inculcate "traditionally American values," it is really impossible to impose uniformity over a population as heterogeneous as ours. In the past, of course, that heterogeneity has proven a blessing.

But who knows what the future holds. The United States ventures now into an unprecedented era. For the first time, European descendants will fade into minority status. Once again, America will struggle to answer the question: "Who is an American?" What is an "all-American look?" With a population as far-flung as ours, who can even presume to answer these questions?

Thursday, September 24, 2009



I found some untroubled moments to watch the news this afternoon. Once in a while I like to know what FOX News has to say about the world, if for no other reason than to assemble new ideas for satire. I must actually hear crazy arguments before I can properly mock them. You can't do impressions without listening to your subject first.

FOX started its 7 PM broadcast with "Three Top Stories." The first involved a Muslim terror suspect who allegedly scoured beauty salons throughout New York buying up hydrogen peroxide. The newscaster said that hydrogen peroxide is a "key ingredient in explosives." FOX showed FBI men leading a young, Arab-looking man away in handcuffs.

In the second story, FOX informed me about a "terror imam from Brooklyn." He allegedly knew about the young man's plot, then lied to the police about it. FOX told me that he was being held on a $1.5 million bond for conspiracy. It also told me that authorities charged this "terror imam" with sexual abuse in 1992. I didn't see the connection between sexual abuse and international terrorism, but it sure made the "terror imam" look like a villain. After all, terrorists are bad, and so are sexual predators. But terrorist sexual predators are worse than both: A sum is always more than its component parts.

Finally, FOX interrupted its broadcast to alert me that officials in Dallas arrested a "young Muslim man" for attempting to car bomb a government building. They did not have any pictures to show. They just showed the man's long, Arab-looking name underneath a menacing-looking silhouette. FOX told me that they "would bring me more on this story as soon as they could."

Why were these the top stories? Did 9/11 just happen or something? Is it still October 2001? Does the whole Muslim fear-mongering thing still have traction among FOX viewers? Michael Moore famously mocked FOX for its relentless fixation on "evil Arabs" and vague, terrifying plots in 2004's "Fahrenheit 9/11." It was funny then, even relatively soon after 9/11. But now it's been eight years; Bush's fear-mongering has decayed beyond passe. Any assertion that bloodthirsty Muslims lurk among us now seems pathetically old-fashioned, even hackneyed. It's not 2001 anymore; there's no more Anthrax in the air. People are more worried about Medicaid now than Osama bin Laden. And for good reason: Because health care in America affects many, many more Americans than any terrorist ever will.

But for some reason FOX didn't get the memo or check the calendar. On FOX, it's still a brave battle between proud Americans and evil Muslims with long names and skull caps. Black is still black and white is still white. Hey, I guess it sells; Rupert Murdoch doesn't dish stuff that doesn't sell, truth or fashion be damned.

This is not the only funny thing I saw on the news tonight. I also saw coverage about all the world leaders at the United Nations this week. Leaving all media bias aside (ie, United States and Israel = good; Iran and Libya = bad), I just have to say how silly "collective security" really is. Woodrow Wilson started the League of Nations back in 1920. He wanted Nations to get together and respectfully solve differences without war or acrimony. It didn't work. Franklin Roosevelt tried to do the same when he conceived the United Nations in 1945. There have not been any world wars since then, but just one look at history shows that there has not been too much world peace since the United Nations started hosting world leaders.

But I am not writing about diplomacy. I am writing about the utter foolishness of U.N. speeches. No one listens to them for their substance. No one even really hopes to change minds or solve problems with them. Rather, people listen to them solely for theatrical value. After all, it's all-too predictable what happens, and it is all very staged. For example, Moammar Ghadaffi got up yesterday and railed against Israel, capitalism and the United States for over 90 minutes. As if on cue, the U.S. and Israeli delegations theatrically walked out. They did the same thing when Iran's Ahmedinijad got up and made similar points. Today, Israel's Prime Minister got up and spoke. Libya's and Iran's delegations theatrically walked out. Then the Prime Minister denounced every delegation that did not walk out on Libya's and Iran's speeches the day before.

So is this international diplomacy? Is this genuine dialogue? No--it is classic theater: Simple, emotional, sensational, uncomplicated. The orators speak in grand, emotional tones. They play to the audience. Their rhetoric delights some and outrages others. It is intentional. Delighted delegations applaud; outraged ones visibly walk out. Then later orators chastise delegates who did not walk out on speeches the orators did not like.

Funny stuff. But the sad part is that after all the fun and games, the world's differences remain starkly unchanged.

Wednesday, September 23, 2009


It's unusual for me to go several days without writing a post. Since September last year, I have weathered many changes. I even moved from Chicago to New York. But I always managed to keep my mornings free to craft out the myriad ideas I had assembled for so long before I started writing this blog. This week, however, some real household problems sprang up that have denied me the chance to concentrate and write in the morning. Worse, they have made it hard for me to sleep, and I can't write anything when I'm exhausted.

I've never really written an "explanatory" post like this. But today I think it's appropriate because I really don't know when these hard times will end. My life partner is going through hell with medications; his troubles spill directly into my life. For the moment, I do not have any untroubled hours to spend writing. I have faith that things will improve soon, but I can't say how fast all this will pass. In the meantime, I must attend to some genuine stresses.

It is actually surprising that I have written for so long without a substantial interruption. But life rarely cooperates for long. I can't foresee how life will turn. I can't really even explain why things happen. I just need to step up and deal with them when life deals me funny cards.

Please feel free to browse me archives. And I promise to start posting again as soon as my circumstances permit.

I am so tired. I haven't slept a real night's sleep in about two weeks now. Please forgive me for suspending my writing until I get things under control here.


Monday, September 21, 2009



I know a lot of people in therapy. Pretty soon I might join them. In one way or another, everyone deals with emotional disturbance and unhappiness in our society. Life can be incredibly painful. After all, we live in a competitive world. We basically contend with two types of people: (1) Indifferent people who want to outdo us; and (2) people we love who are biologically bound to die one day. It is stressful to cope with high stakes and loss all the time. We suffer defeats, losses and setbacks every day. Freud said that it is "much easier to experience unhappiness than happiness." Civilization and its Discontents, 26 (Strachey trans. 1961). Sometimes unhappiness grinds us into submission, no matter how optimistic we try to be. In brief, life takes a toll, even if you had a relatively stable childhood. And that's a rarity.

Yet for all our vulnerability to unhappiness and emotional pain, we strive for love. See generally Civilization and its Discontents, 33-34. We think that love will counteract our unhappiness, or at least make it more bearable. But we seek a very specific kind of love: Love without conditions or qualifications. We want love without first fulfilling others' demands or acceding to others' conceptions about "what we should be." As simple as it sounds, we want people to love us "for who we are," without manipulation or expectation. Generally speaking, expectations result at least in stress and at most in unhappiness. Expectations create a disparity between our conceptions about the future and reality. When reality does not match the expectation, we feel failure or worse. "Love with expectations" results in serious emotional pain. But love without expectations--simple, unconditional love--results in emotional satisfaction, even euphoria. That is what we want from life--strongly positive emotions--because when we feel that good, nothing else can bring us down.

But this is exactly the problem. After all, it is almost impossible to find unconditional love in society. First, our entire social structure does not really value individual happiness. Rather, it merely expects objective economic productivity and "service." Those two basic goals do not require happiness. Quite the contrary, they typically induce unhappiness. Very few people are ever happy about being "objectively economically productive" for someone else, nor are they ever happy about serving some domineering economic master. Yet "success" in our society flows from "productivity" and "service." It does not matter whether a "successful man" feels happy while he productively serves. It does not affect the bottom line. Subjective, individual feelings, in other words, simply do not matter in this objective social scheme.

But what are human beings if not feeling creatures? In the final analysis, every man and woman is a unique entity with emotions and thoughts. Emotions and thoughts are entirely subjective. While they might mean nothing to society or the economy, they mean everything to the individual who thinks and feels. Unconditional love is one of the best feelings a person can experience. Society, however, could care less about it. It is not essential either to productivity or service. This is why unhappiness is so rampant, even among people who appear "successful" and "content." They may reach "objective" standards for social success, but miserably fail to satisfy their own "subjective" emotional needs. In a word, there is much more to life than success.

We should not be surprised that it is hard to find unconditional love in our society. After all, everything has conditions attached in the merciless commercial crucible of life. A condition means something that must be fulfilled before something else is given. It is "bargain-like:" "If you cut my grass, I will give you $100." It channels behavior: You don't get the $100 if you don’t cut the grass. No one does anything for anyone else in our society without imposing some condition on performance. Conditions allow people to induce behavior in others. They allow people to tyrannize and manipulate others for their own gain. This might be perfectly appropriate in cutthroat commerce. But conditions attach not just to contracts and business deals. Rather, they attach just as often to human affections.

We want unconditional love because we are accustomed to conditional love. I read an article in the New York Times last week arguing that modern psychiatry can be explained by reference to "selling unconditional love" in a society that rarely loves, and only conditionally when it does. According to the article, living with conditional love cripples us emotionally. It said that even our parents do not often love us unconditionally. Much to the contrary, they typically want to "control our behavior" by baiting us with love. The article claimed that parents could warp their children not just by scolding and criticizing them, but also by excessively praising them. Each case implicates "conditional love." Praise creates an internal urge for conformity in a child, leading him or her to modify behavior in order to win the praise. Parents only give praise when the child acts "as they wish;" that is conditional love. Without fulfilling the condition, the parent does not praise--and does not love. Praise, then, can be just as damaging as critique.

If parents do not love unconditionally, who will? That is a serious question. If our closest relatives do not love us "for who we are," can we expect commercial actors, bosses and clients to do so? Certainly not. In fact, in commerce we never expect unconditional relationships. We always know that someone wants something from us in return for what they give. As fundamental as that "bargain imperative" may be in commerce, it is anathema to our emotional needs. We might steel ourselves to conditional relationships as we move through life. But in the process we deny ourselves the one thing that might bring us happiness. We will never find unconditional love in commerce; we will never find it in our careers. We never even find it within our own families. People always want us to act in some way that benefits them, or at least matches their sentiments. It is never enough to "be who we are." To fulfill conditions, we must always "be someone else." That leads to emotional ruin in the end.

This is the psychiatrist's niche. The psychiatrist, unlike the boss, the parent, the admirer or even the sometime friend, staunchly empathizes with his patient no matter what. He listens attentively. He does not impose his own moral or family-based judgments on the patient's choices or lifestyle. He offers the love that the patient's own parents refused to give without conditions. This is modern therapy. It is a dose of unconditional love in a world without unconditional love. Perplexingly, however, it is also a commercial relationship. Therapists do not support their patients because they genuinely want to give unconditional love; they do it because they are on the clock. In this sense, they offer "unconditional love conditional upon payment," but even that is better than purely conditional love.

Unconditional love is a precious commodity. The fact that so many people turn to therapy testifies to its pricelessness in our emotional lives. No matter how much we cynically harden ourselves to commercial realities and its myriad conditions, we always must attend to our own emotional health. Unconditional love makes us feel really good. It makes us feel better than any hard-won, competitive victory. Nothing can match it because it affirms our own personality without any effort on our part. It feels good to be loved "simply for who we are" without having first performed a song and dance to placate some demanding taskmaster.

Taskmasters surround us in life. They come in many guises. Even our own spouses and parents might force us to act in unappealing ways to win their love. When it comes to love, no one wants to compete. If we compete for love, it is not really love. We want others to love us because we are who we are, not because we do things for them. But this is a hard thing to do in a world that consistently heaps us with conditions and expectations. This society does not make individual happiness a primary goal. So it leaves us to struggle--often vainly--to obtain it.

Saturday, September 19, 2009



By : Mr. Cornelius D. Zimmerman, Ph. D., Senior Fellow, The Employers' Coalition for Effective Stimulus Through Greater Executive Compensation; Former Director, Gerstein Industrial Paint Co., Inc.; Author, "Money Talks : Paying for Loyalty is OK" (Bantam Business Publications 1997); University of Pennsylvania Business School (M.B.A. 1969).

For over a year now, our government has assumed an unprecedented role in our economy. Following the disaster that befell Wall Street last autumn, Washington has literally foot the bill for private investment losses. If employers need extra cash for operations, they just need to ask the government for it. If a corporation is running low on money for executive bonuses, it just needs to fill out some forms claiming "economic difficulty" and it gets a fat federal check. Washington calls these measures "economic stimulus." Still, many companies feel embarrassed about taking government handouts. But as business owners and employers, we say this: Do not be ashamed to take free money.

As a general rule, we believe in hard work and earning your keep. When we raise our children, for instance, we teach them that nothing is free. We teach them that traditional, daily employment is the only way to respectably earn money. We even teach them to feel ashamed for accepting too much help from other people. After all, a good, zealous worker needs no extra help. If he does, that means he has failed somewhere. Put simply, we do not appreciate government efforts to help people who are too lazy to work, or people who fail. When you fail, that's your problem.

Still, we relax our stance when we benefit from government spending. Workers should feel ashamed to receive government help, but we do not feel ashamed when the government bails out our companies. After all, our companies are necessary to the economy. Employees are less necessary. Anyone can type data into a spreadsheet. But not everyone can sit at a Directors' meeting and ask blustering questions about finance. We are different. Without us, employees would not have a place to work and earn. In that sense, it is perfectly acceptable for major companies to receive government aid without any shame at all. In fact, we deserve it. When government gives major corporations money, it acknowledges our vital role in the national economy. We salute the Federal government for its recognition that private corporations must remain profitably funded in order to maintain our free market system.

Yet government's willingness to spend money to support private employers introduces new issues. How can businesses benefit most from government's new largesse? We founded The Employers' Coalition for Effective Stimulus to answer exactly that question. If government wants to spend money to help pay our bills and our executive salaries, we think it is important that government spend effectively. Effective spending means cutting away needless expenses and putting money in the right places. That means guaranteeing two basic things: (1) That executives continue to receive their pre-2008 salary levels; and (2) That companies can employ more people at livable wages. Executives must receive their old pay because no business professional will take risks without it, and companies must hire more people because more employees mean more profits for executives, particularly when government pays for them. Without profits for executives, the whole system collapses. Who would want to run a business without profit? Thus, when government spends money on private companies, it must bear these two goals in mind.

Stimulus is still a relatively new concept in Washington. We believe that Washington can benefit from executive consultation on stimulus programs. First, we insist that Washington increase stimulus for our companies. Americans want jobs. We can give them jobs if Washington gives us money to pay them (less a service fee payable as executive compensation). Washington knows that Americans want jobs. Yet it sabotages its own stimulus efforts by wasting money on things Americans don't want, like art. At present, Washington spends billions on extraneous initiatives like the "Federal Writers' Program," the "National Endowment for the Humanities," the "Federal Performing Arts Fund" and many other "artistic" endeavors. This is pure waste. Americans could care less about art. However much they cared about art in rosier times, they don't want it now. No one wants to look at paintings when they are unemployed; they want a job. In a word, jobs are more important than art.

By targeting useless spending such as the National Endowment for the Humanities and the Federal Sculpture Society, we free up cash for job creation. By streamlining Federal aid, we ensure that money goes where it is needed most: To private employers. When more government aid fills corporate accounts, that means more jobs. Yet when government wastes money on photography, essays and art history lectures, that means less money for private employers. And when that happens, Americans lose jobs. It is no answer to say that private employers can pay their own employees. That is not the point: The point is that more money for companies means even more jobs for Americans. Neither we nor the American people will further tolerate government spending that prevents Americans from getting jobs. Put simply, every time the government spends money on art, it costs thousands of American jobs. This must stop.

Art does not pay medical bills. It does not send children to private colleges, nor does it pay mortgages. Art does not buy furniture, groceries or electronics. In a word, it is useless. In difficult economic times like this, Americans do not need useless things. They need jobs. They need things that will save them from bankruptcy and ruin, not pornographic sculptures and left-wing theater pieces. The Coalition understands the American people: The American people want jobs, not art. We know that Americans would much rather have a job at the local insurance company than free admission to an exhibit on splatter painting. Stimulus will not reach its full potential until government halts competing support for art.

America does not need art. America needs stimulus that works, not decadent luxuries like painting and novel-writing. Cutting arts funding will help us on the path to universal private employment. But there are other ways to create jobs beyond effective stimulus for private employers. For example, the Federal government can provide funding to private entrepreneurs to round up and burn existing art. Just as government created ready jobs for unemployed workers in the 1930s, so too can it create ready work for the unemployed in 2009. There are millions of artworks in the United States. Unemployed people can immediately get back to work looking for them, seizing them and destroying them. Even more Americans can stack up paintings, while still others can feed them into fires--all for decent pay. Skilled contractors can build furnaces for artworks, keep them fueled, clean them and maintain them. Thousands more can drive trucks transporting artworks between furnaces. Unemployed accountants can count how many artworks are burned each day at each furnace, then draw up ledgers detailing trends and productivity. These measures will provide immediate relief to millions and pay them a dignified wage. Furthermore, they will give unemployed people hope and a new sense of national pride.

We can do this. We must simply start rounding up and burning art. This is stimulus that works.

Americans can do anything they put their minds to. When Americans have a purpose, they are stronger than anyone else on earth. We can survive this recession by reevaluating what it means to live in America. There is nothing wrong with accepting government assistance. When stimulus stimulates private spending on employment and executive compensation, everyone wins. Additionally, when government shows the people that it cares about their jobs and even creates work for them, they feel proud to live in a country that cares for them. We can accomplish all these goals by cutting arts funding and destroying existing art. Thousands of Americans need work. Millions more need hope. Effective government spending will ensure that they all get well-paying, private sector jobs within the next twelve months. Anyone who wants a job will have one. After all, anyone can burn art. Even disabled people can play a part by telling able-bodied workers where to find hidden art.

For over two hundred years, artwork has accumulated in the United States. Destroying it will take years. During that time, millions of Americans will receive excellent wages. They will be able to afford their own health insurance, feed their children and even buy homes. Destroying art will provide all these benefits. And what will we really lose? Americans would rather work than look at sculptures or drawings. Employers would rather make suitable profits than cut jobs. Yet this is precisely what they will have to do if government does not streamline its stimulus efforts. In today's economy, government cannot afford to waste money. It must ensure that every dollar results in job creation.

Let us move forward. We can overcome this depression without socialism. We must merely spend money where it counts: On private employers, not art. Spending money on art led this country into despair and depression. Let us take our prosperity back. It is time to spend money on things that Americans want: Jobs. By paying executive compensation and destroying art, Americans will get all the jobs they want.

Let us get back to work. If you are out of work, tell your Congressman to abolish arts funding. And mention that you are ready to help look for paintings, sculptures, sketches and picture books. We have a new mission as a people: To work, not to hoard wasteful art. Burning art will unite us all.

Better days are coming. That means more jobs and less art.

Friday, September 18, 2009


I had some unexpected "administrative business" pop up today and it cut straight into my most productive writing time. Thankfully, it appears I'll work through it quickly. So I'll be back in the writer's chair tomorrow morning.

Thanks to everyone for reading! I have a few ruthless satires in the pipe; I just need a few undisturbed, coffee-fueled hours to write them. One will offer a solution to the employment crisis and inspire everyone to get a job, even artists.

Until tomorrow,


Thursday, September 17, 2009



Two weeks ago, I visited St. Louis. I had never been there before. I grew up in Connecticut and I've spent most of my adult life in New York City. I lived and worked in Chicago for several years; I did not find people's attitudes all that different from people's attitudes in New York. For the most part, I liked Chicago. But before moving there, I had heard stories that it was "segregated" and "had a race problem." These stories gave me a preconception that everyone in Chicago was a racist and that it was "very white and conservative."

My experience contradicted all these preconceptions. Chicago is an extraordinarily Democratic city. Although it is 800 miles from the Atlantic, it is surprisingly cosmopolitan and progressive. New Yorkers are wrong to think it is a "sleepy, backward Midwestern town." Much to the contrary, it is as vibrant a place as you will find anywhere outside the Five Boroughs. And most Chicagoans are ferociously liberal: Republicans don't stand a chance in city government. True, the city is unashamedly corrupt. But benignly so. Sometimes people just like things the way they are, as long as everyone gets a nice paycheck. "Hey, who cares as long as no one gets hurt and everybody wins?" That's how it is in Chicago.

Does Chicago have a "race problem?" To answer that question, I don't think it's fair to single out Chicago. Every American city has a "race problem." Black people do not generally live in wealthy neighborhoods in any American city, and black people commit proportionately more poverty-related crime than whites in all urban areas. This is a "national issue." It holds true in Chicago. The city is economically segregated, and that means it is also racially segregated. Blacks live on the South and West Sides because it is cheaper than the North Side, where most whites live. Blacks do not live on the South and West Sides because government ordered blacks to live there; they live there because they are too poor to live in the white areas. Contrary to Justice Thomas' outrageous assertion, blacks do not live in ghettoes because they made "innocent private decisions including voluntary housing choices." See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S 701 (slip. op. at p. 51)(Thomas, J., concurring)(2007). For the most part, they have no choice.

New Yorkers mistake these economic realities for official racial discrimination. But the same thing happens in New York. New York is just as segregated as Chicago; white New Yorkers just see more black people on the street. Economic reality makes it impossible for blacks to live on the Upper East Side and downtown Manhattan, not governmental racism. While blacks might walk the streets in "white areas," they likely do not live there: They just took the subway. The same thing is true in Chicago's "white areas" : They just took the El.

In short, "race problems" exist in every American city, not just Chicago. Economic realities translate into racial realities. Government might not legislatively discriminate against blacks as it did a century ago. But private actors can achieve the same result simply by competing in the free market. Blacks stand at a material economic disadvantage in the United States. They cannot compete for housing, goods and services at the same level as whites. Thus, it is possible for cities to become "segregated" simply by action of "everyday commerce." This is generally what happens in northern cities like New York and Chicago.

I had all this in mind when I landed in St. Louis. I thought St. Louis would be like Chicago; after all, they are cities at opposite ends of the same State: Illinois. But this was no northern city. St. Louis was different. Whites lived in sprawling, palatial, mansion-like structures with gates and lush lawns. Just blocks away, blacks lived in dilapidated row houses with boarded windows. I stayed in a hotel with a steel fence and guards. All the servants were black. All the guests were white. White folk frolicked by the pool. Black folk trudged around outside the fence.

This was more than just economic segregation. This was real, social segregation. The great, unspoken reality in St. Louis was that black folk knew their place and white folk lorded over them. Unlike New York and Chicago, blacks did not even show up in places reserved for whites. They stayed home. They did not have a subway to get around, anyway.

Then it dawned on me: St. Louis was a southern city. I had never really seen a southern city. I did not like it at all. While New York and Chicago might guiltily acknowledge their "race problems," St. Louis had a "race problem" and didn't seem to mind it at all. After all, this was just the "way things were supposed to be." In New York and Chicago, everyone knows racism exists. But very few people acknowledge it publicly; they just let private commerce do its work. In St. Louis, by contrast, racism is just assumed. That jarred me.

Why did this jar me? After all, I routinely write about America's continuing racial woes. I am usually the first to point out that we do not live in a postracial society, and that racial problems in America encapsulate everything wrong with American civilization. But it is one thing to theorize and read about these problems; it is quite another to see them up close. Put simply, race problems exist in the United States because they are the poisonous legacy of slavery and State-sponsored discrimination. Not that many generations have passed since the law called black men "chattel property," and even fewer have passed since it was considered "good and legal" in the South to murder black men without trials for perceived offenses against "the social order." No matter how much we learn to be "politically correct" about these issues--and even to rue the conduct of our ancestors--this evil legacy lives on. And it undermines any claim that we live in a Nation of principle.

Racial problems in the North and the Midwest are relatively recent phenomena. They are essentially the "third chapter" in the history of racial intolerance in America after slavery and Reconstruction in the South. I did some reading and discovered that St. Louis was the first "northern" city to which southern blacks migrated in the early 20th Century. At that time, State-sponsored discrimination made life in the South virtually intolerable for blacks. While they might have been "legally equal" on paper, white mobs (some included judges and prosecutors) lynched hundreds every year. To escape life in southern society, many blacks looked north. St. Louis was right up the Mississippi River from the Deep South.

But their problems did not disappear once they arrived in St. Louis. They did not receive a warm welcome from ostensibly "progressive" northern whites. To the contrary, European immigrants and their descendants in St. Louis resented the idea that these "black interlopers" were stealing their jobs and "fraternizing with white women." After America entered World War I in 1917, tensions reached a boiling point. After factory owners began hiring blacks to replace white workers called off to war, white mobs marched on black neighborhoods. The Governor called in the National Guard, but in many cases the troops joined the mob and helped terrorize the black population. Over a three-day period, white mobs killed several dozen blacks and burned down their whole neighborhood. The police basically stood by and let the violence happen, tacitly supporting the white mob's position.

Something similar happened in Chicago two years later. As was true in St. Louis, thousands of blacks settled in Chicago in the early 20th Century. After World War I, thousands more returned from Europe to compete for jobs in the city. Whites and blacks informally agreed to "live in their own neighborhoods." They even respectively agreed not to use parts of the Lake Michigan beachfront reserved for the other race. But in 1919, a black boy dared to go swimming in "white waters." Several white boys threw rocks at him and he drowned. A dispute broke out between blacks and whites on the beach. When the police arrived, they arrested angry blacks rather than the white boys who threw the rocks. This led to rioting. As was the case in St. Louis, white mobs did the damage. They marched into black neighborhoods and burned almost everything in their path. They were just waiting for the opportunity to vent their anger about losing jobs to blacks. And as was true in St. Louis, the police tacitly supported the rioters by refusing to intervene against them.

I use these two examples to illustrate why we still have a "race problem" in the United States. Although they both took place 90 years ago, I think they have genuine relevance to modern urban issues involving race. For one, I find it perversely interesting that we call these disturbances--and others like them--"race riots." Who is the aggressor in a "race riot?" Who is the victim? In both St. Louis and Chicago, blacks were undeniably the victims, while the whites were the aggressors. Yet the term "race riot" implies that a "race" starts a riot. In American discourse, the word "race" generally implies "African-American." For deeply troublesome reasons, the word "race" conjures black men in the white mind. It conjures the perennial, uncomfortable, uneasy racial legacy that has remained with us since the Civil War and before. But in these "race riots," blacks did not cause disturbances to protest their inferior social standing. Unrest may well have been justified in the circumstances. Yet it was whites who caused the disturbances. And why? For economic reasons, and for "pride:" They did not like the idea that blacks threatened their jobs, swam "on their beaches" and "mixed with their women." These are not very noble reasons to riot.

This is not to say that blacks have not begun racial disturbances in our history. In 1992, for instance, black mobs rose up to protest the Rodney King police brutality verdict. But in that case, they did not severely damage white neighborhoods. They likely wanted to, but in the end they wound up burning their own property and some Asian-owned property. No matter who suffered injury, however, blacks rioted because they perceived a serious injustice, namely: that a supposedly "neutral" justice system failed to deliver justice against white police officers who visibly brutalized a black man on videotape. In this sense, "black-launched" race riots differ from "white-launched" race riots. Blacks riot to protest manifest injustice and betrayed principle. Whites riot to protect their jobs and bloodlines.

Race riots offer a revealing glimpse into the reasons why we still contend with smoldering "racial problems" in the United States. There is always tension between blacks and whites, not least because blacks know they stand a much lower chance to succeed in the free market system than their white counterparts. This resignation to failure has everything to do with the same destructive legacy that supported slavery and motivated the northern race riots. These are institutional problems that persevere over the generations, no matter what "legal adjustments" government makes. The fact that authorities generally stand by and let race riots occur--or, worse, join them--only reinforces black cynicism about their place in American society. If the police and courts tacitly condone lawlessness against blacks, how can we blame blacks for believing that the law does not stand for them?

Racism lives on in America because the law cannot touch it. It lives in men's minds. It finds expression in intrinsic social values that resist generational change. Law cannot change minds; it can only plunder pocket books and imprison bodies. Nor can law excise deeply-entrenched values. Racism smolders every day in every American city. Serious pressures--whether economic or ideological--bring the smolder into a flame: Race riots.

Throughout American history, we have seen the same pattern. Race riots honestly tell us what each race thinks and assumes about the other without subterfuge or pretense. Unlike language, violence is never subtle.

Wednesday, September 16, 2009



By : United States Special Master Douglas G. Bates, Esq. (Special Factfinder in Corporate Fraud Cases, United States District Court for the Southern District of Illinois) (2002-present); Lead Auditor & Senior Partner, Headmaster, Bates & Bobbitt LLP (1979-2002); University of Chicago Business School (M.B.A. 1979); University of Chicago School of Law (J.D. 1976); Certified Public Accountant; Women's Undergarment Enthusiast (since puberty).

Today, America faces a major policy crisis involving health care. Democrats want to comprehensively reform the system. They want to deliver European-style "universal coverage" to everyone living in the United States, even criminals and Mexicans. This is a fiscally irresponsible position. Thankfully, Republican opposition stands united against such wasteful policy. In contrast to the Democrats, Republicans aim to keep health coverage private, encourage private enterprise and keep taxes low. For Republicans, health coverage is important, but it remains everyone's individual financial responsibility to obtain it.

As Special Master for the United States District Court for the Southern District of Illinois, I support the Republican position on health care. I believe that universal health coverage would gravely undermine this country's respect for free enterprise and individual responsibility. Put simply, if the Federal government provides care to people too irresponsible to manage their own financial health, what message does that send about responsibility? Responsibility is essential to America. We cannot survive without it. Saving people from their own irresponsibility is not an option. That is why I oppose the Democrats on this issue. I believe in responsibility, not waste.

Nonetheless, I believe that the Federal government should provide other things to the American people. As a taxpayer and a gentleman, I believe that the Federal government should give me genuine stimulus once in a while. Health coverage is all well and good, but I for one would much rather be covered in other things. I speak for gentlemen all across the country when I say to the Federal government: "Forget free health coverage. Cover us with the breasts of Victoria's Secret models--female ones." I am not the only gentleman in this great country who can verifiably say that free breasts on my face would stimulate me far more than any $456 "stimulus package."

I believe that government should give back once in a while. More specifically, I believe that government should give fun things back once in a while. Who cares about boring stuff like health coverage? If the government wants to give away free coverage, let that coverage be exciting coverage. Being covered against illness and cancer is not exciting. By contrast, being covered by the feet, breasts, hands and long hair of beautiful Victoria's Secret Models (females only) is extremely exciting. If the government wants to give away free coverage, give us coverage we can believe in. As gentlemen, we can believe in free model breast coverage, not free health coverage.

We are American gentlemen and taxpayers. We made this country. Without us, the highways would fall apart and the military would run out of gas. I am not the only one who believes that American gentlemen deserve a reward for making this country as great as it is. True, we are gentlemen because we are decent people. Yet doesn't it make sense to reward people for doing a good job once in a while? We already have health coverage. For that reason, if the government gave us free health coverage, it wouldn't really be a reward. You do not reward a child by giving him a toy he already has. Rather, you reward a child by giving him a toy he doesn't have yet. The same principle applies to American taxpayer-gentlemen: We don't want universal health coverage. We want universal breast coverage.

Gentlemen are honest about their needs and obligations. Speaking honestly, I can say that I would very much rather have a Victoria's Secret Model's breast or toes in my face at government expense than an MRI at government expense. I can get an MRI simply by flashing my employer's health plan card at any reputable health care facility. Yet I cannot get a Victoria's Secret Model to sit on my face by flashing the same card at her. In fact, despite my relatively large income, investment portfolio and private health coverage, there is nothing that would induce a Victoria's Secret Model to sit on my face. After all, I am moderately obese, I have bad breath and a particularly odd-looking nose. Without government assistance, I would never be able to obtain Victoria's Secret Model breast coverage. But as a taxpayer and a gentleman, I deserve it. Why should only young, athletic, good-looking men obtain Victoria's Secret Model breast coverage? Why should I be punished for my pre-existing aesthetic conditions? This is inequality. And inequality is un-American.

In 21st Century America, we can do better. It is time to rethink what it means to live in a Federal Republic committed to its citizens. This does not mean that we should throw personal responsibility to the wind and pay for universal health coverage. Rather, it means that we should start rewarding responsible gentlemen for their contributions to American life. In my view, it more advisable to cover gentlemen's faces with Victoria's Secret Models' breasts than it is to cover every American against illness. Additionally, providing Universal Gentlemen's Breast Coverage would yield real returns for the American people. A gentleman with a model's breasts or buttocks covering his face is a more satisfied gentleman than a gentleman without comparable coverage. Satisfied gentlemen put a spring in their step and work harder. Motivated gentleman are more productive. More motivation means more productivity. And more productivity means more taxes and more wealth for America.

We can do all this for a relatively small price. As an auditor, accountant and settlement analyst for the Federal Courts, I can say with assurance that universal health coverage would break the Treasury. Furthermore, even if the government invests in universal health coverage, it would not necessarily yield tangible results. By contrast, Universal Gentlemen's Breast Coverage would cost far less than universal health coverage and yield instantaneous economic benefits. In my view, it is a no-brainer: Universal health coverage costs a lot and wins nothing; Universal Gentlemen's Breast Coverage costs little and wins a lot. When government spends money on coverage of any kind, I believe it should spend profitably, not wastefully. Universal Gentlemen's Breast Coverage will fulfill that mandate. By covering every gentleman-taxpayer's face with a Victoria's Secret breast or buttock, then, we not only spend government money in a prudent manner; we also provide genuine stimulus where it matters most.

Isn't it time that gentlemen get coverage they can believe in? Let us bring the health care debate into focus. As gentlemen with private health coverage, we don't care about wasteful, expensive reforms that will cost a fortune and return nothing for the investment. When it comes to health coverage, we just don't care. We take care of ourselves, as all responsible gentlemen should. But we still believe that government can spend money on coverage that matters, namely: Victoria's Secret Model Breast Coverage for responsible gentlemen nationwide. By providing breast coverage for hardworking gentlemen-taxpayers everywhere, we will make gentlemen happy. This is a prudent investment. After all, when gentlemen are happy--and fully covered in models' breasts from head to toe--there is nothing they can't do for this country.

This is about coverage. If we must spend money on coverage, let us do so in a way that rewards gentlemen for everything they have done for this great land. We must not fritter away our national treasure on expensive coverage that yields no profits. As a lifelong undergarment enthusiast, gentleman and Federal Special Master currently resident and domiciled in the Southern District of Illinois, I can say without hesitation that covering my face with Victoria's Secret Models' breasts at Federal expense will admirably advance this Nation's journey toward justice and prosperity for all. Because when gentlemen are covered in the breasts they want, they can do anything.

We stand at a critical junction in our Nation's history. The question is coverage. Let us choose the right coverage: Universal Gentlemen's Breast Coverage. This is our chance as a Nation to make the right decision.

Tuesday, September 15, 2009



Values play a huge role in the law. They infuse American legal doctrine just as they infuse all other associational activities in the United States. Still, values do not blare as loudly through the law as they blare through in more visible discourses, such as popular politics. In fact, values dominate the law in a much more subtle way. After all, according to popular understanding, the law "is blind." In other words, it is somehow detached, fair, unbiased, neutral, cerebral, rational and just, even though it governs biased parties and hotly contentious subject matter.

But it is a mistake to think that values do not infuse the law just as deeply as they infuse popular politics. Through ostensibly "fair" and "neutral" rules, our common law actually reinforces a dominant value system, namely: A complex, bewilderingly unbalanced system prizing industry, commerce, individual responsibility and vested property rights. Broadly speaking, legal rules favor those who own property. They provide predictable guidance in disputes over property, land, liability and money. They encourage unbridled property exchange. They arm property owners with numerous advantages to stop claims that their property or business injured someone. Superficially, the rules appeal to justice. Yet when push comes to shove, the common law's commitment to "vigorous, predictable commerce" and "personal responsibility" (a value judgment in itself) takes precedence over "abstractions." Lawyers who dedicate themselves to justice in practice all too often find themselves submerged in a world of unforgiving procedure and dizzying, often counterintuitive "everyday customs." When they insist on justice before grumbling judges with full dockets, they often invite ridicule rather than respect.

In the end, the common law is not about justice at all. Sometimes justice happens to flow from the rules. But it's not required.

To be a really effective lawyer in the United States, you have to possess certain values. Specifically, you need to have a basic respect for property rights, social distinctions, governmental institutions, order, "appropriateness," commercial activity and the notion that people exist in the world to profit from one another. These values all find expression in American legal rules. They are not necessarily "correct" or "just" values in themselves; they simply reflect dominant values. After all, law has always reflected dominant social values. Those with power dominate others. They obviously will want to brand their views about the world as somehow "official," "correct" and "sacred." In the West, commercial power generates practical power. That is why the common law so rigorously incorporates commercial values.

You cannot be a really effective lawyer if you do not wholeheartedly accept these values. If you have qualms about the notion that profit is the reason why human beings interact with each other, you will have difficulty advocating for a business client who claims he lost money in a deal. If you cannot understand why a person should lose a lawsuit because he filed something a day late due to unavoidable circumstances, you do not possess the "order values" (ie, "deadlines are deadlines") so necessary to bring reliability and predictability to commerce. If you find it repugnant that a client can get away with fraud by inserting the word "or" instead of "and," you are too morally sensitive to be a lawyer. Lawyers comply with rules and zealously manipulate them in order to win money for their clients. Those are the values necessary to be an "effective advocate" in our system. In the law, a conscience is not an asset. It is an impediment.

On some level, all lawyers know this. Until the late 1960s, Bar Associations in virtually every State refused to admit prospective attorneys who conceded membership in the communist party. Some Bar Associations even asked applicants whether they agreed with communist philosophy or Marxism. Even sympathizing with socialistic ideals was sufficient to deny admission to a hopeful lawyer. This may sound appalling to anyone who believes in the First Amendment. But for anyone who understands the values inherent in the common law, this hostility toward communism is hardly surprising. In fact, it is perfectly warranted.

Why is communism relevant to law practice in the United States? Simple: Because socialistic values clash fundamentally with the values enshrined in most common law doctrine. State Bar Associations correctly presumed that anyone who truly believed in Marxism would not be able to "effectively" or "zealously" represent clients in a capitalist system. After all, communism teaches hostility to free market enterprise, economic exploitation, private property ownership and power relationships built upon commercial inequality. It also teaches respect for the dignity and equality of man as an individual, not as a commercial "instrument." Given these values, no one who truly believes in communism could serve a client committed to owning more property, dominating more employees, making more profits, seizing more land and basically becoming richer than his neighbor.

For better or worse, lawyers in the common law system are essentially accessories to capitalistic enterprise. Their very craft defends these values. A communist lawyer, then, would be a walking contradiction.

Our Supreme Court ultimately concluded that States could not condition Bar admission upon matters of conscience or belief, including belief in communist principles. But this does not mean that communists make good lawyers. In fact, I think that States' former restrictions on communist sympathies among lawyers made abundant sense. In our system, after all, lawyers owe a duty to "zealously" represent clients. It is an "adversary system." One side fights to the figurative death for his client's interests, while the other does the same for his client's interests. In most cases, a client's "interests" mean "property interests:" Will the client make money or lose it? To be "zealous," the lawyer must do everything under the sun to vindicate those interests. How could he do that in good conscience if he believes in communism? How could he pull out all the rhetorical stops to either enrich one person or drive another into poverty? Quite simply, he could not. In fact, his communist principles would disable him from putting up a fight at all on behalf of someone who just wants to make more money. Lawyers are ineffective when something blocks their ability to fight tooth and nail for their clients. If a lawyer truly believes in communism, his beliefs will surely block him from advancing legal rules that result in unfairness, economic inequality, class distinction, exploitation and crass private profit. In this light, determining whether a future lawyer believes in communism has prime relevance on the question whether he can "effectively" represent a client.

I write all this to demonstrate that the law is neither neutral nor detached. Contrary to popular belief, it is not "blind," nor does it always fall fairly. Put simply, it is a human institution that voices the values of the society that creates it. In the United States, power created law to suit its purposes. For the most part, those purposes are commercial. Commercial values dominate the law just as much as they dominate the minds of those who practice them. Why do criminal penalties for theft increase according to the value of the goods stolen? Why is stealing a car worse than stealing an old shoe? Isn't the act the same? Why does the law disfavor restrictions on the ability to sell land? And why does the law equip landowners with defenses that make it easy for them to defeat the claims of people who suffer harm on their land?

In all these cases, the answer is the same: Because the law enforces the values of those who own property and seek to gain more. Common law rules make it easy for them to make profits, sell goods, sell land, develop land profitably and defeat lawsuits brought by those who suffer injury due to these activities. They all reflect a dominant value judgment. Those who write rules will naturally tilt the field in their own favor. This is precisely what property owners have done with the common law: They have inscribed their self-serving commercial values into the rules that govern our society. If you own, you're in luck. If you don't, you're not.

Those who own lots of property certainly want fairness and justice for themselves. They commit themselves to it on paper. But when fairness and justice interfere with vigorous commercial activity, "exceptions can be made" and "procedures must be followed." And they expect their lawyers to defend their values and their interests, not start mouthing about "justice." A client in our system does not want abstract justice; he wants "justice for me." Generally, that means making a profit or saving a potential loss.

Against this background, it is no surprise that State Bar Associations ostracized communists. Communists just do not fit in a club dedicated to greasing commercial wheels and furthering profit ambitions. In fact, they probably would gum up the works by talking about "extraneous issues," like avarice in society, inequality and sympathy for disadvantaged people.

Common law judges don't care about all that. They want to know whether the testator used the words "within twenty-one years of the death of a life in being at the time aforesaid," or whether a paper was stamped on the 14th rather than the 15th.

Justice? That doesn't help resolve a case. Rules do.

Monday, September 14, 2009



TO :
President Barack H. Obama

FROM : Kenneth Salazar (D-CO), Secretary of the Interior

RE : “Big Government Protests” in Washington, D.C. and Proposed Response

As you no doubt saw, throngs of angry people marched through Washington last week. They came from all over the country to denounce the Administration for “expanding government,” “raising taxes,” “dishonoring the military,” “destroying marriage,” “chastising banks,” “championing fairness” and “providing health care to all Americans.” Thankfully, our allies in the Press downplayed these disturbances. When they did cover the marches, they called them “insignificant,” “misguided” and pointed out various grammatical and syntactical errors on the protesters’ placards.

Yet our control over the media cannot conceal the fact that many Americans do not want our reforms. Our approval ratings are in decline. Protests such as this will continue to erupt out as we push health care reform and mortgage relief through Congress. The more help we give the American people, the more we can count on Republican protesters to march against socialism. And in the future, these revolts will not be so peaceful. After all, these are not environmentalists or gay rights advocates. These are guys from Nebraska who have known how to assemble a rifle blindfolded since before Kindergarten. Put simply, we must draft contingency plans for containing dissent against economic relief efforts. Whenever we try to help Americans get through the depression, we outrage millions.

This memo is intended to outline a plan for dealing with right-wing revolts. I understand that you always adopt a conciliatory—even cerebral—approach to dealing with dissent. I applaud your trust in reason and rational debate. But I must point out that there is no point reasoning with those who think that any action undertaken by a Democratic Congress amounts to “communism.” There is no point reasoning with people who are prepared to shoot you for daring to “expand government.” You may think this is mere error, and that your law school-style rhetoric will correct it with deft logic. You may think it is dignified to simply ignore this foolishness. Yet rhetoric is insufficient to neutralize the danger. And it is even more dangerous to sit idly by, dignified or not.

When dealing with right-wing protesters, we must speak to irrationality in a language it respects: Force. As Secretary of the Interior, it is my duty to ensure domestic tranquility and to preserve this Administration’s commitment to reform. We are not Sarah Palin; we do not think in absolutes. Nonetheless, our opposition does think in absolutes. Unless we fight fire with fire, they will infect the whole country with irrationality, rendering reform impossible.

To stop irrational disturbances, we must be prepared to show our strength. I advise against appealing to “unity” and “the national good” in order to defuse Republican outcry against reform. Rather, I advise a more aggressive approach. If the protesters think we’re advancing socialism, let us deal with them socialist-style. History provides several examples. When protesters rose up against the Chinese government in 1989, China did not grovel. It did not try to explain itself to the protesters. It did not address their concerns with respect, understanding or dignity. No, it sent in tanks and drove over anyone who still held a placard. Similarly, when the Czechs rose up against the Soviet Union in 1968, the Russians did not condescend to “explaining” why the protesters were wrong. They merely sent in tanks and arrested anyone who complained.

True, we are not a totalitarian government. But the lesson remains: When dealing with protesters, the best way to solve the problem is with tanks. If protesters think that every government initiative is “socialism” or “big government,” let us show them how big our government really is. Tanks are big, too. They can squash people too ignorant to see that we are not advocating socialism. If these protesters are unwilling to listen to our explanations about health care reform and mortgage relief, then let us reason with them with tanks.

I sincerely hope that we do not have to resort to these measures. I am confident that Americans will see that our reforms will not outlaw private employment, nor will they make it impossible for people with private health insurance to see doctors. I trust the American people. But recent disturbances do not bode well. From town hall meetings to the march in Washington last week, dissent is becoming ever more strident. Protesters say that we plan to outlaw money and create a Federal Wealth Redistribution Board that gives white taxpayers’ money to black mothers with at least seven children and two felony convictions. They say that we plan to commute all black criminals’ sentences and appoint them to high positions in the Federal government. They say we plan to force Burger King to give any American a free Whopper® if he asks for one. They even say that we plan to close down all retail stores and replace them with “government handout shops,” in which every American must wait in line for every single consumer commodity.

How can rhetoric correct these misconceptions? How can we possibly set the record straight with people who believe these things? You can orate until you are blue in the face with disgruntled Republicans. But if they believe that you plan to abolish the Supreme Court and create a new Court composed solely of illegal aliens, what can you say to change their minds? They will call you a liar or worse. Then they will say that you plan to make every Friday “National People’s Worker Day” and force all white children to sing “The Internationale” before saluting the flag in the morning. You might think these are imaginary fears. As Secretary of the Interior, however, I have information proving that protesters believe all these things. They even think you plan to create an African Assistance Fund that will transfer all the profits of the Fortune 500 to the Zambian National Treasury. To top it off, there is a substantial number who believe that you are neither an American citizen nor even an earthling; rather, they think you were born on the dark side of the moon. Put simply, you cannot trust your oratory or your knowledge as a constitutional scholar to prevail over people who believe these things.

Mr. President, you must trust tanks. If you wish to contain ever-growing Republican dissent against your vision for a more just America, you cannot depend on principle alone. You cannot depend upon reason or compassion. You cannot depend on goodwill or brotherly love. Republican protesters will label any effort to help the poor “socialism,” and they will call you a “moon-born, un-American communist dictator who wants to steal service sector jobs and give them to illiterate Mexican peasants.” You must be prepared to force these dissenters into line. If they think you want to “take away their freedom to contract,” tell them: “No I don’t,” but back it up with tanks. There’s nothing quite like tanks to reinforce your arguments. In a word, you’re not in Harvard Law School moot court anymore. You’re dealing with Republicans who bear arms. Logical arguments are all well and good. But logical arguments supported by tanks and artillery are even better.

Please consult with me as you plan your response to ever-growing Republican dissent. Discord is rising quickly. The more you talk about compassion, care and equality, the more resistance you will face. The more you talk about fairness, justice and peace, the more violence you will provoke. The more help you offer those crushed by economic disparity, the more unrest you will engender. There are strong forces arrayed against you, Mr. President. They are boiling over. They fight you now with words and recriminations. They are prepared to say anything about you, even that you were born on the moon. It is just a matter of time before their words transform into action. Today they march and call you Stalin. Tomorrow they will not be so civil. Only tanks will save you.

I am a practical man. Successful Presidents combine vision and theory with practical knowledge. Let me help you. As Secretary of the Interior, I know how to make crops grow and how to save pine trees. These are practical skills. I know nature. And I know how to deal with dangerous animals in the wild. Just as you must show force against a rabid grizzly bear, so too must you show force against rabid Republican protesters who call mortgage relief “communist big government tyranny.” When faced with a raging bull, you do not give a power point lecture about social justice or wealth inequality. Rather, you get a gun and shoot it before it kills you. These are practical skills. This is survival.

Do not give another inch, Mr. President. Enforce your vision with arguments and tanks, not just arguments. I know you do not wish to condescend to this, but this is the only practical way to avert disaster. You must defend yourself. If you continue to simply ignore those who label everything you do “socialism” and “big government,” you risk open revolt. To prevent this, simply use tanks when you must. I am certain that you will change at least a few peoples’ minds with tanks. In short, you have an opportunity to turn dissent into support. Tell the protesters: “No I am NOT obliterating the free market…and if you don’t believe me, here’s a tank in your face to prove it.” Or: “No I am NOT going to take away your private doctor…and if you don’t believe me, here’s another tank in your face.” This is not repression. This is merely “tank-assisted reasoning.” If protesters will not listen to reason alone, throw in some tanks to make your point.

There is no time to delay. You must no longer sit by while protesters make outlandish claims about your plans for America. I know you think it is dignified not to respond to these arguments. But you must start fighting back. As soon as the Republicans assemble to protest again, send in the tanks first, then make a speech about fairness and equality.

Do what is necessary. Reason with tanks. In short, Mr. President, sometimes you need to be a little irrational yourself if you want to triumph over irrationality.

Saturday, September 12, 2009



Legal doctrine abounds with verbal formulae. In law school, students memorize these shibboleths. They are the “magic spells” that allow them to “correctly” analyze any fact pattern. They rarely get a chance to reflect on what these “spells” mean from a grammatical perspective, or even whether they are prudent. Rather, law school students act under immense time pressure; they can do little but learn the formula and move on the next one. I doubt that many lawyers ever really ponder famous “legal formulae,” either. But since leaving the profession, I think about them all the time. And I see that there is nothing intrinsically prudent or sacred about them. They are merely administrative tools intended to bring illusory order to the nebulous disorder of human experience.

Everyone knows the phrase “beyond a reasonable doubt.” It appears all the time in movies, plays and even rap songs. Jay-Z named his debut album Reasonable Doubt. It has a mythical ring to it; it sounds appealing, even majestic. But does anyone really understand it? What is it? People assume that lawyers and judges understand it. They even think that it leads to the truth. Yet this is error. “Beyond a reasonable doubt” is an invention. It is a good invention because it seeks to protect individual liberty from wrongful criminal conviction. But it remains invention. It does not magically entitle judges and lawyers to find the truth.

“Beyond a reasonable doubt” is a “standard of proof” that governs criminal trials in the United States. In 1970, the Supreme Court famously held that the Constitution’s Due Process Clause requires every State government to apply the standard in every criminal trial. In re Winship, 397 U.S. 358 (1970). Unless the State proves “every fact necessary to constitute the crime charged beyond a reasonable doubt,” said the Court, it denies the defendant Due Process. Id. at 364 (emphasis added). This is hopeful language. After all, “beyond a reasonable doubt” means that a jury must indulge virtually every inconsistency in the evidence in the defendant’s favor. If there is a “tie,” it goes to the defendant—and individual liberty. It forces the government to put all “reasonable doubt” to rest about the defendant’s guilt before it can take away his liberty—or life.

But today I am not writing about constitutional law. I wrote about the law on this subject as a law student. “Beyond a reasonable doubt” interests me now because it impinges upon much larger concerns, like reason, truth, evidence and belief. Unlike many other legal doctrines, this one deals with facts: What do we believe about someone? What “actually happened?” More importantly, how “certain” must we be before we condemn someone to prison or death? And because “beyond a reasonable doubt” is a “verbal formula,” it has grammatical weaknesses. Lawyers do not think about these things. They just look to see what courts said about past cases.

What is the real issue, then? The real issue is evidence at trial. The State seeks either to imprison someone or execute him. It charges him with a crime, a written definition encompassing certain “bad behavior.” To convict him, it must put forward evidence proving that his conduct falls within the written definition. The prosecutor, jury and judge were not there to see this alleged “bad behavior.” There might be rumors about it. Perhaps there are witnesses; perhaps not. For better or worse, those called upon to decide a defendant’s fate must evaluate evidence to formulate the “truth” about “what actually happened.” No juror actually sensed or perceived the alleged event. They must engage in second-hand observation and decide whether something happened. Evidence gives them sensory fodder with which to judge “the truth.” They might hear a witness’ account or see a video recording. They might hear about footprints, or bloody gloves or even confessions. Yet they might also hear that witnesses have an interest in condemning the defendant, or that they have poor eyesight, or that they were distracted, or that the police coerced a confession. All these things constrain their Herculean task: To decide “the truth,” even if they were not there to perceive it.

Yet juries cannot simply speculate on the evidence. “Beyond a reasonable doubt” is an attempt to prevent juries from simply “imagining” things about the defendant. Rather, it forces them to look solely at the evidence. Remarkably, many courts over the centuries have not understood this, let alone the “everyday folk” who comprise juries. As recently as 1994, the Supreme Court dedicated an entire opinion struggling to explain what “reasonable doubt” actually means. Victor v. Nebraska; Sandoval v. California, 511 U.S. 1 (1994). There, the Court said that “reasonable doubt” does not mean “merely possible doubt,” but rather doubt that, “after consideration of all the evidence, leaves the jury with an abiding conviction, to a moral certainty, that the charge against the defendant is not true.” Id. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). It also said that “reasonable doubt:” “[W]ould cause a reasonable person, in one of the graver and more important transactions in life, to hesitate before accepting certain facts as true…it is doubt that, after full and fair consideration of the evidence, leaves you with and abiding conviction, to a moral certainty, that the accused committed the crime charged…you may be convinced beyond a reasonable doubt yet be fully aware that possibly you may be mistaken…you may find a defendant guilty upon the strong probabilities of the case, provided they are strong enough to exclude any doubt of his guilt that is reasonable…it is an actual and substantial doubt.” Victor v. Nebraska, 511 U.S. at 18.

Did the Court really need to spend so much time on the question? After all, it would have been easier to simply look at the phrase from a grammatical perspective. “Beyond” is a preposition that implies “movement past” a particular point. It implies linear motion: One moves along a path; one reaches a point on the path; one moves beyond the point. Anything before that point is not “beyond” the point. A jury can only convict a defendant if it decides that the evidence moves beyond “reasonable doubt” about his guilt. That is the magical point on the path. The evidence must move “past reasonable doubt” in order for the State to condemn the accused.

This is the point at which the Supreme Court should have considered “reasonable doubt.” The word “reasonable” appears everywhere in the law. Unfortunately, very few courts apply a consistent definition. In many cases, judges simply use the word to impose their own standards on certain behavior, namely, standards demanding steady living, hard work and “contribution to society with regard to the property rights of others.” Yet this “normalizing” definition really misses the point. After all, “reasonable” derives from “reason,” specifically, the human capacity to find truth through the senses. A person is “reasonable” if he believes only what his eyes, ears, nose and skin nerves tell him. It is “reasonable” to believe that snow fell last night if one awakes to see the ground covered in snow. It is verifiable. It is possible to infer the fact that snow fell while you slept from the fact that you see snow on the ground now. It is based on perceptible evidence. But it is not “reasonable” to believe that God exists, because no one sees God. Well, some people say they do, but do “reasonable people” believe them? No, they don’t. “Reasonable people” believe in their senses. They are empirical. They doubt anything that their senses do not perceive. For a person who trusts reason, “truth” is a matter of perception. If the person is not there to perceive an event, he listens to what others say about it, looks at physical residue concerning the event, then decides what “reasonably happened” based on things that can be perceived. This is “reasonable thinking.”

Reasonable doubt, then, is any doubt warranted by perceptible evidence. It rules out all speculation. It is purely evidence-based. The Supreme Court did not need to introduce extraneous concepts like “hesitancy” and “important life decisions” in order to explain “reasonable doubt.” It should merely have said that “reasonable doubt” refers solely to sensory evidence. It is doubt that arises from things we perceive. As long as the evidence permits us to doubt something, we have “reasonable doubt.” Doubt is not “reasonable” if we simply “imagine” it. And if we have “reasonable doubt” in any way, we have not moved “past” or “beyond” reasonable doubt. This is the grammatical way to understand the formula “beyond a reasonable doubt:” If we have it, we are not beyond it. We must acquit the defendant. But if we don’t have it and merely imagine it, we are beyond it. That means we must convict him.

I write all this because I think many lawyers and judges merely learn verbal formulae without seriously considering what the words mean. It is one thing to mouth phrases in order to score points on a test. It is quite another to genuinely ponder what those phrases mean in both grammatical and philosophical terms.

“Beyond a reasonable doubt” is a compelling phrase for several reasons. For one, it reinforces the law’s commitment to “reason” above all else. There is no faith in the law. Spirit is irrelevant. There is only body, property, the senses and “tangible things.” Reason can govern these things; yet it is banal. After all, there is nothing remarkable or spiritually uplifting about arguing over who saw what and who owes whom what dollar amount. These are the concerns of both reason and the law.

Second, “beyond a reasonable doubt” represents the law’s attempt to sort out facts. Courts have an immensely hard time doing this because facts are elusive. No matter what courts say, facts are never determinate. Facts merely represent belief based on second-hand evidence. When courts compose long “fact sections” in their opinions, they do not recount “exactly what happened.” They are merely reciting what the court below them “believed” after applying an arbitrary standard. Put simply, courts do not like talking about facts. Facts are messy. And in the end, they are arbitrary. Once one court believes a fact, it is almost impossible to alter that fact on appeal. This has nothing to do with “truth.” It has everything to do with “administrative convenience” and “interpretation.” Judges don’t reopen factual disputes because they inevitably degenerate into “he said she said” wars long after the event. Judges get to say: “OK, this is what happened,” even if their version is not really true. Interpretation is power: The power to announce the truth, even if untrue.

Reason can help us answer many questions about our existence. I trust it in all situations in which it is valid. I think it is valid in criminal law, because criminal law addresses matters to which reason applies: External behavior that can be “directly perceived” or “inferred.” It does not involve faith or belief; at least, in should not. “Beyond a reasonable doubt” is a good standard in criminal trials because it forces juries to apply only their reason, not their passions or their prejudices. Sensory evidence produces belief or doubt in the mind. When it produces doubt in a criminal case, the defendant must go free. In this sense, the standard favors liberty. As long as jurors understand what the words “reason” and “beyond” mean, they should never have a problem understanding the “beyond a reasonable doubt” standard.

But perhaps this is exactly the problem. After all, jurors—like all human beings—do not always use their reason at times when they should. Perhaps it is too much to expect that people will always be reasonable.