Defending Capitalism against Ayn Rand

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The titles that Ayn Rand assigned to the three parts of Atlas Shrugged proclaim her insistence that logical contradictions cannot exist in reality. By contrast, the title of the magnum opus of the ultimate charlatan in Atlas Shrugged, Simon Pritchett, is The Metaphysical Contradictions of the Universe. Francisco d’Anconia and Hugh Akston explain to Dagny Taggart that whenever someone thinks he has encountered a contradiction, he must check his premises, and he will find that one of them is wrong (I.9, 7, 10).1

In this essay, I will follow d’Anconia’s and Akston’s advice. I will show that a fundamental contradiction pervades Atlas Shrugged because Rand failed to check her premises. She thought that the heroes she created were exemplars of pure, uncorrupted capitalism. In fact, the heroes she created in Atlas Shrugged came from her sense of life, which was not only un-capitalist but anti-capitalist. I will also show that this contradiction is extremely fortunate because it illuminates why capitalism is the most efficient and humane economic system ever implemented.

Rand often emphasized the importance of a person’s “sense of life” and of art as its expression (e.g., Rand 1975: 31, 33, 44). She defined her sense of life and its artistic expression most clearly in an essay she wrote on Victor Hugo (1975: 153–61). In it she said, “Victor Hugo is the greatest novelist in world literature” because his characters are “a race of giants,” who are not concerned with “penny ante.” “‘Grandeur’ is the one word that names the leitmotif . . . of all of Hugo’s novels — and of his sense of life.”

The heroes Rand created in Atlas Shrugged came from her sense of life, which was not only un-capitalist but anti-capitalist.

In Atlas Shrugged, Rand created heroes who embodied her sense of life and described how such heroes would fulfill their heroic natures if they engaged in economic activities. She thought that the sum of their economic activities and interactions provides a template of what laissez-faire capitalism would be like. She was wrong. When the heroes who embody her sense of life engage in economic activities, they function like Communist administrators, not capitalist businessmen.2

To paraphrase Rand, “Grandeur is the one word that names” the sense of life of Communist economies. They had no concern with anything “penny ante.” In the 1980s, when the economy of the Soviet Union was disintegrating, it was producing between 1.5 and two times more steel and cement than the United States and generating more electricity; it also had 2.5 times more machine tools. However, buttons, clothespins, babies’ pacifiers, and thermometers were always extremely difficult to find in the Soviet Union (Shmelev and Popov 1989: 82, 132, 144). Toilet paper and toilet seats were such rare and precious commodities that when McDonald’s opened a restaurant in Moscow, in 1990, its employees had to guard its restrooms to prevent customers stealing toilet paper and toilet seats (Goldman 1991: 166). The Soviet Union’s heroic economy also did not provide contraceptives or a single practical guide to contraception. As a result, Soviet women averaged at least four legal abortions during their lives; and the average was higher in the non-Muslim regions of the Soviet Union. In addition, large numbers of illegal abortions were performed. Anesthetics could be obtained only by a large bribe (Feshbach and Friendly 1992: 208–9).

In Rand’s novel The Fountainhead, the villain, Ellsworth Toohey, completely destroys Catherine Halsey’s soul, and the visible sign of her corruption is that her mouth has adapted to giving orders, “not big orders or cruel orders; just mean little ones — about plumbing and disinfectants” (IV.10). Toohey has turned her into the opposite of a Communist. The Communists gave big, cruel orders and had no concern with mean little considerations. The heroes of Atlas Shrugged are heroic because, like Communist bureaucrats, they produce or maintain impressive products, not mean little ones. It would be unimaginable for a Rand hero to be a manufacturer of “penny ante” products, such as disposable baby diapers, menstrual tampons, or dependable contraceptives. But these distinctively 20th-century inventions improved the quality of life immeasurably by freeing people from preoccupation with brute, animal existence.

Most services would be included among “mean little” occupations. The Communists’ heroic obsession with production caused them to ignore services, which, with a few exceptions, they did not even include in their gross domestic product statistics. In fact, Marxists always used the term “the means of production” as a synonym for “the economy.” In modern capitalist countries, most businesspeople provide services. With one exception that I will discuss below, the only service that a hero in Atlas Shrugged provides is running railroads. This is clearly not a “mean little” occupation, and it was one of the few services that the Soviet Union included in its gross domestic product statistics (weight of freight times kilometers carried).

Moreover, Rand ignored all services in her representation of history (1963: 10–57) as a battle between Attila and the Witch Doctor and their antithesis, the Producer. Indeed, her practice of using “industrialist” as a synonym for businessperson excludes businesspeople who produce “penny ante” products, along with those who provide services. In his long speech in Atlas Shrugged, John Galt (i.e., Ayn Rand) says, “Productiveness is your acceptance of morality . . . productive work is the process by which man’s consciousness controls his existence, a constant process of . . .  shaping matter to fit one’s purpose, of translating an idea into physical form, of remaking the earth in the image of one’s values;” and, “the industrialists, the conquerors of matter” “have produced all the wonders of humanity’s brief summer” (III.7).

It would be unimaginable for a Rand hero to be a manufacturer of disposable diapers, tampons, or dependable contraceptives.

It is true that the great philosopher Hugh Akston owns a diner and cooks its food, which he does with extraordinary skill, making “the best-cooked food she [Dagny] had ever tasted” (I.10). However, Rand does not let this fact affect her conceptualization of productive work when Galt tells Dagny, “We take nothing but the lowliest jobs and we produce by the effort of our muscles” (III.1).3

In her short story “The Simplest Thing in the World” (1975: 173-85), Rand depicts a writer of fiction who cannot make a living because he has the same sense of life as Rand. The writer decides he has to create the type of story that will sell: “a simple, human story,” which consists of “lousy bromides.” “It mustn’t have any meaning,” and its characters must be petty because “[s]mall people are safe.” However, he is incapable of writing such a story. Every time he tries, his sense of life thwarts his conscious efforts, and he starts composing a story about heroes. The reason, as Rand explains in her introduction, is that his “sense of life directs . . . and controls his creative imagination.” To exemplify this fact, he begins to write “a story about a middle-aged millionaire who tries to seduce a poor young working girl.” He is “a big tycoon who owns a whole slew of five-and tens [i.e., discount stores].” But the author cannot write this story. As he develops the story in his mind, his sense of life makes him forget about the girl and transform the villain into a hero. As part of the transformation, he says to himself, “to hell with the five-and-ten!” The hero now builds ships because he is driven by “a great devotion to a goal.” He is motivated by “a great driving energy . . . the principle of creation itself. It’s what makes everything in the world. Dams and skyscrapers and transatlantic cables.” “[H]e wants to work — not to make money, just to work, just to fight” (emphasis added). So, an author with Ayn Rand’s sense of life could not make the hero of his works a retailer, no matter how successful he might be; not even Sam Walton, who founded Walmart and built it into the company with the greatest revenue of any company in the world.

Because the Soviets had the same sense of life as the author in this short story (i.e., the same as Rand), they were extremely proud of the enormous hydroelectric dams they built, and their retailing was horribly inefficient. In the Soviet Union, people had to wait in long lines for any purchase. If someone had time to spare, he would wait in a line to buy something he did not need, in order to barter it with someone who had waited in another line to buy something else. When McDonald’s opened its first restaurant in Moscow, it set all records for number of customers: 40,000 to 50,000 a day, even though its food cost twice as much as the food in state-run cafeterias. It had twenty-seven cash registers. In Communist countries, the length of a line of customers showed how valuable the merchandise was at the end of that line. So, McDonald’s had to have ushers to tell customers not to go to the longest line (Goldman 1991: 166–7; Blackman 1990).

The opening of this first McDonald’s — an event that, as much as any other, marked the end of Communism — illustrates another serious defect in Communist-Objectivist ideals. A small notice in a Soviet newspaper drew 27,000 applicants for jobs as counter clerks, even though the anticipated salary was only average by Soviet standards. Those who were chosen had to be trained to smile at customers and speak politely to them. Their training was so successful that customers could not believe that the clerks were Soviet-raised Russians (Blackman 1990; Goldman 1991: 166–7).

An author with Ayn Rand’s sense of life could not make the hero of his works a retailer, no matter how successful he might be.

Rand used “grocery clerk” to symbolize the antithesis of her ideal (1964: viii; 1975: 84). In her first novel, We the Living, when the heroine, Kira, sees her future lover Leo for the first time,she observes that “[h]is mouth . . . was that of an ancient chieftain who could order men to die, and his eyes were such as could watch it.” However, Leo says to Kira, with bitter humor, “I’m nothing like what you think I am. I’ve always wanted to be a Soviet clerk who sells soap and smiles at customers” (I.4). Again, Rand reversed Communism and capitalism. Men who could order others to die and watch their death calmly characterized Communism. Smiling clerks, who sell unimpressive products, characterize capitalism.

When Nathaniel Branden was the official Objectivist expert on psychology, he wrote, “[P]roductive work is the process through which a man achieves that sense of control over his life which is the precondition of his being able fully to enjoy the other values possible to him … [P]roductive . . . achievements lead to pride” (“Self-Esteem: Part IV,”The Objectivist, June 1967). Branden, as he himself later realized, was exaggerating. But he was exaggerating a truth. A feeling of control over one’s life and pride in productive achievements are certainly wonderful feelings. They can derive directly from the type of work done by Communist administrators and the heroes of Rand’s novels, especially if, like Howard Roark, they have an uncapitalist indifference to money and accept only those projects that appeal to them. However, a feeling of control over one’s life and pride in achievements do not follow directly from the type of work that most people in a capitalist society do: salesmen, accountants, insurance brokers, bank clerks, and manufacturers of “penny ante” products, like clothespins and underpants.

Nearly all readers of Rand’s novels, even those who disagree with her philosophy, recognize that she was a brilliant novelist. But not even her brilliance as a novelist could have made a gripping, inspirational novel about the work that is done in distinctively capitalist occupations, occupations that do not exist in Communist countries, such as advertising or being a real estate agent. In fact, the first jobs of the odious Wesley Mouch were in advertising (Atlas II.6).

Let us consider briefly the novelist whom Rand (1975: 119) regarded as the best of the naturalists, Sinclair Lewis. When Lewis wanted to write novels about admirable protagonists, he made them a dedicated research scientist (Martin Arrowsmith) and the president of a car company (Sam Dodsworth), who began his career as assistant manager of production. When Lewis wanted a pathetic protagonist, he made him a real estate agent (George Babbitt). Babbitt, like Dodsworth, is successful at his work. But Lewis says in the first chapter that Babbitt “made nothing in particular, neither butter nor shoes nor poetry;” and he “detested the grind of the real estate business, and disliked his family, and disliked himself for disliking them.”

The discussion so far illuminates a crucial benefit of the love of money. It entices people into occupations that they may not find interesting or inspiring, but are socially necessary; and it exerts constant pressure on business owners to provide what the public wants, not what they enjoy doing.

In all of Rand’s novels, only one business owner completely embodies the capitalist ethos. That is the press tycoon Gail Wynand, in The Fountainhead, who becomes fabulously rich through selfless service to the public, by providing it with what it wants: a lowbrow, sentimental, lurid newspaper. As he says (IV.11), he has led a life of “[s]elflessness in the absolute sense.” He “erased [his] ego out of existence” by following the principle, “Give the greatest pleasure to the greatest number.” However, according to Rand, Wynand is guilty of the most horrible sin in her moral universe: betraying himself.

Men who could order others to die and watch their death calmly characterized Communism. Smiling clerks, who sell unimpressive products, characterize capitalism.

Wynand’s opposite is Nathaniel Taggart, in Atlas Shrugged, who is supposed to be the archetypal capitalist. As Dagny recalls (I.8), “He said that he envied only one of his competitors, the one who said, ‘The public be damned!’” Nothing could be more antithetical to the motivation of a successful business owner in a capitalist society. This is the ethos of the head of a production unit in a Communist economy, who derives exhilaration and pride from productive achievement without regard to providing the public with what it wants.

Rand’s story “The Simplest Thing in the World” is an excellent illustration of this point. It assumes that an author with Rand’s sense of life is compelled to create a protagonist who does not work for money and therefore chooses to build ships instead of discount stores. This contrast is factually accurate. Someone motivated by money would not consider shipbuilding as a business career since, in economically advanced countries, shipbuilders can stay in business only by means of tariff protection or government subsidies or both. But he would certainly consider the business of discount stores, since they have proved to be the most profitable (i.e., socially useful) branch of retailing.

The economic role of money in constantly driving economic participants to provide the public with what it wants is related to an admirable moral attribute of the free market. It is completely democratic and non-coercive; no one can interfere with other people spending their money on what they want. In her essay “What Is Capitalism?” (1967: 17, 20) Rand showed that she was fully aware of this fundamental attribute of capitalism (the italics are Rand’s):

[T]he works of Victor Hugo are objectively of immeasurably greater value than true-confession magazines. But if a given man’s intellectual potential can barely manage to enjoy true confessions, there is no reason why his meager earnings, the product of his effort, should be spent on books he cannot read.

The tribal mentalities attack this principle . . . by a question such as: “Why should Elvis Presley make more money than Einstein?” The answer is: Because men work in order to support and enjoy their own lives — and if many men find value in Elvis Presley, they are entitled to spend their money on their own pleasure.

It is the Gail Wynands who provide true-confessions magazines and Elvis Presley CDs.

At this point, many readers will object that Ayn Rand appreciated the value of money. She ended Atlas Shrugged with its hero tracing the sign of the dollar in space, made a gold dollar sign Atlantis’ “coat of arms, its trademark, its beacon” (III.1), and herself often wore a gold dollar sign pinned to her dress.

Yet in The Fountainhead, Toohey asks Peter Keating about Roark (II. 4), “Does he like money;” and Keating replies No. But long before that, the reader has learned that Roark’s abnormal indifference to money is one of the essential characteristics that make him the hero of this novel. Indeed, in “The Simplest Thing in the World,” Rand assumed that an author with her sense of life must write only about heroes who do not care about money.

Rand assumed that an author with her sense of life must write only about heroes who do not care about money.

In Atlas Shrugged, Rand sometimes has her heroes claim that their goal is to make money. At the opening of the John Galt Line, which is by far the greatest achievement of both Dagny and Hank Rearden (I.8), a reporter asks Dagny her “motive in building that Line.” She answers, “the profit which I expect to make.” Another reporter cautions her, “That’s the wrong thing to say.” But she repeats it. Yet before her trip begins, she looks at the crowd that has gathered and notices that they are there, not because these people expect to make a profit, but “because the sight of an achievement was the greatest gift a human being could offer to others.” The description of the ride on the John Galt Line is the most exhilarating fiction writing I can recall reading; and I have read a great deal of narrative fiction, in ancient Greek, Latin, English, and French. For Dagny, “It was the greatest sensation of existence; not to trust, but to know.” “She felt the sweep of an emotion which she could not contain, as of something bursting upward.” And what about the engine drivers? Every one of them who was available volunteered to drive the train despite persistent warnings of danger. Surely, they were not motivated by money.

At least in their economic interactions, money should be the primary consideration of the heroes of a novel that ends with the dollar sign traced in the air. In Part I, Chapter 1, Dagny’s parasitical brother James says to her, “I don’t like Hank Rearden.” Dagny replies, “I do. But what does that matter, one way or another? We need rails and he is the only one who can give them to us.” James Taggart, typically of him, replies, “You have no sense of the human element at all.” This conversation crystallizes capitalist and uncapitalist mentalities.

Nevertheless, the economic decisions of the heroes of Atlas Shrugged are constantly motivated by the human element. That is true even of the one major character in Atlas Shrugged who is a pure capitalist, Midas Mulligan. He says he joined the strike because of a vision, in which he “saw the bright face and the eyes of young Rearden . . . lying at the foot of an altar . . . and what stood on that altar was Lee Hunsacker, with the mucus-filled eyes” (III.1). In Part II, Chapter 3, Francisco asks Rearden: did you want the rail you made for the John Galt Line used by your equals, like Ellis Wyatt, and by men such as Eddie Willers, who do not match your ability but who “equal your moral integrity” and “riding on your rail — give a moment’s silent thanks”? Rearden answers Yes. Francisco then asks, “Did you want to see it used by whining rotters?” Rearden answers, “I’d blast that rail first.” Francisco then explains that by "whining rotter" he means “any man who proclaims his right to a single penny of another man’s effort.” But no economy, whether socialist or capitalist, could function for one day if producers acted in this way. In Part II, Chapter 10, Dagny says that Nathaniel Taggart, supposedly the archetypical capitalist, “couldn’t have worked with people like these passengers. He couldn’t have run trains for them.” But no one running a train line, even in a socialist economy, could possibly consider the moral worth of its passengers, or any consideration besides their paying for the ride.

No one running a train line, even in a socialist economy, could possibly consider the moral worth of its passengers, or any consideration besides their paying for the ride.

I will conclude with the most frequently quoted explanation of why the market is the most effective means of providing people with what they want. It is by Adam Smith, in Book I, Chapter II of The Wealth of Nations: “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard for their own interest. We address ourselves . . . to their self-love.” Butchers, brewers, and bakers had a very low priority in Communist countries. When McDonald’s opened its first restaurant in Moscow, it had to train its own butchers (Goldman 1991: 166). It is also unimaginable for an Ayn Rand hero to be a butcher, brewer, or baker. The self-interest and self-love that induces people to become butchers, brewers, and bakers and to perform those jobs well is totally different from the heroic self-love of Rand’s heroes. It is an unheroic desire to support themselves and their families in comfort and security.

In her essay “What Is Capitalism?” Ayn Rand showed that she understood as well as Smith why love of money is wonderfully socially beneficial. In her fiction, however, her anti-capitalist sense of life obliterated that knowledge.

***

Footnotes
1. I cite passages in Rand’s novels by the part of the novel in which they occur and the chapter in that part. I do not cite page numbers because there are many editions, and each has different pagination from the others.
2. I write “Communist” with a capital “C” to indicate a member of a Marxist-Leninist Communist Party. Many people have championed a communist society (with a small “c”), beginning with the first two extant projections of an ideal society: Plato’s Republic and Aristophanes’ Ecclesiazusae, both from the 4th century BC.
3. Several of the heroes provide services while they are in Galt’s Gulch. But these jobs are merely stopgaps until they return to the world and use their talents again in their real work.

Bibliography
Blackman, Ann 1990: “Moscow’s Big Mak Attack.” Time (February 5).
Feshbach, Murray and Friendly, Alfred Jr. 1992: Ecocide in the USSR: Health and Nature under Siege. London: Aurum Press.
Goldman, Marshall 1991: What Went Wrong with Perestroika. New York: W.W. Norton & Company.
Rand, Ayn 1963: For the New Intellectual. New York: Signet.
Rand, Ayn 1964: The Virtue of Selfishness. New York: Signet.
Rand, Ayn 1967: Capitalism: The Unknown Ideal. New York: Signet.
Rand, Ayn 1975: The Romantic Manifesto, revised edition. New York: Signet.
Shmelev, Nikolai and Popov, Vladimir 1989: The Turning Point: Revitalizing the Soviet Economy, translated by Michele A. Berdy. New York: Doubleday.


Editor's Note: This article is part of a much longer monograph with the same title. It can be obtained from the author at stevenfarron@gmail.com.



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The Paradoxical Comfort of Bureaucracy

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Back in the days when your grandfather was still looking at your grandmother with inquisitive lust, I spent about 18 months on an aircraft carrier. I was a draftee in the French Navy, untrained for anything and possibly the lowest man on the totem-pole. I was 21 when I got out. In good time, I attended the university and graduate school in the US and I became a scholar in organizational theory (a pretty good one if I say so myself).

But my brief military experience remains vivid in my memory. In part, that's because everything you do at 20 tends to live in the brain in Technicolor and in Panavision. In part it's alive in my mind because interesting things happened there. When I write now about my naval period, I feel almost forced to apply a bit of organizational analysis to my memories. It's a slightly disturbing experience because being a small cog in a bureaucratic organization, a state organization at that, unexpectedly fails to evoke bad feelings.

It's disturbing because life and work within a bureaucracy is at the antipodes of libertarian utopian imagery. It's disturbing, additionally, because government routinely acts as the principal agent of routine state oppression in societies with a constitutional government such as the US. This malaise is also an opportunity. I believe that people who think of themselves as libertarians, even those with a mere libertarian bent, don't spend enough time thinking about disconfirming evidence, about experiences that run counter to their main existential choices. Here is a brief analysis, one that may speak a little to the issue of why some people are attached to bureaucracies in spite of their libertarian leanings.

In the navy, for days and weeks on end, I lived in an environment made entirely of steel except for the small patch of linoleum I cleaned every morning and the occasional spare piece of rubber connection. To be completely accurate, I have to specify that there were also plastic curtains around the bunks and part-cotton sheets inside. And the metal surroundings were all not especially unpleasant. Perhaps, if you are going to venture on the treacherous ocean, it's good to do it in a vessel made of thick sheets of steel joined together by large and visible steel nuts and bolts.

I felt the same about the organizational environment as I did about the physical environment of the ship. In general, I felt safe on the aircraft carrier. There were several reasons, some of which it costs me to remember because doing so constitutes a confession of sorts.

First, there were well-thought-out and well-rehearsed routines for everything, at least for everything that I knew then and, to a large extent, even for what I now know. (I never experienced naval combat, but I think the same principle prevailed there.) You could believe that whatever happened, the people doing something about the whatever would not be improvising a response. You could also be confident that their response would be familiar — familiar to them, that is, however alien it seemed to you.

Perhaps, if you are going to venture on the treacherous ocean, it's good to do it in a vessel made of thick sheets of steel.

Even my living-quarters close neighbors, the bosun's mates who were operating under the influence of alcohol most of the time, projected an air of competence. Bringing two small boats smoothly side by side in a choppy sea did not seem to tax the young guys who I would have bet could probably not negotiate the gangway to get themselves ashore for a fresh drink.

The second behavioral factor contributing to this feeling of safety was chronic overstaffing. I think that personnel redundancy is a general organizational principle in navies, military organizations, as opposed to merchant fleets, for example. The aircraft carrier is a special case because of its multiple functions. So I will focus on the case of a small destroyer that is similar in size to many cargo-ships of the pre-container period. My considered, serious guess is that the crew of a destroyer was at least three times larger than the crew of a freighter of similar tonnage. Or, to put it another way, the captain of a small freighter of the day could easily have boasted: “I can run this destroyer with my eighteen men. Just put ashore its current excessive crew of sixty. We will do the job, no problem. Perhaps, leave one gunner behind; no big deal.”

Overstaffing is a luxury that ensures that few if any organizational members will be stressed by overwork, except perhaps at the very top. There were telling details supporting this perspective, details that would have bespoken laziness in any framework other than a military one. Thus, when the officer on watch on the bridge made an announcement over the ship's public address system, he did not conclude his address with a greeting or introduce himself or give a summary, nor did he hang the mike himself. He had an enlisted gopher standing by to make these small gestures for him.

Another way to speak of overstaffing is to refer to underwork. My boss was the Chief of Operations, the third ranker on board. He had one full yeoman, a guy who had signed up voluntarily and who had been more or less trained by the navy. I, a draftee, had received no training beyond boot camp. My boss agreed early in our acquaintance that his assistant-yeoman, myself, was to deliver each day a given, limited amount of work. The amount was one single typed stencil. That would have been the amount of typing a careful, well-trained professional typist (working on terra firma) could easily have supplied in one hour. The key to understanding the apparent waste is this: At any one time, my boss the Operations Chief knew that he could put seaman Delacroix to work to do the urgent or the unexpected — hand-carry a message, sharpen his pencils, or pick up his laundry in a raging storm — without sacrificing any other aspect of his, the Chief's, responsibilities. So the abundance of underutilized work capacity was a source of comfort for all aboard ship; it implied that those with serious responsibilities were unlikely to be overwhelmed by them.

The principle of overstaffing, or of an underutilized work force, ran throughout and up and down the complex organizational chart of the aircraft carrier. There were three apparent exceptions. First, some menial functions might be understaffed for a short time. Second, one crucial but rarely performed task apparently failed to command sufficient personnel. Third, the most industry-like subpart of the ship's organization seemed to be perennially short of qualified bodies.

First, the menials. It might happen occasionally and for a brief period that some small functional department was short one man. That would always be in areas of activity where overworking the remaining men, by giving each the equivalent of half a civilian work load, for example, would not seriously endanger other operations. I am literally referring to peeling potatoes and to cutting hair while at sea. It was common practice among petty-officers to bribe the crewmen thus rudely put upon, with a couple of bottles of beer. (Yes, there was and there is alcohol on French naval ships. Their crews may not shoot straight but they are not stressed!)

A second exception to the rule of underutilization of personnel still puzzles me a little. There was only one old senior petty-officer on board who was able to steer the huge ship through certain narrow harbor entrances in very stormy seas. This scarcity perplexes me because the task was in no way comparable in its importance to peeling potatoes, for instance. The preservation of extremely expensive matériel and possibly the safeguarding of many lives demanded that this skill be available.

Yes, there was and there is alcohol on French naval ships. Their crews may not shoot straight but they are not stressed!

I have no solid explanation for this queer penury. Here is my best guess though: most of the functions to be performed on the ship could be reduced to small gestures that could in turn be described concretely and thereby routinized. Most of those functions could be reduced to routines that were easy to learn even for the moderately gifted. Producing in advance of need a ready supply of people to perform those functions was not a big deal. Those common functions demanded only carefulness for successful performance. By contrast, the ability to drive a gigantic floating object battered by winds and contradictory wave conditions through a narrow passage depended on tacit knowledge.

Tacit knowledge is knowledge that is difficult to transfer deliberately. It's what can be learned but cannot be taught, or only taught to a limited extent. Tacit knowledge is found also in art, in dress-designing, in bread-baking and of, course, in the brewing of beer. I mean with respect to the latter that it's easy to brew beer and fiendishly difficult to brew good beer. Because much of tacit knowledge cannot be taught, precisely, it may often be in short supply. Alternatively, it may occur naturally more commonly than is objectively necessary (as with artists, for example). Such oversupply does not receive much notice, naturally. Only shortages are noticeable.

The third exception to the principle of overstaffing keeps sticking in my mind because it does not make obvious sense in spite of my best efforts.The flight deck crewmen often complained of overwork. Their jobs were both essential (obviously, we were on an aircraft carrier) and as minutely divided and routinized as anything, anywhere on earth. So, if the principle of overstaffing did not apply to them, it was not because their work relied on tacit knowledge that was hard to find. Neither were they expendable like the potato jockeys I evoked earlier. I just don't know for sure why they said they were overworked. This want of an explanation mars my nice analysis, but I must almost leave it at that. I say “almost,” because I sometimes had the thought that being overworked — or proclaiming oneself overworked — was cool for flight deck personnel but not for other crewmen.

They, the flight deck crewmen, had to work day in and day out with pilots whose own exalted status was likely to create different emotions around them. Come to think of it, I had an intuition about that cultural proximity factor right then. I spent much time observing landing and takeoff maneuvers on the flight deck from a safe spot. And I was well aware of aviation crewmen’s complaints about overwork. Nevertheless, their complaints never troubled my own sense of comfort, although my tiny office, with me inside, bent over my typewriter, could have easily been wiped out by a single misdirected landing.

I hope the reader understands that the few preceding paragraphs constitute a kind of regrettable but real declaration of faith in well-designed bureaucracy. Of course no one asked that particular bureaucracy to be efficient. It was expected only to be effective, to get the job done, almost irrespective of cost.


Editor's Note: This essay is adapted from Delacroix's as-yet-unpublished memoir, “I Used to Be French: An Immature Autobiography.”



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The Student Loan Bubble

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The left-leaning web site ProPublica specializes in long-form journalism — labor-intensive, 3,000-plus-word articles dedicated to serious treatments of big subjects. Think of the long pieces that appeared in The New Yorker during the 1970s and early 1980s and you get the idea. While I find ProPublica’s reflexive and unexamined bias in favor of statist schemes irritating, I do read its articles. They are usually earnest and sometimes worthy efforts.

Lately, a ProPublica article about a semiliterate gardener’s struggles to manage his dead son’s unpaid college loans got some traction in the mainstream media. (While I don’t understand ProPublica’s business model completely, it seems to involve licensing its long stories to other news organizations.)

This gardener’s woes fit neatly into the mainstream media’s narrative that student loans are an evil, evil thing about which Good King Barack needs to do something. And, by “do something,” moronic opinion-shapers mean without saying: subsidize borrowers’ bad choices with capital redistributed from taxpayers.

This proposition is wrong on many levels. It also reflects faulty assumptions and bits of specious logic that are worth some examination — because they explain many of the problems that plague America today.

First, a quick review of ProPublica’s telling of the gardener’s tale.

Francisco Reynoso lives in Palmdale, California — a dusty far suburb, north of Los Angeles. He doesn’t speak much English (though he is a naturalized citizen) and earns about $20,000 a year from his labors. While the story doesn’t offer many details about Reynoso’s work, in southern California “gardener” is often a euphemistic way to describe a causal day laborer — the kind of guys you see milling around Home Depots and such outlets, looking for work.

On this meager income, Reynoso supports his wife and daughter. He used to support a son, too. But, in a tragic turn, that son — Freddy — died in a one-car accident in September 2008.

Freddy had recently graduated from Berklee College of Music, a school in Boston that combines elements of a conservatory with the rigors of a traditional four-year college.

It was a bit strange that a gardener’s son had matriculated to a place like Berklee. It’s no community college . . . or even a state university. Rather, its reputation has long been as a pricey second-tier Julliard. The school’s comprehensive fee is nearly $50,000 each academic year.

A lazy person might describe Freddy’s enrollment at Berklee as a version of “the American Dream.” The son of a laborer enters a world traditionally reserved for the elite, etc. But it sounds like Freddy never really entered that world. In 2005, after he’d been admitted to Berklee, the young man needed to borrow significantly to enroll. Reynoso cosigned on a series of student loans that allowed Freddy to attend. By 2008, when Freddy was finished at Berklee, he moved back to Palmdale and was driving into Los Angeles most days. Trying to find work. According to his family, Freddy was driving back from the city on the night that he ran off the highway, rolled the car, and died.

As a father, perhaps Reynoso should have told Freddy that borrowing hundreds of thousands of dollars to get a degree in music was a bad financial decision.

The principal amount of the money Freddy and his father had borrowed was nearly $170,000. With interest and fees added, the amount they’d have to repay would be closer to $300,000. The lenders didn’t mind much that Reynoso didn’t have the means to repay those amounts because, as we’ll see in more detail later, various government subsidies that support the student-loan market make rigorous underwriting unnecessary.

So, lenders lend. But why do borrowers borrow? Why did a gardener making little more than minimum wage agree to guarantee so much in college loans? His answer: “As a father, you’ll do anything for your child.”

It may not seem sporting to criticize a simple man’s devotion to his son . . . but what if that devotion is ignorant and misguided? According to a survey of music industry salaries produced by Berklee itself (and based — tellingly — in the “Parent Questions” section of its web site), most of the jobs its graduates pursue offer starting pay of less than $25,000 a year. That’s not enough income to support the debt service on nearly $200,000 in student loans.

As a father, perhaps Reynoso should have told Freddy that borrowing hundreds of thousands of dollars to get a degree in music was a bad financial decision. Some people are poor because they make bad financial choices. An unintended consequence of government programs that give material support to such poor people is that they’re free to make more bad choices. In the hands of Francisco Reynoso, Freddy’s government-subsidized student loans were a loaded gun . . . or a hangman’s rope.

A few months after Freddy’s fatal accident, collectors started calling Reynoso to demand payment on the student loans for which he’d cosigned.

The loans that allowed Freddy to attend Berklee fell into several categories — as they do for most borrowing students. There were some direct government loans, which carry the lowest interest rates and most favorable terms for the borrower. In most situations, they don’t require parents to cosign. But there are limits to the amounts available on these favorable terms; in most cases, a student can only get a few thousand dollars each academic year in this “cheap” money.

After that, a borrowing student needs to go to so-called “private” lenders. These are banks and specialized finance companies that offer loans with higher interest rates and less-favorable terms for borrowers. But the “private” loans are still subsidized heavily by the government and share unique traits with the direct government loans — most importantly, the loans cannot be discharged in bankruptcy.

(A personal aside: When my oldest child was getting ready to leave for college, we reviewed her finances and found we were a little short on the cash she would need for her comprehensive fee. She shook off the shortfall as no big deal; the college was happy to help her apply for student loans. I advised her only to borrow as much as was available in direct government loans and to avoid the higher-interest private loans at all costs. She rightly noted this advice was ironic, coming from someone who advocates against such government programs; but she heeded the irony and will graduate next year with a nominal amount of relatively cheap debt to repay.)

This is the major reason why the “private” student-loan lenders don’t bother with rigorous underwriting. Since the loans can’t be discharged in bankruptcy, the lenders or their agents can hound borrowers and cosigners for repayment endlessly.

In Freddy’s case, he borrowed about $8,000 in private money from Bank of America and about $160,000 from a company called Education Finance Partners. Neither lender kept the loans for long; as is typical in the market, the “loan originators” sold Freddy’s paper to other firms that focus on servicing debt or bundling it with other student loans and “securitizing” those bundles.

According to ProPublica, Bank of America sold the loan it made to Freddy to a student-loan financing specialist called First Marblehead Corp.; Education Finance Partners, which has since declared bankruptcy, sold the loans it made to Freddy to a unit of the Swiss banking giant UBS.

The loans purchased by UBS may have been sold, in turn, to the Swiss National Bank (analogous to the U.S. Federal Reserve) when the National Bank made a Fed-style bailout of UBS in 2009. Details are sketchy because of Swiss privacy laws.

So, if the ownership of the debt was unclear, who were the collectors calling Reynoso for repayment? A separate company, called ACS Education Services, which owns some student debt and contracts with other lenders to manage and collect on their loans for a fee. ACS is a unit of Xerox Corp. and one of the bigger players in the student-loan servicing market.

But Freddy was dead — and one might think that that fact would have an effect on the lenders’ collection efforts. Some student loan companies have a policy of canceling loan balances when a borrower dies. (Direct student loans from the government are generally cancelled if the borrower dies.) But, since Reynoso had cosigned for his son’s “private” loans, the lenders have the legal right to pursue payment from him.

A fundamental fraud lies beneath all this do-gooder claptrap. And that fraud may eventually destroy the foundations of many schools.

It’s easy — and emotionally satisfying, perhaps — to focus outrage at lenders like Bank of America and Education Finance Partners, or behind-the-scenes operators like First Marblehead or ACS Education Services. The establishment Left and media outlets like ProPublica certainly focus on them.

But these lenders and finance outfits are really just service providers, working the levers of government to find ways to make a few points here or there while helping to facilitate state-sponsored transactions.

The core transaction in the ProPublica story was between Freddy Reynoso and the Berklee College of Music. Freddy was pursuing a dream of being a professional musician and Berklee was selling an expensive credential that might help in that pursuit.

Freddy died. But Berklee is doing well. It has an endowment of nearly $200 million and is in the midst of an ambitious expansion of its campus — which at present comprises of some 21 buildings in the Back Bay area of Boston. The College’s website described the opening of one new building in this way:

Adorned with bright colors, the unique and hip space has an industrial feel, in step with Berklee’s cutting-edge sensibility. The building also houses the Berklee Writing Center, Berklee’s English as a Second Language Program, an Africana Studies Room, conference and seminar rooms, and a café.

More hip space in the Back Bay is in development. And Berklee has recently opened a satellite campus in Valencia, Spain.

According to a September 2011 report from the Center for Social Philanthropy and the Tellus Institute, Berklee President Roger H. Brown makes more than $550,000 a year. And five other senior administrators make more than $300,000 a year. It’s good money — although, by elite college standards, it’s not that much.

President Brown’s official biography recounts sanctimoniously the work that he’s done in places like Thailand and the Sudan for various humanitarian outfits (some connected with United Nations). It boasts about the big child-daycare company he started with his wife, but it doesn’t mention the years he spent working for Bain & Co.

I’m sure Mitt Romney will understand.

Of course, the bio focuses on the efforts Brown has made to move Berklee closer to the first-tier of private colleges:

In 2007, Brown launched the college’s first capital campaign with a goal of raising $50 million. He has initiated Berklee’s Presidential Scholars and Africa Scholars programs that provide full-ride scholarships to give top musicians around the globe a Berklee education. He has overseen the expansion of the City Music Program beyond Boston in an effort to provide educational opportunities for talented but economically disadvantaged urban youth. . . . Brown worked with the city of Valencia, Spain, and the Generalitat Valenciana to create a Berklee campus in Valencia.

He’s the very model of a modern major-general. Working the levers of government in Spain to set up a ritzy international campus. Overseeing the expansion of programs to provide for the disadvantaged. Initiating programs to give scholarships to top musicians around the globe.

But a fundamental fraud lies beneath all this do-gooder claptrap. And that fraud may eventually destroy the foundations of schools like Berklee College of Music.

For decades, striving institutions of higher education have been working the levers of government — and, specifically, the student loan market — to redistribute capital from the lower and middle classes into their self-styled “elite” pockets. A regressive racket if ever there was one.

The pieces are all present in Freddy Reynoso’s story. Nearly $200,000 was taken from people who can’t afford it, facilitated by banks and the federal government, and transferred into the coffers of a music college already sitting on an endowment of several hundred million. If the sanctimonious Roger H. Brown really wanted to help disadvantaged youth, he should have given Freddy Reynoso a free ride. But why should he do that? Uncle Sam is willing to arrange for Berklee the pretense of high-minded altruism and the profit margins of a payday lender.

Roger H. Brown won’t stop this deal. So Uncle Sam needs to.




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Fungible Semantics: The Roberts Decision

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Tax: A contribution for the support of a government required of persons, groups, or businesses within the domain of that government.

Penalty: A punitive measure, regulatory in nature, established by law or authority, to deter certain conduct.

A Supreme Court decision upholding the constitutionality of the healthcare mandate based on the government’s taxing authority?

Well, why not? The tax code has been dragooned into service to influence and shape social behavior for over a hundred years, from a dollar-a-pack cigarette tax, to mortgage relief to encourage home ownership. In addition to the collection of revenue to bankroll government it evolved into an instrument for social engineering and stealth workarounds to advance social policy. Which of the following statements is true?

A tax raises revenue, a penalty raises revenue, therefore a penalty is a tax?

A tax influences behavior, a penalty influences behavior, therefore a tax is a penalty?

That’s right — neither is true. These syllogisms illustrate a well-known logical fallacy that can be found in any college textbook on logic. How, then, could a superior jurist like John Roberts persuade himself that a penalty is a tax? Well, the Chief Justice opined that the penalty for noncompliance with the mandate ($695) was too weak to constitute a deterrent, and must therefore be a tax! This left many to wonder if he had intentionally confounded these two concepts, and thus rewritten the mandate so the Affordable Care Act would pass constitutional muster.

The logic was so bizarre and flawed that some, like Charles Krauthammer, suggested that Roberts resorted to this semantic legerdemain to avoid politicizing the Court and weakening its prestige. But this is to forget that the Constitution was born in crisis and the Court has weathered more violent partisan storms than those of the current climate: just read some of the broadsides in newspapers written one hundred to two hundred years ago. To my knowledge, no Congressmen have been caned to within an inch of their lives in the well of the Senate (though, no doubt, some have deserved it), and no cabinet secretaries killed in duels in the past 100 years. A good rule of thumb: follow the law and let the chips fall where they may.

Misconstruing what is obviously a penalty as a tax may seem a harmless bit of hocus pocus, but playing hard and fast with meaning and general disregard for semantic precision has resulted in a Supreme Court decision that could have unfortunate consequences for the American economy. Or as one editorialist (James Delong) put it:

The ACA is a complex and incoherent law drafted in haste and secrecy, written largely by the healthcare industry to promote its own profits by bringing more people into a government-administered system open to capture and looting. It is defended by an administration trapped by the imperative of defending its handiwork. The product is a Rube Goldberg regulatory system that cannot be made rational, workable, or intelligible, and is a delicious (to Republicans) promise of an endless stream of outrages.

It is all very well for the Chief Justice to defer the issue of constitutionality back to elected officials, but as Ronald Reagan once remarked, “The nearest thing to eternal life we will ever see on this earth is a government program,” and it will be difficult to impossible to repeal the healthcare law even if Mitt Romney is elected president, unless there are significant Republican majorities in both houses of Congress. The stakes were high, very high. This could be the worst Supreme Court decision since Kelo v. City of New London, and it is fair to ask if, during his stormy sessions with the brethren, Justice Roberts experienced some sort of mental lapse.

In the last century or so, no Congressmen have been caned to within an inch of their lives in the well of the Senate — though, no doubt, some have deserved it.

The original sin was, of course, using the tax system as a quick-and-dirty tool to improvise policy, to encourage (say) petroleum exploration or to discourage the use of tobacco, thereby exempting government from the strenuous work of writing carefully crafted long-term programs to advance a coherent policy. The Constitution says that

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . .

The framers did not say that the collection of taxes could or should be used to influence economic behavior or placate special interests, and in this they showed some foresight: broadening the concept of taxation to, for example, provide incentives for certain economic entities, has resulted in a Byzantine tax code so complicated and unwieldy, so corrupted by influence-peddlers and lobbyists, it has become a national embarrassment, and a general disincentive to business and entrepreneurship. Using the sacrosanct tax code as an ad hoc tool to implement policy (rather than enact problem-specific programs) has produced some very bad tax law.

Another institutional casualty, perhaps more fatal than the debasement of the tax system, has been the English language. A general contempt for the elegance and precision of English, e.g. twisting of meaning out of all recognition, demonstrates the dangers that George Orwell warned us about over 60 years ago in his essay, Politics and the English Language. The decline of English, he observed, had entered a deadly spiral:

it becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.

It was Orwell’s belief that words and semantic distinctions matter, that mangling language to suit one's purposes eventually leads to a world where black is white and up is down. How prophetic! We need language to map the world as it is, not as we would like it to be, and a breach of semantics can be even more lethal than a breach of law. Using imprecise language to conceal real meaning is a sure path to chaos. Orwell was talking about communist pamphleteers and flannel-mouthed journalists at the time, but it applies equally to any abuse of language, and that includes the recent decision by Chief Justice Roberts to call a penalty a tax.




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Check Your Premises!

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Ah, NPR — how we love to hate you . . . and guardedly to love you. Love you for such gems as “Car Talk," “A Prairie Home Companion,” and “Freakonomics.” Hate you for the smug sanctimoniousness that passes for “objective” reporting, riddled with questionable premises axiomatically postulated.

It’s not that interviews with the likes of David Axelrod or public sector union bosses are slanted — after all, we expect left-wing boilerplate from them. It’s the public affairs programs, such as “Talk of the Nation” and the “Diane Rehm Show,” which, while pretending to be objective, are blinded by their own unquestioned assumptions. This is particularly evident when the host — be it Rehm or Neal Conan — in an effort to be balanced during roundtable discussions with a potpourri of commentators, plays devil’s advocate. The questions of these devil’s advocates often lack conviction or show a gross misunderstanding of the opposing viewpoint. And they are seldom followed up — after what are invariably short, pro-forma answers.

On Fridays, Rehm hosts a roundup discussion of the week’s news. Recently, the subject was the presidential campaign. At one point she asked the panel whether Mitt Romney’s record at Bain Capital was “fair game” — for an attack by the opposition, I suppose. Instantly, my BS radar quivered, since it’s a given that a candidate’s record should be analyzed and critiqued. The question turned out to be the opening salvo for a nitpicking attack on Romney’s Bain record, private equity in general, obscene profits, and “excessive” wealth. There was no parallel inquiry into whether Barack Obama’s record as a community organizer was “fair game.”

Examine the hidden premises.

In the first instance, the assumption is that work in venture capital and leveraged debt — making a profit by dismembering noncompetitive industries, extracting their residual value, and eliminating the jobs they provide — is problematic, perhaps nefarious. Never mind that failing companies might be better off dissolved, and their assets better employed in a different sector of the economy. Never mind that the benefits to the economy would likely increase employment by making business in a given sector more competitive, despite the short-term loss of jobs. To see this in another way: why should productive capital be wasted subsidizing a dying enterprise producing unwanted goods by overpaid workers at uncompetitive prices?

Although the companies that Bain Capital nurtured back to health and profitability — because, in the judgment of the investors, they showed promise — were dutifully mentioned, the focus of the discussion remained on the euthanatized companies and their lost jobs. Eager to administer the coup de grace, the commentators piled on “excessive” profits and wealth, ignoring whether or not these were acquired honestly through hard work and brains.

Why should productive capital be wasted subsidizing a dying enterprise producing unwanted goods by overpaid workers at uncompetitive prices?

In the second instance — the unasked question (and probably why it wasn’t asked) — the assumption is that work as a community organizer is always noble and beyond criticism. Perhaps it is, but does it qualify a candidate for the presidency, where judgment, leadership and knowledge are paramount?

Mitt Romney’s record — whatever you might think of his policies — at Bain & Company, Bain Capital, and the Salt Lake Winter Olympic games, as well as in the governorship of Massachusetts, demonstrates the sort of judgment, leadership, and knowledge that one expects from a first-class commander-in-chief. In contrast, Barack Obama showed a striking lack of judgment and a foolish naiveté when he promised to close the Guantanamo prison, to have the most open and accessible administration to date, and to do a lot of other things that he has not done, three and a half years into his presidency. The May 26 issue of The Economist displayed its inimitable sense of humor and irony when it reported that

“Barack Obama accepted an award honouring his administration’s commitment to transparency on March 28th 2011. It was given by a coalition of open-government advocates. But the meeting was closed to reporters and photographers, and was not announced on the president’s public schedule. Occasionally life provides perfect metaphors.”

The article then very seriously ups the ante:

“Yet perhaps none of Mr Obama’s transparency promises has rung hollower than his vow to protect whistleblowers. Thomas Drake, who worked at the National Security Agency, was threatened with life imprisonment for leaking to the Baltimore Sun unclassified details of a wasteful programme that also impinged on privacy. The case against him failed — ultimately he pleaded guilty to a misdemeanour charge of ‘exceeding authorised use of a computer’ — but not before he was hounded out of his job. Mr Obama’s administration tried to prosecute him under the Espionage Act, a law passed in 1917 that prohibits people from giving information ‘with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation’. Mr Obama has indicted six whistleblowers, including Mr Drake, under the Espionage Act, twice as many as all prior administrations combined, for leaking information not to a ‘foreign nation’ but to the press.”

Finally, to tie the ribbon properly, The Economist contrasts the Obama administration’s secrecy with the new sunshine policy of Georgia’s Republican administration, which opens vast public access to government files. All this from a newspaper that endorsed Obama over McCain in 2008.

As to leadership, President Obama abdicated any vestige of it when he ignored the balanced-budget recommendations of the bipartisan Simpson-Bowles commission and subsequent Super Committee — both of which he had commissioned. And he left the design of health reform in the capable hands of Harry Reid and Nancy Pelosi.

Obama’s knowledge of community organization might be beyond question, but if his role as a teacher of constitutional law at the University of Chicago meant anything, warning bells ought to have chimed in his head as he signed into law the Patient Protection and Affordable Care Act, otherwise known as Obamacare — as became evident to constitutionalists on June 28 when the Supreme Court’s minority issued vigorously dissenting opinions to the majority’s ruling on its constitutionality.

His lack of economic knowledge is even more abysmal. The Diane Rehm Show referenced above was aired as a follow-up to the Democrats’ critique of Romney’s stint at Bain. TV spots, print advertisements, and an Obama address have caricatured private equity, financiers and of course the Republican candidate as “vampires” and “vultures.” A conflict between profits and unemployment was insinuated. Referring to these attacks, The Economist agreed with Romney’s oft-stated comment that Obama has no idea how the economy works or how jobs are created, and in its June 2 issue opined, “Mr Obama is guilty not of rhetorical excess but of economic muddle. That is far more worrying.”

But back to NPR.

The then soon-to-be-expected Supreme Court ruling on the legality of Obamacare supplied the theme for another recent Diane Rehm roundtable discussion. To the NPR powers-that-be, the constitutionality of the law must have seemed indefensible. So once again, they changed the premise and reframed the debate to stack the deck in their favor. Instead of focusing on the substance of the upcoming decision, discussion focused on the haplessness of five to four decisions and the desirability of broader consensus among the justices. This was chewing on the sizzle instead of the steak. Ironically, even though Obamacare was upheld, it was still a five to four decision.

Conan asked his audience whether NPR offered good value to its listeners, thereby subtly shifting the premise of the argument and justifying the subsidy. He received nothing but paeans of praise for NPR — from its own listeners, of course!

On June 15 President Obama displayed a presidential quality that is anathema to lovers of liberty: a lust for power. Bypassing Congress, he ordered the Department of Justice not to enforce certain measures of immigration law, in effect passing the so-called DREAM act by executive order. On the day it happened, Diane Rehm’s Friday roundtable discussion focused on the decree’s compassion, on Congress’s ineffectiveness, on the Republicans' immigration policy muddle, and on the consequences of the president’s move on the political campaign — in particular, how it stole the thunder of Florida Republican Congressman Marco Rubio, a Cuban-American vice-presidential hopeful whose modified DREAM act had a good chance of being enacted, in a conventional manner. In short, she focused on everything except the executive order’s legality.

A Fox News discussion, on the other hand — and virtually at the same time — questioned the constitutionality of the president’s decree, almost to the exclusion of every other aspect.

On another show, NPR itself was the subject du jour. Whenever the nation’s budget is up for discussion, NPR’s subsidy — relatively small as it is — becomes a point of contention for some Republicans. But the animosity conservatives harbor towards public radio for their leftward slant is almost beside the point. Their more basic concerns are twofold: is the subsidy a proper function of government; and can we afford it?

Those questions are about fundamental premises. Yet they were completely ignored when Neal Conan tackled the subject on NPR’s “Talk of the Nation.” Conan’s show is sometimes a Gatling gun of vox populi sound bites on whatever the current concern happens to be. During these broadcasts he poses a provocative question and solicits callers for their opinions, granting each of them only a few seconds, and seldom engaging them or directly commenting on what they say. On that day Conan asked his audience whether NPR offered good value to its listeners, thereby subtly shifting the premise of the argument and justifying the subsidy. He received nothing but paeans of praise for NPR — from its own listeners, of course!

Premises are not confined to words. Tone can convey its own hidden premises, and Conan is a master of the craft. Merely by the length of his silence and the inflection on the few words he uses to break it following a caller’s comment he can indicate his approval, disapproval or neutrality. The last is the quality he always strives to project, but the careful listener can often almost hear him muffling a censorious tut-tut-tut.

He doesn’t hold a candle, however, to the archly supercilious Nina Totenberg, NPR’s legal affairs correspondent. It’s never difficult to determine Totenberg’s likes and dislikes, which — you can be certain — are always evident, especially when combined with her East Coast Brahmin accent, which lends a certain emphasis to her tone. She can infuse with utter contempt the utterance of a name or story she disapproves; and she can manage to give weight and portent to anything she considers noteworthy, no matter how trivial or anodyne, by the intonation of her voice.

* * *

Writing is seldom objective; reportage never is. Putting an idea into prose requires choosing words to convey the thought, while even selecting what constitutes a news story, deciding how to report it, or how much context to include, invariably slants it.

This seems such a simple observation. Yet most news organizations are loath to recognize or admit it, and don a mask of faux objectivity that few people see through. With one exception: the aforementionedEconomist.

The Economist is an English weekly news magazine in continuous publication since 1843, with a circulation of 1.5 million. Itcalls itself a “liberal newspaper”, but it is not “liberal” in the American sense. Rather, it is “classical liberal”, sometimes advocating radical libertarian positions. Its June 11 issue carried a critique of charitable tax breaks as a cover story. It advocates the legalization of drugs and open immigration, has criticized the “corporate social responsibility” movement from an ethical perspective, and has strongly defended securities short selling and naked speculation as beneficial practices.

Ironically, the journal’s editorial stance results in much more objective reporting than that of an “objective” source such as NPR — for one thing, because a reader knows up front where The Economist is coming from. Contrast with The New York Times (the “newspaper of record”), with a print circulation of 1 million. The NYT has always considered itself the epitome of objectivity, yet a large majority or readers view it as “liberal” (in the American sense). This view was confirmed in a mid-2004 editorial by the then-public editor, Daniel Okrent, in which he admitted that the newspaper did have a liberal bias. But this bias is not the paper’s stated policy position. Both the NYT and NPR would benefit hugely from such a disclosure, as they would no longer draw accusations of hypocrisy. But don’t hold your breath.

One unexpected bonus from The Economist’s openly classical liberal bias is that they can use humor to drive the point of a story home. Reporting on Zimbabwe’s upcoming elections under President Robert Mugabe’s tyrannically corrupt administration, The Economist offered a photograph of an elderly, loincloth-clad shepherd leaning on his crook, next to a coffin under a tree; nearby, a cow grazed. The caption read: “Four votes for Mr Mugabe.”




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Prosecutorial Indiscretion

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On June 15, 2012, hundreds of thousands of foreign nationals living illegally in the United States turned on their television sets to hear that they had become eligible for (1) a renewable two-year deferral of removal from the country and (2) a work permit.

While this may seem like a big change for those immigrants, the focus here will not be on what it might do for them, but how it was done, and why.

How do you think it was done? Choose one of the following: (a) Congress passed a new law and the president signed it, (b) the Supreme Court struck down an existing law, (c) the president issued an executive order, or (d) none of the above.

If you chose (c), it would be understandable, as it was President Obama who announced this change in front of the cameras outside the White House. There was, however, no executive order. An executive order cannot be used to overturn an existing law. On September 28, 2011, President Obama told a group of Hispanic journalists that “this notion that somehow I can just change the laws unilaterally is not true. The fact of the matter is there are laws on the books I have to enforce.” The rest of the transcript is here:

http://blogs.suntimes.com/sweet/2011/09/obama_on_dream_act_cant_just_c.html

The correct answer is (d), none of the above, which leaves the question, “Then how?”

On June 15, Janet Napolitano, Secretary of the Department of Homeland Security, sent a memo to three of her underlings directing them to “exercise prosecutorial discretion” in the cases of certain “low priority” illegal aliens, “effective immediately.” (Yes, she ordered them to exercise discretion.) The memo enumerates the criteria to be used to determine which illegal immigrants will get the deferrals and work permits. The memo is here:

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

That’s right; it was done by interoffice memo.

It seems odd, doesn’t it? When I hear of prosecutorial discretion, I think of cases in which discrepancies in the chain of custody of a bag of pot lead the prosecutor not to bring charges or perhaps to drop charges, that sort of thing. But in this case, according to the June 15 New York Times, “more than 800,000 young people” are now eligible for deferrals and work permits because an unelected bureaucrat fired off a memo. Upon reading that, I had three thoughts: first, “That’s quite a few people.” Then, “That’s a pretty sweeping change.” And finally, “That’s some discretion.”

In any case, that seems to be how it was done. But why was it was done in just that way?

What follows is an informal examination of the power of prosecutorial discretion in the United States that may help explain the Secretary’s memo.

I once stayed with a friend who lived in the country just outside Düsseldorf. To go into town, I had to walk a few hundred yards to the end of a narrow lane and then cross a road to get to the bus stop. There was a crosswalk with a signal light activated by a button.

The first time I went to town, I walked down the lane, pressed the button and waited. Then I waited some more. With nothing but time on my hands, I looked down the road toward town and saw a straight, empty road that disappeared into some trees about of a quarter mile away. There were neat fields on either side. I turned my head and looked the other way and saw the same thing, fields and all. I then looked across the road toward the bus stop. After a minute or so, the light changed and I crossed.

On my second trip to town, I pressed the button, looked both ways, and, seeing exactly what I had seen before, quickly crossed the quiet, two-lane road.

In the shade of the bus shelter sat a German woman who did not approve of what I had done. I could tell that she did not approve because she told me so. Though my German is limited, I pieced together her strasse, verboten, and dummkopf, along with her gestures and facial expressions, and got the message. As I stood listening, I was reminded that German could do with more vowels and less phlegm. I was also reminded that I was not in Kansas.

Under the signs that tell pet owners to use plastic bags one often finds a fresh reminder of American pragmatism that would make William James proud.

Americans tend toward pragmatism. An American might say, “The purpose of the light is to prevent people from being run over by cars. If there are no cars, then the light, pragmatically speaking, has no purpose.”

Germans tend toward what might be called legalism. A German might say, “The purpose of the light is to tell the pedestrian when it is permitted to cross the street and, more importantly, when it is forbidden to cross the street.” To the German, the cars have nothing to do with it. While this is a simplification, it is not wrong.

In Southern California, where I live now, American pragmatism is on display for all to see. Each citizen sifts all rules, regulations, and laws through a personal pragmatic filter that removes those that are without purpose or of low priority.

A few examples will make the point. Speed limit signs are, of course, viewed as suggestions. Simple rules of the road regarding merging, tailgating, and signaling lane changes are ignored more often than not. Bicyclists are generally oblivious to traffic lanes, signs, and signals. Many locals feign surprise when told that the recreational use of marijuana is not legal. Only tourists stop at the signs that read “STOP”; locals just glide through. Under the signs that tell pet owners to use the plastic bag provided in the little dispenser one often finds a fresh reminder of American pragmatism that would make William James proud.

A German might ask, “What about the police?” In general, the police exercise a great deal of discretion. They use their personal pragmatic filters to screen out low priority violators and violations. Germans are surprised to see that people continue to disobey many laws even when the police are watching. Some of these violations, like dope smoking, depend on the jurisdiction, while others, like breezing past stop signs, are universal. What really shocks the Germans is that the police disobey many laws themselves. Those who doubt this can follow a squad car through traffic in Southern California and count the violations.

Some Germans find all this pragmatism bracing. Once, when I was camping in Zion National Park, a German with an RV and a sunburn walked up to me. In a beer-fed state of shirtless ecstasy, he threw out his arms and shouted, “Everything in America feels so free!” Most Germans, however, are appalled by our pragmatism. To them, it just seems stupid. I know this because they have told me.

The legal systems of the two countries reflect the difference between pragmatism and legalism. In the United States, as Rebecca Krauss explains in her essay The Theory of Prosecutorial Discretion in Federal Law: Origins and Development,“Prosecutorial discretion is a central component of the federal criminal justice system. Prosecutors decide which cases to pursue and plea bargains to accept, determining the fates of the vast majority of criminal defendants who choose not to stand trial.” She concludes the paragraph by pointing out: “In Germany, however, a rule of compulsory prosecution constrains prosecutorial discretion, checking the prosecutor’s ability to pick and choose which cases to pursue. No comparable regime restrains American prosecutors.” The entire essay can be found here:

http://erepository.law.shu.edu/circuit_review/vol6/iss1/1

Generally, then, in Germany, citizens obey the laws, the police enforce them, and the prosecuting attorneys, if the evidence is sufficient, take cases to trial. By contrast, in the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey; police exercise enforcement discretion, deciding which offenses and offenders merit citation or arrest; and prosecuting attorneys exercise prosecutorial discretion, deciding which cases will be brought to trial. While this is an exaggeration, it is not wrong. (In China I was told, in response to a question about driving with my headlights on during the day, that “any behavior that is not explicitly permitted should be considered to be prohibited.” They make Germans look like softies.)

There is another connection between American pragmatism and Secretary Napolitano’s use of prosecutorial discretion. Pragmatism is at the root of the illegal immigration problem.

It is obvious that for millions of foreign nationals to reside illegally in the United States, millions of foreign nationals must be exercising perpetratorial discretion and knowingly disobeying what they deem to be low priority laws that cover border crossings and residing in the country without authorization.

In the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey.

In order for them to stay, of course, it is also necessary for millions of American citizens to exercise their own perpetratorial discretion and knowingly disobey low priority laws that ban hiring illegal aliens. So, undocumented immigrants are hired to pick crops, mow lawns, frame houses, flip burgers, clean hotel rooms, assemble mobile homes, and take care of wealthy people’s children. It is not difficult to find workplaces in Southern California where most of the employees are in the county illegally. Both those doing the hiring and those being hired are getting what they want. As they see it, pragmatically speaking: no harm, no foul.

In addition, entire municipalities, counties, and even states are exercising enforcement discretion, looking at (or not looking at) the offenses and the offenders and deciding that immigration regulations are low priority laws that do not warrant action. Sometimes, the federal government even gently thwarts the efforts of smaller jurisdictions to give these laws a higher priority. Put another way, the crosswalk light says, “Don’t walk,” but there are few, if any, cars.

The consequence of all this perpetratorial and enforcement discretion is that there are very roughly estimated 11 million illegal immigrants living in the United States. What could be a more fitting a punch line to this droll tale than to have the welcome mat put out for 800,000 of these immigrants with an act of mass prosecutorial discretion?

But back to the question: why was the memo sent?

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes. Secretary Napolitano could not have sent the memo without his approval. He gave his approval because he wants to keep his job and, for that to happen, there must be a strong Hispanic turnout. The memo will help him get that turnout.

If the release of the memo and its theatrical announcement were not a reelection stunt, the policy could have been quietly announced to the press long ago.

Oh, wait. It was.

According to the Los Angeles Times (August 18, 2011), “The Obama administration announced Thursday that undocumented students and other low-priority immigration offenders would not be targeted for deportation under enforcement programs. . . . The move means that those who are in deportation proceedings will have their cases reviewed and, if they are set aside as low-priority, could possibly be given work permits.” Here is the entire article:

http://latimesblogs.latimes.com/lanow/2011/08/dream-act-students-not-targeted-for-deportatiom.html

So, in effect, the change had already been quietly launched last August. The June 15 memo and White House announcement really were a political circus act.

There is a more serious problem with this memo. Prosecutorial discretion has traditionally been used by government attorneys to quietly decide if individual cases should be tried. If the circumstances of a specific undocumented immigrant’s case were such that the attorney in charge of the case judged deportation to be inappropriate, that attorney already had the discretion to defer removal. With this memo, there is not much discretion left. The criteria for deferring removal are enumerated. Discretion has also ceased to be discrete. Prosecutorial discretion has been transformed into a mass political weapon launched by the president from the White House lawn. Its purpose is not only to win millions of votes and the election in November, but also to circumvent the legislative process.

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes.

Since the failure of the DREAM Act to pass the Senate, one of the president’s slogans has been, “We can’t wait for Congress to act.” With this memo, we now see what the slogan means. Executive impatience with the legislative and judicial branches of government has a long and colorful history. Historically, many elected executives have become so impatient with the separation of powers that they have arrogated legislative and judicial powers to themselves. While using prosecutorial discretion to alter, practically speaking, the status of 800 thousand people under existing law in order to win an election may not sink to the level of abolishing the legislature, it is an unfortunate step in that direction.

In her essay (see link above), Rebecca Krauss makes three points about this expansion of prosecutorial power. First, far from being embedded in the constitution, prosecutorial discretion does not make its first appearance in American case law until 1961. It has been cited with increasing frequency ever since. Second, prosecutorial discretion is not subject to normal judicial review, and is consequently outside the balancing framework of the separation of powers. Third, the rapid growth of prosecutorial discretion in both its breadth of scope and its frequency of use has been of increasing concern to legal scholars. Summing up these points, Krauss writes:

The Framers’ “constant aim [was] to divide and arrange the several offices [of government] in such a manner as that each may be a check on the other,” yet the other branches of government provide almost no check on prosecutorial powers. Rachel Barkow has remarked that “[o]ne need not be an expert in separation-of-powers theory to know that combining [modern prosecutorial] powers in a single actor can lead to gross abuses.”

The Napolitano memo was an abuse of prosecutorial discretion. While it may have been legal, it was an electioneering gimmick and a contrived expansion of prosecutorial discretion. Some day, the shoe may be on the other foot. What if a future president, exercising prosecutorial discretion, deems an array of federal gun control laws to be “low priority,” and directs the responsible authorities to defer all action in enforcing those laws and in bringing such cases to trial? What do you suppose the New York Times editorial page will have to say about prosecutorial discretion then? Or suppose a president deems the laws that defend private property to be “low priority” and has one of his secretaries fire off a short memo that suspends “effective immediately” all enforcement of private property rights? What do you suppose libertarian journals will have to say about prosecutorial discretion then?

Our democracy is an untidy system, with its checks, balances, two houses, three branches, and 50 states. It’s full of squabbles and compromises, contradictions and delays. It is that way by design.

Tyrannies are neat. All you have to do is send a memo.




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Why the Moneyed Media Should Pray for Obama's Defeat

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Everybody knows that the Moneyed Media (also known as Mainstream Media) are in trouble. The press, in particular, is doing badly. Readership and advertising income are down. The Pew Research Center for Excellence in Journalism reports that it's so bad they are going to rename themselves the Observatory of Media Mediocrity. Nah, actually, they report that 2011 newsstand circulation was down 43% since 2008. Overall circulation was down "only" 6% thanks to cut-rate subscription rates. Magazine ad pages went down 46% in the same period. Newspaper advertising and circulation, on average, went down about 50%. In short, a bloodbath.

Is it because Americans watch more TV? Nope. According to Nielsen's annual "Television Audience" report, a growing percentage of households in the 18-to-49 core demographic that advertisers so covet do not even own a TV set (about 3% this year, vs. 1% last year). If they ever want to watch a show or a movie, these people play a DVD on their computer or, increasingly, stream video from Hulu, Netflix, or the like. They are exposed to a few ads, but that's nothing in comparison to the 35% of airtime devoted to commercials that cable viewers get to swallow. And of course, all the news and infotainment spewed by network TV never reach these unplugged eyeballs. Even among the declining TV owners, the big networks and their affiliates saw their prime-time audience decline 12% since 2005. Live ratings of programs have been decreasing constantly for the last three years.

All these factors are a good reason to stop calling Big Media "mainstream." They still have income, a payroll, and some notoriety, though, which is why they can be called "the Moneyed Media."

What are the causes of this decline? According to every media consultant I've read, it's because of this darn internet. The ponderous Paperosaurus Rex and Teeveelociraptors are in competition with the small, nimble Internet mammals, and the old beasts are losing.

The modern-liberal media outlets show a disconcerting uniformity and are rarely critical of the Obama administration, except when considering the most irrelevant subjects.

According to the consultants' narrative, professional journalists see their carefully researched stories ripped and copied to multiple sites. Cheap local TV with underpaid, half-starving crews gains an undeservedly equal footing with the major networks, thanks to their websites. And the world mourns the death of Real Investigative Journalism, since these blog writers that now pass for journalists don't leave their mom's basement to go track toxic iPad factories in China or children killers in Africa.

Yes, granted: these factors certainly count. But isn't there another big reason for America's disaffection with the Moneyed Media?

Let's look again at the Pew report mentioned above. In 2011, the only national newspaper that increased its circulation was the Wall Street Journal, a resolute opponent of state intervention in the economy. The WSJ may not be every libertarian's cup of tea, but we have to give them this: they are, with Investor's Business Daily, one of the few national conservative dailies left in the country.

Similarly, Fox News has a notable anti-liberal slant, and gathers almost four times as many watchers as the combined CNN, MSNBC, and HLN (5.7 million vs. 1.5). Are we seeing a pattern here?

Fox and the WSJ are rare exceptions. In their enormous majority, the Moneyed Media are consistently modern-liberal. In 2007, the aforementioned Pew Research Center surveyed journalists and found that about 80% of these professionals identify themselves as liberals or at least as Democrats. Only 8% identify themselves as conservative (which would, presumably, include libertarian or classical liberal). It is a truism that most newsrooms are staffed with liberals and that a conservative journalist has very few employment opportunities in the Moneyed Media.

Now, let's put ourselves a second in the Birkenstocks of Dave Democrat and Lisa Liberal. They want to read a paper or a magazine during their train commute, and after their tofu and granola dinner, they want to watch some political commentary TV. They won't watch Fox or buy the WSJ, of course. But once past this initial filter, hundreds of publications and shows compete for their attention, from the allegedly moderate ones that Dave Democrat might favor to the rabidly leftist ones that Lisa Liberal may prefer. Lisa is even suffering from an embarrassment of riches: recall that only 19% of Americans call themselves liberal, yet a disproportionate share of the media caters to them.

The modern-liberal media outlets show a disconcerting uniformity and are rarely critical of the Obama administration, except when considering the most irrelevant subjects, such as Michelle's wardrobe or the antics of Secret Service agents. A grayish, soothing conformism oozes from all these mouths that babble without actually saying anything important, spewing a verbiage that carefully avoids important problems. It's a nice, relaxing way for Dave and Lisa to reinforce their biases, but it's pretty boring.

At the end, Dave will browse the Democratic Underground on his iPad while Lisa will read Daily Kos. At least, the crazy comments sometimes elicit a smirk.

And here lies the problem of the Moneyed Media: it's all the same leftist drivel, a uniform river of meaningless information that never evokes crucial problems.

The Moneyed Media carefully minimize all the news items that could harm or ridicule Obama and his peons. And yet, what golden material the Obama administration offers! The shady, undocumented past — even his student records are sealed. The illegal alien relatives. The DOE subsidies and loans to dubious firms, with taxpayers' money ending up in the pockets of rich Democratic donors. The gun-running scandals, which NBC News didn't mention until mid-June. The runaway regulations. The EPA undoing congressional laws. The beyond-reason deficit. The laws and court decisions that are ignored — sorry, "not enforced" — except in the case of medical marijuana, against which the law is sternly invoked. The continuing unemployment four years after the financial crisis started. The lawsuits against states. The gleeful, careless waste of money by the federal administration. The secret meetings while golfing. Why, if Nixon had done any of this, popular culture would still reverberate from the outrage!

If only half of Obama's stupid gaffes had been uttered by Bush I or II, they would be sarcastically recounted daily on every channel, in every paper.

And the gaffes, the gaffes! Whenever Obama strays from his teleprompter, hilarity ensues. "I've now been in 57 states" during the campaign was a howler by itself. Then we had "I don't speak Austrian" — yeah, I hope you speak Australian at least. We heard a Navy member being called a "corpse-man." We saw the president, parading at a goofy show, disparage his own bowling, comparing it to the Special Olympics — how classy. Oh, but that's OK, because "We're the country that built the Intercontinental Railroad." Too bad the country is inhabited by working-class voters, because "they get bitter, they cling to guns or religion or antipathy to people who aren't like them." Then we basked in his wisdom: "Middle East is obviously an issue that has plagued the region for centuries." But don't think he is unpatriotic: to a veteran crowd, he said, "I see many of the fallen heroes in the audience here today as we celebrate Memorial Day." And there are many more. If only half of these stupid things had been uttered by Bush I or II, they would be sarcastically recounted daily on every channel, in every paper, and used as icebreaking jokes by every attendee of conferences.

And then there are unexplainable acts that occupy a class by themselves, Obamaisms that, by their weirdness, leave any Bushism far behind. Bowing to the Saudi king. Bowing to the Japanese emperor. Giving a speech during "God Save the Queen" at Buckingham Palace. You can treat these awkward moments as fodder for comedy or for indignation, but they certainly deserve better than the silence that greeted them in the Moneyed Media.

You see, our talking heads are being protective of this "mainstream African-American who is articulate and bright and clean and a nice-looking guy," in the immortal words of Joe Biden. (And speaking of comedy, Biden's bloopers would have launched a hundred standup routines in a less leftist America.) But this unflinching support makes the heads uninteresting drones who can no longer connect to an audience or a readership. The public is bound to notice mindless idolatry, at some point. And it has. It pays less and less attention to the babbling poseurs in the Moneyed Media. That's why business is down.

The remedy is obvious. Since all these fine intellects in the newsrooms are currently paralyzed by unconditional devotion, let's turn the love into rage. Let's replace blatant self-censorship with thundering, fact-exposing editorials. In a word, let's have a Republican president. Faced with the fall of the One, all the creative energy currently spent in covering up scandals and making media boring will suddenly get channeled into the pursuit of truth. If the present GOP favorite is elected, we won't see much difference (alas) in the level of statism, but we'll immediately be regaled with the slightest nuggets of scandal unearthed from a boring Mormon life. After four years of self-muzzling, our media will once again learn to analyze documents, discern truth, and expose coverups. The moneyed media will be back in business.

But of course, they will fight tooth and nail against it.




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Like the Father or the Dog Just Died

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Leading up to Father’s Day, I count my victories in small bites. This month, it was a button.

While filling in my son’s information on ePACT, an online emergency preparedness resource for families, I noticed that on the mother’s page there was a button for "same address as child." For the father, there was no such button. I wrote a letter. Now fathers have a button too. A button-sized victory for dads everywhere. Well, for dads in British Columbia anyway.

There’s still a part of me that feels ridiculous writing complaint letters about these sorts of things. Two years ago, I would never have noticed the discrepancy. Who cares about a button? But after two years as a single dad — two years of dealing with gender-role stereotypes at nearly every level — there I was, not only noticing but writing letters.

Unfortunately, not every institution is as responsive as the nice folks at ePACT. There is, to pick on the local 800-pound gorilla as an example, Revenue Canada. Its policy for the Canada child tax credit explicitly and unabashedly discriminates based on gender: “If there is a female parent who lives with the child, we usually consider her to be [the primary caregiver]. However, if the male parent is primarily responsible, he must attach to Form RC66, Canada Child Benefits Application, a signed note from the female parent that states he is primarily responsible for all of the children in the household.” And if the female parent will not provide a signed note, then the burden of proof on the father is somewhere between that of a criminal trial and the Spanish Inquisition.

In my case, a sole-custody court order was deemed insufficient to prove that I have “primary responsibility” for my son. I was asked to provide letters from his school, from his afterschool activities, and from community leaders such as doctors and lawyers. For a mom, it’s automatic. For a dad, it’s a two-year treasure hunt.

But resistance is futile, so I tried to comply. In doing so, I noticed that my son’s elementary school had changed his student information from “Father has sole custody” to “Mother has sole custody” despite the fact that the school had a copy of the court order. Like ePACT, the school is full of good people. The teachers, the principal, everything about it is great, and it was apologetic about the error — a simple accident, not conscious discrimination. But even as an accident, it says volumes about social expectations. People assume that the mother is the caregiver to such a strong extent that it changes what they see on the page.

It’s somehow become socially acceptable (again) throughout North America to devalue a human being purely because of an identity-characteristic such as gender.

Dealing with this over and over has made me hypersensitive, a bit like a feminist in the 1980s. When my son’s teacher corrected his grade-one essay about his family from “My family is my dad, my mom, and . . .” to “My family is my mom, my dad, and . . .” I asked the teacher why. She told me I was “ridiculous” and “offensive” to bother her with such an issue. She was both right and wrong. It is ridiculous to complain about a simple swapping of the word order — though not that dissimilar from the campaign 20 years ago to change “businessman” to “businessperson” — yet when you correct a child you’re telling him he’s wrong, that he made a mistake. Why is it a mistake to put “dad” first?

When did it become such a bad thing to be male? Why has “testosterone” become a dirty word? Thinking about these things, I started to do something men don’t often do: I talked, communicated. First during poker games with friends who happened also to be single fathers. Then through a website I started for single dads, initially as a fitness site for dads with little spare time. And finally through systematic research for a book that grew out of this frustration.

What I’ve seen coming out of all this talking is that it’s somehow become socially acceptable (again) throughout North America to devalue a human being purely because of an identity-characteristic such as gender. In the US, President Obama's method of counting civilian casualties excludes all military-age males, within a strike zone, who have not been explicitly proven innocent. Meaning that it’s official government policy that in certain situations the simple fact of being male makes you guilty until proven innocent.

Here in Canada, we have a Ministry for the Status of Women — a cabinet-level government ministry — that publishes reports of journalists who write articles discussing the gender discrepancy that’s leaving boys behind in schools, and reframes this as a “hate” issue against women. A report from 2003 titled School Success by Gender: A Catalyst for the Masculinist Discourse, for example, argued for greater government monitoring of websites that seek to help boys in school or give fathers support in custody disputes. "Some masculinist groups use the Internet as a vehicle for hate-mongering against feminists. This accessible and virtually universal medium gives them the opportunity to say and post almost anything. It is no accident that this medium is being used by those on the extreme right, pedophiles and pornographers.”

This is not a fringe group writing. It’s a report for a government ministry associating men with pedophiles and pornographers simply because they are seeking each other’s support — something that women do far more naturally than men for reasons of culture and history. If men are forming support groups, if they’re seeking a greater role in caring for their sons and daughters, if fathers are engaged with their sons’ education and well being, then those are all good things. They should be encouraged. It means we’re slowly moving to a post-gender society. Ironically, however, all the institutions we’ve put in place to help enable that transition are precisely the ones that are now causing the greatest obstacles.

The philosopher Ivan Illich once pointed out that every institution gradually becomes counterproductive to its original intentions: the medical industry causes illness, educational institutions induce ignorance, the judicial system perpetuates injustice, and national defense makes a nation less secure. Similarly, the fight for gender equality has now made it almost politically incorrect to acknowledge equality among parents.

So let me put my cards on the table before I get added to the ministry’s list of “certain writers acting as the customary spokespersons for the masculinist discourse.” I’m not a misogynist. I’m not anti-feminist. I like feminists, and I have read more feminist literature than any man I know. I don’t agree with all of it. I tend to prefer French deconstructive feminists, such as Luce Irigaray, and literary ones such as Gayatri Spivak, over the more combative ones, such as Andrea Dworkin and Catherine McKinnon,who once wrote that "to be rapable, a position that is social not biological, defines what a woman is." Which inevitably implies that to be a rapist defines what a man is.But I’ve read them all, I appreciate them all, and I think it’s time for men to start learning from them all.

That's because it is time for a masculinist discourse to complement feminist discourse, especially in family matters where the unofficial policy often seems to be mirroring the official “guilty until proven innocent” approach to defining war casualties based on gender. We don’t need men shouting words like “feminazi,” which is the way masculinists are caricatured — but it's worth pointing out that to be a good feminist you also have to be a masculinist (and vice versa). I’m not suggesting that everyone needs to become as hypersensitive as I am now to missing buttons for the dad’s address or the constant bombardment of “man as idiot” commercials on radio and TV. But we do need to start some sort of conversation about gender that is rooted in today rather than in history. I have a son, and to me that trumps any notion of historical wrongs. I don’t want him to grow up voiceless, any more than a feminist 30 years ago wanted her daughter to grow up second class.

And if not for your sons who will one day become fathers, then do it for the girls. Because if you assume men cannot raise healthy, well-adjusted, and confident children just as well as women can, then you’re also implicitly re-opening the question of whether a female firefighter can perform certain rescues as proficiently as a stronger male counterpart.

In the song "Everybody Knows," Leonard Cohen sings the line, "You've got that broken feeling, like your father or your dog just died." Within family matters in North America it does sometimes seem that this is the status that fathers are assigned. So on this Father’s Day, let’s give the dads a promotion. Fathers are wonderful. They’re just as cool as mothers.




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Tort Reform vs. “Loser Pays”

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The concept of reforming the American legal system to adopt the “loser pays” system used in most foreign countries, by which the loser pays the winner’s attorney’s fees, is popular among libertarians. “Loser pays” is proposed as a means of deterring frivolous litigation and solving the problem of excessive lawsuits. When Texas recently adopted the system, it was championed as a victory for small business. I have seen John Stossel advocate it, and in Liberty I have seen Gary Jason endorse it in a comment on one of my essays. “Loser pays” is a policy that might seem reasonable to a non-lawyer layperson. To a lawyer like me, unfortunately, it looks like a policy with unintended and unfavorable consequences — and a policy that has little chance of accomplishing its purpose.

The idea that it will deter frivolous litigation hinges on the idea that the frivolous litigant will lose. Yet if frivolous litigants actually stand a good chance of winning, then “loser pays” deters nothing except poor people, who would find it riskier to access the justice system. In torts lawsuits, the laws are such that bad plaintiffs with bad suits often have a good chance of winning. For instance, Liebeck v.McDonald’s was a lawsuit in which a woman sued McDonald’s because she spilled hot coffee and burned herself, for which McDonald’s was held liable at trial for millions of dollars (mostly punitive damages) and ultimately settled the appeal. This is the quintessential bad lawsuit, and it was held up as a poster child for tort reform. Yet the plaintiff won at trial, on the argument that the coffee was excessively hot and the cup’s warning label was too small.

This lawsuit could have been stopped by reforming the law, that is, by creating a bar to punitive damages whenever there is a warning label. Because the case settled, it would have been unaffected by “loser pays.” Under “loser pays” the risk of having to pay McDonald’s’ legal defense fees if the plaintiff lost might have factored into her calculation of whether or not to sue. But she won the case at trial, and if cases like this happen, then who really expects plaintiffs with bad cases to be excessively afraid of losing? As I will explain below, you don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury. So if a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits. The best solution is to reform the tort laws so that plaintiffs with ridiculous cases have no legal way to reach a jury.

You don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury.

Meanwhile, “loser pays” is likely to scare poor people with valid claims away from court, by inspiring the fear not only of losing but also of paying the huge legal fees of a wealthier opponent’s high-powered law firm. The landmark civil rights litigation that helped to end Southern segregation might never have been filed in a “loser pays” system.

As for frivolous suits — There are already legal ethics rules and civil procedural rules that forbid and punish lawyers for bringing “frivolous”, “vexatious”, “abusive” suits, and there are provisions that enable judges quickly to dismiss baseless or groundless claims. “Loser pays” will add little to the tools that are already there to deal with the frivolous. In fact, the only way to prevent bad litigation is to eliminate the bad laws that form the legal basis of bad lawsuits.

Let me clear: I am an advocate of tort reform, just not of “loser pays” in particular. There are many tort reform policies to choose from that would reduce unnecessary or harmful litigation without toxic side effects. We could, for instance:

1. Reduce the percentage of the tort plaintiff’s contingent fees that are considered “reasonable.” Legal ethics rules ban lawyers from charging “unreasonable” fees, but a whopping 30% is considered reasonable, and 30% is the typical rate. I think a cap of 5% as “reasonable” would cut the amount of frivolous litigation in half. In this way, torts plaintiff lawyers would enter their practice with some other goal than becoming multimillionaires by exploiting the tragedies of their poor clients.

2. Eliminate class actions. The whole concept of class actions has always bothered me. To say that someone else has the right to litigate my claim without my consent or involvement, just because our claims are identical, is absurd, even if there are requirements of judicial consent and competent representation and the ability to opt out. Judicial efficiency, which is the valid motive of class actions, is not an excuse to let someone else litigate my case. Because class actions have millions of plaintiffs but only one law firm, the lawyers often make millions while the plaintiffs each get a few cents.

Now, there is already a rule in legal ethics codes that bans lawyers from representing multiple clients who have conflicts of interest with one another — something I believe most class action clients have, because each client’s claim is slightly different and might benefit from the case’s being tried differently. The conflict of interest rules are considered to be among the most important, yet class actions have a loophole. So instead of effecting a statutory ban, I propose simply to close the loophole and force class action lawyers to vet every member of the class for conflicts of interest. Any conflict would remove that class member. This would sharply reduce the volume of class action litigation.

3. Change the products liability tort standard from strict liability to negligence. Products liability cases are typically tried under a theory of “strict liability,” which means that fault (i.e. blame) need not be proven. Strict liability is an affront to logic, an abomination. While some see the purpose of tort law as deterrence, I see it as compensatory justice, which means that damages are supposed to restore a victim to the condition he or she would be in, had the defendant not made a bad decision. I view tort law and contract law as twin aspects of free will and personal responsibility, as recognized by law: contract law means that your choices will bind and control you, whereas tort law means that someone else’s choices will not be allowed to ruin you. If defendants have not made bad choices, there is no reason to make them pay.

If a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits.

Although a layperson might think of negligence as something that happened to cause an unintended accident, the better understanding is that it consists of the choice to be careless and risk-prone. The strict liability standard has been justified on the grounds that product defects are technologically complicated and it would be too difficult to prove negligence, but this is no excuse for bad law. We should force plaintiffs to prove negligence. Then everyone will benefit from cheaper prices, because manufacturers’ litigation costs will decrease.

4. Reform the standard of negligence for medical malpractice, so as to create a safe harbor. Medical fees skyrocket when doctors are forced to pay huge medical malpractice insurance premiums, and the practice of medicine is compromised when doctors based their decisions on fear of being sued, not the health needs of their patients. My safe harbor proposal is that if a medical practice or hospital had a written policy of procedures designed to prevent the type of malpractice that is at issue in a case, and the policy was implemented and regularly enforced and internally audited for compliance, then negligence cannot be proven. Similarly, if a surgeon or delivery obstetrician had a checklist of risks to prevent, a list that multiple doctors double-checked at the time of the surgery or childbirth, and the negligence at issue was on the list, then the doctor would have entered a safe harbor.

This is simply common sense: if the doctors were taking every possible systematic action to limit risk, then they were not negligent. Such precautionary policies would protect patients from accidents far more effectively than the tort lawsuits that drive up medical costs. Such a negligence test would cut frivolous lawsuits. State legislatures can codify my safe harbor rule, but clever judges could tacitly incorporate it into preexisting common law med mal negligence standards.

5. Put a statutory dollar limit cap on damages. My understanding is that a civil trial is really just a popularity contest in which the jury votes for the lawyer it liked the most. Instead of faithfully interpreting the judge’s instructions to the jury (which are often so technical that only a lawyer could properly apply them), the jury awards lots of money to the party it likes and punishes whichever parties it disliked, by making them pay huge damages. Usually poor old helpless plaintiff Mr. P, the janitor with a wife and five children who is suing because he broke his leg, is more sympathetic than the rich big business defendant Corporation D, especially when Mr. P’s lawyer slyly insinuates that D cut corners on safety in order to make a profit. This is the open secret, the 800-pound gorilla in the room, when people talk about tort lawsuits and tort reform. This is also one reason why “loser pays” is ridiculous: from a practical, pragmatic, no-nonsense point of view there is no reason to believe that the loser is the one who deserved to lose.

The right to a jury trial in cases that are “at law” (i.e. where the plaintiff seeks money) is constitutionally “inviolate,” and I leave for another essay the question of whether jury trials should be comprehensively reformed. However, at a bare minimum justice demands that we solve the problem of headstrong juries by removing jurors' discretion to award damages in excess of what the intent of the law indicates, simply because they happen to feel sympathy for one side or another. Activist judges who do not faithfully apply the law are a problem, but so too are activist juries. A legislative statutory solution to place reasonable, honest dollar value caps on each of the different types of damages, or to lower the caps that already exist, is one feasible fix.

In conclusion: “loser pays” is far inferior to the American Rule, in which each party pays his own attorney’s fees regardless of who wins or loses the trial;but there are tort reform solutions available if voters elect legislators and judges who will use them.




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In the Land of Blind Men

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I, like you, have become accustomed to the hypocrisies of collectivists established in politics and the popular culture. Examples are legion, but here are two that have stuck with me:

  • Sen. John Kerry, who once called Americans who avoid high taxes “traitors,” showed all the integrity you’d expect from a gigolo by docking his rich wife’s multi-million-dollar yacht in Rhode Island instead of his native Massachusetts to avoid paying some $500,000 in sales tax and other fees in the Bay State.
  • More recently, the past-his-expiration-date pop singer Bruce Springsteen grasped desperately at street credibility by claiming spiritual kinship with the Occupy Wall Street movement in between jaunts across the pond to watch his daughter jump horses in front of the Queen of England.

There’s a hardened cynicism to these charlatans that I can almost respect. They’re like the Soviet Union’s porcine apparatchiks, mumbling allegiance to the proletariat during the week before speeding off to their dachas for weekends of vodka, caviar, and ritzy mistresses. Decadent men, stewing in the karmic juices of false words and incoherent lives.

But I’m troubled by the paste-eating stupidity of younger collectivists. They’re too dumb to be cynical, too oblivious to be decadent. And they aren’t worthy adversaries.

Consider one Will Doig, a featured essayist for the online magazine Salon.com. The callow Mr. Doig’s beat is “Dream City,” which the mandarins of “progressive” politics at Salon.com describe as follows:

How should we build the cities of our dreams? How do we create the urban spaces which reflect our values and the ways we want to live? In cities around the world, the future is being created now — and Will Doig will chronicle the most exciting and innovative ideas.

Presumptuous use of pronouns. In the immortal words of Tonto: “What do you mean ‘we,’ paleface?” Or “our”? And these points keep coming up.

A recent Doig essay was titled and blurbed “When the 1 percent say no / Cities need public transit and affordable housing. But outdated laws make it easy for the wealthy to block progress.” I’m not going to fisk the entire thing — if you’re so inclined, you can read it yourself. But I do want to point out a few, instructive examples of its stupidity.

Both title and subtitle smack of search-engine optimization (SEO) — the Internet marketing discipline of writing in a way that increases a web page’s likely ranking on Google, Yahoo, etc. In a relatively short space come several phrases cherished by collectivists: “1%,” “public transit,” “affordable housing,” “outdated laws,” and, of course, “the wealthy.” These phrases have taken on totemic qualities — and have lost any real meaning to a broad audience. As George Orwell points out in “Politics and the English Language,” such clichés elicit emotional response in a few hearts but cease to mean any actual thing.

(A note: Doig probably did not write the title/subtitle himself. At most magazines, staff editors do that. That’s especially true when the titles are chock-full of SEO buzzwords.)

Mr. Dream City begins his essay by excoriating the burghers of Beverly Hills for using California’s environmental-impact laws to prevent a segment of subway from being burrowed under their homes.

Right off, Doig makes several lazy mistakes:

  • His characterization of Beverly Hills as an enclave of the wealthiest few is wrong. Most of the city’s residents are professionals, mid- to upper-level corporate managers, and small-business owners desperate enough for status to rent or buy homes in an overpriced — even by southern California standards — ZIP code. The 1% live closer to the Pacific Ocean.
  • Opposition to the subway in Los Angeles is not limited to the strivers in Beverly Hills. Property owners (both residential and commercial) in just about every affected neighborhood have objected to the nuisance of lengthy construction since the decades-old project’s earliest days. The focus on the latest stage of the fight shows considerable selection bias.
  • Doig shows a remarkable obliviousness to irony. The strivers of Beverly Hills are using the same tactics that environmentalist opponents of private-sector real estate development have been using in California for decades. As a man of the Left, Doig should recognize Alinsky tactics: the attorneys and VPs are making the state follow the same Kafkaesque rules that they have to follow.

This blindness to irony abounds in Doig’s essay. Some of his complaints sound more like Donald Trump or the owner of your local strip-mall than Le Corbusier:

The threat of lawsuits and endless public hearings have delayed the project. . . . public micromanagement has become such a problem that several cities are now trying to rein in the Not-In-My-Backyard crowd. “The current process does not work for anyone,” one urban design expert told the San Francisco Chronicle. “We want the Planning Commission to focus on big planning issues, not micro-design issues.”

Public micromanagement? Dude, who’s supposed to oversee public projects? Some urban design expert’s “we”? I, for one, don’t want Planning Commissions focusing on anything. In most situations, I’d like to see them abolished. Put all land in private hands and let the largest property-owners in an area decide among themselves whether they want to spend the millions — or billions — required to build a mass transit system.

Of course, Doig’s “we” is the same as Pauline Kael’s “anyone.” More a reflection of the limits of his worldview than a first-person, plural.

Dream City also fails to grok, or even acknowledge, the role of personal property rights in the social contract. You won’t find the word “property” anywhere in the essay. And, as Doig doesn’t understand personal property, he doesn’t understand takings — something that the founders of this country understood so well that they limited the government’s property-taking power in several ways.

Here’s as close as he comes to stumbling across the concept of takings:

. . . in 1970, the California Environmental Quality Act gave anyone in that state the power to stymie development by questioning its eco-friendliness, a right that’s routinely abused. These rules, designed to check the power of city officials, now perversely consolidate immense power in the hands of a few outspoken “concerned citizens.” . . . Worst of all, these rules have created a new norm in which individual residents just assume that their personal opinions should carry great weight in routine planning decisions.

A “new norm” where citizens assume their opinions carry weight? The stupidity of these sentences is so thick the passage reads like Swift satire. Sadly, it’s not. But it is an almost complete inversion of the reality of the last 40 years, when bogus public interest groups have stymied the plans of individuals and private entities to develop their own property.

To be clear, precious Will: the “personal opinions” of “individual residents” should carry great weight, especially when those residents own the land under which “we” would like to dig a massive subway tunnel. They are an important check against “our” taking or doing things that diminish the value of personal property.

The column ends up butchering the writings of several left-wing economists who study risk theory. The goal seems to be to set “anti-development activism” in the context of bad economic policy. But it fails because Doig doesn’t realize that most “development” is carried out not by some collectivist “we” but by individual private-sector entities. Even in Dream Cities.

I do like one of his conclusions, though: “if a proposed development’s impact is unclear, it’s crucial to take into account not just its unforeseen negative effects, but its unforeseen positive ones, too.” I’ll break out that quote the next time enviro-hipster carpetbaggers come to my county to protest the development of an empty lot into a golf course.

Salon.com isn’t a serious political magazine. Its business model seems to be to launch the TV careers of left-wing talking heads whose rising media profiles will result in clicks and advertising revenue. Bon chance. If its talking heads are as oblivious as Will Doig, we won’t have Salon.com to kick around for very much longer.




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