The Chambers of Our American Sea

I don’t know what other people do when they are sick and more or less couch-ridden, but I do things like watch intensive introductions to Marxism on YouTube. If you really want to go through the looking glass, get about halfway through a Marxist lecture and then take a dose of Nyquil. As I lay on my couch in a cold sweat, shivering with the chills and learning just where the money went, I had the distinct feeling that I was Neo about to get swallowed from the Matrix and dumped out into the realm of the real.

Am I a Marxist? An anarchist? A Communist? I think the question of labels is beside the point. What I am is a person who sees massive wealth concentrated at the top, misery at the bottom, insecurity in the dwindling middle, endless wars, ecological disasters and economic crises looming and thinks, maybe this isn’t the best way to order our world.

The Marxist lectures in question are by Richard Wolff, professor emeritus at the University of Massachusetts at Amherst. Professor Wolff’s lectures (find the first installment here: https://www.youtube.com/watch?v=3wkO3qsZY_U) take us step by step through Marx’s theory that in capitalism one group of people, the laborers, produce the wealth and another group, the capitalists, controls and distributes it. The profit of the capitalists, on this view, is nothing more than the amount by which they are able to underpay their workers, which allows them to retain the “surplus value” when they sell their products. Needless to say, Marx has a bit of a problem with an economic system that allows one group to appropriate the work of another for their own profit.

Now anyone paying attention these days knows that those at the top have captured our government. They get the policies that they want, the rest of us be damned. This is demonstrably true, and the reasons for it are not difficult to discern. Here is what one article on the subject has to say: “A shattering new study by two political science professors has found that ordinary Americans have virtually no impact whatsoever on the making of national policy in our country. The analysts found that rich individuals and business-controlled interest groups largely shape policy outcomes in the United States.” (You can read the article here: http://thehill.com/blogs/pundits-blog/civil-rights/214857-who-rules-america). We probably already knew that the wealthy and corporations disproportionately influence national policy. After all, why would they continue lobbying politicians and spending so much money on campaigns if they didn’t get their policies enacted as a result? But that ordinary Americans have no impact whatsoever in the making of national policy? If you do not find that profoundly disturbing then you are either a commentator on Fox News or the CEO of a Fortune 100 Company, or both.

And by the way, far from being a new trend in American politics, it is woven into the very fabric of the system. This tidy piece of writing by Noam Chomsky is a good starting point for understanding the inherent tension between democracy and economic inequality: http://www.chomsky.info/books/commongood02.htm. Professor Chomsky reminds us that, faced with the understanding (going back to Aristotle) that fully participatory democracy is incompatible with economic inequality, our founding fathers opted to limit democracy rather than ensure relative equality.

Now recognize that the political system is, at least regarding fiscal policy, just a way to redistribute wealth. The federal budget is a massive law dictating who has to put money into the system and how it gets meted out. One way or another, much of the wealth in America gets run through the federal budget and redistributed. So you can guess that those who control America’s government are redistributing wealth in ways that benefit themselves, otherwise why would they bother spending so much time and money to control it in the first place? People who think that we spend too much on social programs should ask themselves just how much more they are “paying up,” since it is a sure bet that those who spend billions to control the political system don’t make that investment in order to redistribute money to the downtrodden.

So in my Nyquil-induced haze I came to realize that today in America we are subject to a double distribution problem: the wealthy and the corporations control the distribution of wealth both economically and politically. They call the shots in the boardroom and in the halls of power (And don’t get me started on the Supreme Court of Corporate Corruption). For ordinary Americans, this is the stark reality: we don’t get to decide how to distribute our collective wealth according to our values, because we are doubly locked out of the political economy.

As for what to do about it, the good professor says that Marx never told us. He thought that capitalism was incapable of delivering liberty, equality and brotherhood and needed to be replaced, but he believed that deciding what should take its place was a kind of fortune telling and he would not indulge in it. Neither in the former Soviet Union nor in China, nor in any of the more or less socialist states that have come and gone have we yet seen an economy wherein those who create the wealth are the same ones who get to distribute it. Nor, for that matter, have we seen since ancient Greece a political system in which those who decide the policies of the state are the members of the state acting directly, rather than through elected officials.

For my part, America is like one who is sick and drugged and couch-ridden, dimly aware that he is witnessing something disturbing but unable to bring it into sharp enough focus to understand it fully and take decisive action to right it. I like to think that one day we will awaken from our stupor and finally order the world for our mutual betterment. But I wonder if we will instead linger on in the chambers of the sea, as TS Eliot wrote, ‘till human voices wake us and we drown.’

 

 

 

 

 

 

 

 

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From Whence The Rivers Come

I just finished rereading Hemingway’s The Sun Also Rises. The first time that I read it I was 20 years old and was not much of a reader. I also was not very worldly. I loved the book, and I loved the characters in the book. I loved their carefree lifestyle, their witticisms and mannerisms, their sophisticated way of moving in social circles from Paris to Pamplona. I was so captivated by the world created by Hemingway that I didn’t notice that the characters were not actually having a good time, that they were not decent human beings and that the story was ultimately a tragedy. Funny how one misses such minor details in the thrall of reading something so well written.

So I read it again. Twenty years later, a thousand books and a thousand experiences the wiser, I once again joined that moveable feast with Jake Barnes, Lady Brett Ashley and their misguided party. This time, I was appalled at Jake’s anti-Semitism, at his hypocrisy, racism, homophobia and elitism. I recognized the damage that Lady Brett caused in the world around her, and how causing such damage was one of her only pleasures in an otherwise miserable existence. I did not miss the generally abhorrent behavior cascading ever downward toward a truly cynical end. On second reading it is the tale of a lifestyle that is bankrupt and impotent, voyeuristic and parasitic.

Damn if I didn’t fall in love with the book all over again.

Good fiction tells a story that we cannot stop reading until the end, riveted by what may happen next. Literature, though, transports us to an experience of being that is deeper than our daily existence. This is what happens when one reads The Sun Also Rises, and that is why it transcends the fatal shortcomings of its characters and even of its author. In the end, it is the reader who needs redeeming, who longs for an experience that does not occupy his mind but rather nourishes his sense of being.

Twenty years ago I marveled that Hemingway could give me an experience so utterly transporting. Now I understand much better the nature and redeeming value of that experience. In a world designed to have us always trying to get somewhere, in great literature we encounter a world that is complete for us now. It is ironic that writing, which is inherently derivative, is one of the great vehicles to an authentic and direct experience of life.

There is a profound and present mystery afoot. I may never catch all of Hemingway’s allegorical references. I may not recognize the tragic structure he employs or appreciate how much of a departure his prose style was from what came before it. Hemingway, for his part, may have been a man of deeply flawed sensibilities, laid bear for all time in his many writings. I can forgive myself – and Hemingway – for such sins, because in a hopelessly fractured world there is yet a wholeness that is here and there are vehicles that can bring us there.

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Of Things That Matter

Joanne Berger-Sweeney, Ph.D. is the new President of Trinity College. She is a scientist. She is a teacher. She is a scholar. For those of us who care deeply about Trinity and about the liberal arts, these things matter.

My idea of a scientist was not fully formed when I arrived at Trinity in 1989. But by the time I graduated in 1993, I knew a scientist when I saw her. While I was delving into Philosophy, History and English, I loved to hear Britt Stockton, Karalyn Kinsella, Jeannie Hoffman and others discuss Biology, Neuroscience, their awe for the knowledge within their calling, indeed their entire experience in the world of science of which I knew very little.

Though I did not pursue an education in the sciences at Trinity, I shared with my scientific friends a passion for scholarship. Scholarship, simply put, is learning that places the pursuit of knowledge as the first among competing values. This placing of values is elemental and crucial: knowledge as a means to an end is only as noble as the end achieved; scholarship is ennobling in itself. In a flow of human commerce driven almost exclusively by economic self-interest, pursuit of the liberal arts reminds us that we can still be moved by nobler ideals.

Trinity is not above the greater community in which it exists. Increasingly, the student body is bifurcated between those whose families can pay the astounding tuition, in full, and those who need full funding to be there at all. President Berger-Sweeney has already spoken of Trinity as a community. In my estimation, to further strengthen this community Trinity must provide an assured market of opportunity for its students of need that stretches beyond their formal studies and into their careers. More than ever Trinity must be a vertical community that creates – and sustains – lifetimes moved by nobler ideals. Scholarship and opportunity are tandem privileges that cannot be reserved for those of privilege in a free society.

In our new president Trinity has chosen science and scholarship, community and opportunity. As one who first encountered these things at the College and still sees them as the best of Trinity and humanity, I wish her well and commend the College for the values reflected in its choice for a new leader.

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The Anchor and the Net

             I have a friend who loves to play her guitar.  All of her life, as far back as she can remember, it is what she most loved to do.  When she grew up she went to college and wanted to major in music.  But like many of us, it was during college that she first encountered the voice of reason.  “Oh no,” the voice of reason told her.  “You cannot make a living playing the guitar.  You are smart; you should study engineering.”  So she studied engineering.  But one semester short of graduating, she quit.  For years afterward she had many jobs, but she never tried to make a living playing her guitar.  She continued to play, but she was afraid to perform in front of an audience and anyway, she knew that she could not make a living at it, because the voice of reason had told her as much.

             So life went on, and she went on, neither engineer nor musician.  Her life was without purpose or goals, and the days passed one after another.  Many things happened to her: love, loss, friendship, hardship, and the like.  She still held on to the idea that one day she might finish college and finally become an engineer, but slowly the voice of reason faded and the life she had fallen into became her life.  During this time her music became a private world to which she would retreat, a place that she loved to visit for its beauty and wonder.   She would go to this place often, sometimes for many hours at a time, and more than ever her music became her world, her being.

Then one day, something bad happened that shattered the world she had created.  Without that world, she found herself stuck once again between the voice of reason and the music that she loved.  Only now, the voice of reason presented itself as the way out of her newfound troubles, which only gave added strength to its position.  “Now you really must do something and get somewhere,” the voice of reason told her.  My friend could not argue with this pronouncement, and felt all but ready to go back to school.

Sensing victory, the voice of reason told my friend, “this is the right decision.  One day you will get somewhere, and you will understand.”   That is all well and good, thought my friend, but I wonder about this somewhere.  So she asked, “how will I know when I get somewhere, and what happens if I don’t like being there?”  “Well,” replied the voice of reason, “you either get somewhere or you end up nowhere, which is a terrible place to be.  Come now, it is time to start trying to get somewhere.”

“But,” my friend persisted, “where will I be while I am trying to get somewhere.”  “Well, you will be trying to get somewhere.  Trying to get somewhere is much better than being nowhere,” said the voice of reason with great authority.

My friend was now more confused than ever.  Nowhere did sound like a terrible place to be, but trying to get somewhere sounded full of risk and frustration.  And if she did try to get somewhere, she was afraid that she might try her whole life and never get there.   She felt as if she was on a tight rope, high above, unable to see a net below or an anchor ahead, firmly connecting the tight rope to a safe place on the other side.  In that moment my friend felt paralyzed, and could not see a way out of her confusion.

So my friend sat down where she was, on the side of the road in a distant town that for some days had been her refuge, and began playing her guitar.  She did not know if she played poorly or well, or if the passersby heard her or stopped to listen.  But the sun was shining and the seaside air blew gently and she felt good.  Her music was like the salt-water taffy that churns slowly, endlessly, a rhythm of muted color evolving into a sweetness unknown to itself.  For a long time she played, and for a long time the sun shined and the passersby went about the streets and the seaside breeze touched it all.

But eventually the sun began to set and the passersby started to go home and the breeze became cool on the evening tide.  My friend sensed the shift, and knew that soon it would be time for her to stop.  This was not the first time that she had sat down and played her music on a warm summer day, and her skin was brown and her hair was streaked with blond.  Many people had put money into her guitar case, which she now gathered and put into her bag.  Her earlier confusion was a memory and she wondered what she would eat tonight and whether she would see some of the new friends she had met recently.

As she walked down the street my friend thought about the people who try to get somewhere and whether they ever do.  She thought that some probably do, and others do not, and that most people are too afraid to try.  She wondered whether she would ever get anywhere, or whether she would end up nowhere, and whether it matters in the end.  She knew that the answer was unlikely to find her that day, as she walked down the street.  But she had her music, and the money in her bag for an evening meal, and that was something.

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Can Gaining a Settlement Actually Cost You Money?

There is a case presently before the Supreme Court that raises fundamental questions of greed, the law and fairness.  An employer-funded health plan wants to force an employee to reimburse medical bills it has paid from out of the employee’s auto accident settlement, knowing that after paying the legal fees the employee would actually end up losing money as a result of the settlement.  The Plan nevertheless wants its money, and has taken its case to the Supreme Court in an attempt to get it.

Mr. McCutchen was an airplane mechanic for 18 years before being struck by a teenage driver, leaving him permanently disabled.  His medical bills were $66,866.  His health insurance, which was set up by his employer, paid those bills.  Mr. McCutchen also suffered more than a million dollars in other damages.  He collected $110,000 in settlements from the auto insurance carrier of the teenage driver and from his own underinsured policy, which was all the money available to him under those policies.  His legal fee relating to those settlements was $44,000, leaving him with a recovery of $66,000.  The Plan now wants to be repaid – in full – the $66,866 it paid in medical bills out of the settlement, without paying any share of the legal fees.  If the Supreme Court allows it to do so, Mr. McCutchen would actually end up losing $866 as a result of his effort to recoup some of the massive losses he sustained from the accident.

The contract under which the Plan paid the medical bills states that the Plan can do just what it is proposing to do.  Of course, Mr. McCutchen did not negotiate that contract, any more than you or I negotiated the contract with our health carrier.  In any event, this issue of the right of an insurance company to be reimbursed from a third party is not new: It happens all the time in auto accident cases and many other contexts.  In those other contexts, courts have consistently limited reimbursement rights – regardless of what the contract states – in various ways that ensure a fair allocation of the settlement proceeds.  But the Plan in this case is subject to the federal ERISA statute and the Supreme Court has never before addressed this issue under the ERISA statute.

As a legal matter, this is an interesting issue about whether the equitable rules that typically limit reimbursement rights regardless of the terms of the contract apply under the ERISA statute that governs this case.  As a matter of the way we collectively live our lives, this is a case of an entity with power and money pursuing every last penny from a man who has already suffered catastrophic losses, and was only able to recover a woefully inadequate settlement to offset them.  It is simply unconscionable to me that anyone would seek to enforce a contract that would leave a catastrophically injured man financially worse off than he would have been if he had not tried to recover some of his losses.

Believe it or not, the insurance company won its case in federal district court.  The circuit court in the McCutchen case overturned the district court decision and now, not to be deterred, the plan has gone all the way to the U.S. Supreme Court asking for its money.  If the Court rules in favor of the Plan, Mr. McCutchen – and millions of other Americans – may have to honor unconscionable contract provisions, even if it means they have to dig into their own pockets to do so.

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Hunting the Great Wooly Mammoth, or What Paul Ryan Keeps Talking About

            I find myself back in the Paleolithic age.  Sort of. In my own way I have become a nomadic hunter, roaming the frozen tundra of New England in search of the big kill. Interestingly, my new way of life is helping me to understand the mindset of modern Republicans.  But mostly it has just helped me to see the difference between those who are merely allowed to hunt and those who dominate the landscape.

            My life as a court-appointed defense lawyer was, naturally, all about playing defense.  The best I could do was take a good case to trial, shred the prosecution’s evidence, create reasonable doubt in the minds of a jury and secure my client an acquittal.  Satisfying?  Yes.  A vindication of my client?  No doubt.  But keeping my client out of jail did not keep him from the ordeal of the trial.  Nor did it bring justice to those who actually committed the crime, or help the victims of the crime, or even do anything to ensure that our country would abandon its obsession with prosecuting and jailing people (the criminal system is asymmetrical: if I lose, my client goes to jail, if the prosecutor loses, he just goes on to his next case).  And win or lose, as an hourly wage earner, I did not get the thrill of bringing in a good case or securing a judgment from which I would earn a big check.

Suing insurance companies that just won’t do the right thing is something altogether different.  What I do now feels like hunting.  With good cases, life gets very exciting.  I get up in the morning, go to the office and take up the trail where the tracks left off.  An insurance company is a powerful and cagey beast, a worthy adversary for even the greatest modern hunter.  Sometimes the trail is long; sometimes the beast eludes me.  But each win is truly exhilarating, especially because it is one of a series of intermittent bounties rather than a prescribed take collected at steady intervals.

In modern Republican parlance, I am now one of the ‘makers,’ a person who earns a living by owning or operating a firm rather than working for a paycheck.  (The fact that I don’t produce anything tangible is not a disqualifier: the ‘makers’ on Wall Street don’t make anything either, other than a mess of the global financial markets).  I am engaging in free enterprise for profit, creating work for paralegals, administrative help, website designers, office supply providers, court personnel and others along the way.

And I must admit, it feels kind of cool.  Like the difference between renting a house and owning one, the feeling of working for one’s self is qualitatively different from and infinitely more satisfying than the alternative.  Enterprise, as the Republicans romanticize it, is precisely this risky, exhilarating, profitable experience, and we must keep taxes low and regulators in check so that the robust and courageous among us have a vast and free landscape in which to engage in their various enterprises.

So now that I know what all of the Republican fuss is about, what do I think?  Well, I cannot deny that there is something of a thrill to the modern hunt.  For me at least, something deep inside responds to the risks of enterprise, and my being thrives when the challenges, risks and rewards are great.  It is wrong, though, to elevate the animal instinct to hunt over our more human instinct to care for our own.  It is more wrong to support a socioeconomic policy premised on the worry that stifling the makers might hurt the rest of us.

Every system has its hunters, whether communist, socialist, capitalist or dictatorship.  Whether a system is run by business leaders, politicians, or a military strong man, it is all the same: someone is always making a killing.  One system may stifle the enterprising aspirations of the many more than another, but that is simply the way the leaders have set the landscape so that they can make bigger and bigger killings for themselves.  The only real question is whether we are part of their hunting party or caught in their crosshairs.

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Lawyers and Mentors

Today I agreed to write a recommendation to Georgetown Law School for Vince Novelli, a senior at Trinity and a recipient of the same scholarship that I had as an undergraduate there.  Vince is a natural leader, the kind of person who connects with everyone while maintaining a strong sense of himself and his goals.  Writing his recommendation will be easy.  I spoke today with another former scholar, Brett Jackson, who is also applying to law school.  Brett and I have worked together on many projects relating to the scholarship, he in his role as an on campus mentor to the current scholars and me in mine as a member of the scholarship committee.  He speaks his mind, has good ideas when he does so, and has a natural ability to get things done.  Although very different from Vince, he will also flourish as a practicing lawyer.

When I applied to law schools in 1994, attorney Victor Keen (whose class at Trinity founded the scholarship) wrote a recommendation for me to his alma mater, Harvard.  It was a piece of writing whose concision and precision made an impression on me that has lasted to this day.  Later, he put me up in his Manhattan loft when I visited NYU and Columbia.  By the time I enrolled at Penn, Victor had moved to Philadelphia.  During my time at law school, we spent many Sundays running along the Schuylkill River, discussing my classes and his work as a corporate tax lawyer.  Victor demonstrated in his own unselfconscious way the reasoning skills and sound judgment that a lifetime of lawyering tends to produce, and became an example that I emulate to this day.

When I look at my life as a lawyer, the one stretch during which I felt lost and did not find success was a time when I did not have a mentor.  It was impossible for me to connect with the dedicated lawyers with whom I was working during that time, because my deeply held beliefs were at odds with the kind of work to which they had dedicated their professional lives.  When I picked up again after that difficult time, attorney Tom Waldron was there with friendship and some much needed perspective about being at peace in a system of justice born of conflict and resolved by conflict, if of another kind.  These days Terry Low is my partner, a deeply experienced lawyer whose judgment and counsel provide cover as I build my private practice in a new and complex area of law.

Developing as a lawyer, in other words, is an intensely interpersonal endeavor.  Victor used to tell me that becoming a lawyer changes you, but that it was the kind of change that you could monitor in yourself, maybe even evaluate whether or not you liked the changes.  In my experience we can only do this by establishing relationships with other lawyers that are more than simply professional.  We need to see what a good lawyer looks like, thinks like, writes like and acts like, day in and day out, until being a lawyer becomes a part of our own identities.  Just working with other lawyers is not enough; we stumble blindly without privileged access to a more experienced lawyer’s way of being in the profession.

A lawyer who wants to be special at her craft, capable of elegantly engaging the legal system on behalf of her client, must internalize the myriad and interconnecting facets of lawyering.  She must intuitively grasp not only the law and the facts but also the agendas and perspectives of the other players within the system, to say nothing of the effect of the litigation on her client’s broader life and business goals.  At this level of complexity, we can only ever hope to master our trade by entraining ourselves with our more advanced fellow professionals.  Of course, this is true of many other human endeavors, which I suspect also require the kind of close co-practicing that mentorship entails.  What is striking, though, at this point in my life as a lawyer, is that the nature of the endeavor I have chosen shapes my way of approaching both the human and non-human elements of any given task before me, legal or otherwise.

I will write Vince a recommendation worthy of Victor and my other mentors, and watch him and Brett develop as a people and as lawyers from a vantage point of extreme privilege.

 

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