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.
Showing posts with label Justice. Show all posts
Showing posts with label Justice. Show all posts
Thursday, March 11, 2010
Friday, March 5, 2010
DISCRIMINATION AGAINST APPLES IS STILL DISCRIMINATION : NO APPLE DESERVES TO BE TREATED DIFFERENTLY THAN ANOTHER
By : George A. Gleichman, an Apple born and raised in the United States of America (2010).I am an American apple. My seeds grew in American soil. I matured on an American tree. I live in American air. And I am proud to be an American. When you look at me, you think: "That's an American apple."
I love this country. It gave me life and freedom. But advantages are not the only thing I love about America. Rather, I love this country because it stands for equality. Abraham Lincoln put it best when he said that our country is committed to the proposition that all men are created equal. Thomas Jefferson said the same thing in the Declaration of Independence. Later, our Constitution affirmed America's proud commitment to equality: "No State shall…deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amd XIV, § 1.
For generations, we have fought to vindicate our egalitarian ideals in America. Throughout our history, we have battled to eradicate injustice and inequality in our land. We suffered civil war in order to free black Americans from slavery. Since then, we have struggled to give black Americans an equal chance at success. We have learned to revile discrimination. We recoil from unequal treatment in all its forms. We are committed to justice.
No American--black or white--deserves to suffer discrimination. Discrimination hurts. Discrimination marks you out as "different" and "wrong." It poisons souls. Our law takes a firm position against discrimination wherever it rears its ugly head. Even white employees can claim that their supervisors discriminated against them in hiring, pay, promotion and perks. Put simply, our law embodies the uniquely American commitment to equality that has guided our Republic since Jefferson's time. That is why we detest discrimination in all its forms.
What is discrimination? It means treating similarly-situated people and things differently. It means making crude distinctions. It means picking one person or thing over another. Every time a person chooses one thing over another, he discriminates. And discrimination is bad. It is un-American. It is anti-egalitarian. We are all equal in this country. No one deserves to suffer discrimination. No one likes to be passed over or treated unfairly.
Sadly, American apples endure rampant discrimination all over the country. Every single day, bigoted orchard workers ruthlessly examine American apples, judging some "acceptable" and others "bad." Then they pick the "acceptable" ones and toss the "bad" ones in a waste bin. Sometimes they even discriminate on the basis of color, too. They praise red apples. They even guarantee them a future at fruit stands. But not so for yellowing apples. Yellowing apples get tossed away and mashed into a pulp in some horrific juice processing warehouse. And no one hears their cries.
No American--whether human or apple--deserves vicious discrimination like this. How is it just to permit white human employees to sue employers for lunch hour discrimination, yet leave yellow apples without a remedy against brutally unequal treatment? After all, apples are apples. It does not matter whether they are red, green, yellow, ripe, unripe, rotten, soft or dying. They are still apples. They still have the same cells and cell walls. They still belong to the same genus and species. In short, they are similarly-situated. As such, how can our country permit discrimination against them?
If America's commitment to equality means anything, it must end apple discrimination NOW. We are as American as apple pie. In fact, there would be no apple pie without us. And without apple pie, America would not be the same place.
I was lucky. An apple-picker in Washington State looked at me and let me survive. But many of my brethren were not so fortunate. Some were not shiny enough. Others looked sickly. Still others did not quite make the color standard. Others were not big enough. Still others were too small. No matter their so-called "flaws," they all met the same fate: Savagely ripped from their branches, mashed to a pulp and hosed down into a sewer to be digested by beetles, rats, worms and horrible crawling insects.
Consider how these poor American apples felt when this happened. Think about what must have gone through their minds when the apple-picker said: "Ah, forget this one; it's too soft." Or: "Ewww, it's rotten. Get rid of it." Yet they were apples, just like me. They deserved equal treatment under law, not ruthless discriminatory judgment. Discrimination cuts to the core. Think about how my poor brothers must have felt when unfairly punished for faults beyond their control. A rotten apple does not ask to be rotten: It simply is. An apple's nature is no reason to discriminate against him. No American should ever endure unfairness like this.
America can do better than this. America has always done the right thing. And it can do the right thing when it comes to apples. America freed the slaves. It committed itself to equality for all under law. It recoils from unfairness and unequal treatment, no matter where it occurs. In short, America knows injustice when it appears. We are confident that America will recognize our ordeal soon enough. When Americans see the gross discrimination that apples face every single day, we are confident that public outcry will give us the protection we need. After all, Americans are decent people. They do not like it when living organisms suffer discriminatory treatment. It arouses their sense of justice. And they move purposefully to end it.
Why should only "people" enjoy "equal protection" under law? Are apples really so different from humans that they deserve discrimination and death? Bigots claim that discrimination is appropriate when two things are not similarly-situated. They say that humans and apples are sufficiently different from each other that differential treatment is reasonable.
But this is pure sophistry: Apples and humans are similar, not different. We both need air to survive. We both have cells. We both live and die. We both need water. We both need nourishment. We both reproduce. True, humans have blood and we don't. But we have juice, and that is very similar to blood. And the mere fact that we can perform photosynthesis is no reason to treat us differently under law. I always believed that America took strength from its diverse population: Why should it not be proud to include citizens who can perform photosynthesis? It is proud to include Pakistanis, cripples, Muslims and Chinese. Why not photosynthesis practitioners? Are they really so different from people who wear turbans? No matter what the bigots say, apples and humans are both living organisms. And we both deserve equality in this great Republic.
In sum, America must end discrimination against apples. For centuries, the United States has prided itself on eradicating unequal treatment and unfairness within its borders. It has expanded liberty and freedom. It has moved against discrimination in all its forms, whether racial, ancestral, gender-related or employment-related. Put simply, America does not like differential treatment. It fights to ensure that everyone receives the same treatment.
Against this background, we are confident that Americans will soon recognize apples' plight. Rectifying injustice against apples is simply the next evolutionary step on America's proud path to freedom. Blacks gained equality. Then women. Then employees. Then cripples. Then homosexuals. Now, apples demand equality. We, too, are living creatures with cells. We are the same as people, whether black, insane, handicapped, Catholic, gay or all five. People are apples. Apples are people. And similarly-situated people--and apples--deserve equal treatment. That is just the American way. Anything else is unjust.
Yet that is not how it is now. That is why every American must fight for apples just as strongly as they fought against slavery. After all, today apples face a bleak future at the mercy of bigoted apple-pickers who ignore the law. Billions of apples have already been pressed into oblivion, discarded, peeled for sport, quartered, gulped down by children, fermented into cider or imbibed simply because some apple-picker unfairly discriminated against them in some forgotten orchard.
It is time to stop this unforgivable cycle. It is time to heed our national conscience. It is time to remember that America stands for equality for all living things, even living things with shiny green skin and tasty pulp. And it is time to say what we already know: That discrimination is morally wrong. It is no excuse to say that apples are "different." You know they aren't. Apples are living things, just like you. You wouldn't grind your mother to a pulp and stick her in a gallon jug, would you? Of course not.
That is why we must all do the right thing. We must end apple discrimination TODAY. This is not about self-interested apples. This is about justice.
Wednesday, February 17, 2010
STOP THE EVIL CHICKEN BUTCHERS : EQUAL CHICKEN RIGHTS NOW
THE CHICKENS SPEAK
By : Mr. Woodrow D. Beakman, L.L.M., a Chicken; Escapee, Selma (Alabama) Poultry Processing Plant; Formerly Known as a "Grade D Fryer - Strong Style;" Self-taught in English and Human Communication; Avian; Honorary Master's Degree Holder in Human Rights Law, Georgetown University Law Center, Washington, D.C. (2008); Author, "Fried Chicken Holocaust : America is a Death House for Birds Everywhere" (Forthcoming, HarperCollins™ 2010).
America is a great Nation because it respects life. It fights for dignity and freedom abroad. It believes that all living creatures have a right to exist. America trusts life because it knows that life represents potential greatness for all. Life is good. It is worth saving. In short, America stands up for life.
Yet America has failed to stand up for life when it comes to chickens. To the contrary, America has committed heinous crimes against chickens everywhere. In every State, America allows men to ruthlessly imprison, mistreat, pluck, murder, slaughter, dismember, disembowel and process helpless chickens on an industrial scale. Worse, America even encourages bloodthirsty criminals to butcher chickens in the name of "commercial advancement."
This is an outrage against life and dignity. As chickens, we demand that America cease its genocidal campaign against us at once. We may be chickens. But we are people, too. We deserve to live just as much as a brain-dead human child or an endangered humpback whale. We refuse to allow our brethren to die in poultry slaughterhouses so that greedy profiteers can sell our breasts, thighs, wings and gullets. We refuse to allow our mothers, fathers, sisters and brothers to end their existence beer-basted and fried at the bottom of some God-forsaken Styrofoam bucket. Put simply, we demand that America respect all life--including chicken life.
Why does America refuse to see us? Indeed, America seems almost willfully blind concerning our daily ordeals. Rather than express outrage over our horrific treatment, Americans actually praise the men who orchestrate our slaughter. Just last week, for example, the Wall Street Journal ran a piece analyzing the "highly successful business model" employed by two notorious chicken butchers: Harlan David "Colonel" Sanders and his protégé Dave Thomas. According to the Journal, these two "entrepreneurs" devised an "exemplary food processing and delivery system," in addition to creating "a shrewd marketing scheme designed to maximize consumer interest in chicken meals." As a result, said the Journal, "Sanders and Thomas stand as giants in the business community." In conclusion: "Every food service entrepreneur should study the Sanders/Thomas Method well."
Giants in the business community? Exemplary food processing and delivery systems? Sanders/Thomas Method? Does the Journal even understand what made these men "giants?" Does any American really understand what methods made these men "successful?"
Sanders and Thomas are not heroes. Rather, they are evil chicken butchers who scorn life. They achieved their "success" by purposely breeding, corralling, beheading, gutting and packaging millions of innocent chickens. Yet Americans celebrate these butchers every day, not just in the Wall Street Journal, but also in rundown chicken shacks from coast to coast. Every day, Americans sing praises to Sanders and Thomas as they greedily feast on the flesh of our kin.
This is not dignity. This is not respect for life. This is genocide.
According to international law, "genocide" means the intentional killing of any identifiable ethnic, national, racial or religious group because of animus against that group. Chickens are a racial group. Our genetic combinations result in a unique racial identity. Racially, we are chickens. And because villains like Sanders and Thomas hunt us down and kill us because we are racially chicken, that makes them genocidal mass murderers, not entrepreneurs.
America should think long and hard about glorifying these killers. It should think about its principles. After all, America prosecuted Nazi war criminals for genocide after World War II. It prosecuted Slobodan Milosevic for "ethnic cleansing" in Yugoslavia. It even investigated Iraqi officials who allegedly killed minorities in that country. Hollywood superstars have lobbied for aid to Darfur, where ethnic groups make war on each other.
In short, America says it cares about stopping genocide. Why, then, does it call "Colonel" Sanders an "entrepreneur" rather than a chicken-slaughtering thug? America says it recoils from systematic, racially-motivated killings worldwide. Why, then, can it not see that chickens endure racially-motivated killing every single day? Chicken genocide proceeds on an unimaginable scale. Only 400,000 Rwandans perished in that country's genocide. Yet billions of chickens have been left writhing to die in grime-covered barrels since America took a liking to "Original Recipe" hot wings. And that's just in America. Other countries like to eat us, too. China, for instance, does not just violate human rights. It massively violates chicken rights, too. Put simply, no human genocide in history can compare to the intentional butchery chickens have suffered.
Chickens deserve to live the American dream. They deserve a chance to live in peace, prosper, propagate and find some happiness before they die. America guarantees that dream to all humans who live in its borders. It also says that all life is valuable. If that is true, why does America condemn chickens to systematic exploitation, pain and death? What about a young chicken's dream? Don't chickens get a chance to go to school, find love, work at a job and go to the movies on weekends? Don’t chickens get a chance to raise children and find meaning in life? Humans do. Why not chickens? We are living, breathing creatures, too. We have cells and brains. Our brains may not be as large as men's brains. But that is no reason to pluck us alive, cut our throats, batter us, fry us and feed us to a Little League team along with Grape Soda and potato salad.
We are more valuable than vegetables. We are living, breathing avians, not plants. We are not inanimate turnips or cabbage heads. Put simply, it is morally wrong for America to discriminate against us because we have feathers and small brains. We have webbed feet and gizzards. So what? America says it values diversity. Yet it kills us because we have gizzards and humans do not. America can benefit from all life, including creatures with gizzards. The fact that we have gizzards does not make us inferior. We are no less alive than a college professor or a superstar athlete. We all breathe the same air. We all give birth to young. True, we lay eggs and humans pop children out alive. But our distinctive reproductive methods are no reason to slaughter us and eat us; they are part of "who we are."
Federal law and the United States Constitution prohibit discrimination based upon reproductive capacity. It is no answer, then, to say that "chickens deserve differential treatment" simply because they lay eggs. In a word, America says it values equality. Like humans, we are "living things." Viewed in that light, we are equal. We demand EQUALITY NOW.
But this debate is not just about the law. This debate is about America's conscience. After all, how can America continue preaching about equality, dignity and "respect for life" when it condemns an entire segment of its living population to industrialized slaughter? How can America maintain its moral rectitude when it sets aside an entire segment of its living population to be greedily eaten along with sweet-n-sour sauce, cole slaw and biscuits? And how can it maintain its respect for individual autonomy when it refuses to allow chickens to form their own identities?
Every chicken is special. We refuse to be labeled "Grade A Fryers," "Finger-Lickin' Drumsticks," "Nuggets" or "Dark Meat Specials." We are unique individuals with thoughts, dreams and desires. America exists to allow every living individual to reach his maximal potential in all things. America exists to protect everyone's right to live. In that light, we demand that America live up to its principles. It must stop praising chicken butchers like "Colonel" Sanders and Dave Thomas. It must stop dooming our relatives to frozen death in microwave dinner boxes. In short, how is it American to allow a human to go to college and prosper, while allowing a chicken to live a wretched existence before being thrown into a steel plucking machine?
It is time to stand up for what is right. It is time to stand up for life. Chickens have so much to contribute to American life. We do not just exist to die and fill human stomachs. We do not just exist to peck around farmyards and cluck. No, we are living, breathing creatures. We can achieve great things. And if America cares about stopping genocide, it can start by bringing men like Sanders and Thomas to justice, not calling them "successful food industry entrepreneurs."
There is nothing "entrepreneurial" about mass murder. As chickens in a Republic that values diversity in all living things, we demand a voice. We refuse to be exterminated, chopped up, bagged and drowned in barbecue sauce any longer.
That is not our destiny. And that is no way to treat an entire race in America.
Wednesday, December 16, 2009
ARE LAWYERS ALLOWED TO CARE ABOUT FAIRNESS?
AN ESSAY
I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.
My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."
In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."
And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.
This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.
Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.
We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.
And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.
I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.
Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.
This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."
In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.
Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.
I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.
My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."
In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."
And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.
This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.
Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.
We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.
And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.
I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.
Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.
This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."
In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.
Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.
Tuesday, December 15, 2009
RETHINKING CAPITAL PUNISHMENT : LET'S JUST BLOW THEM UP
CONSIDERED OPINIONBy : Mr. Henry B. Henker, Esq., Legal Counsel to the Office of the Prosecutor, Austin, Texas (2006- present); Former Commercial Litigator, Henker, Haudegen & Daggett, LLP, a Fortune 250 Law Firm Specializing in Complex Financing Transactions (1994-2006); Contributing Author, Humanity Weekly (1987-present); Charter Donation Manager, UNICEF (1986-1997); Annual Keynote Speaker, The Dignity Association of Eastern Texas (1990-2003); Christian; Humanitarian; Married; Republican.
Capital punishment evokes strong emotions in America. Many Americans believe that States should not execute convicted criminals. Others believe that dangerous felons deserve to die for certain outrageous offenses. Still others believe that capital punishment should be applied on a wider basis against all kinds of criminals, from credit card scammers to double parkers. But no matter where we stand on the issue, capital punishment requires us to grapple with momentous issues involving State power, individual rights, liberty, dignity and history.
No one can really debate that the State has power over life and death. Western law functions on the premise that the sovereign decides who lives and who dies. When the American colonies broke from England in 1776, that sovereign power descended to the States. The States, in turn, yielded some of that power to the new Federal government. Still, the State's power to allow life and proclaim death remained intact. States executed people in 1776 and they execute people today. No one can really contend that the sovereign right to kill lawbreakers is "new." In fact, it is as about traditional a power as you can find in our system. Even our Constitution says that both the States and the Federal government have the power to "deprive life" as long as they afford Due Process of law. See, e.g, U.S. Const. Amendments V; XIV § 1.
Nonetheless, it is silly to think we have not changed as a people since 1776. We have electricity and cars now. We have the internet and movie theaters. We have even changed the way we think about core issues in our democracy. For instance, we allow women to vote now. We freed the slaves in 1863 and we enacted Civil Rights laws in 1964. These things would have been unheard-of in our forefathers' time. Simply put, our society is constantly evolving. In that light, it is only natural that we have begun to think differently about capital punishment, too.
At the outset, we must remember that Americans like to punish criminals. When a criminal commits a shocking offense against public sensibilities, we like to see him suffer. How else would we affirm our commitment to law if we did not harshly punish those who break it? How else would we express our common morality and decency if we did not harshly punish those who act immorally and indecently? Additionally, criminal punishment is revenge, and revenge is natural. When some vagrant kills our spouse, it is only natural to want to kill him, too. In this sense, capital punishment both upholds the law and quenches our natural thirst for revenge. Thankfully, killing criminals also prevents them from killing again. And it sends a message to would-be killers that they, too, will die if they try anything cute.
Still, we respect human dignity in America, too. In the past, we used to hang criminals by the neck until dead. In 1676, our English forebears even disemboweled a traitor alive then carved him up in Rhode Island. Until the 19th Century, we even publicly displayed executed criminals until the crows picked them clean. For better or worse, we decided as a society that such execution methods expressed insufficient respect for the criminal's dignity. Although these methods legitimately fulfilled the State's right to punish criminals, we decided that we were too humane to subject our fellow citizens to such horrible pain before death.
As Americans, we believe in dignity and humanity. Although we have no tolerance for criminals, we are progressive people. When we execute people today, we ensure that we use only the most humane methods possible. Lethal injection represents our society's balance between respect for law and respect for a criminal's dignity. In theory, lethal injection simply extinguishes life without inflicting additional pain or terror on the criminal. Once the chemicals flow into the criminal's body, he simply loses consciousness and justice is done.
For decades now, our society has largely accepted lethal injection. Many Americans are comfortable in the knowledge that lethal injection both adequately punishes lawbreakers while maintaining their dignity and ensuring our own humanity. After all, we do not butcher people anymore; we simply "put them to sleep," just like unwanted animals. This is humane. True, it does not make for a very satisfying spectacle. But it adequately strikes a balance between law enforcement and individual dignity.
Or so it seems. Recent research suggests that lethal injection may not be as dignified or humane as we once believed. After all, current protocols for lethal injection involve three discrete drugs: One sedates the criminal, the second paralyzes him and the third terminates heart and pulmonary function. Death does not occur until the third dose. We cannot know whether the prisoner suffers while tranquilized or paralyzed; after all, the paralytic agent renders it impossible for him to speak or move. It is entirely conceivable that he is writhing in horrible agony before paramedics administer the final dose. Furthermore, there are many documented cases in which death does not occur for more than two hours after the initial dose. There are even more cases in which paramedics cannot locate suitable veins for intravenous linkage. Sometimes the intravenous connections are faulty, causing corrosive chemicals to flow under the prisoner's skin, prolonging the procedure. That, in turn, prolongs the agony and anxiety. Put simply, lethal injection may not be as humane and dignified as we like to believe.
But there is a solution to these problems. As a society, we can reaffirm our commitment to law and dignity by simply blowing up convicted criminals with explosives.
Explosives would solve many of the nagging problems associated with lethal injection. By strapping four pounds of C4 plastic explosive to a convicted criminal, we can assure a quick and relatively painless death. Once detonated, the explosives will literally tear the offender apart in a heartbeat. Unlike lethal injection, it will not take hours for the offender to die. In one instant, the prisoner gets blown to pieces: There he is; there he goes. Done. That resolves the deeply problematic issues surrounding unnecessary pain and suffering in the lethal injection procedure. I mean, it can't really hurt to get vaporized, can it? You don't really have to time to reflect on it. It's just: BAM! Game Over. In my view, that reflects admirable concern for the prisoner's dignity and humanity: It is humane to blow people up.
Explosive executions offer many advantages over lethal injection and other methods. There is no way to botch an explosive execution. No one can survive four pounds of C4. And if the detonator fails, nothing happens. A technician can easily replace the detonator and get on with the show. This eliminates the troublesome medical issues relating to lethal injection. After all, doctors would be best suited to ensure that a person dies from lethal injection. Yet doctors' Hippocratic oath prevents them from participating in executions. This increases the likelihood of a botched execution. With explosive executions, however, you don't need doctors. You just need a guy to press a button. That is not very technical, and it certainly does not require 10 years of medical school to get it right. Even a high-school dropout can push a button. Hell, even a dog can.
Despite these advantages, there are some drawbacks to explosive executions. For one, they are messy. No one likes clean-up. Blowing up a person scatters shredded clothing, intestines, bone fragments, burned hair, eyeballs, fingers and charred kneecaps all over the place. Additionally, it scalds the room and deposits blood-crusted soot over a considerable radius. It takes time to clean up such a mess; plus it smells unpleasant. Not only that, but it also can be difficult to assemble the prisoner's remains for burial. It is much easier to bury a prisoner executed by lethal injection. You just unstrap him from the gurney and throw him in a pine box. But not so for a criminal executed by explosives. You need to spend twelve hours scouring through wreckage for burned pieces. That's neither fun nor dignified.
Explosive executions also require different witness accommodations than those appropriate for lethal injections. It would be both impracticable and dangerous to allow witnesses to watch an explosive execution from the room next door. To effectively and safely blow up a criminal, witnesses would have to watch remotely, perhaps by closed-circuit television. Additionally, the execution chamber would have to be significantly larger than chambers used to conduct lethal injections. Detonating explosives requires space; and many prisons do not have much extra space on hand. In that light, States would have to either build large new exploding chambers or conduct explosive executions outdoors. The first alternative would be quite expensive. The second would be somehow inappropriate. And both would deny witnesses the chance to get close to the execution scene. For better or worse, witnesses traditionally enjoy looking their tormentors in the eye before they die. That will not be possible in explosive executions.
We acknowledge these drawbacks to explosive executions. On balance, however, we conclude that explosives reflect a much better way to execute criminals than lethal injection. Although it will cost money to construct new exploding chambers, we believe it will prove a valuable investment given their ultimate benefits. And although witnesses have an interest in watching criminals suffer up close, we must remember that capital punishment is about the prisoner and the State: Witnesses are secondary. In a word, explosive executions fulfill both the prisoner's interest in a quick, painless death and the State's interest in punishing crime. Blowing criminals up is simply the most efficacious manner currently available. The fact that explosive executions are dignified and humane only increases their appeal for State governments nationwide.
We also acknowledge that victims and their families have an interest in securing justice for their pain. We understand that victims and their families want to see their tormentors suffer in the same way they suffered. We understand that victims and their families might worry that blowing up a criminal might be "going too easy" on them. After all, if a murderer slowly flayed a child to death with a scalpel, it might seem unfair to reward him with an instantaneous, explosive end.
We know how much victims matter. But we suggest that blowing up a criminal is quite satisfying, even if it is quick. True, victims and their families will have to watch the criminal explode by television. But it is amazing what modern-day camera techniques can show. Victims and their families not only get to hear the big BANG of the initial blast, but will also be able to watch slow motion instant replays of the criminal exploding from various angles. They will also receive complimentary Blu-Ray discs featuring all footage associated with the execution, including commentary, production notes and a musical score.
Considering these advantages, we believe that explosive executions will please victims and their families, despite their limited duration. On the whole, then, explosive executions will please everyone: The State, the victims and the prisoner.
It is an easy choice. We must start blowing up criminals immediately.
Tuesday, December 1, 2009
DO WE SPEAK TO UNITE OR TO DECEIVE?
AN ESSAY
As I mentioned last week, I'm re-reading Aristotle's Politics. Surprisingly, I found myself agreeing with many of his points about human beings and their motivations. That surprised me because I always took a prejudiced view against Aristotle. In college, I dismissed him because he was an "absolutist" about truth. But now that many years have passed--and now that I have read so much more--I approach Aristotle with more forgiveness. I do not read him with a smirk anymore. Rather, I read him for what he is: A classical metaphysician. I like some points; I don't like others. It's like reading anyone else.
Yet Aristotle is no average writer. He is a giant among Western philosophers. His views on virtually every subject became dogma for centuries. Men died challenging Aristotlean doctrines in the Catholic church during the Middle Ages. Others risked everything to dispute Aristotle's teachings about ethics and astronomy. As time went on, scientific advances dethroned Aristotle's pre-eminence in some areas. But in others, his influence remains strong--and still relevant. After all, Aristotle wrote about politics, ethics, human beings and beauty. These things cannot be reduced to mathematical fact. Rather, they constantly invite debate, interpretation and reassessment.
Aristotle's political work certainly has continued relevance. Like all the political philosophers who followed him, Aristotle begins by discussing human nature. Aristotle approaches the question with his usual confidence: He makes conclusions as if they were obvious, even if they are just assumptions. He also plays the biologist, constantly comparing humans to their analogues in nature.
I love any discussion about human nature. And I have always disagreed with Aristotle's view here.
Aristotle claims that men are "political animals...by nature." The Politics, Book I, ch. ii, para. 1253a1. He makes this conclusion by examining the key difference between men and beasts: Men have speech. He acknowledges that both animals and men have voice--cows can moo and dogs can bark to voice their feelings--but speech is unique to man.
This might not seem like a profound observation, but Aristotle's understanding of speech is remarkable. The consummate metaphysician, he argues that "speech has a single purpose" and no other. Namely, it enables men to "indicate what is useful and what is harmful," and "what is just or unjust." Id. at para. 1253a7. Finally, he draws the ultimate distinction between men and animals: "[H]umans alone have perception of good and evil, just and unjust." Id.
For Aristotle, then, speech has a justice function. It not only allows men to communicate their feelings, but it exists to help them find what is useful and just for all. This is the natural purpose of speech. It is imbued with a sensitivity for morality (good and evil), practicality (useful and not useful) as well as justice. These are profound concepts. And Aristotle speaks in absolute terms. There is one "good," one "evil," one "justice" and one "useful." In his view, speech enables man to find them all--and to organize States on that basis. Man is not only a speaking animal; his speech allows him to unite with other men to find universal justice in a useful society. What a remarkable assertion.
It is a remarkable assertion because it invites so much scorn. I naturally shy away from absolutes. Aristotle always offered me a tempting target because he reduces complex issues into absolute "sayings." His argument about speech--and human nature--strikes me as impossibly naive. Aristotle's philosophy of "specific purposes" (teleology) always leads to moments like this. After all, how can we say "speech is for justice and unity" when even brief life experience reveals that men often do not use speech for those purposes? Aristotle assumes that speech leads to cooperation and good. But life experience refutes this: Men lie. They don't cooperate. They don't tell the truth. They divide from one another and twist language to advance their narrow interests. And they certainly do not always use language to find justice. In most cases, language leads to injustice.
For his part, Aristotle would say that deceivers do "not use speech according to its purpose." This is a laughable objection, unfortunately: If language's "natural purpose" is to "find justice," then I would argue that people rarely use it "naturally."
Broadly speaking, Aristotle's theory of language reflects a good view of human nature. Aristotle believed that men naturally worked with one another to achieve a "good life." See Politics, Book I, ch. ii at para. 1252b27. He thought that speech gave them a natural tool to discover useful methods for securing a "good life," as well as to distinguish "good from evil," "right from wrong" and "just from unjust." Finally, he thought that men naturally cooperated with each other to achieve a "good life" filled with justice.
These are admirable sentiments. The problem is that Aristotle assumed everything he concluded. Every philosopher must assume certain basic principles in order to develop his theories about life. Aristotle's assumptions sound appealing, but they remain assumptions. For my part, I cannot assume that men are good by nature. And because of that, I cannot assume that men generally use speech for good purposes. Men unite with speech, but they also deceive with it. Men do good with speech; they also do bad. It is no answer to say--as Aristotle does--that they are merely "ignoring speech's natural purpose." There are no overreaching purposes. We simply attach them according to our individual sensitivities.
Aristotle thought that he could find truth by assigning specific purposes to everything open to human experience or imagination. And he assumed that one "truth" exists to be found: That was his worst assumption of all.
As I mentioned last week, I'm re-reading Aristotle's Politics. Surprisingly, I found myself agreeing with many of his points about human beings and their motivations. That surprised me because I always took a prejudiced view against Aristotle. In college, I dismissed him because he was an "absolutist" about truth. But now that many years have passed--and now that I have read so much more--I approach Aristotle with more forgiveness. I do not read him with a smirk anymore. Rather, I read him for what he is: A classical metaphysician. I like some points; I don't like others. It's like reading anyone else.
Yet Aristotle is no average writer. He is a giant among Western philosophers. His views on virtually every subject became dogma for centuries. Men died challenging Aristotlean doctrines in the Catholic church during the Middle Ages. Others risked everything to dispute Aristotle's teachings about ethics and astronomy. As time went on, scientific advances dethroned Aristotle's pre-eminence in some areas. But in others, his influence remains strong--and still relevant. After all, Aristotle wrote about politics, ethics, human beings and beauty. These things cannot be reduced to mathematical fact. Rather, they constantly invite debate, interpretation and reassessment.
Aristotle's political work certainly has continued relevance. Like all the political philosophers who followed him, Aristotle begins by discussing human nature. Aristotle approaches the question with his usual confidence: He makes conclusions as if they were obvious, even if they are just assumptions. He also plays the biologist, constantly comparing humans to their analogues in nature.
I love any discussion about human nature. And I have always disagreed with Aristotle's view here.
Aristotle claims that men are "political animals...by nature." The Politics, Book I, ch. ii, para. 1253a1. He makes this conclusion by examining the key difference between men and beasts: Men have speech. He acknowledges that both animals and men have voice--cows can moo and dogs can bark to voice their feelings--but speech is unique to man.
This might not seem like a profound observation, but Aristotle's understanding of speech is remarkable. The consummate metaphysician, he argues that "speech has a single purpose" and no other. Namely, it enables men to "indicate what is useful and what is harmful," and "what is just or unjust." Id. at para. 1253a7. Finally, he draws the ultimate distinction between men and animals: "[H]umans alone have perception of good and evil, just and unjust." Id.
For Aristotle, then, speech has a justice function. It not only allows men to communicate their feelings, but it exists to help them find what is useful and just for all. This is the natural purpose of speech. It is imbued with a sensitivity for morality (good and evil), practicality (useful and not useful) as well as justice. These are profound concepts. And Aristotle speaks in absolute terms. There is one "good," one "evil," one "justice" and one "useful." In his view, speech enables man to find them all--and to organize States on that basis. Man is not only a speaking animal; his speech allows him to unite with other men to find universal justice in a useful society. What a remarkable assertion.
It is a remarkable assertion because it invites so much scorn. I naturally shy away from absolutes. Aristotle always offered me a tempting target because he reduces complex issues into absolute "sayings." His argument about speech--and human nature--strikes me as impossibly naive. Aristotle's philosophy of "specific purposes" (teleology) always leads to moments like this. After all, how can we say "speech is for justice and unity" when even brief life experience reveals that men often do not use speech for those purposes? Aristotle assumes that speech leads to cooperation and good. But life experience refutes this: Men lie. They don't cooperate. They don't tell the truth. They divide from one another and twist language to advance their narrow interests. And they certainly do not always use language to find justice. In most cases, language leads to injustice.
For his part, Aristotle would say that deceivers do "not use speech according to its purpose." This is a laughable objection, unfortunately: If language's "natural purpose" is to "find justice," then I would argue that people rarely use it "naturally."
Broadly speaking, Aristotle's theory of language reflects a good view of human nature. Aristotle believed that men naturally worked with one another to achieve a "good life." See Politics, Book I, ch. ii at para. 1252b27. He thought that speech gave them a natural tool to discover useful methods for securing a "good life," as well as to distinguish "good from evil," "right from wrong" and "just from unjust." Finally, he thought that men naturally cooperated with each other to achieve a "good life" filled with justice.
These are admirable sentiments. The problem is that Aristotle assumed everything he concluded. Every philosopher must assume certain basic principles in order to develop his theories about life. Aristotle's assumptions sound appealing, but they remain assumptions. For my part, I cannot assume that men are good by nature. And because of that, I cannot assume that men generally use speech for good purposes. Men unite with speech, but they also deceive with it. Men do good with speech; they also do bad. It is no answer to say--as Aristotle does--that they are merely "ignoring speech's natural purpose." There are no overreaching purposes. We simply attach them according to our individual sensitivities.
Aristotle thought that he could find truth by assigning specific purposes to everything open to human experience or imagination. And he assumed that one "truth" exists to be found: That was his worst assumption of all.
Tuesday, October 20, 2009
IF YOU ARE "RESULT-ORIENTED" AND "CLIENT-FOCUSED," YOU MUST BE DISHONORABLE WHEN NECESSARY
AN ESSAY
Law firm websites amuse me because they all use similar words. Generally, they like to advertise their ability to "win" so that new clients will hire them. After all, potential litigants want to win their lawsuit; there's a lot of money at stake. And no one likes losing money. In essence, law firms strut their prowess in obtaining "favorable outcomes." You constantly run across muddy phrases like: "result-oriented," "client-focused," "winning team," "success-centered" and "dedicated to your cause."
You could be forgiven if you thought law firms were sports teams. After all, they talk about winning all the time. Does that mean legal disputes are simply games? If you read civil procedure rules, you might think they are.
But I am not writing today to draw parallels between gaming and the law. Instead, I am writing to argue that the legal profession's relentless fixation on "results" requires lawyers to adopt a "result-determinative" approach to problems. That approach, in turn, makes it impossible for lawyers to adhere to larger principles without sinking into a conflict of interest.
American lawyers occupy an awkward philosophical position. On the one hand, they swear to advance principles such as "justice," "right" and "honesty" as "officers of the court" in a democratic system. Put briefly, lawyers swear to adhere to an "honor code." Put broadly, "honor" means that a person adheres to certain metaphysical ideals no matter the circumstances, even if it is unprofitable. Honor imposes restrictions on the means calculated to obtain certain results. Yet lawyers constantly use words like "results," "outcome," "winning," "goal" and "dedication to client interest." These concepts involve the ends of particular conduct, not means. An honorable man refuses to adopt certain tactics to obtain ends, even if the ends are favorable. But that puts lawyers in an uncomfortable position, because they also swear to "zealously advocate their clients' interests." In short, how can a lawyer both remain true to his honor code while retaining every trick in the book to win for his client?
As a profession, lawyers almost invariably sink into ethical conflict. Law schools attempt to remedy this problem by forcing lawyers to take an "ethics course," while States force them to take an "official ethics exam" before admission to the Bar. But ethics is not about external compliance and multiple-choice answers. No, ethics is about spirit and character. It is internal, not external. It is hard to police and even harder to teach. There is an immense difference between "the rules for being an honorable person" and "being an honorable person." Lawyers learn the rules; that is all they need to do. It does not matter whether they actually are honorable. In fact, the substance of their work makes honor almost an impossible path.
People throw around the term "conflict of interest" all the time. For the longest time, it made no sense to me. I knew it was bad; I just did not understand it. I did not grasp what it meant until I went to law school and saw what lawyers do. A conflict of interest simply means that a person attempts to serve two masters. It is about loyalty and integrity. If a person gives his full loyalty to one "master," there is no way he can be fully loyal to the other. Thus, a conflict of interest cripples a person's ability to be faithful to another. And it is not just about money. Conflicts of interest can arise between principles, too. Put another way, a person cannot remain faithful to a set of principles while contradicting those principles in the service of someone else.
This is what happens with lawyers. When the State administers the attorney's oath to newly-admitted lawyers every year, it obligates them to advance core principles, like justice, fairness, honor, integrity and collegiality . But at the same time, lawyers take an oath to "fully and zealously represent clients." From the very first moment, then, lawyers swear to serve two masters. They promise to vindicate larger principles at the same time they promise to obtain "favorable results" for their private clients. Private clients do not care how lawyers get the results they want; they just want the results. In this climate, how can a lawyer maintain his honor?
Are there any honorable lawyers in the world? Probably. I did not encounter many when I practiced. In truth, that is not surprising given the impossible ethical position lawyers must occupy. Consider this: Honor imposes restrictions on the means and methods calculated to reach a certain goal, while clients demand a certain goal. If a dishonorable method is the only way to achieve that goal, how can the lawyer remain true to both his honor code and his client?
In my view, lawyers' obsession with "client focus" and "results" reveals their predisposition to abandon honor when necessary. When a person deeply wants to achieve a goal, he adopts the means most likely to achieve it. Honor, however, might bar a person from resorting to the most effective means. Do lawyers have the courage to abstain from certain victory merely to appease their ethical sensibilities? If a lawyer could win a multimillion dollar case through some trick--and he knew no one would ever discover it--would he resort to it? If he were loyal to his honor code, then he would not. But he would if he were loyal to his client. His client wants to win. The client does not care about honor. He just wants victory at the lowest cost and lowest risk. If a dishonorable means leads to victory at low cost and low risk, so be it.
Lawyers contend with these philosophical tensions every day. They face inevitable conflict between their clients' wishes and the principles they swore to uphold. Most troublingly, this conflict has a decidedly commercial dimension. After all, lawyers need money to stay in business. Only money pays rent and keeps offices running. Only money buys cars and sends kids to college. It takes money to pay the heat bill and buy presents for your wife at Christmas. Between principles and clients, who pays money? Only clients. In that light, to whom do you think a lawyer will give his maximum effort? Honor doesn't stand a chance in these circumstances. Debt collectors do not take "honor" or "principle" as payment; they take cash, checks, money orders, bank transfers or MasterCard®.
Lawyers might say they support justice, fairness and right. They might insist that they have integrity. They might even think they have honor. They might point to the wall and show you their Bar Association plaques. Still, did justice or integrity pay for their offices? No, winning cases for their clients did. That does not necessarily mean that winning is always dishonorable. But adopting a "flexible" approach to honor greatly increases a lawyer's chances to win a case. At day's end, winning matters. Law firms say it themselves. Why should a lawyer hamstring himself with honor? Great players don't win by tearing plays from the playbook; they keep every option open.
Adopting a "result-oriented" approach to any human enterprise inevitably leads to a debate about probability. If a person wants results, he adopts means that will "most probably" lead to those results. Yet honor excludes certain means. In that sense, honor represents a barrier to sought-after results. Honor reduces the probability of obtaining results. For the result-oriented person, that is an unbearable idea. When winning matters, it is frustrating to know that effective tactics are off the table.
Honor takes many tactics off the table. For a lawyer who swears to obtain results for a private client, that is not good. Pleasing the client leads to monetary success. Fulfilling honor, by contrast, gains nothing except intellectual satisfaction. As commercial actors who need money to stay afloat, lawyers cannot survive on intellectual satisfaction. Rather, they must please their clients. In so doing, they reveal their classic conflict of interest: Client wins; principles lose (if necessary).
Their own rhetoric shows which master matters more. You don't see law firm websites advertising "polite lawyers who try their best to win consistent with overreaching ethical imperatives, but who refuse to adopt certain dishonorable methods to win you money." Nor do you see websites proudly describing their lawyers' refusal to countenance client fraud to win a case. No, ethical victories don't make good advertising material. Money victories do. Results sell, not principles.
I would like to see an honest law firm slogan: "We're all about results : You don't care how you get 'em… and neither do we."
In this environment, how can honor survive? When results are all that matter, how can a lawyer insist on principles that might threaten those results?
Law firm websites amuse me because they all use similar words. Generally, they like to advertise their ability to "win" so that new clients will hire them. After all, potential litigants want to win their lawsuit; there's a lot of money at stake. And no one likes losing money. In essence, law firms strut their prowess in obtaining "favorable outcomes." You constantly run across muddy phrases like: "result-oriented," "client-focused," "winning team," "success-centered" and "dedicated to your cause."
You could be forgiven if you thought law firms were sports teams. After all, they talk about winning all the time. Does that mean legal disputes are simply games? If you read civil procedure rules, you might think they are.
But I am not writing today to draw parallels between gaming and the law. Instead, I am writing to argue that the legal profession's relentless fixation on "results" requires lawyers to adopt a "result-determinative" approach to problems. That approach, in turn, makes it impossible for lawyers to adhere to larger principles without sinking into a conflict of interest.
American lawyers occupy an awkward philosophical position. On the one hand, they swear to advance principles such as "justice," "right" and "honesty" as "officers of the court" in a democratic system. Put briefly, lawyers swear to adhere to an "honor code." Put broadly, "honor" means that a person adheres to certain metaphysical ideals no matter the circumstances, even if it is unprofitable. Honor imposes restrictions on the means calculated to obtain certain results. Yet lawyers constantly use words like "results," "outcome," "winning," "goal" and "dedication to client interest." These concepts involve the ends of particular conduct, not means. An honorable man refuses to adopt certain tactics to obtain ends, even if the ends are favorable. But that puts lawyers in an uncomfortable position, because they also swear to "zealously advocate their clients' interests." In short, how can a lawyer both remain true to his honor code while retaining every trick in the book to win for his client?
As a profession, lawyers almost invariably sink into ethical conflict. Law schools attempt to remedy this problem by forcing lawyers to take an "ethics course," while States force them to take an "official ethics exam" before admission to the Bar. But ethics is not about external compliance and multiple-choice answers. No, ethics is about spirit and character. It is internal, not external. It is hard to police and even harder to teach. There is an immense difference between "the rules for being an honorable person" and "being an honorable person." Lawyers learn the rules; that is all they need to do. It does not matter whether they actually are honorable. In fact, the substance of their work makes honor almost an impossible path.
People throw around the term "conflict of interest" all the time. For the longest time, it made no sense to me. I knew it was bad; I just did not understand it. I did not grasp what it meant until I went to law school and saw what lawyers do. A conflict of interest simply means that a person attempts to serve two masters. It is about loyalty and integrity. If a person gives his full loyalty to one "master," there is no way he can be fully loyal to the other. Thus, a conflict of interest cripples a person's ability to be faithful to another. And it is not just about money. Conflicts of interest can arise between principles, too. Put another way, a person cannot remain faithful to a set of principles while contradicting those principles in the service of someone else.
This is what happens with lawyers. When the State administers the attorney's oath to newly-admitted lawyers every year, it obligates them to advance core principles, like justice, fairness, honor, integrity and collegiality . But at the same time, lawyers take an oath to "fully and zealously represent clients." From the very first moment, then, lawyers swear to serve two masters. They promise to vindicate larger principles at the same time they promise to obtain "favorable results" for their private clients. Private clients do not care how lawyers get the results they want; they just want the results. In this climate, how can a lawyer maintain his honor?
Are there any honorable lawyers in the world? Probably. I did not encounter many when I practiced. In truth, that is not surprising given the impossible ethical position lawyers must occupy. Consider this: Honor imposes restrictions on the means and methods calculated to reach a certain goal, while clients demand a certain goal. If a dishonorable method is the only way to achieve that goal, how can the lawyer remain true to both his honor code and his client?
In my view, lawyers' obsession with "client focus" and "results" reveals their predisposition to abandon honor when necessary. When a person deeply wants to achieve a goal, he adopts the means most likely to achieve it. Honor, however, might bar a person from resorting to the most effective means. Do lawyers have the courage to abstain from certain victory merely to appease their ethical sensibilities? If a lawyer could win a multimillion dollar case through some trick--and he knew no one would ever discover it--would he resort to it? If he were loyal to his honor code, then he would not. But he would if he were loyal to his client. His client wants to win. The client does not care about honor. He just wants victory at the lowest cost and lowest risk. If a dishonorable means leads to victory at low cost and low risk, so be it.
Lawyers contend with these philosophical tensions every day. They face inevitable conflict between their clients' wishes and the principles they swore to uphold. Most troublingly, this conflict has a decidedly commercial dimension. After all, lawyers need money to stay in business. Only money pays rent and keeps offices running. Only money buys cars and sends kids to college. It takes money to pay the heat bill and buy presents for your wife at Christmas. Between principles and clients, who pays money? Only clients. In that light, to whom do you think a lawyer will give his maximum effort? Honor doesn't stand a chance in these circumstances. Debt collectors do not take "honor" or "principle" as payment; they take cash, checks, money orders, bank transfers or MasterCard®.
Lawyers might say they support justice, fairness and right. They might insist that they have integrity. They might even think they have honor. They might point to the wall and show you their Bar Association plaques. Still, did justice or integrity pay for their offices? No, winning cases for their clients did. That does not necessarily mean that winning is always dishonorable. But adopting a "flexible" approach to honor greatly increases a lawyer's chances to win a case. At day's end, winning matters. Law firms say it themselves. Why should a lawyer hamstring himself with honor? Great players don't win by tearing plays from the playbook; they keep every option open.
Adopting a "result-oriented" approach to any human enterprise inevitably leads to a debate about probability. If a person wants results, he adopts means that will "most probably" lead to those results. Yet honor excludes certain means. In that sense, honor represents a barrier to sought-after results. Honor reduces the probability of obtaining results. For the result-oriented person, that is an unbearable idea. When winning matters, it is frustrating to know that effective tactics are off the table.
Honor takes many tactics off the table. For a lawyer who swears to obtain results for a private client, that is not good. Pleasing the client leads to monetary success. Fulfilling honor, by contrast, gains nothing except intellectual satisfaction. As commercial actors who need money to stay afloat, lawyers cannot survive on intellectual satisfaction. Rather, they must please their clients. In so doing, they reveal their classic conflict of interest: Client wins; principles lose (if necessary).
Their own rhetoric shows which master matters more. You don't see law firm websites advertising "polite lawyers who try their best to win consistent with overreaching ethical imperatives, but who refuse to adopt certain dishonorable methods to win you money." Nor do you see websites proudly describing their lawyers' refusal to countenance client fraud to win a case. No, ethical victories don't make good advertising material. Money victories do. Results sell, not principles.
I would like to see an honest law firm slogan: "We're all about results : You don't care how you get 'em… and neither do we."
In this environment, how can honor survive? When results are all that matter, how can a lawyer insist on principles that might threaten those results?
Thursday, October 15, 2009
MICHAEL MOORE IS RATED "R" : APPARENTLY, COGENT SOCIAL COMMENTARY IS FOR RESTRICTED AUDIENCES ONLY
OESTERHOUDT STRIKES
I still have to watch Michael Moore's new movie, Capitalism : A Love Story. To prepare myself for his latest offering, I went back to the catalogue and watched Bowling for Columbine (2002). It made me laugh and cry all at the same time. But this time I noticed something interesting about the movie that I never considered important before: It was rated "R." The Motion Picture Association of America (MPAA) said it deserved an "R" rating because it contained "Language and Some Disturbing Images." That piqued my interest. Then I noticed that Fahrenheit 9/11 (2004) and Capitalism : A Love Story also were rated "R."
I recognized at once that the MPAA does not like Michael Moore. Bowling for Columbine did not even remotely deserve an "R" rating. Its "disturbing images" were no more than stock news footage showing gun violence in America and abroad. There was no bloodshed. By the MPAA's reasoning, virtually every nightly newscast in the United States should be rated "R" for "some disturbing images." So should almost every National Geographic Channel documentary and World War II show. And the "language" that earned the movie an "R" was this: A single use of the word "fuck" by Marilyn Manson during an interview about violence in American society. I could make only one conclusion from this: The MPAA did not like Moore's "provocative message" about American society, so they "pulled power on him" by slapping an "R" on his movie.
It is no small thing for the MPAA to dish out "R" ratings. "R" ratings reduce a movie's potential audience by up to 83%. They dramatically weaken its chances to speak to millions. As a documentary, the movie intended to reach a broad audience base. By all objective measures, the movie's content should not have warranted an "R." But the MPAA obviously felt uncomfortable with Moore's message, so they took action to automatically minimize its potential impact. The MPAA projects "authority" by vindicating "American values," like obedience, patriotism and respect for social hierarchies in an unequal commercial system. Michael Moore wages war against those values in every movie he makes. It is no surprise that the MPAA--as a corporate entity--jumped at the chance to take petty revenge against Moore. Michael Moore is a corporation's worst nightmare. He is the archetypal populist gadfly. He speaks all the words corporations try to suppress. What better way to stymie the gadfly than by restricting the number of people who can hear his words?
Michael Moore is a controversial figure. People either love him or hate him. Anyone with a trace of conservative blood generally detests him with homicidal passion. Moore haters say he "distorts the truth," "gets his facts wrong," and "sensationalizes issues," all while "being rude" and "intruding on people's privacy." Many say he "just lies."
But Michael Moore never intrudes on anyone who doesn't deserve to be pilloried. He "fights the power" in the purest sense. He only castigates those who use power over those who do not. He does not ridicule the weak. He is not afraid to call powerful people on their hypocrisies, nor is he afraid to uncover the injustices that poison American life. Naturally his targets resent his efforts; the truth always hurts. Typically, his targets respond that he only tells "half the story" and "says things inaccurately." Still, Moore's impact flows from his conceptual strength. His messages are effective because they broadly contrast principle with practice. That effectiveness does not depend on rigorous accuracy. As long as the basic ideas work, so does the film.
Power does not like exposure. The MPAA is an institution of power. It is only natural that the MPAA would use its institutional authority to strike at Michael Moore. After all, Michael Moore exposes and embarrasses power in every movie he makes. But why is the MPAA so powerful? Why is it so arbitrary? It is not a governmental institution. If it were, it could never pass judgment on artistic works consistent with the First Amendment to the United States Constitution. Only State actors must abide by the Constitution. Private actors--like the MPAA--can ignore it all they want. In essence, then, the MPAA is nothing more than a collection of powerful private individuals who get to pass judgment on artistic works for any reason they want. And they don't even need to explain why they judge as they do. Unlike judicial officers, they don't even need to reference laws and precedents to support their conclusion. They can just say: "I gave it an 'R' because I didn't like it and I think I heard the word 'shit' in it."
So why do filmmakers submit to the MPAA's ratings? Simple: Movies must have ratings to enter mainstream distribution. Without a rating, no commercial movie theater will show a film; it will be doomed to arthouses and college campuses. This might satisfy fringe directors and hardcore artists. But most artists want as many people as possible to hear their messages. The only way to really "spread the word" is to obtain mainstream distribution. And the only way to do that is to submit to the MPAA's asinine review board. That is why every director struggles to appease the MPAA's private censors. Even then, if the MPAA board does not like the director or his message, it will find reasons to restrict his audience with a harsher rating. That is what happened to Michael Moore.
I think this is really shameful. In essence, the MPAA channels artistic expression in this country to conform with the authority-serving values of a private committee. Artists willingly pay tribute to those values because they want to reach the broadest possible audience. And in some cases, the committee will do its best to restrict a filmmaker's audience no matter what the filmmaker concedes. Again, this is what happened to Michael Moore. The committee simply does not like his messages, so it branded his movies with "R" ratings to prevent more people from seeing them. Only bias and prejudice can explain why Bowling for Columbine and Fahrenheit 9/11 received "R" ratings. A documentary that shows mildly violent stock news footage and broadcasts one expletive should not be deemed "unsuitable" for people under age 17.
I really don't think Michael Moore cares whether the MPAA rates his movies. He is going to say what he wants to say no matter what. He knows many people will categorically oppose him simply because he is Michael Moore. Yet I find it despicable that the MPAA can dare to call a movie "restricted" when it merely collages images that we see on television news broadcasts every night. American life, I suppose, is rated "R," too. Or maybe "NC-17" would be more like it.
I still have to watch Michael Moore's new movie, Capitalism : A Love Story. To prepare myself for his latest offering, I went back to the catalogue and watched Bowling for Columbine (2002). It made me laugh and cry all at the same time. But this time I noticed something interesting about the movie that I never considered important before: It was rated "R." The Motion Picture Association of America (MPAA) said it deserved an "R" rating because it contained "Language and Some Disturbing Images." That piqued my interest. Then I noticed that Fahrenheit 9/11 (2004) and Capitalism : A Love Story also were rated "R."
I recognized at once that the MPAA does not like Michael Moore. Bowling for Columbine did not even remotely deserve an "R" rating. Its "disturbing images" were no more than stock news footage showing gun violence in America and abroad. There was no bloodshed. By the MPAA's reasoning, virtually every nightly newscast in the United States should be rated "R" for "some disturbing images." So should almost every National Geographic Channel documentary and World War II show. And the "language" that earned the movie an "R" was this: A single use of the word "fuck" by Marilyn Manson during an interview about violence in American society. I could make only one conclusion from this: The MPAA did not like Moore's "provocative message" about American society, so they "pulled power on him" by slapping an "R" on his movie.
It is no small thing for the MPAA to dish out "R" ratings. "R" ratings reduce a movie's potential audience by up to 83%. They dramatically weaken its chances to speak to millions. As a documentary, the movie intended to reach a broad audience base. By all objective measures, the movie's content should not have warranted an "R." But the MPAA obviously felt uncomfortable with Moore's message, so they took action to automatically minimize its potential impact. The MPAA projects "authority" by vindicating "American values," like obedience, patriotism and respect for social hierarchies in an unequal commercial system. Michael Moore wages war against those values in every movie he makes. It is no surprise that the MPAA--as a corporate entity--jumped at the chance to take petty revenge against Moore. Michael Moore is a corporation's worst nightmare. He is the archetypal populist gadfly. He speaks all the words corporations try to suppress. What better way to stymie the gadfly than by restricting the number of people who can hear his words?
Michael Moore is a controversial figure. People either love him or hate him. Anyone with a trace of conservative blood generally detests him with homicidal passion. Moore haters say he "distorts the truth," "gets his facts wrong," and "sensationalizes issues," all while "being rude" and "intruding on people's privacy." Many say he "just lies."
But Michael Moore never intrudes on anyone who doesn't deserve to be pilloried. He "fights the power" in the purest sense. He only castigates those who use power over those who do not. He does not ridicule the weak. He is not afraid to call powerful people on their hypocrisies, nor is he afraid to uncover the injustices that poison American life. Naturally his targets resent his efforts; the truth always hurts. Typically, his targets respond that he only tells "half the story" and "says things inaccurately." Still, Moore's impact flows from his conceptual strength. His messages are effective because they broadly contrast principle with practice. That effectiveness does not depend on rigorous accuracy. As long as the basic ideas work, so does the film.
Power does not like exposure. The MPAA is an institution of power. It is only natural that the MPAA would use its institutional authority to strike at Michael Moore. After all, Michael Moore exposes and embarrasses power in every movie he makes. But why is the MPAA so powerful? Why is it so arbitrary? It is not a governmental institution. If it were, it could never pass judgment on artistic works consistent with the First Amendment to the United States Constitution. Only State actors must abide by the Constitution. Private actors--like the MPAA--can ignore it all they want. In essence, then, the MPAA is nothing more than a collection of powerful private individuals who get to pass judgment on artistic works for any reason they want. And they don't even need to explain why they judge as they do. Unlike judicial officers, they don't even need to reference laws and precedents to support their conclusion. They can just say: "I gave it an 'R' because I didn't like it and I think I heard the word 'shit' in it."
So why do filmmakers submit to the MPAA's ratings? Simple: Movies must have ratings to enter mainstream distribution. Without a rating, no commercial movie theater will show a film; it will be doomed to arthouses and college campuses. This might satisfy fringe directors and hardcore artists. But most artists want as many people as possible to hear their messages. The only way to really "spread the word" is to obtain mainstream distribution. And the only way to do that is to submit to the MPAA's asinine review board. That is why every director struggles to appease the MPAA's private censors. Even then, if the MPAA board does not like the director or his message, it will find reasons to restrict his audience with a harsher rating. That is what happened to Michael Moore.
I think this is really shameful. In essence, the MPAA channels artistic expression in this country to conform with the authority-serving values of a private committee. Artists willingly pay tribute to those values because they want to reach the broadest possible audience. And in some cases, the committee will do its best to restrict a filmmaker's audience no matter what the filmmaker concedes. Again, this is what happened to Michael Moore. The committee simply does not like his messages, so it branded his movies with "R" ratings to prevent more people from seeing them. Only bias and prejudice can explain why Bowling for Columbine and Fahrenheit 9/11 received "R" ratings. A documentary that shows mildly violent stock news footage and broadcasts one expletive should not be deemed "unsuitable" for people under age 17.
I really don't think Michael Moore cares whether the MPAA rates his movies. He is going to say what he wants to say no matter what. He knows many people will categorically oppose him simply because he is Michael Moore. Yet I find it despicable that the MPAA can dare to call a movie "restricted" when it merely collages images that we see on television news broadcasts every night. American life, I suppose, is rated "R," too. Or maybe "NC-17" would be more like it.
Wednesday, October 7, 2009
A THERAPEUTIC POST, AND A WORD ABOUT "REASONABLENESS"
A REFLECTION
I'm really in no emotional condition to write. This is not a confession; I just want to say how I feel now so I can remember it later. It helps me when I express what's going on inside my head. During easier times, I can write almost endlessly because I can focus. These days, however, I can barely concentrate. I mentioned last week that I have been going through hard times because my life partner began suffering from a mental illness. It got so bad that he had to go to the hospital to "rest." I have no idea how long he will stay there.
I have never endured a situation like this. We have lived together for nearly ten years; it is jarring to know he is no longer in the house. Worse, I am tormented by the thought that he is not the person I knew. When I speak to him on the phone, it is clear that his illness has overtaken his mind. It breaks my heart and drains my own energy. In addition, I have no idea what the future holds. It is mentally taxing to deal with uncertainty about important things. I am tired all day long. My mind cannot follow anything for more than a few minutes. I am not doing well.
All this trouble started more than two years ago. My partner's mental illness represents the culmination of pressures that began when he suffered a freak burn accident in 2007. I typically do not talk about personal things like this, but now I see no reason to hold back. It helps me sort out my own difficulties when I put them in a chronology. I still cling to logic when it comes to understanding historical events that have an effect on me. I have a good memory and I put it to use.
Let's start with the injury. My partner suffered a devastating burn on his right arm in a health club steam room. No one really knows how it happened; he went into shock almost immediately after it happened. He always tells the same story: He was walking into the steam room when a burst of steam came from his right side, scalding him. He immediately left the steam room, where an employee saw him and remarked: "Oh my God, your arm!" Soon thereafter, he fainted. An ambulance took him to the emergency room. A few hours later, Chicago's best burn trauma unit admitted him for treatment. To make a long story short, he stayed in the hospital for 35 days, endured several skin graft surgeries, suffered two heart attacks and an induced coma.
Upon his release, he was essentially a broken man. His right arm was permanently disfigured. He could still use it for most things, but he did not dare show it in public. To save his arm, doctors had to shear skin off his legs to patch onto the wound. He bears those scars, too. Within a few months, he began slipping into deep depression. He did not get out of bed all day. And he continued to suffer pain in his arm. He took addictive opiate pain-killers to manage it.
All the while, I cared for him. I did the shopping. I did the errands. I took him to appointments and made phone calls. I managed the medications and dealt with the doctors. I provided comfort and sat by the bed when I had to. I tried to work for the first few months after he left the hospital. But he got so lonely and depressed while I was away that I genuinely feared for his life. So I decided to suspend my career to care for him. During that I time, I started writing this blog. Yet during the same time, I have had the much greater responsibility to care for him. In consequence, I, too, have scarcely known rest since 2007.
We tried to sue the health club that caused the injury. But whenever my partner talked about what happened, he fell deeper into depression. Lawyers think it's easy for injured people to relive the worst day in their lives over and over again; it isn't. Worse, we discovered that the health club did not maintain liability insurance on its land, so it would be extremely difficult to recover any money on his behalf without a knock-down, drag-out fight that likely would have driven him over the emotional edge. Our lawyers refused to continue representing us when they found the club had no insurance. Legally and morally, our lawyers held the high ground: No one deserves to enter a business establishment and walk out with a life-threatening burn injury. Numerous legal theories supported our position, from negligence to strict products liability. From a theoretical perspective, we should have won some compensation for him.
But we didn't. No matter how many legal advantages we had, the lawyers got cold feet as soon as they learned there was no insurance involved. Five other lawyers had the same reaction: "Oooh, no insurance! Sorry, I can't help you."
In personal injury cases, liability insurance companies ensure that defendants do not go bankrupt when accidents happen on their land. The insurance company pays for the defense and pays any judgments against the defendants. This protects the defendants' own assets from seizure. Insurance companies also speed things along relatively fast; and that makes everyone happy, including the injured person's lawyers. An insurance company will settle a case against its client quite readily if there are strong facts from which to imply negligence. The defendant just goes along with the program: After all, it is not his money at stake. By contrast, when a defendant does not have insurance, he will fight to the end because it is his money.
That was the situation we faced. And our lawyers bailed out the moment they discovered that they would have to fight for years for potentially no reward. Neither justice nor legal principle spurred them to action. Unless a case could quickly pay out, it was not worth taking. For these lawyers, cases were little more than investments. It did not matter that my partner suffered outrageous injustice due to the health club's negligence: There was not a quick, ready profit to be made on his case, so no lawyer pursued it. Ironically, the health club saved itself by acting irresponsibly: It did not have liability insurance.
Naturally, this result only deepened my resentment toward lawyers and their profession. It reaffirmed that justice does not motivate lawyers. Only potential profits interest them. If a case involves justice and profits, that will get them off their seats. But if it involves justice and no profit, forget it.
But I wonder what would have happened even if the case went forward. How could anyone put a dollar value on my partner's injury? How could money compensate him for the agony he suffered? How could any check restore his scorched arm, or make him whole from the misery and pain he endured in the hospital? I saw his pain up close and personal. I saw him scream at night. I saw him unconscious and hooked up to a ventilator. I saw him cry out in fear as they wheeled him off for yet another surgery. I saw him with a trach tube down his throat and unable to speak. I saw him sweat through his clothes and lie helpless in the bed with his bloody arm in a splint. I had to cut off his shirts with a knife and sponge him dry. I saw him fall into depression and now into mania. What money could make all this "disappear?" What does money have to do with all this?
All these experiences made me question the law. From the law's perspective, money "recompenses" negligently-caused injury. Yet I know from experience that money would have done nothing to recompense my partner's plight, nor would have made his life "all better." Worse, I saw that the law condescends when it comes to monetary awards for injury. Suppose, for instance, that a jury evaluated my partner's pain, suffering and emotional turmoil and concluded that the health club's negligence caused it. Let's say it awarded him $5,000,000. That's all well and good. But under a doctrine called "remittitur," the judge could say: "That's unreasonable. He's only getting $500,000."
Think about how insulting that is. It's one thing to put a dollar amount on physical suffering, disfigurement, permanent injury and even death. It's quite another to claim that one amount is "reasonable" over another. My experience with life-altering injuries convinced me that the law is stupid. After all, what does a judge know about what injured people really suffer? And how can he say with any authority what someone's pain is "worth," let alone whether the amount is "reasonable?"
This example illustrates my deep resentment toward all "objective standards" in the law. Judges always speak in "reasonable" terms: "Reasonable time," "reasonable care," "reasonable regard," "reasonable amount," "reasonable certainty." They think they refer to some magical standard when they use the word "reasonable." In fact, they refer only to their own, value-laden judgments concerning particular conduct in particular circumstances. Judges, after all, come from a distinct social class with distinct ideas about money, punctuality, relationships and "responsibility." They probably never suffered life-altering injuries. If they object to a monetary amount as "excessive" from their perspective, they call it "unreasonable." Yet who are they to quantify another human being's suffering?
Let a judge's wife suffer the same agony that my partner suffered. Then he can tell me what amount would "reasonably" compensate her for it.
I'm really in no emotional condition to write. This is not a confession; I just want to say how I feel now so I can remember it later. It helps me when I express what's going on inside my head. During easier times, I can write almost endlessly because I can focus. These days, however, I can barely concentrate. I mentioned last week that I have been going through hard times because my life partner began suffering from a mental illness. It got so bad that he had to go to the hospital to "rest." I have no idea how long he will stay there.
I have never endured a situation like this. We have lived together for nearly ten years; it is jarring to know he is no longer in the house. Worse, I am tormented by the thought that he is not the person I knew. When I speak to him on the phone, it is clear that his illness has overtaken his mind. It breaks my heart and drains my own energy. In addition, I have no idea what the future holds. It is mentally taxing to deal with uncertainty about important things. I am tired all day long. My mind cannot follow anything for more than a few minutes. I am not doing well.
All this trouble started more than two years ago. My partner's mental illness represents the culmination of pressures that began when he suffered a freak burn accident in 2007. I typically do not talk about personal things like this, but now I see no reason to hold back. It helps me sort out my own difficulties when I put them in a chronology. I still cling to logic when it comes to understanding historical events that have an effect on me. I have a good memory and I put it to use.
Let's start with the injury. My partner suffered a devastating burn on his right arm in a health club steam room. No one really knows how it happened; he went into shock almost immediately after it happened. He always tells the same story: He was walking into the steam room when a burst of steam came from his right side, scalding him. He immediately left the steam room, where an employee saw him and remarked: "Oh my God, your arm!" Soon thereafter, he fainted. An ambulance took him to the emergency room. A few hours later, Chicago's best burn trauma unit admitted him for treatment. To make a long story short, he stayed in the hospital for 35 days, endured several skin graft surgeries, suffered two heart attacks and an induced coma.
Upon his release, he was essentially a broken man. His right arm was permanently disfigured. He could still use it for most things, but he did not dare show it in public. To save his arm, doctors had to shear skin off his legs to patch onto the wound. He bears those scars, too. Within a few months, he began slipping into deep depression. He did not get out of bed all day. And he continued to suffer pain in his arm. He took addictive opiate pain-killers to manage it.
All the while, I cared for him. I did the shopping. I did the errands. I took him to appointments and made phone calls. I managed the medications and dealt with the doctors. I provided comfort and sat by the bed when I had to. I tried to work for the first few months after he left the hospital. But he got so lonely and depressed while I was away that I genuinely feared for his life. So I decided to suspend my career to care for him. During that I time, I started writing this blog. Yet during the same time, I have had the much greater responsibility to care for him. In consequence, I, too, have scarcely known rest since 2007.
We tried to sue the health club that caused the injury. But whenever my partner talked about what happened, he fell deeper into depression. Lawyers think it's easy for injured people to relive the worst day in their lives over and over again; it isn't. Worse, we discovered that the health club did not maintain liability insurance on its land, so it would be extremely difficult to recover any money on his behalf without a knock-down, drag-out fight that likely would have driven him over the emotional edge. Our lawyers refused to continue representing us when they found the club had no insurance. Legally and morally, our lawyers held the high ground: No one deserves to enter a business establishment and walk out with a life-threatening burn injury. Numerous legal theories supported our position, from negligence to strict products liability. From a theoretical perspective, we should have won some compensation for him.
But we didn't. No matter how many legal advantages we had, the lawyers got cold feet as soon as they learned there was no insurance involved. Five other lawyers had the same reaction: "Oooh, no insurance! Sorry, I can't help you."
In personal injury cases, liability insurance companies ensure that defendants do not go bankrupt when accidents happen on their land. The insurance company pays for the defense and pays any judgments against the defendants. This protects the defendants' own assets from seizure. Insurance companies also speed things along relatively fast; and that makes everyone happy, including the injured person's lawyers. An insurance company will settle a case against its client quite readily if there are strong facts from which to imply negligence. The defendant just goes along with the program: After all, it is not his money at stake. By contrast, when a defendant does not have insurance, he will fight to the end because it is his money.
That was the situation we faced. And our lawyers bailed out the moment they discovered that they would have to fight for years for potentially no reward. Neither justice nor legal principle spurred them to action. Unless a case could quickly pay out, it was not worth taking. For these lawyers, cases were little more than investments. It did not matter that my partner suffered outrageous injustice due to the health club's negligence: There was not a quick, ready profit to be made on his case, so no lawyer pursued it. Ironically, the health club saved itself by acting irresponsibly: It did not have liability insurance.
Naturally, this result only deepened my resentment toward lawyers and their profession. It reaffirmed that justice does not motivate lawyers. Only potential profits interest them. If a case involves justice and profits, that will get them off their seats. But if it involves justice and no profit, forget it.
But I wonder what would have happened even if the case went forward. How could anyone put a dollar value on my partner's injury? How could money compensate him for the agony he suffered? How could any check restore his scorched arm, or make him whole from the misery and pain he endured in the hospital? I saw his pain up close and personal. I saw him scream at night. I saw him unconscious and hooked up to a ventilator. I saw him cry out in fear as they wheeled him off for yet another surgery. I saw him with a trach tube down his throat and unable to speak. I saw him sweat through his clothes and lie helpless in the bed with his bloody arm in a splint. I had to cut off his shirts with a knife and sponge him dry. I saw him fall into depression and now into mania. What money could make all this "disappear?" What does money have to do with all this?
All these experiences made me question the law. From the law's perspective, money "recompenses" negligently-caused injury. Yet I know from experience that money would have done nothing to recompense my partner's plight, nor would have made his life "all better." Worse, I saw that the law condescends when it comes to monetary awards for injury. Suppose, for instance, that a jury evaluated my partner's pain, suffering and emotional turmoil and concluded that the health club's negligence caused it. Let's say it awarded him $5,000,000. That's all well and good. But under a doctrine called "remittitur," the judge could say: "That's unreasonable. He's only getting $500,000."
Think about how insulting that is. It's one thing to put a dollar amount on physical suffering, disfigurement, permanent injury and even death. It's quite another to claim that one amount is "reasonable" over another. My experience with life-altering injuries convinced me that the law is stupid. After all, what does a judge know about what injured people really suffer? And how can he say with any authority what someone's pain is "worth," let alone whether the amount is "reasonable?"
This example illustrates my deep resentment toward all "objective standards" in the law. Judges always speak in "reasonable" terms: "Reasonable time," "reasonable care," "reasonable regard," "reasonable amount," "reasonable certainty." They think they refer to some magical standard when they use the word "reasonable." In fact, they refer only to their own, value-laden judgments concerning particular conduct in particular circumstances. Judges, after all, come from a distinct social class with distinct ideas about money, punctuality, relationships and "responsibility." They probably never suffered life-altering injuries. If they object to a monetary amount as "excessive" from their perspective, they call it "unreasonable." Yet who are they to quantify another human being's suffering?
Let a judge's wife suffer the same agony that my partner suffered. Then he can tell me what amount would "reasonably" compensate her for it.
Thursday, September 17, 2009
EXPLAINING AMERICA'S RACE PROBLEM : RACE RIOTS
AN ESSAY
Two weeks ago, I visited St. Louis. I had never been there before. I grew up in Connecticut and I've spent most of my adult life in New York City. I lived and worked in Chicago for several years; I did not find people's attitudes all that different from people's attitudes in New York. For the most part, I liked Chicago. But before moving there, I had heard stories that it was "segregated" and "had a race problem." These stories gave me a preconception that everyone in Chicago was a racist and that it was "very white and conservative."
My experience contradicted all these preconceptions. Chicago is an extraordinarily Democratic city. Although it is 800 miles from the Atlantic, it is surprisingly cosmopolitan and progressive. New Yorkers are wrong to think it is a "sleepy, backward Midwestern town." Much to the contrary, it is as vibrant a place as you will find anywhere outside the Five Boroughs. And most Chicagoans are ferociously liberal: Republicans don't stand a chance in city government. True, the city is unashamedly corrupt. But benignly so. Sometimes people just like things the way they are, as long as everyone gets a nice paycheck. "Hey, who cares as long as no one gets hurt and everybody wins?" That's how it is in Chicago.
Does Chicago have a "race problem?" To answer that question, I don't think it's fair to single out Chicago. Every American city has a "race problem." Black people do not generally live in wealthy neighborhoods in any American city, and black people commit proportionately more poverty-related crime than whites in all urban areas. This is a "national issue." It holds true in Chicago. The city is economically segregated, and that means it is also racially segregated. Blacks live on the South and West Sides because it is cheaper than the North Side, where most whites live. Blacks do not live on the South and West Sides because government ordered blacks to live there; they live there because they are too poor to live in the white areas. Contrary to Justice Thomas' outrageous assertion, blacks do not live in ghettoes because they made "innocent private decisions including voluntary housing choices." See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S 701 (slip. op. at p. 51)(Thomas, J., concurring)(2007). For the most part, they have no choice.
New Yorkers mistake these economic realities for official racial discrimination. But the same thing happens in New York. New York is just as segregated as Chicago; white New Yorkers just see more black people on the street. Economic reality makes it impossible for blacks to live on the Upper East Side and downtown Manhattan, not governmental racism. While blacks might walk the streets in "white areas," they likely do not live there: They just took the subway. The same thing is true in Chicago's "white areas" : They just took the El.
In short, "race problems" exist in every American city, not just Chicago. Economic realities translate into racial realities. Government might not legislatively discriminate against blacks as it did a century ago. But private actors can achieve the same result simply by competing in the free market. Blacks stand at a material economic disadvantage in the United States. They cannot compete for housing, goods and services at the same level as whites. Thus, it is possible for cities to become "segregated" simply by action of "everyday commerce." This is generally what happens in northern cities like New York and Chicago.
I had all this in mind when I landed in St. Louis. I thought St. Louis would be like Chicago; after all, they are cities at opposite ends of the same State: Illinois. But this was no northern city. St. Louis was different. Whites lived in sprawling, palatial, mansion-like structures with gates and lush lawns. Just blocks away, blacks lived in dilapidated row houses with boarded windows. I stayed in a hotel with a steel fence and guards. All the servants were black. All the guests were white. White folk frolicked by the pool. Black folk trudged around outside the fence.
This was more than just economic segregation. This was real, social segregation. The great, unspoken reality in St. Louis was that black folk knew their place and white folk lorded over them. Unlike New York and Chicago, blacks did not even show up in places reserved for whites. They stayed home. They did not have a subway to get around, anyway.
Then it dawned on me: St. Louis was a southern city. I had never really seen a southern city. I did not like it at all. While New York and Chicago might guiltily acknowledge their "race problems," St. Louis had a "race problem" and didn't seem to mind it at all. After all, this was just the "way things were supposed to be." In New York and Chicago, everyone knows racism exists. But very few people acknowledge it publicly; they just let private commerce do its work. In St. Louis, by contrast, racism is just assumed. That jarred me.
Why did this jar me? After all, I routinely write about America's continuing racial woes. I am usually the first to point out that we do not live in a postracial society, and that racial problems in America encapsulate everything wrong with American civilization. But it is one thing to theorize and read about these problems; it is quite another to see them up close. Put simply, race problems exist in the United States because they are the poisonous legacy of slavery and State-sponsored discrimination. Not that many generations have passed since the law called black men "chattel property," and even fewer have passed since it was considered "good and legal" in the South to murder black men without trials for perceived offenses against "the social order." No matter how much we learn to be "politically correct" about these issues--and even to rue the conduct of our ancestors--this evil legacy lives on. And it undermines any claim that we live in a Nation of principle.
Racial problems in the North and the Midwest are relatively recent phenomena. They are essentially the "third chapter" in the history of racial intolerance in America after slavery and Reconstruction in the South. I did some reading and discovered that St. Louis was the first "northern" city to which southern blacks migrated in the early 20th Century. At that time, State-sponsored discrimination made life in the South virtually intolerable for blacks. While they might have been "legally equal" on paper, white mobs (some included judges and prosecutors) lynched hundreds every year. To escape life in southern society, many blacks looked north. St. Louis was right up the Mississippi River from the Deep South.
But their problems did not disappear once they arrived in St. Louis. They did not receive a warm welcome from ostensibly "progressive" northern whites. To the contrary, European immigrants and their descendants in St. Louis resented the idea that these "black interlopers" were stealing their jobs and "fraternizing with white women." After America entered World War I in 1917, tensions reached a boiling point. After factory owners began hiring blacks to replace white workers called off to war, white mobs marched on black neighborhoods. The Governor called in the National Guard, but in many cases the troops joined the mob and helped terrorize the black population. Over a three-day period, white mobs killed several dozen blacks and burned down their whole neighborhood. The police basically stood by and let the violence happen, tacitly supporting the white mob's position.
Something similar happened in Chicago two years later. As was true in St. Louis, thousands of blacks settled in Chicago in the early 20th Century. After World War I, thousands more returned from Europe to compete for jobs in the city. Whites and blacks informally agreed to "live in their own neighborhoods." They even respectively agreed not to use parts of the Lake Michigan beachfront reserved for the other race. But in 1919, a black boy dared to go swimming in "white waters." Several white boys threw rocks at him and he drowned. A dispute broke out between blacks and whites on the beach. When the police arrived, they arrested angry blacks rather than the white boys who threw the rocks. This led to rioting. As was the case in St. Louis, white mobs did the damage. They marched into black neighborhoods and burned almost everything in their path. They were just waiting for the opportunity to vent their anger about losing jobs to blacks. And as was true in St. Louis, the police tacitly supported the rioters by refusing to intervene against them.
I use these two examples to illustrate why we still have a "race problem" in the United States. Although they both took place 90 years ago, I think they have genuine relevance to modern urban issues involving race. For one, I find it perversely interesting that we call these disturbances--and others like them--"race riots." Who is the aggressor in a "race riot?" Who is the victim? In both St. Louis and Chicago, blacks were undeniably the victims, while the whites were the aggressors. Yet the term "race riot" implies that a "race" starts a riot. In American discourse, the word "race" generally implies "African-American." For deeply troublesome reasons, the word "race" conjures black men in the white mind. It conjures the perennial, uncomfortable, uneasy racial legacy that has remained with us since the Civil War and before. But in these "race riots," blacks did not cause disturbances to protest their inferior social standing. Unrest may well have been justified in the circumstances. Yet it was whites who caused the disturbances. And why? For economic reasons, and for "pride:" They did not like the idea that blacks threatened their jobs, swam "on their beaches" and "mixed with their women." These are not very noble reasons to riot.
This is not to say that blacks have not begun racial disturbances in our history. In 1992, for instance, black mobs rose up to protest the Rodney King police brutality verdict. But in that case, they did not severely damage white neighborhoods. They likely wanted to, but in the end they wound up burning their own property and some Asian-owned property. No matter who suffered injury, however, blacks rioted because they perceived a serious injustice, namely: that a supposedly "neutral" justice system failed to deliver justice against white police officers who visibly brutalized a black man on videotape. In this sense, "black-launched" race riots differ from "white-launched" race riots. Blacks riot to protest manifest injustice and betrayed principle. Whites riot to protect their jobs and bloodlines.
Race riots offer a revealing glimpse into the reasons why we still contend with smoldering "racial problems" in the United States. There is always tension between blacks and whites, not least because blacks know they stand a much lower chance to succeed in the free market system than their white counterparts. This resignation to failure has everything to do with the same destructive legacy that supported slavery and motivated the northern race riots. These are institutional problems that persevere over the generations, no matter what "legal adjustments" government makes. The fact that authorities generally stand by and let race riots occur--or, worse, join them--only reinforces black cynicism about their place in American society. If the police and courts tacitly condone lawlessness against blacks, how can we blame blacks for believing that the law does not stand for them?
Racism lives on in America because the law cannot touch it. It lives in men's minds. It finds expression in intrinsic social values that resist generational change. Law cannot change minds; it can only plunder pocket books and imprison bodies. Nor can law excise deeply-entrenched values. Racism smolders every day in every American city. Serious pressures--whether economic or ideological--bring the smolder into a flame: Race riots.
Throughout American history, we have seen the same pattern. Race riots honestly tell us what each race thinks and assumes about the other without subterfuge or pretense. Unlike language, violence is never subtle.
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