SICK DAY

For the past week, my health has been pretty poor. I have forced myself to write, even if that's probably not the best thing for me these days. I'm not exactly sure what it is, but today I thought it best to just take it easy and try to nurse myself back into decent shape. I have a long list of issues to address, but I do not feel I would do them justice writing with nausea and a fever. I hope you will all understand if I take a day off for health reasons!

Thanks again to all who log in to check out my articles. I have been getting hits from all over the world lately; it is exciting to know that people in Bulgaria, the Philippines and England enjoy my writing. I am indebted to you all for taking the time to read my posts. I don't exaggerate when I say you all keep me going. In the meantime, let's hope this bug gets out of my system so I can hit the issues again with full force.

Oesterhoudt

LAW FIRMS ADOPT TALENT MODEL FOR NEW ATTORNEY HIRES

EMPLOYEEBUILDER : GET A JOB, WILL YOU?

By : Mr. Herbert W. Hines, Esq., Equity Partner and Hiring Coordinator, Hiner, Butts, Shallowbottom & Hines LLP, a Fortune Law Firm Specializing in Banking Law

It doesn’t take a brain surgeon to see that it’s tough to get a job as a lawyer these days. Even Yalies and Harvard grads face a difficult road landing positions at coveted private firms. And with law school debt, new attorneys can’t afford to practice poverty law or be prosecutors. Either you make $100,000 a year or you default on your loans. Then your credit is ruined and you can’t even convince a landlord to rent you an apartment. You can’t even finance a Ford Focus to shlep to whatever burger-flipping job you wind up getting. To be blunt, it is a grim picture out there for young grads. It sure would be nice to get some bailout money. But law school grads are not a priority. Banks are more important. We don’t disagree: As lawyers who represent banks, we would much rather save banks than law students. Banks pay fees; law students don’t.

Still, law firms are not exactly doing well in this market, either. We’ve had to cut positions, reduce bonuses and trim expenses. Sometimes our midlevel partners don’t fly first-class anymore; they ride economy plus. Other times we ask co-counsel to split copy costs when photocopying service lists, briefs and settlement brochures. We never did that before. When the economy hurts, lawyers hurt, too. After all, we depend on fees. Fees are money. When people have less money to spend, fees are smaller. When we get fewer fees, we have less money. When we have less money, we are less happy. Plus we can’t pay people what we used to, or even give them jobs in the first place.

Our senior partners have nothing to worry about. It’s really the new associates, poor performers and tough-luck job hunters who face challenging times these days. Senior partners do not want to take pay cuts; why should they? They sacrificed weekends and family for twenty years. Do you think they want to cede their reward after sacrificing their adult lives to the firm? Of course not. Thus, to ensure that partners continue to receive their current salary and bonus levels, major law firms—including Hiner Butts—have resolved to hire fewer people and to fire non-producers. With less income than last year, this is the only way to maintain partner salary and bonuses. Think about it. If we kept hiring and paying fat-faced 25-year-old associates at a 1990s pace, we wouldn’t have enough money to keep paying O. Ted “Buddy Boy” Shallowbottom $995,000 per year. And Mr. Shallowbottom will not take a pay cut so some 24-year-old Indian Harvard grad named Rangamawalla can be an associate at Hiner Butts. It just ain’t happening.

In a tighter market, no one gets a job unless they really want it. It is not 1944. We are not the “Arsenal of Democracy” anymore; we have budgets to worry about. We don’t hire anyone who walks through the door. When money is scarce, only the best and brightest can work. True, this country rose to preeminence because everyone worked. But we’re on top now. Today, only the best work. The rest look for work and temp when they can. We need to be clear, however, when we say “only the best.” We do not want to give the impression that doing well in school makes you “the best,” nor should high academic performers comfortably assume that they can just waltz into an associate’s job at Hiner Butts. Being smart—or even brilliant—does not make you “the best.” Quite the contrary, in my experience as a hiring coordinator, smarty-pants intellectuals have proven the poorest lawyers at our firm. We are not looking for thinkers, philosophers or depressive recluses who pore over cases and ponder verbal intricacies in legal texts. We are looking for motivated, sprightly workers who are excited about billing cases. If you are truly intelligent, our work will probably bore and sicken you; that is why we don’t want you on our team. If it came between a pensive valedictorian and a go-get-‘em academic cellar dweller who speaks good English and doesn’t mind working 18 hours a night binding multi-colored briefs, we would take the cellar dweller every time. Because in legal practice, it is not about being smart; it is about billing time. Intelligence does nothing for the bottom line. You just need enough intelligence to write letters, read correspondence, speak on the phone, ask questions and manage a calendar. Beyond that, you can take your erudition and shove it where the sun doesn’t shine.

We do not want intelligent law school graduates. They get us nowhere and they cost a lot. Nonetheless, we do need replacement lawyers to keep our firm in top form. Our firm cannot maintain healthy client satisfaction levels without a minimum staff, and we constantly lose staff. Partners die and retire. Others betray the firm and run off for other opportunities, taking clients and valuable secrets with them. Associates suffer mental breakdowns. Some commit suicide or become alcoholics. We fire others. Others secretly raise families, devastating productivity levels. Put simply, we have attrition problems, just as any organization does. To combat attrition, we seek out qualified replacement attorneys. But we do not choose just anyone. If you are in the attorney job market and you want a job at a firm like Hiner Butts, what do you do? To answer that question, you must know what we want.

We want qualified replacement attorneys committed to maximum client satisfaction, firm financial goals and Hiner Butts’ legal mission: “To serve banks. No matter what they ask. All the time. Guaranteed. You Can ‘Bank’ On It™.” As mentioned, we do not want intelligent replacement attorneys. Rather, we want loyal, dedicated, hard-working attorneys with a capacity to work long hours. Still, we would disserve our clients if we did not ensure that all our legal professionals were not in some way “talented.” To that extent, Hiner Butts—like every major law firm—has adopted the “Talent Model®” for new attorney hires. We want our clients to know that their legal servants are talented. Talent is more valuable than intelligence. Talent means a lawyer can do things other lawyers can’t. It makes a lawyer unique and special.

So how do we measure “talent?” When law firms first began using the “Talent Model®” in the mid-1990s, they equated talent with law school grade point averages. Soon, they discovered to their horror that the best law school performers made the worst lawyers. Rather than diligently attending to deposition questions and scheduling orders, these ostensibly “talented” lawyers sat around reading international news and discussing political trends while drinking coffee at firm expense. They smugly thought that their law school grades would power them through day-to-day legal struggles. How wrong they were; and how wrong we were to think that smart people were “talented.”

Having learned our lesson, we looked for more traditional “talent” indicators. We began screening applicants for tap dancing ability, singing prowess, gymnastic skill and classic good looks. We especially found that magicians and shell-game shufflers made superb lawyers. In our view, lawyers with “special skills” made far better additions to the client service team than bookish academics. Both clients and judges love a good tap dance, magic show or gymnastic routine, for legal practice is akin to all these crafts. The “Talent Model®” helps us find talented lawyers, not smart ones. In recent years, we have successfully augmented our client service team with fire-eaters, hog-wrestlers, sushi chefs, tightrope walkers, rock climbers and snorkelers. These are talented people. They can do things other people can’t. That is what we want in our lawyers—talent. And our clients love it, too. Fire-eaters and sushi chefs win far more cases than any book-bound philosopher. After all, fire-eaters and sushi chefs get out there and “just do it.” They do not hang around and debate policy. Legal practice is not about policy. Legal practice is about performing as requested, including performing the impossible.

Our “Talent Model®” selects applicants who likely will perform well when requested. Recently, we hired an associate who can stand on his head for forty minutes without a break. His talent helped him win an important case against aggrieved mortgage buyers. Talented people can perform unique, arduous tasks for longer than anyone else without complaint. So can lawyers. That is why we insist on talent in all our young associates.

Do you want to work for a major law firm? If you do, how can you prepare for our rigorous interview process? Well, it is difficult to train yourself to be talented. Only you know whether you have a special ability. Can you swallow swords? Can you jump 40 feet without breaking your ankle? Can you hit a 3-pointer from ¾ court? Can you make the Ace of Hearts go from your left sleeve to your right sleeve without moving your hands? Think about what makes you special, and then think about whether you can use your special ability on demand. Are you talented? Only you know that. We can only advise you to brush up on your act before you come before our hiring committee. Our talent model will determine whether you are talented enough to make $100,000 per year. It will also determine whether you will suitably advance our firm’s client service mission. After all, some talented people may have talent, but their talent will not advance our firm’s mission. For example, we recently turned away a talented young Fordham graduate who could wash large windows in less than 30 seconds. Despite her talent, washing windows was not a talent relevant to client service in the banking sector. Nonetheless, we are quite certain that a lesser-known firm will appreciate her talents.

In sum, we encourage you to think outside the box as you continue your job search. Do not despair; you will get a job. But you need to reevaluate your approach. For years, you learned that study and grades would get you a job. We emphatically say to you now: They will not. Your natural talent will get you a job, as well as a dogged desire to please clients and your superiors at the firm. We advise you to look within. Cultivate your talents. In the law business, no one really cares about your legal knowledge, anyway. We want performance, charm and victory, not long-winded rhetoric and theoretical gobbledygook. Start thinking like a performer, not a scholar. Performers are exciting. They bring down the house with dazzling feats. Scholars are boring. They put people to sleep.

We want performers, not scholars. Be a performer. What makes you dazzling? Can you do it on demand? Can you do it everyday? All day? All night? With a smile? If you can, step right up. We are always scouting for top-notch new talent. You might be the next big thing in the legal world. You might be the next all-Star. You might be the next show-stopper. Sure, times might be tight. But that never stopped stars from wowing audiences. Everyone loves a winner, and everyone loves a good show. It’s showtime. What have you got to show us?

MORALITY DOES NOT PROVE THAT HUMAN BEINGS ARE NATURALLY GOOD OR COOPERATIVE : A RESPONSE TO DAVID BROOKS

AN ESSAY

Three days ago, David Brooks published a popular editorial in the New York Times entitled “The End of Philosophy.” See N.Y. Times April 6, 2009. In it, he argues that new studies concerning morality have “[challenged] the bookish way philosophy is conceived by most people.” He bases his conclusion on “new” research that links moral theories with “human emotion” rather than “abstract reasoning,” and the fact that moral rules arise because people “just know things” when they see them. He also concludes that moral rules descend to us because human beings are “successful cooperators” who naturally praise values such as loyalty, cohesion and “tradition.” Viewing these developments, he concludes that moral rules show that human beings seek “goodness as an end in itself” rather than “a means.” In sum, he labels these developments an “epochal change.”

At the outset, I was impressed that Mr. Brooks stepped into the age-old philosophical debate about morality. Yet there is nothing new about his assertion that human morality derives from “emotion” rather than reason. In truth, morality has little to do with rational postulation. Instead, as I have written many times before, morality represents nothing more than a particular society’s long-held social beliefs, customs, values, traditions, judgments and intuitive “feeling” about whether something is “good” or “bad.” It is about judgment, not cooperation. If our ancestors felt that something was noxious, disgusting or rancid, they labeled it bad, then “immoral.” They did not like encountering smelly things. They thought dead carcasses were “disgusting.” They thought that human waste was “disgusting” and “smelly.” If their fellow man smelled bad, then he, too, was “disgusting” and “bad.” If a man had anal sex, that was “disgusting” and “bad” because they associated the anus with human waste—and that “smelled bad.” If a man betrayed his brother, the aggrieved party felt disgusted, then labeled the traitor “bad.” These original, visceral—and ultimately sensory—judgments come down to us as “modern morality.” Mr. Brooks is correct that they do not derive from pure reason; instead, they are intuitive, emotional responses to “disgusting” stimuli.

Morality is quintessentially organic. It develops over time and descends. There is nothing metaphysical about the inquiry. And that is significant: After all, Mr. Brooks argues that moral rules lead people to “the good” as “an end,” as if there were an absolute “good” to achieve in the first place. If anything, moral rules enshrine original, emotional judgments of powerful men in distant history. These men cared nothing for “absolute good.” They simply knew what they smelled and they did not like it. In this light, Mr. Brooks is profoundly confused. Morality is organic, not metaphysical. It is judgmental, not neutral. He is right that it derived from human emotion, but he is wrong that it proves that human beings are “good, “cooperative,” “empathetic” and “altruistic.” Quite the contrary, men historically have used morality much more often to dominate and tyrannize their fellow man, not to cooperate with him.

Mr. Brooks finds it reassuring that there are philosophers out there who think about morality in a way that “entails a warmer view of human nature.” In other words, he finds it comforting that morality serves “the good” and perpetuates “human cooperation,” as well as respect for “tradition, religion and loyalty” as positive moral values. He thinks these “discoveries” represent an “epochal change.” But what is so new about relating morality to human emotion and intuitive preference? In 1887, Friedrich Nietzsche wrote that the notion “good” derives not from some metaphysical conception of “useful behavior,” but rather from the individual judgments of “the noble, the privileged, the higher and the sophisticated, who considered their activity and themselves as ‘first-rate,’ in contrast to all low, mean, common and rabble-like people.” On the Genealogy of Morals, First Essay, § 2 (my translation). Over 120 years ago, Nietzsche knew that morality was about judgment, inequality, condescension and power, not cooperation. This “power” to create moral rules involved the power to designate whether conduct was “good” or “bad:” “The right of the master to give names extends so far that we can even understand that the origin of language itself represents an expression of power by the ruling classes: they tell us ‘this is this, and this is that (emphasis added).’” Id. In short, we have known for a long time that our “powerful ancient masters” had the authority to enshrine their emotional judgments as “moral rules.” And they weren’t trying to “warmly” cooperate with the “masses,” either.

In truth, I could not help laughing when I read Mr. Brooks’ argument that morality shows human beings “at their best.” In my experience, morality shows human beings at their worst. When I read a discussion about morality that does not involve disgust, judgment, hatred and resentment, I know something is wrong. After all, morality is about power. When powerful people judge, they necessarily must focus that judgment on someone who has “deviated from the moral standard.” Morality requires judgment to maintain its authority. After all, how could we praise “good” behavior if we did not also condemn “bad” behavior? Mr. Brooks believes that it is “moral” to be “loyal” because human beings are “successful cooperators” who found loyalty helpful in reaching their common goals. Yet this does not prove that human beings are good. Rather, it proves that our ancient forbears praised people who helped them hunt or build a house, while they condemned and hated people who said they would help, but did not. They felt disgust and hatred toward the people who broke their promises. They transformed that disgust into a judgment: “Disloyal people are bad; loyal people are good. Loyal people make me feel good. Disloyal people make me feel bad. Therefore, I like loyal people and I hate disloyal people.” It is pathetically simple. It is not nuanced. Yet this supposedly reveals human beings as “naturally good” creatures? No—it reveals human beings as self-interested, judgmental and simple-minded creatures: They like things they find “good” and they “hate” things they find “disgusting” and “bad.” This shows inherent goodness? I think not. It shows only that human beings have intuitive preferences and make judgments according to those preferences.

“Thing smell good. Me like. Thing smell bad. Me hate.” Tell me again: What is so earth-shattering about this?

In moral questions, there is no “inherent good.” There is only power and judgment. True, there are many behaviors that most of us would consider both “good” and “moral.” For example, we all hate lying, stealing, murdering, thieving, robbing and violence. Morality labels these behaviors “immoral” and “bad.” We agree with morality in these cases. Yet we often fail to understand that when we apply moral rules, we are applying an ancient code. Moral judgments come down to us over many generations and we absorb them fully into our subconscious. But this is not because morality arose through the efforts of well-intentioned men. Rather, morality arose because powerful men pronounced their emotional judgments about behavior long ago, and those judgments prevailed. Now we live with their pronouncements. They labeled stealing, murdering and robbing “disgusting.” Their view triumphed. Now their judgments rule us.

But what about behavior that harms no one? Mr. Brooks completely fails to visit this “darker side” of moral history. After all, morality is about power and judgment. We face no problem when the powerful label obviously harmful activity “bad” and “immoral.” Similarly, we have no problem when we judge people who deviate from these “good” standards. But what happens when powerful men—or even majorities—find certain behavior “disgusting” that is not clearly harmful? Throughout history, powerful men have found certain innocuous behavior “disgusting” and severely judged it. It is one thing to deem murder “disgusting,” but quite another to deem interracial marriage “disgusting.” What about consensual sodomy? Is that “disgusting?” Is it “immoral?” If we say yes, does that mean we “show ourselves to be successful cooperators” and “altruists?” When human beings formulate moral rules, they focus their social energy on an enemy. They judge that enemy with ruthless spite. They say the enemy is “disgusting,” “wicked,” “evil,” “deviant,” “abhorrent,” “abominable,” “sinful,” “wretched” and “wrong.” As recently as the 18th Century, English common law courts hanged men for engaging in consensual sex with one another for the “heinous and detestable sin of sodomy.” See, e.g., http://www.oldbaileyonline.org/browse.jsp?id=t17260420-64-off299&div=t17260420-64#highlight. This is what morality can lead to. Contrary to Mr. Brooks’ assertion, this does not show humans “at their best,” nor does it reveal a “warmer, cooperative side” to human nature. Quite the contrary, morality can show human beings at their most unjust, most intolerant and most peremptory. And why? Because some people consider a particular behavior “disgusting,” even if it harms no one. They just think it “smells bad.” In my view, there is nothing “cooperative,” “warm” or “altruistic” about executing “immoral” people.

Morality vexes me because it is firmly engrained in culture. It is exceedingly difficult to trace its origins. Every society has its own moral code, just as every person has his own tastes. It makes sense to analogize morality with taste because moral rules reflect subjective judgments, just as taste does. Yet this also makes it hard to understand. Morality, after all, looks like law. It lays down external rules. It projects authority. It judges and punishes. The problem is divining its origins. Law begins with an acknowledged sovereign, but morality begins in primeval, emotional history. Mr. Brooks correctly points out that morality finds its roots in individual emotional intuition, not theoretical abstraction. Thereafter, his analysis veers into strange territory, concluding in essence that human beings are naturally good, and that their moral rules reflect good, cooperative principles.

But Mr. Brooks is wrong on these points. For one, it makes no sense to assume that there is “absolute good” while arguing that men’s moral rules do not conform to “absolute good.” Second, Mr. Brooks does not recognize that moral rules only arise through power, and they only preserve their authority through judgment, hatred and resentment. Last, Mr. Brooks is startlingly incorrect to use morality as proof of human goodness, altruism and cooperation. If anything, our moral history reveals humans as intolerant, judgmental, cruel and divisive creatures. Mr. Brooks may debunk Socrates to begin his essay, but he praises Aristotle at the end.

Aristotle believed that human beings were cooperative creatures, like bees and fish. He believed that every human activity had a natural purpose, just as every animal activity appears to have a natural purpose. He assumed that men pursued a metaphysical “good.” Yet these are all theoretical abstractions. Mr. Brooks says that morality does not conform to theoretical abstraction, but in the end he assumes that men follow morality to reach metaphysical “good.” He would be better to recognize that morality has no “natural purpose,” and there is no “metaphysical good.” Rather, morality is nothing but power and judgment. Powerful men say what they like, what they hate, pass it down, and punish those who disagree. In this sense, moral rules reflect inequality and division, not cooperation and altruism. And they certainly do not reveal a “warmer side” to human nature. Instead, they show that human beings will always divide themselves from one another and judge one another according to “the right moral code.”

This is not an “epochal change.” This is the way it has always been.

NIETZSCHE & ME : WHO I AM AND WHERE I'M HEADED

OESTERHOUDT STRIKES

I have written almost every day for the past seven months. When I began maintaining this blog, I had a clear vision in mind: I would write satires and essays. I think I have generally held to this vision. But during my recent trip to Berlin I made an important discovery about my own identity as a writer. While there, I picked up one of my favorite old texts, Nietzsche’s On the Genealogy of Morals. I read the first twenty pages or so in my hotel room, including the Prologue. Nietzsche always put great weight on his Prologues. He used them to provide some insight into the reasons why he was writing, as well as how he perceived his audience. As I read his words, I felt a close kinship with Nietzsche. Nietzsche always inspired me when I was younger, but only now—after truly immersing myself in writing for many months—do I truly perceive the pervasive influence he has exerted on me. I certainly do not want to compare myself to Nietzsche. I simply believe that my writings continue his tradition: Brash criticism of prevailing values; acerbic analysis; and unashamed pugnacity in confronting long-held “truths.” I also believe that Nietzsche’s approachable prose inspired me to write clearly. Above all else, I attempt to make my writings readable, even if the subject matter is wildly complex. Nietzsche has many followers who did not achieve his readability. Foucault is a prime example. For me, however, rhetoric and readability are essential. How else can I satirize and analyze if others cannot readily grasp my points?

Nietzsche called On the Genealogy of Morals “eine Streitschrift.” Typically, translators render that German word as “A Polemic” in English, namely, a “writing that incites conflict in its readers by strongly advocating a contentious position.” “Polemic” derives from the Greek word for “war.” But in my view, the German sounds so much better. “Streitschrift” derives from two words: “Streiten,” meaning “to dispute, fight or contend” and “die Schrift,” meaning “writing,” or “written piece.” Streiten is a core Germanic word. It gives us our English words “strife” and “strive.” It implies bitter dispute, struggle and a willingness to fight. Viewing these meanings as a whole, then, “polemic” seems an academic and indirect way to label On the Genealogy of Morals. It would be better to stick to Germanic words to convey Nietzsche’s core meaning. His writings “strive,” “struggle,” “fight” and invite “conflict.” They cause “strife.” Germanic words hit harder than Greek ones, at least in English. Nietzsche’s iconoclastic willingness to present unpopular views will always intoxicate me.

Streitschriften. That is what I write.

I adore Nietzsche’s Streitschrift style because it stands in contradistinction to vacuous, faux logical “legal writing.” Nietzsche does not burden the reader with endless references to “legal authorities” or “scholars” when he writes his arguments. He takes a position, drops a bomb then lets the reader figure it out. He does not quote. He does not cite “authors” or “judges” to back his position. He presents his own position. He criticizes authorities; he does not depend on them for persuasiveness. In this sense, legal writing is essentially anti-individualistic. In the law, no argument works without reference to “established authority.” Yet Nietzsche’s writing is quintessentially individualistic. He identifies troubling intellectual issues, cuts to their heart and brutally points out the folly in accepted approaches to those issues. Nietzsche did not shy away from inviting quarrels. He even labeled one of his books “Unzeitgenössische Betrachtungen” (Untimely (or Unpopular) Observations). He did not mind ruffling feathers or presenting unpopular views. Nor did he attempt to convince anyone. Legal writing always attempts to “persuade the reader” to accept this or that position. Nietzsche did no such thing. In his Prologue to the Genealogy of Morals, he wrote that it would be a mistake to try to “decipher” his writing. Rather, he intended his writing to spark “interpretations.” Zur Genealogie der Moral, Vorrede 8, S. 11. He hoped to cultivate “reading as art” rather than labor. To practice that art, he admonished his readers not to be “modern men,” but rather “cows,” because good reading necessarily involves “rechewing.”

I see all these sentiments reflected in my own writing. Although Nietzsche did not write satires, his ruthless criticisms concerning ethics, morals, culture and neglected principles all joyfully mock accepted viewpoints. I share his joy in mocking accepted viewpoints and hypocrisy. That joy burns through my writing, whether satirical or not. Satire is a good vehicle to expose absurdities in culture, argument and power. Nietzsche used aphorisms and short, biting essays to expose those absurdities. I opt for satire because I find it accomplishes the same mission, plus it is fun to write. Nietzsche constantly exhorted his readers to relish their intellectual abilities by mocking accepted notions. “Cheerfulness,” Nietzsche wrote, “or to be more precise and to say it in my own language, ‘The Joyful Science,’ is a reward: a reward for a long, brave, diligent and otherworldly seriousness—something that, freely, will not appeal to all.” Zur Geneaolgie der Moral, Vorrede 7, S. 10. For both Nietzsche and me, there is a joy in criticism, a joy in mocking accepted notions. It is fun to write satires; and there is an “intellectual reward” in it because it makes me—and hopefully some of my readers—“cheerful.”

Nietzsche also knew that not everyone would appreciate him. He recognized that his Streitschriften would insult his targets as much as they would delight his followers. I do the same thing. I recognize that my satires about morality, lawyers, “conventional life,” children, criminal justice, finance, sexuality, politics and capitalism will negatively impact some readers. Some readers will inevitably reject my criticisms or take offense that I mock certain dominant values. Some may even resent me for my own values. But here I quote Nietzsche again: “If this piece is incomprehensible or grates the ears of some listeners, I am not necessarily to blame.” Zur Genealogie der Moral, Vorrede 8, S. 10. If people are offended by what I write because I have “no respect” for certain values, or if I “unfairly simplify” certain issues, they fail to understand that my purpose is neither to convince nor to win. Rather, like Nietzsche, I aim only to “cheerfully” spark “interpretation” by pointing out critically troublesome conundrums in our civilization. If I can bring joy to some and thought to others, I will have succeeded in my mission as a writer. If someone blames me for advocating an unpopular position—or for failing to understand the irony in my satires—then I feel sorry for the reader who did not grasp my purpose. As Nietzsche theorized on this point, perhaps an angry reader should question his own values, rather than mine, to identify the source of his outrage with my critique.

I have learned so much by writing. It is astounding to think that, since beginning this blog, I have written the equivalent of a 600-page book. I have no intention of stopping. I simply think it is important to at times sit back and reflect on the trajectory my writing has followed, and to evaluate whether I have stayed true to my original aims. Reading Nietzsche again showed me not only that I have held the course, but also reminded me that I am part of his ongoing critical tradition. To that extent, do not expect my essays or my satires to contain airtight logic or rigid organizational structure. Rather, expect them to toss rhetorical grenades into tranquil waters. Expect them to breathe with joyful mockery. Let them provide an incitement to think about power, relationships, fairness, equality and principle. Do not expect them to provide answers to every specific question. Rather, let them provide an opportunity to think more deeply about things you might never have thought deeply about. I am not here to convince, persuade or conquer. I am here simply to point a few things out—with Streitschriften. If I cause strife, I apologize; but as Nietzsche said, I am not fully to blame for it. It is “constructive strife.”

Thank you to all who take the time to read—and “rechew”—my posts. If my arguments seem overheated, illogical, disorganized or melodramatic, I have good reason, for Streitschriften are not traditional arguments. Instead, they are invitations to intellectual struggle, and there is joy in that.

STARBUCKS ESSAYS THAT DID NOT QUITE MAKE IT TO THE COFFEE CUPS

Several years ago, Starbucks Coffee Company began printing short essays entitled “The Way I See It” on their paper coffee cups. These essays generally contain a heartwarming message with mild social commentary. Typically, they address issues such as childcare, environmental protection, racial tolerance and healthy eating. At Reason, Commerce, Justice & Free Beer, we salute Starbucks for providing its customers with enlightened perspectives from varied sources. In our view, literature and opinion help the community by enriching public discourse. We also salute Starbucks for taking chances on the messages it prints. After all, on the bottom of each cup, there is a small-print disclaimer: “This is the author’s opinion, not necessarily that of Starbucks.” We understand that Starbucks does not want readers to impute scandalous opinions to its corporate name. Even with the disclaimer, however, we strongly support Starbucks' attempt to broaden public discourse.

Despite our support for Starbucks, we feel duty-bound to reveal that Starbucks does not print content from all the speakers who wish to contribute to “The Way I See It.” In the spirit of free, uninhibited public discourse, we feel compelled to share some essay topics that did not survive Starbucks’ rigorous editorial process. Although we share Starbucks’ view that every speaker has a right to broadcast only messages with which he or she agrees, public discourse suffers when we suppress voices. At Reason, Commerce, Justice & Free Beer, we believe the public benefits from hearing as many perspectives as possible. In that light, we are proud to present essays that did not make it onto Starbucks’ official printed cups. These speakers all have something to say. They may not speak about "the difference between promises or missions,” “the fact that Americans spend 13 years in front of their televisions,” or “the beauty of the sub-Saharan African bush,” but they nonetheless believe in their messages. In America, we prize every voice. For that reason, we are proud to share the following short essays.

REJECTED CANDIDATE #321 : Hunting children is so much fun. In Africa, it is so easy to do; and no one is there to stop you. In fact, no one really cares when you take a shot at a kid from a safari truck. Plus, they are really small targets, so it helps you practice your aim. If you can hit a running African kid from 300 yards, you can definitely take out a running antelope from 400 yards. People misunderstand child-hunters. They say we are the worst kind of criminals. They say we have no respect for life. We are not criminals. We are sportsmen. We respect life. We do not exhaust natural child populations, and we do not impact the environment. This is our pledge: We will never use shotguns on children whose mothers did not want to get rid of them in the first place. We will hold to our pledge, come what may. That is sportsmen’s honor.

Mr. “Big” Bill Blanford, Chairman and CEO, United Nursing Homes, Ltd.

REJECTED CANDIDATE #190 : Nobody likes getting caught masturbating, especially at work. As a hedge fund manager, I can’t tell you how many times I have interrupted bored analysts playing with themselves. You should see the look on their faces; it is just pathetic. On the other hand (no pun intended), I do not want to be a hypocrite. On really boring Thursday mornings, I sneak a wank in, too. For that reason, I am not too harsh on financial masturbators. In this economy, we need all the help we can get in the financial industry, even from people who masturbate at work. After all, to be a good analyst, you must have the capacity to manipulate things well: graphs, stocks, market trends, adverse information. Good manipulation skill starts at home. And who are we to judge? It’s better to have a trained manipulator working for you than someone who does not know how to manipulate his own genitals.

Mr. Robert F. Pullman, Senior Financial Analyst, Friction Partners, L.P.

REJECTED CANDIDATE #547: Have you ever skinned a live sea otter? It is such a rush, man. You just grab hold of that furry little critter and tear into him with a butcher knife. Fuck the tree-huggers; killing defenseless animals is fun, fun, fun. Last month I went on a company cruise with some of my buddies from the office. We tracked down some otters, caught them in a net then tore them to little pieces. You should have heard them squeaking and yelping as we peeled their skin off. Boy, was it a blast. Good thing I had my rubber boots on, because it got pretty bloody. We weren’t after their pelts. We just wanted to have some fun and kill some mammals. If you ever get a chance to skin an otter or some other cute, warm-blooded sea creature, book the flight. You’ll have the time of your life. And we only have one life to live.

Mr. A.J. Bulow, Foundation for Compassionate Medicine of Greater North Carolina

REJECTED CANDIDATE #609: Did you know that most Americans live in the United States? Up to 99% of the entire population of this entire country lives here. Believe it or not, 54% of all graduating high school students thought that most Americans lived in Turkey. This goes to show that Americans have a long way to go when it comes to learning world geography. We need more funding to educate our children, not less. Americans need to learn that most Americans live in the United States, not Turkey. When Americans know that most of us live in the United States, we can confront problems like hunger, poverty and health care with real dedication. After all, how can our country tackle issues if our children think 99% of Americans live in Burkina-Faso, not the United States? Geography is important. I think Americans should learn it.

Ms. Cassandra E. Willard, The American Intellectual Curiosity Institute – A Non-Profit Organization (Seoul, Maine)


REJECTED CANDIDATE #1,755 : Pollution is a wonderful thing. When I get up in the morning, I love to see trash littering my front lawn. I also love watching smokestacks pouring huge plumes of acrid, purple smoke into the atmosphere, killing pesky sea gulls and insects. Personally, I think all this stuff about “green technology” and “electric cars” is for the dogs. I drive a gas-guzzling truck without a muffler, and I’m damn proud of it. I’m not afraid to send my garbage to closed landfills, and I don’t mind patronizing full septic tanks. I never was much of a tree fan, anyway. If trees die, that’s fine by me, as long as I keep my job. That’s the thing the environmentalists will never understand about me: I’d rather work than save a cactus. If my job requires pollution, then give me pollution—lots of it.

Mr. Charles E. Schmutz, Working People for Better Times, LLC

REJECTED CANDIDATE # 248 : There is nothing wrong with making a profit. Intellectuals, professors and even celebrities think it’s “cool” and “hip” to be a left-wing socialist nutjob. Well, I think it’s cool to inherit family money, invest in real estate and just kick back and rake in cash. Just look at Donald Trump. He’s cool and he makes a profit. Profit also makes you get up in the morning. When I think about profit, I’m up before dawn on my way to work. I want more money in my account tomorrow than I have today. In today’s world, profits pay. It’s not about fairness; it’s about having more than the other guy. I’m not ashamed to say it. It may not be fashionable to say you like profits anymore, but you can call me old-fashioned. If it came between a profit and my mom, I’d take a profit. Sorry, mom!

Mr. E. Travis Gladbank, Chief Financial Officer, Ninth Amalgamated Property Management Associates, LLP

We hope you have enjoyed reading these alternative perspectives. We salute Starbucks for broadening public discourse. But here at Reason, Commerce, Justice & Free Beer, we give air to all values, not just the values deemed appropriate by Starbucks’ editorial staff. Because when we let every voice be heard, we guarantee freedom for all. We believe in freedom, no matter how you slice it. We hold true to our motto: We believe in freedom “notwithstanding taste or decency.” We know that you believe in freedom, too.

RUNNING LOW ON CASH? NO PROBLEM : JUST WRITE BAD CHECKS AND LET YOUR CREDITORS FIGURE IT OUT

PRACTICAL TIPS FOR TOUGH TIMES - VOL. 1

Are you caught up in middle class hell? Do you make about $550 per week from three jobs to pay $1900 per month in rent, plus the electric bill and a low-grade health insurance premium? Are you responsible for several children? Do you budget out your money months in advance to avoid falling short? Will one day off work lead to your eviction? Have you pleaded with your gas company not to turn the heat off because you could not quite pay the January bill? Do collection agents hassle you about car notes and past due amounts? If you are feeling sick, do you refuse to visit the doctor because you can’t afford it? Are you stressing out about money? You are not alone. In this economy, money is hard to find. But there are ways to overcome the crisis.

As a struggling middle class earner, you have a right to feel desperate. You are doing all the right things. You are working, you are paying your taxes, and you are responsibly budgeting your money. You are even saving when you can. You are taking care of your children. You are acting responsibly. Yet in your eyes, it all seems a cruel joke. You barely make enough to pay your basic expenses, leaving you in constant anxiety that one day you will not make enough. At one time in our Nation’s history, the middle class sustained our economy. Middle class earners worked hard, saved, sent their children to school and slowly advanced to affluence. Yet today, the middle class cannot advance. Crushing expenses devour every dollar they earn, creating a desperate cycle that never seems to end. Middle class earners rightly feel betrayed: Is this what responsibility leads to? A life of constant apprehension whether your paycheck will barely cover life’s most basic necessities? You learned that responsibility was good. You expected that it would bring you rewards. Yet you see now that it brings only desperation as you struggle to appease creditors, landlords and grocery sellers.

Never fear. You can prevail against your creditors. As a responsible person, you obviously have a checking account. You carefully balance your income against your expenses in a daily log. You write graphs to plan how much you will make so you can meet the monthly bill blizzard. Your checkbook and your responsibility will help you overcome your creditors. How? Simple: Write bad checks and let your creditors figure it out. If you owe $1400 per month in rent but you only have $1300 in your account on the due date, write a check for $1400. Act like you have money. Show that you are honoring your obligations, even if you do not have the financial resources to do so. After all, you are a responsible person. You want to honor your obligations. It is not your fault that you are caught in middle class hell. It is not your fault that your son got sick and required a $725 doctor visit. If your son had not gotten sick, you would have been able to fully pay your rent. But he got sick. There is nothing you can do about it now. He saw the doctor. Just write a bad check. Stop letting creditors get over on you. They have created enough misery in your life. Let them squirm a little bit, too. After all, do they really need all your money? They do not work; they just sit at home and open envelopes containing checks. What will they do with all your money, go on vacation? Here you are, struggling to keep your children healthy, and there they are, driving around in Hummer trucks. And they want even more from you? Send them a bad check; let them sort it out.

But “No,” you say, “I can’t write a bad check because that is dishonest.” You need to stop insisting on honesty. What did honesty get you? A dog’s life shuffling between three insulting receptionist’s jobs, insomnia and hungry children whose cries keep you awake all night. A lot of good honesty did you. You did all the right things. You made all your own money. You showed up to work every day. You refused to take public assistance and you never asked anyone for help. You honored your creditors and you cared for your children. You never pole-danced at a strip club and you never sold drugs for easy money. You made your money the decent way, the American way. Now what? Do you like the way you feel? Do you feel good knowing that your creditors can take away all your property if you so much as catch a cold next week and miss a day at the office? Do you feel good knowing that you have expenses totaling $2500 per month, yet you are lucky to make $2700 per month? You aren’t getting anywhere. Honesty landed you in a hole and you are not getting out. It’s time to take measures against your cursed creditors. Send them bad checks.

Bad checks fulfill two fundamental purposes. First, they show that you actually care about your creditors. Second, they allow you to voice your power in a critically unfair relationship. They show you care about your creditors because you are sending them an acknowledgement that you know you owe them money. You may not have the money, but you are not ignoring them, either. In that sense, when you send a bad check, you say: “I do not have enough money to pay you, sir, but I know you hold superior power over me and I acknowledge your power. In a perfect world, this check would give you what I owe. Unfortunately, I do not have the means to pay everything. Therefore, I am sending you a check that tells you I am paying everything, when in fact I have less than the required amount in the bank.” Creditors appreciate your bows and scrapes. Although they would prefer to get your money so they can live more luxurious lives, they still like it when a pathetic debtor like you kneels and acknowledges his meager station. Bad checks allow you to acknowledge your inferior, debtor status while temporarily appeasing your creditor’s demand for cash. They soothe your conscience by allowing you to make a “charade payment,” when in fact you know you have no money to pay it. There is honor in this: You did all you can to make money for the bills. Your efforts failed. Why, then, should you bear the burden for it? You simply followed the path you were taught, and you should not suffer for that.

Bad checks also voice your power in a critically unfair power relationship. When you send a bad check, you force your creditor to pursue all kinds of legal and administrative remedies against you. This takes time. It takes effort. It also causes consternation, frustration and annoyance to your creditor. Best of all, it denies your money to his use for at least a few weeks. That means he may only be able to stay in Aruba for 30 days instead of 31. By impacting his enjoyment of life, you show your power. True, your creditor will beat you legally. Eventually he will use the law—which protects him, not you—to forcibly seize the money you owe him. But what do you care? You have no money to seize. A legal judgment means nothing if there is no property to attach. In this sense, it helps to be a destitute middle class job-juggler; without money in the bank, there is nothing the law can do against you. After all, the law is all about property. Without property, the law has no power. You have no property, so the law has no power over you. Although you cannot go out and murder someone without consequence to your liberty, you can easily write a bad check and let your creditor go through the administrative square dance to hunt you down for a few lousy hundred. In so doing, you will cost him more in legal fees that he can hope to wring from you with unwieldy garnishments, levies and liens. With you, he will lose money, even if a small amount. That is power.

For these reasons, do not worry about writing a bad check once in a while. You are doing all you can to live a decent, responsible life as a middle class earner. You are doing everything you were told. You are not a criminal; you are caring for your children. You are paying your rent and all your bills. You are not living beyond your means. In fact, you are living for your means. No one told you that middle class life would devolve into a cruel joke. No one told you that life would devolve into a frantic contest to make at least $2600 every thirty days. No one told you that you would have to worry about getting sick and receiving $400 one week instead of $480. No one told you it would be this bitter, desperate and hopeless. Yet you can fight back with bad checks. Your creditors are living fine. Yet their obligations reduce your life to an unsatisfying, anxiety-ridden hell. Your efforts give them luxuries, while your reward is to live in a modest apartment without fear of eviction. A fair trade? Of course not. But this is middle class life. This is our system.

You will never make it out of the middle class. But while you are there, you can prove that you exist by sending a few bad checks if you can’t hack the bills one month. You have already enriched your creditors enough over the years. Why not stick it to them once in a while, just to show that you are a person, too? You may be a pitiful debtor who never goes on vacation, but you have the power to force them into exhausting legal procedures that will end up costing them money and annoyance. Let them have it. Send a bad check next month.

INFERENCES, IMPLICATIONS & FACTS

AN ESSAY

In Alexander O’Neal’s R & B hit Fake (1987), we hear about a woman who constantly changes her appearance and tells lies. In sum, Mr. O’Neal “decides” that the woman is “fake” because she changes her name and story too often for his liking; plus she cuts her hair and nails in a different style every day. I always liked this song because it was “convincing.” The singer sets forth “facts” that lead the listener to conclude that the woman is lying. After studying evidence in law school, I appreciated the song even more because it demonstrates the correct way to understand the word “inference.” Many people confuse the noun “inference” and the verb “to infer” with the noun “implication” or the verb “to imply.” The two concepts are very different. “Fake” can help us sort out the differences.

In Fake, Alexander O’Neal sings: “Your hair was long/ But now it’s short/ You said: ‘I Got it cut’/ But I don’t see no hair on the floor.” You don’t need to be a lawyer to grasp Mr. O’Neal’s attack on his subject’s credibility. He tells us that he saw the woman with long hair. Later, he saw her with short hair. She claims that she got a haircut. But Mr. O’Neal sees “no hair on the floor;” in other words, he sees no evidence to substantiate the woman’s story. Mr. O’Neal uses his senses and observations to undermine the woman’s claim. He tells us what he saw, what he heard and he gives an evidentiary reason to doubt the story. It is convincing. And it perfectly illustrates how lawyers use “facts” and “sense” to construct truth in court. In essence, Mr. O’Neal asks us to infer that the woman did not get a haircut from the fact that he saw no “hair on the floor.” If you see a person’s hair on the floor, that means something or someone cut the hair off. One fact proceeds from the other. That is an inference.

To understand inferences, we must understand some underlying terms. First, we need to agree what constitutes a “fact.” We all think we know what “facts” are. Yet if you’ve spent any time studying law—or even watching court shows on television—you recognize that we constantly argue about facts. We never agree on what they are. From a basic perspective, many people believe that a “fact” merely refers to what “actually happened.” Throughout law school, many professors gave exactly that definition. But this definition did not placate me. “What actually happened?” What does that mean? To apply that definition, we must assume that a human being senses something through sight, hearing, touch or taste. He perceived something. Then he tells about what “happened.” It requires an individual perspective. When the individual recounts what “actually happened,” he does not provide his listeners with the same knowledge he has. Rather, he presents his memory, which is necessarily weaker than actual experience. After all, we are sensory creatures. Our emotions and our experiences flow from our firsthand perceptions. If we are “not there” to experience an event with our senses, hearing someone’s memory about it does not provide the same knowledge. It is “second-hand” and far “weaker” than true experience. In my view, it is insufficient to define a “fact” as “something that actually happened.” Facts encompass much, much more. After all, no one doubts that the Revolutionary War “actually happened.” But can anyone present his or her personal memory about it? No. Yet everyone believes that the Revolutionary War happened. Why do we believe things that no living person perceives or even remembers?

I have long struggled to define “facts.” No law professor ever provided a satisfactory answer to this question, so I undertook to answer it myself. Now, facts intertwine with human sense. They also intertwine with human belief. If we perceive things with our senses, we believe them. When I say “belief,” I mean that an individual forms a subjective impression that something is true. A person may believe in something that does not exist; subjectively, he holds an impression that it is true, even if he cannot perceive it. For example, a person believes in God. That means he has the subjective impression that God exists. He believes, even though he cannot see God. We can agree that it is a “fact” that this man believes in God. But we cannot agree that it is a “fact” that God exists.

Why the distinction? To grasp this point, let us attempt to define facts. In my view, a “fact” is any act, event or condition that is objectively verifiable and perceptible to the human senses. Under this definition, we can confidently say that “facts” include more than what “actually happened.” After all, can we say that a person’s “belief in God” “actually happened?” Not really. “Belief” is a “condition,” namely an individual’s subjective impression that something is true. Whether someone holds a belief is verifiable and we can perceive it when the person tells us what he believes. But we cannot perceive God with our senses. He is not “objectively verifiable.” His existence may be a “condition,” but it is not perceptible to us. We cannot ask God whether he exists, and we cannot hear him when he answers. To that extent, we cannot accept as a “fact” that God exists.

Yet there are many other things that we can accept as “facts.” As long as someone could reasonably have perceived an act, event or condition, we can believe it to be a fact. In this sense, belief and fact intersect. For example, if we hear from an accident victim that he was “thrown 20 feet from his car” after feeling a “violent impact from behind,” we can reasonably believe that another car rear-ended him at relatively high speed, even if the victim did not see the car. We even believe that the negligent driver must have been traveling very fast, even though we were not sitting next to the negligent driver to personally see the speedometer before the crash. We believe these “facts” even though we did not perceive them because we make inferences from other facts. An “inference” is a fact we did not perceive that naturally follows from a fact we did perceive. There is nothing intuitive or magical about inferences. They are simply facts we can believe after perceiving other facts. After all, we cannot perceive everything in the world. Our sight and hearing have a very limited range. Yet by perceiving some things, we can infer that other things “must have happened.” For example, if we see blood on the sidewalk, it is a “fact” that there is blood on the sidewalk. We can infer that blood fell onto the sidewalk from some external source. We did not perceive the blood falling. But it is still a “fact” that blood wound up the sidewalk. This is an inference. It is a fact that necessarily flows from a fact we directly perceive. If we see our friend with a black eye, we can infer that something—or someone—struck our friend in the face with some force. We cannot infer anything more from that single fact. To get the full story, we need to investigate further.

Implications present a different question. Unlike inferences, implications do not lead us infallibly to facts. Rather, implications involve our intuition, not our logic. An implication refers to the likely circumstances explaining a particular fact or facts. If we see our friend with a black eye, we can infer only that something or someone struck him in the face with some force. Yet we can draw on our common experience to speculate that our friend probably got into a fight. Most black eyes happen when someone punches another person in the face. The implication here is that our friend got in a fight. Yet that is not an inference. The fact that our friend got a black eye does not necessarily lead to the conclusion that he got in a fight. A branch could have fallen from a tree and hit him in the face. He may have stumbled into an iron bar protruding from a building. We simply do not know the cause. Black eyes invite us to speculate about the facts surrounding the trauma. They offer us numerous implications. Yet we can only make one fair inference: That something or someone struck our friend in the face with sufficient force to cause bruising. That is the only fact that we can deduce from the fact we perceive.

What does it mean to “imply” something? There is a subtle difference between the noun “implication” and the verb “to imply.” Generally, “imply” refers to authority and degree in power and belief. Smaller powers are “implied” in large powers. Smaller beliefs are “implied” in large beliefs. When we speak about “implication” in this context, we normally face some interpretative venture. For example, questions about “implied power” commonly arise in agency problems. If we delegate authority to an agent to “buy us a home in San Diego,” and he winds up spending money on a real estate broker for Southern California, did he have authority to do this? Of course—it was a smaller power implied in his “larger” power to buy a home in San Diego. To achieve the large goal, it is implied that the agent may take suitable, “smaller” actions intended to reach it. It is a question of degree and congruence. When a person has a sweeping mandate—or maintains a sweeping belief—he implies that he can do numerous, unnamed “smaller” things to fulfill his objectives. Similarly, if a person believes in capital punishment, he implies that he believes in imprisonment, too. For to believe in something more severe implies that a person also believes in something less severe in less severe cases.

Many people confuse “imply” and “infer.” For the most part, they substitute “imply” for “infer.” We hear “imply” more often than “infer,” so more people use it. For example, a person might say: “I implied from the dirt on your jacket that you were working.” In fact, the person meant to say: “I inferred from the dirt on your jacket that you were working.” That may not be a fair inference, but the speaker nonetheless attempts to conclude a fact he did not perceive (that the person was working) from a fact he perceives (the dirt on the person’s jacket). “Imply” has nothing to do with it. The “implication” behind dirt on a jacket may be that the person was at work. Work may be “implied” in a dirty jacket. Yet we do not “imply” when we attempt to conclude one fact from another. That is an inference.

So how does this all fit in with Fake? Alexander O’Neal understood how powerful inferences can be when evaluating truth. When he sings that he “doesn’t see any hair on the floor,” he asks us to make several inferences. It is a “fact” that Mr. O’Neal did not see hair on the floor. That is an “act, event or condition” that he perceived with his own eyes. First, he asks to infer that the woman’s claim that she “got her hair cut” is a lie. After all, if there is no evidence to suggest a haircut, then we cannot rightly believe that the woman got her hair cut. If she had gotten her hair cut, we would have perceived a “fact” that leads us to that conclusion, namely, “hair on the floor.” Common experience tells us that when we get our hair cut, our hair falls on the floor and we can see it. Even if we walk into a barbershop after a person gets their hair cut and we see their hair on the floor, we can infer that the person (who now has short hair) just got his hair cut. That is a fair inference. Here, however, Mr. O’Neal tells us that he saw no evidence to substantiate the woman’s claim. We can “infer” that her claim is untrue—her untruthfulness is an “act, event or condition” that naturally flows from the “fact” that there is no hair on the floor.

Lastly, Mr. O’Neal asks us to infer that the woman did not get her hair cut. This has nothing to do with her trustworthiness. It is a straightforward inference. If we spend time around a person and never see their hair fall to the floor, we can correctly infer that they did not get their hair cut, even if we were not there to perceive it. That fact “naturally flows” from the fact we perceive.

I mention all this because “facts,” “inferences” and “implications” are words that we typically use without conceptual clarity. Even lawyers do not properly use these words. It is worth making the effort, however, to tease out the subtle distinctions between these words because they help us construct “truth.” In this context, truth refers to “human perception.” We believe what we perceive, and if we are not “there” to perceive something, we believe what makes logical sense to our eyes and ears. Inferences make perfect logical sense. They allow us to believe “facts” without ever “being there” to perceive them. That is an extremely useful tool. When we precisely understand inferences, we can more fairly judge what we see and hear. It is difficult to sort out the truth in this world. When we approach it with some logical consistency, it makes our job significantly more bearable. In this narrow approach to truth, our senses provide all the answers.

PLEASURE MEANS GETTING ENOUGH : DO WE EVER GET ENOUGH?

AN ESSAY

In a satire yesterday, I criticized the human fixation on earthly success. Although satires generally do not “argue,” they proceed on certain “argument-like” premises. Satire works best when there is a visible tension between the text and a principle that everyone knows; the text need not mention it. My main premise yesterday was that human beings really seek “good feelings” in life, but rarely achieve them. We are sensory creatures. We feel good emotions and bad emotions. Our life ebbs and flows over events, which in turn generate good, bad or neutral emotions. We get older every day. Eventually, we die. When that happens, our bodies no longer have the capacity to experience anything. When the body is dead, the senses are dead, too. At some level, human beings know this. That is why they live their lives in order to experience as many “good emotions” as possible before their senses shut down and they die.

Nonetheless, many people forget that they really seek to “feel good emotions” in life. Instead, as my satire pointed out, they pursue the means to feel good emotions rather than the emotions themselves. The dead man in my satire laughed at his living counterparts for “chasing bronzed women” and lusting after high salaries. In other words, he criticized people for wasting their days following a “traditional life program” imposed from without. For most people, the “life program” requires “getting a good job,” “getting a good salary” and “living comfortably” by “having nice things.” In essence, all these things are merely a means to experiencing “good emotions.” When we get a lot of money, for instance, we feel inwardly good. Yet the fact that we got a lot of money one day does not change the fact that we will die in the future. It merely assures us that we will experience good feelings longer during our time here. Similarly, when we achieve romantic success with a person we find attractive, we “feel good;” and it is better to feel good for one more day in our lives than bad or neutral. Still, many people fixate on the means to “good feelings” rather than the feelings themselves. That is why people obsess about money, career, family, spouses and “success.” They forget that all these things merely provide an opportunity for “good emotions” or “happiness.” Rather, they believe that the things themselves are the goals, rather than the means. This leads to disappointment, bitterness and a sense of “failure” when they do not achieve their intended goals.

But what does it mean to “feel good?” Thankfully I made the discovery relatively early in life that it is better to feel generally good every day than to pursue impossible goals that will only marginally make me feel better. After all, there is competition to achieve “popular goals,” such as obtaining high-dollar jobs and other commercial success. Competition implies that others want the same things as you, and they are prepared to fight you for them. Fighting does not make you feel good. In fact, it can make you feel terrible. It causes physical and emotional injury. Worse, if you lose the fight, you “fail” to achieve your goal, and that leads to even more negative emotions. And every day you spend feeling bad is another day you lose on your ultimate journey toward “sensory shutdown.”

We are sensory creatures. To feel good, we must stimulate our senses and trigger chemical reactions in our brains. In essence, “feeling good” means to “feel pleasure.” This does not necessarily mean sexual pleasure or bacchanalian euphoria. Rather, it means that we experience a “full” or “satisfied” sensation. I often make interesting discoveries about ideas by investigating language. The English word “pleasure” does not really reveal much about humans’ quest for good feelings. “Pleasure” is a bland, unremarkable word. It simply means that an individual personally finds something appealing. I suppose it could shed some light on “good feelings” to the extent that “feeling good” is essentially a subjective enterprise. But this does not go far enough for me. What is it about “pleasure” and “feeling good” that implies “fullness” or “satisfaction?”

“Satisfaction” lends better insights on this point. “Satisfaction” derives from the Latin “satis,” meaning “enough.” That reveals a more compelling linguistic complex. When we feel good, in other words, we have “enough” of something. Going further, “enough” is a core, old English word. It derives from the German “genug.” As all so often happens in my etymological investigations, our German ancestry provides more revealing insights into the conceptual complexes embedded in English words. In German, the word for “pleasure” is “die Vergnügung,” which in turn relates to “genug.” That means that “pleasure,” or “feeling good” depends upon “getting enough.” Another German word for “pleasure” or “satisfaction” is “die Genugtuung.” Literally, this means “Doing Enough.” This concept, too, shows that experiencing “good feelings” means that a person individually gets “enough” of something. Typically this has a sexual connotation, but sex alone does not truly express the concept. We can satisfy ourselves with anything, not just sex. We feel “satisfaction” when we eat enough, dance enough, talk enough, earn enough, laugh enough, work enough, love enough, think enough and drink enough. We do not feel “satisfaction” if we fail to eat enough, dance enough, talk enough, earn enough, laugh enough, work enough, love enough, think enough and drink enough. Generally, we say a person is “happy” when he is “satisfied with life.” Etymologically, that means he has “had enough” to make him feel more positive emotions than negative ones in life.

But very few people claim to be happy. In fact, most people complain about their lives. They are not getting “enough” of what they want. They are not “satisfying” their individual desires. Why is this true? I venture that people are unhappy because they confuse the means to happiness with happiness itself. Rather than focusing on their individual desire to experience “enough,” they constantly remind themselves that they are not doing “enough” to reach an external goal. They are not getting “enough” money, and because they do not have “enough,” they are not “satisfied.” Or perhaps they are not getting “enough” attention from the people they love, so they are not “satisfied” emotionally. Perhaps they did not score “highly enough” on a test, and that prohibits them from reaching an academic goal. Because they are not “satisfied” they are not feeling positive emotions. They feel incomplete, insufficient and unsuccessful. Yet this is exactly what happens when people set external goals for themselves. They put themselves in competition with others, and if they cannot reach the standard, they “fall short,” “fail” and “do not do well enough.” From an etymological perspective, that is a recipe for unhappiness. If we do not feel that we have done “enough,” we will not be happy.

Happiness does not come from without. It comes from within. The English word “pleasure” reminds us that feeling good is an individual concern. True, the external world can create circumstances that affect how we feel. Cf. Freud, Civilization and Its Discontents, p. 26 (“…[T]he external world, which may rage against us with overwhelming and merciless forces of destruction.”). But we remain subjective, sensory creatures. Only we can experience our emotions. We are the only ones who can determine whether we experience “enough” good things to feel “happy.” In life, this is an extremely difficult task. After all, we hear so many external messages that attempt to mold how we perceive the world. We are told how to live. We are told that we can make ourselves happy as long as we fulfill criteria X, Y and Z. Yet when embark on our quest to fulfill those criteria, we slowly realize that we are never getting “enough” of what we really want. Fulfilling external criteria necessarily implies that we suppress our subjective desires in order to satisfy the external standard. Happiness can only thrive when we answer our own call, not an external one. To that extent, the “traditional life program” sets us on the wrong foot. When we spend our entire lives seeking to fulfill criteria imposed from without, we neglect what lies within. And if we do not get “enough” to satisfy what lies within, we will not feel good. There will always be something missing. We will always be “incomplete.” We never have “enough.”

Happiness is elusive. In this world, we rarely get a chance to reflect on our own desires. In fact, it can even be difficult to discern our own desires as we sift through the external messages that deluge our senses every day about “achieving success.” Nonetheless, it is worth the effort to separate our own desires from artificial expectations. Why do we seek things? To fulfill an external standard or to satisfy ourselves? Are we really seeking to make ourselves happy, or are we merely engaging in competition to reach an external goal? Are we getting “enough?” That is the question to ask. If we can truly say we have “enough,” we are happy.

But even that can be difficult.

LIVING IS OVERRATED--BELIEVE ME, I KNOW

By : Mr. Daniel G. Foster, B.A., Formerly Married Man and High School Superintendent, East Rutherford High School; Deceased 1995

Everywhere you look these days, you see images that make you want to live. You see bronzed women laying on black sand beaches. You see youthful men drinking beer and smiling with their friends. And you see men, women and children grinning as they play an electronic gaming system or watch a huge flat-panel television. In short, it seems that everyone wants to live. After all, according to these images, there is so much to live for: You can go on vacation, you can drink beer, you can find beautiful bronzed women on beaches and you can play electronic gaming systems to your heart’s content. There is so much to do. And it is all so fun.

But these images are deceiving. Living is much more difficult than these images lead us to believe. We might fantasize about bronzed women on beaches or buying huge Hummer trucks with wheels that do not rotate when they turn. Yet how many of us really accomplish our dreams? Unlike the strapping youths in beer commercials, we may be obese, nerdy, unattractive or some combination of all three. There is no way we can make witty comments to bronzed women. These women will not come within 70 feet of us. We may dream about landing a high-paying job with excellent benefits and buying a luxurious home. Yet more often we compromise, work in retail, schlep to work every day in crowded commuter buses, go home, eat Chinese food, watch television on a small screen, look at internet porn, go to bed and repeat the process every subsequent day until our physical or mental health fails.

No one ever told us how hard life is before we started really living it. No one told us about jealously, betrayal, deceit, deception, lying, stealing, disappointment, mockery or dissatisfaction. We all thought we would date beautiful women and live in huge houses. Instead, we wind up having relationships with mildly overweight secretaries who steal from us and cheat on us. Meanwhile, we develop various physical ailments over the years that give us pain, discomfort, anxiety and despair. We might suffer from gout or kidney stones. We might develop kidney cancer or gall bladder infections. We might even suffer a tragic accident that paralyzes us from the waist down, rendering us impotent invalids for the rest of our lives.

And that is just physical pain. Often, too, we cultivate loving relationships with our families, friends and spouses, only to watch them suffer and die, leaving us alone and heartbroken. Pain comes in many forms. And life is full of it. From day to day, you never can know what card life will deal you. You may have a successful insurance career and a loving wife one day, then be bankrupt, alone and forgotten the next. It happens all the time. That’s life. This is not the life you see in beer commercials. It isn’t fun. It isn’t carefree. And by God, it hurts a lot.

Living is overrated. Take it from me—I died in 1995 and I have been doing great ever since. Well, I haven’t really been doing anything at all, but that’s better than being betrayed, hoodwinked, deceived, beaten, humiliated, hurt, injured, ridiculed, abandoned, or fired from a job. Dying solves many of life’s most difficult problems. When you get out of the race, the race can’t hurt you anymore. True, you lose the opportunity to live a sprightly, youthful existence like the young men in the beer commercials. True, you lose the opportunity to seduce bronzed women on beaches and to buy 100” home theater systems. True, you lose the opportunity to invent lawnmowing equipment and to get rich from patent and licensing royalties. But very few people ever achieve these things in life. And for the chance to win these rewards, you expose yourself to life’s whipping winds. More often than not, those winds will whip you much harder than you ever thought possible. And for what? The chance to seduce a bronzed woman? The chance to patent a new sliding door? The chance to buy a beachfront home in Florida? These are chances, not guarantees. Chances are, you will end up far from your dream. Ted Williams said he wanted to be the greatest hitter who ever lived. He achieved his dream. But you are not Ted Williams. And that is just a sappy myth intended to inspire children before their inevitable disappointments in life. Do yourself a favor: Do not expect so much from life. And do not be so afraid to die. It really is not all that bad.

When I was alive, my first wife bickered with me constantly. She blamed me for losing money on the stock market and she blamed me for my erectile dysfunction. Then she divorced me and took half my savings. You have no idea how horrible that was. But after I died in 1995, I could care less about my first wife. When I was alive, I used to work at a steel wholesalers’ warehouse. My boss told me if I worked hard, I could be a shareholder in the company and own a stake in the business. I worked hard for 14 years, then a new owner bought the warehouse and fired me. Then I started working in a public school. It was dreadful and it dashed my dreams. But after I died in 1995, I felt neither disappointment nor regret. I felt nothing at all, and that was a lot better than opening myself up to further insults. When I was alive, I suffered from rheumatoid arthritis, skin cancer and intestinal inflammation. I used to fear going to the doctor and hearing what he would say about my health. I underwent numerous surgeries and argued with my health insurer about coverage. They said I had intestines before I developed intestinal inflammation, so that meant I could not claim full benefits on pre-existing organs. Ultimately I spent about $75,000 on surgery, wiping out my savings account. After I died in 1995, I stopped worrying about my health and my money. It was simply revolutionary.

Looking back on my living days, I do not know why I approached things with such anxiety. To some extent, I always thought life would get better and that I would be rich, famous, have a beautiful wife and raise a family. Along the way, I went to work, saved money, and met friends. As time went on, it became clear that I would not be rich, I would not be famous and I did not have a beautiful wife. Yet in the back of my mind, I felt that I had failed. Every time I took a test or started a new job, I felt that my life was on the line: Either I did well or I would not reach my dreams. But that was all unnecessary. I should have just enjoyed myself that whole time rather than struggling to attain the unattainable. I would have spared myself so much anxiety and uncertainty. Well, now I know. I'm dead, but at least I know.

I say to you: Death is not all that bad. Of course, the beer commercials do not want you to think this. They want you to believe that being young and having fun is the most important thing in life. No one wants to be dead because when you are dead you cannot buy things or experience pleasure. Yet these are all transient goals. No one tells you that you often experience extremely negative emotions and events as you strive to buy things and experience pleasure. Take it from me: We rarely experience more pleasure in life than pain, and when we try to obtain property, we face insuperable obstacles from those who already have it. In life, people fight for everything. Fights are not fun. They cause anxiety and disappointment. Only the winners feel good, and even then they only feel good until the next fight comes along. Life is an endless race for illusory happiness. To participate in the race, you must expose yourself to pain, suffering, disillusionment, betrayal, discomfort, humiliation, shame, failure and fatigue. Why? For the chance to seduce bronzed women and live in a large house? Ultimately your body will decay and you will die. What good will your success do you then?

Since dying, I have not gotten into a single argument. I have not felt disappointed when a date does not show up, nor have I lost a single dollar on the stock market. I do not feel anxiety before exams. In fact, I do not take exams at all anymore because I am dead. I do not feel bad when people scold me or give me negative performance reviews. Nor do I pay taxes or feel bitter when I receive a bill larger than the one I expected. After all, the dead owe nothing. It is a great feeling to know that you do not owe anything anymore. I make only one concession for my great feelings these days: I no longer have the opportunity to experience pleasure. The bottom line is that dead people do not have living nerves to experience pleasurable sensations. On the other hand, they also do not have nerves to experience all the terrible things that the world flings their way. If that is the only price for my tranquility, I am more than prepared to pay it.

I am dead. I cannot be disappointed, humiliated, taxed, injured, punished or insulted. I cannot seduce bronzed women, but neither can most living people. On the whole, then, I am ahead of the game. See you on the other side. You’ll be happy you’re here. And you’ll kick yourself when you think how much energy you wasted on things that meant nothing at all when you were alive.

BREAKING CONTRACTS : IT'S ALL ABOUT POWER

AN ESSAY

After the AIG scandal broke last week, I wrote an essay explaining that there is no legal barrier to breaking contracts. Recently, Americans have been horrified to see federal bailout money paying AIG executives whose conduct helped create the economic crisis. This popular outrage, in turn, sparked a debate as to whether the government can abrogate private contracts. Most Americans seem to think that private contracts are inviolable. They seem to think that contracts have a mystical power that makes them immune from State interference. President Obama’s economic adviser, Larry Summers, went so far as to say: “This is a country of laws. The government cannot just abrogate private contracts.”

Yes it can. Government enforces contracts by sovereign grace. If the sovereign decides that a particular contract will be enforced, there is nothing the aggrieved party can do about it within the law. Of course, this would not set a good precedent. After all, people only do business with each other if they know that the law will force the other guy to honor his promise. But this is a policy concern, not a legal one. In essence, the power to enforce contracts stems from pure political might. It has nothing to do with abstractions, principles or sacred vows. And it certainly has nothing to do with whether the United States is a “country of laws.”

In The Prince, Niccolo Machiavelli wrote: “The principal foundations of all states, whether new, old, or mixed, are good laws and good arms… [and]… there cannot be good laws where there are not good arms…[and] where there are good arms, there are bound to be good laws.” The Prince, Chapter 12 at p. 52. Machiavelli’s clear prose reminds us that a “nation of laws” cannot exist without “good arms,” namely, powerful executive authority. Law cannot exist without force, nor can it even come into being without an original coup. In the United States, there would be no Constitution or laws had the colonists not risen up and defeated the British army through “good arms.” Through “good arms,” the United States maintained the essential stability it required to establish “good laws.” Thanks to protection under “good arms,” commercial men could depend on stable laws. They could count on courts to enforce contracts against those who broke their promises. Americans grew accustomed to a “legal State” in which they could dependably rely on courts to enforce private bargains with neutral, reasonable laws.

That remains the case today. Larry Summers did not voice an insane sentiment when he said: “This is a Nation of laws.” Most Americans agree with him. They take pride in the fact that they live in a society in which courts neutrally apply legal principles that technically treat everyone equally. After all, a “Nation of laws” differs from a “Nation of men,” in which a legal rules flow from the wanton caprice of a single individual. In America, we have laws. In theory, the laws apply equally to everyone, and—as the logic goes—that is a good thing.

But these “defenders of the law” forget that their laws would mean nothing without executive power. Courts enjoy power because they can count on the executive to enforce their “principled” decrees. In contract law, they ruminate about abstract ideas like bargain, consideration, benefit, detriment, equality of exchange, restitution, rescission, reformation, mistake, parol evidence and reliance. They even attempt to allot money damages to aggrieved parties according to fixed, “neutral” rules. They then scribble out judgments and force the offending party to pay. If he does not, the court has no institutional power to do anything but write strongly-worded opinions. To enforce its decrees, it must turn to its institutional partner: The Executive. Only the executive has the billy clubs, guns, prisons and handcuffs to browbeat the offending party into paying up. If he does not obey the court, the executive takes away his property or his liberty. To avoid that fate, the offending party does what the court tells him. That is true power: The power to compel. Cf. Kant (“Law is linked to the authority to compel”). Introduction to Legal Doctrine, The Metaphysics of Morals (Einleitung in die Rechtslehre § D, Die Metaphysik der Moral). The executive is powerful because it can directly inflict pain on bodies and take away property. And as Machiavelli knew, nothing compels men more than threatening their property: “[B]ut above all, [a Prince] must abstain from taking the property of others, for men sooner forget the death of their father than the loss of their patrimony.” The Prince, Chapter 17, p. 72.

What good is it to be a “nation of laws” if the laws themselves are stupid or degrading? That was the question Americans asked when they found out that federal bailout money paid multimillion-dollar bonuses to scallywag AIG executives last week. In my view, waving your hands in the air and pontificating about “our Nation of laws” is absurd. Quite simply, the whole rhetoric about the United States as a “nation of laws” is a vacuous talisman. If it is necessary to allow brigands to take money that would not have been available without their skullduggery because that is what “the law dictates,” then I say the “rule of law” is just as stupid as the law itself. During his confirmation hearings in the United States Senate, Chief Justice John G. Roberts repeatedly pledged that he would issue opinions: “Consistent with the Constitution and the rule of law in the United States,” as if the “rule of law” were synonymous with goodness. What is all this nonsense about the “rule of law?” Laws come from men. Men can be stupid. So can their laws. Therefore, to use a lawyer’s logic, the “rule of law” can be stupid, too. I reserve no exalted place in my heart for the “rule of law.” There once were laws that permitted slavery. Under the “rule of law,” men could own other men in this country. If a law is bad, so is “rule under the law.” For that reason, I reject this hypnotic, reflexive insistence on the “rule of law” in every single situation in which legal rules come into question. For me, it is no answer to mouth the words “rule of law” when defending legal principles that lead to intuitive mischief.

Yet there is no need to even reach the question. We need only worry about the “rule of law” if we assume that the executive will enforce legal decrees. In essence, law is about power. Our constitutional system arose from power and does its best to diffuse power across several institutions. In theory, our legislative, executive and judicial branches are supposed to be “equal” in power. In practice, however, we see how artificial and wooden this distinction truly is. After all, who really has power? Only the branch with the power to compel men’s bodies and take their property has real power. Courts have the power to write erudite opinions on archaic constitutional provisions. Legislatures have the power to draft voluminous bills that attempt to better society with new rules and regulations. But only the executive has the power to shoot, kill, take, invade, imprison, threaten and enforce. Without the executive, neither legislative nor judicial “power” would mean anything. Courts and legislatures are like powerless children who depend on their father to do the muscle work. Only the executive has real power, because it is the branch with the “good arms.” And, in Machiavelli’s parlance: “There are no good laws without good arms.” The Prince, Chapter 12, p. 52. Only real power assures that the law has any force at all. On this point, Machiavelli again puts it best: “For, between an armed man and an unarmed one there is no comparison whatsoever, and it is not reasonable that one who is armed should willingly obey one who is unarmed.” The Prince, Chapter 14, p. 63. In this light, should the executive in this country really listen to carping about the “rule of law” in enforcing abhorrent private contracts for AIG executives? No. In Machiavelli’s terms, it would not even be “reasonable” for the “armed” executive to obey an “unarmed” court.

My sentiments here will undoubtedly cause discomfort among legal “process lovers.” Indeed, my article last week prompted a response that: “This is no way to run a government.” On this point I agree. Laws should be followed. Laws provide stability and comfort to commerce, and that inures to everyone’s benefit. When men know that they can obtain a peaceful remedy from a court, they will refrain from private retribution and “collection.” In almost every case, the executive should enforce legal decrees that compel private obligations. But that does not alter the fact that executive enforcement is essentially discretionary. Only the executive is armed; the court has no real power to compel anything. In rare cases—as here with the AIG bonus fiasco—the executive has the institutional discretion to refuse to honor legal decrees. After all, if private contract law leads to a result so repugnant that it reaffirms Charles Dickens’ famous dictum from Oliver Twist: “If this be the eye of the law, sir, then the law is an ass,” then the executive can step in to reverse the outcry. True, some may say that such “indulgences” to popular sentiment are the first step on the road to dictatorship and capricious government. But I say that it is worse to allow perverse “legal” results than to suspend the law in an exceptional case to avoid public indignation.

I have little patience for those who fanatically put their faith in law. Positive law—meaning written laws passed by popular majorities for majority purposes, ostensibly according to logic and human reason—does not invariably lead to good results or justice. In Hitler’s Germany, for instance, positive law—passed by democratic majorities—forbade marriages between Jews and Gentiles. Later German laws made it “legal” to exterminate Jews at concentration camps. This is an extreme example, but it shows that positive law should not be a talisman. Positive law can be bad. For that reason, trust in the “rule of law” can also be misplaced.

We all want our bargains protected. But that does not mean we should allow AIG Executives to scream “rule of law” to create a result at fundamental odds with our common sensibilities. Our common sensibilities may not be written down in a statute or casebook, but they still matter. On this point, we can turn to the executive to exercise its inherent power to deny enforcement.