For Valentines Day 2016

February 9, 2016

It’s the time of year to think about love. I used to think that if you hadn’t heard Cho Cho San sing in Madame Butterfly about that fine day when Lieutenant Pinkerton would return to her, one had never heard a love song. Musically, I still think so. But what it really communicates is longing. Is that love?

Much of what we hear as popular music, or art songs or operatic love songs are songs of longing, loss or jealousy. Where’s the love?

Contrast that with Billy Bigelow’s soliloquy in Carousel where he starts thinking of the child he and Julie are expecting. First he thinks about the things he’ll do with “my boy Bill” until he realizes that the son he is dreaming about could be a she, and then realizes the ways that he will have to provide for her. Of course he is sexist in the ways that he thinks about his son or daughter, but he is also realizing and warming to the responsibilities of a loving husband and parent. Billy comes to understand that love is about the ways he can make his family’s lives better, not merely about his own pleasure.

Billy makes a big mistake and pays with his life. But the soliloquy that Rogers and Hammerstein wrote for him says a great deal about what love is about, the ways it transcends longing and jealousy, the joys of giving, the humanity of caring. I think that says a lot about the love that many of us experience. We seek the responsibility, the opportunity as well as pleasures of truly caring about others.

For me, that includes the satisfaction of taking seriously the needs of other Americans, of all origins, faiths and colors, and openness and respect toward visitors and immigrants. Respect and concern for others is part of asking the same for oneself. Ours is a very diverse country and it will be moreso in coming years. We can teach new generations of Americans that success is just a process of stomping on others to gain advantage or we can communicate the values of mutual concern and respect – toward others, and toward ourselves. Ultimately, peace depends on how well we treat each other, and how confident others are that they can live in peace and harmony with us.

The modern world has upended some ancient accommodations among peoples. Jews lived at peace in the Muslim world for a millenium and lived precariously in the Christian world for much of the same period. Colonialism played a part in changing that for the Muslim world. The racism and classism of colonialism stirred the Muslim soul and some of that has come out as anger. That illustrates the importance, as well as the morality, of the Golden Rule, treating others as we would want to be treated. For me it also points to the satisfaction of truly caring about others.

May I end with the words of the ancient Rabbi Hillel:

If I am not for myself, who will be for me?
But if I am only for myself, who am I?
If not now, when?

— This commentary was broadcast on WAMC Northeast Report, February 9, 2016.

 


What is Limited Government Anyway?

January 26, 2016

With the presidential primaries underway, the media is choked with talk about getting the government off the people’s backs, restoring limited government, making government let the people alone. But the Koch brothers, the Tea Party, their candidates and supporters are actually saying something very different – they want government to support their definition of their rights and push everyone else out of their way, and most important they want the courts to decide in their favor when others complain that they are trespassing on public land or polluting the air, land and water in ways that injure and interfere with the lives of others. That’s government in their favor.

We lawyers talk about law as a seamless web. That sounds like an idiom but it’s actually very precise. Everything is governed by rules. Judges always decide that someone does or does not have a privilege or a right. Those are all decisions about what the law is. Law always favors someone and disfavors someone else. If someone has a privilege, then everyone else loses when that person does whatever he or she is privileged to do. The question is not, cannot be, whether there is law; the question we have to deal with is whether it is fair and whether it is good for the public. Government off the backs of some means government on everyone else’s back, often leaving you and me poor and defenseless.

Limited government, regulation off people’s backs, are the tropes we hear when a government agency or legislature takes note of bad behavior – fraud, pollution or unconscionable business practices that cause decent people great loss. Unscrupulous companies, some very large and well known, as we discovered during the 2008 financial shock, want no regulations that would set a moral floor under their behavior, allowing more moral enterprises to compete instead of being bankrupted by cut-rate competition from the scandalous moguls. The only regulations that the unscrupulous like are regulations that keeps everyone else out of their way.

So when you hear that trope, look squarely at the privilege these anti-government claimants are defending. You hear it loudest when people are claiming the right to hurt the public. That’s not a claim of freedom that would have made any sense to the Founders of our country.

When the Founders spoke and wrote about government, their central questions were what’s fair and what’s good for the public. Those was central in every aspect of their work from the definition of property rights to the rights the public retained and what the public could and should do for the benefit of the people. Concern for public welfare was central to the building of the Erie Canal that defined the path of commerce in the State of New York for a century and a half, even as the canal was replaced by roads and railroads to continue developing the path the canal had developed. Concern for public welfare was central to the establishment of schools which made Americans among the most educated people on the earth, education that was at the root of all the good things that have happened since.

The Founders believed in public spirit, not a spirit of what the public could do for one’s selfish needs, but a spirit about what each of us could contribute to the improvement of the community, the states and the nation. When President John F. Kennedy told the American people “Ask not what your country can do for you; ask what you can do for your country,” he was channeling the spirit of the Founders.

— This commentary was broadcast on WAMC Northeast Report, January 26, 2016.


Propensity to violate others – taking checks and balances seriously

April 28, 2015

Polls have found that more than 3 American men in 10 would rape or coerce a woman into sexual intercourse if they could get away with it.[i] Those findings have mostly been discussed only in conjunction with the issue of rape. But I think it has a broader meaning. I think it means that there is a proportion of people who will take advantage of defenseless others for their own benefit when they think that they can.

That creates problems in lots of areas. Like soldiers of countries that we think are less civilized then we, some proportion of American soldiers have resorted to forms of torture like waterboarding. Some go berserk, others are mean, but the misbehavior is predictable, if not who will do what. And like police of countries that we think are less civilized then we, some proportion of American police have also victimized demonstrators, people down on their luck, the homeless and racial minorities. That’s certainly not democratic policing. And it’s made worse by codes of silence in some police departments that are almost as sinister and sometimes worse than the codes among thieves.

I don’t think that most police are bad guys. But when we set things up so that people can get away with bad stuff, it is predictable that a significant proportion will. When we hand people guns and then make excuses for whatever they do because it’s a stressful job, we should expect that a significant proportion of them will do very bad things with the freedom we give them. A system of impunity encourages bad behavior. So one question is how we can set up our police forces so that policemen have the right incentives, incentives appropriate to a free and democratic country? Transparency and accountability matter.

The same is true of business, both international and local. When we take all the tools out of the hands of consumers and courts, we should expect a significant proportion of businesses to misbehave and take people for a ride, often for very dangerous rides. And in business the market mechanism can sometimes make things worse because it punishes those businesses which can’t bring their costs as low and their profits as high even when the mechanism is to take advantage of people, take their money, injure, and leave their lives in shambles. Responsible businesses need responsible regulation to keep the competition in line.

The same of course is true in politics. That’s why we value free speech so highly. But as my colleague, Timothy Lytton pointed out in a book called Kosher,[ii] a study of private marketplaces that do and don’t work, accountability depends on a sufficient number of people with intense interest in the subject, people the rest of us trust to check on what is happening, and a way to get the information out. It’s not automatic – there’s too much to know, too much work to find out.

So transparency is only the beginning. We have to have a culture in which we expect to hold people and organizations to account – without fear or favor for any of the groups and institutions that can hurt us. But in law, the Roberts Court seems to be developing the opposite – a legal culture of defenses and protections buried in contracts and doctrine. And in popular culture, stereotypes, ideology and polarization now substitute for facts. Heaven help us.

— This commentary was broadcast on WAMC Northeast Report, April 28, 2015.

[i] See Sarah R. Edwards,  Kathryn A. Bradshaw, and Verlin B. Hinsz, Denying Rape but Endorsing Forceful Intercourse: Exploring Differences Among Responders, 1 VIOLENCE AND GENDER 188, 190 (2014) available at http://online.liebertpub.com/doi/pdf/10.1089/vio.2014.0022. Though the survey size was small and localized, similar results have been reported before. See Only Psychos Think Rape is OK…Right? in Web Info on Sexual Assault and Abuse (University of Illinois at Chicago, Office of Women’s Affairs, Campus Advocacy Network), https://www.uic.edu/depts/owa/sa_rape_support.html collecting some of the studies.

[ii] Timothy D. Lytton, Kosher: Private Regulation in the Age of Industrial Food (Harvard Univ. Press 2013).


Forcing us to Live in an Immoral World

September 2, 2014

We are increasingly being forced to live in an immoral world. The radical wrong has hijacked the very idea of morality so that it no longer has anything to do with helping our neighbor. We’re not supposed to lift a collective finger for our fallen fellow citizens. Nothing for the unemployed, nothing for people who have been defrauded out of their homes, nothing for unions, and no taxes from those who benefit most from America’s wealth – and who are coincidentally disinvesting in America. Read the rest of this entry »


Our Common Stake in Affirmative Action

October 15, 2013

The Court just heard argument in another affirmative action case. It is often put as if it is all about them and the rest of us are just losers as the result of any affirmative action for African-Americans. But do we have a stake in affirmative action, or whether African-Americans remain a permanent underclass? Read the rest of this entry »


Our Stake in Each Other’s Welfare

October 8, 2013

Do we have a stake in each other’s future or only in our own? That is a central question of American politics. The Tea Party’s tossing of the entire American budget into the sea over the issue of Obamacare is an effort to say no, we have no stake in each other’s welfare. To claim a stake in each other’s welfare is socialism. Although the political waters warrant silence from many elected officials about it, that same cry has been leveled and is being leveled against other American efforts to help each other. Social security, socialism. Medicare and Medicaid, socialism. Indeed, there is no logical reason to draw the line there and many don’t. National parks, socialism. Veterans’ benefits, socialism. Head start, socialism. Why stop there? Public schools, socialism. Public hospitals, government health departments and laboratories, socialism. It’s all socialism in the heads of the true believers. So let me repeat that question – do we have a stake in each other’s future or only our own? Read the rest of this entry »


We Will Not Comply

March 5, 2013

Did you hear the demonstrators against New York’s new gun law chanting in unison “We will not comply!”

That’s the problem. Guns allow some of their owners to think that they can define right and wrong and everybody else has to comply. In the hands of some of their owners, guns puff up their sense of self-importance, their sense that laws are written for everybody else but that they are above the law. Read the rest of this entry »


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