THE HEIGHT OF DISINGENUOUSNESS : INVESTMENT BANKS "MAKING A DIFFERENCE"

OESTERHOUDT STRIKES

Last week, I took a walk in Brooklyn. As I made my way up Tillary Street past Flatbush Avenue, I noticed an incredible commercial message from Charles Schwab adorning a bus stop: "We want to make a difference, not just a buck. Let's make a difference together."

I beg your pardon? Do investment houses really care about making anything more than a buck? Why do people invest money in the first place? To turn one buck into two or more bucks. It's all about making bucks. If investing makes any "difference," it's a differential between the amount invested and the amount returned. And everyone wants that differential to be positive.

But let's leave investors aside for a moment. Let's focus on the institutional guys. You know, the investment bankers who craft bewildering "portfolios" designed to churn fees and hopefully yield a nifty profit for the client. Now, an investment banker exists to do two things: (1) To maximize the monetary return on a client's investment; and (2) To maximize his own fees by selecting appropriate transactions. To be blunt, it is all about money. In fact, investment bankers are more than mere employees; they are fiduciaries. They must subordinate their own interests to their clients' interests. They can even be sued for failing to make enough money, because that shows "they did not sufficiently have their clients interests at heart."

In that light, it is preposterous for Charles Schwab to suggest that investment bankers care about anything more than "making a buck." If they cared about anything else--like "making a difference"--they would lose their jobs, clients and everything else they value.

And what does "making a difference" really mean? Have investment houses suddenly lost their collective minds? Do they want to open soup kitchens or something? Do they want to build houses for the homeless? How about pay for health care for indigents? Is that the kind of "social difference" they want to make? The phrase "making a difference" implies broader service to the public, or even ethical purity. It rings with selfless nobility. Yet such things are completely antithetical to an investment house's primary mission: To make profits for themselves and their private clients. There is nothing "public" or "noble" about that enterprise.

Recent stock market scandals only weaken Charles Schwab's pitiful attempt to appear altruistic. Did Lehman Bros. care about "making a difference" when they lured investors into placing money on a housing market they bet would fail? The bottom line is that people expect investment bankers to engage in dirty dealing. It is par for the course. Worse, most investors would prefer their bankers to engage in the most barely legal conduct possible so long as that conduct yields a maximal return. That is what it means to "make a buck," not "a difference."

Commerce is about making bucks, not a difference. That is just the way it works. And it is the height of disingenuousness for anyone to suggest otherwise, let alone massive investment banks that personify the commercial spirit. If investment banks choose to "make a difference," chances are they do so in order to gain tax advantages, not to soothe their conscience.

Put thematically, the clash between "making a buck" and "making a difference" is a clash between commerce and ethics. It is also a clash between ends and means. Commerce is about ends; ethics is about means. A commercial man only cares about the bottom line, no matter how he gets there (provided he does not risk criminal sanction). An ethical man cares about the way he achieves his goal. When a person commits to making bucks, he has a distinctly result-oriented motive. But when a person wishes to make a difference in the ethical sense, he is as much concerned about the way he brings about positive change as he is concerned about the change itself.

In commerce, means are secondary. Investment houses like Charles Schwab know that. If it suddenly adopted "making a difference" as its primary business model, its clients would leave in droves. And the company's shareholders would angrily vote off the "insane" directors who approved such an idiotic way to do business. In their place, the shareholders would quickly appoint directors with a more sensible business model, namely: "Making a buck."

And the new directors would immediately yank those ridiculous posters from the bus stops.

Hey, at least they would be honest.

UNCOMFORTABLE SUBJECTS : PRIVATE RACISM

A REFLECTION ON RACE IN AMERICA

I want to take some time to mention what I'm planning to write over the next few days. I think it's especially important to lay out my intentions this time because I am about to venture into very difficult territory.

Whenever I set out on a new intellectual endeavor, I always think of my mentor: Friedrich Nietzsche. In this instance, I think about the title to one of his aphorism collections: Uncontemporary Observations. Nietzsche did not care whether he wrote about subjects that ruffled traditional feathers. He purposely contradicted the expectations of the "the present" and "contemporary" society. His ideas at times recapitulated themes from distant history. At other times, they foretold the future. In either case, he was not "contemporary." To the contrary, he purposely defied "contemporary."

Writers face constant pressure to be contemporary. After all, you can't be successful if you don't write to meet present expectations. Yet no one ever evolves without taking daring chances; and writers are no exception. By accident, I find myself in early 21st Century America: A strange, confusing, conflicted, changing civilization. There are certain subjects that we simply do not talk about, or at least we do not voice certain sentiments about them in public. It is irrelevant what we privately think about these "taboo" subjects. We just never voice what we really believe. Sometimes our beliefs are not even conscious.

Race is among those subjects. Personally, race is an obsession of mine. It frequently inspires my writing because it is so maddeningly relevant. Yet there are certain things we simply do not say about it, no matter how often we think them.

Race has played a pivotal role in American civilization from our earliest history. Through race, we have seen just how low American civilization can fall. Through race, we see our principles challenged. All our grand rhetoric about equality, dignity and fairness falls flat when applied to the American experience with race. It is no surprise that much of my satire involves racial realities in the United States. After all, when we honestly view race in America, we see several different Nations living in one. And they aren't all equal, no matter what the law says.

But I struggle with my own conflicts about race. In my writing and in my public expressions, I vociferously advocate equality. I believe that everyone in this country--no matter their origins--should have equal legal opportunities and a fair shot at success. I truly believe that. It is only just. We cannot claim to live in a just society if some people do not have the same chances for success simply because of their ancestry in a certain country or a certain continent.

Yet even in saying this I feel myself a hypocrite. In fact, I come close to a confession when I say that I am a racist. But we all are. Americans simply do not understand that racism comes in many shades. Some are overt, but most are extraordinarily subtle. Everyone in the United States is a racist in their own fashion; you do not have to be David Duke to be a racist. Rather, every American--including declared liberals--harbors deep-rooted cultural expectations about the "ways" of different ethnic groups. Every American believes on some level that people in other ethnic groups are "different" and "act differently" than they do "because that's the way they are." They do not necessarily mean it in a malicious way; but it is ever-present. And it is racism.

We are racists the moment we say: "Two guys and a black guy entered the room." I was raised with these distinctions. I also grew up in a distinct cultural background (southeastern Connecticut; and as the biological product of hardworking Northern European Protestant descendants). Both by nature and by operation of economic forces, that cultural background was racially exclusive. For the longest time, I never thought I was racist. How could I be? After all, I always learned that it was "bad to be a racist" and that I wasn't a racist because I did not publicly say bad things about people in other ethnic groups. But my own family--the same family that taught me these abstract lessons about race with the best possible intentions--cultivated a set of cultural values in me that made me completely dissociate myself from other races. Those values also made me intuitively judgmental toward anyone who did not share them. And on a subconscious level, I began to believe that my values were normal, while others were not. That was racist.

Racism is everywhere in the United States. It is on everyone's mind all the time. And it is intensely private. When white people eat at a restaurant and a black beggar enters the restaurant, I challenge everyone sitting there to say that they do not harbor certain negative assumptions about black people: "Why doesn't he work? Why do they beg? Why are they all so poor? They're all like that..." they think. They might be ferocious liberals and believe in equality. But in that cultural situation, I challenge them all to say that they do not make immediate judgments about black people in their own private minds. And it is not their fault: It is simply a function of their own cultural backgrounds reacting to another cultural background.

America elected Barack Obama. But that does not mean we are not beyond racism. My "uncontemporary observation" on this subject is that EVERYONE IS A RACIST. It is just a question of degree. We may bear no conscious ill-will toward other ethnic groups. Yet when we make even the most subtle assumptions about them, we are racists. Even disadvantaged ethnic groups engage in racism. I challenge any black person to say he harbors no assumptions about white people when placed in a social situation with them: "He's not going to be fair with me. He's not going to treat me right. He's going to condescend to me. He's going to exploit me. He's going to disrespect me. He's going to fire me because I'm black. That's what they all do. White people are mean and will hurt me any chance they get." Racism goes in both directions--all the time.

Overcoming racism is about more than turning to the law for superficial equalization. Overcoming racism is a mammoth cultural endeavor; and we are nowhere near achieving it. Until we truly harbor no assumptions or expectations about "how other ethnic groups act," and until we truly do not think "How typical" when someone from a particular ethnic group acts in a particular way, we are racists. Yet we do these things all the time without even knowing it. We are merely giving expression to the combined weight of our respective cultural heritages. Heritage bears down upon us in America as in no other country on earth. Nowhere on earth have so many disparate cultural traditions been thrown in with one another. And nowhere else has such burning intolerance arisen when those traditions clash.

Let me be clear for the record. I live my life to avoid racism in all things. But I am still as racist as every other American because I cannot honestly say that I do not occasionally make negative assumptions about other ethnic groups in difficult situations. In this sense, we are all racists. When a black youth wearing a doo rag, low pants, a crooked hat and gangster-style sports garb acts rowdy with his friends on a subway train, I intuitively think: "He is up to no good. He's going to cause a scene." I wish I didn't. But I do. I tell myself I shouldn't think it. I challenge any white person from my cultural background to claim the very same thoughts do not flash in his mind in the same situation.

I have no solutions to the racism problem. The best we can do is to forbear as much as we possibly can in our external behavior. We must try to understand one another as best we can for the sake of order and coexistence. It is relatively easy never to "act like a racist" or "say racist things" in public. It is easy not to be David Duke. But it is not so easy to truly drive racist thoughts from our minds in pressing circumstances.

I wish we weren't all racists. I really, really do. But we would all be dishonest if we said we weren't. And I will immediately call anyone a hypocrite who denies his own racism. Racism is not just the overt hatred we hear about in groups like the KKK. Racism is also about unconscious economic segregation. Living in a part of town that no black person can afford is racist, too. Supporting an economic system that perpetuates racial inequalities is racist, too. After all, why do most wealthy white people live in areas that black people cannot afford? Because they won't have to be around black people. When black people are around, it's a "bad neighborhood." Even using the term "bad neighborhood" is racism. It is no coincidence that "bad neighborhoods" are always the poor, black areas. And it is racist to assume the poor, bad areas are always black. Yet people who claim not to be racist use the term "bad neighborhood" all the time.

Consider a white real estate broker who thinks he is not a racist. He says to his client: "You don't want to live above 96th Street. That's a bad neighborhood." Why? Because black people mostly live there. How can that not reflect deeply entrenched, racist assumptions about black people? Think about how often we use terms like "bad neighborhood." They are racist. And most barely comprehend why.

Racism in the United States is exquisitely subtle. It is the inevitable byproduct of placing so many cultural backgrounds in close proximity to one another, along with the natural human propensity to resent those who are different. As such, racism is everywhere. I know it's not popular to say. But that does not mean we cannot honestly grapple with it. Is it terrible? Of course it is. But there are lots of terrible things about American life; and in my view it makes more sense to call a spade a spade than to pretend it's not.

This is my uncontemporary observation for the day.

POLITENESS AND SMALL TALK

OESTERHOUDT STRIKES

I am a very polite person. Even when it makes sense not to be polite, I am polite. It is almost reflexive for me to be polite. In my early life, I learned always to be polite. My mother always said: "Be polite! Say thank you! Do not ask for more!" My mother had another name for this institutionalized politeness: "Good manners."

I did not have a choice. I had to be polite. On the other hand, I grew up in suburban Connecticut. People were not out to get me; in fact, most people were extremely nice. Why not be polite to nice people? They deserved it; they meant me no harm. I didn't mind being polite. In the process, I learned to respect everyone I met. They never hurt me, so it was only fair for me respect them.

But things changed as I got older. Once I graduated from college and started living in the commercial world, I quickly found that not everyone was as nice as they were in my Connecticut childhood. To the contrary, I discovered that most people were dishonest scoundrels who would sooner backstab you than help you up if you slipped on a banana peel. In fact, they would probably even laugh if they saw you fall. Even if they weren't malicious, I found most people flaky and unreliable. If someone told me they "would call me again some time," in almost every case they did not.

Yet I was always polite with these people. I shouldn't have been, but I was. After all, it was reflexive. It was a vestige from my idyllic childhood. I smiled with them, said thank you, made small talk. I even did favors for some. Then I received nothing in return. Many even took advantage of my politeness and gained from it.

Slowly, I realized that it made no sense to be polite all the time. Most people exploited it. And almost no one appreciated it. In fact, it seemed that impolite people succeeded much more frequently than polite people. Impolite people ran right over the polite people and got away with everything. What good did smiling and thanking do? Not much.

Still, I was determined not to become just another impolite ogre on the New York streets. I simply learned to be more wary about according respect to everyone I met. I adopted a new rule: Be polite with exceptions. I used my intuition about whether someone deserved my respect. I tried to sense whether someone was worth respecting, or whether they were just another self-interested shark in the water. Sometimes it was obvious to me that someone was a self-interested shark. So I wasn't polite to them. They had nothing ethically in common with me. So there was no need to be polite. Why be polite with someone who would just as soon leave you dead in a gutter? That is just stupid--and servile, too.

I developed a real suspicion toward new acquaintances. Eventually, I could detect immediately whether someone was a complete selfish asshole or whether they were worth further emotional investment. In some settings, I was polite no matter what, as when I interacted with sales staff and other pathetic commercial pawns who obviously meant me no harm. But in all other settings, I kept my guard.

Recently, for instance, I walked back into my building after taking my dog for a stroll. I got on the elevator. A moment later, a very smily, well-dressed woman with a leather portfolio and an expensive cell phone joined me, along with some bewildered looking adolescent who wore his hat backwards. She was clearly a real estate agent showing apartments to this little punk, who probably had just graduated from college and whose dad was definitely paying the rent.

As soon as the doors closed, this insufferable woman opened her mouth. "What a cute little dog! What's his name? What's the breed? This is a nice building, isn't it? The elevator is very nice. It is very convenient. The lighting is good. BLAH BLAH BLAH BLAH."

I was about ready to vomit. I couldn't help but notice the Cartier bracelet on the agent's wrist as she spewed forth her endless, dishonest pleasantries. I knew instantly that she was just talking to keep things on an even keel with her client. After all, no one likes awkward silence. So she filled the air with condescending blather. "It's a wonderful building! You like it here, don't you? It's such a great location, isn't it? There's a grocery store right downstairs, you know," she told me, as if I didn't know there was a grocery store in my own goddamn neighborhood.

"Yes, there sure is," I said, without a smile. I consciously said it impolitely. "And my dog is a she."

"Oh, wonderful," she responded without missing a beat; and without really registering what I said. God forbid any silence should intervene to make her client feel uncomfortable. For his part, the youth-soaked client just stood there staring at the floor indicator as the elevator rose. He was wearing shower shoes, shorts and looked like a smug, boring-ass moron. On weekdays, he probably put on a suit and shlepped to some skyscraper to type emails for one of his dad's friends. Worse, he probably even felt important for it. I could see it immediately.

Thankfully, client and professional stepped off the elevator two floors below mine. They went about their business. The agent kept chatting the whole time. The client bumbled along a step or two behind. He was probably thinking about going out later that night. She mentioned something about a trash compactor as they faded from earshot.

I thought about how impolite I had been with this woman. It didn't bother me at all. Why should I have been polite to her? What did she mean to me? Would she have helped me with anything? And why was she even talking to me in the first place? To provide confirmation for her silence-destroying questions? She was using me as an instrument to avoid awkwardness with her client and talking to me as if I knew nothing about my own building. I knew what she was trying to do. She was trying to seal the deal with this little brat by appearing "friendly" and glib with everyone she encountered along the way. I was just a bump along the road to her commission. That's what bothered me.

Why should I have respected this woman? Why should I have been polite? I do not award politeness to people in situations like this. I do not respect people who ingratiate in order to fill their own pockets. So I do not smile or act nice. Now, that does not mean I am an impolite person. Quite the contrary; it simply means I am judicious with my natural politeness. It also means that I resort to impoliteness with people who deserve to be treated impolitely. Don't be fooled: They are out there. And it is actually worse to treat them politely.

I have been walked over too often for being polite. That is why I now know when to be polite, and when not to be. Believe it or not, it is undignified--and very weak--to invariably be polite with everyone you meet. On the whole, people don't deserve it. So you need to learn when it works to be polite, and when it doesn't.

"HONOR BOUND TO DEFEND FREEDOM" : WHAT ARE WE STILL DOING IN IRAQ?

AN ESSAY

Two weeks ago, I watched Paul Greengrass' searing Green Zone. Although the movie masquerades as a pure action thriller, it actually deeply criticizes American involvement in Iraq, especially the manufactured casus belli that led us to war. At several points during the movie,my emotions surged. I have always spoken out against the War in Iraq. I always considered it an illegitimate, illegal, unethical, imperialist venture without justification in law, justice or good policy. The movie showed raw American power at work. And that reawakened my slumbering vitriol about the war.

Green Zone opens in the din of an air raid. It is March 19, 2003, the day the U.S. air force began bombing Baghdad. Sirens wail. We hear the buildings shudder as explosions rip through the city. Iraqi men and women frantically run through hallways, shouting and screaming. We see lights flickering. Dust falls from ceilings. Windows break. Then the shot pans out to a vista over the city. Massive fireballs light up the night. Buildings burn. Anti-aircraft fire streaks into the sky. Jet engines and cruise missiles boom through the air before yet another explosion rips the skyline.

That scene choked me up. So that's American power, isn't it: The power to bomb a city into oblivion. The power to make civilians scramble in panic as the house next door explodes into a million pieces. The power to knock out electricity and destroy infrastructure. And for what? In hindsight, I knew there was no justification for the war. There were never any weapons of mass destruction. Iraq did not plan 9/11, nor did any Iraqis hijack the planes that attacked the United States. No, America flexed its muscles against Iraq simply because it could. It ignored the United Nations and its weapons inspectors. It acted with breathtaking defiance, even if it mumbled about "reliable independent intelligence" concerning an Iraqi nuclear arms program.

Worse, we're still there, seven years and 6000 American dead later. That's to say nothing about the hundreds of thousands of Iraqis killed and countless more lives ruined for nothing.

War apologists will inevitably label be a socialist for making these observations. They will tell me that "intelligence was uncertain" about weapons of mass destruction in Iraq in early 2003, so it was better to be "safe than sorry." They will also tell me that America had "good reason" to attack Iraq because Saddam Hussein was a brutal tyrant who tortured and murdered his own people. In fact, they will stress the fact that America "fights for freedom" around the world; even if we did not find nuclear weapons in Iraq, at least we gave Iraqis democracy.

I recoil from this facetious "freedom" explanation for the invasion. The argument is not just illogical; it also shows American involvement in Iraq for what it really is: A selective, hypocritical, arbitrary application of brute force. It is illogical because America does not really care about "worldwide freedom." In the first place, it is presumptuous to even suggest that "American-style freedom" can work in diverse cultures around the world. And even if such a thing as "freedom" were universal, why stop with Iraq? George W. Bush said that the war was necessary because "Iraqis needed freedom from a murderous tyrant who tortured and gassed his own people." Yet there are many nations across the globe that need the same treatment. The "freedom" rationale--if believed--would require U.S. military involvement in virtually every sub-Saharan African nation, as well as Saudi Arabia, several southeast Asian countries and even Russia. There are "tyrants" in all those nations who "murder their own people."

So why haven't we attacked all these other countries? If we truly care about "freedom," we should attack Rwanda, Uganda, the Congo, Pakistan and Malaysia. The fact that we haven't shows that our involvement in Iraq is purely selective. And because the freedom rationale is so weak, it begs the real question: Why Iraq? Only a naïve idiot could believe that America had a genuine interest in "Iraqis' freedom from tyranny." So what was the real reason?

For a long time, I thought that America invaded Iraq to gain access to its lucrative oil reserves. The cynic in me can never really suppress the thought. Yet after seven years of occupation, oil prices are no lower than they were in 2002. In fact, they have even spiked several times in the ensuing years. With oil men like Dick Cheney and George W. Bush in the White House, Iraq's oil must have been one reason why they decided to invade. In retrospect, it should have been an easy assignment: Knock out Saddam, capture the oil fields, set up some pipelines and start pumping.

But it did not work out that way. The war planners encountered a set of problems they did not anticipate: Sectarian strife. They must have underestimated how difficult it would be to occupy Iraq. They could not set up their pipelines or build their oil-carrying infrastructure because the Iraqis did not just roll over and allow the Americans to have their way with their country. They sabotaged roads, blew up tankers, ambushed convoys and beheaded "contractors." And because men like Donald Rumsfeld woefully miscalculated how much force would be needed to subdue Iraq, the U.S. military never had sufficient strength to pacify the countryside. Rumsfeld thought a "small, rapidly mobile force" with overwhelming air power could claim Iraq.

He was wrong. In the end, U.S. forces in Iraq wound up fighting a desperate "fire brigade" war in which they struggled to respond to local hotspots without bringing overall stability to the country. As a consequence, America could not realize its initial commercial war goal: Oil mercantilism.

Still, I am not writing today to summarize America's strategic failure in Iraq. Rather, I am writing to stress that America's failure was far larger than mere military stalemate. America sacrificed much more than young soldiers' blood to occupy Iraq. It also sacrificed its historically "moral high ground" in war by engaging in illegal, unethical behavior on an unprecedented scale. In the end, American occupiers showed themselves little better than the Baathist torturers they set out to depose in 2003.

Green Zone alludes to this. In brief, the movie follows an army officer (Matt Damon) assigned to locate nonexistent "weapons of mass destruction" at various sites throughout Baghdad. After coming up empty every time, he begins to wonder whether his intelligence is sound. He decides to investigate his sources and gradually uncovers a tangled web of official deceit running all the way down from the Pentagon. When he realizes that the Pentagon has basically misled the army into supporting the war, he sets out to locate an Iraqi general who met with a senior Pentagon official (Greg Kinnear) prior to the war. The general told the Pentagon official that Iraq had no WMD program. The Pentagon official lied about what the general said and told Washington that Iraq did have such a program. To prevent the truth from emerging, the Pentagon official sends a hit squad to kill the general. Meanwhile, the army officer rushes to save him and expose the truth.

Green Zone's plotline makes for a good thriller. But it also makes a valuable point: America's case for war against Iraq was marred from the outset. It was built upon official deception. It threw ethics to the wind and committed American blood for fabricated reasons. The movie shows the American government working in a criminally underhanded manner. It shows senior American officials manipulating the truth and authorizing murder to conceal it. While Green Zone might just be a movie, it is certainly based on real events.

I thought America was supposed to be better than this. What ever happened to America as the "White Knight" of international politics? There was a time when America went to war for good things--and only as a last resort. There was a time when people around the world looked to America as a beacon of freedom and justice. During that time, no one would have dared think America could be tyrannical or evil. America did not lie, cheat, deceive, torture, murder or kill. It punished those who did while remaining true to its ethical principles. Hitler tortured, killed and invaded. America liberated the death camps and freed Europe from Nazi domination. That was noble and just. That was America's international reputation. That America could never act a villain.

Sadly, America did act a villain in Iraq. In a telling scene, Green Zone reminds us that American forces committed atrocities against Iraqi prisoners. It shows us a "detainee camp" in which U.S. forces hold allegedly "high-value" Iraqis in a stockade. It shows U.S. troops brutalizing prisoners with clubs, barking dogs and extremely loud music. It shows them forcing prisoners to sit in uncomfortable positions. We hear prisoners crying out in pain from darkened solitary cells. Some even lie bleeding on the floor without medical care.

Ironically, a sign over the stockade reads: "Camp So-and-So : Honor-Bound to Defend Freedom."

What kind of freedom is this? What kind of honor? It is as if the American army in Iraq still believed that it was the "White Knight" of 1945, even though its "intelligence division" members acted more like SS torturers than noble liberators.

There is no honor in torture or inhumane treatment. America said it waged war in Iraq to overthrow tyranny and torture. Yet within weeks, it began committing the same outrages on Iraqi prisoners that Saddam committed against his own people. Of course, war apologists will say that troops in the field must discover valuable battlefield intelligence "by any means necessary." That may be so as a practical matter. But America used to draw ethical strength from its refusal to engage in the unsavory tactics of its enemies. America acquired a sterling reputation because it refused to be Machiavellian.

We have drifted far from our ethical moorings. The war in Iraq has cost this country more than individual soldiers. It has also cost us our international reputation. We are no longer noble liberators committed to justice. Rather, we are now petulant rogues who wage war simply because we want to, without regard to ethics or international law. Our involvement in Iraq is a very dark chapter in American history. It is the chapter in which America became just another Machiavellian State determined to do its will, no matter the cost in blood or principle.

I wonder whether we will ever repair the damage we have done to ourselves.

CONTRACTS OR CONSCIENCE? AN ETHICAL DILEMMA

AN ESSAY

During my first year in law school, I struggled to learn the endless verbal formulas and doctrines that apparently made the law a flawless machine. I did not have time to reflect on the law's theoretical weaknesses or its cynical role in maintaining power structures in our society. No, I was more worried about learning all the recipe-like elements for particular torts, contract defenses and crimes. I spent my time memorizing lists and hoping I would remember them for the exam.

It was a stressful time for me. It probably did not need to be, but I made it so. It likely had something to do with all the other stressed-out, high-striving, perspiring people around me. Put yourself in a room full of panicked people and chances are you'll soon feel panicked, too.

Despite all the stress and anxiety, however, I remember certain moments with great clarity. Now that several years have passed since law school, I understand these moments in a new way. At the outset I must confess that--in hindsight--I was never really law school material. I might have studied it well; but it was difficult for me--and almost unnatural--to suspend my creative powers for three long years. True, I always retained my satirical mistrust for power. But in law school, I had to suppress my bitter urge to laugh for long enough to get through the rigid curriculum.

I'm glad I managed it then, because there's no way I could have managed it today. I've returned to Nietzsche. I have reverted to my nature. I am--to use a Shakespearean phrase--a "satirical rogue." Yes, an analytical satirical rogue to be sure; but a rogue nonetheless. I have trouble taking anything too seriously, especially so-called "authorities." I have a socially-dangerous ability to see through pretense and to sniff out unfairness. I am not very discreet either. I call spades spades. I don't even whisper. I listen to my conscience and I speak my mind. These are not admirable characteristics for those who wish to make partner at a law firm.

Having returned to my natural habitat over the last few years, I now analyze my law school memories in a way that affirms my identity. Here's a good example: I was sitting in our first-year contracts class. Our professor had stumped everyone. It was some hypothetical problem about some guy who made a promise to another then broke it. The question was whether the aggrieved person could sue the other for breach of contract. The professor asked what legal rule justified recovery in the case. Several uneasy moments passed. About 90 twentysomethings sat there staring at their laptops in an effort not to be noticed.

Finally, I raised my hand and said: "Well, he made a promise and broke it." The professor sneered at my response. I will never forget the look on her face. Then she said: "So what if you break your promise? What does that have to do with anything."

At the time, I did not think too much about the professor's response. I was too worried about memorizing legal recipes. But over time, I have come to see this moment as a perfect illustration for the proposition that law and ethics virtually exclude each other. And I have also come to see this moment as an expression of my own character. It should have alerted me that I was ethically uneasy with the law. After all, in my heart I care whether I tell the truth. If I make a promise, my heart hurts if I break it. Yet my heart does not concern the law. The law deals only in extrinsic indicia, not ethical worries. The law is about empirically observable factors, not the pangs of conscience. When I raised my hand in that class, I showed my nature: At that early time in my law school career, I thought the law and ethics overlapped. I could not have known at the time that they do not.

From an ethical perspective, a promise is a promise. You fulfill it because it is the "right thing to do." You do not hem, haw, qualify, vacillate or renege. You do what you say because it bothers your heart if you do not. If you have a conscience, it hurts to break a promise. Then again, if you are unethical, it does not bother you to break a promise. Your heart does not torture you for the decision. You just move on; you break your word as necessary to suit present circumstances. That may be realpolitik. It may even be legal. But it is not ethical. Ethics is internal; it is about the heart and intuitive feelings. By contrast, law is external; it has nothing to do with the heart. Detective Alonzo, Denzel Washington's unscrupulously corrupt (and successful) character in Training Day (2001), put the distinction best when he told his ethically troubled partner: "It ain't what you know. It's what you can prove."

In ethics, you know. In the law, you prove.

From a legal perspective, there are mere promises and there are contracts. Contrary to popular belief, contracts are not necessarily imposing-looking official documents that you sign. You can assent to a contract without ever seeing a paper. Rather, contracts are legally-enforceable promises, whether written or not. To make a promise legally enforceable, it must meet certain objective elements. A "promise in the wind" might trigger an ethical responsibility to honor it. But unless the promise meets technical legal elements, you cannot go to court to force the other guy to honor his word.

Contracts serve commerce. They support our economic system. They give assurance to business people that others will adhere to their promises. As such, the law only enforces promises that arise in "bargained-for exchange." The law calls this "consideration." In theory, this means that both sides haggle over a deal. Each side benefits and suffers detriment in equal measure. One party parts with money. That is detriment. The other party gains the money. That is benefit. But to get the money, one party must do something. That is detriment. The other party receives something desirable from the activity. That is benefit.

This is what makes a promise enforceable at law: Bargaining. Exchange. Haggling. Negotiation. Dickering. It is commercial. It is not gratuitous. In fact, gifts are not contracts. Quite the contrary: If only one party in a transaction receives benefit without a bargain, there is no contract. A kid can't sue his father if his father simply tells him he'll buy him an Xbox, then he breaks his word.

I mention all this to show that contracts are strictly technical. As such, the heart plays no part in their formation or performance. Put another way, ethics exerts no influence on contracts, even if it exerts influence on individuals who make promises. In fact, sometimes it makes more economic sense to break a contract than to keep performing it. For example, if a farmer promises to sell corn to a wholesaler at $1 a pound for a year, but then the price of corn suddenly rises to $10 a pound, it makes more sense to break the contract than keep performing it at a loss. After all, the law only provides a remedy for the contract price. In this case, the farmer could easily break the promise to sell for $1, pay the wholesaler $1 damages, then sell his corn at $10 a pound for a huge profit.

It might be unethical to break promises, but in circumstances like these, money talks and ethics walks. From the law's perspective, it makes more sense to break a promise than continue performing at a loss. The law actually encourages this unethical result. This demonstrates once again that contracts exist to support our free market economic system, not ethical imperatives.

In our free market economic system, people want to profit from their bargains. If they make a deal, they want their money. Contracts provide them with a weapon to either force compliance with the bargain or force the bad party to pay the expected profit. That is why contracts exist: To ensure that commercial men make their profits. They protect expectations. And contract law is completely indifferent to ethical considerations if they cut against those expectations.

Despite the law's requirements, sometimes ethical considerations wield very strong influence on individual people. And sometimes the imperative to tell the truth is not the only ethical conundrum that intervenes to interrupt a contract.

In the movie, Ray (2004), for example, Ray Charles makes a contract to play several concerts in racially segregated Georgia during the early 1960s. While he leads his band into a concert hall, protestors clamor that he is ethically wrong to support an unjust social custom. At first, Ray says that he has a contract with the promoters to do the show. But then he stops and thinks. Finally, he says: "No, no, they're right. Everybody get back on the bus. We're not doing any more shows at segregated venues." The promoter gets furious and says: "You have a contract to do these shows! I'll sue your black ass for this, Ray, and I'll win!"

Ray had profound ethical qualms about performing a contract that indirectly supported racial segregation. His conscience compelled him to refuse to perform it. But from a legal perspective, the promoter was right: He would win the case against Ray. Contract law cares nothing for ethics; if you make an enforceable contract and you refuse to perform it, it is no excuse to say: "I had an ethical problem with the subject matter." As admirable as that sentiment may be, it would not save you from paying full damages to the other party in a contract case. In this light, contract law once again supports commercial expectations, not ethical imperatives. It even supports commercial expectations when those commercial expectations perpetuate fundamental injustice. As long as there is a bargained-for exchange, the show must go on. Ethics is no excuse.

In hindsight, Ray could have avoided the problem altogether if he had raised his ethical objection prior to making the contract. Ethics can dissuade a person from entering into bargains that implicate ethical problems. But once made, ethics cannot excuse performance.

Still, this is hypertechnical rubbish. Conscience does not always materialize on cue. Sometimes our ethical sensibilities only awake once a contract begins. Perhaps it is not possible to foresee ethical difficulties in a contract until after we strike the deal. Yet the law does not see it that way. Once you make a deal, you are stuck with it, no matter what your conscience says about it. You might be able to shed your obligations by pleading some other, legal, defense. But neither ethics nor conscience is on the list of acceptable legal defenses.

And why should they be? Contracts are about commercial expectations. What does conscience have to do with those? The most successful commercial men easily escape all these issues by adopting a simple tactic: Just don't have a conscience.

Without a conscience, life is easy. You just follow the rules in the contract and go with the flow.

"I AIN'T APOLOGIZIN' FOR SHIT" : TIGER WOODS' ALTERNATE REMARKS

A REASON, COMMERCE, JUSTICE AND FREE BEER EXCLUSIVE REPORT

Last Friday, disgraced PGA Golf Champion Tiger Woods made big news when he made his first public appearance since allegations arose last fall that he perennially cheated on his wife. In a prepared statement, he publicly acknowledged that he "cheated," "acted irresponsibly" and "was unfaithful" by engaging in serial extramarital relations with over ten women while married to his wife, Elin Nordegren. He showered apologies on everyone from his "business partners" to his wife, children, mother, friends, their friends, fellow golfers, the game of golf and even Buddhism.

Despite Mr. Woods' technical contrition, however, many viewers felt that he did not put his heart into the performance. Many commentators claimed that he was "wooden" and "robotic" while reading his statement. They claimed that he must have been coached to deliver his remarks in order to smooth over any future employment problems, as well as to maintain favorable commercial relationships with endorsers. In fact, many commentators said that they did not believe anything Mr. Woods said. Rather, they contended that he just was "saying what he had to say" in order to remain professionally viable.

Reason, Commerce, Justice and Free Beer worked all weekend to determine Mr. Woods' true sentiments. Thanks to our tireless efforts--as well as to some fortunate conversations with lawyers and publicists close to Mr. Woods--our agents discovered that Mr. Woods prepared his own statement weeks before his presentation last week. Through some luck and journalistic ingenuity, our agents actually found a copy of Mr. Woods' original remarks. Our agents learned that Mr. Woods' lawyers and publicists urged him never to deliver these remarks. According to our sources, Mr. Woods' took their advice and asked a team of trusted lawyers and publicists to draft his statement. Ultimately, Mr. Woods delivered that version last week.

But here at Reason, Commerce, Justice and Free Beer, we believe that men have a right to speak their minds. We also believe that honesty is central to American discourse, especially discourse involving public figures like Mr. Woods. No matter what our opponents say, we think that America deserves to hear what Mr. Woods actually thinks about the scandal that has transfixed the Nation for almost three months. While we sympathize with Mr. Woods' contention that his behavior is essentially "private," the news story is not. For better or worse, Mr. Woods' serial philandering has entered the lexicon of American civilization: We all know about it. And we want to know more.

For those reasons, today we are pleased to present Tiger Woods' Alternate Remarks:

February 19, 2010

Good morning, motherfuckers,

You know something? I got just about one thing to say to everybody seated here today and all a y'all sitting at home watching me on TV: "Fuck all a y'all. I ain't apologizin' for shit."

Do you motherfuckers know what you've done to my life? Look at my hair! Holy shit, man, I'm going bald over this. Do you know how much you've embarrassed me in front of my wife? Don't you have any respect for a man who's just trying to get an honest nut up in here? Shit, it's not like I'm the only player out there trying to get a little bit on the side. In fact, if a white man cheated on his wife, y'all probably wouldn't even say anything about it. But as soon as a successful black man stands up and wants to get a little extra pootie, you step up and try to lynch me.

Y'all are giving me a hard time because I'm black.

Well, fuck y'all. I'm pissed.

I didn't do anything wrong. I was just doing what any man would do in my situation. In fact, y'all wish you could be like me. Y'all wish you could have my money, cash and hoes. Yeah, I'm a smooth-talking, smooth-walking, good-looking, money-having player. I get millions for driving golf balls down the fairway. I get my picture taken with a Tag Heuer watch on. Then I go out to the VIP champagne room and sink a few mo-fuckin' putts with some smokin' hot honies. I ride around in Bentleys and I live in a palace. My wife is a Norwegian model, BI-ATCH! What the fuck you thought?

And you say you don't like me. You say: "He unfaithful." Sheee-yit, I know every last one of you men out there wants to be doing exactly what I've been doing. And don't you deny it, you hypocritical motherfuckers.

Let me just say one thing to you right here: "A player got to play. Don't hate the player; hate the game." Stop hating me because I play better than you. If you don't like the game, don't play. But don't hate me just because I'm the big bad mack daddio who gets all the hoes.

No, no, no. You got it all backwards. All a y'all jealous motherfuckers are wrong, not me. I mean, leave my wife and kids out of this. This ain't none of your business. This is between me and my family. Stick your cameras somewhere else. So what I banged some big-booty hoes in the club. So what I brought a couple freaks to the house while my wife was away. So what if we busted out the ice cubes, whips and whipped cream. What the fuck does that have to do with y'all? That's my motherfuckin' business! Stay out of it! Leave a brother alone!

And so what I if was unfaithful? You try being faithful when you're a young, good-looking black man and ten scorching hot women start wagging their titties in your face. You just try it. You sit up there talking about "responsibility," "honor" "integrity" and "decency." That shit don't matter much when fifteen or twenty hoes be circling round the long dong. Shit yeah, biatch, my shit is strong. Say whatever y'all want about it. You wouldn't be acting all high and mighty if hot-ass porn stars treated you the way they treat me. See what I'm saying? Y'all are just jealous.

And that's another thing I want to bring up: Why y'all trying to pin all the blame on me for being unfaithful? You think I was the only one doing wrong here? What about the hoes who got butt-booty nekid when I was just trying to mind my business? I didn't ask 'em to sit on my face: They just did it. Was I supposed to say: "I'm sorry, my dear, but my marriage relation compels me to ask you to remove your vagina from my lips"? What about my cold-hearted wife who treated me like shit at home? Sometimes she don't wanna fuck for months on end, then she asks me to do motherfucking chores around the house. Fuck that.

I'm just a man. You put me in some tight situations and I'm gonna do some freaky things. That's just how we roll. So basically what I'm saying is this: I'm not the only one to blame here. I'm just a man.

So back the fuck off and leave me alone. I don't need no help. I don't need no "sex addiction therapy." Player, what? Sex addiction? Sex ain't no addiction; that shit be natural. Just because I bagged some nice-looking ass don't mean I got a "problem." Shit, most brothers would say I did good. What the fuck is with all a y'all? As soon as you get good at fucking that means you gotta check into the hospital for "sex addiction? " Say what?

This is what I've been saying all along: Y'all just can't cut a successful brother a break. Y'all wish you could be doing what I've been doing, but because you can't, you say: "Tiger gotta get help."

I'm going to say this one time and one time only: "I don't need no motherfucking help." I'm fine. I'm doin' exactly what a man is supposed to do when he's rich, famous and good-looking. I'm supposed to get a reward for all my success, right? I'm supposed to enjoy my life, aren't I? Apparently not, you fuckers. Nope, y'all want me to sit at home, take Elin's shit and watch TV on Saturday night. Well let me tell you something: That's not what players do. And I'm a player. I'ma play.

Not only that, how is "therapy" supposed to stop me from fucking? What are we supposed to talk about up in there? Talk about finger-painting? Crayons? What I brought for lunch? What am I, nine fucking years old? Therapy, what? Pleeeeze. Y'all just can't stand the idea that a black man be getting everything in life you wish you had, so you say he's "sick" and throw him in the hospital.

I got something to say to my business partners. I know y'all are important, so I'm gonna say something to you right about now. Don't cut me loose. I got nothing but love for ya, baby. And people who buy shit I endorse are still gonna buy it. Hey, people love a player. People love a mack. Don't you know that? Look at P. Diddy: He sells every last thing he touches. Let's face it: Quiet guys who wear golf sweaters aren't usually very exciting. But when they see me wearing a golf sweater, they'll say: "Oh, shit, is that Tiger in that three-button cardigan? I got to get me one of them. Then I'll get me all the hoes!"

Think about it. I'm marketing gold. Most people think golf is fuckin boring as hell. But with me, I spice it up and turn it into a crunk party.

So that's about it. I ain't sorry for anything I've done. I didn't do anything wrong. I'm still the best motherfucking golfer alive; believe that. Y'all can try to lynch me all you want. Ain't gonna stop this player. I'm gonna keep sinking putts on and off the course. Watch me.

And in the meantime, stay the fuck away from me and my wife. This ain't none a y'all god damn business.

Thank you. And kiss my black Thai ass, you racist player-hating bastards.

CELEBRATE BLACK HISTORY MONTH : DRINK HEINEKEN

OESTERHOUDT STRIKES

You might think that title is a joke. It isn't: I actually saw it printed on a New York City bus.

I thought I had seen everything in advertising. I thought I had cataloged every species of commercial dishonesty. But I should never underestimate commercial speakers: Their innovation knows no bounds. They push the limits every time. And in cases like this, they push straight into the surreal.

What the fuck does Dutch beer have to do with African-American identity and history? How does Heineken in any way relate to the black experience in the United States? How does Heineken reflect this country's poisonous racial legacy, or in any way symbolize it? I have no doubt that many African-Americans like Heineken beer. But would an average black man in America instinctively associate Heineken with black issues?

I can understand associating George Washington Carver, Crispus Attucks, Martin Luther King, Jr., Scott Joplin or even Snoop Dogg with Black History Month. All those men achieved prominence in American life through the decades. But Heineken? Where was Heineken during the Freedom Marches? Where was Heineken during the Civil War and Reconstruction? And where the hell was Heineken during the L.A. race riots?

Heineken is not African-American. It is not even a person. It is a beer. What role could it possibly have played in a Nation's development?

To suggest that blacks should celebrate their history in the United States by breaking open a Heineken is just asinine. After all, it was a Dutch merchant who brought the first African slaves to Virginia in 1619. That's not to say that Heineken reflects modern Dutch views about slavery. But the fact remains that the Dutch played a very dark role in the history of American slavery. In that light, it is especially perverse to suggest blacks should celebrate their history by drinking Dutch beer.

Heineken's ad is not just historically incongruous. It also shows just how little taste--or sense--most advertisers bring to their work. In this case, the advertisers did not ponder the embarrassingly weak connection between African-American history and Heineken beer. No, they merely identified a potential market (i.e., African-Americans), then matched their product to an important month in the "African-American calendar." Perhaps Heineken intended to forge a mental link between "African-American pride" and Heineken. Perhaps they wished to dupe African-Americans into believing that Heineken played a substantial role in their history. Maybe Dr. Dre likes Heineken. Maybe Duke Ellington drank it after his shows in the 1940s. Who knows?

Heineken simply concluded that African-Americans represent a "market:" Namely, a discrete body of potential buyers and sellers at a particular time and place. Any advertising that incites a market to spend money on the advertiser's product is worth the price. It does not matter if the message is crass, off-color, inappropriate, incorrect, counterfactual, counterintuitive, silly, ridiculous or just wrong. Those concerns pale next to the advertiser's mandate to generate profits.

In the end, advertising is not about consistency. It is not about respect, either. Rather, it is about implanting mental connections so that people spend money. In advertising, facts need not be accurate. Indeed, facts are not even necessary at all.

And taste? That's the least concern. If taste mattered, what self-respecting student of American history would dare to assert that Heineken beer has anything to do with the plight of African-Americans in this country? The thought is almost too embarrassing to entertain.

But that didn't stop Heineken from entertaining it. There is no shame--or dignity--in commerce.

That's another reason I'm not good at it. Damned ethics!

NATIONAL BROTHERHOOD OF NO-GOOD SCOUNDRELS, DISHONORABLE PRICKS, LOW-DOWN PUNKS AND PLAIN LOUSY SONOFABITCHES WHO NEVER CALL YOU BACK

POLITICAL PARTIES FOR A CHANGING WORLD

By : Dr. U. B. van Flucken, Ph. D., Yale University (Behavioral Science); Former Fashion and Women's Issues Editor, Men's Health Magazine (2003-2007); Fellow, The National Favorable Results Society (Washington, D.C. Chapter); Author, "Say What You Need To Say : A Beginner's Guide to Getting What You Want from People " (Doubleday Press : New York 1999); Semi-Professional Water Polo Competitor (Greater Northeast Elite Sports Network) (1989-present).

No matter where you turn in this country, people tell you that it is bad to be a scoundrel. They say that it is wrong to lie, exaggerate, deceive, betray, backstab and abuse people's trust. They say it is wrong to borrow money without paying it back. And they even say it is wrong to two-time on your girlfriend.

But these folks just don't know how to be a no-good scoundrel. Contrary to all the propaganda, there is nothing wrong at all with being a no-good, morally-destitute scoundrel. You just have to know how to play your cards right. In fact, great people know how to be great scoundrels. And they become great because they know how to disguise who they really are: Scoundrels.

I started the National Brotherhood of No-Good Scoundrels, Dishonorable Pricks, Low-Down Punks and Plain Lousy Sonofabitches Who Never Call You Back for a simple reason: To show Americans how vital we really are. Since founding the organization, I have struggled to demonstrate that honorable responsibility is not the pathway to success. To the contrary, it is my mission to show that only a dishonorable scoundrel can prevail in this world. And it is not a hard job: If you know how to be a low-down, dishonorable punk and not get caught, there is nothing you cannot accomplish.

Success is all about image. When you're a successful scoundrel, no one knows just how big a scoundrel you really are. If they did, they'd ostracize you and no one would want to talk to you. Scoundrels need people; you can't be successful without them. But real scoundrels know how to control their image. They don’t let people get the right idea about them. They carefully monitor how people perceive them, then skillfully play one unsuspecting idiot off the other to gain all the advantages. Contrary to all the rhetoric, scoundrels aren't haphazard bums. They know exactly what they're doing at all times.

Not everyone has the guts to be an unrepentant, conniving knave. Most people buy into the propaganda and try to live honorable, "decent" lives. A lot of good that does: They wind up working loser jobs for bad pay, then skulking around with their wives and boring children for years on end. Sure, they might get some inward satisfaction from "treating people with respect" and "telling the truth, no matter what."

But at what cost! Wouldn't it be so much better to twist a few arms and tell a few tall tales here and there to really get what you want? Wouldn't life be so much more rewarding if you played some putz like a fiddle, then refused to call him back when he needed you? Why not? As long as you make sure that the guy isn't important for your advancement later, screw him. Tell him what he wants to hear. Inflate yourself. Get what you need from him. Then just forget about him and move on to the next sucker. Remember: Life is a ladder with human rungs. You need to keep moving up if you want to get to the top.

Dishonor, manipulation and double-dealing bring untold rewards. Still, a skillful rogue must make sure he does not generate the wrong impression. Good scoundrels effortlessly master disguises. You can't just trample on people and expect them to take it. Rather, a skillful rogue knows how to totally screw a person over without them knowing until it is too late--if ever. Scoundrels like us only got a bad reputation because some jerk tried to be clever and got caught in the act. And scoundrels only get caught when they are not paying attention to what they are doing. In that sense, true scoundrels are not scoundrels at all: They are virtuosos who know how to spin a story and exploit the hell out of people without anyone ever catching on. That takes skill--not everyone can hack it.

Life is tough enough without worrying about whether you're responsible or ethical. Everyone wants the same things: Money, success, happiness, women, recognition. You know, the usual stuff. Everyone is chasing after the same rewards. It is hard to win even without rules. That is why it amazes me that people insist on "honest dealing," "telling the truth" and "propriety" in their quest for success. That's like tying a boulder to your leg before swimming the English Channel: It greatly impedes your chances to succeed. In fact, it will probably sink you long before you even come close to your goal.

But scoundrels don't bother with boulders. They dress for success. They think about where they want to go and just do it. They do not distract themselves with abstractions. They don't overthink issues; they just deliver results. To that end, it makes no sense to respect everyone. In fact, most people on the road to success are hopeful scoundrels, too, and why would you respect someone who is trying to hoodwink you? No, a skillful rogue simply acts like he respects his fellows, when in truth he knows what they are: Just another low-down sonofabitch determined to block his advance up the ladder. To be a successful scoundrel, you must hold certain assumptions about your fellow man. And that means you expect to be deceived, deluded, used, abused, tossed away, manipulated and forgotten. It’s all part of the ball game: You need a tough heart to keep playing.

Great scoundrels don't get discouraged. They seek out weakness and capitalize on it. Sure, they know that people are out to use them, but they use others before they can be used. And in the off chance that someone actually trusts them, all the better. Clever scoundrels always come out ahead.

In this light, it is inconceivable why society holds us in such contempt. We are the go-getters. On the other hand, we recognize that no-good scoundrels, dishonorable pricks, low-down punks and plain lousy sonofabitches occupy the highest positions in our society. We run the banks. We run the Senate. We run the stock exchange. We run the insurance companies. We control everything. And the beauty of it is that no one knows we are scoundrels--or, if they found out, there's nothing they could do about it. People only ridicule us when we commit some faux pas that blows our cover. Great scoundrels, however, are extremely discreet. They don't make faux pas: They screw everyone else over their whole lives and no one ever notices.

For that reason, all the social criticism against scoundrels makes no difference to a truly dishonorable punk. A masterfully rotten scoundrel never makes a mistake to invite rebuke. He just keeps moving over people until he quietly reaches his goal.

We prefer it that way. The moralists and ethicists can whine all they want about "irresponsibility." They are only talking about amateur scoundrels. Little do the moralists know that professional scoundrels are the ones paying them to do their little jobs. Little do the ethicists know that professional scoundrels are the ones who own the printing companies that publish their little books. Undiscovered, virtuoso scoundrels run this world--and no one will ever know the difference. That's exactly how we like it.

So what is our secret? If being a scoundrel is so advantageous, why do so many people refuse to follow our path? We wish we could provide specific advice in this regard. The most we can say is to put yourself above others, keep your eyes on the prize and do what you need to do to get it. Don’t slow yourself down with categorical loyalties, philosophical principles or--God forbid--conscientious worries.

In a word, a great scoundrel is a great actor. He can play any part. But he must remain believable. In fact, a scoundrel has failed when the world calls him one. Great scoundrels appear to be everything, even if they are nothing. They seem to be friends with everyone, when in truth they have none. In the scoundrel's world, it's all about presentation. It doesn’t matter if there's really nothing there. Very few people ever really look to see if there is, anyway.

So if you really want to be scoundrel, start thinking about your image. Stop thinking about dignity and worth. Stop thinking about honesty, unless it would help to be honest in a particular situation. For a scoundrel, the truth is never absolute. It is just a tool. Mark that and you will go far.

Tread softly. Flatter. Connive. Ingratiate. Betray. Lie. Win.

Be a no-good scoundrel. Because good never got anyone what they wanted. And there's nothing wrong with getting what you want.

OUR SHAMELESS, DISGUSTING SUPREME COURT

OESTERHOUDT STRIKES

Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.

That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.

In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.

But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.

That is not inspiring. It is just disgusting.

It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.

First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.

But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).

Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.

Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.

Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).

This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.

That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.

Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.

Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."

But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.

Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.

Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.

On the other hand, I might get a few guffaws along the way--and more ideas for satire.

I can't write the shit Supreme Court justices come up with.

INVESTIGATING PEOPLE IS AN UGLY BUSINESS, EVEN IF IT IS WELL-INTENTIONED

AN ESSAY

Yesterday I saw the movie Doubt. In it, Meryl Streep plays a cantankerous Catholic schoolmaster who is determined to unseat the new parish priest (Philip Seymour Hoffman) because she thinks he is abusing a troubled student. She has no direct evidence for her crusade. She has seen him hug the student in the hallway. But everyone else says there is nothing inappropriate about the relationship. The priest says that love is essential to the Christian spirit; he said he hugged the boy because he was enduring ridicule from classmates. In the end, the schoolmaster confronts the priest by claiming that she "spoke to his former parish" about his "history." This leads the priest to leave his post.

Ironically, the schoolmaster later admits to a friend that she never called the priest's former employer. The friend is horrified that her austere confidante would ever lie, even when pursuing a just end. She responds: "In the pursuit of wrongdoing, one naturally steps away from God."

What an incredible line. It made me think about proof and truth, as well as investigations into others' personal history. It also made me think about prosecutors. After all, prosecutions involve the "quest for truth" while "pursuing wrongdoing" through "investigation." Yet that quest--despite its good intentions--often leads prosecutors into serious ethical quandaries, just as it did to the schoolmaster in Doubt. And beyond ethics, investigating people for supposed "wrongs" often brings out the worst in everyone involved.

We all have histories. When someone wants to dig into them, he will always uncover something unpraiseworthy, embarrassing, scandalous or simply ugly.

Meryl Streep's character in Doubt represented a familiar "type:" The self-righteous investigator who wants to find evil in a person's past. Such types do not just appear in Catholic schools or District Attorneys' offices. Rather, they appear everywhere in our society. Whenever a person assumes a morally superior position above another and launches an "investigation" into that person for some "official" purpose, he or she effectively becomes the schoolmaster in Doubt. I have encountered them in private employment, in law practice, in academics and in State licensure boards. There is an inherent condescension in their work: They hold the power; they assemble the knowledge; and they pronounce a judgment on another person's history. All the while, they never acknowledge that they, too, may have "skeletons in the closet."

It is uncomfortable to undergo investigation. When I applied for admission to practice law in Illinois, I had to submit to a grueling "Character and Fitness" inquiry. For months, an entire committee combed through my past. They made me fill out an exhaustive "personal history" questionnaire in which I had to disclose all my addresses over the past ten years, as well as confess any disciplinary infractions, criminal convictions, criminal charges, debts and basically anything else "bad" I had done in my life up to that point. They also deeply wanted to know whether I had ever lied under oath or otherwise been "dishonest" when "investigated in an official capacity." Every question seemed to lay a trap: Should you answer fully? Should you answer everything? Should you try to get away with an omission? It was as if the committee wanted you to think they knew everything, but perhaps might overlook something. Every question radiated mistrust, as if inviting you to risk a lie. The whole process seemed designed to make you feel inferior and minuscule. It left you feeling like a specimen under a microscope. And it was your "character" on the block: You either had to confess or they would find out the "truth" by some other means.

Private employers do similar things when "vetting" potential employees. They want references. They want work history. They run credit checks and peruse public records. They compare your resume to other sources to see if you're lying. They even call former employers to get "outside impressions" about the "kind of person you are." Just as the Bar Committee ruthlessly investigates applicants, so too do private employers subject hopeful workers to a suspicion-laden process in an effort to "certify" them. They get to judge personal histories; it is a one-way street. They might be total scoundrels themselves, but they're not the ones applying.

But sometimes we need investigations, don't we? After all, we want to find out bad things about people so we can punish them, or at least prevent them from working, right? Of course we do. Still, that does not mean that investigations are noble. In fact, as the schoolmaster said in Doubt, the "pursuit of wrongdoing" moves us "away from God." In other words, it is somehow undignified to grub in the ground for bad facts about people. It leads to uncomfortable inconsistencies, awkward explanations and outright embarrassment. And taken to the extreme, it leads the investigator to employ dishonest means to accomplish his "honest" ends. Put simply, the quest to affix "truth" to an individual can quickly degenerate into an obsessive witch hunt. When that happens, we should wonder whether the value of "truth" about people is worth the ethical leaps we perpetrate to find it.

I mention all this because truth interests me. We cannot talk about investigation without talking about truth, because investigation aims to produce "truth." Yet it makes no sense to talk about truth without analyzing the concept. After all, truth is about human knowledge. Human knowledge, in turn, stems from human sense. There are comparatively few things in this world that an individual can sense, and those are the only things that he can really "know as true." We know the sky is blue because we see it; we know we are angry because we feel anger in our stomachs. But how do we know about others' pasts? We are limited to our own senses for knowledge and truth. If we do not see a person act "badly," what proves to us that they are truly "bad?"

Investigators set about assembling all the circumstantial facts that produce the impression that a person is "bad" or has "done wrong," even if we personally know nothing about it. That takes real effort--and it takes a lot of scavenging. That "scavenging" takes us "away from God." Scavenging is dirty; that's what pigs and vultures do. Yet this is also what investigators do, even when they have the best intentions.

Theologians say that only God knows the "truth" about other people. In that light, any human attempt to find it seems a hopelessly imperfect enterprise.

Leaving God to one side, modern-day investigations merely reflect power. The investigator sits back, asks questions, assembles facts and makes a judgment about a person based on his "past." The investigator has a past, too. But he need not answer for it. He's the one doing the investigating. He has his own truth; he keeps it comfortably concealed in his memory. But he gets to affix truth to someone else.

It is, after all, an immense power to declare the truth about others.

HAPPINESS, UNHAPPINESS, WORK, CAREERS AND DRINKING

AN ESSAY

When I practiced law, I learned the real meaning of the word “unhappiness.” I have garbled memories about my months in practice. Impressions flitter back to me without warning. No matter how they reappear, they put a bitter taste in my mouth. They confirm to me that I made the right decision to abandon the legal profession. They remind me just how awful I felt every day in a law office.

Before I practiced law, I never thought much about the concepts “happiness” and “unhappiness.” In my young mind, happiness was uncomplicated; it simply meant that you generally “felt good” in your circumstances and that “nothing was wrong.” Applying that definition, “unhappiness,” too, was easy to understand. It was just the “opposite of feeling good.” “Unhappiness” depended on “happiness.” If I knew one, I could abstractly imagine the other. I never considered that “unhappiness” could have an independent meaning.

It does. The mere fact that the word “unhappiness” contains the word “happiness” does not mean that “unhappiness” depends on “happiness.” To the contrary, “unhappiness” is a unique, pervasive, all-consuming feeling of malaise that darkens your entire outlook on life. It is not merely the absence of happiness; it is much more. It is a poisonous, enervating, hopeless mental condition. When you are unhappy, life appears bleak and pointless. Days pass slowly, even torturously. You just want to lie down and go to sleep. You expect bad news at every turn. When you are unhappy, you do not think to yourself: “I am not happy.” You think: “I am unhappy; and unhappiness has nothing to do with happiness.”

Practicing law made me unhappy. I could not bear to get up in the morning. I would lie in bed and pray that the minutes on the clock would not pass. From the moment I walked into the office, difficulties arose. My supervisor would yell at me for failing to make a phone call or fax something. She would reject my explanations with vague advice, such as: “You need to do better, remember more and move faster.” Of course, she never told me how to make people answer the phone or return calls. Nor could she tell me how to make the U.S. Mail move more quickly. Whenever I mustered the effort to fulfill her requests, she had a fresh rebuke for me. She called me names and told me she would dock my pay if I kept “fucking things up.” I tried to emphasize that no one had trained me. She told me to train myself by reading a 900-page “best practices manual.”

I felt disillusioned. I entered law practice after a very successful law school career. I thought my academic success would carry over into practice. It did not. Whenever I talked about legal theory, I was told to be quiet and do “case management” instead. That meant making phone calls and setting up appointments with doctors and engineers. Law had nothing to do with my practice. It was an elaborate horse-trading game that happened to revolve around a courthouse. All the while, intimidating people besieged me from all sides. My own supervisor told me I was incompetent. My adversaries called our lawsuits “baseless, stupid and worthy of sanction.” I even made judges angry because my supervisor instructed me to file idiotic motions in court. In short, I was castigated for following orders as often I was for failing to follow them. It was classic Catch-22 material.

My life degenerated into pure negativity. Nothing ever felt right. No matter what I did, I expected to be insulted, censured or criticized. I never received even one encouraging word from anyone. I remember losing interest in everything, even things I really liked. My libido vanished. Lawyers in my firm sympathized with me. But they, too, endured the same hardships I did; they had little time to worry about me.

And I could not escape. I stayed in the office for 11 hours or more for six days a week. I had no vacation time. I received cell phone calls before and after I left the office. The bad news and mean-spirited criticism never ended. Six months into my law practice experience, goodness seemed to have evaporated from my existence. It had become one grim, emasculating failure after another with no end in sight. My boss even reneged on a promise to increase my salary after six months, explaining: “You haven’t earned it yet.”

That’s when I learned what “unhappiness” really meant. I quit. It was one of the best decisions I have ever made. Since then, life has dealt me more tough cards. But at least I do not face ridicule, scorn and criticism every hour. I happier now than I was when I practiced law. In any event, I know I am not “unhappy” anymore.

Could anyone be happy in such circumstances? I remember something my supervisor said to me one Friday evening. It was about 6 PM. I was working on something that had to be done on Monday; there was still a long way to go. I knew I was going to be back in the office on Saturday, but I wanted to knock some work out before the weekend. Everyone else had gone home except my supervisor. She wanted to leave, too. So she came into my office and said: “Would you wrap it up? You’re cutting into my drinking time.”

I will never forget that. It made me seriously think about life, careers, happiness and success. Here was a successful law firm manager who divided life between “work time,” namely, Monday morning through Friday afternoon, and “drinking time,” namely, Friday afternoon through Sunday evening. When she said “I was cutting into her drinking time,” she implied that she drank at any moment she wasn’t working. For her, life was binary: Working and drinking. She must have liked drinking, because she did not like the fact that I was keeping her at work during her drinking time. If she had liked working, she would not have minded staying at work for a few more hours. But she was upset because I was encroaching on “her time,” and in “her time,” she liked drinking.

I am sure this is a common sentiment. But what does it really say about happiness and success in America? People are so proud of their jobs, especially people—like my supervisor—who achieve prominence and wealth. Yet despite this pride, they always yearn for days off so they can go get drunk. People say they love their work. But if they would prefer drinking to work, are they really being honest with themselves? Sigmund Freud wrote that intoxication is the “purest, most effective method” by which to ward off unhappiness. Civilization and its Discontents, S. 44 (Fischer Verlag, 10th Ed. 2007). Drinking “drowns cares.” If my supervisor loved drinking, she must have had “cares” she wanted to “drown.” This showed me that, beneath the collected exterior, she was somehow unhappy, too. She may not have been abjectly unhappy, but she must have been unhappy enough to want to drink as soon as she got home on Friday night. My unhappiness sprang both from my ill treatment and my disillusionment with a profession that cared nothing for the principles I struggled so long to master. My supervisor’s unhappiness came from some other source. I do not know what made her unhappy. She was powerful and had much more money than I did. She commanded people around the office and owned three apartments. Yet she was upset with me because I delayed her weekly rendezvous with the bottle.

Can we ever really find happiness in employment? It seems that every working person “lives for the weekend.” I know I do whenever I work a “traditional job.” I do not delude myself by saying “I love my job.” I do not like being a servant. I do not like sacrificing my time for a few dollars. Sure, in many cases it is necessary to sacrifice time for money. But that does not mean I like it. That is why I meticulously count the days toward Friday. During the week, a part of my mind always resents the idea that I am stuck doing someone else’s bidding for a shekel or two. Friday, however, represents a liberation from service. Working people divide their mental lives between weekdays and weekends. Weekdays are boring, stressful and unsatisfying. Weekends are exciting, free and fun-filled. The human brain does not like stress, obligation and constraint. Yet it loves freedom and fun. If it came between weekdays and weekends—and if money were not an issue—everyone would choose the weekend: Who would willingly face stress and obligation if there were no compensation for the pain? That is just the way our minds work. It is easier to be happy when you do not face stress, ridicule and failure. Even if you do not face extreme pressure at work, you still have to show up and sit in one place for over eight hours a day. Your brain would much rather be doing other things during that time, like drinking, sunbathing, shopping or surfing. That’s just the way we are, no matter how much guilt-ridden social programming we’ve absorbed to the contrary. We are trained to say “we love to work at traditional jobs.” But this is self-delusion.

Ironically, traditional jobs tend strongly to induce unhappiness. They consume time, leaving only limited opportunities for personal satisfactions. The fact that so many people—even wildly successful people—yearn to drink on Friday night is compelling evidence that people would “rather not be working” if they had the choice. More to the point, the persistent mental distinction between “workday drab” and “weekend fun” vibrantly illustrates that employment makes people unhappy. Workdays are “unhappy time” and weekends are “happy time.” It is childishly simple, yet accurate. “Weekend fun” makes us “happy.” “Weekday drab” runs us down, then thirst for “fun.” Without sufficient “fun” in our lives, we are not “happy.” We may not be truly “unhappy,” but we set ourselves up for unhappiness.

All this makes me wonder whether our entire social program even cares whether people achieve happiness. We learn to work at traditional jobs. We hear rhetoric about it all the time. It is “good” to have a stable job. It is “good” to know your place in the workplace hierarchy. It is “good” to spend your best years serving some company’s economic interests. And it is “good” to make money in the process. We hear that it is important to “be happy.” But how can we be happy if we spend 72% of our lives (ie, 5 days from every 7) wishing it were the weekend? Is it “good” to be happy only 28% of the time? Against this background, it almost seems revolutionary to want happiness 100% of the time. No offense to office workers, but if you say you are “100% happy” at your job copying papers, answering phones, staring at spreadsheets, delivering coffee and cataloging documents, I don’t believe you. I know that every Wednesday morning you secretly say to yourself: “Only two more days to go….only two more days to go.”

Happiness should not be a revolutionary sentiment. I made it my goal in life. I have experienced unhappiness. It is deeply unsettling. It makes you doubt life altogether. It makes you just want to give up. Still, avoiding unhappiness is more difficult than it seems. In our society, we learn to serve. We learn to spend our time to benefit others in order to win some monetary reward. Only a few have the freedom to spend their time as they please. But happiness lies in the power to say: “I will do what I want to do.” On weekends, working people say: “I will do what I want to do,” and they do what they want. On weekdays, they say: “I must” and they do not do what they want to do.

This is not a good recipe for happiness. Yet this is the program we’ve received from day one. When we sit in an office dreaming about the weekend, we understand just how little time we have to be happy in this world. Freud put it best when he said: “Our chances for happiness are already limited by our constitution as living organisms. But it is much less difficult to experience unhappiness.” Civilization and its Discontents, S. 43 (my translation) (Fischer Verlag, 10th ed. 2007).

When we divide our time between “work days” and “drinking days,” we obviously don’t like the work days as much as the drinking days. Yet we work much more often than we drink. Where does that leave us? Or do we drink because we work? If we do, what does that say about work? Should we defend it so proudly?