TUCK IN YOUR SHIRT APPROPRIATELY--OR FIND ANOTHER JOB

A MESSAGE TO THE EMPLOYEES OF THE COCKLAND GROUP LLC

By : Mr. Ronald F. Daggett, Assistant Deputy Vice President for Human Resources, The Cockland Group LLC, an Investment House specializing in service to the mortgage industry.

Cockland Group LLC is growing at a rapid pace. Since our founding in 2003, we have secured firm accounts with the Nation's largest mortgage sellers, including HSBC, Citigroup and Coldwell Banker. Our commitment to Absolute Client Satisfaction (ACS)™ is unparalleled. Our earnings have steadily risen in every consecutive quarter since our founding, even during some of the most challenging economic times in our Nation's history. We are proud of our accomplishments and we remain focused on our overriding goal: To deliver timely, effective, reasonable mortgage reinvestment services across the entire financial industry.

We could not have achieved these results without you, our employees. Here at Cockland management, we salute your dedication, hard work and passion for mortgage reinvestment services. At Cockland, it is not just about mortgages. It is about people™. Our people are the best. We know you know that, too. And we are thankful that you share our zeal for boundless client satisfaction. Because when great people serve great clients, everyone wins™.

We owe our success to our unique corporate culture. Cockland drives hard and plays hard. When we enter a market, we aim to penetrate and win. But when we relax, we relax with the same fervor we display when servicing an account. Cockland employees know how to please clients. And that is why clients keep coming back for more. Cockland delivers solid performance: Any time, anywhere--and for the best price™.

Nonetheless, not everyone can be a Cockland employee. We expect the best and we demand a lot. Sometimes it is difficult to overcome stiff competition in the mortgage client service market. We do not tolerate droopers or flaccid account service. Only the firmest survive at Cockland. Our employees don't back down. They stay on top of accounts until they are closed. Cockland employees are not timid. When we service accounts, we never pull out. We do not stop until our clients are completely satisfied™.

We also demand complete devotion to The Cockland Mission (TCM)™ (see employee manual, Chapter 2 for details). Being part of a winning team means the ability to play your position and to cheerfully receive instructions. Knowing your job is only half the battle; the other half is knowing how you fit on the ball club.

Attire is an important part of Cockland's success. Since our founding, we have insisted that every team member in the Cockland family wear either a white or blue button-down shirt at work. Button-down shirts show good taste and respect for client expectations. Clients in the mortgage industry wear button-down shirts. Typically, those shirts are white or blue. It only makes sense that we--as dedicated client service professionals--mirror their expectations. That is why we have always required our employees to wear white or blue button-down shirts. Sometimes conventions are essential. And this is one such instance.

Button-down shirts are vital to Cockland's special place in the mortgage service market. Yet the company has never endorsed an official policy expressing unconditional support for button-down shirts. We believe we have a duty as a company to reverse that trend. It is time for Cockland to recognize button-down shirts. And it is time for Cockland to make button-down shirts mandatory for all employees at the company. It is time to formalize.

From this day forward, every Cockland employee will be required to wear only blue or white button-down shirts while on company business. We refuse to acknowledge any exceptions to this policy. Every Cockland employee must certify that he or she will comply with this policy. He or she must further certify that failure to comply will result in immediate disciplinary action, up to and including docked pay and termination. Cockland must preserve its team spirit. And it must also maintain its winning attire-related traditions. That is why we hereby officially make blue and white button-down shirts a core element of Cockland culture. If Cockland employees cannot accept this, they can find employment elsewhere.

But this does not end Cockland's determination to inculcate attire discipline. In addition to requiring all Cockland employees to wear white or blue button-down shirts, all employees must also appropriately tuck their shirts into their pants.

Without appropriate tucking, blue and white button-down shirts mean nothing. Only a tucked-in button-down shirt can accomplish the goals Cockland expects. A tucked-in button-down shirt is absolutely vital to continued employment at Cockland. Inappropriately tucked and untucked button-down shirts reveal an inattention to personal excellence that is fundamentally inconsistent with Cockland's overriding commitment to unparalleled mortgage service. Our clients tuck in their shirts. All people worth anything in the world tuck in their shirts, too.

It would contravene our most basic company values to tolerate anything less than fully tucked-in shirts among our employees. For that reason, Cockland hereby requires all employees to certify not only that they will wear a blue or white button-down shirt every day at work, but that they will also appropriately tuck in their shirts. Failure to tuck in a shirt will result in immediate disciplinary action, up to and including docked pay and termination. Additionally, inappropriately tucked-in shirts will lead to the same consequences. Cockland simply cannot risk disappointing its clients by allowing employees to appear without immaculately tucked-in blue or white button-down shirts.

We recognize that these policy changes may appear harsh. We also recognize that employees may be confused about what it means to "tuck in" a button-down shirt or to "appropriately" tuck in a button-down shirt. In fairness to our employees, we wish to clarify these matters.

First, a "tucked-in button down shirt" means any button-down shirt the shirttails of which rest against the upper thighs, yet which are concealed and circumscribed at the top by a belt and trousers. As such, if a shirttail at any time appears outside the pants, the shirt is considered "not tucked-in" and will accordingly subject the offending employee to discipline.

Second, an "inappropriately tucked-in button down shirt" means a tucked-in button down shirt the tucking of which is not appropriate. "Appropriate tucking," in turn, means a tuck that does not result in ruffles, creases or otherwise slovenly shirt characteristics above the beltline. A tuck is only appropriate when the shirttails remain at all times below the beltline without bulging out, creasing or otherwise creating an unsavory appearance. The mere fact that an employee experiences "inappropriate tucking" because he or she sat down at a desk for too long does not cure the offense. An inappropriate tuck is an inappropriate tuck. Our clients expect the best from Cockland; and they do not forgive inappropriate tucking.

Neither do we. Inappropriately tucked-in button-down shirts will immediately subject the offending employee to discipline, up to an including docked pay and termination. We realize that compliance with appropriate tucking requirements may at times prove difficult. For that reason, management has decided to allow employees to cure inappropriate tucking by expeditiously removing all inappropriateness from their tucking within 30 seconds after discovering that their button-down shirts are inappropriately tucked. We believe that this rule both fairly allows for conscientious compliance at the same time it justly punishes flagrantly inappropriate tucking.

Cockland management is determined to realize excellence in all employee endeavors. That is why it has decided to implement these new rules concerning mandatory button-down shirt wearing and appropriate tucking effective immediately. Details may be found in the employee manual, Chapter 45, subsection 7(b).

Anyone who is anyone wears a blue or white button-down shirt every day. And anyone who is anyone appropriately tucks that shirt in; or at least corrects inappropriate tucking the moment it appears. At Cockland, we are committed to bringing maximal satisfaction to everyone who is anyone. That is why we must lead by example. That is why we must tuck in our shirts--appropriately.

If you don't like the rule, you shouldn't be on this team. So tuck in your shirt and start penetrating those accounts like a real Cocklander.

UNCOMFORTABLE SUBJECTS : IMPERIALISM AND CONQUEST

AN ESSAY

Over the last half century, "imperialism" has become a dirty word in American academic discourse. During that time, prevailing rhetoric has extolled multiculturalism, tolerance and multiperspectivism. It has championed the rights of historically disadvantaged groups while denigrating traditionally powerful ones. It has empowered the downtrodden and strengthened the weak. It has justified the historically unjustifiable. In the process, university rhetoric has identified "imperialism" as the worst thing one culture can do to another. Great civilizations, so the rhetoric goes, no longer conquer and dominate others. Great civilizations tolerate everyone and allow every culture to flourish within their borders.

Yet I venture that this is an anomalous trend. In fact, I argue that Nations unafraid to act imperialistically are strong Nations, while Nations afraid to do so are weak.

I understand that this squarely contradicts how we are "supposed to think" about imperialism today. But true to my word, I am determined to speak out this week about uncomfortable subjects. To use Nietzsche's term, I am determined to make "Uncontemporary Observations" concerning subjects we have been taught never to consider any other way.

Imperialism is about national power. In its purest form, it means the purposeful, intrusive projection of one Nation's military and cultural power over another Nation. To understand what that entails, it is essential to understand what "Nations" are. In past essays, I have noted that "Nations" and "States" are distinct terms. "Nations" refer to discrete populations united by common linguistic, cultural, genetic and religious traditions. "States," on the other hand, refer merely to a population's adherence to a particular governing instrument for the sake of common administration and convenience. Many Nations can exist under a common State. But Nations are unique.

Throughout history, some Nations have prevailed, while others have fallen. Nations that have prevailed generally have successfully engaged in imperialism. They have crushed and dominated their neighbors. They have brutally stamped out opposition and imposed their own cultural traditions on their defeated enemies. These Nations cared nothing for multiculturalism or tolerance. They did not blink at brutality. Rather, they felt so secure in their own power that they gladly violated other Nations' territory to absorb them into their own realms. This is not a popular thing to do these days. But history shows that the most influential Nations have been the most imperialistic, too.

Consider Rome. Rome grew to eminence because it projected its values across Europe, North Africa and the Middle East. By sheer will and military prowess, it subjugated its neighbors, occupied their territory and imposed its values on them. It even made them speak Latin and build infrastructure according to the Roman model. It forced them to live under Roman law and observe Roman customs. Rome was strongest when it was unafraid to conquer. It affirmed its own beliefs when it ruthlessly destroyed all who stood before it. Through imperialism, Rome made itself great. At its height, Rome conquered and killed without a second thought. It believed so strongly in its own values that it did not hesitate to eradicate whole Nations.

But consider now how Rome fell. Rome collapsed several centuries after it stopped waging imperial wars. Once it reached its territorial zenith, Roman values began to weaken. Its government began tolerating new ideas and new cultural trends. Internal cultural cracks developed. Its military power waned. Barbarians began picking away at the frontiers. Put simply, Rome lost its appetite for imperialism. It lost faith in its own rightful dominance. So Nations with more assurance in their own values filled the void. They overran Rome and destroyed it.

Turn now to England and Spain, the "great" European colonizers of the Americas and Asia. Both Nations achieved spectacular eminence because they shamelessly engaged in imperialism. Both Nations reached their zenith when they brutally laid claim to others' land and genocidally slaughtered anyone who opposed them. They unswervingly believed in their own causes: Just like the imperial Romans, the British and the Spanish believed that their values were far superior to the Natives they displaced. So they killed, enslaved and uprooted them without a second thought. In the process, they reshaped the world. Like it or not, the fact that English and Spanish are among the world's most spoken languages is the direct result of unabashed, vicious global imperialism. Like it or not, the only reason why European white people live in North America today is because England and Spain barged in and killed everyone else who used to live there. The very existence of the United States is the product of an original, shocking act of imperialism by Great Britain.

To summarize, Nations are strong when they conquer. They believe in their own values so much that they do not shrink from trampling and absorbing other Nations. Nations weaken when they lose faith in their own dominance and begin tolerating dissention in their own borders. Imperialism showcases a Nation's shameless belief in itself; and its contempt for any culture that differs from it.

Needless to say, it is no longer popular to endorse imperialism. It is no longer acceptable to say that one Nation is rightfully superior to another, let alone to suggest that one Nation has the authority to seize territory and butcher native inhabitants in another country. Yet it is precisely that vicious cultural intolerance that created the United States. That same intolerance sustained all the world's mightiest empires. When a Nation engages in imperialism without shame, it declares to all the world: "My Nation is so great that it deserves to dominate you."

America presents an interesting case. Despite all the recent discourse condemning imperialism, the United States remains an immensely imperialistic country. Since roughly 1865, America has engaged in imperialism all over the world. First, it eradicated or marginalized native populations in its own continental borders. Second, it overran Hawaii. Then it battled Spain and conquered Cuba, Puerto Rico, Panama, the Philippines and numerous Pacific islands. In World War I, it projected its national power into European affairs, playing a substantial role in dictating the peace terms at Versailles. In World War II, the United States achieved monumental national power by almost single-handedly defeating Japan and Germany, then permanently occupying both defeated countries. After World War II, the United States created the United Nations and oversaw "world peace" by policing various national conflicts from Korea to Vietnam to Afghanistan and Central America. Later, the United States invaded Iraq on fabricated "self-defense" grounds, plunging that country into civil war.

America's voracious imperialism does not end with military conquest. Beyond physical incursions into other Nations' affairs, America also engages in unabashed cultural intrusion. Its music and film industry dominate the entire world. Children from China to Germany to Africa all learn English so they can listen to American songs and watch American movies. People in Beirut listen to Michael Jackson and Rihanna. Business people all over the world adopt English as their lingua franca. America's cultural imperialism is so complete that when two foreign businessmen meet, chances are they will speak English to each other, even if neither is a native English speaker. None of these things would ever have come to pass if America had not engaged in overwhelming, successful imperialism over the last 150 years.

In this light, perhaps it is not a bad thing to say that a Nation like the United States is "imperialistic." After all, America dominates the world in a way not seen since Rome. Its culture, language and military cow the globe into submission. All other Nations measure themselves by the American standard. Like all empires in history, America's imperialism shows that the United States ruthlessly believes in itself. It does not tolerate dissention abroad. And it has shown that it will crush any Nation that opposes its power. Put simply, America is strong; and it is not afraid to beat anyone down who thinks otherwise.

Is imperialism unpopular? In university rhetoric, of course it is. But when we look closely at what imperialism means--and what it has wrought in the United States--we discover an embarrassing truth: We are all the products of imperialism. Our "American civilization" arose because England and Spain were unafraid to savagely kill the natives who once occupied this land. We speak English and Spanish in North America because the British and Spanish felt so superior that they had a right to set up shop on a foreign continent. And we now live in the world's most powerful Nation because the United States carried on the imperialistic tradition that gave it life in the first place.

America was born in imperialism. It will always be imperialistic. Imperialism showcases American values. It reflects intolerance for all who oppose us. In a perverse way, however, it also confirms America's health. As long as America is unafraid to savagely destroy its enemies and to project is culture over all the world, it is still--as Rome was--at the height of its power. America has not stopped expanding. Indeed, it is not in our nature to stop expanding. Once we stop expanding--whether culturally or militarily--we are no longer imperialistic. And when that happens, we can expect our power to gradually wane, just as Rome's did.

Thus, despite all the criticism, an imperialistic Nation is a healthy Nation. Imperialistic Nations might act like ferocious animals, but ferocious animals defeat any living thing that opposes them. In that light, we can thank imperialism for giving us this mighty Republic, as well as all the comforts it brings.

This is my uncontemporary observation for the day.

SURRENDERING, WASTING TIME AND FOLLOWING ORDERS : THE LANGUAGE OF EMPLOYMENT

THE MYTH OF EMPLOYMENT IN AMERICA

PART 1 - LANGUAGE

Last week, the White House announced some encouraging news about the economy. It said that the "Job Report" for March showed "significant gains." Apparently, more people found private employment during the early spring; and that meant more people were getting paychecks. Since late 2008, the "Job Report" had consistently reported losses. So last month's news was cause for celebration: When people have private sector jobs, it is a national victory.

What makes jobs cause for celebration in America? After all, what exactly is a "job," and why do Americans fetishize them so much? Is there something magical about jobs that makes people live their whole lives seeking them and toiling at them? I say no: In most cases, jobs are a poor way to spend your life; and they are sure way to obliterate your spirit as an individual.

Viewed in the abstract, jobs are nothing to glorify. In most cases, they are just a waste of time. People only work because they need to earn money to stave off material ruin at the hands of creditors, landlords, banks and other superior economic beings. They do not enrich people intellectually or spiritually. Rather, they commit people to a "service obligation," namely, unswerving dedication to the employer's economic mission. That economic mission might involve questionable ethics or outright deceit. But jobs require people to put those concerns aside and "do what the company wants." Worse, if the employee does not "do what the company wants"--or if he simply does not justify his cost in company profit--he is fired. If anything, jobs are gloomy reward. In return for a paycheck, an employee not only must sacrifice his time, dignity, ethics and individuality; he must also commit himself to another's material gain. That is a high price to pay for freedom from bankruptcy.

But still Americans thirst for jobs. Everyone wants one. Economists even measure national commercial strength by evaluating "job creation" and "job robustness." In other words, the entire economic system depends on everyone getting a job and doing what they are told so that larger commercial interests can profit and pay more employees. Jobs depend on hierarchies and disparities in power. Some live to benefit the employer; meanwhile the employer makes off with all the money. The employer expects total dedication to his economic mission; he pays just enough wages to keep the employee fed and under a roof. The employee must follow instructions and be productive.

It is not a fair system: No matter what free market apostles say to the contrary, very little labor is actually voluntary in the United States. True, no one is pointing a gun at employees to force them to work. But deluging people with ceaseless economic obligations under threat of homelessness amounts to practical coercion. If the choice is between letting one's children starve and taking an unfair job somewhere, is it really a choice?

If the field is so tilted, why does everyone want a job? If jobs are inherently unfair, coercive and wasteful, why does the White House tout them as the ultimate measure of national success? Does it not say something about our collective life expectations that we view our jobs as the highest expression of who we are? After all, most jobs are quintessentially counter-creative and anti-individualist. To understand that, consider that in American discourse it is often possible to replace the question "Who are you?" with "What do you do?"

Language relating to employment paints a bleak picture. It tells a story of banality, wasted time and exploitation. By investigating a few common words that regularly appear in the employment context, we see an oppressive, anti-individualist motif at work. And in the process, we begin to understand that the whole mythology surrounding "jobs" in America is exactly that: An elaborate hoax that sustains itself on false expectations and wretched servility.

Let us begin with the most obvious example: "Job." The word "job" is ubiquitous in modern American discourse. We cannot escape it. We even think we know what a "job" means; we visualize some guy slapping on a Starbucks apron and serving up mocchachinos for $5.50 a pop. But do we really understand the word? Where does it come from? What does it tell us? Is it really the sacred thing the propaganda tells us it is? Is it really the thing that determines our strength as a nation? Is it the be all and end all of our lives?

Let us look.

No one can agree on "job's" precise etymology. Most scholars agree, however, that "job" relates to the Middle English word "gobbe," meaning a "lump or mass of something," like clay, mud or grime. Dictionary.com says that "gobbe" did not imply "work" in 1400. But by the 17th Century, it began to assume a new meaning. Specifically, it meant a "specific, discrete piece of work done for an agreed-upon price." That distinguished it from long-term employment; jobs were "petty" and "inconstant." The handyman did "jobs," while the priest had a "profession." A person with a "job" was common trash. The fact that the word relates to "gob" tells almost the whole story. Jobs are grimy, unsavory and despicable ways to spend time. They are like lumps of filth with which people contend every day for a few lousy shillings. And they have always occupied the lowest spot on the "employment hierarchy." Only the meanest types worked "jobs." "Better people" spent their time with "professions" or "callings."

In this historical context, who would ever want a "job?" The etymology tells a nasty story. Only common rogues would deign to be "jobbers" slaving away at their daily lumps. What a horrible way to spend a life. While the word "job" may have taken a more neutral meaning over time, etymology never lies. It is indisputable that the word "job" reflects low social standing and abject surrender to a superior master. Only the most wretched people did "jobs" in the past, like cleaning privies or washing horse dung. Yet now Americans fetishize jobs. Who would have ever thought that so many Americans would have wanted to be the linguistic successors to Elizabethan shit sweepers?

Other employment-related words do not really improve the overall linguistic image. Those fortunate enough to avoid having a "job" might have a "career" instead. Like "job," "career" has become ubiquitous in American discourse. And like "job," Americans think they know what a "career" is. They also understand that "careers" are somehow "better" than jobs. They might not know why; it just seems that "career people" make more money than common slugs with "jobs."

But from an etymological perspective, "careers" are just as pernicious as jobs. While "career" has always elevated itself over "job," both concepts do the same thing: They voraciously consume time. "Career" especially implies a lifetime dedication to a chosen economic pursuit. It derives from the Latin word "carriara," meaning a "road intended for vehicular transport." See Dictionary.com, v. 1.1. "career" derivation. The dictionary's definitions stress "career's" temporal demands: "1. An occupation or profession, esp. one requiring special training, followed as one's life work; 2. A person's progress or general course of action through life or a phase of life." Id.

On its face, "career" does not necessarily imply economic service to a private master. But in American discourse, it does. People go to "Career Schools" and learn how to "prepare for their careers." They hear that it is "great to have a career" and that losing a career is worse than death. In all these usages, "career" implies dedication to a particular economic mission. It is wonderful to have a "life's work" if you believe in it, but how many "careers" really inure to individual benefit? A corporate "career," for instance, is not about the worker; it is about the corporation. A lawyer's "career" is about purposeful economic activity, not individual enrichment or creativity. In this light, "careers" in American discourse paint a disheartening image: They show people slavishly dedicated to a particular economic master for their entire lives. While "career people" may need special training to have a "career" rather than a "job," and while they may earn more money at longer engagements than "jobbers," they are no better in dignity. After all, to have an American-style "career," you have to give up your life to a "particular course of action;" you must "get on the road." In most cases, that means disciplined, directed service to a private economic master. If you do that, what time do you have left for yourself? Very little, if any. In this sense, "careers"--like jobs--generally reflect an essential hostility to individuality and creativity, as well as dedication to superior economic masters. And that is exactly how it is supposed to work, too.

American discourse about employment reveals its hierarchical function through other words, too. Beyond the basic distinction between "jobs" and "careers," there are also "professions." In modern American usage, "professions" are "special careers" that involve some unique learning or discipline. They pay more than other careers and certainly more than mere jobs. "Professions" even conjure mystical connotations because they involve special skills that average people cannot even fathom. "Professionals" use highly specialized language. They ply highly specialized procedures to obtain almost miraculous results. Generally, they go to school for a very long time before going into business. And on that basis they demand more money for their services. The word "profession" is all about "exclusivity:" Not everyone can be a "professional." We cannot all be so smart or skilled. If we were, we could pull our own teeth or conduct our own trials--that would not be good for dentists and lawyers.

"Profession's" etymology bears out these colloquial connotations. The word derives from the Latin "professio," meaning the "taking of the vows of a religious order." Dictionary.com v. 1.1 (profession etymology). In modern usage, the word means: "1. A vocation requiring knowledge of some department of learning or science." Id. Professionals, then, are modern-day mystics. Their very name invokes a "religious order." But they are not free spirits; they "took oaths" to the "religious order." This commits them to their "craft," or--in modern terms--their "knowledge of some department of learning or science." And they are essentially secretive: Not everyone can join a secret religious order, let alone master its complicated rituals or rites.

In practical terms, there is not much difference between a "career" and a "profession." Both refer to constant work for pay, most likely in the service of a private master. In that sense, "professions" consume time even more than simple "careers." Some "professions" genuinely do good. But in most cases, "professionals" band together to maximize their profits by exploiting public need for their "special knowledge." And in America, people do not become professionals to do good. They become professionals because they want "high-paying careers." In the process, they commit themselves to the profession's narrow "department of learning or science" for their entire lives, ruling out all else. Like jobs and careers, then, professions work strongly to suppress individuality and creativity. There is simply no time for anything but the profession--and profiting from it.

Finally, there is a general word that applies to almost all employment-related terms: Occupation. In many ways, occupation perfectly summarizes the temporal difficulties involved in employment. It is a relatively simple word; the subtlety lies in the imagery.

Occupation derives from the Latin "occupare," literally meaning to "occupy." But beyond the familiar "occupation," the word implies a "taking of possession of time or space." There is an element of both superior power and control in the word. It implies that someone or something takes possession. Obviously, anyone or anything possessing someone or something else is superior to the person or thing possessed. In this sense, "occupation" requires a subject and an object, a dominant element and a subordinate element. There is an "occupier" and an "occupied object." It is all about power.

These are revealing insights when applied in the employment context. After all, if a person has an "occupation," who is occupying and who is being occupied? Does the work "possess" the worker, or does the worker "possess" the work? I would venture that the work possesses the worker. It possesses his entire being, including his mind, his time, his creative strength and his focus. He allows someone to occupy him for pay. But he sacrifices his dignity in exchange. It is fundamentally submissive. And it confirms the essential power struggle that pervades all employment relationships: Someone occupies; another is occupied. The occupier profits by occupying the occupied object; the occupied object receives "compensation" for allowing the occupation. Yet make no mistake: It is always the occupier who holds the power, just as a carpenter holds power over his tools.

Where does all this leave us? It leaves us with an ugly picture about employment. American employment propaganda tells us that we should all want jobs or careers. Or a career of jobs. Or maybe a profession, or a professional career. Or at least an occupation. But if we understand what those words actually mean, we should hesitate before so zealously pursuing them. Jobs are just gobs of nasty filth. Careers are time thieves. Professions are hypnotizing, mind-narrowing cults. And occupations are invitations to be "possessed" or "owned." They are all about surrender. They are all about submission.

But maybe that's the point. Maybe we're supposed to surrender and just do what we are told. After all, the White House says we're a stronger nation when we all have jobs.

That is pretty scary if you ask me. Then again, not everyone reads the dictionary like I do.

THE MYTH OF EMPLOYMENT IN AMERICA

OESTERHOUDT STRIKES

Over the next few days, I will write several interrelated essays about employment in the United States. I often write about employment, both in expository and in satirical form. But in these essays, I want to methodically go to the heart. I want to write "Oesterhoudt's Manifesto" on employment in America.

I believe that America has a dangerous "employment fetish." It has completely warped people's minds. True, America has always been "all about work." Yet in recent decades, the line between life and work has blurred considerably. People fanatically give themselves over to their employment without a second thought. They sacrifice what little dignity they have serving a master for comparatively little compensation. And they chase employment like the Holy Grail: A whole social system of propaganda has grown up around the idea that "you must have a job;" and that you should be ashamed of yourself if you don't.

But it is not easy to get a job these days. After all, everyone wants one, and they do not just magically appear. You can't watch the news without hearing about America's "critical job situation." Most people cannot understand why it is so difficult to get jobs. I will explain that the archetypal private sector job is no entitlement. Rather, it is a matter of grace.

In my essays, I plan to utter the final word about the employment "hustle" in America. To do this, I will explain what private sector jobs mean in strictly economic terms. I plan to explain that "jobs" are not rewards for employees. Rather, they are calculated investments in which the employer gambles that human labor capacity will make him a profit. If he does, wonderful. But jobs mean employer expense, too. And if a job costs more than it yields, out goes the employee, even a former "Employee of the Month."

Jobs are simple mathematics: If they cost more than they generate, they are gone.

This is why I recoil from all the rhetoric about "private sector job creation." It is impossible to stimulate job creation without flushing private employers with cash. Employees are expensive investments; and employers can only gamble on investments if they have money. In this light, private employment depends on healthy economic times for the employer. If he's not making a profit in his field, he won't be hiring anyone, even Superman. In brief, it is impossible to talk about "job creation" in the abstract. Only the changeable winds of private market economics dictate whether more employees get to feed at the employer's profit trough.

I also plan to write about the social mythology that pervades discourse about employment. To deconstruct the myths, I will explore language relating to employment. In the past, I have debunked commerce by exploring common commercial words and their etymologies. Now, I will debunk employment by exploring words like "job," "occupation," "career" and "profession." I will dive into etymology to analyze what conceptual complexes operate in these words. In the end, I will show that employment is nothing to glorify. Rather, I will demonstrate that it is just a crude, unfair system that perpetuates social inequalities and obliterates individuality in society.

I will begin addressing these issues tomorrow. As I have mentioned in recent weeks, my schedule has become somewhat more hectic lately. I will do my best to write all the essays on employment this week. But just in case I miss a day, you can attribute it to my exciting new schedule.

Thanks for reading!

Oesterhoudt

DON'T SAY "NEXUS;" SAY "CONNECTION" : WHY I DON'T LIKE PRETENTIOUS LANGUAGE

AN ESSAY

During my first year in law school, I had to take a "legal writing course." It was pure misery. The "professor" was really no professor at all, but rather a disgruntled low-level staffer from the Attorney General's office who worked part-time scolding terrified first-semester students for putting one space before a period rather than two. She never praised anyone. And she consciously tried to drain all individuality from everyone's writing. She said: "This is legal writing. It's time to un-learn everything you've ever learned about writing. Right now."

In her defense, legal writing is certainly different from expository writing. It follows distinct conventions and customs that differ from the classic liberal arts essay. It proceeds along identifiable logical pathways and channels arguments to lead ineffably to a conclusion. It is not subtle. Legal writing does not hide anything from the reader. It tells him exactly what he is reading and repeats it about fifty times before it is over. In our legal writing class, we learned how to manufacture these technical baubles. And we got lots of bad grades along the way to remind us that we missed some essential detail or other.

I became a pretty decent legal writer. After all, it isn't difficult. It's just a skill, like baking. There is no artistry to it. You just take a position, organize some arguments to support it and start declaring why you're right. You avoid the passive voice, follow a set sentence structure and repeat your argument over and over again. You make all your sentences declarative and begin each closing line in a paragraph with "thus." Clarity is important. Subtlety is not. And why should it be? After all, if you're writing to a court to win a case, you don't want to leave your fate to interpretation, do you? Hell no. You want to scream why you're right; and you'll be damned if you hesitate in your demand for victory.

But there is irony in all this. Legal writing--like the law in general--leads lawyers to believe that they possess magical powers. After all, lawyers feel exulted because they know that they can influence the machinery of the State to deprive others of property, liberty and even their lives. They influence that machinery through advocacy, including writing. For that reason, lawyers believe that their "legal writing" opens the doorway to power over others.

Yet there is nothing magical about the law or legal writing. In fact, I came to understand that legal writing actually wields very little influence, despite the mythology to the contrary. When I practiced law, my superiors praised my writing. I thought it led courts to make better decisions in particular cases. But time after time, I saw that judges probably had not even read what I had written. Rather, they knew beforehand how they would rule in a case and carried that prejudice with them through the proceeding. No matter how grand my rhetoric or airtight my logic, my writing would never dislodge an entrenched conviction. Just because I nailed all the technical criteria required for "good legal writing" did not mean I would magically win the case.

All this sobered me about the "power of the law." I learned that there was a vast propaganda machine at work perpetuating the idea that "judges were impartial" and that "good arguments always persuade." The cruel fact is that judges and lawyers are just as shortsighted and prejudiced as the next man. They make decisions based upon their cultural intuition, social values and emotional reactions. They can skillfully cite the law to provide a seemingly "neutral" justifications for their decisions. But in the end, "good legal writing"--and even "good arguments"--will almost never change minds.

Nor should it. Legal writing is agonizingly formulaic. I even wonder how judges can even keep their eyes open when they read it. And who really needs to know what one side in a case says? You can pretty much figure out what each side wants in the case simply by looking at the facts. If a person gets injured, he's going to say the other guy is at fault and should pay him money. The other guy will say he's not at fault and shouldn't have to pay. Or maybe he'll say the injured guy caused his own injury, so he's excused. Our legal system is adversarial. That means that you can figure out exactly what each side wants beforehand: Team A wants to make money; Team B wants to save money. Each accuses the other of bad faith and shouts to the court why he should win.

It's not complicated. It's just a game: One team wants to beat the other. You don't need masterful writing to understand how most cases go. Our adversary system explains it all. And chances are a judge will form an intuitive opinion about the dispute long before he reads what either team has to say about it. So nothing either team says will change the result.

Yet lawyers love their writing, even if it does not ultimately influence anyone. Worse, they scold lower-level employees who do not use the right words in court papers. This may seem meaningless--after all, why insist on particular words if the writing does not affect the outcome in the end?--but it happens. It is as if lawyers understand that their writing will change no one's mind, yet they adhere to rigorous standards merely to show that they can. This is sheer pretentiousness, and I don't like it. Moreover, it is pretentiousness without reason; for even when lawyers use all the right formats, phrases and page headings, their writing will not influence the judge. He has already taken an intuitive notion about the case.

Take this example: In legal writing class, we learned that you must always recite a legal rule exactly as it appears in a case. Over the centuries, pretentious judges have written pretentiously (and sometimes very poorly) about the law. When they lay down a legal rule in a particular case, they enshrine bad writing for generations to come. But in legal writing class, you must cite the rule exactly as it appeared. I recall an example about some lawyer being disciplined for neglecting his client. Once upon a time, a court said there had to be a "nexus" between the lawyer's conduct and resulting harm in order to determine whether an attorney should be disciplined for client neglect.

What the hell is a "nexus?" In law school, I remember thinking: "What a pretentious, unnecessary word. You can just use the word 'relationship,' or even 'connection' to express the same idea without sounding like a complete SAT-word-dropping douchebag.'" So in my brief, I cited the rule without using "nexus." I changed it to "connection." I thought it sounded more accessible. It sounded less arcane. I did not want to sound like a spell-casting sorcerer when I wrote. I wanted my reader to understand immediately what the law said.

But I got a bad grade on that paper because I did not literally use the word "nexus" in reciting the legal rule. It did not matter that my formulation expressed the rule better than the judge's legalese. No, details are important in legal writing, even really bad details that do nothing to improve communication or style.

Still, at the time I had not yet recognized that the law cared nothing for style. I had always prided myself on making my writing as clear and as accessible as possible. It was difficult for me to comprehend that clarity and style did not matter in this new discipline. I resented the formality and structure in legal writing. Ultimately, I learned to do it with the best of them. But it was just imitation. I never believed that legal writing possessed any intrinsic merit over my traditional, expository style.

Recently, I have begun to see legal writing in a larger context. Now, its rigidity and pretentiousness make sense: They reflect the law's effort to construct a fanciful aura of authority and inaccessibility.

Courts and judges--as well as the governments that institute them--benefit from a population that fears the law. People fear things they do not understand. They cower before institutions that speak in a hard-to-understand way. It makes them obedient and respectful. That is why courts want words like "nexus" instead of "connection." If they used words like "connection," people might understand what they were saying. If that happened, more people might see through the law's charades and disrespect it. They might not even need lawyers to translate all the legal rubbish.

In this light, pretentiousness in legal writing makes some sense. It is a smoke-and-mirror routine. It is Wizard of Oz stuff. It looks impressive. But in the end it's all nonsense. Men behind velvet curtains are still men, even if they use befuddling synonyms for common words.

And the ultimate irony is that even the best legal writing will not impress the men behind the velvet curtain. They already know what they plan to do each day. Lawyers can talk and write until they are blue in the face. It won't change anything.

LAWYERS : WHAT'S IN A NAME? MORE THAN YOU THINK

AN ESSAY

Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.

But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."

People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.

But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.

Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.

Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.

Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.

In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."

This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.

In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.

But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."

So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?

In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.

This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.

But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.

In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.

SEEING, HEARING AND REMEMBERING : PATHWAYS TO UNDERSTANDING

AN ESSAY

In ancient China, Confucius allegedly said: "Tell me and I will forget; show me and I may remember; involve me and I will understand." I had never heard this proverb before. It captivated me because it encapsulates many of my views about sense, speech, memory, experience and empathy. All these things relate to each other. And they all aim for one thing: Understanding.

What does it take to understand another person? Is it enough to hear a person describe problems with words? How about observing something firsthand? What is the most effective way to find understanding and empathy?

I have often written that we humans are subjective creatures. We know only what we sense. Unfortunately, we must also depend on language because our senses have a limited range. After all, we only feel certain about something when we perceive it directly. We would prefer to see something with our own eyes rather than hear about it in words from someone who saw it. We want to understand our surroundings and the people in our lives. And the only pathway to understanding is sense.

But it is a troubled pathway. For what can we really know, let alone understand? Knowledge is not the same as understanding. Knowledge is more banal than understanding. Knowledge means that we merely manifest a subjective belief that something is true because we perceived it. Yet understanding is more subtle. Understanding means that we not only know things, but we intuitively arrange our knowledge to tell a larger story. Knowledge is about details. Understanding is about narrative. Knowledge is just an actor. Understanding is the whole play. And we don't feel truly fulfilled until we really understand something: What good are isolated facts unless they tell us something more significant?

Confucius recognized that human sense opens the door to both knowledge and understanding. Yet he also recognized that there is a hierarchy in human sense. He says: "Tell me and I will forget," implying that hearing is a weak sense. How right he is. How often do we hear language and immediately forget what we just heard? It is difficult to glean knowledge from language, let alone understanding. It is incredibly easy to forget words. After all, words are a poor substitute for actual perception. But in many cases they are all we have to reconstruct our perceptions.

Sight is better than hearing. Confucius confirms this when he says: "Show me and I may remember." Here, he does not say he "will forget." If he perceives something visually, he says he "may remember" it. Again, Confucius is right. Sight links intimately to memory. Our eyes leave "visual impressions" on our minds long after images leave our present view. When we reminisce, we engage our "mind's eye." We attempt to re-see images that have long since disappeared from sight. We may not precisely remember what we see; indeed, with time, memory weakens. So in that way, Confucius correctly points out that we only "may" remember something after we see it.

And we see all the time. It is simply impossible to recall every single thing we visually perceive every day. Our memory works best only after we see something worth remembering, namely, something exciting, unusual, captivating or appealing. To a large extent, our own subjective desires color what we remember. If we are infatuated with someone, we remember how they look with great detail. We hang on their words and even remember what they say. Yet those subjective desires obscure other details. We don't remember many things we see because we are distracted with our love interest. We are not paying attention; our emotions cloud our perceptions. Thus, while sight may be a better way to acquire knowledge than hearing, we will never remember everything we see. There is just too much going on. We cannot know everything because our senses are imperfect.

But Confucius does not end his proverb with knowledge. He goes beyond. He ends with "understanding:" "Involve me and I will understand." Understanding is the ultimate goal; the proverb builds up to it. He does not equivocate here, either. He says: "I will understand."

What is going on here? And why is understanding better than knowledge?

Anyone can know facts. You must merely have functioning sensory organs to know whether something is hot, cold, smelly, coarse, green or blue. Some facts require complex sensory deductions and inferences, but deductions and inferences are just mechanical mental conclusions. Anyone with rudimentary reasoning power can infer one fact from another.

But understanding is more transcendent than that. Understanding combines knowledge with experience and intuition. It is one thing to know whether another person is sick, obligated, depressed or happy. It is quite another to understand a person who experiences those circumstances. Understanding requires a person not only to listen, observe and infer facts about another. It also requires him to put that knowledge in the light of his own experience and honestly try to feel what the other person feels. That is no easy endeavor. It takes time to assemble experience. That is why we tell young people: "When you're older, you'll understand." After all, how can you understand a complicated emotional problem if you've never experienced the emotions that make it a problem in the first place? If you do not have experience, you cannot truly understand. You can know, but you cannot understand.

Confucius was right to extol understanding as the "higher result" of knowledge. Why do we learn? Simple: So that we can understand. And why do we want to understand? Because understanding enlightens us. It makes the world more comprehensible. Understanding equips us to help others. Understanding counteracts prejudice and shortsightedness. Violence springs from misunderstanding and ignorance. It is hard to go to war with someone if you actually understand them.

Yet the fact that human beings constantly make war on each other bespeaks a sad truth: Understanding is not common. It is hard enough to acquire reliable knowledge through hearing and sight, let alone to understand larger implications about life. Most people never even acquire the knowledge they need to understand others. Understanding is impossible without knowledge. And only a patient person takes the time to obtain the knowledge needed to find understanding.

Who has time for that in our society? Who has time to listen? And most importantly, who has time to get involved with others in order to understand them? Confucius' proverb said that involvement results in understanding. That means living with others and experiencing their lives first hand. That means living with their problems, too. Involvement is not just a pervasive sensory journey; it also is an emotional one. When you involve yourself in another person's life, you eat, drink, sleep and breathe their problems. You sense what they sense. You obtain knowledge at an astronomical rate. And because you combine your experience with theirs, you necessarily will understand them. Once you understand them, you can empathize and comfort. Or you can turn away. In either event, you are enlightened. You are no longer ignorant.

But that takes a very long time. It takes a lot of energy. To achieve understanding, then, a person must not only have experience and knowledge. He must also be patient enough to involve himself in others' lives in a compassionate way.

Sadly, neither patience nor understanding are highly prized virtues in modern American society. Yet people yearn to be understood. In most cases, they must pay others to understand them. After all, time is money in the United States. No one has time to sit down and listen to another person's deepest thoughts, let alone get involved in their lives in a meaningful way. This is one reason why people are desperately unhappy in this country. They want to be understood, but no one has the time, patience or intellectual capacity to "learn" their woes. This leaves many people feeling isolated and forgotten. Even married couples never take the time to really understand each other.

I venture that understanding offers its own rewards. It is satisfying to understand others and to understand yourself. True, it takes time, learning and effort. But it feels so good to know another person understands you. By the same token, it feels good to give back by understanding others. It is an enlightened and compassionate way to live. Despite all the impulsions to the contrary, sometimes it is good to be patient in our society.

NATIONS AND STATES ARE NOT THE SAME THING : IS THERE AN AMERICAN NATION AT ALL?

AN ESSAY

What are nations? What are states? Are they the same thing? If you listen to mass media in the United States, you might think they are. Politicians talk about the "American Nation." Colloquially, we hear terms like "all over the Nation" and "nationwide." Somehow, we have equated the word "Nation" with "country" or "state." But the word "Nation" exists for a reason: It has its own meaning. And upon closer inspection, we see that the United States really may not be a "Nation" at all.

Nations are not political entities. Nations are human populations that share common ethnic, religious and linguistic traditions and values. States are political entities. It makes sense to create a State from a Nation, but it is not necessary. In that sense, States are artificial while Nations are genetic. People in a Nation intuitively understand one another because they all speak the same language, look basically the same and represent the same cultural traditions. By contrast, there is no need for people in a State to understand one another. Several Nations can agree to live under the same State. States simply administer the law and keep order. But Nations exist regardless of the State that rules them.

States are artificial because they depend on artificial members: Citizens. The word "citizen" is a technical term. It has a specific definition by law. True, the definition varies depending on the State that creates it. But it is still a legal conclusion, not a genetic fact.

Aristotle defined "citizen" in The Politics. He said that "citizens" are people who are qualified to participate in government and to hold office. The Politics, Book III ch. i § 1275a22. "Participating in government," in turn, means "deliberating or judging" on all matters relevant under the Constitution. Id. at § 1275b13. And only States create Constitutions. Aristotle continued this reasoning by concluding that "a number of [citizens] large enough to secure a self-sufficient life we may, by and large, call a state." Id. He then posited that states only exist to the extent that citizens associate with each other under a particular Constitution. The Politics, Book III ch. iii § 1276a34. By this reasoning, states are technical: They exist only to the extent that citizens continue to recognize a particular Constitution. When they no longer agree to abide by the Constitution, the state ceases to exist. Id.

What is so significant about these definitions? They are significant because they say nothing about nations. According to Aristotle, a State exists only as a matter of law; it does not require national identity. States are technical fictions created by people who want to secure a better life. To achieve that goal, they create a Constitution that delineates government power and the rights of citizens. Citizens take their identity in the State from the Constitution, not from their national origins. As a legal matter, nations are irrelevant to the State. Strictly viewed, states are not nations, and nations are not states.

But that is just the legal view. Reality exists quite apart from law, and reality shows that national identity greatly influences state power. States function more effectively when their citizens all come from the same national background. States are more cohesive when all their citizens speak the same language, represent the same cultural traditions and live by the same basic values. When States create Constitutions to reflect shared national values, they simplify the business of government. No matter what anyone says, it is much easier to govern a relatively homogeneous population in which everyone views life in a similar way.

Perhaps it sounds archaic--or even racist--to suggest that States function best when they comprise a single Nation. After all, popular American rhetoric holds that America's strength flows from its diversity. According to that rhetoric, anyone can be an American "citizen" no matter what "nation" they represent. As long as they "participate in government and hold office" under the Constitution, they are "citizens," even if one comes from Iraq and the other from Holland. In other words, the United States--at least on paper--takes pride in the fact that its "State" represents every "Nation" on earth.

That may be so. But it is inaccurate to call the United States a "nation." Our Constitution certainly makes the United States a "state." Everyone within the territorial jurisdiction of the United States abides by technical laws passed in compliance with a Constitution that every citizen theoretically supports. Every "citizen" under that Constitution may "participate in government or hold office." That suffices to call the United States a "state." But it does not suffice to call it a "nation."

Our American republic is unique among world States because it has virtually no national identity. Our citizens represent every possible cultural, religious, linguistic and racial group. Culture, religion, language and race all influence the values that people hold dear in their lives. As such, the United States is at war with itself; its citizens hold every conceivable value and they frequently clash. There is no simple cultural unity. While every "nation" in the United States might contribute to the state's overall strength, they certainly do not contribute to a united American culture. American culture exists only as far as a particular "nation" within the United States observes it. As such, it is confusing discuss "American identity." To really understand "American identity," it is insufficient to examine whether a person is a citizen. Rather, one must look further into the person's national identity to figure out who he is. And in a state that comprises a thousand nations, that is a hard task.

Despite America's uncertain national character, there are other ways by which to measure cohesion between American "citizens." There are other ways to assess whether people come from the same "nation." Indeed, Americans from every cultural tradition have created "pseudo-nations" that link them in ways that language, race or ethnicity cannot. For example, millions of Americans love football. That makes them part of a "football nation" with a common culture and language. Millions more love television shows. That makes them part of a "television" nation with shared values and traditions. These might be weak replacements for true national identity. But Americans make do in whatever ways they can.

People yearn for national identity. States that encompass a single Nation generally radiate that identity without trying too hard. But the United States is a problematic case. Americans yearn to be "American" without really understanding that there is no "American nation." To fulfill that longing, they rally around things they all like, especially commerce.

Americans are notoriously commercial. They turn to commerce for meaning in life more than many other people in the world. I argue that this is due in part to the fact that they long for something to define them as a national group. If Americans can't all belong to a single value system or cultural heritage, they at least can all represent a worldview based exclusively on commercial success.

For better or worse, this "replacement identity" has stuck: Most people in the world associate Americans with business success, enterprise and "do-it-yourself" entrepreneurship. That is America's "national identity." If the United States cannot be a "nation" in traditional sense, it can simply rewrite the rules to suit its situation.

Commerce is America's national identity. We are a "money nation." We don't all speak the same language or have the same hair color. We don't all worship the same God or observe the same holidays. But money unites us: The maniacal, ruthless, insistent, all-consuming urge to amass cash. German-Americans do it. Irish-Americans do it. Chinese-Americans do it. Russian-Americans do it. Sengalese-Americans do it. Mexican-Americans do it.

That is our Nation. That is our culture. That is our language. That is our common ground.

One Nation, under cash, with liberty and justice for all.

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.

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.

LIFE IS NOT RATED PG-13

OESTERHOUDT STRIKES

Movie ratings amuse me. Whenever I see a movie poster, I always look at the rating box. In the old days, the rating box was simple: It just listed the rating (G, PG, PG-13, R or X), plus the general description for the rating. For G, it said "General Audiences." For R, it said "Restricted Audiences."

Now the rating box is a little more complicated. It still gives the rating and the general description. But it also gives "reasons" why the movie earned its rating. For example, it might say the movie is rated "R" because it contains "Nudity, Some Sexual Content and Drug Use." Or it may say the movie is rated "PG-13" for "Some Language, Adult Situations and Scary Images."

I know why there is a rating system. The Motion Picture Association of America started the system in order to help parents decide whether they should take their children to the movies. If a parent sees "R" at the bottom of a movie poster, then he or she would know not to take 6-year-old Johnny to see it.

But the rating system does more than "protect children from unsuitable content." I have written that it can also perform a political function by limiting access to a film if the "raters" do not like its message. An "R" rating, for instance, substantially reduces a film's potential audience by reducing the number of theaters that will show it. That, in turn, makes it more difficult for a film to reach a broad audience. In sum, raters can influence an artwork's communicative outreach by tacking on harsher ratings, even when they are not really warranted.

And who are these raters? What criteria move them? Put simply, they are private Americans with relatively little tolerance for "unconventional" ideas, language, themes, images or messages. They also have a very squeamish moral sense. Sex and nudity put them off more than violence. Breasts are more threatening than explosions and killing. If a movie even remotely strays into "controversial" ground, they will rate it "R." A straight make-out scene might only generate "PG-13." But a gay one would definitely yield an "R;" or maybe even "NC-17" if it is graphic enough. And if you dare to use the word "fuck" once in your movie: Forget it; that's an "R" for you. Hey, you could always opt for "fudge" to save your
box office.

What explains this hypersensitivity? Is it really all about the children? Why should movies that deal with "real-life things" earn harsher ratings than meaningless fluff?

Consider this: I recently saw a movie poster with a "PG-13" rating because it contained "Some Smoking." Say what? Smoking? Since when did smoking become a taboo subject? Do we really believe that our children will turn into criminals because they see someone smoking a cigarette onscreen?

I mention this for three reasons. First, I do not like the moral hypersensitivity in the movie rating system. Second, it is just not possible to shield children from every single allegedly "bad" thing in life. Third, there is little correspondence between what happens in movies and what happens in actual human experience.

Children see smoking all the time. They do not need to be 13 to know that people smoke. In fact, if their parents smoke, they probably have known about smoking since the moment they could form memories. Even if their parents don't smoke, it does not take long to see someone else smoking outside. Smoking is everywhere. Sure, it's not good for your health. But it's part of life. There's no sense morally rebuking a movie simply because it shows something that millions of people do every single day. And there's even less sense in attempting to prevent children from learning about it: Chances are they already know.

There is so much about movies that is totally unrealistic, even in movies that claim to portray reality. Movies are a fascinating medium because they lead viewers into a dimension that closely resembles reality. Yet on reflection, it is clear that they are not real--not even close. Life does not have snappy dialogue, segue cutscenes or a melodramatic soundtrack. It does not have a set run-time, either. Put simply, there is a wide range of human experience that will never appear on a movie screen. And even the most banal things--like going to the bathroom or sexuality--often earn harsh scolding from the raters.

We do and say things every day in our lives that would lead to an "R" rating or worse. Just getting undressed to get in the shower pushes us into "NC-17" territory. The human body, in other words, is a taboo subject. And movies are supposed to represent reality? How could they when they don't even show the most basic things that people do and say every day?

Movies are artificial. They do not represent reality. In that light, it is foolish to rely on them to form impressions about life because there is so much about life that they never portray.

Movie ratings are artificial, too. If anything, they simply measure the moral qualms of a few squeamish Americans. It is too bad that the raters have such a strong influence on what millions of people see on movie screens.

All I know is that my own life is not even close to PG-13. It's been NC-17 since before I could even talk. If you've ever been naked in your life, you're rated "R" at least.

Movies might spare the faint of heart. But life doesn't. This shit is rough.