COMMUNICATE CLEARLY IN A LANGUAGE EVERYONE SPEAKS

CONSIDERED OPINION

By : Mr. D. Irwin Wudditworth, M.B.A., Senior Manager, Pryor Cox Wealth Management Associates LLC (A Professional Financial Group Specializing in Estates, Trusts, Investment Instruments, Funds and Precious Metal Acquisitions for Both Banks and Individuals); Lecturer on Communication Issues in the Financial Community; Boat Enthusiast; World Traveler and Linguist.

Language is important. Without language, it would be impossible to effectively communicate with other people. Language enables us to precisely transfer information, thoughts, beliefs and emotions from our own minds to others. True, we do not always communicate with language. Sometimes, we convey our thoughts, beliefs and emotions with our bodies. But body language does not suffice for significant financial transactions. I could not, for example, use body language to say: “I offer to sell these low-bearing investment trust certificates at 5 points over prime on or before the close of business this Friday, May 24, 2010.” Only language can transfer all the information relevant to that transaction. Facial expressions, gestures, grunts, winnies, guffaws, clicks, gesticulations, guttural noises, squeaks, hand waving or even muscular spasms could never exactly inform the listener about the transaction I contemplated. Put simply, we need language to provide and receive the information necessary to do business.

But this creates new problems. Although language enables a speaker and a listener to pass information necessary to consummate mutually profitable deals with one another, the world is large. Not everyone speaks the same national tongue. For example, I cannot call a Chinese manufacturer on the telephone and say in English: “Listen up, Chu, I want 45,000 bales of unprocessed indigo sent FOB to my pier in Los Angeles by 6 PM on Monday the 14th. I’ll take care of the insurance. What’s the market price today?” If I said these words, they would sound like pure gibberish to Mr. Chu. Yet both Mr. Chu and I have the capacity to use language; we both want to profit from one another. Still, we do not speak the same language. The language barrier makes it impossible for us to consummate a financial transaction. That is a problem. Thus, it is not enough to speak just any language. To successfully engage in commerce, both the buyer and seller must speak the same language. What good is a well-written contract if no one understands what it says?

How can conscientious businessmen overcome these linguistic difficulties? True success requires clear communication and a solid financial vision. And the only way to clearly communicate is to speak in the listener’s language. Many companies try to teach people how to speak foreign languages. They say that “anyone can learn a new language” if they try hard enough. But learning foreign languages is burdensome. It takes forever to learn countless new words and idioms. Even after learning all the words, native speakers correct you and make you feel like a fool for making grammatical errors. Although it can be intellectually satisfying to learn a foreign language, it takes far too much time. It can take decades to truly learn another language. In the wealth management business, we don’t have decades to do deals; we need to do deals every month. If we wasted our time learning foreign languages, we would go out of business. Additionally, “intellectual satisfaction” is a paltry reward for the immense effort needed to learn the language. Worse, even after investing countless, unpaid hours into learning the new language, in the end you’ve only learned one language. There are hundreds of languages left on earth, each of which is a potential market. It does no good to spend a lifetime learning Italian when you need to make money in Russia. In this light, learning foreign languages—while essential to doing business abroad—is not financially practicable. Basically, it takes too long and brings in comparatively little for the effort. No matter how you slice it, language learning is a bad business proposition.

I am not ashamed to admit that I do not speak Dutch. I don’t speak Portuguese, Hindi or Chinese, either. In fact, I only speak English. This limits my linguistic ability to consummate profitable transactions with foreign speakers. But there are other ways to communicate with others beyond national language. I speak a much more universal language, a language that everyone on earth understands: Money. Everyone knows what cash is. Everyone likes bank checks and deposit certificates. Everyone likes high-yield promissory notes and bearer bonds. Money talks. And it talks very clearly. No one misunderstands money. It can negotiate better than any urbane linguist, no matter how many degrees he has on his wall. When it comes to convincing people, I don’t need to waste 20 years learning French. I don’t need to understand poetry or opera. I just need to put up some numbers.

In the Old Testament, it says that God deliberately scattered human beings by splitting them into different linguistic groups. The Bible says: “Go to, let us go down, and there confound their language, that they may not understand each other’s speech.” Genesis 11:7. I hate to disagree with God, but I do not believe that language separates us. Quite the contrary, people are more similar to each other than different. Money speaks to all people; it does not “confound” anyone. Everyone understands “wire transfer, “ “cash payment,” “draft charge” and “gold.” God may have tried to separate human beings by splitting their languages, but money has reunited us. We do not need to master grammatical subtleties to “understand” a Japanese person. We just need to know how much he wants for the goods he’s selling. I want the goods; he wants the money. He doesn’t speak English; I don’t speak Japanese. But we both understand each other. Despite God’s best efforts here, money transcends all linguistic quandaries. Put simply, money is a universal communicator. It obliterates divisions and changes minds. It convinces better than any high-flown rhetoric. It is even better than logic: People would much rather have dollars than “sense.”

I believe that everyone on earth can clearly communicate with one another. We all speak money. We all understand money. We all want money. If we all want the same thing, why should we squabble and misunderstand each other? In my experience as a wealth manager, money answers every question. Whether I’m dealing with a Belgian industrialist or an Indian baker, the question is always the same: “How much do I get?” And my question is always the same: “What’s the fee?” No matter how divergent our cultures or how varied our languages, money unifies us. There is no reason for us to fight. We both just want money. Culture, religion, national traditions and social customs do not really matter in the end. Without money to pay bills, buy food and maintain homes, there would be no culture or national tradition. People know that. That is why they all speak money. Everything else is secondary. I believe that our world can be a better place if we all just focus on the thing that unites us all: Money.

In this light, I am proud to work at a firm that promotes international understanding. In my business, I see people from all over the world smiling, laughing and singing. Why? Because they are making money. My firm does not speak their national language. It does not even really care about their traditions or their national folk heroes. It simply allows them to conclude profitable international business transactions at reasonable rates. We do not condescend to our clients. We merely show them numbers and profits. We do not need to master their languages or cultures. We talk money. And they understand us perfectly. Even the most recalcitrant Islamist smiles when we show him a productive portfolio, even if the money comes from Christian-owned enterprises. In this way, money does not transcend national and linguistic lines; it even crosses deeply-rooted religious hatreds. Money makes everyone smile, even Jihadists and African dictators. It defuses tensions. That is a beautiful thing.

God may have separated human beings by “confounding” their languages. He may have tried to breed discord and confusion among nations by interfering with our ability to communicate with one another. But God underestimated modern commerce. Today, people all over the world no longer need to understand every word they hear. They just need to know dollar amounts. Understanding is simple. It is all about cash, dividends, returns, puts, calls and sales. I am proud to work for a firm that promotes international understanding and clear communication. I speak money. No one misunderstands me. I do not offend anyone. I do not make linguistic faux pas or accidentally insult anyone. No, I just show my listeners how much cash they are making. That’s enough to transcend any language barrier. And best of all, I never had to waste any time mastering bewildering new vocabulary or grammar rules. Who has time for that when you can just talk money and everyone understands you every time?

We live in a hopeful time. We can make the world a better place if we all work together and speak money together. We all want the same things in life. At Pryor Cox Wealth Management Associates LLC, we understand what’s important. We make people happy because we communicate clearly. Language is an artificial barrier. We believe that everyone on earth can communicate with one another in peace, as long as they just talk about money. What else really matters, anyway?

Life is too short for confusion. Don’t be misunderstood. Get to the point. Talk money.

BUSINESS AS USUAL AT GROUND ZERO

A REFLECTION

Three days ago, I walked past the World Trade Center site for the first time since 9/11. In the eight years since that day, I never really had a reason to. I moved to New York in 1996. I have been here ever since, with a five-year interlude in Chicago. During the 1990s, I used to admire the Twin Towers. As a newcomer to the city, I used to orient myself by looking for them. In a strange way, I liked them. They were unique. They looked strong. When you’re a kid in New York, you like the idea that your city is bigger and stronger than any other city. It makes you feel special. The Trade Center conveyed that strength.

I knew that terrorists tried to destroy the towers in 1993. The plan was to blast one tower’s foundation so that it would fall into the other one, knocking them both down. One summer day in 1998, I distinctly remember looking up at the towers from the corner of Park Row and Broadway—near the J&R Music World. From that intersection, you had a perfect view. The south tower was on the left and the north tower was on the right. The corners faced you, and there was a narrow gap between the two structures that cut a vertical line straight into the sky. From that intersection, the towers filled the sky; they dwarfed everything around them. You were just close enough to appreciate their every detail. And you were just far enough to appreciate how massive they really were.

I remember thinking: “Wow, imagine if I were standing here that day they bombed the Trade Center and I saw one tower fall into the other? My God, that would have been frightening. I’ll bet 50,000 people could die if that happened.” At the time, this was just nightmarish daydreaming. I never really thought something would happen to the World Trade Center again. When it did, I was just as awestruck as everyone else. I remember thinking that “New York would never be the same” after that day. And I didn’t mean it in an ominous, symbolic way. I meant that the city would just look different. The Trade Center anchored the whole skyline. It made New York seem like a strong city with those two powerful columns firmly entrenched in the southern tip, like two brawny shoulders. When they collapsed, the city’s image suffered a crushing blow. In an instant, its physical profile changed for all time.

In a strange twist of fortune, I was on vacation outside the city when 9/11 happened. I even took it as a signal to “get out of New York for a while,” so I moved to Chicago. I came back to New York in 2003 and stayed another year. During 2003 and 2004, I went to law school on Worth Street in Tribeca, no more than eight blocks from the World Trade Center site. Yet I never went there. Something held me back. I didn’t really feel the need to see it. In those days, politicians and architects constantly talked about how “a new trade center will rise from the ashes of the past.” They talked about “fearlessness.” They said that terrorists would never “intimidate them.” I was ambivalent; I really did not care. All I knew was that terrorists had struck a damaging blow, and no rhetoric could erase the evidence at Ground Zero. In mid-2004, I drove back to Chicago. At that point in my life, I wasn’t sure whether I would ever come back to New York.

But here I am back in New York. Finally, after eight years, something drew me to the World Trade Center site: I had an interview in the World Financial Center. To get to the World Financial Center by subway, you take the “E” train. The last stop on the “E” train is defiantly called “World Trade Center,” even though the World Trade Center isn’t there anymore. I got off the train at the “World Trade Center” station and walked upstairs. It was about 8 A.M. on a clear July morning. Upon reaching the street, I first noticed blue plywood walls that channeled commuters in particular directions. There was a lot of construction going on. A handwritten sign pointed us toward the “World Financial Center.” Two long columns of commuters passed each other through the plywood corridor. One column headed east, the other west. I headed west.

I looked up to my left and saw sky. There was nothing there. Then a strange feeling came over me: “I remember looking up from here and seeing the towers!” From this distance, the towers used to overwhelm you and blot out the sun. They used to cast enormous shadows that cascaded down the street. But now: Nothing. Just emptiness. It is strange to see empty sky in Manhattan. It strikes you immediately. You accustom yourself to seeing buildings on all sides, some of which rise far up into the sky. Yet at the World Trade Center site, sky is all you see. It was genuinely eerie. I felt like I had just stepped onto historically important ground not long after a historically important event. The emptiness above me only confirmed that something significant happened here.

But the commuters didn’t find it eerie at all. They marched along without looking up, tuned into iPods or iPhones. They had places to be and schedules to keep. They did not want to be late for work. In short, they were doing what commuters probably were doing before the planes arrived on 9/11. On 9/11/01, commuters on this street had to scramble for their lives. But on 7/7/09, commuters on this street shuffled more than scrambled. It was just another day. Something significant happened here eight years ago. Yet it had no effect on the commuters.

I have always been overly sensitive to history. When I know that something historically important happened in a particular place, it affects me. Recently, for example, I learned that English settlers in my hometown in Connecticut murdered 700 Native Americans in a place I know very well. Since learning that, I cannot look at the place in the same way. The same feeling overcame me when I walked past the World Trade Center, but with much greater immediacy. Here, a massacre happened only eight years ago, not in 1637. Here, an event happened that fundamentally changed the way Americans think about themselves and their country. Here, thousands died on an otherwise “regular business day.” You would think that would affect people doing precisely the same thing at the same place eight years later. You would think that would make people question whether it would ever be possible to “get back to normal” after such a monumental event. Apparently, it did not. On 7/7/09 it was “business as usual” at the World Trade Center. History did not intimidate these commuters.

And why should it? After all, 9/11 panicked American society. In the days and weeks following the attacks, Americans really wondered whether they could ever “get back to normal.” They did not know whether society as they knew it was coming to an end. But then the politicians stepped in and assured them: “If you don’t get back to normal, the terrorists win. If you don’t go back to work, the terrorists win.” In essence, a new American rhetoric developed in response to the panic created after 9/11, a rhetoric of “defiant normalcy.” To defy the faceless terrorists who caused so much panic, politicians encouraged Americans to simply live as they always had. They encouraged Americans not to think about 9/11 anymore, except when it was necessary to justify some new encroachment on civil liberties. 9/11 became a justification for drastic governmental action. Yet government cultivated a patriotic vision of 9/11 that carefully avoided mentioning the panic, fear and uncertainty that reigned on the day itself. In short, Americans have been taught to “remember 9/11” in order to reaffirm “normal, working lives,” but not to “remember 9/11” for the profound shock waves it sent through American society. Memory about 9/11, in other words, is “selective.”

On 9/11, nothing really mattered anymore. People really were terrified. They just wanted to survive; they didn’t care about their jobs. But for a government trying to run an international economy, these are unacceptable sentiments. That is why politicians after 9/11 did their best to help Americans forget the terror and uncertainty they felt on that day and its immediate aftermath. On 7/7/09, they clearly had forgotten. It was back to business as usual.

Yet this ignores history. No matter how much President Bush and the Federal government attempted to channel 9/11 fear into a new patriotism of “defiant normalcy,” 9/11 was not a strong moment for America. America took a profound beating on 9/11. After the fact, politicians and pundits contemptuously labeled the attackers “cowards.” Yet this is really because America lost the fight on 9/11. No matter how painful it may be to admit, the 9/11 attackers were not “cowards.” They did not fear death. They did not shrink from bold action. No, they were about as far from “cowardly” as you can get. They ruthlessly organized a plan to crash airliners into skyscrapers, killing themselves in the process. From a linguistic perspective, this is not cowardly at all. In fact, it reflects undaunted courage. Americans simply did not like the results of their courage, so they called it “cowardly.” Courage means fearlessness in the face of danger. Cowardice means fear and panic in the face of danger. Neither word refers to the subject’s political or national affiliation. By these definitions, the 9/11 attackers definitely had courage, not cowardice. This is certainly not a politically popular thing to say in America. But “cowardly” means something in the English language; and it does not describe the actions of men who fearlessly face death to accomplish a political mission.

President Bush and the Federal government transformed shock and embarrassment over “defeat” on 9/11 into a defiant new patriotism. But this patriotism was “reactive;” it arose because America suffered so much humiliation on 9/11 that enraged Americans vowed to avenge it. Their fear turned into anger. Still, no matter how defiant Americans became in 2002 and beyond, this does not change how terrified they were on 9/11. They did not like the way they felt that day. Before 9/11, they had become accustomed to feeling secure and strong. Yet on 9/11, they saw how weak they really could be. Such moments scare anyone, and no one likes to feel weak. That is why America “reacted” to its embarrassing weakness on 9/11 with a cocky new “strength” in its values. Yet no matter how much America defiantly postured after 9/11, it does not change the fact that America suffered a defeat on the day itself.

Very few admit that 9/11 was a defeat. Even fewer reflect on the terror that reigned that day. No one likes to remember bad times. We naturally suppress negative memories. We try to push them away with assumed strength. This is precisely what America has done with 9/11. It is like a bad memory, an uncomfortable experience. It does not fit our collectively strong self-image; it fact, it showed us how vulnerable we are. So we simply ignore it. This is exactly what the commuters were doing on 7/7/09. And they were doing it extremely well. It was commerce as usual at the World Trade Center, just as it was eight years ago. But history has left its mark, no matter how much we choose to ignore it. That empty patch of Manhattan sky speaks for history. Something happened here that forced us to change the way we look at the world. Yet how few actually changed the way they live—or think—as a result?

Unchecked international commerce provoked 9/11. Now it simply grinds on—in exactly the same place it suffered it worst day ever. As I walked to the World Financial Center three days ago, I could not repress that tangible—and profound—irony: “What have we really learned?”

"SEX" IS NOT A BAD WORD ; CENSORSHIP IS

OESTERHOUDT STRIKES

Jeremih’s single “Birthday Sex” should have been just another R&B song about a young man’s assumed romantic prowess. When Def Jam released the single in April, audiences responded with enthusiasm: It went to #1 on the R&B charts and #4 on the pop charts. It fit the “urban love anthem” mold: A man does not buy gifts for his girlfriend on her birthday, so he gives her “birthday sex” as a replacement. And true to the smug, sexually conceited male caricature that so often appears in the R&B canon, Jeremih assures his listener that his sex is better than any material gift.

This is not an uplifting message. In fact, it is laughable. But I am not writing today to mock “Birthday Sex.” I am writing today because mainstream radio stations bleep out the word “sex” when they play the song.

Since when did “sex” become a word “bad” enough to warrant censorship? We all know that the Federal government has power to prevent us from hearing a few “really bad” words during mainstream broadcasts. See, e.g, F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). But those “really bad words” are familiar vulgarities, colorful English phrases that go straight to the unrefined truth about sex and the body. We know we are not allowed to hear the words “fuck,” “shit,” “asshole” and “cock” on everyday broadcasts because those words cut to the linguistic quick about sex, excrement and “private parts.” Popular morality teaches us to revile these things, so law provides society a way to protect our ears from them. For better or worse, these traditionally “bad words” have real rhetorical punch. Their strength lies in their unabashed directness. Their strength lies in their pure Germanic derivation. No doctor or scientist mulled a Latin equivalent for these words. They are brutally honest, English core words. And to some extent, that is one reason why popular morality reviles them: Our society has an uneasy relationship with sex and the body, so it recoils from overly honest expressions about them.

But the traditional reasons for banning “bad words” do not apply to the word “sex.” “Sex,” unlike “fuck” or “shit,” is a Latin-based medical coinage, not a vulgarity. When people honestly talk about sexual conduct, they generally do not use medical terms. They use tried-and-true Germanic vulgarities. They do not say: “May we now engage in sexual activity?” In much the same way, they do not use medical coinages when referring to basic bodily functions. People do not say: “I must defecate now.” Latin does not tell the same story as German. Every English speaker knows that “shit” is a more honest word than “defecate.” Yet it ruffles feathers precisely because it so honestly describes “a coarse bodily function.” “Defecate” distances the listener from the body. That is why it is permissible to broadcast “defecate” during a daytime radio show, but not “shit.” The same reasoning should apply to “sex;” it is a medical coinage that distances the listener from the honest truth about sexual contact between human beings. In this case, however, the usual reasoning does not apply.

Why the inconsistency here? You would think that using the word “sex” instead of its coarse Germanic cousins would satisfy the decency police. After all, it purifies the language from uncomfortable honesty. “Sex” inevitably will offend fewer prudes than “fuck,” even though both words refer to precisely the same activity. But in this case, the censors bleeped out “sex,” too. In a way, I pity Jeremih. He tried his best to write a sensual song without using “traditional vulgarities” because he knew those words would be censored. Yet despite his efforts to use satisfactory words, the censors muffled him anyway.

I can only explain this new hostility toward the word “sex” by positing that popular morality does not like sexual conduct in the abstract. Although doctors created the word “sex” to make it easier to discuss sexual conduct without using uncomfortable Germanic vulgarities, apparently the subterfuge isn’t working anymore. The subject matter is apparently so uncomfortable that even Latin circumlocution can no longer suppress the shame. What can explain this if not a profound discomfort with anything concerning sexual contact between human beings? The word “sex” was supposed to disguise the raw, bodily truth about sexual conduct. It is deliberately uncolorful, undescriptive and unmemorable. But now, it is just as bad as the subject matter it was intended to conceal.

This is not just censorship. It is sloppy, incompetent censorship. A good censor has consistent reasons for suppressing certain words. For thirty years, censors at the F.C.C. consistently applied the “traditional vulgarity” test to determine whether a word “could be heard” on the airwaves. That test protected young ears from “overly honest descriptions” about sex and bodily function while preserving some “decorum” during daytime broadcasts. The test was exquisitely formal and categorical: Either the word was on the “dirty words” list or it was not. But now, the F.C.C. has scrapped the categorical approach. “Sex” was never on a “dirty words” list; it is a euphemism calculated to avoid using a word on that list. Yet now it is just as bad as the words it was intended to circumvent.

This is censorship by moral fiat, not reasoned analysis. I argue that such an approach disparages government’s obligation under the First Amendment to “make no law…abridging the freedom of speech.” The Supreme Court has steadily eroded our right to speak as we please under the Constitution. But it has nonetheless always reminded government that it cannot drive certain words from discourse without compelling justifications based in reason. See, e.g, Cohen v. California, 403 U.S. 15 (1971). The Court said that driving “traditionally vulgar words” from discourse could be justified because it was important to “protect children” and “unwilling listeners” from coarse language. F.C.C. v. Pacifica, 438 U.S. 726, 748-750 (1978). But it never said anything about words that are not “traditionally vulgar,” “shocking” or “coarse.” Viewed linguistically, the word “sex” is neither vulgar nor coarse. It is not “shocking,” either. In fact, it is supposed to take the “shock” out of traditionally “vulgar” expressions. Its capacity to give offense lies solely in the subject matter to which it refers, not the honest tone in which it describes the subject matter. By any test ever used to judge “decency” under the First Amendment, “sex” clearly passes. It is therefore shocking that the F.C.C. now decides to rewrite the law to censor a word that violates no legal standard.

If we allow the F.C.C. to drive the word “sex” from discourse, how are we supposed to “properly” talk about sex? What about shows like “Sex in the City” or songs like “Sexual Healing?” Those titles contain the word “sex.” What about a broadcast discussing “sexually transmitted diseases” or “sex therapy?” What about the countless advertisements for products addressing “sexual dysfunction” and “normal sex lives?”

In short, the word “sex” has evolved into an “acceptably neutral” means to express human sexuality without offending the decency police. We rely on it to discuss a profoundly important aspect of our lives. If it suddenly becomes as “bad” as the other “dirty words,” how are we supposed to discuss it? This may sound extreme, but we are on that path. The F.C.C. censored the word “sex” in Jeremih’s song. For all concerns and purposes, government decided that we should not hear the word because it was somehow “bad” or “offensive.” Yet “sex” is not a “bad word.” It was invented in order not to give offense. It is ironic that authorities now seek to suppress a euphemism.

I strongly resent any government attempt to control language. Our Constitution grants American citizens a broad right to speak freely. We should only tolerate restrictions on our language for the most compelling reasons. Moral awkwardness about sex does not even remotely rise to that level. Yet if we do not express our disapproval about censorship when it happens, we tacitly certify government’s power to regulate our language. That is why it is important to oppose censorship whenever it appears. “Birthday Sex” may be stupid, juvenile and absurd. But if we don’t say something to oppose government’s attempt to outlaw a perfectly legitimate word in our language, we empower government to take even more steps to muzzle us. In this case, government has applied its own moral queasiness to suppress a neutral word we all have a right to use. Moral queasiness is no justification for ignoring the First Amendment, no matter how many supersensitive mothers call to complain.

America has deep and fundamental social problems with sex. But those problems should not be allowed to impact our rights under the First Amendment. Censorship should worry us all, no matter where it appears. Our language existed before the Constitution and before the government. It is ours. As long as we do not use it to injure others or foment violence, government has no right to trespass against it. When government targets our language, we all lose expressive possibilities. Without expressive possibilities, we do not truly enjoy our rights as individuals. That is why I detest ungrounded censorship. It is not just an attack on the speaker’s expressive powers. It is an attack on us all.

DIGNITY IS NOT DEAD; IT HAS SIMPLY EVOLVED SINCE 1799: A RESPONSE TO DAVID BROOKS

AN ESSAY

In a recent editorial, David Brooks faulted 21st Century American society for failing to adhere to a “dignity code.” See N.Y. Times July 6, 2009. He begins his argument by applauding George Washington as a “model man,” not just a model General or public official. Brooks observes that Washington scrupulously maintained “dignity” by applying 110 maxims from a manual called “Rules of Civility and Decent Behavior in Company and Conversation.” He says that Washington lived his whole life according to these rules, which cultivated such habits as “standing when another person enters the room,” “refusing to publicly broadcast passions” and “living reticently.” For Brooks, this systematic adherence to 18th Century etiquette represents a lost art. He calls Washington “dignified” for having followed these rules because they resulted in “self-mastery” and “disinterested,” private strength. Against this historical background, he laments that most Americans no longer practice “dignity” because they publicly broadcast their feelings and refuse to submit to “social norms” for guidance in life. Brooks asserts that “the old dignity code has not survived modern life.”

But Brooks is not talking about abstract dignity. He is talking about specific, 18th Century etiquette rules. Of course 18th Century etiquette rules have not survived modern life. It’s only natural that they died centuries ago. Our society has changed out of all recognition from colonial America. Yet Brooks—like many figures in both American government and law—equate George Washington and 18th Century “founding values” with intrinsic worth. See http://reasoncommercejustice.blogspot.com/2009/04/our-proud-colonial-traditions-what-is.html. They “fetishize” bygone values such as genteel chivalry and impossibly modest self-control. Brooks notes that, unlike public figures today, Washington refused to publicly air his passions. Rather, his “moral character set him apart.” He was “reticent,” “disinterested,” “dispassionate” and “private.” In Brooks’ estimation, these 18th Century values transformed Washington into a “symbol for dignity.” And—according to Brooks— “dignity is dead” in American life because people do not act like George Washington anymore.

Dignity is not dead in American life. It is just different from 18th Century etiquette codes. Brooks does not understand that the word “dignity” does not refer to George Washington’s personal moral handbook. Rather, “dignity” derives from the Latin word “dignitas,” meaning “worth” or “worthiness.” In English, “dignity” does not mean technical adherence to a particular moral code. Instead, it refers to “bearing, conduct, or speech indicative of self-respect or appreciation of the formality or gravity of an occasion or situation.” Dictionary.com, “Dignity” Meaning 1. It also means “nobility or elevation of character; worthiness.” Id., at Meaning 2. These definitions stress self-respect, nobility and worth. They do not depend upon allegiance to 18th Century moral norms or etiquette technicalities. They do not involve morality, either. Rather, dignity is a broad term. Dignity involves respect and principle. It implies a refusal to countenance certain “base” conduct, both privately and in government. A “dignified” man refuses to adopt certain means to achieve particular ends, even if the ends are noble. A “dignified government” values its citizens; it ascribes worth to them no matter the circumstances. Both men and governments can be dignified without technically following 18th Century “social norms.” And while “disinterest,” “reticence,” “dispassion” and “privacy” can reflect dignity, a dignified person need not always be disinterested, reticent, dispassionate or private. After all, we are only human. Our feelings, emotions and passions define us as much—if not more—than our reason. If we never give air to our emotions or passions, we renounce our humanity altogether. In short, people and governments can be dignified without following Washington’s 110-step formula from 1750.

Brooks places undue weight on the “technical aspects” of 18th Century dignity. And oddly, he concedes that 18th Century dignity cannot survive in the United States. In a striking admission, he says that “capitalism” makes it virtually impossible to scrupulously adhere to Washington’s “dignity code.” After all, in order to achieve commercial success in America, Brooks says that people must “become managers of [their] own brand, [and] do endless self-promoting end zone dances to broadcast their own talents.” How true. Modern commercial values make it well-nigh impossible to both retain dignity and make money. Commerce forces individuals to engage in undignified behavior because commerce is inherently undignified. Commerce wants results and bottom lines, not dignity. Dignity is about means, not ends. Dignity is about lofty sentiments, principles and nobility. Yet commerce is about petty profiteering, forgettable deals and self-enrichment. In commerce, it doesn’t matter how you get there; you just need to get there. That is the opposite of dignity. A dignified person shrinks from certain “dishonorable” pathways to wealth. But a “go-getter” does not. A go-getter would blast past the hesitating man with dignity, take the job, make a fortune and live happily ever after. A lot of good dignity did the other guy: Honor and dignity don’t pay bills.

Brooks is correct in pointing out that dignity involves reticence. Commerce, however, does not like reticence. It likes loud, misleading, public and crass advertising. It likes self-promotion, boasting and ostentation. Quiet guys do not get the job or the promotion, nor do quiet guys open new accounts. In fact, quiet guys get fired. It is OK for rich guys to be “private” or “quiet” once they amass a fortune. But before that, they need to pull out all the dignity stops to get the money. In this sense, modern commercial values in America make dignity an impossible dream. Essentially, the only way to maintain dignity is to refrain from commerce altogether. Yet this is our system. Brooks laments the fact that dignity is hard to find in American life, yet obliquely recognizes that commerce makes dignity a bad business decision. If it comes between “dignified poverty” and “undignified riches,” most Americans will opt for riches, dignity be damned. That is just the way our society works.

In some sense, America’s dwindling dignity reflects its value hierarchy. Although George Washington and the Framers may have appreciated dignity for its own rewards, they did not create a government that makes dignity a prime concern. The word “dignity” appears nowhere in the Constitution. It is not a governmental value. If dignity were really a concern, the Framers could have included language that enshrined it. The Constitution has a commerce clause; but it does not have a “dignity clause.” This was a fundamental value decision. No matter how important “dignity” may have been to the Framers as individuals, they did not consider it a primary government concern. No, commerce was more important than dignity. There are no requirements that Congress enact “dignified laws,” or that the President act in a “dignified manner” or that the Supreme Court issue “dignified opinions” that respect the “dignity of American citizens.” From a constitutional perspective, dignity simply doesn’t matter. Our Framers could have made dignity a core American value, but they chose commerce instead.

In this textual light, Brooks can scarcely complain that Americans “do not practice dignity.” They are just trying to find success in a system that values commerce more than dignity. And dignity has never been—and cannot be—central to a system in which commercial gain is life’s prime motivation.

But not all societies enshrine commercial success as much as America does. Germany, for instance, makes “human dignity” government’s overriding concern. See Basic Law Article 1 § 1: “Human dignity is inviolable.” That is a profound statement. It sets a basic tone for government and for society. It announces that the State cares about dignity; it cares about the “way it does things” as much as the things it wishes to accomplish. There is no such hopeful language in the American Constitution. Rather, it merely delineates governmental powers without any support for overriding human values like dignity. True, nothing in the Constitution prevents people from embracing dignity in their lives. But there is no impulsion to embrace dignity, either. These are the values we have chosen.

Despite all this, dignity is not dead in America. While the Constitution may not reflect a formal commitment to dignity in American life, many Americans nonetheless believe that dignity is important. In this sense, Brooks is wrong to fault Americans for abandoning the “old dignity code,” if there ever were such a code in the first place. Modern-day dignity refers to the dictionary definition, not to 18th Century ideals. In other words, a modern American can be “dignified” without always being reticent or dispassionate. Americans practice dignity in the modern grammatical sense; they attempt to live their lives with some “nobility” and “self-respect.” They refrain from activity that contradicts their principles. Some Americans refuse to act in ways that lower their own sense of personal worth. Some Americans do not pursue “any means necessary” to achieve particular ends. That reflects dignity. Dignity means the strength to follow one’s own principles over crass personal gain. Some Americans do that, even if they are not always reticent or private. In short, dignity is not dead; it has simply evolved. It means something different today than it meant in 1750.

I do not think David Brooks understands this. Rather, he uses 18th Century ideals to scold modern individuals for “failing to master themselves and their passions.” He uses “dignity” as a way to express condemnation for values he does not like. In particular, he singles out Michael Jackson as a man “untouched by any pressure to live according to the rules and restraints of adulthood.” For Brooks, Michael Jackson was “undignified” because he could not act like a “regular adult” and felt no pressure to adhere to “rules and restraints” associated with “adult life.” In other words, Michael Jackson did not live like George Washington. He lived out loud, so he was not reticent. He showed his passions, so he was not dispassionate. He lived publicly, so he was not sufficiently private. Yet does this mean Michael Jackson was “undignified?” If anything, David Brooks is holding Michael Jackson to a distinct moral standard. In this sense, Brooks uses “dignity” more as a moral weapon than as a phrase to express “worth” or “self-respect.” What does “adulthood” have to do with these things? And what is adulthood, anyway? The way Brooks lives? Does this mean that we are not dignified if we do not encounter the same “rules and restraints” that Brooks encounters in his adult life?

I disagree with Brooks here on many levels, primarily because he confuses dignity with moral judgment. Michael Jackson lived an “unconventional life.” He did things many people consider “abnormal” and “strange.” Yet judging him under a “dignity standard” employs the wrong analysis. It is one thing to apply contemporary moral norms to brand “unconventional people.” But dignity implicates different values. Dignity is largely an individual matter; it is about self-respect and worth. Morality, on the other hand, is a group matter; moral condemnation reflects dominant group judgments about particular conduct and habits. In this way, Brooks confuses dignity with morality. He takes his view of personal dignity and incorporates it into a moral rule, which he then applies to judge Michael Jackson.

Brooks’ views about dignity are hopelessly inapplicable. We cannot possibly apply George Washington’s 18th Century etiquette rules in a society that has changed as much as ours has changed. And I place no intrinsic value on 18th Century values. Unlike many prominent judges, politicians and historians, I do not fetishize things simply because they were popular in the 18th Century. I do not categorically revere things because George Washington revered them. Just because George Washington chose to value something does not automatically entitle his values to respect in 21st Century life. During George Washington’s lifetime (1732-1799), for instance, English authorities disemboweled traitors (1746) (see http://www.capitalpunishmentuk.org/hdq.html), and colonial authorities publicly hanged suspected black murderers in chains until their bodies rotted away (1750). See also http://reasoncommercejustice.blogspot.com/2009/04/our-proud-colonial-traditions-what-is.html. Washington himself did not invariably express “noble” or “praiseworthy” sentiments, either. John Marshall, for example, quoted Washington as calling freed slaves “abandoned vagabonds” and “miscreants” who could not serve in the Continental Army because “[t]he rights of mankind and the freedom of America… have numbers sufficient to support them, without resorting to such wretched Assistance.” Marshall, The Life of George Washington (1804)(emphasis added) at p. 273.

In a word, Washington was no saint. And he did not live in a perfectly rarefied age, either. That is why I deeply suspect anyone who blindly assumes that “18th Century values” are somehow “superior” to modern values. Human beings will always be barbaric; but they were generally more barbaric in 1750 than they are in 2009.

Having said all this, dignity is very important to me. Yet I do not subscribe to Brooks’ definition. I do not live my life attempting to mimic 18th Century etiquettes, nor do I deify everything George Washington ever did. Rather, I believe in dignity as worth and individual self-respect. I apply the dictionary definition, not the Washingtonian one. Modern dignity lives on. Washington’s does not. And there is nothing wrong with that. We don’t disembowel people or hang executed slaves in public anymore, either. I’d say that represents an advance in our society, not a regression. Thus, I see no shame in abandoning moralistic “dignity codes” as antiquated as drawing and quartering. We can do better than that.

A LITTLE MORE TIME

This morning I got up early and put on my lawyer's costume for the first time in many months. I rode the subway down to Wall Street to interview for a consulting job. Since last summer, I have done little but write. These have been very happy days for me. But I am running out of money. With every passing month, student loan creditors and expenses gnaw mercilessly at my savings. Now I need to make a few dollars to finance myself for a while. Thankfully, I have the freedom to be selective in the work I choose. I never volunteer for "traditional employment." When I need to make money, I don't sacrifice my dignity. And I don't let anyone control me like a pawn. If my legal education got me anything, it's been the capacity to choose jobs that pay a living wage without submitting to total employer domination. It's a classic hedge.

This afternoon, my agent called and told me that the client settled the lawsuit. That means they don't need consultants anymore, at least this time. So I won't be doomed to an office for the next few weeks. That relieved me. Now I will have free mornings to write again, at least for a while. I apologize for the break today, but tomorrow I will be up and posting. Yet at some point in the coming weeks, I will be forced to suspend my everyday posting in order to make a few dollars. I will keep you updated when I know the details.

Behind every writer stands a financier. I don't have one yet; I need to be my own financier for a while longer.

I saw some interesting things in lower Manhattan. I actually walked past the 9/11 site for the first time ever, even though I have lived in New York for many years. I will go into greater detail tomorrow, but suffice it to say, the commuters didn't seem to pay attention to the fact that they were walking on historically significant ground. They didn't seem to pay attention to the gaping hole in the sky above them. No matter what Bush and the patriots said, the terrorists struck a crushing blow. The evidence was still there--in the nothingness above my head.

It was just another day at the World Trade Center site. But 8 years ago, it was a battlefield, scene of victory or a massacre, depending on your perspective. Now, it's just another place to make some money.

Until tomorrow. Thanks again for reading.

THE PARTY FOR PEOPLE WHO JUST WANT TO EAT ONCE IN A WHILE

POLITICAL PARTIES FOR A CHANGING WORLD

By : Mr. Daniel H. Esser, B.S. (Hospitality Management), Senior Spokesman and Party Coordinator; Former Dessert Buffet Manager at Jimmy’s, Atlantic City, New Jersey.

America wants change. Some Americans want to be richer than they were last year. Others want affordable health insurance. Still others want to see an end to American military involvement in Iraq. Some like the way President Obama handles the economy. Others do not. But no matter what Americans want, there are some who have simpler needs. We represent the Americans who just want to sit down and have a meal every now and then, preferably more than once per day.

We are the Party for People Who Just Want to Eat Once in a While. We represent all the Americans who like eating. To that extent, we consider ourselves a populist movement. We are not elitist. We do not want to enrich ourselves at others’ expense. We do not even seek harsh criminal penalties against people we don't like. No, our needs are simple: We just like eating. We love breakfasts, luncheons and dinners, too. We even advocate vigorous snacking. We believe that eating is an American activity because if we didn’t eat enough, we wouldn’t live to be Americans. That is why we believe that eating comes first. Foreign policy and health care can wait; we need to eat before we can handle other things.

We may have simple needs. Yet both government and private enterprise in America today make it difficult for many Americans to eat normally, if at all. Homeless people pick used food from trash containers. Employed people work through lunch breaks, starving themselves in order to avoid bosses’ wrath. And young women deliberately refuse to eat in order to maintain a certain body type. This is not good for America. Without eating, Americans cannot do anything else. As the Party for People Who Just Want to Eat Once in a While, we insist that all Americans eat. We believe in freedom, too. That means we believe that every American should not only eat regularly, but also choose what they want to eat. It is not our business whether someone wants a Filet-O-Fish® with triple tartar and a jumbo size grape soda. We believe in freedom; as long as a person eats, we have done our part.

Our critics say that we demand too little from political life. They say that we must put forward more particular plans about the economy, the stock market, the military and education. They say we cannot attract support without more cogent reasoning about health care and taxation. We disagree. We believe that we can attract sufficient popular support merely by promising meals for all. Everybody likes to eat. We are certain that more Americans think about food every day than Iraq. We are dedicated to eating. We have made eating our number one priority in American political life. We do not demand too little; to the contrary, we demand just enough to fill our stomachs. And with full stomachs, anything is possible. In response to our critics, we suggest that they might achieve more success if they thought about food first rather than mysterious issues like foreign policy. No one can focus without a good meal. That is why we focus on the meal, not the complicated things we plan to do after we eat.

To be sure, we have definite plans about health care, Iraq, the economy, the employment market, taxation, education and the Judiciary. But it makes no sense to address our plans until we solve America’s foremost problem: Getting food. Why discuss economic recovery before every American has lunch? We would much rather see every American heartily fed before submerging ourselves in complicated economic discussions. We would much rather see every American with a sausage-and-mayo hero in hand before talking about health care. And we would much rather ensure that every American enjoys a steak dinner before venturing into foreign policy. In sum, we cannot make intelligent policy choices without first making sure that everyone is eating properly. As the Party for People Who Just Want to Eat Once in a While, we recognize that a good meal goes a long way.

We need to get back to basics in America. For too long, Republicans and Democrats have caustically debated political issues in Washington without ensuring that people are eating. In fact, most Washington politicians have no idea how few Americans enjoy meals every day. Washington politicians can sit comfortably and debate energy bills because they get regular breakfasts, lunches and dinners. Yet they are blind to the millions of Americans who scurry from sandwich shops to their jobs without really eating. They are blind to the millions of Americans who never get a chance to eat a decent breakfast. While Washington politicians relish eggs Benedict, pumpernickel bread slices and fresh oatmeal every morning, they are oblivious to the millions of Americans who forgo breakfast completely.

We believe this must change. Every American has a right to eat, and that includes breakfast. We all should eat eggs Benedict and pumpernickel slices, not just our representatives in Washington. Who can debate that food makes us happy? When we eat, we feel better. It gives us energy to get things done. We feel confident. And when Americans are confident, they can do anything. If food makes Americans confident, why do the Republicans and Democrats ignore it? In our view, food is everything. That is why we advocate making food the center of political life in America. We want every American to eat whatever he wants once in a while. We want Americans to eat pizza if that makes them happy. We want them to eat donuts and cheese fries if that gets them through the day. Because when Americans eat well, their spirits rise. And nothing can stop a well-fed, spirited American.

If you believe in change, you will support our cause. You like food, don’t you? You like chili dogs, popcorn and fried fish, don’t you? I'll bet you like stuffed-crust pizza, don't you? How about double-decker burgers and bacon club sandwiches? You like ravioli, lasagna and Cobb salads, right? When you eat regularly, you feel good, don’t you? Of course you do. Support us, The Party for People Who Just Want to Eat Once in a While. With us, you will eat what you want when you want. We will restore food-based patriotism to America. We will make Americans proud to eat again. No more will we shy away from croissants and butter rolls. Soon, we will eat pastries every day. And with satisfied stomachs, we will step up to accomplish all of our goals. Every American will feel proud to live under a government that puts American stomachs ahead of all other concerns. We can solve any problem. But first we must make sure we’ve all had enough to eat.

It’s time for change. It’s time to eat. The days of rushed lunch breaks and forgotten dinners are over. Vote for the Party for People Who Just Want to Eat Once in a While. With us, you will never go hungry again. You will never skip a meal. You will never feel too stressed to have some cereal or bake a cake. No matter what the Democrats and Republicans say, nothing is more important than food. And when you’ve had enough to eat, there’s nothing you can’t do.

THE LAW IS NOT AS HONEST AS YOU MIGHT THINK : LEGAL FICTIONS AND INTENT

AN ESSAY

I always knew that the law was imperfect. Even before law school, I harbored skepticism for legal process. Intuitively, I knew that human law did not aim for justice; rather, it aimed merely to provide order and to confound its listeners. Yesterday, I used satire to illustrate the law’s capacity to confound. Franz Kafka routinely alluded to the law’s obscurity in his short stories and novels, including The Trial, The Metamorphosis, Before the Law and In The Penal Colony. In fact, “legal characters” in those stories—whether executioners, judges or lawyers—speak an elusive language that their listeners can barely grasp. In the Penal Colony story, an executioner speaks only in French, while the condemned man stands there utterly oblivious to his impending doom.

When Kafka’s characters hear legal discourse, they fall into confusion. They know their lives and fortunes are at stake, yet they cannot figure out what the lawyers are talking about. It is oddly similar to the way Old Testament characters feel when attempting to figure out God’s plans. See, e.g., Job. For both Kafka and the Talmud, there is some knowledge inaccessible to the human mind. In Kafka’s world, the law represents “inaccessible knowledge.” It operates on a higher plane, somewhere beyond human understanding. It is powerful. It holds its subjects in its grasp. Yet it is incomprehensible, just like God’s will.

But the law is not God. It is a human invention. True, it confounds. It is hard to understand; in many cases it is maddeningly counterintuitive. Yet it can be understood. And in my experience, the more I understand the law, the more I see that it proceeds on hypocritical premises. It really has no abstract claim on right or justice, yet it aims to convince people that it does. With its perplexing rules, arcane exceptions and double-speaking rhetoric, the law ensures orderly property transfers and criminal punishment for “undesirable behavior.” These things do not come from God; they are men’s concerns. They affect men’s bodies and possessions. Most legal subject matter is not ethereal or majestic. Quite the contrary, it is yawningly banal.

It is not even completely honest. When I studied law, I marveled when I encountered situations in which the law simply “makes things up” to arrive at particular results. The law professes respect for “truth” and the “way things actually happen.” Yet in both practice and theory, the law sacrifices these things for administrative convenience. Judges call these embarrassing shortcuts “legal fictions.” They allow the law to segue effortlessly between practical reality and an artificial legal overlay. After all, legal results are not the same as actual results. It is one thing to say John killed Bill; that is “practical reality.” But it is something else entirely to say that John murdered Bill. Murder is a legal conclusion. It may or may not reflect “actual reality.” Instead, only a judge or jury—viewing the facts long after they happened—can decide whether to make the conclusion: “This is murder.” Murder does not really exist; rather, it is merely a judgment applied to past actions after the event. And the law manufactures fictions to help these post hoc judgments along, whether or not they conform with “actual reality.”

Intent is essential to many legal judgments. In criminal law, the word “intent” appears in virtually every case. Why? Simple: Because crimes are essentially written recipes. Legislatures concoct “crime recipes” that define behavior that they do not like. They then compile all their “recipes” in a book called the “criminal code” and let the Judiciary determine whether particular human behavior fits the “recipes” they wrote down. For example, the legislature may define the “murder recipe” as follows: “Murder is the intentional killing of one human being by another.” What is the recipe, then? Well, you need several ingredients. First, you need two people: one killer and one victim. The killer has to do something, namely, kill the victim somehow. The victim has to die as a result of the killer’s action. More importantly, at the time the killer kills, he must intend to kill the victim. That is a “mental requirement.”

This all sounds simple. But how does a “factfinder” decide—long after the event—whether a particular person “intended” to kill another? After all, intent is internal. We never know what other people “intend” at particular moments. That is a great mystery in life. Even if a person says what he wants to do, he might actually want something else. Lying aside, intent means a person’s subjective preconception concerning the future results of his conduct. Intent refers to what the individual thinks or expects will happen when he acts a certain way. Intent refers to expected results. In short, it is exquisitely individual; and it is virtually impossible to prove. When someone gets killed, for example, the killer may have expected something quite different than the other person’s death. He might have only intended to run a stoplight, or even just play a joke that went horribly wrong. He may have intended only to hurt the other person. Whatever his “expectation” may have been, it certainly was not to extinguish the victim’s life.

But this does not suit the law. After all, an orderly society cannot tolerate killings, nor can an orderly society cannot allow killers to merely say they “didn’t mean it” to escape the law’s wrath. Still, how does the law get around the philosophical difficulty surrounding intent? If the murder recipe requires intent, it must mean the law must prove the killer actually expected to kill the victim through his action, right?

No. In these circumstances, the law resorts to legal fictions. It does not have to prove actual intent. It must only prove legal intent. Legal intent means “intent sufficient to meet the technical definition of ‘intent’ in the murder recipe.” At common law, English courts called this “legal intent” “malice aforethought.” They could have called it anything, really. They could have called it “malice on Wednesday” and apply it every day. The name is irrelevant. But from a practical standpoint, it allowed the law to prove “intent” without proving what actually existed in the killer’s mind. How did it do this? It merely decided for itself what “malice aforethought” means. The law said it could mean “intentionally killing,” “killing with an ‘abandoned and malignant heart,’” “killing as a result of a felony” or “killing with premeditation.” It did not matter whether the killer actually expected these results to follow. It was solely the court’s decision whether to shoehorn his behavior into one of its pre-made categories.

Philosophically speaking, this is pure fantasy. Consider especially the “killing as a result of a felony” category. Under this fiction, the law declares people “murderers” who cause death by participating in a felony of any kind. This means that a robber becomes a “murderer” if the robbery gives the victim a heart attack. The law says: “The felony resulted in the victim’s death. That means the robber had malice aforethought. A man who causes death with malice aforethought fits the ‘murder’ recipe. Thus, the man is a murderer.” This is so even if the man—as a philosophical matter, did not expect to kill anyone by his conduct. He may even have intended something totally different. The law takes this fiction to absurd lengths. Courts have found men guilty of murder who sat in a getaway car while their accomplices robbed a store in which someone died. According to the law’s logical gymnastics, the getaway driver “participated” in the felony, and that “participation” resulted—however remotely—to the death in the store. His “actual intent” means absolutely nothing in this warped analysis. If it did, the law would never convict anyone. Intent is “too difficult” as a philosophical matter. So it settles for fictions and administrative convenience, smug in its belief that no one can really challenge its authority.

In my view, this is pure dishonesty. It does matter whether someone actually intended to cause harm in a murder prosecution. When the law labels someone a “murderer,” it affixes a crippling moral badge. As a society, we condemn people who make “harmful decisions” calculated to injure others. We condemn them more if they actually want to end another person’s life, then do it. In this traditional sense, “murderers” are people who truly want to kill their victims and carry out their desire with violent action. They deserve condemnation because they had bad intentions and acted upon them. Yet we do not as forcefully condemn criminals who do not actually kill their victims, like the getaway car driver or even the robber who had no intent to kill anyone. When the law foists “intent to kill” on these people—even when they actually intended something completely different—the law commits dishonesty. It is no excuse to say that it is “too difficult” to prove what exists in another man’s mind. It is possible to prove what a man intended using circumstantial evidence, even if he insists he intended something else. Neutral witnesses can say they saw the defendant screaming at the victim and waving a broken beer bottle at him before slashing his throat. That proves intent to kill even if the defendant says otherwise. But proving a man intended only to drive a getaway car from a robbery does not make him a “murderer.” It is facetious to say otherwise.

In short, legal fictions make the law look ridiculous. And when the law is verifiably ridiculous in one area, it loses credibility in others. Nonetheless, many scholars—and many jurists—see no problem with legal fictions. After all, according to these apologists, how else are we supposed to prosecute criminals for antisocial behavior? The apologists argue that society has a right to prosecute harmful and dangerous conduct, even if the defendant did not really intend to hurt anyone. They say: “If we had to actually prove intent, these bad men would walk the streets.” But what good does it do to prosecute people using philosophically false concepts? No one likes antisocial behavior and violence, but it is pure sophistry to argue that a getaway driver “intended” to kill someone in a store when all he really wanted to do was drive a car away from the store. From both a grammatical and logical standpoint, the getaway driver did not “intend” to kill anyone. Yet the law says he did. Is this not madness? Still, very few people question this result, because no one wants to defend a criminal. This is unfortunate, if for no other reason than the law—which should aspire to something higher than mere administrative convenience—shamelessly cuts logical corners for shortsighted results. In my view, this tarnishes the law’s reputation because it shows its willingness to bend the truth for convenience.

Law cannot take the moral high ground if it cuts corners. It cannot simultaneously insist on truth and justice while resorting to absurd logical gymnastics to manufacture convictions. I reject the argument that getaway drivers can be transformed into “murderers” because the “murder definition” is “traditional.” We should not follow bad rules because previous generations were too stupid or too cowardly to revise them. Tradition does not magically transform every practice into a indispensable fixture in our lives. Put simply, traditional “murder definitions” are just silly. Convicting people under these definitions cuts against reality. When the law does this, it darkens its own name. The law should stand for logic, consistency and conscientious adherence to genuine evidence, not perplexing rules that yield counterintuitive results. People want the law to be good. But it cannot really be good if it brands getaway drivers “murderers” as readily as it does serial killers. In a word, when legal fictions obscure practical reality, there is no reason why the public should respect the law. It is just being dishonest with us. And dishonesty does not deserve respect.

LEGAL LANGUAGE IS BETTER THAN ENGLISH, PURSUANT TO LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY THEREOF

By : Mr. Cornelius J. Stumme, Esq., Attorney-at-Law; Senior Partner, Stumme, Barking, Speaker & Husstel, a Law Firm Specializing in Appellate Advocacy & Trial Practice on behalf of the Energy Industry; Winner, American Bar Association’s 2001 Linguistic Precision Award (LPA); Published Speechwriter; Author, Write Thee Not for Understanding (Doubleday Publishers : New York 2005); Charter Member, American Lawyers for Professionalism Through Inaccessibility and Confounding Language.

Too many lawyers today disparage legalese. In law school, young attorneys learn to avoid “old-sounding” legal language because it sounds “confusing” and it is “hard to read.” Instead, their writing teachers instruct them to write staccato, informative sentences that read like newspaper headlines. Put briefly, lawyers today learn to write clearly. They want their readers to understand what they say the first time they read it.

This is disgraceful. Clarity in writing and speech contravenes the traditions of our profession. For centuries, lawyers gained a reputation for bewildering language that no one could truly understand except other lawyers and judges. And that was precisely the point: By learning legal language, lawyers separated themselves from the masses. Lawyers held an exalted station in society because they knew something no one else could learn without specialized training. Because only lawyers knew the language, they could rightfully advertise a “special skill” that others needed. But now, lawyers learn to speak the same way everyone else does. They learn to write for understanding, not obfuscation. This besmirches lawyers’ status. We should be different from laymen because we are smarter. And our language defines us. An attack on our language represents an attack on our very spirit.

Despite the trend favoring “clear language” in law practice, I continue to speak legalese. Moreover, I encourage all my colleagues to revitalize their respect for our linguistic traditions. I teach courses reminding lawyers that legalese makes us special. I encourage them to take pride in legalese. In short, legalese may be a dying art, but I am doing all I can to revive it every day. If I have anything to say about it, every lawyer will soon gladly use these words: “It being mutually agreed herewith, pursuant to notice and subject to all applicable legal limitations, qualifications, definitions and distinctions appurtenant thereon, that this certain Tract, located in and for the County of New York, by, through, by the grace of and under the legal auspices of the State of New York (an independent sovereignty constituted on the Continent of North America, having lawfully descended from the Crown of England, by the Grace of Majesty) commonly and colloquially known as 43 Bleecker Street, notwithstanding any vulgarities varying the same (hereinafter known as “The Plot”), shall henceforth, forever and always be subject to the Management, Control, Maintenance and skillful care of those Artisans, resident in and for aforesaid County and State of New York, known by Virtue of, and pursuant to the New York General Corporations Law, as Rosenberg Realty, Inc., except to such extent as the same would violate any Law, Ordinance, Judicial Decree, common law holding, cease and desist order, injunction—whether equitable or constructive, the constitutionality whereof notwithstanding, reliance whereon is hereby disclaimed for all time, indemnity wherefor is hereby demanded, including costs—or police quarantine, unless the Chief Operating Officer of aforesaid Rosenberg Realty, Inc. be not named Richard Rosenberg, in which case Plot shall never be subject the Management, Control, Maintenance and skillful care of such Artisans as mentioned herein; provided in all events it is not Good Friday.”

These words define us as lawyers. People pay us to write these words because they cannot. Anyone can say: “Rosenberg Realty will now manage 43 Bleecker Street.” But who can write it legally? Only we can. Did we go to law school to write and speak like everyone else? Certainly not. We went to law school—and we charge $575 an hour for it—because we know special words that other people do not know. And they need us to read, write and speak those special words in order to save their property.

We should be proud of our language. We should not be ashamed. Who cares what some intellectual thinks about “clarity in writing?” The law is not about clarity; the law is about special words. The law is not about equal access; the law is a brotherhood. We refuse to surrender our language to some left-wing crusade for accessibility and comprehensibility. After all, who would need a lawyer if they did not need to know what “notwithstanding aforesaid” means? Who would need a lawyer if they did not receive a letter threatening “equitable, as opposed to constructive, condemnation pursuant to General Statute § 346-1(a)(4) (West 2009)?” We have families to feed. And we can only feed them when legal language remains inaccessible.

Legalese not only provides us the means to support ourselves. It is also our lineage. In centuries past, lawyers enjoyed a high social reputation. Laymen respected lawyers because they spoke a mystical language they could scarcely understand. They identified lawyers’ language with learning, study and education. In the layman’s mind, legalese represented an academic achievement that demanded respect. Laymen might have ridiculed us for our language, but they never said we were not smart because we spoke it. In centuries past, we were not afraid to say “pursuant,” “notwithstanding,” “beyond cavil,” “thereunto,” “ultra vires non potest,” “waiver whereof” or “instant disclaimer excepted.” Our words dazzled laymen, leaving them both strangely impressed and utterly confused. They paid us well to dazzle others with our language. They did not expect us to speak clearly. No, they expected magic spells, not common words. Historically speaking, our profession gained prestige from its inaccessible language. When we sacrifice it, we sacrifice the very thing that makes us better than everybody else.

I refuse to give up legalese because it is better than English. I believe in legalese. I do not need to be clear because I do not need to be. In fact, I would be unprofessional if a layman could understand everything I say. When I appear in court, my clients expect me to say things that they cannot say. I do not say: “Your Honor, this is a Motion to Dismiss the other side’s lawsuit.” Anyone could say that. So I say: “Gracious and humble arbiter, appointed to this tribunal by those certain Executive authorities constituted rightfully under those founding documents central to our government, I appear herein to present my client’s contention that all pleadings in this matter made against his interest, even if believed true, exception whereto is hereby vigorously made, state no cause, either in law or fact, in ethics or law, or in common decency or decorum. This being so, I humbly move this Honorable Court, pursuant to law, the Rules of Civil Procedure, the Rules of the Supreme Court, any book, paper or pamphlet, and any or all authorities relevant to the disposition hereof, to fully and forevermore dismiss all claim against this, my client in interest.” My client expects nothing less. Why would he pay me $575 per hour to say something that is self-evident? No, he wants language that sounds perplexing. He wants language that only a professional can understand. That is what I deliver. I do not communicate. I obfuscate and bewilder. And I win with my language.

I believe in legalese so much that I use it in everyday life. I am a first and foremost a lawyer. I am a human being second. To that extent, I am proud to use a lawyer’s language to express even the most rudimentary information and to ask the most basic questions. If I did not, I would lose my identity as a lawyer. I worked too hard for that to happen. In that light, I do not use banal English; I use legalese. When ordering a sandwich at a fast food restaurant, I do not say: “Gimme a Big Mac® with cheese and onions, plus fries and a small drink.” Rather, I say: “I, Mr. Cornelius J. Stumme, Esq. (hereinafter known as “Buyer”), doth hereby present, tender and extend this Offer to Purchase (the “Offer”) to McDonald’s Restaurants, Inc. (an Illinois Corporation)(hereinafter known as “Seller”), acting by and through its duly-authorized agents, assigns, employees, attorneys and contractors, be they authorized by law or custom, or clothed therewith by fact: (1) One (1) Big Mac® sandwich, bearing therewith all Warranties of Fitness for a Particular Purpose, Merchantability and Title, permission to disclaim wherefrom is hereby expressly refused, applicability whereof is expressly made conditional for Acceptance; (2) One (1) twelve (12) ounce package of ‘French Fried’ curly potatoes, bearing therewith all Warranties of Fitness for a Particular Purpose, Merchantability and Title, permission to disclaim wherefrom is hereby expressly refused, applicability whereof is expressly made conditional for Acceptance; and (3) One (1) sixteen (16) ounce cup wherein may be poured, at Buyer’s sole and unreviewable discretion, any “Soft Drink” as may be offered by Seller upon the Premises whereupon this certain Sale Contract be concluded, pursuant to law and notwithstanding any contrary considerations, including any judicial determination in Seller’s favor. Acceptance of aforesaid Offer be made expressly conditional on full and final acquiescence to Buyer’s precise terms. Inclusion of varied, different or additional terms by Seller—for any reason and under any circumstances, whether innocent, negligent, intentional, reckless or simply stupid—shall immediately revoke Offer in toto, without recourse to legal remedy whatsoever. But Seller’s error, negligence or breach shall in no wise revoke Buyer’s right to pursue all legal remedies against Seller, whether in tort or contract, or under any applicable statute, State or Federal, including, but not limited to: compensatory damages; exemplary damages; loss of profits damages; pain and suffering damages; treble damages; or punitive damages without limitation whatsoever, the United States Constitution and common decency, humanity, good faith, dignity or shame notwithstanding.”

I like the way I speak. It makes me different. I do not speak like a commoner. I speak in the language of my legal ancestors. I owe it to myself and to my clients. For me, law is a way of life. It is not just a job. It provides an alternate way to express thoughts and to control reality. I resist all efforts to make me speak like my clients. If lawyers start speaking like everyone else, they cease to be lawyers. As lawyers, we must defend our heritage. That means defending—and proudly using—our language. No more will we say: “Honey, please pass me the salt.” From now on, we will only say: “I, Cornelis J. Stumme, Esq. (hereinafter known in this context as “Martial Promisor,” or “Husband”), being fully and validly licensed as a practicing Member of the Bar of the State of New York, and having laid forth legally-sufficient evidence of that certain good Character & Fitness necessary to practice law before the Courts of said State, the truth of the matter notwithstanding, doth hereby present this Request to Marital Promisee (also known as “Wife”), who, having assumed contractual obligations to render domestic, conjugal and household services to Marital Promisor for good consideration, including the provision of certain tableside services (see Stumme v. Stumme, 546 D.S.C. 421, 431 (2008)(“tableside services” include the passing of salt from Marital Promisee to Marital Promisor under any circumstances, on demand or at a definite time) to pass one (1) six (6) ounce salt shaker to Marital Promisor immediately, and without delay, subject to all sanctions for lateness, disobedience or nonperformance as provided in the Master Marital Contract (MMC), Section 56 (see, e.g., Flogging), appeal wherefrom is hereby disallowed.”

If people do not like our language, to hell with them. Our language pays our bills and makes us different. No matter what the public or the law professors say, we will not abandon legalese. We do not want to communicate clearly. We want to keep our traditions alive. If people want to understand us, they can learn our language. We refuse to speak English any longer. From now on, we will speak only legalese. And we will speak it proudly—pursuant to notice, subject to law and notwithstanding any contention, request or demand to the contrary, exception to which is hereby taken, all rights having been reserved; but under no circumstances shall such statement be construed as a waiver.

DELINQUENCY : A POWERFUL WORD

AN ESSAY

Power interests me because it pervades our lives. In many cases, we do not even perceive oppressive power relationships because they are everywhere. We accustom ourselves to them. We subject ourselves to them, even unconsciously. Most conspicuously, we live under certain public powers. There is overt public power, as when government cracks down on protests or visibly executes a condemned man. There is also subtle public power, as when tax collectors privately pursue individuals who do not have money to pay their tax bill. Government holds its power over us by threatening legal compulsion: Either we obey rules or it inflicts pain on our bodies and property. This is how public power operates.

But all exercises in public power pale in comparison to the ingenious methods designed to serve private power. As pervasive as government power may be, it still knows boundaries. Despite some glaring exceptions throughout our history, government must always act according to some legal authority that derives from a written, public source. Furthermore, government agents must abide by certain constitutional restrictions when impacting citizens’ bodies, liberty and property. These constitutional restrictions incidentally enforce “governmental decency” on State actors. In short, there are certain things that government simply cannot do. Not so with private actors.

Private power is far more pervasive than public power. The law cannot be everywhere all the time. In fact, the Constitution expressly and impliedly keeps government out of certain spaces and decisions. See, e.g., U.S. Const., Amendments III (no soldiers in private homes), IV (no unreasonable searches or seizures), V (no compelled self-incrimination or land seizures without just compensation), IX (unenumerated rights), XIV ("Due Process liberty," including freedom from "arbitrary government action"). The Constitution also prohibits government from directly regulating men’s minds, thoughts, opinions, beliefs or conscience. See, e.g., U.S. Const. Amendment I. But private power knows no such restrictions. It can freely enter men’s homes, appeal to their conscience and affect their decisions, no matter how intimate. While private power does not always carry legal force, it can deploy the law when it must. It is no exaggeration to say that the law serves private power, not the other way around.

What is private power? Power itself is a nebulous concept. Generally, it refers to one man’s or group’s authority over another man or another group. This, in turn, does not necessarily mean legal authority. It is much broader than that. Power includes the power to impinge on a person’s conscience, to make him feel guilty, to make him change his behavior or to make him feel obligated in any sense. In essence, power subjects: It impresses the object with a sense of “smallness” compared to the person who applies the power. It enforces obedience, as the employer cows the employee. Power is multifaceted. It appears in every context. But there is one prominent commonality in all this variety: Power always involves inequality. Without inequality in advantage, wealth, money or even sexual appeal, power could not break its objects into submission. When it comes to power, there are strong parties and weak parties. The weak party needs something the strong party has. As such, he must modify his behavior to adhere to the strong party’s requirements.

Yet power operates in far subtler ways than naked oppression. After all, if power is too oppressive, its subjects revolt, just as a dog will abandon its master if he is too heavy-handed. Power does not just dominate in a petty or brutish way; it also pervades lives. Consider the employee who awakes every morning knowing that he must appear at his job. Power pervades his life; he needs the paycheck to feed himself and his family. He does not question how he gets it; he surrenders to power and follows its commands. It is unconscious. He does not revolt against it; it is not petty. Power might inspire resentment, but not enough to make him question its basic authority. Resentment or not, power pervades his life and channels his decisions. Or consider the debtor who struggles to pay back his creditor. He lives his economic life knowing that he must fork over a good amount of his earnings to a stronger party who can hurt him if he does not. Power overshadows the debtor’s life as it did the employee’s. It constrains his thoughts and actions. It makes decisions for him. It impacts his freedom. It weakens his will. It subjects him to a “more powerful” decisionmaker. Why? Because he needed something he did not have before. To get it, he surrenders to private power. He pays as much with his soul as he does with his money.

Debt interests me for the same reason that power does. After all, debt relationships express power. Debt is incident to power. If power expresses a relationship between strong and weak parties that includes subtle mental controls, debt is a perfect example. Creditors are strong; they have something the debtor needs. Debtors, by contrast, are weak. They surrender both their souls and their money to get what the creditor has. Even if the debtor takes something worth comparatively little, the creditor relishes his power over the debtor by demanding far more in return. For example, creditors might loan $25,000 to a debtor. In return, the debtor must pay back $37,500 in two years. If he does not, the creditors have a legal right to seize anything the debtor owns to make good the debt. If the debtor succeeds in paying back the creditor, he gets nothing; he merely eludes the pain the creditor might have inflicted had he defaulted. And he actually enriches the creditor in the process. For creditors, it is a win-win situation: If they do not make a profit on the debtor, they can take what they want from him. If they do make a profit, well, who can argue with success? Yet the debtor lives under pressure. He either must enrich the creditor or lose everything. In this sense, we see classic inequality at work: Debtors and creditors face unequal burdens and owe unequal obligations to each other. And only the debtor lives in fear of legal compulsion. The creditor is the one with the real power—the power to force another to give him something or suffer for failing to deliver.

How does power describe its subjects? Language expresses power in an extremely subtle way, for only the powerful have the authority to choose prevailing words. They have the authority to label their subjects with concepts and epithets. They have the authority to channel both meaning and morality against those who defy them. On this point, consider the word creditors use to describe debtors who neglect their obligations: Delinquents. Creditors use the word in a very matter-of-fact way. They send a letter: “The balance due on this account is now delinquent.” The debtor feels morally bad about this result. He feels scolded. And he knows that the creditor now has power to do even more harm. Power functions best when it constrains its subjects’ minds with guilt, shame and obligation. Power uses the word “delinquent” to evoke these negative moral feelings in the “bad” debtor.

But why exactly “delinquent?” What does “delinquency” have to do with repaying money used for some forgotten commercial purchase? After all, etymologically speaking, “delinquency” delivers a strong moral rebuke. According to Webster’s New World College Dictionary (4th Ed.), “delinquency” stems from the Latin word “delinquentia,” meaning “to leave undone or to commit a fault.” True, the concept involves “leaving something off” or “omitting to do something.” But it also includes a strong moral element. It does not just mean neglect; it means neglect that makes the person morally blameworthy. The definitions bear out this interpretation. “Delinquency,” according to Webster, means not just “1. failure or neglect to do what the law or duty requires,” but also “3. a fault or misdeed.” More to the point, “delinquency” broadly refers to “thorough badness” or even “outlawry,” as we hear in terms such as “perpetual delinquent” or “juvenile delinquent.” Referring to this definition, Webster says that “delinquency” can also mean “behavior…that is antisocial or in violation of the law.” Id. at Definition 4.

In this grammatical light, we see that a “delinquent” is unsalvageable. When we label someone a “delinquent,” we condemn in strong moral terms. A “delinquent” is not just someone who forgets to pay something once in a while. He is a brigand, an outlaw, an irretrievable criminal. He is not just a person who forgets to send in a check for $45.12 every month; he is by nature “antisocial,” commits “faults or misdeeds” and invariably acts “in violation of the law.”

Power consciously controls language in these circumstances. It consciously chooses the word “delinquency” to apply to debt because it wants debtors to feel bad about neglecting their obligations to their superiors. But does failing to pay a bill really render the debtor an “outlaw?” Isn’t this going a bit too far? We all neglect things from time to time. Life submerges us with picayune tasks every day. It is understandable that we might pass one over now and then. From power’s perspective, it is all right to pass over some tasks, but not tasks in which power has an interest, such as a loan payment. You are not an outlaw if you forget to pick up your daughter at school one day, but you are an outlaw if you miss your car payment. Power wants debtors to feel bad about neglecting particular obligations, not all obligations. Specifically, power appeals to the debtor’s conscience when it stands to gain from the debtor. Thus, power cares only for itself; it uses morality and language to enforce obligations that provide benefit. In the abstract, it does not care about “obligation.” It cares only about obligations from which it can derive personal enrichment.

I do not like this at all. We all have a right to use language to express ourselves. No one has authority to selectively alter a word’s meaning to assert his own material dominance over another person. Yet this is precisely what private power does with the word “delinquency;” and no one really seems to notice. Private power has hijacked this word in order to crush its subjects into moral dejection. Why? Because it knows that morally guilty and shameful people are more likely to be obedient and to hand over what it wants. Although morality has very little to do with private commercial dealing, private power injects morality into commercial dealing because it provides additional assurance that it will make a profit. In a strange way, too, it uses morality to remind its subjects who is boss. After all, bosses don’t feel guilt or shame; they are the ones who inflict those feelings on their underlings. Guilt and shame—along with all moral feelings—flow downward. People feel guilty and shameful when they fail to adhere to a standard imposed from above. There is nothing "above" power; power is “the above.” Only those under power can feel guilt and shame. And they are effective weapons to compel allegiance.

Private power is “above” us everywhere. When we actually feel morally bad when we receive “delinquency” letters, we know we’re subjects. Unlike public power, private power does not just impact our bodies and property. It also impacts our deepest moral feelings. That is real, abiding power. That is the kind of power against which revolt is impossible. By comparison, public power and the law are clumsy, imperfect weapons. Private power, on the other hand, is so pervasive and so subtle that is virtually invisible. It influences minds and emotions, not just pocketbooks. And private power prefers it that way: Private. Why attract attention when you don’t need to?

VIVE LA FRANCE!

OESTERHOUDT STRIKES

I am in a rush this morning. But I have enough time to say that I do not like the television show "NYC Prep." It is about six ultra-rich white Upper East Side prep school students who talk incessantly about clothes, advantages and money. They cannot reveal their names or their parents' names for fear that they might be abducted. It is as if they know that their wealth and lifestyles immediately inspire resentment in viewers.

Wealth divides Americans as much as it divides citizens in any other civilization. While we can talk about theoretical inequality all day, it is something else to see the way really privileged people live. It evokes true populist nausea. Most people struggle from paycheck to paycheck their whole lives. They never seem to get anywhere. Their parents had nothing to give and they didn't know anyone who could get them a job that actually could lead someplace. Yet the children on NYC Prep worry about whether they will receive a Mercedes or BMW on their 16th Birthday. How could a wage-earner or debtor not feel outrage when they hear about such blatant excesses?

As I watched these children move through luxurious apartments laughing, texting and planning European excursions, I thought to myself: "This is the kind of stuff that started the French Revolution." And my thoughts led me further: "Wouldn't it be satisfying to guillotine these little assholes along with their absurdly wealthy parents?" That would finally put some fear in them, wouldn't it?

Class inequality starts trouble when enough people realize how bad it really is. Class inequality touches both an emotional and a philosophical nerve. In America, wealthy people do a good job concealing their lives and lifestyles from public scrutiny. But when they come to light, outrage is swift and almost bloodthirsty. Human beings have an innate intuition about fairness. When they see some people with everything, while they struggle for nothing, they cannot help feeling that unfairness is afoot. When these emotions reach a critical mass, revolutions happen. Anger about unfairness topples governments. That's what happened in France in 1789. That was a bad year to be rich.

Revolutions excite me. I love studying them because I love reading about times during which old orders break down and the law fails. In pre-Revolutionary France, for instance, the law supported the wealthy. By law, they maintained their status, property and unequal privileges. But that did not give them right. In fact, the people smashed the law and killed those who violated right. The same thing happened in Russia in 1917. Revolutions obliterate unfair legal systems and the unequal social structures they support. Yet in both France and Russia, there was a spark that ignited smoldering resentments. Both France and Russia experienced international turmoil prior to their revolutions that weakened the law's grip. Thus, a historical pattern emerges: Revolutions happen when two things are present: (1) Massive popular resentment caused by social inequality and wealth disparity; and (2) A destabilizing event at home or abroad that compromises the law's power to restrain dissent.

In America, we have not fulfilled either prerequisite for revolution. While there is enormous social inequality and wealth disparity in America, there is a substantial counterbalance. Namely, there are millions of middle-class people who are sufficiently content with their economic lot that they are not prepared to risk comfort for something better. Additionally, America has never faced the kind of truly devastating "destabilizing event" that weakens faith in government altogether. America has not faced crippling wars in which millions of civilians die. Nor has its currency ever gone worthless, as it did in Germany in the 1920s. Put simply, America is quite stable. And that stability enables the law to control resentment engendered by social inequality. Unfairness, in other words, can survive in peaceful times when enough people really don't give a damn. This is the case in America today.

But resentment lives. You can feel it the minute you tune into NYC Prep and wonder how it is possible that some people have it so easy. And you'll have to forgive yourself for your intuitive desire to dethrone these modern-day nobles. Revolution or not, we can still dream about how gratifying it would be to humble these petulant bon vivants. After all, it's in our nature to recoil from intuitive unfairness.