OESTERHOUDT STRIKES
At some point in our lives, we all wonder whether we are "good people." We live with others. We know how "good people" act. We have an intuitive sense about what makes a person "good." We even hear things about what makes a person "good:" They are friendly, kind, forbearing, compassionate, ethical, honest, caring, loving, trustworthy, gracious, forgiving and generous. "Good people" do not hurt you. They do what they say; and they apologize if they do not. They consider you at the same time they consider themselves. Aristotle and many other philosophers have written tomes about what it takes to be "good." It is an age-old question.
Of course, not everyone can agree on what is "good." You can't know you are a good person until you know what is good in the first place. What is good in one person's eyes may be bad in another. It is easy to lay down absolute standards for goodness. Yet like all ethical dilemmas, only we can say whether we subjectively feel that we have done right. Nonetheless, we can generally all agree that being "good" involves living without intent to injure other people. In that sense, being a "good person" essentially depends on positive motivation. And that positive motivation shines through in good actions toward others. Good people think selflessly; they refuse to hurt others to advance their interests. Bad people do the opposite; they are willing to hurt others to help themselves.
Being a good person is an individual lifestyle. It does not depend on how much money you make or what you do for a living. While it is possible to identify "objective" factors that hint whether a person is "good," true goodness comes from the heart, not from action alone. Enron fraud artists probably donated some money to charity the same year they robbed millions; that donation did not make them good people. No, being good is internal; and good shines through in external action. It is hard to verify. But everyone knows it when they see it.
It is refreshing to know a truly good person because they are rare. In our world, it is hard to be selfless and honorable. There are so many impulsions to discard goodness toward others in order to advance yourself. By the same token, it is hard to be patient. No one wants to wait or understand others' problems. Nor do they want to waste their time on others without reward. After all, people need to fend for themselves. They only have a limited time to get the job done. If they waste their time being nice to others, they might injure their own fortunes. And no one likes to do that. Put simply, we expect most people not to be good; our society frustrates goodness. That is why it is a welcome relief to meet a good person.
There is no formula to being a good person. Yet people throw the term around far more than they should. In many cases, they say someone is "good" solely because they act in a way that enriches them. That misunderstands what it means to be good. A truly good person acts with malice toward no one. The fact that a person acts the way another person wants them to does not make him good. To the contrary, expecting a person to act in a way that is beneficial to you undermines their value as an individual. It "instrumentalizes" them; it makes them pawns in a game you want to win. Just because someone pays you according to a contract does not make them "good." Merely fulfilling an external legal obligation is no shortcut to goodness. A good person holds to his word because it is his word, not because the law threatens him to do so.
Yet many people think that observing external obligations makes you "good." It is easy to make this mistake. After all, complying with the law seems like a "good" thing to do. But the law is indifferent to intention. And intention is the only thing that determines whether a person is good. In that sense, it is possible to seem good by fulfilling every imaginable legal standard. Yet it is also possible to have only bad intentions while complying with the law. You can be a total scoundrel yet do nothing illegal. If a person did not know you, they might say: "Well, he is law-abiding. So he must be a good person." To that extent, fulfilling external obligations can disguise ethical flaws.
I encountered an example to illustrate this easily confused distinction in the New York Post a few days ago. I read an article about some poor web designer who got run over in a Brooklyn street. See N.Y. Post, Horror hit-run in B'klyn, April 19, 2010 at p. 9. The article quoted his landlord. She spoke about his character: "He works. He comes home. He's a very good person (emphasis added)."
What did the landlord know about this guy? How did she know he was a "very good person?" She based her assessment on the fact that he works and comes home. What does that have to do with ethical goodness or pure intention? Nothing. If anything, it reveals that the landlord thinks the web designer was a "good person" solely because he went to his job, came home every night and ostensibly paid the rent. He might have been an utter scoundrel who doublecrossed his friends and broke women's hearts. Yet as far as the landlord was concerned, he was a "good person" because he adhered to his contractual obligations to pay rent. He also was a "good person" because he quietly went to his job and caused no disturbances.
I suppose this is what it takes to be a "good person" in a landlord's eyes. Landlord apply a "formula" for goodness: Have good credit; make an income; cause no trouble; pay your rent; keep your mouth shut; pay next month's rent; pay a late fee after the first. Your intentions do not matter. And "being a good person" means acting exactly the way the landlord wants. In this case, the landlord happened to like the way her tenant behaved because he did what enriched her. She morally approved him because his behavior coincided with her interests. His own ethical qualities did not influence her appraisal. It was "all about her." And that determined whether he was "good."
This gravely misunderstands what it means to be a "good person." A person is not "good" simply because he acts in a way that enriches another. Nor is he "good" simply because he adheres to contractual obligations under law. Rather, goodness is more subtle than that. There is no checklist. Action is not enough. It takes real reflection to see whether someone is good. Getting a rent check in the mail every month does not suffice to prove goodness.
Criminals and scallywags can mail rent checks, too. That does not make them good people.
But who has time to sit down and really think about character in our society? It seems we only care about character when we want to damage a foe with some embarrassing "flaw." And once again, we do that to merely to advance ourselves at their expense. By hurting them, we help ourselves. And hurting others is rarely good.
Showing posts with label Cynicism. Show all posts
Showing posts with label Cynicism. Show all posts
Friday, April 23, 2010
Wednesday, March 24, 2010
AN ETHICAL PRESIDENT? OBAMA, LINCOLN AND THE HEALTH CARE VICTORY
AN ESSAY
While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.
Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.
For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.
Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.
But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.
In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.
Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."
Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.
It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.
Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.
Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!
But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.
He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.
Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.
As I have always said, there is more to life than winning games.
While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.
Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.
For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.
Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.
But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.
In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.
Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."
Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.
It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.
Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.
Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!
But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.
He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.
Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.
As I have always said, there is more to life than winning games.
Tuesday, March 16, 2010
COMMERCE VERSUS JUSTICE : A REAL LIFE EXAMPLE
A REFLECTION
It took me a while to name this blog. I wanted to make it memorable. At the same time, I wanted it to reflect my life philosophy. I didn't want to sound pretentious; rather, I wanted to alert the reader to the big questions that animate me. And I also wanted to hint that I am at heart a "satirical rogue." That's why I added "free beer" at the end.
I chose "Reason," "Commerce" and "Justice" because those subjects focus my critical energy. Everything I write in some way relates to those three concepts. No matter what style I choose, those concepts unite my work.
Reason interests me because it encapsulates the human capacity for thought. Reason allegedly separates human beings from other animals. I write about reason's limitations, as well as its less-than-reasonable corollaries: Emotions, reflections, memories, impressions. My fixation on language also involves "reasoned" analysis. No matter the specific subject, however, I cast a critical eye on reason. I do not praise it as an inexorable pathway to truth. Indeed, I maintain a healthy skepticism for reason. I am a qualified empiricist: Reason is just one tool to help me understand existence. But I certainly don't put all my money on it. Too much unreasonable stuff happens in life. In that light, putting full trust in reason is not only unadvisable; it's also really disappointing.
Commerce offers me plentiful material for both satire and commentary. I define myself against commerce. Its values repel me. I do not like promoting myself. I do not like circulating resumes or kissing ass in interviews. I don't like wearing little costumes and going to work for private employers. I also don't like unfairness, inequality and hypocrisy. Commerce is rife with all three. Commerce also interests me because it is all about instrumentalism; and that clashes with my steadfast respect for the individual. In commerce, people play roles to make money: Master, servant, employer, employee, officer, director, customer, client…the list goes on. In the process, they lose their humanity. They also tend to exploit one another for crass personal gain. Commerce is the stage upon which to showcase my ruthless cynicism. It allows me to ironically brandish my own colors while criticizing things I fundamentally don't like.
Moreover, commerce is the perfect context in which to explore the tension between flexibility and principle. I often write about principles and honor. Commerce weighs against both. And sadly, my satires take doubled strength from the unfortunate truth that most people live for commerce rather than honor. Just listen to the radio or watch television. You will see and hear a lot more commercial messages than honorable ones.
Finally, justice draws me because it represents something larger than commerce. Justice has obsessed philosophers for millennia. I am just continuing down the road. In my work, justice stands as something hopeful, something better than ourselves, something transcendent, something to achieve. Justice is that great, intuitive feeling that something is right, not wrong. I do not identify a source for it. It just "is." I am no theologian. But in my heart I know when a situation is just. And I know when a situation is unjust. Injustice reeks. It seems to revolt against nature.
Justice is about ideals. It is about striving for something more than mere convenience or comfort. In that light, I use justice to champion my zeal for principle, honor, equality and "better" things. I use it to underline the key distinction between subjectivity and objectivity, because justice is largely subjective and cannot be objectively measured.
I also use justice as a backdrop to criticize the law. My fascination with ethics relates to my suspicion toward law. Justice and ethics go hand in hand. Ethics clashes with law. Therefore, law and justice clash, too. If you've spent any time studying my writing, you will know that I have very little respect for the law. If anything, I relegate law to the "commercial" category. And that it is ultimate insult, because law claims to advance justice. I make a few exceptions in my criticism for law, especially in cases where the law protects individual rights and enforces principles that restrain commerce. But I castigate everything else. In fact, law in most cases does not serve justice at all. To the contrary, in most cases it serves commerce--my perpetual theoretical foe.
In essence, then, my writing boils down to a battle between justice and commerce. I even thought about renaming my blog "Commerce Versus Justice," because that dichotomy really dominates my arguments. Something is either "just" or "just commercial." No matter what subject I address, chances are good that it involves hopeful ideals and crass realities. I lament the crass realities and wish for the hopeful ideals. The hopeful ideals are "justice." The crass realities are "commerce." In the "real world," commerce usually wins. In my eyes, it is usually an "unjust victory." And that "injustice" provides me fuel for criticism, commentary and satire.
But I decided against renaming my blog. Although I consistently allude to the struggle between commerce and justice, I refuse to abandon my commitment to "reason." There is a significant self-exploratory element to my writing. I write about people, their motivations, thoughts, dreams, hopes, happiness, unhappiness and machinations. While these things often involve commerce, they also implicate reason. I need to retain my focus on "reason" in order to continue writing about human beings--myself included. That is why I am going to keep my original three-part title. Well, four-part when you drink the free beer.
I sketch my thoughts about my blog's title in order to provide background for an important story. After all, one of the reasons I opened this blog was to therapeutically resolve difficulties that began to arise in my mind around 2006. In 2006, three critical events occurred in my life: (1) I finished my legal education; (2) My father died; and (3) I rejected law practice on principle. In essence, my life expectations completely changed. For one, I began thinking about death more than I ever had before. Second, after spending three years submerged in legal study, I recognized that I had no place in legal practice. That forced me to reevaluate my life in a very basic way. Beginning in 2006, I started to understand the distinction between commerce and justice. And when my father died, I used my reason to reflect on life. My philosophical fixation on reason, commerce and justice had begun.
I was not a child anymore. I was suddenly an adult. And life was full of trouble. Wrenching, inscrutable trouble.
In 2007, my focus on reason, commerce and justice sharpened even more. As I have written in several other contexts over the years, 2007 was the year in which my life partner, Steve, suffered a life-altering accident. I have not gone into great detail about the event. Neither has Steve. Yet I am painfully aware of it because I lived through its aftermath. And in truth, Steve's story perfectly illustrates the tension between commerce and justice. In this sense, Steve's story cemented my theoretical focus with a real life example.
Late on August 1, 2007, Steve went to work out at an all-night gym in Chicago. Back in those days, we used to go our own ways. We stayed out late alone sometimes and it never mattered. I went to bed about midnight. At about 2:15 AM, I got a phone call from the Illinois Masonic Hospital. "Are you Steve's partner?" someone asked. Half-asleep, I replied: "Yes. What is it?" "Steve has been badly burned. He wants you to visit him." I could not really understand what that meant, but I was stunned. "I'll be right over," I think I said. Then I hung up. I sat on the edge of the bed for a minute or two thinking. Then I got up and pulled on my jeans. I had no idea what was in store.
I got to the emergency room about 3:00 AM. Steve was laying on a cot, incoherent, drenched in sweat. They had wrapped a huge bulky bandage on his right arm. I could see dark-red bloodstains on the upper part. It looked like his skin had peeled right off midshoulder. Steve managed to tell me that he had been burned in the gym's steam room. He said he had just walked in when suddenly a jet of steam burst from the wall and scorched his arm.
I did not really know what to make of his story at the time. He was delirious. He must have been in shock. He talked about our dog and his clothes. I stayed with him in the emergency room for about two hours while the hospital arranged a transfer to a burn center outside town. I dozed for a while on a folding chair. I remember when the emergency room staff wheeled him away and put him in the back of the ambulance. He was smiling. He said he would be fine. He told me to go home and get some sleep. He told me to meet him at the hospital the next day. Then they closed the ambulance doors. The ambulance rolled off into the brightening summer dawn.
I had a meeting with my law school dean later that morning. I think I wanted to talk to him about getting a job with a federal judge. I somehow managed to attend the meeting with a straight face. At the time, I thought Steve would be all right, so I don't think the meeting went badly. The dean told me he would "put a word in" for me with several judges. I was out within an hour. I immediately hopped in the car and went to visit Steve.
Steve was fine when I arrived. They had his arm suspended above him in a sling. The doctors said they were going to perform skin graft surgery on him at 9 AM the next day, August 3. I spent about 8 hours in Steve's hospital room, assuring him that everything would be all right. Steve was cheery that day. He was happy that I was at his side. I went home about 8 PM. At 9:30 PM, he called me and thanked me for being at the hospital during the day. I told him I wouldn't abandon him for the world. I also told him I would be there as soon as he came out of the recovery room after his surgery. He cried when I said that.
I went to bed that night confident that Steve would be fine. I thought they would just do the surgery, then he would be home in a week or so. I was tired, sure, but I did not think life would be much different after that day.
I got up on August 3 waiting for a phone call to let me know I could visit Steve after his surgery. At about 11:00 AM, I got a call from a nurse who told me the surgeon needed to speak with me. I figured the surgeon was just going to tell me that the surgery had gone well and I could visit. So I called the surgeon back. I didn't reach him. After two more tries, I did reach him. He told me to come to the hospital right away. That was all he said.
I was a little nervous at this point. I had never really spent much time around hospitals. I did not know the procedure for getting news about surgeries. I thought maybe the surgeon could only tell me details about the surgery in person, not on the phone. So I headed back over to the hospital. It was about a 40-minute drive. I remember George Benson's "Affirmation" was on the radio during the trip.
I made it to the hospital and parked my car. First I went to the gift shop. I bought Steve a "Get Well Soon" balloon and a teddy bear. Then, holding the balloon in one hand, I went to the main desk. I said I was here I visit Steve. The guard tapped the keyboard and said: "Burn ICU. Seventh floor."
Now I was getting more nervous: Why is he in the ICU? Why isn't he in the recovery room?
I followed the signs to the Burn ICU. I went through a few automatic double doors into a large room with a nurse's station in the middle. Patient rooms lined the walls in a big circle around the station. I asked one nurse: "I'm here to see Steve."
She pointed to a room on my left. It was full of doctors, nurses, interns, even executives in suits. I pushed my way in. Steve was unconscious on a bed, angled up. He was on a respirator. A thick silver tube stretched from the respirator into a hole punched through his throat. There were two tubes lined into his nostrils. More tubes funneled out from his arms. Wires were tacked on to his chest and legs. There must have been about twenty wires and tubes attached to his body. His mouth was wide open and his eyes were as if glued shut. His tongue was protruding from his mouth slightly and it looked completely parched. There was blood caked on the edges of his lips. Bleeping, whirring machines and monitors ringed his bed.
I let go of the balloon and covered my mouth with my hands. I left the room for minute to reflect on what I was seeing. At that moment, the anesthesiologist approached me and explained nervously that something went horribly wrong during the surgery. Apparently, Steve had a strong reaction to a particular anesthesia and it stopped his heart. He told me that he had jumped on top of Steve to perform CPR and that he finally got his pulse back after 53 seconds. After reviving him, they stabilized his blood pressure and rushed him to the ICU. He told me he was in an induced coma. They wanted to keep him motionless until they could place a stent in his heart. Apparently, his body had convulsed uncontrollably after his heart stopped.
I could not believe what I was hearing and seeing. Here was the man I had loved for seven years, reduced before me to a motionless vegetable. Here was the man who just two days before was strong, enterprising and courageous; and now he was on the verge of death. I felt utterly broken. I immediately thought about my father. Was I going to lose Steve, too, just a year later? What was this life? What was the point? Was I doomed to lose everyone I loved?
At that moment, I thought that Steve would die. At the very least, I thought he would never recover his brain function. The doctors were all very grave. They said: "We have no idea what will happen with him. But he did go without oxygen to the brain for over a minute." I just paced around the ICU all day. I made phone calls. Our best friend was flying in from New York that day. I took a break and picked him up at the airport. That was a good distraction; I needed support that day, and he gave it to me. We spent the rest of the day staring hopelessly at Steve on the respirator. We worried every time a machine made a noise. Finally, we left at about 8 PM.
Over the next two days, Steve was in critical condition. He could not open his eyes. I just sat at his side for hours at a time listening to the respirator and the other beeping machines that kept him alive.
On the third day, however, Steve suddenly opened his eyes. The paralytic had worn off. He looked around as if in a panic. Then he turned and saw me. His face glowed for an instant, then it crumpled into tears. He grabbed for my hand as the nurses struggled to keep all the tubes attached to his body. Tears streamed down my face. I clenched his hand and told him everything would be all right. I tried to explain what had happened, but it was obvious he could not comprehend what was wrong. He could not speak. He could mouth words, but the tracheal tube blocked his throat. Still, as pitiful as he appeared that day, I knew he would survive. It was a huge relief.
Ultimately, Steve stayed 33 more days in the hospital. I was there every day from morning to night. He got the stent he needed in his heart. He underwent three more skin graft surgeries to repair the arm. They had to shear skin off his thighs to replant it on his arm. At one point, the graft did not take; so they had to put cadaver skin on his arm as a "bedding." Toward the end of his stay, they took out the tracheal tube and he could speak again. His voice had changed and he lisped, but he could speak. There had been no brain damage. He was handicapped and slower, but he had survived. He went home September 5, 2007. The hospital bill came to something around $2,000,000.
In the months that followed, Steve pursued a legal case against the gym that caused his injuries. We hired a law firm to investigate and prosecute the claim. As a former trial lawyer, the case seemed a winner to me. There was nothing wrong with his arm before he went into the steam room on August 2. When he came out, he was permanently injured. His "special damages" amounted to at least $2,000,000, not to mention the "loss of a normal life," "disfigurement," "pain and suffering" and "mental anguish." There was no quarrel that the gym's facilities caused these injuries and Steve had no control over those facilities. Based on my experience, I estimated Steve's case at around $7,000,000.
Despite these compelling facts, the case went poorly. For its part, the gym denied it had done anything wrong. It actually came forward with some questionable "incident reports" that said that Steve "laid down in front of the steam vent" and "caused his own injury." The gym manager--who was not there on August 2--claimed that Steve must have "passed out in the steam room," then fallen in front of the vent for a long time. Yet the medical records all corroborated Steve's story. And the emergency responders who took him from the gym said nothing about "fainting" or "falling." They did not treat him as they would have treated someone who had just fainted. Steve's surgeon even said there was no evidence of a fall.
Still, our lawyers found the gym's self-serving reports troublesome. For some reason, they thought that if the gym's story were true, then Steve could not win the case. Yet Steve always told the same story about how he was injured: He walked into the steam room and a jet of steam suddenly burst from the wall. The gym did not provide warnings anywhere about steam vents. It was a very big steam room with several blind corners and crannies. I had been in it myself and often found it difficult to determine where steam was coming from. That is why it did not surprise me when Steve said the steam took him by surprise.
And no matter what story people believed, the logic of the case seemed obvious to me: You shouldn't allow access to something on your property that can cause an injury as bad as Steve's. It's almost like letting a wild animal loose in your house during a dinner party.
But our lawyers did not see it that way. They said they could never sell Steve's story to a jury. They said they could not convince people that steam could emanate from the wall when the pictures showed the vents were only at ankle level. They did not acknowledge the fact, however, that they took the pictures almost a year after the event. Who knows what "improvements" the gym had made in the intervening time.
Yet all these rationalizations took a back seat to an even more compelling problem for our lawyers: They discovered that the gym did not have any liability insurance. Liability insurance means that an insurance company pays if someone gets injured on your land. If you don't have liability insurance, an injured person can go directly after your assets. But if you have no assets--or if the assets are insufficient to cover the injury--it makes little sense for an injured person to pursue you. After all, it takes years to win a judgment, let alone collect on one. Insurance companies shorten the time needed to get money from an accident. Without insurance, most injury lawyers don't waste their time on cases, even if they are meritorious. After all, they don't get paid until they win. If they spend 5 years working a case, then discover no pot of gold at the end of the rainbow, they will have wasted 5 years for nothing. That is a terrifying prospect for a lawyer trying to pay his rent.
So our lawyers fired us. They never said that the gym's insurance situation was the reason they turned us away. But it was obvious to me. The gym got away scot-free because it strategically decided not to buy liability insurance. The gym knew that no personal injury lawyer would waste his time pursuing an entity without insurance, so it just did not buy insurance. In essence, it insured itself against lawsuits by refusing to insure. It understood that civil litigation is a time-consuming, expensive business. So it correctly guessed that most lawyers would avoid a case that does not promise a quick insurance payout.
In short, the gym acted in a commercially prudent manner. It minimized its liabilities. It saved money.
But Steve suffered injustice for it. Steve's life changed because of the gym's conduct. It offered its facilities to the public for a fee. Those facilities nearly killed Steve and gutted his entire existence, not to mention mine. And due to the gym's strategic failure to buy liability insurance, Steve will not even receive the psychic satisfaction that the law avenged the hurt he endured. Put simply, Steve did not get justice. The law failed him.
Or did it? Steve's case confirms me that the law does not serve justice. If it did, lawyers would have flocked to represent him. Yet none did. From an intuitive perspective, Steve suffered a gross injustice due to another's negligence. No one should ever have to endure such clear wrongs in life.
But the lawyers did not flock to his aid because justice does not motivate them. Avenging injustice, after all, does not necessarily pay the bills. Paying the bills is a quintessentially commercial function. And lawyers did not take Steve's case because they could not assure themselves that it would be "worth the investment." It did not matter that he suffered injustice. Rather, his case was not "commercially viable" because the gym did not have insurance.
In Steve's case, commerce won out over justice. That's a lesson in law for you.
I have no more illusions about the law. It is a business like any other. If a case doesn’t promise a quick profit, no lawyer will take it, even if a person has suffered obvious injustice.
It took me a while to name this blog. I wanted to make it memorable. At the same time, I wanted it to reflect my life philosophy. I didn't want to sound pretentious; rather, I wanted to alert the reader to the big questions that animate me. And I also wanted to hint that I am at heart a "satirical rogue." That's why I added "free beer" at the end.
I chose "Reason," "Commerce" and "Justice" because those subjects focus my critical energy. Everything I write in some way relates to those three concepts. No matter what style I choose, those concepts unite my work.
Reason interests me because it encapsulates the human capacity for thought. Reason allegedly separates human beings from other animals. I write about reason's limitations, as well as its less-than-reasonable corollaries: Emotions, reflections, memories, impressions. My fixation on language also involves "reasoned" analysis. No matter the specific subject, however, I cast a critical eye on reason. I do not praise it as an inexorable pathway to truth. Indeed, I maintain a healthy skepticism for reason. I am a qualified empiricist: Reason is just one tool to help me understand existence. But I certainly don't put all my money on it. Too much unreasonable stuff happens in life. In that light, putting full trust in reason is not only unadvisable; it's also really disappointing.
Commerce offers me plentiful material for both satire and commentary. I define myself against commerce. Its values repel me. I do not like promoting myself. I do not like circulating resumes or kissing ass in interviews. I don't like wearing little costumes and going to work for private employers. I also don't like unfairness, inequality and hypocrisy. Commerce is rife with all three. Commerce also interests me because it is all about instrumentalism; and that clashes with my steadfast respect for the individual. In commerce, people play roles to make money: Master, servant, employer, employee, officer, director, customer, client…the list goes on. In the process, they lose their humanity. They also tend to exploit one another for crass personal gain. Commerce is the stage upon which to showcase my ruthless cynicism. It allows me to ironically brandish my own colors while criticizing things I fundamentally don't like.
Moreover, commerce is the perfect context in which to explore the tension between flexibility and principle. I often write about principles and honor. Commerce weighs against both. And sadly, my satires take doubled strength from the unfortunate truth that most people live for commerce rather than honor. Just listen to the radio or watch television. You will see and hear a lot more commercial messages than honorable ones.
Finally, justice draws me because it represents something larger than commerce. Justice has obsessed philosophers for millennia. I am just continuing down the road. In my work, justice stands as something hopeful, something better than ourselves, something transcendent, something to achieve. Justice is that great, intuitive feeling that something is right, not wrong. I do not identify a source for it. It just "is." I am no theologian. But in my heart I know when a situation is just. And I know when a situation is unjust. Injustice reeks. It seems to revolt against nature.
Justice is about ideals. It is about striving for something more than mere convenience or comfort. In that light, I use justice to champion my zeal for principle, honor, equality and "better" things. I use it to underline the key distinction between subjectivity and objectivity, because justice is largely subjective and cannot be objectively measured.
I also use justice as a backdrop to criticize the law. My fascination with ethics relates to my suspicion toward law. Justice and ethics go hand in hand. Ethics clashes with law. Therefore, law and justice clash, too. If you've spent any time studying my writing, you will know that I have very little respect for the law. If anything, I relegate law to the "commercial" category. And that it is ultimate insult, because law claims to advance justice. I make a few exceptions in my criticism for law, especially in cases where the law protects individual rights and enforces principles that restrain commerce. But I castigate everything else. In fact, law in most cases does not serve justice at all. To the contrary, in most cases it serves commerce--my perpetual theoretical foe.
In essence, then, my writing boils down to a battle between justice and commerce. I even thought about renaming my blog "Commerce Versus Justice," because that dichotomy really dominates my arguments. Something is either "just" or "just commercial." No matter what subject I address, chances are good that it involves hopeful ideals and crass realities. I lament the crass realities and wish for the hopeful ideals. The hopeful ideals are "justice." The crass realities are "commerce." In the "real world," commerce usually wins. In my eyes, it is usually an "unjust victory." And that "injustice" provides me fuel for criticism, commentary and satire.
But I decided against renaming my blog. Although I consistently allude to the struggle between commerce and justice, I refuse to abandon my commitment to "reason." There is a significant self-exploratory element to my writing. I write about people, their motivations, thoughts, dreams, hopes, happiness, unhappiness and machinations. While these things often involve commerce, they also implicate reason. I need to retain my focus on "reason" in order to continue writing about human beings--myself included. That is why I am going to keep my original three-part title. Well, four-part when you drink the free beer.
I sketch my thoughts about my blog's title in order to provide background for an important story. After all, one of the reasons I opened this blog was to therapeutically resolve difficulties that began to arise in my mind around 2006. In 2006, three critical events occurred in my life: (1) I finished my legal education; (2) My father died; and (3) I rejected law practice on principle. In essence, my life expectations completely changed. For one, I began thinking about death more than I ever had before. Second, after spending three years submerged in legal study, I recognized that I had no place in legal practice. That forced me to reevaluate my life in a very basic way. Beginning in 2006, I started to understand the distinction between commerce and justice. And when my father died, I used my reason to reflect on life. My philosophical fixation on reason, commerce and justice had begun.
I was not a child anymore. I was suddenly an adult. And life was full of trouble. Wrenching, inscrutable trouble.
In 2007, my focus on reason, commerce and justice sharpened even more. As I have written in several other contexts over the years, 2007 was the year in which my life partner, Steve, suffered a life-altering accident. I have not gone into great detail about the event. Neither has Steve. Yet I am painfully aware of it because I lived through its aftermath. And in truth, Steve's story perfectly illustrates the tension between commerce and justice. In this sense, Steve's story cemented my theoretical focus with a real life example.
Late on August 1, 2007, Steve went to work out at an all-night gym in Chicago. Back in those days, we used to go our own ways. We stayed out late alone sometimes and it never mattered. I went to bed about midnight. At about 2:15 AM, I got a phone call from the Illinois Masonic Hospital. "Are you Steve's partner?" someone asked. Half-asleep, I replied: "Yes. What is it?" "Steve has been badly burned. He wants you to visit him." I could not really understand what that meant, but I was stunned. "I'll be right over," I think I said. Then I hung up. I sat on the edge of the bed for a minute or two thinking. Then I got up and pulled on my jeans. I had no idea what was in store.
I got to the emergency room about 3:00 AM. Steve was laying on a cot, incoherent, drenched in sweat. They had wrapped a huge bulky bandage on his right arm. I could see dark-red bloodstains on the upper part. It looked like his skin had peeled right off midshoulder. Steve managed to tell me that he had been burned in the gym's steam room. He said he had just walked in when suddenly a jet of steam burst from the wall and scorched his arm.
I did not really know what to make of his story at the time. He was delirious. He must have been in shock. He talked about our dog and his clothes. I stayed with him in the emergency room for about two hours while the hospital arranged a transfer to a burn center outside town. I dozed for a while on a folding chair. I remember when the emergency room staff wheeled him away and put him in the back of the ambulance. He was smiling. He said he would be fine. He told me to go home and get some sleep. He told me to meet him at the hospital the next day. Then they closed the ambulance doors. The ambulance rolled off into the brightening summer dawn.
I had a meeting with my law school dean later that morning. I think I wanted to talk to him about getting a job with a federal judge. I somehow managed to attend the meeting with a straight face. At the time, I thought Steve would be all right, so I don't think the meeting went badly. The dean told me he would "put a word in" for me with several judges. I was out within an hour. I immediately hopped in the car and went to visit Steve.
Steve was fine when I arrived. They had his arm suspended above him in a sling. The doctors said they were going to perform skin graft surgery on him at 9 AM the next day, August 3. I spent about 8 hours in Steve's hospital room, assuring him that everything would be all right. Steve was cheery that day. He was happy that I was at his side. I went home about 8 PM. At 9:30 PM, he called me and thanked me for being at the hospital during the day. I told him I wouldn't abandon him for the world. I also told him I would be there as soon as he came out of the recovery room after his surgery. He cried when I said that.
I went to bed that night confident that Steve would be fine. I thought they would just do the surgery, then he would be home in a week or so. I was tired, sure, but I did not think life would be much different after that day.
I got up on August 3 waiting for a phone call to let me know I could visit Steve after his surgery. At about 11:00 AM, I got a call from a nurse who told me the surgeon needed to speak with me. I figured the surgeon was just going to tell me that the surgery had gone well and I could visit. So I called the surgeon back. I didn't reach him. After two more tries, I did reach him. He told me to come to the hospital right away. That was all he said.
I was a little nervous at this point. I had never really spent much time around hospitals. I did not know the procedure for getting news about surgeries. I thought maybe the surgeon could only tell me details about the surgery in person, not on the phone. So I headed back over to the hospital. It was about a 40-minute drive. I remember George Benson's "Affirmation" was on the radio during the trip.
I made it to the hospital and parked my car. First I went to the gift shop. I bought Steve a "Get Well Soon" balloon and a teddy bear. Then, holding the balloon in one hand, I went to the main desk. I said I was here I visit Steve. The guard tapped the keyboard and said: "Burn ICU. Seventh floor."
Now I was getting more nervous: Why is he in the ICU? Why isn't he in the recovery room?
I followed the signs to the Burn ICU. I went through a few automatic double doors into a large room with a nurse's station in the middle. Patient rooms lined the walls in a big circle around the station. I asked one nurse: "I'm here to see Steve."
She pointed to a room on my left. It was full of doctors, nurses, interns, even executives in suits. I pushed my way in. Steve was unconscious on a bed, angled up. He was on a respirator. A thick silver tube stretched from the respirator into a hole punched through his throat. There were two tubes lined into his nostrils. More tubes funneled out from his arms. Wires were tacked on to his chest and legs. There must have been about twenty wires and tubes attached to his body. His mouth was wide open and his eyes were as if glued shut. His tongue was protruding from his mouth slightly and it looked completely parched. There was blood caked on the edges of his lips. Bleeping, whirring machines and monitors ringed his bed.
I let go of the balloon and covered my mouth with my hands. I left the room for minute to reflect on what I was seeing. At that moment, the anesthesiologist approached me and explained nervously that something went horribly wrong during the surgery. Apparently, Steve had a strong reaction to a particular anesthesia and it stopped his heart. He told me that he had jumped on top of Steve to perform CPR and that he finally got his pulse back after 53 seconds. After reviving him, they stabilized his blood pressure and rushed him to the ICU. He told me he was in an induced coma. They wanted to keep him motionless until they could place a stent in his heart. Apparently, his body had convulsed uncontrollably after his heart stopped.
I could not believe what I was hearing and seeing. Here was the man I had loved for seven years, reduced before me to a motionless vegetable. Here was the man who just two days before was strong, enterprising and courageous; and now he was on the verge of death. I felt utterly broken. I immediately thought about my father. Was I going to lose Steve, too, just a year later? What was this life? What was the point? Was I doomed to lose everyone I loved?
At that moment, I thought that Steve would die. At the very least, I thought he would never recover his brain function. The doctors were all very grave. They said: "We have no idea what will happen with him. But he did go without oxygen to the brain for over a minute." I just paced around the ICU all day. I made phone calls. Our best friend was flying in from New York that day. I took a break and picked him up at the airport. That was a good distraction; I needed support that day, and he gave it to me. We spent the rest of the day staring hopelessly at Steve on the respirator. We worried every time a machine made a noise. Finally, we left at about 8 PM.
Over the next two days, Steve was in critical condition. He could not open his eyes. I just sat at his side for hours at a time listening to the respirator and the other beeping machines that kept him alive.
On the third day, however, Steve suddenly opened his eyes. The paralytic had worn off. He looked around as if in a panic. Then he turned and saw me. His face glowed for an instant, then it crumpled into tears. He grabbed for my hand as the nurses struggled to keep all the tubes attached to his body. Tears streamed down my face. I clenched his hand and told him everything would be all right. I tried to explain what had happened, but it was obvious he could not comprehend what was wrong. He could not speak. He could mouth words, but the tracheal tube blocked his throat. Still, as pitiful as he appeared that day, I knew he would survive. It was a huge relief.
Ultimately, Steve stayed 33 more days in the hospital. I was there every day from morning to night. He got the stent he needed in his heart. He underwent three more skin graft surgeries to repair the arm. They had to shear skin off his thighs to replant it on his arm. At one point, the graft did not take; so they had to put cadaver skin on his arm as a "bedding." Toward the end of his stay, they took out the tracheal tube and he could speak again. His voice had changed and he lisped, but he could speak. There had been no brain damage. He was handicapped and slower, but he had survived. He went home September 5, 2007. The hospital bill came to something around $2,000,000.
In the months that followed, Steve pursued a legal case against the gym that caused his injuries. We hired a law firm to investigate and prosecute the claim. As a former trial lawyer, the case seemed a winner to me. There was nothing wrong with his arm before he went into the steam room on August 2. When he came out, he was permanently injured. His "special damages" amounted to at least $2,000,000, not to mention the "loss of a normal life," "disfigurement," "pain and suffering" and "mental anguish." There was no quarrel that the gym's facilities caused these injuries and Steve had no control over those facilities. Based on my experience, I estimated Steve's case at around $7,000,000.
Despite these compelling facts, the case went poorly. For its part, the gym denied it had done anything wrong. It actually came forward with some questionable "incident reports" that said that Steve "laid down in front of the steam vent" and "caused his own injury." The gym manager--who was not there on August 2--claimed that Steve must have "passed out in the steam room," then fallen in front of the vent for a long time. Yet the medical records all corroborated Steve's story. And the emergency responders who took him from the gym said nothing about "fainting" or "falling." They did not treat him as they would have treated someone who had just fainted. Steve's surgeon even said there was no evidence of a fall.
Still, our lawyers found the gym's self-serving reports troublesome. For some reason, they thought that if the gym's story were true, then Steve could not win the case. Yet Steve always told the same story about how he was injured: He walked into the steam room and a jet of steam suddenly burst from the wall. The gym did not provide warnings anywhere about steam vents. It was a very big steam room with several blind corners and crannies. I had been in it myself and often found it difficult to determine where steam was coming from. That is why it did not surprise me when Steve said the steam took him by surprise.
And no matter what story people believed, the logic of the case seemed obvious to me: You shouldn't allow access to something on your property that can cause an injury as bad as Steve's. It's almost like letting a wild animal loose in your house during a dinner party.
But our lawyers did not see it that way. They said they could never sell Steve's story to a jury. They said they could not convince people that steam could emanate from the wall when the pictures showed the vents were only at ankle level. They did not acknowledge the fact, however, that they took the pictures almost a year after the event. Who knows what "improvements" the gym had made in the intervening time.
Yet all these rationalizations took a back seat to an even more compelling problem for our lawyers: They discovered that the gym did not have any liability insurance. Liability insurance means that an insurance company pays if someone gets injured on your land. If you don't have liability insurance, an injured person can go directly after your assets. But if you have no assets--or if the assets are insufficient to cover the injury--it makes little sense for an injured person to pursue you. After all, it takes years to win a judgment, let alone collect on one. Insurance companies shorten the time needed to get money from an accident. Without insurance, most injury lawyers don't waste their time on cases, even if they are meritorious. After all, they don't get paid until they win. If they spend 5 years working a case, then discover no pot of gold at the end of the rainbow, they will have wasted 5 years for nothing. That is a terrifying prospect for a lawyer trying to pay his rent.
So our lawyers fired us. They never said that the gym's insurance situation was the reason they turned us away. But it was obvious to me. The gym got away scot-free because it strategically decided not to buy liability insurance. The gym knew that no personal injury lawyer would waste his time pursuing an entity without insurance, so it just did not buy insurance. In essence, it insured itself against lawsuits by refusing to insure. It understood that civil litigation is a time-consuming, expensive business. So it correctly guessed that most lawyers would avoid a case that does not promise a quick insurance payout.
In short, the gym acted in a commercially prudent manner. It minimized its liabilities. It saved money.
But Steve suffered injustice for it. Steve's life changed because of the gym's conduct. It offered its facilities to the public for a fee. Those facilities nearly killed Steve and gutted his entire existence, not to mention mine. And due to the gym's strategic failure to buy liability insurance, Steve will not even receive the psychic satisfaction that the law avenged the hurt he endured. Put simply, Steve did not get justice. The law failed him.
Or did it? Steve's case confirms me that the law does not serve justice. If it did, lawyers would have flocked to represent him. Yet none did. From an intuitive perspective, Steve suffered a gross injustice due to another's negligence. No one should ever have to endure such clear wrongs in life.
But the lawyers did not flock to his aid because justice does not motivate them. Avenging injustice, after all, does not necessarily pay the bills. Paying the bills is a quintessentially commercial function. And lawyers did not take Steve's case because they could not assure themselves that it would be "worth the investment." It did not matter that he suffered injustice. Rather, his case was not "commercially viable" because the gym did not have insurance.
In Steve's case, commerce won out over justice. That's a lesson in law for you.
I have no more illusions about the law. It is a business like any other. If a case doesn’t promise a quick profit, no lawyer will take it, even if a person has suffered obvious injustice.
Tuesday, February 9, 2010
STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG
AN ESSAYPART 2
Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).
Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.
Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.
Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."
But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.
Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.
Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?
You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).
In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.
But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).
What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.
I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.
Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.
Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.
Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.
It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).
Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.
If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.
Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.
See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.
But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.
And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.
He really must not have liked Austin.
Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.
Monday, February 8, 2010
CITIZENS UNITED v. FEC : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG
AN ESSAYPART 1
Perhaps against my better judgment, I passed several hours this weekend working through the Supreme Court's recent campaign spending case: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). In brief, the case invalidates a Congressional Act that restricts corporations from making "independent expenditures" or issuing "electioneering communications" that expressly "advocate the election or defeat of a particular Federal candidate" within 30 days of a Federal election. 2 U.S.C. §§ 441(b), 434(f)(3)(A). The Court said that the Act violated "all corporations' right to political speech" under the First Amendment. In the process, the Court overruled a 20-year old precedent that upheld the same law on the State level: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).
I reacted with surprise when I learned what the Court had done. After all, it made perfect sense to me why Congress would want to restrict corporations' ability to spend money advocating particular Federal candidates: To prevent massive, wealthy businesses from deluging the public with their views, foreclosing fair debate in an election. Money buys influence. Even if corporations do not use money to literally "buy off" a candidate, they can easily use it to buy up all the airtime and essentially tilt the playing field to favor candidates they like--namely, guys who support corporations and their agendas.
In 1990, the Supreme Court said as much. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court--speaking through a 6-3 majority--concluded that restrictions on corporate "independent expenditures" during elections did not violate the First Amendment. True, such restrictions impacted corporations' "freedom to speak." But the Court found the State's interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" justified restrictions on corporate political speech. Id. at 660. The Court further reasoned that a State could restrict corporate spending on elections in order to curb "corruption or the appearance of corruption." Id. at 659.
In other words, the Court recognized in 1990 that corporations hold disproportionate political influence in America because they have so much more money than individual voters. That was true 20 years ago. It is even more true today. Corporations are getting bigger and bigger. Traditional competitors merge with each other. Their treasuries grow. And they can use that money to dominate the airwaves before elections in ways that individuals cannot.
But now the Court overrules Austin. Writing for the new conservative majority, Justice Anthony Kennedy called Austin "poorly reasoned," even though six justices voted for it just 20 years ago. So I guess that means a case is "poorly reasoned" when it tells the truth about corporations. It is no accident that Kennedy did not vote for Austin back in 1990. Today he gets his revenge, thanks in large part to right-wing help from Bush appointees Clarence Thomas, John G. Roberts and Samuel A. Alito. Those guys weren't around in 1990. Now they're calling the constitutional shots: They think Austin was "poorly reasoned," so they overruled it.
Why did they think Austin was "poorly reasoned?" After all, doesn't it seem obvious that Congress should take steps to prevent massive corporations from dominating news cycles at election time? I think so. But I'm not on the Supreme Court.
Much to my amazement, the conservatives actually phrase the debate in "liberty" terms. They think that corporations are exactly the same as private individuals when it comes to First Amendment rights. Applying that legal fiction, they think that corporations--like individual guys on soapboxes--have the right to unlimited free speech. And they are outraged that "poor little corporations" might face criminal prosecution under the law if they spend money supporting a Federal candidate before an election.
To be clear, the Federal law in this case does not bar corporations from spending money on elections. It merely requires them to set up separate entities for political purposes--so-called "Political Action Committees" (PACs). If a corporation wants to spend money advocating for a candidate, it has to spend through the PAC, and the PAC must report its funding sources. This allows the public to see who is paying for the corporate messages. PACs must also keep a treasurer and records. Yes, corporations have to endure some bureaucracy before exercising their First Amendment rights under the law. But it is not as if they cannot speak: They must merely follow a few more administrative steps than private individuals.
Yet the conservatives scream bloody murder about these administrative steps. How unjust and unfair, they say, that corporations must form new entities and pay some paperwork expenses in order to influence Federal elections! Justice Kennedy paints a doomsday scenario in which he claims that "poor little corporations" cannot afford to comply with these "administrative steps" prior to speaking on an election. He says nothing about the mammoth corporations that have the time and resources to comply with the law. No, it's all about the "little corporations--" the poor, wronged little corporations and small family businesses.
In truth, it is extremely easy for small businesses to circumvent the law here. Assuming that small businesses even have the capital needed to advertise for major Federal elections, they could avoid problems with the law merely by creating a PAC or by speaking as individuals. The law only applies to corporations, so a "little" corporation could sidestep it by refraining from speaking as a corporation. If a "little" corporation only has two members, they could speak as individuals "with connections to small business." They do not need a PAC. They still have their individual First Amendment rights. When the law involves fictions like "corporate people," it is easy to be imaginative in thwarting those fictions.
In this light, it is foolish for the conservatives to crusade for the "poor, wronged little corporations." By standing up for the "little corporations" in Citizens United, they actually abolished restrictions on the big corporations--and they were the ones who caused the problem in the first place. They threw the baby out with the bathwater. But that was probably what they intended all along.
And what glib reasoning the Court used to reach its corporate-friendly conclusions. While I might find it obvious that "immense aggregations of corporate wealth" have a "corrosive and distorting influence" on Federal elections, the Court resolved that quandary easily enough. On this point, Justice Kennedy merely says: "We conclude that independent expenditures made by corporations do not give rise to corruption or the appearance of corruption." Citizens United, 558 U.S. __ (2010)(slip. op. at p. 42).
Oh, all right. I'll just take your word for it. When I see a corporation funneling $140 million to advocate a Republican candidate for Senate, I won't assume any corruption. Corporations, after all, are selfless and would never do anything underhanded.
Let us even imagine that corruption--or the appearance of corruption--does not flow from corporate expenditures on behalf of a candidate. Even then, the fact that a corporation spends massive amounts to elect a corporate-friendly candidate creates popular perception that the corporation "bought" the candidate.
But Justice Kennedy resolves this issue easily enough: "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." Citizens United, 558 U.S. __(2010)(slip op. at 44).
Of course not, Justice Kennedy. How could I lose faith in our democracy when major corporations outspend their ideological opponents by millions to get pro-business Senators, Representatives and Presidents elected? How could I lose faith in our democracy when major corporations buy up all the airtime to get their guys in office? After all, I have to respect corporations' First Amendment rights, too, don't I?
According to Justice Kennedy, indeed I do--even if respecting a corporation's First Amendment rights makes it almost impossible to effectively exercise my own.
At this point, we begin to see the real problem with the conservatives' philosophy about corporate free speech rights. After all, when a powerful person--or a powerful group--exercises his free speech rights, he makes it more difficult for less powerful individuals to voice theirs. It is elementary that money translates into political influence. People with more money can speak more loudly on issues than those with less. By definition, corporations have far more money than even powerful private individuals.
Under this reasoning, it is easy to see how corporations can drown out debate simply by exercising their First Amendment rights. They can overwhelm private opposition by spending massive sums on ubiquitous advertising. That is the "corrosive and distorting influence" that the Court described in Austin. And corporate power to exert "corrosive and distorting influence" is the reason why Congress imposed limitations on the their ability to exercise their speech rights in the first place. Put simply, when corporations exercise their speech rights, they make it progressively more difficult for individuals to exercise theirs.
That is the real meaning of the conservative "corporate liberty" argument: By freeing corporations to speak, everyone else has to shut up and listen to them. In my view, that is not what the First Amendment is about. The First Amendment is about individual rights, not corporate rights. If corporate free speech rights make it difficult for individual free speech rights to survive, I have little problem regulating corporate free speech rights.
But Justice Kennedy does not acknowledge any of this. He does not see the obvious--and disturbing--practical implications behind his reasoning. Rather, he seems to dwell in some ethereal place in which corporate liberty is the same as individual liberty. As such, he sees the corporation as the victim. He even ascribes wisdom to corporations, as if corporate speech could actually enlighten the population: "Corporations do not have monolithic views. On certain topics, they may possess valuable expertise, leaving them best equipped to point out errors and fallacies in speech of all sorts, including the speech of candidates and elected officials." Citizens United, 558 U.S. __(2010)(slip. op. at 48-49).
Contrary to this rhetoric, corporations do have monolithic views on many issues. When it comes to profitability and shareholder enrichment, all corporations are the same: They want to make as much money as possible. That is a "monolithic view." In that sense, corporations will always say the same thing: Namely, whatever will benefit the corporation in the circumstances. In political speech, that means a corporation will always say things to support candidates who will make them richer. Given that, it is ridiculous to think that corporations will somehow "enlighten the public" with their "diverse viewpoints" on life. Corporate political speech is all the same: It is calculated to get people elected who will make them richer. End of story, Justice Kennedy.
In sum, this case disgusts me. I have other objections about it that I will raise in a later post. But for now, it is enough for me to say that the conservatives' view about "corporate liberty" eviscerates the First Amendment's focus on individual expression. Congress understood that corporations had to cede some expressive liberty in order to protect everyone else's relative ability to engage in political speech. Now that the Court has abolished those restrictions, it has opened the door to even greater corporate control over government.
Corporate control over government was already bad before this case. Now it will get even worse. As I suggested in a satire a while back, we might as well just rename the country the "United States of America, Inc." because that's exactly where we're headed. Or maybe we're already there.
Wednesday, January 27, 2010
DO YOU LIKE REWARDS? WHAT A STUPID QUESTION
OESTERHOUDT STRIKES
Everyone likes rewards. Everyone likes receiving things they like. We are programmed to like rewards. It is in our nature to seek them. It is as natural as hunger or thirst. We rarely do anything unless there is some reward for our efforts. Rewards induce human behavior. As such, they drive all economic activity. After all, who would work if he knew he would receive no pay? Who would work harder if he knew he would receive no greater prize for the extra effort?
All this may seem obvious. But I mention it because Citibank® actually poses the question in its latest advertising campaign. On billboards and on computer screens, Citibank® queries: "Do you like rewards? If you do, you should open an account with us." It then lists various perks that new accountholders receive, like a $50 (taxable) bounty, a potential $100 (taxable) payment for new customer referrals and retail "points" that accumulate whenever they use Citibank® debit cards. So if you charge enough Starbucks® coffee on your card, you'll get a $10 "gift" one day.
Those are the "rewards" they are talking about. And who doesn't like rewards?
People love rewards because people are basically selfish. Rewards reflect personal gain; when a person wins a reward, he benefits. He might receive money or gratification. He might receive an emotional payout. No matter what form a reward takes, it appeals to men's base instinct to profit. For that reason, rewards induce behavior. One man offers a reward in order to persuade another man to act as he wishes. He knows that men like rewards, so he knows men will adapt their behavior to get it. This is no different from any other mammal. Dangle a leftover steak in a dog's face and you can it to do every trick in the book.
Yet this basic mammalian urge for rewards forms the basis for all purposeful economic activity in our "civilized" world. The only difference between men and dogs is that you need to dangle paychecks in their faces, not leftover steak. Then they'll do whatever tricks you want.
Put another way, rewards make us human. They might not bring out the best in us, but they are still central to human existence. People live for rewards. Why else would they do anything? Nature intended it that way. After all, why would human beings--or any animals--propagate if there were not some biological reward for propagating? People like sex because it offers an intense physical reward. Without the reward, no one would want to do it. Nature understands how animals think. And man is just another animal: He needs a selfish incentive to do anything. He needs a reward.
When it comes to rewards, man is different from other animals in a crucial respect: He can manipulate rewards to exploit his fellows. Through language and superior resources, a shrewd man can persuade a weaker man to do just about anything for the right reward. And the shrewd man can dictate the conditions under which the weak man obtains a reward. In sum, those conditions reduce the weak man to the shrewd man's control. Rewards, then, become an instrument of tyranny as well as enterprise.
In modern language, exchange influences rewards. Rewards provide a basis for bargaining. In English, for instance, the dictionary says that a "reward" is "something given in return for good, or, sometimes, evil, or for service, or for something lost." Webster's New World College Dictionary (4th Ed.). Rewards, then, are given in return for something else. They must be "earned." As such, superior men can easily manipulate the terms under which they give rewards. They know everyone wants a reward. So they exploit that natural desire to dominate anyone who seeks one.
English is not the only language that implies bargaining in "rewards." German, too, suggests that rewards must be "earned." The closest translation for "reward" is "belohnen," which means: "to compensate a person for his help or effort." Wahrig Deutsches Wörterbuch S. 249 (Ausgabe 2008) (my translation). "Belohnen," in turn, builds upon a simpler German word: "der Lohn." "Der Lohn" means "wage," or, more specifically: "payment, consideration or compensation for work performed." Id. at S. 955 (my translation).
As in English, German reveals that "rewards" don't fall from trees. They provide incentives for work and service to others. That means the person who gives rewards has the power to dictate the terms under which others will receive them. Rewards give power. After all, the master has power over the dog because he has the leftover steak; he can demand any behavior before he gives it to the dog. In the same way, the employer has power over the employee because he has the paycheck; he can demand any behavior before he gives it to employee. In both cases, men and dogs want rewards. And they do what they are told to get them.
Just like dogs, all men want rewards. They want to increase their wealth. They want to feel good about themselves. They want to experience positive emotions. They are prepared to do tricks to get them. Rewards provide a reason to live. They induce behavior. Sometimes they induce good behavior. But certainly not always. Every criminal seeks some reward. Personal gratification motivates genius as much as it motivates destructive cruelty. In that sense, rewards cut both ways. Offer a man $10,000 and he might write a beautiful essay in a writing contest. Offer another man $10,000 and he will kill anyone you choose. The principle is the same: Rewards induce behavior.
But it is just dumb to ask: "Do you like rewards?" That is the same as asking: "Do you like eating a meal when you're hungry?" Everyone does. It is perfectly natural. It might not be very grandiose to spend your whole life seeking rewards. But it's not very grandiose to spend your whole life eating meals, either. Yet both are quintessentially human activities.
Everyone likes rewards. Everyone likes receiving things they like. We are programmed to like rewards. It is in our nature to seek them. It is as natural as hunger or thirst. We rarely do anything unless there is some reward for our efforts. Rewards induce human behavior. As such, they drive all economic activity. After all, who would work if he knew he would receive no pay? Who would work harder if he knew he would receive no greater prize for the extra effort?
All this may seem obvious. But I mention it because Citibank® actually poses the question in its latest advertising campaign. On billboards and on computer screens, Citibank® queries: "Do you like rewards? If you do, you should open an account with us." It then lists various perks that new accountholders receive, like a $50 (taxable) bounty, a potential $100 (taxable) payment for new customer referrals and retail "points" that accumulate whenever they use Citibank® debit cards. So if you charge enough Starbucks® coffee on your card, you'll get a $10 "gift" one day.
Those are the "rewards" they are talking about. And who doesn't like rewards?
People love rewards because people are basically selfish. Rewards reflect personal gain; when a person wins a reward, he benefits. He might receive money or gratification. He might receive an emotional payout. No matter what form a reward takes, it appeals to men's base instinct to profit. For that reason, rewards induce behavior. One man offers a reward in order to persuade another man to act as he wishes. He knows that men like rewards, so he knows men will adapt their behavior to get it. This is no different from any other mammal. Dangle a leftover steak in a dog's face and you can it to do every trick in the book.
Yet this basic mammalian urge for rewards forms the basis for all purposeful economic activity in our "civilized" world. The only difference between men and dogs is that you need to dangle paychecks in their faces, not leftover steak. Then they'll do whatever tricks you want.
Put another way, rewards make us human. They might not bring out the best in us, but they are still central to human existence. People live for rewards. Why else would they do anything? Nature intended it that way. After all, why would human beings--or any animals--propagate if there were not some biological reward for propagating? People like sex because it offers an intense physical reward. Without the reward, no one would want to do it. Nature understands how animals think. And man is just another animal: He needs a selfish incentive to do anything. He needs a reward.
When it comes to rewards, man is different from other animals in a crucial respect: He can manipulate rewards to exploit his fellows. Through language and superior resources, a shrewd man can persuade a weaker man to do just about anything for the right reward. And the shrewd man can dictate the conditions under which the weak man obtains a reward. In sum, those conditions reduce the weak man to the shrewd man's control. Rewards, then, become an instrument of tyranny as well as enterprise.
In modern language, exchange influences rewards. Rewards provide a basis for bargaining. In English, for instance, the dictionary says that a "reward" is "something given in return for good, or, sometimes, evil, or for service, or for something lost." Webster's New World College Dictionary (4th Ed.). Rewards, then, are given in return for something else. They must be "earned." As such, superior men can easily manipulate the terms under which they give rewards. They know everyone wants a reward. So they exploit that natural desire to dominate anyone who seeks one.
English is not the only language that implies bargaining in "rewards." German, too, suggests that rewards must be "earned." The closest translation for "reward" is "belohnen," which means: "to compensate a person for his help or effort." Wahrig Deutsches Wörterbuch S. 249 (Ausgabe 2008) (my translation). "Belohnen," in turn, builds upon a simpler German word: "der Lohn." "Der Lohn" means "wage," or, more specifically: "payment, consideration or compensation for work performed." Id. at S. 955 (my translation).
As in English, German reveals that "rewards" don't fall from trees. They provide incentives for work and service to others. That means the person who gives rewards has the power to dictate the terms under which others will receive them. Rewards give power. After all, the master has power over the dog because he has the leftover steak; he can demand any behavior before he gives it to the dog. In the same way, the employer has power over the employee because he has the paycheck; he can demand any behavior before he gives it to employee. In both cases, men and dogs want rewards. And they do what they are told to get them.
Just like dogs, all men want rewards. They want to increase their wealth. They want to feel good about themselves. They want to experience positive emotions. They are prepared to do tricks to get them. Rewards provide a reason to live. They induce behavior. Sometimes they induce good behavior. But certainly not always. Every criminal seeks some reward. Personal gratification motivates genius as much as it motivates destructive cruelty. In that sense, rewards cut both ways. Offer a man $10,000 and he might write a beautiful essay in a writing contest. Offer another man $10,000 and he will kill anyone you choose. The principle is the same: Rewards induce behavior.
But it is just dumb to ask: "Do you like rewards?" That is the same as asking: "Do you like eating a meal when you're hungry?" Everyone does. It is perfectly natural. It might not be very grandiose to spend your whole life seeking rewards. But it's not very grandiose to spend your whole life eating meals, either. Yet both are quintessentially human activities.
Tuesday, January 26, 2010
LAWYERS ARE BAD MEN AND CLIENTS ARE ONE-DIMENSIONAL SIMPLETONS...AND THERE'S NOTHING WRONG WITH THAT
AN ESSAY
Over the last few days, I have been paging through my old law school ethics casebook, The Law and Ethics of Lawyering (Foundation Press 4th Ed. 2005). When I took this course in law school, I immediately recognized it was different. No other course investigated ethical quandaries in law practice. Sadly, our professor seemed less concerned with the abstract philosophical dimension to the course than with its technical aspects. After all, it is hard to get lawyers to understand ethics because lawyers understand law.
Contrary to popular belief, law and ethics are distinct from each other. Ethics are internal, subjective conceptions concerning the "right" decisions to take in life's ever-changing circumstances. Ethics depends on individual conscience. Law, by contrast, is nothing more than an official collection of written rules that a State formulates to govern external behavior. Law does not require conscience; it requires only technical compliance.
Applying these definitions, it is easy to see that a person can act legally without being ethical at all.
I have written at length about the incongruous relationship between ethics and law. The relationship is uneasy not just because ethics and law stand at opposite philosophical poles. Rather, the relationship is doubly uneasy because "lawyering" in America is adversarial. It is hard to adhere to ethical norms when you are constantly trying to "beat" your opponent and win money. By the same token, American lawyering is extremely commercial. Successful lawyers win their cases because they want to make money. This makes them "result-oriented." That's bad for ethics because ethics is less concerned with results than with means. An ethical person refuses to act in certain ways or even conceive certain actions. Put another way, ethics disqualifies particular means from consideration. Yet a "result-oriented" person--like the average American lawyer--refuses to take any means off the table. When you want to win, you don't refuse to play all your cards.
Yet this is how lawyers must think. After all, they serve the law, not ethics. The law prescribes conduct through language. Lawyers advise clients how to exploit ambiguities in language to avoid the law's reach. All language is imperfect. The law is no exception. Lawyers seize on the law's linguistic imperfections every day to make a living. How can ethics survive in an atmosphere where everyone just wants to game the system?
Sure, lawyers all must take "ethics courses" just like I did. But teaching "ethics" to a lawyer is something like teaching dining room etiquette to a wild animal. Law students take the ethics course because they must: It is required to graduate. And even then, most students view the course as a meaningless formality. Rather than using the course to cultivate ethical sensibilities and become "ethical people," they learn how to read "official ethics rules," then tailor their behavior to avoid censure from professional boards. In essence, then, the "ethics" course devolves into yet another course on law: How to read written standards and make arguments designed to exploit weaknesses in language.
But I am not your average guy. I might have done well in law school, but I hesitate to call myself a "lawyer." No, I am too interested in theory to be a lawyer. I am too interested in ideas and philosophy to blindly advocate a client's selfish financial interests until I die or retire. Put simply, I think deeply about the law and its relationship to civilization. That disqualifies me from everyday "law practice." My commitment to theory might drastically reduce my income. But it dramatically increases my understanding about the world we inhabit.
When I read text from my old ethics casebook, I relate it to all my other ideas about law and civilization. Recently, for example, I re-read Oliver Wendell Holmes' musing on the lawyer's role in American society. He said: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good man, who finds his reasons for conduct, whether inside the law or out of it, it the vaguer sanctions of conscience." The Path of the Law (1920) at p. 169.
Holmes' remark closely tracks my own views about the law and human nature. In short, Holmes understands that the law essentially serves "bad men" who just want to know whether they will lose their bodily freedom or their money, not "good men" who seek answers in the "vaguer sanctions of conscience." In essence, Holmes suggests that the law is fundamentally cynical; it merely provides explicit written standards that enable men to modify their behavior for maximum personal gain. And because the law is cynical, so too are the men who empower it: They just want to enrich themselves.
Holmes calls such men "bad." But in fact, he just means "selfish." It is not necessarily morally "bad" to be selfish. But no one would dispute that "selfishness" is neither noble nor especially praiseworthy. No one remembers men who just want to remain free and make the most money they can. They are selfish; and the law exists for them. Bad or not, the law advances an entirely selfish view of human nature. And there is nothing really wrong with that, because the law holds power over money, property and bodily comfort. Those are selfish men's concerns.
If the law only serves "bad men," where does that leave the "good men?" Holmes draws an important distinction here that mirrors the distinction between law and ethics. He says the law stands for selfish men and their petty motivations, not men who find "reasons for their conduct…in the vaguer sanctions of conscience." By that reasoning, "good men" must have nobler motivations than property acquisition and freedom from jail. "Good men" must craft their lives to follow the "vaguer sanctions of conscience," not just cynical legal commands. In essence, then, "good men" are ethical. Unlike law, ethics is internal. It depends on conscience. An ethical man looks within his own heart to know whether something is right or wrong, not a statute book. He does not exploit ambiguity to slither away from consequences. That is noble and "good."
Does this mean that a person who depends upon his own conscience has no place in the law? It almost appears so. After all, to properly serve the law, one must be cynical. One must look at it as a "bad man." If the law enshrines the "bad man's" motivations, then conscience apparently has no place in it. An ethical man might be cynical about others' motivations. But he will not always act cynically. True allegiance to the law, however, requires constant attention to cynical concerns. Litigants would not win their cases if they suddenly started following their own conscience rather than their hunger for money. If ethics means allegiance to conscience and "higher" motivations than the body and property, then it really has little place in the law. Holmes said as much.
Later in my casebook, I ran across an article that criticized Holmes' "bad man" argument. See William H. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 29. In it, Professor Simon contended that Holmes' cynical conception about law compromised clients' "individual dignity" and "personal autonomy" because it required lawyers to assume that all clients have the same ends: Property and bodily comfort. The professor found it distressing that the law induces lawyers to both presume what clients want and "to lobby for a peculiar theory of human nature." Id. at 30-52. He found it lamentable that the law basically reduces "individual clients" to one-dimensional "hypothetical people" with a "few crude ends," namely "maximization of freedom of movement and the accumulation of wealth." Id.
I strongly disagree with this critique. First, while I agree that human individuality is precious, a person cedes any claim to uniqueness the moment he seeks legal redress. When a person invokes the law, he is not trying to soothe his conscience or prove his individuality. Rather, he is trying to win as much property as possible or to avoid going to prison. No matter what a client says, "justice" and "right" are not the main objects for his decision to take legal action. He takes legal action because he seeks to gain what the law can offer. The law does not offer abstract justice or right. It offers property and freedom from bodily restraint. This is all a person can hope to win from legal intervention. It is sheer ignorance--or sheer delusion--to believe it can deliver anything else. Courts do not award "good feelings" or a "sense of justice" with their rulings. No, they enter judgment in particular monetary amounts. If a client wants a spiritual reward, he should go to a church, not a lawyer's office.
Second, there is nothing wrong with imputing goals to a client. The law is not about conscience. It is not about ethics. There is a reason courts are called "Courts of Law," not "Courts of Ethics" or "Courts of Conscience." Clients could rightly complain about sacrificing their individuality if they sought to voice their conscience or their ethics. But when they file suit in a law court, they necessarily subscribe to far baser values. The law can deliver only money or bodily freedom. There is nothing wrong with imputing those base goals to a client, because those are the only things he can hope to gain from the law. If this renders lawyers "lobbyists for a peculiar view of human nature," it is not the lawyer's fault. It is the law's fault. The law is about cynicism, not conscience.
That is why the law really does exist to serve "bad men." And that is also why "good men" have little place in it. Once conscience enters the picture, law supplies no answer. Only ethics can appease the conscience.
Consequently, ethics and law do not mix. I don't care what any Bar Association, court or law professor says to the contrary. Law is external compliance. Ethics is conscientious belief.
And law cares not a fig for either conscience or belief.
Over the last few days, I have been paging through my old law school ethics casebook, The Law and Ethics of Lawyering (Foundation Press 4th Ed. 2005). When I took this course in law school, I immediately recognized it was different. No other course investigated ethical quandaries in law practice. Sadly, our professor seemed less concerned with the abstract philosophical dimension to the course than with its technical aspects. After all, it is hard to get lawyers to understand ethics because lawyers understand law.
Contrary to popular belief, law and ethics are distinct from each other. Ethics are internal, subjective conceptions concerning the "right" decisions to take in life's ever-changing circumstances. Ethics depends on individual conscience. Law, by contrast, is nothing more than an official collection of written rules that a State formulates to govern external behavior. Law does not require conscience; it requires only technical compliance.
Applying these definitions, it is easy to see that a person can act legally without being ethical at all.
I have written at length about the incongruous relationship between ethics and law. The relationship is uneasy not just because ethics and law stand at opposite philosophical poles. Rather, the relationship is doubly uneasy because "lawyering" in America is adversarial. It is hard to adhere to ethical norms when you are constantly trying to "beat" your opponent and win money. By the same token, American lawyering is extremely commercial. Successful lawyers win their cases because they want to make money. This makes them "result-oriented." That's bad for ethics because ethics is less concerned with results than with means. An ethical person refuses to act in certain ways or even conceive certain actions. Put another way, ethics disqualifies particular means from consideration. Yet a "result-oriented" person--like the average American lawyer--refuses to take any means off the table. When you want to win, you don't refuse to play all your cards.
Yet this is how lawyers must think. After all, they serve the law, not ethics. The law prescribes conduct through language. Lawyers advise clients how to exploit ambiguities in language to avoid the law's reach. All language is imperfect. The law is no exception. Lawyers seize on the law's linguistic imperfections every day to make a living. How can ethics survive in an atmosphere where everyone just wants to game the system?
Sure, lawyers all must take "ethics courses" just like I did. But teaching "ethics" to a lawyer is something like teaching dining room etiquette to a wild animal. Law students take the ethics course because they must: It is required to graduate. And even then, most students view the course as a meaningless formality. Rather than using the course to cultivate ethical sensibilities and become "ethical people," they learn how to read "official ethics rules," then tailor their behavior to avoid censure from professional boards. In essence, then, the "ethics" course devolves into yet another course on law: How to read written standards and make arguments designed to exploit weaknesses in language.
But I am not your average guy. I might have done well in law school, but I hesitate to call myself a "lawyer." No, I am too interested in theory to be a lawyer. I am too interested in ideas and philosophy to blindly advocate a client's selfish financial interests until I die or retire. Put simply, I think deeply about the law and its relationship to civilization. That disqualifies me from everyday "law practice." My commitment to theory might drastically reduce my income. But it dramatically increases my understanding about the world we inhabit.
When I read text from my old ethics casebook, I relate it to all my other ideas about law and civilization. Recently, for example, I re-read Oliver Wendell Holmes' musing on the lawyer's role in American society. He said: "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good man, who finds his reasons for conduct, whether inside the law or out of it, it the vaguer sanctions of conscience." The Path of the Law (1920) at p. 169.
Holmes' remark closely tracks my own views about the law and human nature. In short, Holmes understands that the law essentially serves "bad men" who just want to know whether they will lose their bodily freedom or their money, not "good men" who seek answers in the "vaguer sanctions of conscience." In essence, Holmes suggests that the law is fundamentally cynical; it merely provides explicit written standards that enable men to modify their behavior for maximum personal gain. And because the law is cynical, so too are the men who empower it: They just want to enrich themselves.
Holmes calls such men "bad." But in fact, he just means "selfish." It is not necessarily morally "bad" to be selfish. But no one would dispute that "selfishness" is neither noble nor especially praiseworthy. No one remembers men who just want to remain free and make the most money they can. They are selfish; and the law exists for them. Bad or not, the law advances an entirely selfish view of human nature. And there is nothing really wrong with that, because the law holds power over money, property and bodily comfort. Those are selfish men's concerns.
If the law only serves "bad men," where does that leave the "good men?" Holmes draws an important distinction here that mirrors the distinction between law and ethics. He says the law stands for selfish men and their petty motivations, not men who find "reasons for their conduct…in the vaguer sanctions of conscience." By that reasoning, "good men" must have nobler motivations than property acquisition and freedom from jail. "Good men" must craft their lives to follow the "vaguer sanctions of conscience," not just cynical legal commands. In essence, then, "good men" are ethical. Unlike law, ethics is internal. It depends on conscience. An ethical man looks within his own heart to know whether something is right or wrong, not a statute book. He does not exploit ambiguity to slither away from consequences. That is noble and "good."
Does this mean that a person who depends upon his own conscience has no place in the law? It almost appears so. After all, to properly serve the law, one must be cynical. One must look at it as a "bad man." If the law enshrines the "bad man's" motivations, then conscience apparently has no place in it. An ethical man might be cynical about others' motivations. But he will not always act cynically. True allegiance to the law, however, requires constant attention to cynical concerns. Litigants would not win their cases if they suddenly started following their own conscience rather than their hunger for money. If ethics means allegiance to conscience and "higher" motivations than the body and property, then it really has little place in the law. Holmes said as much.
Later in my casebook, I ran across an article that criticized Holmes' "bad man" argument. See William H. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 29. In it, Professor Simon contended that Holmes' cynical conception about law compromised clients' "individual dignity" and "personal autonomy" because it required lawyers to assume that all clients have the same ends: Property and bodily comfort. The professor found it distressing that the law induces lawyers to both presume what clients want and "to lobby for a peculiar theory of human nature." Id. at 30-52. He found it lamentable that the law basically reduces "individual clients" to one-dimensional "hypothetical people" with a "few crude ends," namely "maximization of freedom of movement and the accumulation of wealth." Id.
I strongly disagree with this critique. First, while I agree that human individuality is precious, a person cedes any claim to uniqueness the moment he seeks legal redress. When a person invokes the law, he is not trying to soothe his conscience or prove his individuality. Rather, he is trying to win as much property as possible or to avoid going to prison. No matter what a client says, "justice" and "right" are not the main objects for his decision to take legal action. He takes legal action because he seeks to gain what the law can offer. The law does not offer abstract justice or right. It offers property and freedom from bodily restraint. This is all a person can hope to win from legal intervention. It is sheer ignorance--or sheer delusion--to believe it can deliver anything else. Courts do not award "good feelings" or a "sense of justice" with their rulings. No, they enter judgment in particular monetary amounts. If a client wants a spiritual reward, he should go to a church, not a lawyer's office.
Second, there is nothing wrong with imputing goals to a client. The law is not about conscience. It is not about ethics. There is a reason courts are called "Courts of Law," not "Courts of Ethics" or "Courts of Conscience." Clients could rightly complain about sacrificing their individuality if they sought to voice their conscience or their ethics. But when they file suit in a law court, they necessarily subscribe to far baser values. The law can deliver only money or bodily freedom. There is nothing wrong with imputing those base goals to a client, because those are the only things he can hope to gain from the law. If this renders lawyers "lobbyists for a peculiar view of human nature," it is not the lawyer's fault. It is the law's fault. The law is about cynicism, not conscience.
That is why the law really does exist to serve "bad men." And that is also why "good men" have little place in it. Once conscience enters the picture, law supplies no answer. Only ethics can appease the conscience.
Consequently, ethics and law do not mix. I don't care what any Bar Association, court or law professor says to the contrary. Law is external compliance. Ethics is conscientious belief.
And law cares not a fig for either conscience or belief.
Monday, December 21, 2009
WHAT WOULD YOU DO FOR $40,000? THE PRICE OF BELIEF
AN ESSAY
Sometimes I wish I weren't so cynical. Cynicism is my life philosophy. Although it almost invariably leads me to the truth, I don't really like it. Although it has predicted the future for me more than once, I wish it hadn't. After all, cynicism assumes that everyone has selfish motives and will ultimately take action to satisfy their own interests. That is a pretty bleak view. Yet in our obligation-filled commercial world, it is a consummately realistic one.
I wish I weren't so cynical because I want to believe that everyone does not have a price. Whenever I think about cynicism, I inevitably struggle with principles. After all, a principle stands at odds with expediency. Self-interested people are always "expedient" when it is necessary to fulfill their aims. Principles, by contrast, are inflexible; they do not bend to expediency. Yet all too often in history we hear about "principled" men who stood up for larger ideas to a point, then caved in order to enrich themselves. In other words, every man--and every principle--has a price. The question is merely how much money it takes to convince a man to abandon what he believes.
As a cynic, I find it almost axiomatic that men sell their principles for the "right price." If human beings truly have innately selfish motivations and act ultimately to satisfy their own interests, then no larger idea could ever induce them to ignore themselves. It is natural to expect men to sell out or betray their beliefs when enough gold appears on the table. Although popular mythology teaches us to revile men who do this (the Judas story is the classic Biblical example), we are never surprised when it happens. We live in a difficult world. No one wants to go hungry or die. If it came between adhering to principle and eating, how can we blame a man for simply "betraying what he believes?" It is easier to revile a man who sells out simply to profit. But sometimes men sell their beliefs just to eat or sleep--or to save their families.
Yet we admire men who refuse to compromise their principles for a price. We admire them precisely because they are so rare. Again, cynicism provides a good way to understand why we deify "martyrs" like Jesus Christ and Saint Thomas More. Both men died because they refused to abandon their principles despite pressure. Both had opportunities to take payment and shut up. Both knew they would die for refusing to renounce their beliefs. And they still refused.
From a cynical perspective, we assume that men will always sacrifice their principles for personal gain or to save themselves. Overwhelmingly in human experience, that is what happens. But when it does not happen, we immortalize the person who resisted the impulse to be selfish. Put another way, when a person defies the cynical expectation to act only for himself, he becomes a saint-like figure--or a saint outright. This is what happens when men adhere to their principles. It leads to eternal honor. And that explains why both saints and honor are rare. Everyone has a price: But those who don't become legends.
But I'm not writing about legends today. I'm writing about everyone else who does have a price. And while it might be pathetic to have a price, I argue that it is completely forgivable.
Why is it forgivable to be a dishonorable person who abandons principle whenever profit beckons? It is forgivable because we inhabit a world that expects us to value profit more than honor. No one pays our way in this life. We learn early that we must make our way through the commercial thicket by any means necessary. Without money, we are finished. We can't pay our rent, we can't feed our children and we can't eat. We spend our lives struggling to find ways that yield money; and we never get enough. We learn that profit is good because profit protects us from hardship. When we profit, we stave off bill collectors, bankers and landlords. We feed our children. We increase our comfort and avoid worry. We stay warm. By eliminating a key source for worry, we actually gain the capacity to enjoy ourselves--at least in theory. We are only human; we have bodies. Profit protects our bodies from ruin. If it comes between preserving our bodies from ruin and adhering to a principle that could cost us our bodily comfort, the natural human response is to preserve our bodies.
Only saints spite their bodies for their beliefs. For everyone else, a price will suffice to buy belief.
Some people require less enticement than others. Potential profits not only dissuade men from adhering to principle. They also encourage men to brutalize their fellow man. Profit underlies criminal motivations crime as well as dishonorable ones. In the movie Fargo, for example, two ex-cons agree to kidnap a man's wife for $40,000. Various difficulties intervene and they murder three people in the process. Due to these "unforeseen complications," they demand $80,000 rather than $40,000. Before the drama ends, another two people die and no one makes a dime. The detective who arrests the killer--exceptionally played by Frances McDormand--then says: "All that for a little bit of money. There's more to life than a little bit of money, you know."
That may be so. But money motivates just about everything that people do, even murder. Contract killings have price. Lives--like everything else in the free market-- have a price, too. How much does it take to encourage someone to kill another? Is $40,000 too much? Some people in American society make $40,000 a year; others make it in one day. How about $10,000? $1,000?
This might all seem macabre. Still, the fact remains that potential profits bring out the worst in people. As bad as that is, however, I still think there is a good explanation for it: People in our society learn to be desperate for profit. Without it, they think they will come to ruin. So for those closer to ruin, there is a greater motivation to do unspeakable things for relatively little money. There might be more to life than money. But try telling that to those who don't have much. They are willing to do just about anything for what seems a pittance to others.
How much potential profit would it take to convince the average person to commit murder? How about lying? How about sacrificing integrity or honor? How about acting in a way that clashes with one's conscience? What if a job requires a person to violate his conscience, but if he loses the job, he loses his livelihood? How much does a conscience cost?
Against this background, can anyone resist a sufficient price? Is anyone noble enough to ignore themselves? That's my real question. All I can say is this: Cynicism tells me, as a general matter, that people can be bought. But there are a few extremely rare cases in which they cannot. I find this sad because it really does not take much for a stronger person to cast aside a weaker person's beliefs. Beliefs and conscience are individual. They are subjective. They belong to the person who holds them and no other. If a "little bit of money" is all it takes to sweep them away, what does that say about the value of individuality in our society? Where are the courageous people? Where are the people who will not abandon their beliefs for a price?
All I know is that they are not in the United States Congress.
Sometimes I wish I weren't so cynical. Cynicism is my life philosophy. Although it almost invariably leads me to the truth, I don't really like it. Although it has predicted the future for me more than once, I wish it hadn't. After all, cynicism assumes that everyone has selfish motives and will ultimately take action to satisfy their own interests. That is a pretty bleak view. Yet in our obligation-filled commercial world, it is a consummately realistic one.
I wish I weren't so cynical because I want to believe that everyone does not have a price. Whenever I think about cynicism, I inevitably struggle with principles. After all, a principle stands at odds with expediency. Self-interested people are always "expedient" when it is necessary to fulfill their aims. Principles, by contrast, are inflexible; they do not bend to expediency. Yet all too often in history we hear about "principled" men who stood up for larger ideas to a point, then caved in order to enrich themselves. In other words, every man--and every principle--has a price. The question is merely how much money it takes to convince a man to abandon what he believes.
As a cynic, I find it almost axiomatic that men sell their principles for the "right price." If human beings truly have innately selfish motivations and act ultimately to satisfy their own interests, then no larger idea could ever induce them to ignore themselves. It is natural to expect men to sell out or betray their beliefs when enough gold appears on the table. Although popular mythology teaches us to revile men who do this (the Judas story is the classic Biblical example), we are never surprised when it happens. We live in a difficult world. No one wants to go hungry or die. If it came between adhering to principle and eating, how can we blame a man for simply "betraying what he believes?" It is easier to revile a man who sells out simply to profit. But sometimes men sell their beliefs just to eat or sleep--or to save their families.
Yet we admire men who refuse to compromise their principles for a price. We admire them precisely because they are so rare. Again, cynicism provides a good way to understand why we deify "martyrs" like Jesus Christ and Saint Thomas More. Both men died because they refused to abandon their principles despite pressure. Both had opportunities to take payment and shut up. Both knew they would die for refusing to renounce their beliefs. And they still refused.
From a cynical perspective, we assume that men will always sacrifice their principles for personal gain or to save themselves. Overwhelmingly in human experience, that is what happens. But when it does not happen, we immortalize the person who resisted the impulse to be selfish. Put another way, when a person defies the cynical expectation to act only for himself, he becomes a saint-like figure--or a saint outright. This is what happens when men adhere to their principles. It leads to eternal honor. And that explains why both saints and honor are rare. Everyone has a price: But those who don't become legends.
But I'm not writing about legends today. I'm writing about everyone else who does have a price. And while it might be pathetic to have a price, I argue that it is completely forgivable.
Why is it forgivable to be a dishonorable person who abandons principle whenever profit beckons? It is forgivable because we inhabit a world that expects us to value profit more than honor. No one pays our way in this life. We learn early that we must make our way through the commercial thicket by any means necessary. Without money, we are finished. We can't pay our rent, we can't feed our children and we can't eat. We spend our lives struggling to find ways that yield money; and we never get enough. We learn that profit is good because profit protects us from hardship. When we profit, we stave off bill collectors, bankers and landlords. We feed our children. We increase our comfort and avoid worry. We stay warm. By eliminating a key source for worry, we actually gain the capacity to enjoy ourselves--at least in theory. We are only human; we have bodies. Profit protects our bodies from ruin. If it comes between preserving our bodies from ruin and adhering to a principle that could cost us our bodily comfort, the natural human response is to preserve our bodies.
Only saints spite their bodies for their beliefs. For everyone else, a price will suffice to buy belief.
Some people require less enticement than others. Potential profits not only dissuade men from adhering to principle. They also encourage men to brutalize their fellow man. Profit underlies criminal motivations crime as well as dishonorable ones. In the movie Fargo, for example, two ex-cons agree to kidnap a man's wife for $40,000. Various difficulties intervene and they murder three people in the process. Due to these "unforeseen complications," they demand $80,000 rather than $40,000. Before the drama ends, another two people die and no one makes a dime. The detective who arrests the killer--exceptionally played by Frances McDormand--then says: "All that for a little bit of money. There's more to life than a little bit of money, you know."
That may be so. But money motivates just about everything that people do, even murder. Contract killings have price. Lives--like everything else in the free market-- have a price, too. How much does it take to encourage someone to kill another? Is $40,000 too much? Some people in American society make $40,000 a year; others make it in one day. How about $10,000? $1,000?
This might all seem macabre. Still, the fact remains that potential profits bring out the worst in people. As bad as that is, however, I still think there is a good explanation for it: People in our society learn to be desperate for profit. Without it, they think they will come to ruin. So for those closer to ruin, there is a greater motivation to do unspeakable things for relatively little money. There might be more to life than money. But try telling that to those who don't have much. They are willing to do just about anything for what seems a pittance to others.
How much potential profit would it take to convince the average person to commit murder? How about lying? How about sacrificing integrity or honor? How about acting in a way that clashes with one's conscience? What if a job requires a person to violate his conscience, but if he loses the job, he loses his livelihood? How much does a conscience cost?
Against this background, can anyone resist a sufficient price? Is anyone noble enough to ignore themselves? That's my real question. All I can say is this: Cynicism tells me, as a general matter, that people can be bought. But there are a few extremely rare cases in which they cannot. I find this sad because it really does not take much for a stronger person to cast aside a weaker person's beliefs. Beliefs and conscience are individual. They are subjective. They belong to the person who holds them and no other. If a "little bit of money" is all it takes to sweep them away, what does that say about the value of individuality in our society? Where are the courageous people? Where are the people who will not abandon their beliefs for a price?
All I know is that they are not in the United States Congress.
Monday, December 7, 2009
CAR INSURANCE IS THE MOST IMPORTANT THING IN LIFE
OESTERHOUDT STRIKES
No, I'm not kidding. This is no satire. If there is any correlation between broadcast airtime and importance in life, then car insurance must be the most important thing in life.
Watch network television for an hour. I guarantee that you will see at least four commercials for car insurance. During the same hour, you might only see one or two advertisements for erectile dysfunction or prostate pills. There might be an appeal to send money to children in Africa, or the odd statement from a tax accountant or a lawyer--who usually wants you to join a class-action lawsuit involving prescription medication or car insurance fraud. Mixed messages?
But I digress. Let's get back to the real question: What's so important about car insurance? Why are companies spending so much money--and wasting so much of my time--simply to say that they are selling indemnity contracts for my car? I don't even have a car; why the hell would I want car insurance? They talk about low prices (Allstate), discounts (Progressive) and savings (GEICO). Some take a "trust me" approach (Allstate); others try to throw in humor (GEICO and Progressive). Some provide more specific information, like the fact that they also sell boating insurance, garage insurance, homeowner's insurance, life insurance, renter's insurance and lawn insurance. Other provide no information at all, just a slogan and a phone number.
Animated geckos with cockney accents do not provide commercially relevant information necessary to make a reasonable free market decision, no matter what GEICO's Board says. On the other hand, advertisers don't care about providing information relevant to a reasonable free market decision. They just want you to remember them and buy. It doesn't matter if it's the "most reasonable choice" you've ever made. Advertisers target the visual sense: "See this? Now buy this." That's how it works.
This simple strategy explains why car insurance commercials dominate the airwaves. If a company has enough money to advertise, it will advertise as much as it can. After all, an idiot is more likely to remember something he sees ten times in two hours than something he saw only once during the same two hours. Advertisers like GEICO, Allstate and Progressive know that, so they deluge viewers' senses over and over again. Even if people don't think about car insurance every single day in their lives, advertisers make sure that when they finally do think about car insurance, they also think of their company. By bombarding the senses, advertisers create a mental connection. When the mind strays onto the topic "car insurance," it triggers the connection: "Must buy GEICO." When that happens, advertising has done its work. Advertisers don't want reflection. They want reflex.
Broadcast airtime is a precious commodity. It is very expensive. It can reach millions of people in an instant. It has the potential to spread knowledge, understanding and enrichment. If something appears in a broadcast medium, it carries weight: Someone had to pay a huge sum to air it. To convey a message in such a costly medium, the message must be "important." In that light, does it not reveal something about our society that commercials are the only messages that regularly appear in this medium? The broadcast medium could be used to enrich the population with meaningful messages. But in the end, it merely barrages them with animated geckos, cavemen, obnoxious women chirping about discounts and various entreaties to buy boating insurance. After all, car insurance is important: It's on TV all the time.
Some will inevitably say that commercial messages are the only way that networks can finance their non-commercial messages. But most non-commercial material on most television channels is utterly unenlightening. In many cases, it even bows to commercial pressures. Networks will not broadcast material that alienates their commercial sponsors. In a strange way, then, commercial messages dictate which non-commercial messages ultimately appear on television. Advertisers will not advertise on programs that do not draw people likely to buy their products. This limits the kinds of messages that people hear on television because everything comes back to commerce: The programmer must placate the advertiser first. Only then can he exercise some expressive freedom. Without the advertiser, he can broadcast nothing. Who's more important then: The car insurance company or the viewer who wants to see a show about medieval England?
In my view, this is all very pathetic. In the end, car insurance gets more play than momentous world issues in the United States. It may seem absurd to suggest that car insurance is the most important thing in life. Yet I promise you that you will see more GEICO commercials on television than programs about Darfur, the health care bill or the War in Iraq. Those things may be more "objectively" important, but they do not pay the network's expenses. Insurance companies do. So we hear their messages more than any other messages.
That's why it's perhaps not so absurd to say that car insurance is the most important thing in life. Our country dedicates more airtime to it than virtually any other single subject. If airtime is as precious as we hear, doesn't that mean that car insurance is important? It's getting all the airtime, so it must be important. Very important, even.
No, I'm not kidding. This is no satire. If there is any correlation between broadcast airtime and importance in life, then car insurance must be the most important thing in life.
Watch network television for an hour. I guarantee that you will see at least four commercials for car insurance. During the same hour, you might only see one or two advertisements for erectile dysfunction or prostate pills. There might be an appeal to send money to children in Africa, or the odd statement from a tax accountant or a lawyer--who usually wants you to join a class-action lawsuit involving prescription medication or car insurance fraud. Mixed messages?
But I digress. Let's get back to the real question: What's so important about car insurance? Why are companies spending so much money--and wasting so much of my time--simply to say that they are selling indemnity contracts for my car? I don't even have a car; why the hell would I want car insurance? They talk about low prices (Allstate), discounts (Progressive) and savings (GEICO). Some take a "trust me" approach (Allstate); others try to throw in humor (GEICO and Progressive). Some provide more specific information, like the fact that they also sell boating insurance, garage insurance, homeowner's insurance, life insurance, renter's insurance and lawn insurance. Other provide no information at all, just a slogan and a phone number.
Animated geckos with cockney accents do not provide commercially relevant information necessary to make a reasonable free market decision, no matter what GEICO's Board says. On the other hand, advertisers don't care about providing information relevant to a reasonable free market decision. They just want you to remember them and buy. It doesn't matter if it's the "most reasonable choice" you've ever made. Advertisers target the visual sense: "See this? Now buy this." That's how it works.
This simple strategy explains why car insurance commercials dominate the airwaves. If a company has enough money to advertise, it will advertise as much as it can. After all, an idiot is more likely to remember something he sees ten times in two hours than something he saw only once during the same two hours. Advertisers like GEICO, Allstate and Progressive know that, so they deluge viewers' senses over and over again. Even if people don't think about car insurance every single day in their lives, advertisers make sure that when they finally do think about car insurance, they also think of their company. By bombarding the senses, advertisers create a mental connection. When the mind strays onto the topic "car insurance," it triggers the connection: "Must buy GEICO." When that happens, advertising has done its work. Advertisers don't want reflection. They want reflex.
Broadcast airtime is a precious commodity. It is very expensive. It can reach millions of people in an instant. It has the potential to spread knowledge, understanding and enrichment. If something appears in a broadcast medium, it carries weight: Someone had to pay a huge sum to air it. To convey a message in such a costly medium, the message must be "important." In that light, does it not reveal something about our society that commercials are the only messages that regularly appear in this medium? The broadcast medium could be used to enrich the population with meaningful messages. But in the end, it merely barrages them with animated geckos, cavemen, obnoxious women chirping about discounts and various entreaties to buy boating insurance. After all, car insurance is important: It's on TV all the time.
Some will inevitably say that commercial messages are the only way that networks can finance their non-commercial messages. But most non-commercial material on most television channels is utterly unenlightening. In many cases, it even bows to commercial pressures. Networks will not broadcast material that alienates their commercial sponsors. In a strange way, then, commercial messages dictate which non-commercial messages ultimately appear on television. Advertisers will not advertise on programs that do not draw people likely to buy their products. This limits the kinds of messages that people hear on television because everything comes back to commerce: The programmer must placate the advertiser first. Only then can he exercise some expressive freedom. Without the advertiser, he can broadcast nothing. Who's more important then: The car insurance company or the viewer who wants to see a show about medieval England?
In my view, this is all very pathetic. In the end, car insurance gets more play than momentous world issues in the United States. It may seem absurd to suggest that car insurance is the most important thing in life. Yet I promise you that you will see more GEICO commercials on television than programs about Darfur, the health care bill or the War in Iraq. Those things may be more "objectively" important, but they do not pay the network's expenses. Insurance companies do. So we hear their messages more than any other messages.
That's why it's perhaps not so absurd to say that car insurance is the most important thing in life. Our country dedicates more airtime to it than virtually any other single subject. If airtime is as precious as we hear, doesn't that mean that car insurance is important? It's getting all the airtime, so it must be important. Very important, even.
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