BLOOMBERG V. THOMPSON

"Let's Get Back to Business As Usual!"

OESTERHOUDT STRIKES

I like New York City politics because they have a direct bearing on my life. To some extent, people are apathetic about political races because they know the outcome will not impact their lives. This is true even on the presidential level.

But local elections can have serious effects on people's everyday lives. In big cities like New York, local government is not some marginal authority that meets in a middle school auditorium once a month. Rather, "local government" in New York City is bigger than many American States. New York is home to over 8 million people. "Local government"--namely, the city council and the Mayor's Office--hold power over them. That government's policies impact everyday life in a tangible way, from property taxes to parking fines to police protection to water services to zoning to libraries to schools and the fire department. When a new Mayor takes power, it signals a real shift--and people feel the difference.

This year, New Yorkers must choose between Republican incumbent Michael Bloomberg and Democratic city comptroller William Thompson. Bloomberg is a well-known billionaire from Massachusetts who runs a blue chip stock reporting index. During his time in office, Bloomberg's personal net worth increased threefold, from $5 billion in 2002 to $15 billion in 2009. Thompson is a lifelong New Yorker with humble roots in the city service and a comparatively minuscule income. He is also black.

Most newspapers have merely dismissed Thompson. Polls show him trailing Bloomberg by 18 points or more. Most people simply assume Bloomberg will steamroll anyone who stands in his way. After all, he can afford to deluge the airwaves 24-7 with campaign ads and dominate the public debate. Life in the city has been relatively comfortable under Bloomberg's rule. Crime remained stagnant, business opportunities flourished and there have been no major social disturbances. As was true under Bloomberg's predecessor, Rudy Giuliani, the cost of living in New York has ballooned even more. Sky-high rents have made housing in Manhattan virtually inaccessible for anyone who makes less than $200,000 per year.

Yet no one really understands Bloomberg. He is neither inspiring nor divisive. He manages the city as he would a bank. He is a bloodless technocrat. He does not alienate people with controversial speeches; he merely goes about his business. He attracts businesses to New York, though this does not necessarily translate into jobs. He is indifferent to the public schools, but he approved multimillion dollar subsidies for the new Yankee Stadium. In short, Bloomberg serves a certain "type" of New Yorker. And in many cases these "New Yorkers" do not even live in the city--they just visit and spend money here. You know, on Broadway shows, tour buses and the like.

Bloomberg has been great for business. But what about everyone else? In last night's mayoral debate, Thompson drew attention to New York's widening social inequality. He asked how the mayor could continue to ignore the struggling middle and lower classes that cannot cope with both a shrinking economy and astronomical rents. The mayor has no real answer. After all, the middle and lower classes are not his priority. He has more important people to worry about, like out-of-town investors, tourists and franchise businesses.

How can the press and the people ignore Thompson's concerns? There is a palpable tension between the "prosperous" New York and the "struggling" New York. You can see it on the street. People know they have no chance to live in Manhattan anymore. So they flee to the outer boroughs in an effort to stave off relentless expenses. They can't find decent jobs. School achievement levels are flat; Bloomberg spent city money elsewhere.

In essence, Bloomberg has split New York in two. One New York is wealthy and carefree. The other is desperate and invisible. The wealthy New York holds all the power; it can project a confident image. Yet the desperate New York has no voice. Thompson wants to address this disparity.

But apparently no one cares about these serious social divisions. Bloomberg stands ready to pulverize his populist opponent. In my view, this is a sad result. After all, why does government exist if not to serve everyone in society, not just those with overwhelming economic strength? There are so many powerless constituencies in New York City. They number in the millions, but they can do nothing to challenge the status quo. Sadly, Bloomberg has achieved virtually unassailable dominance because he has pleased the "right people." They hold all the economic power; and they are very happy with the way things are now.

I think this is an unfortunate--and ultimately, unsustainable--situation. It will continue until enough people both feel and see how bad it really is. That moment, however, is not today.

Barring some unforeseen electoral catastrophe, Bloomberg will crush his socially-conscious adversary. With unlimited funds, powerful friends and general apathy on his side, how can he lose?

At least Bloomberg is not a mean-spirited asshole like Rudy Giuliani. I suppose that's the one saving grace in this whole mess. Although power will always prevail, it's at least some relief when the King is not a vindictive, venomous tyrant. Bloomberg is not a tyrant. He is just an aloof corporate manager.

I just wonder how long his winning streak can go on now that the country's economy has collapsed.

ANOTHER BREAK

My partner is coming home today after 23 days in the hospital. For the next few weeks, I will have plenty to do as he acclimates back to life; helping him make that adjustment will undoubtedly affect my ability to write posts every day. My schedule is already filling up with appointments and errands. Nonetheless, I will try my best to find the time and energy to write. I am not going anywhere. Hopefully, I will get a chance to reflect and assemble some new ideas in the meantime.

Thanks again to all my readers. I wish I could be more productive these days. But you know the reasons why I can't be. Still, I have amassed over 1000 pages now. If you ever thirst for an essay or satire, just scroll down the archive list and enjoy. I promise I will write when I can. And when the most serious stresses have past, I can assure you that I will post every day again.

I am staying positive! I really know that things will turn out for the best. There is little evidence to support me in that belief, but that doesn't matter to me. Sometimes you just know things.

I will write as soon as I can.

Oesterhoudt

USING RACIAL BIAS FOR PROFIT

OESTERHOUDT STRIKES

I saw a report yesterday on a local New York City newscast about a private nightclub that allegedly turned away several patrons "because they were black." Apparently, these patrons were all friends with a noted local author who is black, too. She was throwing a party and wanted all her friends to be there. According to the report, the doormen refused her friends entry at about 2 AM last Sunday. The report also mentioned that the club is a popular nightspot. Many people can't get in, even celebrities.

You know what's coming. Now the local author has hired a lawyer and she has filed a $1 billion class action racial discrimination lawsuit against the club. She says that the club's management engaged in racial bias against her and now she has a right to collect money damages. The report did not say which law she invoked in her complaint.

Racial discrimination is alive and well in all multicultural societies. It is not a uniquely American problem. Still, the United States is famous for its racism. Yes, we have a black President now. But this is no "post-racial society." Blacks die at a younger age than any other ethnic group in this country. They make significantly less money. They go to prison in far greater proportions. They consistently score lower on educational achievement tests. And this is no accident: There is a legacy of State-sponsored discrimination at work in America that continues to negatively impact blacks in all life pursuits.

In short, racism exists in America. It always has and it probably always will. It is a constant problem. It deserves condemnation when it appears.

But racism does not explain everything. In many cases, racism does not account for unjust results in social interactions between the races; not every white man is a bigot. I think the New York author's case represents a false racial cry. It is one thing to claim that racism exists in private businesses in the United States. It is one thing to take a principled stand against it. But it is quite another to use purported racial bias as an excuse to sue a business for $1 billion.

In short, financial motives obscure principled ones. Here, the author undoubtedly has a financial motive. If she truly cared about dignity and equality, why would she demand $1 billion to crusade for them? To an objective observer, this looks like a stab at personal paydirt, not a principled call for justice. After all, a crusader for justice wants justice, not a billion dollars.

In theory, awarding money damages for racial discrimination vindicates the Nation's interest in rooting out racism. It works by penalizing businesses for proven racial bias. If racism is unprofitable, so the theory goes, then businesses will not engage in it. But asking for $1 billion from a single nightclub is beyond the pale. It could never possibly pay that amount. If the Plaintiff got what she wanted in this case, the club would cease to exist several times over. And who would benefit from this? A few aggrieved clubgoers who could not drink and dance where they wanted one night? By demanding so much, this Plaintiff loses her moral authority and comes across as a common profiteer.

I venture that it is utterly shameless to use racial discrimination as a pretext for immense personal profit. I find it disgusting when people use this country's bad racial history to extort astronomical sums for personal gain. This author should be ashamed of herself. Even if the club discriminated against her and her friends, she would have done better to ask for a much more modest sum than $1 billion. She could have asked that any damages be paid to an educational fund or something, not her own bank account. If she really cared about racial bias, she would have used the case not so much to enrich herself than to publicly investigate the club's practices. Perhaps that is what she wanted to do along. Yet asking for $1 billion just makes her look like a cheap hustler out for cash, not a principled warrior out for justice.

I am not surprised that the author's lawyer so willingly went along with this circus act. After all, he stands to gain publicity and a hefty fee for his toils. It does not matter whether this is all just a crude attempt to shake a club down by conjuring the ghosts of America's racist past. It does not even matter whether the law supports his position. He has personal motives, just like the Plaintiff. This has nothing to do with remedying continuing racial ills in America. This is about money and fame, pure and simple.

He would be wise to mind the law in this case, too. After all, the Constitution forbids racial discrimination only when the State engages in it. See U.S. Const. Amd. XIV sec. 1 When private businesses discriminate, it is much more difficult to prevail. Federal and State laws prohibit racial discrimination in "places of public accommodation." But those laws require the Plaintiff to prove "discriminatory intent" against the private actor. That is no easy task. It is one thing for a person to think that a private club racially discriminated against him or her. It is quite another to show that a private club had an intentional policy disfavoring blacks. After all, this was a popular club. It turned many people away, including celebrities. It could conjure up virtually any explanation for its decisions. It will never admit "actual racial animus" against blacks.

From a legal standpoint, this is what it takes to win cases like this. It won't happen.

Instead, the author will scream and whine and talk to tabloid newspapers. She will attract attention to herself and boost her book sales. Some will say she suffered racism. Others will say she is exaggerating. Still others will simply ignore her.

No matter the reaction, one thing remains: She is trying to exploit America's sad racial history for crass personal profit. That is downright contemptible.

IF YOU ARE "RESULT-ORIENTED" AND "CLIENT-FOCUSED," YOU MUST BE DISHONORABLE WHEN NECESSARY

AN ESSAY

Law firm websites amuse me because they all use similar words. Generally, they like to advertise their ability to "win" so that new clients will hire them. After all, potential litigants want to win their lawsuit; there's a lot of money at stake. And no one likes losing money. In essence, law firms strut their prowess in obtaining "favorable outcomes." You constantly run across muddy phrases like: "result-oriented," "client-focused," "winning team," "success-centered" and "dedicated to your cause."

You could be forgiven if you thought law firms were sports teams. After all, they talk about winning all the time. Does that mean legal disputes are simply games? If you read civil procedure rules, you might think they are.

But I am not writing today to draw parallels between gaming and the law. Instead, I am writing to argue that the legal profession's relentless fixation on "results" requires lawyers to adopt a "result-determinative" approach to problems. That approach, in turn, makes it impossible for lawyers to adhere to larger principles without sinking into a conflict of interest.

American lawyers occupy an awkward philosophical position. On the one hand, they swear to advance principles such as "justice," "right" and "honesty" as "officers of the court" in a democratic system. Put briefly, lawyers swear to adhere to an "honor code." Put broadly, "honor" means that a person adheres to certain metaphysical ideals no matter the circumstances, even if it is unprofitable. Honor imposes restrictions on the means calculated to obtain certain results. Yet lawyers constantly use words like "results," "outcome," "winning," "goal" and "dedication to client interest." These concepts involve the ends of particular conduct, not means. An honorable man refuses to adopt certain tactics to obtain ends, even if the ends are favorable. But that puts lawyers in an uncomfortable position, because they also swear to "zealously advocate their clients' interests." In short, how can a lawyer both remain true to his honor code while retaining every trick in the book to win for his client?

As a profession, lawyers almost invariably sink into ethical conflict. Law schools attempt to remedy this problem by forcing lawyers to take an "ethics course," while States force them to take an "official ethics exam" before admission to the Bar. But ethics is not about external compliance and multiple-choice answers. No, ethics is about spirit and character. It is internal, not external. It is hard to police and even harder to teach. There is an immense difference between "the rules for being an honorable person" and "being an honorable person." Lawyers learn the rules; that is all they need to do. It does not matter whether they actually are honorable. In fact, the substance of their work makes honor almost an impossible path.

People throw around the term "conflict of interest" all the time. For the longest time, it made no sense to me. I knew it was bad; I just did not understand it. I did not grasp what it meant until I went to law school and saw what lawyers do. A conflict of interest simply means that a person attempts to serve two masters. It is about loyalty and integrity. If a person gives his full loyalty to one "master," there is no way he can be fully loyal to the other. Thus, a conflict of interest cripples a person's ability to be faithful to another. And it is not just about money. Conflicts of interest can arise between principles, too. Put another way, a person cannot remain faithful to a set of principles while contradicting those principles in the service of someone else.

This is what happens with lawyers. When the State administers the attorney's oath to newly-admitted lawyers every year, it obligates them to advance core principles, like justice, fairness, honor, integrity and collegiality . But at the same time, lawyers take an oath to "fully and zealously represent clients." From the very first moment, then, lawyers swear to serve two masters. They promise to vindicate larger principles at the same time they promise to obtain "favorable results" for their private clients. Private clients do not care how lawyers get the results they want; they just want the results. In this climate, how can a lawyer maintain his honor?

Are there any honorable lawyers in the world? Probably. I did not encounter many when I practiced. In truth, that is not surprising given the impossible ethical position lawyers must occupy. Consider this: Honor imposes restrictions on the means and methods calculated to reach a certain goal, while clients demand a certain goal. If a dishonorable method is the only way to achieve that goal, how can the lawyer remain true to both his honor code and his client?

In my view, lawyers' obsession with "client focus" and "results" reveals their predisposition to abandon honor when necessary. When a person deeply wants to achieve a goal, he adopts the means most likely to achieve it. Honor, however, might bar a person from resorting to the most effective means. Do lawyers have the courage to abstain from certain victory merely to appease their ethical sensibilities? If a lawyer could win a multimillion dollar case through some trick--and he knew no one would ever discover it--would he resort to it? If he were loyal to his honor code, then he would not. But he would if he were loyal to his client. His client wants to win. The client does not care about honor. He just wants victory at the lowest cost and lowest risk. If a dishonorable means leads to victory at low cost and low risk, so be it.

Lawyers contend with these philosophical tensions every day. They face inevitable conflict between their clients' wishes and the principles they swore to uphold. Most troublingly, this conflict has a decidedly commercial dimension. After all, lawyers need money to stay in business. Only money pays rent and keeps offices running. Only money buys cars and sends kids to college. It takes money to pay the heat bill and buy presents for your wife at Christmas. Between principles and clients, who pays money? Only clients. In that light, to whom do you think a lawyer will give his maximum effort? Honor doesn't stand a chance in these circumstances. Debt collectors do not take "honor" or "principle" as payment; they take cash, checks, money orders, bank transfers or MasterCard®.

Lawyers might say they support justice, fairness and right. They might insist that they have integrity. They might even think they have honor. They might point to the wall and show you their Bar Association plaques. Still, did justice or integrity pay for their offices? No, winning cases for their clients did. That does not necessarily mean that winning is always dishonorable. But adopting a "flexible" approach to honor greatly increases a lawyer's chances to win a case. At day's end, winning matters. Law firms say it themselves. Why should a lawyer hamstring himself with honor? Great players don't win by tearing plays from the playbook; they keep every option open.

Adopting a "result-oriented" approach to any human enterprise inevitably leads to a debate about probability. If a person wants results, he adopts means that will "most probably" lead to those results. Yet honor excludes certain means. In that sense, honor represents a barrier to sought-after results. Honor reduces the probability of obtaining results. For the result-oriented person, that is an unbearable idea. When winning matters, it is frustrating to know that effective tactics are off the table.

Honor takes many tactics off the table. For a lawyer who swears to obtain results for a private client, that is not good. Pleasing the client leads to monetary success. Fulfilling honor, by contrast, gains nothing except intellectual satisfaction. As commercial actors who need money to stay afloat, lawyers cannot survive on intellectual satisfaction. Rather, they must please their clients. In so doing, they reveal their classic conflict of interest: Client wins; principles lose (if necessary).

Their own rhetoric shows which master matters more. You don't see law firm websites advertising "polite lawyers who try their best to win consistent with overreaching ethical imperatives, but who refuse to adopt certain dishonorable methods to win you money." Nor do you see websites proudly describing their lawyers' refusal to countenance client fraud to win a case. No, ethical victories don't make good advertising material. Money victories do. Results sell, not principles.

I would like to see an honest law firm slogan: "We're all about results : You don't care how you get 'em… and neither do we."

In this environment, how can honor survive? When results are all that matter, how can a lawyer insist on principles that might threaten those results?

THE NATIONAL ALLIANCE FOR STIRRING YET EMPTY RHETORIC : AN APPEAL FOR ACTION AND UNITY

By : Mr. Burgess E. Gottlieb, Jr., Ph.D., Chief Logician and Chairman of the Board of Trustees (1995-present); Simon F. Bamberg IV Emeritus (Deceased 1890) Professor of Logic, Yale University, New Haven, Connecticut (1960-present); The National Review, Theater Critic (1967-present); Senior Fellow, New York Illusionists' League (emphasis on disappearing acts) (1981-1990).

We can solve any problem. A Nation of laws trusts its principles. And trust in principles solves problems. Thus, when we trust in our principles, we can solve anything. Logic favors our cause. Logic, too, can solve any problem. We believe in logic. That is why we are on the road to success.

There are those who say that our Nation will never recover from economic turmoil. We disagree. A well-argued speech can put all doubts to rest, no matter how severe. As Horace said many centuries ago: "Despite the darkening sky, our resolution shall brighten the horizon." With strong language and compelling logical transitions between paragraphs, we are not just confident of victory. We are certain of it.

Our opponents claim that this is no time for college essays. They even say that papers that might have earned an "A" from the most vindictive, anally-retentive graduate student can do nothing to solve intractable problems that now plague our society. In sum, our opponents claim that rhetoric merely distracts attention from hard reality.

We have a simple response for these naysayers: "Not on our watch." As a National Alliance committed to Empty Yet Stirring Rhetoric, we trust in the power of pleasant, conventional language. We believe that properly moving from verbal premise to conclusion--all the while employing traditional devices such as allusion, metaphor and contrast--can overcome any practical difficulty on earth. No tax quandary, budget deficit or even health crisis can resist a moving speech that draws parallels to sunrises, sunsets, tides or other natural phenomena.

True, practical problems demand practical solutions. But rhetoric is an exception to that rule. Just as every doctrine must yield to a caveat, so too must every practical problem yield to rhetoric. We believe in language, not complexity. We believe that people respond better to conventional linguistic displays than gloomy hopelessness. We believe that people feel better when they hear traditional speech techniques, even if the speech signifies nothing at all. Assurance goes a long way. As rhetorical masters, we understand that.

Solutions are irrelevant compared to comfort. No matter how fiercely the storm may rage outside, a great speech will always give hope. A great speech can lift even the most broken heart. Let the defeatists talk about bankruptcy and disorder. As believers in rhetoric, we speak a different language. We speak the language of hope, inspiration and grandeur. Even if our words have no basis at all in reality, they can still move hearts. And that's all that really matters. Who needs reality when you have great rhetoric?

We stand on a precipice. We stand against the wind. Today we stand. Tomorrow we rise. On the third day, we shall prevail. There is no day but what we make. These are our days. We are what we say. We are the People because we are free. Let freedom ring. We refuse to go quietly. We shall never surrender.

No issue can withstand a well-placed cliché. No problem can frustrate an inspiring, empty phrase. We are the People. We are unafraid. We are not afraid to believe in empty words. They make us feel good. We expect to hear them. We like to hear what we expect.

We believe in logic, too. Like rhetoric, logic assures us. Men named George all live to be older than 50. If a man is named George, he will not die at 36. This man is named not named George. Therefore, he might die at 36. Who can resist logic?

What difference does it make in the end whether we actually solve problems? As long as we speak fluently and make logical sense, we have succeeded. We understand that people do not really want solutions; they just want to hear what they expect. Logic and rhetoric sound nice. One idea flows from the next. People deserve to hear what they expect. That is why we believe in logic and rhetoric. Convention is more important than reality.

What is reality but what we believe? Rhetoric makes us believe. Thus, rhetoric can shape reality. Our opponents say that we do nothing but talk. But talking creates reality as much as action does. And when enough people listen to us, we truly change the world. That is why our rhetoric is not as empty as our critics think. We even use similes to help our listeners grasp our points: "Like a sturdy oak, our roots run deep."

We do not need to explain. It just sounds good. And people believe in things that sound good.

Now is now. Right now means right now, not yesterday. Yesterday means yesterday, not last Friday. It is time to seize the moment. Put your faith in appealing language. What do you care about reality? Let language become your reality. Isn't it about time that you believed in something? Do not put your faith in fickle facts and figures. Put your faith in inspiring phrases, hackneyed slogans and memorable one-line syllogisms. Life is complicated enough as it is. Give your mind a break. You must simply decide to believe. You must simply accept the rhetoric. Then you will be free.

You know you want to. You want to suspend your disbelief. You want to say: "I am the People" without guilt or embarrassment. You can do it. Answer the call. Be part of the solution, not the problem. All you need to do is listen. All you need to do is be free.

Let us all unite for a simpler world. Let us all unite for language we can all anticipate and admire. This is not a time for division. This is a time for healing and love. Healing and love are better than discord and strife. Belief in rhetoric leads to healing and love. Healing and love lead to unity, not division. Therefore, you must believe in rhetoric if you wish to unite. It is not just the most comforting choice; it is also the logical one.

You see? Rhetoric does not exclude logic. In fact, good rhetoric makes logical sense. In that way, it marries emotion with reason. It offers the best of both worlds. Great rhetoric lets us feel at the same time it prompts us to think. Just as the blacksmith smelts ore and charcoal to make steel, so too does the great speaker marry reason and emotion to create rhetoric.

But enough of that. It is time to believe. It is time to trust. Give in to rhetoric; you can do it. Haven't you endured enough uncertainty in your life? Well, it's time to move on. It's time to let yourself be swept away in grand rhetorical fantasies. There is no reality but what we make. Today is yours. You can believe.

Today is a moment in time. Grasp your moment. Time is yours. There is no time but today. And it is time. Together is better than apart. Together, we can do anything. Let's get together. Because together is better. It is time to get together.

TAKING ON AYN RAND AND A WORD ON MY FOCUS THESE DAYS

A REFLECTION

Yesterday I bought Ayn Rand's The Fountainhead. For years, I've debated whether to read Rand's books. I always decided against it because I yielded to the general left-wing prejudice that Rand is a "capitalist muse" and "free market apologist." In submitting to that prejudice, I thought that because I lean toward socialism, I would inevitably feel revulsion if I read her works.

But I do not want to be intellectually prejudiced. I have always enjoyed reading authors whose ideas I detest, notably Adam Smith and St. Peter. I also really enjoy reading judicial opinions by arch-conservatives whose utter lack of sympathy provides me with prime material for satire. In short, I like understanding how my ideological opponents think. I disserve myself when I simply avoid their works. It is much better when I take the time to read them, and then ruthlessly criticize them. In most cases, my criticism takes satirical form. In some cases, however, I respond with text-based essays. In the process, I see my own values more clearly. To quote an old Chinese general (probably apocryphal): "If you know your enemy and you know yourself, you cannot lose." That explains my attitude toward reading everything, even the stuff university liberals urge me to avoid.

Ayn Rand has obviously had immense philosophical influence in America. I see people reading her books all over the place, even in the New York subway. Generally, they are well-groomed looking people (always white; usually women) with small bags who look like they are going to work or coming from work. I want to understand why her ideas have won so much traction over the years. I hear that she sings odes to the individual. In that sense, I share her views. But I also hear that she sings her odes in the key of "self-interest" and "free market economics." Here I part company with Ms. Rand. Still, I will withhold calling her books "scandalous drivel," "the most abysmal trash ever printed," "repugnant, odorous nonsense," or "sheer right-wing balderdash" until I have taken the time to read them and grasp their arguments. Contrary to most American judges' approach to judicial work, I will actually give Ms. Rand her day in Court before hanging her.

So far I have read the first two pages. I am not impressed with the style. "Wet with sunrays?" "Granite explosion?" "A body of long straight lines and angles, each curve broken into planes?" This sounds like bad high school poetry, not cogent economic analysis. But I am too hasty... perhaps in the next 600 pages I will uncover some comprehensible passages.

I also noticed that Ms. Rand published The Fountainhead in 1943. This was the height of FDR's New Deal. Was she angry about governmental intrusions into "private economic autonomy?" If she was, then her position mirrors modern-day conservative objections to increased governmental encroachments into private enterprise. Just as FDR revolutionized government's role in everyday American life during the 1930s and 1940, so too is Obama "threatening" increased government involvement in American life. I think this makes reading Rand a worthwhile enterprise; there is a historical parallel at work.

Having said all this, I am sure you have noticed that I have not written a satire in a while. In less fractious times, I generally alternate between essays and satires each day. But in recent weeks, my life has been fractious at best. I am happy to have mustered the strength and mental intensity to write anything at all. My satirical ideas arise when I feel relatively carefree and confident about the future. I have not been feeling that way lately. To the contrary, I feel as if my mind is in a vice grip. I cannot really see past tomorrow or the next day. I live from hour to hour. Things have improved since last week, but I am not healed yet. Still, I am glad that I have the mental clarity to write a few essays, even if they are not as nuanced or expansive as usual.

I can assure you that more satire will land on these pages. It's just going to take a while until I can really laugh hard again. In the meantime, thanks for reading what I manage to throw down.

THE LAW HAS NO POWER OVER SOMEONE WHO DOES NOT CARE ABOUT HIS BODY

AN ESSAY

In many essays over the last year, I have paraphrased Martin Luther's argument that the law has power only over the body and property. See, e.g., On Governmental Authority (1523) at p. 23: "The temporal government has laws which extend no further than to life and property and external affairs on earth[.]" Luther draws a distinction between "worldly authority" and "divine authority." He says that the "world is God's enemy" and that a wise prince is a "mighty rare bird." Id. at pp. 60-61. Yet at the same time, he asserts that worldly authority fulfills God's will because it targets "wickedness" and protects meek Christians from violence. Thus, while worldly authority may be crass and unappetizing, it performs a "Christian" function by restraining criminals from inflicting violence.

These ideas influenced me. They further weakened my already weak respect for the law. I shared Luther's low estimation of the law precisely because of the law's base subject matter. In the final analysis, the law's power derives solely from its ability to impact men's bodies and their property. These are external things. They do not transcend time. They have nothing to do with men's beliefs, conscience or thoughts. They are ephemeral, even petty. Human beings who live only to satisfy their bodies and gain property are superficial creatures. Some might even call them hedonists, or at least fatally selfish. Ironically, however, commercial success depends solely on gaining property, which translates into bodily comfort. Commerce typifies "the world." It scarcely warrants surprise, then, that Luther said "the world is God's enemy."

Despite its superficial powers, the law relishes its authority. And for good reason: Because people value their bodies and property so much in this world, it makes sense that they respect the law. After all, the law can seize their property, injure their bodies and take away the things that give them pleasure. True, it cannot compel them to believe things or have honor. But most people could care less about those things. They just want to use their bodies as they wish and buy things that make them feel good. The law influences them because they know the law can impact their bodies and property. It holds them in check because no one wants to experience bodily pain or discomfort, nor does anyone want to lose property. The law works because people are superficial: They like their bodies and property, so they are afraid to lose them.

But what would happen if someone had utter contempt for his body or property? What possible influence could the law have on a man who did not care whether he suffered pain, or whether he owned anything? In a word, the law would wield no power over such a man. If he truly did not care whether someone imprisoned him, beat him, tortured him or executed him, nothing could possibly restrain him from acting in a way that would give rise to those penalties. In the same way, if he did not care whether he lost everything he possessed, the law would not impress him with garnishments, judgments, forced sales or seizures. Put simply, men who do not value their bodies or property can live beyond the law's influence.

That is not to say that the law would not take action against such a man. If the man committed a crime warranting imprisonment, it would imprison him. But the man would not care. In a strange way, his apathy and indifference to punishment would deny the law's effect. The law proceeds on the assumption that it inflicts suffering on an offender for acting in a way it condemns. It asserts its power by doing something to the offender that the offender does not like, just as a parent asserts its power over a wayward child by spanking him. The offender does not like bodily pain, just as the child does not like spanking. Yet if the offender really does not care whether his body experiences pain, what power does the law really have?

In short, anyone with pure contempt for his own body or property can deny the law's effect. Although the law rarely admits as much, it asserts power over its subjects by doing painful things to their bodies and property. How else would it maintain control if it did not threaten to take things away that people enjoy? How else would it force compliance if it did not threaten physical misery for failure to comply? Laws might seem "objective," but they really depend on basic human aversions to pain. By the same token, laws only function because they assume that people do not want to suffer bodily pain. Like any power institution, they enforce their will by threatening to do something the subject does not want. Legal scholars can talk all they want about "neutral laws." But in the end, laws depend on subjective reactions to threatened consequences. People don't like it when their bodies suffer or when they lose their property. So the law threatens those things in order to enforce its commands.

But what about the man who refuses to care whether he feels pain? The law cannot intimidate him. It cannot "entice" him to act as it commands. This is the purest possible rebellion against the law, for even if the law penalizes his body, he does not feel he is losing anything he wants. A penalty only asserts true power when the violator feels that he is enduring something he does not like. Most people do not like bodily pain. That is why the law generally works when it inflicts physical pain: It forces the subject to feel something he does not like. That is real power.

Not so for the man who accepts pain without caring. The law asserts no power over him. It does not force him to experience anything he does not want. By remaining indifferent to physical pain, he denies the law's power. He does not allow it to make him feel any worse than he would on his own. That is rebellion.

Still, how many people can truly ignore their bodies and their property? Nerve endings do not lie. From a theoretical standpoint, however, the best way to revolt against the law is not to care about your body or your possessions. That is a very hard thing to do in this society.

On the other hand, think about "martyrs" and "noble men." Jesus Christ endured excruciating physical agony but did not let it affect him. So did all the "Christian heroes" who willingly suffered torture and death because they had contempt for their bodies and the "things of this world."

In general, the law strikes fear because it targets the things that most people live for: Bodily comfort and property. But it loses all its power when it punishes people who do not care about those things.

MICHAEL MOORE IS RATED "R" : APPARENTLY, COGENT SOCIAL COMMENTARY IS FOR RESTRICTED AUDIENCES ONLY

OESTERHOUDT STRIKES

I still have to watch Michael Moore's new movie, Capitalism : A Love Story. To prepare myself for his latest offering, I went back to the catalogue and watched Bowling for Columbine (2002). It made me laugh and cry all at the same time. But this time I noticed something interesting about the movie that I never considered important before: It was rated "R." The Motion Picture Association of America (MPAA) said it deserved an "R" rating because it contained "Language and Some Disturbing Images." That piqued my interest. Then I noticed that Fahrenheit 9/11 (2004) and Capitalism : A Love Story also were rated "R."

I recognized at once that the MPAA does not like Michael Moore. Bowling for Columbine did not even remotely deserve an "R" rating. Its "disturbing images" were no more than stock news footage showing gun violence in America and abroad. There was no bloodshed. By the MPAA's reasoning, virtually every nightly newscast in the United States should be rated "R" for "some disturbing images." So should almost every National Geographic Channel documentary and World War II show. And the "language" that earned the movie an "R" was this: A single use of the word "fuck" by Marilyn Manson during an interview about violence in American society. I could make only one conclusion from this: The MPAA did not like Moore's "provocative message" about American society, so they "pulled power on him" by slapping an "R" on his movie.

It is no small thing for the MPAA to dish out "R" ratings. "R" ratings reduce a movie's potential audience by up to 83%. They dramatically weaken its chances to speak to millions. As a documentary, the movie intended to reach a broad audience base. By all objective measures, the movie's content should not have warranted an "R." But the MPAA obviously felt uncomfortable with Moore's message, so they took action to automatically minimize its potential impact. The MPAA projects "authority" by vindicating "American values," like obedience, patriotism and respect for social hierarchies in an unequal commercial system. Michael Moore wages war against those values in every movie he makes. It is no surprise that the MPAA--as a corporate entity--jumped at the chance to take petty revenge against Moore. Michael Moore is a corporation's worst nightmare. He is the archetypal populist gadfly. He speaks all the words corporations try to suppress. What better way to stymie the gadfly than by restricting the number of people who can hear his words?

Michael Moore is a controversial figure. People either love him or hate him. Anyone with a trace of conservative blood generally detests him with homicidal passion. Moore haters say he "distorts the truth," "gets his facts wrong," and "sensationalizes issues," all while "being rude" and "intruding on people's privacy." Many say he "just lies."

But Michael Moore never intrudes on anyone who doesn't deserve to be pilloried. He "fights the power" in the purest sense. He only castigates those who use power over those who do not. He does not ridicule the weak. He is not afraid to call powerful people on their hypocrisies, nor is he afraid to uncover the injustices that poison American life. Naturally his targets resent his efforts; the truth always hurts. Typically, his targets respond that he only tells "half the story" and "says things inaccurately." Still, Moore's impact flows from his conceptual strength. His messages are effective because they broadly contrast principle with practice. That effectiveness does not depend on rigorous accuracy. As long as the basic ideas work, so does the film.

Power does not like exposure. The MPAA is an institution of power. It is only natural that the MPAA would use its institutional authority to strike at Michael Moore. After all, Michael Moore exposes and embarrasses power in every movie he makes. But why is the MPAA so powerful? Why is it so arbitrary? It is not a governmental institution. If it were, it could never pass judgment on artistic works consistent with the First Amendment to the United States Constitution. Only State actors must abide by the Constitution. Private actors--like the MPAA--can ignore it all they want. In essence, then, the MPAA is nothing more than a collection of powerful private individuals who get to pass judgment on artistic works for any reason they want. And they don't even need to explain why they judge as they do. Unlike judicial officers, they don't even need to reference laws and precedents to support their conclusion. They can just say: "I gave it an 'R' because I didn't like it and I think I heard the word 'shit' in it."

So why do filmmakers submit to the MPAA's ratings? Simple: Movies must have ratings to enter mainstream distribution. Without a rating, no commercial movie theater will show a film; it will be doomed to arthouses and college campuses. This might satisfy fringe directors and hardcore artists. But most artists want as many people as possible to hear their messages. The only way to really "spread the word" is to obtain mainstream distribution. And the only way to do that is to submit to the MPAA's asinine review board. That is why every director struggles to appease the MPAA's private censors. Even then, if the MPAA board does not like the director or his message, it will find reasons to restrict his audience with a harsher rating. That is what happened to Michael Moore.

I think this is really shameful. In essence, the MPAA channels artistic expression in this country to conform with the authority-serving values of a private committee. Artists willingly pay tribute to those values because they want to reach the broadest possible audience. And in some cases, the committee will do its best to restrict a filmmaker's audience no matter what the filmmaker concedes. Again, this is what happened to Michael Moore. The committee simply does not like his messages, so it branded his movies with "R" ratings to prevent more people from seeing them. Only bias and prejudice can explain why Bowling for Columbine and Fahrenheit 9/11 received "R" ratings. A documentary that shows mildly violent stock news footage and broadcasts one expletive should not be deemed "unsuitable" for people under age 17.

I really don't think Michael Moore cares whether the MPAA rates his movies. He is going to say what he wants to say no matter what. He knows many people will categorically oppose him simply because he is Michael Moore. Yet I find it despicable that the MPAA can dare to call a movie "restricted" when it merely collages images that we see on television news broadcasts every night. American life, I suppose, is rated "R," too. Or maybe "NC-17" would be more like it.

LEARNING SOCIAL REALITY THROUGH THE NEW YORK SUBWAY SYSTEM

A REFLECTION

I first moved to New York in 1996. Almost at once, I fell in love with the subway system. I loved the idea that you could get virtually anywhere in town from anywhere else in town. At first, I struggled to learn all the color-coded lines and their destinations. I did not dare to leave Manhattan. As an 18-year-old whipper snapper at Columbia University, I was told that going above 120th Street would get you killed. So would going to Brooklyn, The Bronx or Queens. Not coincidentally, Columbia seemed to insulate itself from the "natives" outside by demarcating its property with massive stone walls studded with guarded steel gates.

In hindsight, the racial implications inherent in this "advice" seem both shocking and absurd. Yet as a freshman in New York, I believed that the city was a "dangerous place." That contributed to its magical charm, at least for me. In 1996, Giuliani had only been in power for two years. New York still seemed thrillingly nasty compared to my sleepy suburban homestead in Connecticut. I gobbled it up. For me, riding the subway was like a second university education. I learned New York by riding the trains--and by watching the people on them.

It took me a while to escape the xenophobic prejudices we learned during Orientation Week at Columbia. But I remember one day before Christmas Break in December 1996 I decided to "risk my life" by riding the "N" train beyond Manhattan. I rode all the way to Coney Island.

It was a dark, forbidding winter night. I sat alone in the car, gazing wide-eyed at the passing stations. Very few people boarded or left the train. I kept thinking: "OK, I haven't been mugged yet; and I'm tough because I'm in Brooklyn now!" Then the train popped above ground. It was the first time I had ever been on a subway with elevated tracks. Many New York lines run above ground, but this was my "first time" on an El. At this point, I felt pretty cool. I just looked out over the Brooklyn night with Manhattan glittering in the distance. Yet at the same time, I felt as if danger could strike at any moment. That was what I loved about New York: I relished it because it was so smelly, so nasty, so abnormal, so dangerous, so unlike everything I had been raised in. But that's what made it beautiful.

I made it all the way to Coney Island without dying. No one even threatened to kill me. After I got there, I walked around the decaying train station near the shuttered amusement park. I felt like I had stepped back into the movie "Once Upon a Time in America." I suddenly remembered a scene from that movie in which the young gangsters locked a treasure in a strongbox on Coney Island. The storefronts looked like they hadn't been renovated since the 1920s. I went to a little fudge shop in the station and bought a big block of vanilla fudge for $1.00. "How cool is this?" I thought. The station smelled like urine mixed with disinfectant. After about 25 minutes, I got back on the train and headed back to Manhattan.

I survived Brooklyn. I was a New York veteran now, unlike all those cowards who stayed holed up in their Columbia dorm rooms.

Within 90 minutes, of course, I was holed up in my Columbia dorm room.

I recount this story because it was an early voyage in my lifelong love affair with New York and its subways. Over the years, I ventured out into the city more and more. I wanted to see all the places that tourists didn't see. I wanted to see the "most dangerous" parts of town, not the prettiest ones. I rode the trains for 8 hours at a time, stopping to take walks along the way. Eventually, I started bringing a camera on my trips. I snapped hundreds of shots. Thankfully, I still have them all. It's only been a decade since I took those pictures. Yet the New York in those pictures no longer exists. Things change fast around here, even without terrorist attacks.

I don't take pictures around town anymore. But I still know the subway system inside and out. I even know its history. The subway system has evolved over time, just like America's economic system. When the first subway opened in 1904, it was a private enterprise. The city had nothing to do with it. A private corporation called "Interborough Rapid Transit Co." (the "IRT") built all the lines and stations that now bear "numbers" rather than "letters." Back in those days, they referred to the train by the line it traveled. For example, it wasn't the "1 Train;" it was "The IRT Broadway/7th Avenue Local." It wasn't the "4 Train;" it was "The IRT Lexington Avenue Express/Jerome Avenue Line." Now, if I need to ride uptown on the West Side, I joke with my friends that I'm "taking the IRT." I like old stuff.

Hundreds of immigrants died building IRT tunnels and structures. The IRT opened during the golden age of capitalism; and the IRT got the job done. But true to capitalism's spirit, the IRT soon faced a private competitor: Brooklyn Mass Transit Co. (the "BMT"). The BMT built numerous lines throughout Brooklyn and Queens, siphoning off riders from the IRT. Price wars ensued.

With the Great Depression, however, the private companies could not continue operating without government aid. The city increasingly subsidized the IRT and BMT. In the mid-1930s, with New Deal funding, it even opened up its own subway system: The "Independent Subway" (the "IND"). Soon thereafter, the private subway companies folded. By the 1940s, the city took over from the private companies and began running their systems. In the case of New York City subways, capitalism did not work. The government took over, and--truth be told--it has done a very good job managing mass transit.

In a way, the fall of private subways in New York mirrors the New Deal that swept the country under FDR. Government got involved for the better. And it proved that government solutions sometimes work very well, despite all the whining from free market apologists. The sky did not fall when the city took over the subway system. Nor did it fall when government began regulating the securities markets.

Today, you can still learn a lot by riding around on the New York subway. You can see social reality at work, along with all the maddening inequality that comes with life in a big American city. New York--like America--is splintered along economic, ethnic and social lines. Blacks live in poor neighborhoods in the Outer Boroughs; affluent whites live in premiere Manhattan areas. Yet every neighborhood has a subway station. You can tell whether you're in a rich neighborhood by looking at the station and how many people get on the train. Stations with lots of paying riders get overhauls. They get new stairways, new elevators, new tiling, new lighting and new tracks. But poor stations with few paying riders rot away; they look like they are caught in a time warp. You know the neighborhood is bad when there are crumbling platform edges, decrepit columns, bad signs, dingy light fixtures and a bad PA system. This is classic American inequality. And it's all right there to see on the New York subway.

I also discovered that the MTA (Metropolitan Transit Authority) publishes a "Ridership Table" detailing how many riders patronize each of the system's 468 stations. A quick glance at the figures confirms the inequality that simple observation reveals when traveling over the rails in New York. You can also see who lives where, and why some stations have many more paying riders than others. By studying these numbers, you can see demographic shifts at work. See http://www.mta.info/nyct/facts/ridership/ridership_sub_07.htm.

Consider the BMT Canarsie Line, AKA the "L Train." This train runs along 14th Street in Manhattan, then goes under the East River and into Brooklyn. Right across the river is a neighborhood called Williamsburg. The "L Train" conveniently stops right in the heart of the neighborhood at a station called "Bedford Avenue." Until the 1990s, Williamsburg was a largely Hispanic, working class district with a significant industrial base. As rents in Manhattan increased under Giuliani, however, many white Bohemians and young professionals fled across the river. They settled in Williamsburg. In the last 15 years, rents in Williamsburg have ballooned beyond all recognition. It is a "hip" and "trendy" place to be. Wine bars and vintage clothing shops have displaced textile factories. The MTA's ridership report confirms this demographic shift. In 2007, more than 5,600,000 people boarded trains at Bedford Avenue, far more than any other station along the "L Line" in Brooklyn.

Williamsburg's well-paid colonists can afford the fare. That explains why residents further along the "L Line" do not use stations nearly as much as those around Bedford Avenue. The "L Line" travels deep into Brooklyn and its allegedly "bad neighborhoods" like East New York and Brownsville. Leaving aside the question whether these neighborhoods are "bad," the MTA Ridership Report shows one thing: Not many people use the subway in these neighborhoods compared to the folks in Williamsburg. Consider the dilapidated "L Train" station at Bushwick Avenue-Aberdeen Street. Here, only 315,000 people boarded trains in 2007, even though it's only a short hop from Williamsburg.

Why the discrepancy? Simple: New York neighborhoods are segregated. Five and half million people could pay $2.00 a ride at Bedford Avenue in 2007, yet only 315,000 could do so at Bushwick Avenue. Two dollars might seem insigificant, but for people in Brownsville, it's a considerable expense. Other factors explain the discrepancy, too. Many people ride the subway to get to and from work every day. In Brownsville, unemployment is extremely high; there is no need for unemployed people to ride the train into the city. No one used the Bushwick Avenue station in 2007 because most people in the area are so poor that they could not afford the (then) $2.00 fare and because they had no jobs requiring subway transit. It is an economically depressed area. It is also largely African-American, and the crime rate is much higher than in more prosperous districts.

Just ride the New York subway and study ridership data to understand social realities in New York. Overall, New York is an extremely wealthy city. It generates phenomenal wealth. Rents in Manhattan are dizzyingly high. Yet just a few yards from luxury condos stand destitute housing projects teeming with unemployed, desperate people. You do not even have to go above ground to know that there are haves and have-nots in New York. Just ride a subway line and note the crumbling stations where no one seems to be waiting for a train. Then look at the ridership report and put the pieces together for yourself.

We hear that the gap between rich and poor is growing in this country. In New York, it has been obvious for a very long time. I saw it the moment I started riding trains around town. And it's only getting worse.

RECRUIT OR HIRE? WHEN DID PRIVATE EMPLOYMENT BECOME A MILITARY CAMPAIGN?

AN ESSAY

Our language is organic. Words that meant something 50 years ago mean something completely different today. Even words that meant something 10 years might have changed. "Gay" and "epic" come to mind. So does "fail." All this interests me because it shows that language is never static. I might complain when words degenerate or mutate because I became accustomed to their older usages. But words change by nature. Language evolves much more quickly than we do. In many ways, we should be thankful for that.

But many linguistic changes deserve condemnation. In particular, I do not like changes that weaken a word's impact or meekly skirt a concept without piercing its heart. Euphemisms fall into this category. To say "collateral damage" when you mean "bombs veered off target and killed 42 children," you are not conveying reality with your language. Put simply, euphemisms reveal discomfort with language. They also reveal a discomfort with the truth, to the extent that we can all agree that something happened at a certain time and place. When a speaker resorts to euphemism, he fears what will happen if he uses truthful language. Euphemism, then, sacrifices linguistic accuracy for the speaker's comfort. In the end, everyone loses; only historians and investigators will find the truth behind meek language.

Euphemisms are not the only linguistic dilutions that obscure truth. In recent years, a nauseating "corporate" language has developed that not only obscures truth, but also fundamentally betrays traditional etymological meaning. This development coincides with rising corporate influence on American government, as well as the hypnotic "career myth" that permeates modern American society. Corporations wield far more power than they like to admit. And they do not just wield economic and social power. Through language, they wield a power over meaning that transcends generations.

In the movie "Into the Wild," the main character is a wanderer who rejects a "traditional approach" to life by venturing into the wilderness. Along the way, an old man encounters him. The old man says something like: "Son, you're 23 years old. Don't you think you should start thinking about getting a job and making something in this life?" The young man responds: "I think the whole modern notion of a career is a 20th Century invention. I choose not to partake in it."

What an interesting line. It matches my view that corporate power in America increased at the same time Americans convinced themselves that "careers were essential" to individual happiness. The wanderer in "Into the Wild" correctly observed that the meaning of the word "career" fundamentally changed in the mid-20th Century. Before 1950, very few people went to college to prepare for a "career" at a private corporation. Instead, they got a basic education and went to work for small businesses (if they lived in cities) or in agriculture (if they lived in the country). A tiny minority went on to college and entered learned professions.

After 1950, however, more and more people abandoned those "old ways" and began following a new paradigm: Go to college, get a job at a private corporation, make lots of money, buy a home live in the suburbs, raise a family and live in relative comfort until pension and death. This was a new life path in 1950. Yet it took hold very quickly; it completely altered America's social landscape. And as more and more people embraced this lifestyle, America's private corporations assumed their commanding influence in American life. Corporations generated the wealth that propelled this new lifestyle. Without them, it would all fall apart.

Against this background, it should come as no surprise that corporations began wielding more power after 1950 than they did before. As America's overall lifestyle changed, so did its habits. Since 1950, the United States has become a voraciously consumer society. Americans spend more money than they have, and that is just the way corporations (and banks) like it. All the while, they depend on private employment with corporations to sustain the money flow necessary to buy all the wonderful things consumer culture has to offer. It is an endless, spiritually vacuous cycle. At the same time, corporations rake in all the profits. They bombard the airwaves with advertising. They speak all the words. And Americans have listened for about 60 years straight. It is no wonder that corporations have assumed power: They have a captive audience that wants to buy all the things they sell.

But I am not writing about advertising or commercial power today. I am writing about language. To illustrate just how much corporate "culture" has infiltrated American life, consider two words: Recruit and hire.

Today, corporations proudly talk about their "recruiting efforts." In 1920, employers used to say: "Doggone it, Joe, we need to hire someone to replace the cashier who quit last week." Now, they say: "Call up the recruiting agency. We need to recruit someone to assume the junior sales associate position following the previous junior sales associate's withdrawal due to personal pressure." In both instances, the employers want to do the same thing: To find a person to do a job for pay. In 1920, the employer says "hire." In 2009, he says "recruit." Why the change? Shouldn't different words have different meanings?

Of course they should. Strictly viewed, "recruit" and "hire" are not synonyms. They are not the same as "crimson" and "red." They involve fundamentally different concepts. "Recruit," for instance, has a genuinely military connotation. The word stems from the Latin "recrescere," meaning to "grow again." According to Webster, the transitive verb "recruit" means: "1. To raise or strengthen (an army, navy, etc.) by enlisting personnel; 2. To enlist personnel into an army or navy; 3. (a) To enlist (new members), as for a party or organization; (b) To hire or engage the services of a person." Webster's New World College Dictionary (4th Ed.). The dictionary defines the intransitive verb "recruit" to mean: "To enlist new personnel, especially for a military force." Id.

In this light, what does "recruit" have to do with private employment? A quick look at the dictionary shows that "recruit" has an almost universally military meaning. It involves "enlisting personnel" for military purposes. Only Meaning 3(b) hints that it might involve private employment. In that meaning, we see a link to the old concept "hire." There is a distinction between "hire" and "recruit." The distinction is a military one. Our language delineates between military "regrowth" and private "hiring."

Yet private corporations have co-opted the verb "to recruit." They like to say "recruit" rather than hire. Why? Is private employment a military campaign? Armies recruit when they suffer casualties in battle. Do private corporations fight battles and incur losses? Certainly not. But this example precisely illustrates how private corporations have infiltrated and plundered the English language. "Recruit" no longer has a distinctly military connotation. Now, it is nothing more than "hiring."

On the other hand, corporations have also stolen another military word in order to describe resignations and firing: "Attrition." The military justifies "recruitment" when "attrition" thins out the ranks. Corporations "recruit" when "attrition" results in open job spots. In the military, "attrition" means guys got their heads blown off and need to be replaced. In private corporations, "attrition" means some guy got up from his desk at the insurance company and said: "Fuck you, I'm outta here." He, too, must be replaced. So the corporation "recruits" a replacement.

What about "hiring?" Why is "hire" insufficient for private corporations? In my view, "hiring" much better describes what private corporations do to replenish their work forces than "recruit." "Hire" is a pure English word with Germanic roots. It is related to the Dutch word "huur" and the German "heuern." Both kindred words mean to "rent out" in a commercial setting. They do not involve the military, nor do they involve "regrowth." No, "hiring" is a commercial word, and it has always been a commercial word. It is only fitting that corporations--as the ultimate commercial actors--should use commercial words to describe their activities. The dictionary defines "to hire" as: "1. To get the services of a person or the use of a thing in return for payment; employ or engage; 2. To give the use of a thing or the services of a person in return for payment." Webster's New World College Dictionary (4th Ed.).

What could be clearer than that? "Getting someone's services for payment" or "employing" them: That's hiring. That's what corporations do. So why must corporations say "recruit" when they mean "hire?" No matter how intensely corporations might pursue "market success," they do not wage military campaigns and they do not suffer casualties in battle. They have no right to use the specialized word "recruit" to describe their purely commercial quest to obtain people's services for a paycheck. The army "recruits" at the "recruiting station." Corporations "hire" at their "offices." There is a distinction in the language that should remain intact.

In my view, corporations have corrupted the word "recruit" and robbed its unique meaning in English. They have succeeded. They hold much more power than Americans care to admit. After all, corporations represent the pathway to "career" and all the miraculous consumer goods that flow from a career's cumulative paychecks.

Most Americans could care less whether corporations commandeer the English language. They just want the paycheck. They don't care whether they are "recruited" or "hired."

I care. I think deeply about language and its transmutations. It saddens me when powerful interests can change our language at will. But I am not normal.

OBAMA DESERVED THE NOBEL PEACE PRIZE, NO MATTER WHAT ANYONE SAYS

By : Ms. Charlene E. Everson, Chairperson, The Obama Fan Club of Greater Tuscaloosa; Democrat; Believer in Miracles; High School Graduate.

President Barack Hussein Obama won the Nobel Peace Prize yesterday, and for good reason. Despite Mr. Obama's repeated successes over the past nine months, many critics say that he has "not done enough" to warrant the coveted international award. They say he has not had enough time to amass the achievements necessary to deserve it.

We strongly disagree. Mr. Obama's achievements speak for themselves. The committee presented the Peace Prize to Mr. Obama not only because he ended the Israeli-Palestinian conflict and convinced Osama bin Laden to open fast food restaurants (featuring trademark Tali-Shakes and al-Sadr Sandwiches at 5000 US locations), but also because he perfected a cold fusion procedure that solved the world's energy crisis overnight. Mr. Obama is not just a concerned politician; he is a first-rate scientist, ethicist and humanitarian. The Nobel Committee considered all his strengths before it awarded him the prize. It was neither hasty nor careless.

Mr. Obama deserved this prize. Since January 20, 2009, Mr. Obama has achieved monumental advances in many fields. He walked on water on March 14, prompting ecstatic international celebrations. He healed incurable cancer victims on June 2 by touching their heads and earnestly repeating: "Together, we can." And on July 7, he traveled to Zaire, where he both stopped the war between rival militias and magically caused 600000 tons of food to appear. This immediately ended the famine plaguing Central Africa. Mr. Obama's compassionate efforts to help the sick and the hungry clearly warrant his consideration for the Prize.

Mr. Obama is not just a great President. He is a miracle worker. His miracles offer change we can believe in. Bullets fired in his direction veer off target. He can survive plane crashes and raging infernos. He can fall 1000 feet and survive. Not even earthquakes can stop him from bringing hope and relief to every corner of the globe, including Armenia and Turkey. True to his campaign promises, he has stopped all hatred and racism worldwide. Former enemies are now lovers, whether gay or straight. He has saved people from volcanic eruptions, discovered an AIDS vaccine and punished ruthless criminals who mistreat livestock. In a word, Mr. Obama respects all life, not just human life. That commitment to life won the Committee's praise.

In addition to all these achievements, Mr. Obama has brought love and happiness to everyone on earth. Since taking office, violent crime has ceased worldwide. No one has committed suicide because everyone feels that life is worth living again. Sales for prescription antidepressants have completely stopped. Put simply, now that Mr. Obama is the American President, everyone on earth is happy. Before he took office, Mr. Obama said the world could be a better place, and so it is. Thank you, Mr. President.

Obama has done all this in nine months. Imagine what he will do in four years. Never has a Nobel Peace Prize been more deserved. We salute the Nobel Committee for recognizing Barrack Hussein Obama, the Savior of the World.

FROM SLAVERY TO THE WHITE HOUSE : ANCESTRY AND AMERICAN HISTORY

AN ESSAY

Recently, the New York Times ran an article about Michelle Obama's ancestry. See N.Y. Times, October 7, 2008, In First Lady's Roots, A Complex Path from Slavery. Thanks to a genealogist's work, we see deeply into Mrs. Obama's family history. And in that history, we see the classic identity problems that plague all Americans, not just African-Americans.

All Americans face monumental identity questions. There are few countries on earth with populations as culturally and ethincally diverse as those in the United States. Americans living today draw on millennia of formerly disparate social, religious, linguistic and racial traditions. Some Americans are less "intermingled" than others. But over time, "intermingling" is inevitable. If a group has been in this country for a long time, it has likely "intermingled" with some other group. Even English settlers in the 17th Century intermingled with Native tribes. As the article observes, these "liaisons" simply vanish as times passes and memories fade. Family history does that. Once a relative in an older generation dies, it is unlikely that many people will remember him or her. That makes the genealogist's job much more difficult.

But in fairness, African-Americans face a much more difficult identity inquiry than European descendants. After all, every African-American (except recent African immigrants) can trace some roots to slavery. It is wrong to think that African-Americans are "purely" or even "largely" African. Quite the contrary, African-Americans are generally far more "American" than Johnny-come-lately European immigrants. And hauntingly, the evil of slavery is literally inscribed in every African-American's family tree. European slave owners routinely took sexual liberties with their African "property" over the centuries. This "forced intermingling" makes African-American genealogies both extremely perplexing and interesting at the same time. Additionally, many African-Americans intermingled with Native populations during the 18th and 19th Centuries, adding another layer of ancestral traditions to an already complicated history.

Michelle Obama's story reveals all these disparate influences at work. A slave owner raped one of her maternal ancestors, who gave birth to several "mulatto" children. One of the ancestor's forebears, in turn, was named "Powhatan Morehead." That is undeniably a Native American name. Because the family lived in Georgia at the time, we can assume he was probably a Cherokee or a Seminole. No matter his true identity, it lives on in Michelle Obama. And there is no shortage of irony in the notion that oppressed slaves and persecuted Native Americans contributed DNA that ultimately found its way into the same White House that once regarded them as subhuman.

I am glad the Times drew attention to Michelle Obama's ancestry. In recent years, I have taken a very strong interest in ancestry because I think it helps me understand who I am and why I think and feel the way I do. I also think it is important because it helps us all better understand America's immensely troubled history. The Times article also wisely notes that Michelle Obama--as an African-American--has many "white strands" in her ancestry. Perhaps the Times thinks that most readers do not know that this is virtually universal among African-Americans. The chilling truth is that "African-Americans" are really not as "black" as most European descendants believe. Even "really black" people like Chris Rock and Morgan Freeman can prove something like 30% European roots. That means that the average African-American represents the generational result of centuries of both slavery and sexual exploitation. I would have been happier if the Times noted these discomforting facts in stronger terms. But I was glad they at least hinted at them.

From an ancestral perspective, African-Americans are completely unique. Their family trees reveal European, Native American and even Hispanic influences. They have generally lived in North America longer than most European immigrant groups; most large European immigrant groups only began landing here in the 1840s. When it comes to ancestry in America, time matters. The fact is that African-Americans have had more time to intermingle--both voluntarily and involuntarily--with every other racial group in North America. That makes modern-day African-Americans unique.

That is not to say that European descendants are not unique. But most "whites" in America--as intermingled as they may be with one another--draw from similar ethnic, religious and cultural backgrounds. I am a "white" American. To some degree, I am "intermingled." Yet I am remarkably "homogeneous," at least when compared to Michelle Obama's ancestry. Every one of my ancestors came from Northern Europe. They have always been Protestant, fair-skinned, fair-haired and they always spoke Germanic languages (German, English and Dutch). There was no obvious sexual exploitation along the way, nor was anyone ever "owned" in my family tree. For better or worse, my family tree shows me that my ancestors "stayed with their own." And that is typical in American history: Integration generally has only occurred in scandalous circumstances. My great-grandmother burned love letters intended to reach my grandmother. Why? Because the suitor was Catholic.

Ancestry always fascinates me. It implicates both my passion for history and for self-knowledge. When we understand ancestry, we place ourselves in a historical continuum that makes sense. It helps us understand our desires, likes, dislikes, passions and aversions. On a larger scales, it helps us orient ourselves in this country, and to see whether we've remained true to what "always mattered" to our relatives. Yes, we are all "unique individuals." But we cannot escape our family roots. They will always shape us, no matter how much we fight them or reject them. And they also help us make educated guesses about people's values. If we know someone comes from an Italian-Irish Catholic background, we can be pretty sure that they will think differently than a person with Swedish Protestant ancestry. That might be prejudice, but it is entirely reasonable.

In Michelle Obama's case, ancestry does more than help us understand values. It gives an insight into America's complex identity issues. In many ways, studying African-Americans means studying American history. Virtually every key event in American history has somehow involved African-Americans. Our soul as a Nation rises and falls depending upon how we treat them. After all, we are supposedly a Nation of principles. When our principles only apply to whites, it renders our entire national experiment an embarrassment.

A THERAPEUTIC POST, AND A WORD ABOUT "REASONABLENESS"

A REFLECTION

I'm really in no emotional condition to write. This is not a confession; I just want to say how I feel now so I can remember it later. It helps me when I express what's going on inside my head. During easier times, I can write almost endlessly because I can focus. These days, however, I can barely concentrate. I mentioned last week that I have been going through hard times because my life partner began suffering from a mental illness. It got so bad that he had to go to the hospital to "rest." I have no idea how long he will stay there.

I have never endured a situation like this. We have lived together for nearly ten years; it is jarring to know he is no longer in the house. Worse, I am tormented by the thought that he is not the person I knew. When I speak to him on the phone, it is clear that his illness has overtaken his mind. It breaks my heart and drains my own energy. In addition, I have no idea what the future holds. It is mentally taxing to deal with uncertainty about important things. I am tired all day long. My mind cannot follow anything for more than a few minutes. I am not doing well.

All this trouble started more than two years ago. My partner's mental illness represents the culmination of pressures that began when he suffered a freak burn accident in 2007. I typically do not talk about personal things like this, but now I see no reason to hold back. It helps me sort out my own difficulties when I put them in a chronology. I still cling to logic when it comes to understanding historical events that have an effect on me. I have a good memory and I put it to use.

Let's start with the injury. My partner suffered a devastating burn on his right arm in a health club steam room. No one really knows how it happened; he went into shock almost immediately after it happened. He always tells the same story: He was walking into the steam room when a burst of steam came from his right side, scalding him. He immediately left the steam room, where an employee saw him and remarked: "Oh my God, your arm!" Soon thereafter, he fainted. An ambulance took him to the emergency room. A few hours later, Chicago's best burn trauma unit admitted him for treatment. To make a long story short, he stayed in the hospital for 35 days, endured several skin graft surgeries, suffered two heart attacks and an induced coma.

Upon his release, he was essentially a broken man. His right arm was permanently disfigured. He could still use it for most things, but he did not dare show it in public. To save his arm, doctors had to shear skin off his legs to patch onto the wound. He bears those scars, too. Within a few months, he began slipping into deep depression. He did not get out of bed all day. And he continued to suffer pain in his arm. He took addictive opiate pain-killers to manage it.

All the while, I cared for him. I did the shopping. I did the errands. I took him to appointments and made phone calls. I managed the medications and dealt with the doctors. I provided comfort and sat by the bed when I had to. I tried to work for the first few months after he left the hospital. But he got so lonely and depressed while I was away that I genuinely feared for his life. So I decided to suspend my career to care for him. During that I time, I started writing this blog. Yet during the same time, I have had the much greater responsibility to care for him. In consequence, I, too, have scarcely known rest since 2007.

We tried to sue the health club that caused the injury. But whenever my partner talked about what happened, he fell deeper into depression. Lawyers think it's easy for injured people to relive the worst day in their lives over and over again; it isn't. Worse, we discovered that the health club did not maintain liability insurance on its land, so it would be extremely difficult to recover any money on his behalf without a knock-down, drag-out fight that likely would have driven him over the emotional edge. Our lawyers refused to continue representing us when they found the club had no insurance. Legally and morally, our lawyers held the high ground: No one deserves to enter a business establishment and walk out with a life-threatening burn injury. Numerous legal theories supported our position, from negligence to strict products liability. From a theoretical perspective, we should have won some compensation for him.

But we didn't. No matter how many legal advantages we had, the lawyers got cold feet as soon as they learned there was no insurance involved. Five other lawyers had the same reaction: "Oooh, no insurance! Sorry, I can't help you."

In personal injury cases, liability insurance companies ensure that defendants do not go bankrupt when accidents happen on their land. The insurance company pays for the defense and pays any judgments against the defendants. This protects the defendants' own assets from seizure. Insurance companies also speed things along relatively fast; and that makes everyone happy, including the injured person's lawyers. An insurance company will settle a case against its client quite readily if there are strong facts from which to imply negligence. The defendant just goes along with the program: After all, it is not his money at stake. By contrast, when a defendant does not have insurance, he will fight to the end because it is his money.

That was the situation we faced. And our lawyers bailed out the moment they discovered that they would have to fight for years for potentially no reward. Neither justice nor legal principle spurred them to action. Unless a case could quickly pay out, it was not worth taking. For these lawyers, cases were little more than investments. It did not matter that my partner suffered outrageous injustice due to the health club's negligence: There was not a quick, ready profit to be made on his case, so no lawyer pursued it. Ironically, the health club saved itself by acting irresponsibly: It did not have liability insurance.

Naturally, this result only deepened my resentment toward lawyers and their profession. It reaffirmed that justice does not motivate lawyers. Only potential profits interest them. If a case involves justice and profits, that will get them off their seats. But if it involves justice and no profit, forget it.

But I wonder what would have happened even if the case went forward. How could anyone put a dollar value on my partner's injury? How could money compensate him for the agony he suffered? How could any check restore his scorched arm, or make him whole from the misery and pain he endured in the hospital? I saw his pain up close and personal. I saw him scream at night. I saw him unconscious and hooked up to a ventilator. I saw him cry out in fear as they wheeled him off for yet another surgery. I saw him with a trach tube down his throat and unable to speak. I saw him sweat through his clothes and lie helpless in the bed with his bloody arm in a splint. I had to cut off his shirts with a knife and sponge him dry. I saw him fall into depression and now into mania. What money could make all this "disappear?" What does money have to do with all this?

All these experiences made me question the law. From the law's perspective, money "recompenses" negligently-caused injury. Yet I know from experience that money would have done nothing to recompense my partner's plight, nor would have made his life "all better." Worse, I saw that the law condescends when it comes to monetary awards for injury. Suppose, for instance, that a jury evaluated my partner's pain, suffering and emotional turmoil and concluded that the health club's negligence caused it. Let's say it awarded him $5,000,000. That's all well and good. But under a doctrine called "remittitur," the judge could say: "That's unreasonable. He's only getting $500,000."

Think about how insulting that is. It's one thing to put a dollar amount on physical suffering, disfigurement, permanent injury and even death. It's quite another to claim that one amount is "reasonable" over another. My experience with life-altering injuries convinced me that the law is stupid. After all, what does a judge know about what injured people really suffer? And how can he say with any authority what someone's pain is "worth," let alone whether the amount is "reasonable?"

This example illustrates my deep resentment toward all "objective standards" in the law. Judges always speak in "reasonable" terms: "Reasonable time," "reasonable care," "reasonable regard," "reasonable amount," "reasonable certainty." They think they refer to some magical standard when they use the word "reasonable." In fact, they refer only to their own, value-laden judgments concerning particular conduct in particular circumstances. Judges, after all, come from a distinct social class with distinct ideas about money, punctuality, relationships and "responsibility." They probably never suffered life-altering injuries. If they object to a monetary amount as "excessive" from their perspective, they call it "unreasonable." Yet who are they to quantify another human being's suffering?

Let a judge's wife suffer the same agony that my partner suffered. Then he can tell me what amount would "reasonably" compensate her for it.

CONTRACTS ARE CONTRACTS, SUPREME COURT RULES

NEWS FLASH

WASHINGTON, D.C.--Reason, Commerce, Justice & Free Beer has just learned that the United States Supreme Court has ruled that "a contract is a contract" in the much-followed case Gaffaello Mutual Equity Partners LLP v. Marquez, No. 08-9851. Scholars and lawyers alike have reacted with surprise to the Court's decision. "We expected a narrower ruling," said Mr. Thomas J. Knickerbocker, Esq., partner at New York's Knickerbocker, Chance & Willoughby LLC, a prominent Wall Street law firm. "We thought the Court would be more straightforward. But it simply said 'a contract is a contract.' This is a complicated idea. It is hard for both lawyers and the public to understand."

Today's ruling has broad implications for the business community. It also represents a milestone in legal reasoning and rhetoric. The case arises from a dispute between a janitor, Mr. Rodolfo G. Marquez, of Grand Concourse, The Bronx, and Gaffaello Mutual Equity Partners, a large Wall Street investment house handling more than $45,000,000,000 in assets.

According to filings and the Court's decision, Mr. Marquez orally agreed to "use best efforts" to "satisfactorily" clean every toilet located at Gaffello's office building in downtown Manhattan. In return, an unnamed agent acting for the investment house promised to pay Mr. Marquez $40 per day "until told otherwise" and "subject to all reasonable alterations by promisor." The agent allegedly also told Mr. Marquez that he had "to supply his own materials" and he had to "wipe all shit and piss from all affected toilet facilities to the satisfaction of any Gaffaello director to the extent permitted by applicable law." Mr. Marquez allegedly acquiesced to Gaffaello's terms. He further acquiesced to Gaffaello's demand that he "waive all remedies, at law or equity, or at common justice, for any alleged breach of aforesaid agreement, be it oral or in writing."

Mr. Marquez immediately went to work. Both employees and officers found Mr. Marquez' work excellent. According to one Vice President in the Appropriations Department: "I've never seen a cleaner shitter. That muchacho sure knows what the fuck he's doing." Around the same time, an authorized Gaffaello budget deputy presented a written contract to Mr. Marquez. The written contract included all the terms to which he orally agreed, as well as a clause that imposed a duty on Mr. Marquez to "act in good faith in the performance hereof; but such duty shall not extend to promisor, Gaffaello Mutual Equity Partners LLP; and it is further agreed, covenanted and promised that promisee , Mr. Rodolfo G. Marquez, shall have no right of action, cause of action or any other legal, equitable, natural or other remedy, either now or hereafter, today or tomorrow--or forever--for promisor's wanton or negligent failure, refusal, or decision not to use good faith in the execution, performance, observation or fulfillment of the mutual covenants set forth in this, the Master Contract for the Performance of Toilet Cleaning Services, notwithstanding all oral assertions to the contrary hereof, so help him God."

Mr. Marquez signed the contract, even though he did not read English. According to a Gaffaello witness, he said: "I understand it."

For two months, Mr. Marquez dutifully upheld his end of the bargain. He cleaned 4000 toilets, scrubbed 50,000 square feet of tile bathroom flooring every night and purified 4000 toilet stalls. In the process, he overcame horrific sights and odors. He worked at least 12 hours each day. He received $31.02 for his first day's work less taxes, fees and Social Security contributions. Although he was not eligible for Gaffaello's health coverage plan, he nevertheless paid toward it because he could not understand his paycheck statement. Over the next week, Gaffaello began paying Mr. Marquez a dollar less each day. Beginning the second week, it began subtracting two dollars per day from his daily check. After reducing his daily wage to $3.29, Gaffaello stopped paying Mr. Marquez at all. Instead, it sent a junior supply clerk to inform him that "he would be paid later."

Trusting that Gaffaello would honor the contract they signed, Mr. Marquez continued working. Eventually, however, Mr. Marquez gave up. He allegedly told a Gaffaello employee that he "could not continue working without pay" and that he "had a family to feed." In response, the employee said: "You can't leave. You promised to use best efforts and to act in good faith under this contract until told otherwise." Mr. Marquez said "they could sue him." With that, he walked off the job.

Gaffaello did sue him. Within two days, it served papers on Mr. Marquez and haled him into the United States District Court for the Southern District of New York for breach of contract. Although the trial judge wondered why the dispute fell under Federal jurisdiction, Gaffaello's legal team presented evidence to show that Gaffaello was a Delaware limited liability partnership, while Mr. Marquez was a New York resident. It also showed that the contract between Gaffaello and Mr. Marquez "represented a lucrative business relationship implicating more than $75,000 in janitorial services." These facts, according to established Federal law, warranted Federal court jurisdiction. Mr. Marquez, who could barely speak English, let alone understand an argument involving Federal diversity jurisdiction, said nothing in response.

Gaffaello demanded a fast track trial. The trial judge--A. Harry Peters--had no sympathy for a recent immigrant like Mr. Marquez because President George H.W. Bush appointed him to the bench. He quickly surveyed the evidence and found that Mr. Marquez breached the contract. In a detailed opinion, the trial judge wrote: "Mr. Marquez knowingly and voluntarily assumed the obligations set forth in the contract he signed with Gaffaello. It is not for courts to pass upon the providence or fairness of written agreements between mature business actors. Rather, we must merely apply relevant law to resolve any allegation that one party breached the terms upon which they mutually agreed. Under law, we assume all terms to be valid and voluntary. In this case, Mr. Marquez has no answer to contradict the assertion that he walked off a job he contractually agreed to perform. He says he left because Gaffaello did not pay him, but that is not technically true. Gaffaello said it would 'pay him later.' This does not mean it 'did not pay' him. Gaffaello never breached the contract. Only Mr. Marquez did. Furthermore, Mr. Marquez promised to use best efforts and to comply with the contract in good faith. By walking off the job without notice or cause, he violated both obligations. In sum, Mr. Marquez breached the contract. I order him to return to work immediately, or to pay Gaffaello the reasonable value of his lost services, in an amount not less than $75,000.01."

Mr. Marquez appealed the trial court's ruling to the United States Court of Appeals for the Second Circuit. His case attracted notice from the Puerto Rican Legal Defense Fund, and their lawyers hastened to his cause. They argued that the contract was invalid because it was "unconscionable" and because no contract may bind a man to work in the United States. The three-judge panel--including two Clinton appointees--agreed. They said: "We find the contract by and between Gaffaello Mutual Equity Partners LLP and Mr. Rodolfo G. Marquez unconscionable as a matter of law. We find every argument to the contrary unconvincing. No matter what anyone says about our country or its free enterprise spirit, we refuse to entertain appellees' contention that the United States Constitution guarantees the 'unlimited freedom to bargain for employment terms.' This agreement verifiably 'shocks the conscience.' We cannot permit the contract to stand, no matter how 'voluntary' it may have been at signing. Appellees' conduct in this case borders on the sadistic. Judgment reversed."

Judge Ferguson H. Klosterbach, George W. Bush's lone appointee on the appellate panel, dissented. He wrote: "I think the trial judge was right. A contract is a contract. Mr. Marquez breached it. He is also an immigrant."

Dissatisfied with the Second Circuit's reasoning, Gaffaello applied to the United States Supreme Court for certiorari. In its brief, Gaffaello phrased the case as follows: "This is a case about the freedom to contract. It is not about fairness. It is about a willful contract breacher who did not do what he promised to do." In response, Mr. Marquez' lawyers said: "This is not a case about the freedom to contract. This is a case about unfairness and injustice. This is a case about a powerful company forcing one-sided terms upon a powerless immigrant. If this Court has a shred of decency and compassion, it will affirm the judgment of the United States Court of Appeals for the Second Circuit."

Chief Justice John G. Roberts, Jr. delivered the Court's opinion to a packed house. In a calm, steady voice, he began: "Our free market economy values fairness. But it values contracts more. In our view, contracts are contracts. Promises are promises. When commercial actors make promises, we do not excuse them lightly for failing to adhere to their commitments. This case involves promises and contracts. No matter how 'unfair' or 'unjust' those promises may seem in hindsight, we refuse to second-guess reasonable commercial actors who voluntarily make commitments. Contrary to Respondents' contention, this Court has no power to rule on 'elementary justice.' This Court applies the law. And the law in this case has a simple answer: Contracts are contracts.

"Our common law values contracts. Commerce prospers when commercial men feel assured that others will fulfill their commitments. That is why courts in our system rarely allow litigants to escape voluntary contractual obligations. True, contractual obligations only arise to the extent that parties make them freely. But there is no evidence in this case that Mr. Marquez faced 'coercion' to bargain with Gaffaello. He agreed to act in good faith, to waive his remedies and to use 'best efforts' while cleaning every toilet at Gaffaello's downtown facility 'until told otherwise.' At the same time, Gaffaello freely and voluntarily agreed to pay Mr. Marquez $40 per day 'subject to all reasonable alterations.' Mr. Marquez says that Gaffaello did not pay him. But the record clearly shows that it did. The fact that Gaffaello slowly decreased Mr. Marquez' daily wage did not change the contract. In fact, Gaffaello had every right to make 'reasonable alterations' to Mr. Marquez' pay. Mr. Marquez acquiesced to this term when he signed the contract. And--unlike Mr. Marquez--Gaffaello had no obligation to perform the contract in good faith. If Gaffaello somehow acted in bad faith, that was a risk Mr. Marquez knowingly and voluntarily assumed when he signed the contract. It is not for us to question these private contractual relations.

"We hold as a matter of constitutional law that contracts are contracts. Neither the Judiciary nor the Legislature has power to retroactively invalidate private contractual terms concerning legal subject matter. We are neither philosophers nor moralists. We are legal technicians. We do not interfere with private bargains, nor do we save private individuals from their improvident business decisions. No matter how 'shocking' the terms may have been in Mr. Marquez' case, we are not fairness referees. We simply look to the contract and the circumstances to determine whether both parties freely and voluntarily assumed their duties. If we determine that they did, our inquiry ends. If we scrutinized every private bargain for terms we considered 'unfair' or 'oppressive,' we would undermine the spirit of private enterprise that drives our free market system. We are not paternalistic. We trust the market. We do not second-guess it.

"This is not new law. Our courts have held that 'contracts are contracts' for centuries. Even our English forebears so held. In the case Coxwell v. Bainbridge (King's Bench 1612), Lord Chief Justice Coke stated the basic principle that we continue to follow today: "Hath the yeoman signed the Pact of Free Wille as aforesaid? Say he the Parchmente be void for offending that Certaine Spiritte or Ghoste of Justice that doth dwell at the Hearte of all the dealings of Menne? What of it? This Courte judgeth not for Justice nor Rightte, but for Lawe. Promise a Manne he shall builde a Bridge o'er the Thames for a threepence in Two Days' Tyme, so he must, so long he have said so of Free Minde. I be of mind that pacta sunt servanda. It be of no Moment what the bound Manne saith. The Lawe doth presume a Manne do a Thinge with Free Minde. Comes now no Evidence or Witnesse thereagainst, it being a Cleare Thinge, et.c., what be left for a Court to say? Let Menne bargainne as they please. What they say be no Matter for the Lawe, but that the Lawe allow it.'

"We could not agree more. We find that Mr. Marquez knowingly and voluntarily assumed the obligations set forth in his contract with Gaffaello. We express no judgment on the 'fairness' or 'equity' of that contract. We refuse to entertain the Respondents' invitation to sit as a permanent referee for contractual fairness. Such a role would contravene our duty to apply the law and to defend private autonomy in a free market system. Judgment REVERSED. This case is REMANDED to the United States Court of Appeals for the Second Circuit with an order to issue judgment against Respondent consistent with this opinion.

"It is so ordered."

Justices Scalia, Kennedy, Thomas and Alito joined the Chief Justice's opinion. Justice John Paul Stevens wrote a dissent. In it, he blamed the majority for "enshrining unfairness" and "exulting the powerful over the powerless." He concluded as follows: "The Constitution imposes limits upon the freedom to contract when contract terms offend our most basic sense of justice."

In a separate concurrence, Justice Scalia responded to Justice Stevens' dissent: "Justice Stevens once again proves his unrivaled ability to put his head up his dumb wrinkled ass. L0s3r, pwned!!!!"

Reason, Commerce, Justice & Free Beer is pleased to see that both collegiality and prudence are alive and well at the Supreme Court as it begins its new session.