NEWS: Live Traffic Feed

Monitor the live traffic to Political Cartel and see where the visitors to this site come from.

The Midwest

2009 November 21
by codyraymond

The following post is a piece written by my friend and fellow-PC blogger, Cody Rogers.  Cody’s interests and talents are a bit different from the rest of the PC crew.  His style is uniquely literary and his interests are much the same.  Since asking him to join us, I think he’s felt somewhat out-of-place.  Most of the writings on PC are politically oriented, or at least allude to some political aspect of society.  Although this may be true, I’d like Cody to realize that he reason we asked him to write with us is for his uniquely literary focus.

He recently wrote an extremely interesting and thought-provoking piece about what it’s like to grow up in the Midwest.  It particularly interested me, because I grew up in the suburbs of St. Louis – the Gateway Midwest city.  Although most of his experiences are fundamentally different from mine (Cody’s from outside of Des Moines), there are multitudes of similarities that strike my home-cords, because I know exactly what he’s talking about.  I’ll tell no more and let you, the reader, draw what you want from Cody’s literary expose about life in the Midwest.  It’s a bit long, but it’s well worth the read.  Enjoy!

- S.C.

The Midwest’s palette is the most uniform and starved in America.  Blue is that worn out crayola your kid uses to color his place mat at the shitty twenty four hour diner up the street, and nothing more.  Azure or cerulean are just big words for assholes to choke on.  It is a languid, dull place, that grinds your soul up in its mortar and pestle into an indistinguishable mish-mash to match the rest.

It is this striving for mediocrity that makes the poor of the Midwest the saddest specimens of all.  Have a wife, kids, get a job that won’t result in painting your brains against the bathroom wall, and your set.  The Midwest, in its own right is a beautiful place, but it isn’t a beauty that inspires so much as tranquilizes.  High minded individuals can come here and produce great works, but the homegrown cannot find any solace in the soil that has poisoned them.  Long stretches of corn fields, splashed with trees and creeks can soothe the outsider, but for the Midwesterner, they only serve as a metaphor of their prosaic and stultifying upbringing.

So, being poor in the Midwest is an even more painful experience for the creative mind than anywhere else.  When your only real expectation is to propagate and take uncomfortable family portraits for the in-laws, it becomes hard to find ambition or direction.  What develops is a comfortable stasis with all the flair and energy of an opium den.  What follows is an excerpt from a fictional piece I have started about growing up poor in the Midwest… read more…

The American Model at Risk

2009 November 21

And Obama’s carrying the hot stick.

American social ethics are much different from the rest of the developed world.  When speaking of social ethics, the typical comparison is made between American and Europe.  America is typically seen as very non-supportive of the indigent and the impoverished. Very unlike the common European welfare state, we take to the adage that worthy human beings ought to “pull themselves up by their bootstraps” not helped up by social welfare programs.  In America, there is a heavy emphasis on personal financial responsibility; relish and float your accomplishments, but don’t come crying when you fall through the cracks.

The bulk of the American nation is composed of tacit (and explicit) Randian admirers.  There is something noble about the tireless entrepreneur, the visionary businessman, and the self-made industrialist.  We have a well-founded and historical distrusts of government interference in our personal lives, especially when it interferes with our pocketbooks.  We become border-line belligerent when confronted with the idea of transferring wealth or paying higher taxes for dubious social programs.  My money is my money, not yours.  Why should I pay for that which I may not use.  Taking our money is commensurate to truncating our freedom.  Not something taken lightly in America.  Like a swallowing a dose of bitter medicine, we concede only with great reluctance.  The idea of grandiose social programs and spreading wealth to other social classes is repugnant to Americans.  Anything resembling “socialism” is likely to receive a McCarty-like reception.  We loathe the welfare state.

This American social ethics model seems very harsh if the other side is not revealed.  There is one condition that must be met in order to validate the “hands-off” American model:  high employment.  It’s by the same American social ethics that one finds a high emphasis placed on high levels of employment.  The logic is simple.  High levels of employment justify the rugged individualistic attitude of Americas.  If one is employed, then taking life by the reigns is perceived as possible.  However, without it, the American model is invalid.  If employment is high and job elasticity flexible, then, the argument goes, we have the freedom to choose.  Without this freedom to choose, nothing but great consternation and discontent can follow.

America has a historically high level of employment.  When I say historically, I’m really referring to the last 30 years or so.  American unemployment rate has typically been between 4 and 5 percent, compared to rates double that in the European welfare states.  The double-digit levels of unemployment, common in Europe, would be quite intolerable in the United States.  Why it is tolerable in Europe and not so in America probably has more to do with respective attitudes toward social and individual responsibilities, a topic for another day.

This leads me to a major issues in America right now.  Despite the hedging of a major recession unemployment remains historically high.  Herein lies a major issue for Obama, his credibility and political efficacy on the line.  The current jobless rate is a staggering 10.2%, a 26-year high coming in just under the 1980s peak of 10.8%.  This is the “official jobless rate,” a measurement that defines the labor force as the number of people employed plus the number of unemployed but seeking work.  It excludes those “discouraged workers” who have given up on finding work due to an unfavorable economic environment.  If you take into account a broader measure of unemployment, the percentage is significantly different.  The broader measure of U.S. unemployment stands at 17.5% – that’s one out of every six workers unemployed.  Quite a staggering difference.

The result of high unemployment in the U.S. is the discrediting of a firmly entrenched model.  However, this type of discrediting doesn’t produce a paradigm shift.  Instead, this type of discontent is one that tends to precipitate political change.  It is consistency that is sought after, not structural overhaul.  This is without a doubt something that must be in the back (or perhaps the front) of Obama’s mind if re-election is of any concern.  The American model doesn’t bend much in the face of high unemployment.  Thus Americans aren’t likely to tolerate high levels of unemployment for very long.  High unemployment discredits the American model.  Unfortunately, high – and possibly higher – levels of unemployment are in many an economists’ forecast.  It’s much too early to proclaim a nail in the coffin.  But the tool box may be open.

So, what happened?  The extent of my analysis won’t speculate too far, but I’ll point to economist Paul Krugman for his good – and usually right – analysis.  To Krugman, the problem was that the seemingly huge economic stimulus package wasn’t actually all that big.  In fact, it was way too small.  Herein lies one of the major barriers to full economic recovery and the source of major economic and political concern for Obama.

The bad employment report [in] June made it clear that the stimulus was, indeed, too small. But it also damaged the credibility of the administration’s economic stewardship. There’s now a real risk that President Obama will find himself caught in a political-economic trap. [emphasis mine]

How serious will this political-economic trap be?  Perhaps just another hurdle to overcome for our extremely able-bodied President.  But maybe the trap will be too deep and suffocating to escape.  There seems to be an extremely negative attitude fomenting amidst the jobless recovery.  People are feeling sold-out and deceived.  What started out as a real opportunity to fix serious structural flaws turned into an abandonment of average Main Street folk for cocktail drinking Wall Street executives.  Wall Street was bailed out an the expense of the everyone else, figuratively and literally.  Those responsible for the credit collapse that precipitated the recession were given a golden parachute while those not part of the Wall Street elite were given an anvil.  Add this to the relative levels of discontent over the lack of Democratic leadership towards health care reform and you’ve got one nasty looking political-economic predicament. The result is a feeling of uncertainty, at best, and betrayal, at absolute worst.  There is evidence that suggests a backlash in the progressive base – the same base that helped Obama clean-up during the general election.  Or worse yet, some have even go so far as to suggest that the government has broken its end of the social contract – quite a damning accusation.

I don’t mean to be a complete pessimist.  Despite all the problems that Obama faces, I think he’s got the smarts and know-how to properly address — well, I hope he does.  One thing is certain, though.  Obama has hit blunt reality.  Although he maintains intellectual and rhetorical skills par excellence, that doesn’t always translate into good governance or a re-election.  2012 may be an(other) interesting election.

Mass “Hurricane” Tort – The Katrina Case

2009 November 20

Will Hurricane Katrina be the Largest Tort in History?

Synopsis:

The situation follows; a piece of property is protected from sea water by a navigation channel maintained by the Army Corps of Engineers. Katrina comes along and destroys the barrier, letting sea water ravage the property. The property owner then sues the Corps claiming that they should be responsible for the harm caused. The claim has been denied for years using an 80 year old federal statute.

Major Issue:

Up until today, the Corps has been immune from liability. Shielded by the Flood Control Act of 1928 provides: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.” 33 U.S.C. Sec. 702c, p 2, cl. 1 (1988). If Section 702c is to be construed broadly, ”This immunity shields the government from tort claims arising from construction or management of federal flood control projects.”

Narrowness of Statute: Although this provides for flood control, this specific Mississippi Gulf River Outlet, which is center to this claim, was a navigation channel not explicitly under the purview of the Flood Control Act of 1928. The MGRO is not covered by this 80 year old statute and thus has no inherent immunity.

33 U.S.C. Sec 702c Construed Narrowly

A federal judge, Stanwood Duval, has decided that the narrowness of this statute precludes the MGRO from immunity.

Section 702c immunity does not depend on the location of the plaintiff at the time of the injury, but instead turns on whether governmental control of flood waters was a substantial factor in causing the injury. 31 F3d 683 Fisher v. United States Army Corps of Engineers31 F.3d 683

The courts seem to have been giving this statute a continually narrower interpretation, carte’ blanch immunity is rather incompatible with justice. Remember, that this statute was enacted 80 years ago – a lifetime of distance. The legislature would see this negative treatment and have the option to affirm the initial law by the passage of a bill. But remember, the legislature acts in broad strokes while the courts function to adapt and fill in responsible law. But this is really only the beginning. The property owners, plaintiffs, must demonstrate all the applicable elements of a tort claim.

The Twist – Negligence

The second major stumbling block for the plaintiffs was to prove Breach. To prove breach they had to establish that the Corps was negligent in its construction and maintenance.

The judge claimed the breach by the Corps was “Negligence and Myopia”. Mississippi Gulf River Outlet was apparently  widened, dredged, and further increased intensity of the storm by its shape. Assuming the science is correct, it reasonably looks to an objective person that it was in breach. According to the case, it was several longstanding practices that culminated in the massive failure. The judge found “monumental negligence” of the MGRO.

The plaintiffs say they hope a victory in the case could open the door for a broader class action in which more than 400,000 claims have been filed against the government. An Army financial projection has concluded that there is a reasonable possibility that potential government losses could ultimately range from $10 billion to $100 billion. Law Professors Blog Network

Ingredients of  a Torte’

Duty: Was this type of harm to the plaintiff foreseeable to the Corps? Yes, the Corps seems to have operative knowledge that the system was lacking. The surrounding factors show that the Corps was in unilateral control and that a failure would directly lead to massive property damage and loss of life. There was clearly a duty between the Corps and the plaintiffs

Breach: (Proving Negligence) – Judge has claimed that a myriad of factors has demonstrated that a manifest negligence existed. Another way to show breach could be using the hand model:

If (Burden of Prevention) < (Probability) x (Magnitude of Loss) -> Breach

Cause- “But For” the failure of the MGRO, the plaintiffs would not have been harmed. Easily established.

Proximate Cause- Was the breach a substantial factor in the catastrophe? One could argue that Katrina was responsible for an unforeseeable accident. Science seems to have shown that it was not the case. The MGRO would have held together if it was not subject to years of improper restructuring. Therefore, it was not Katrina but rather the Corps that was the substantial factor.

Harm- Lives lost, property destroyed.

Conclusion – Fairness Necessities Verdict

This tort has a caustic feeling, $100 billion in a tort claims for a hurricane… Lets pause for a moment and reflect on the implications before the visceral reactions. These plaintiffs – people – who lost their entire lives, were relying on the soundness of the MGRO to protect their property. The science has shown that it was not merely an unforeseeable natural event,  but rather that the negligent maintenance was responsible for the breach. That being established, it is the proper role for the government to assume responsibility - provided it was found by to be the tortfeasor. As a society we should be willing to shoulder and distribute the financial burden of a negligent government agency.

Benefit of the Tort

If this case receives positive treatment from other courts, it could force the Corps to rethink how it secures structures around the country. Many scientists have argued that there is a crumbling infrastructure posing major threats to population centers. While I highly doubt the Corps is willfully maintaining dangerous projects around the country, the immunity clause they operate under surely reduces the ability to receive funds. If a negligent canal collapses  they could owe billions whereas it would only cost millions to fix. The benefit is future events are less likely to occur under the threat of tort litigation.

“The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions,” Duval wrote. “The Corps’ negligence resulted in the wasting of millions of dollars in flood protection measures and billions of dollars in congressional outlays to help this region recover from such a catastrophe. Certainly, Congress would never have meant to protect this kind of nonfeasance on the part of the very agency that is charged with the protection of life and property.” Judge Duval

“Finally, somebody has said the truth,” said Catherine Serpas, 67, whose family runs a bicycle and lawn mower store in Chalmette, La. She said the Army Corps’ work on the 76-mile channel “destroyed the family life we knew. St. Bernard will never be what it used to be.” Chicago Tribune

Google Scholar – RIP Lexis Nexis and Westlaw

2009 November 19
by Michael Kraemer

The legal profession is stuck using two legal indexing services, Lexis Nexis and Westlaw. Both are prohibitively expensive and practically required for lawyers. David Manes and I had a recent conversation about the absurdity that court information had no free central indexing service – like a universal public interface. In other words, provide people with the case law that they are expected to follow as citizens. We believe that a single free portal, combining legal content from the courts and legislatures, is in the public interest. Deferring to a prohibitively expensive content management system drives up the cost of legal representation while also making it unavailable to non-attorneys. With this in mind, it is also relevant that the private companies do provide case briefs and hierarchical structure of “good law” or Shepardizing. But then again, is it not intuitive that governments convey laws of society to the public by providing this service?

On a quick detour, it is shocking how deeply rooted these two services have become in legal education. On the first day law students are given items, more realistically bribes gifts, from the twin agencies in an effort to buy allegiance. In just about every law school they have printers where students are encouraged to freely print any case (with an unlimited document count). Further, they encourage use by letting students earn points to get “Rewards”. Mandatory classes are taught by the representatives demonstrating the tools they offer, free as a student of course.

Thanks to Google, a new service has been launched that will begin to index “legal opinions from U.S. federal and state district, appellate and supreme courts”. This integration of cases into a single portal is the beginning of an Open Movement in the legal profession. A giant like Google has the potential and capability to reshape the industry. Introducing the newest service, Google Scholar Legal Opinions:

We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all. To understand how an opinion has influenced other decisions, you can explore citing and related cases using the Cited by and Related articles links on search result pages. As you read an opinion, you can follow citations to the opinions to which it refers. You can also see how individual cases have been quoted or discussed in other opinions and in articles from law journals. Browse these by clicking on the “How Cited” link next to the case title. See, for example, the frequent citations for Roe v. Wade, for Miranda v. Arizona (the source of the famous Miranda warning) or for Terry v. Ohio (a case which helped to establish acceptable grounds for an investigative stop by a police officer).

http://googleblog.blogspot.com/2009/11/finding-laws-that-govern-us.html

This is only a first step in widespread aggregation of legal opinions. I have high hopes for this product. I imagine that this system will eventually integrate law journals,  subsequent treatment by courts, articles, blogs and other relevant material that could greatly improve the overall access of a case to the public.

“If it keeps expanding, it could envelop all the private scholarly article databases that are so prohibitively expensive right now. That would be great.” David Manes

Good Luck, Google.

De Tocqueville’s Dystopia

2009 November 17

I recently finished reading Alexis De Tocqueville’s Demoracy in America.  It’s an extremely stimulating read about the makeup, the sentiments, and the tendencies of the American democratic republic.  Contrary to what I expected, De Tocqueville is very critical of democracy in general, and American democracy in particular.  He wasn’t shy or reserved in his criticism of the inherent ills of democracy.  Of the many facets, social and political, one that he revisits time and again is the equality of condition.  Some of the more notable characteristics of an equality of condition in a democracy is the blurring or total dissolution of class lines, the relatively high level of affluence for all citizens, the regularity of morals, and the rise in pleasurable living.  The last quality being perhaps the newest, most intriguing, and definitely the most insidious component of America’s democratic society.  The rise in pleasurable living results in a unique social condition.  In this condition people seek incessantly to procure petty and nonessential pleasures and seek a sensational and glamorous lifestyle freed from thinking critically about anything essential.

Although there are a whole host of benefits derived from an equality of condition, the disadvantages may outweigh them all.  Most notably of all disadvantages is the loss of the citizen’s ability to understand his own personal interest.  People become lost in their own opulence.  They are are less concerned with essential matters of life and society and are devoted, almost entirely, to seeking the pleasures of a material life.  The equality of condition leads people to focus almost entirely on themselves. People become wholly consumed by their burning passion for material possessions and personal comfort.  They are driven entirely by a fanatic-like zeal for pleasure at the expense of other, more virtuous values, such as education, public service, or community improvement. In short, people become so obsessed with satisfying their own selfish desires that they feel no need to sacrifice something of their own for the prosperity of society.  As De Tocqueville notes,

The love of well-being has now become the predominant taste of the nation; the great current of human passion runs in that channel and sweeps everything along it its course.

This fault of democracy seems prima facie only minor.  Selfishness may simply be a result of affluence.  To some it may not seem like a disadvantage of all; what’s wrong with opulence and a passion for pleasure?  Isn’t that a sign of wealth and power?  Perhaps so, but the unintended consequences of gluttony may be hidden behind a translucent veneer of wealth and power.  The negative effects are extremely dreadful.  In part because of their gilded manifestation, but more so because of their inhibiting effects.  Stationed above this race of people who are fatted by selfish desires is a tutelary power, which has taken upon itself alone to secure their satisfaction and fulfillment and to watch over their fate.  Given legitimacy by popular election, this tutelary power combines the principle of centralization and that of popular sovereignty.  This gives the people an opportunity for respite.  What results is an odd form of self-imposed, popularly elected, form of despotism.

[People] console themselves for being in tutelage by the reflection that they have chosen their own guardians… by this system the people shake off their state of dependence just long enough to select their master and then relapse into it again.  A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people.

Such a politically emaciated society will find it nearly impossible to break out of this odd state of self-imposed despotism.  The “will” of the people has been surrendered to an addiction to comfort.  The spirit of the people has been broken and the national character enervated.  To expect people in such a state to do anything remotely constructive is all but hopeless.

It is in vain to summon a people who have been rendered so dependent on the central power to choose form time to time the representative of that power; this rare and brief exercise of their free choice, however important it may be, will not prevent them from gradually losing the faculties of thinking, feeling, and acting for themselves, and thus gradually falling below the level of humanity.

Quite a damning accusation against the American republic.  To what extent has the American people become so self-centered and glamor addicted?  Have we surrendered our free-thinking capabilities in exchange for material gratification and perpetual comfort?  Due to our high levels of affluence and our even higher levels of comfort, it is hard to see.  But I do believe that Americans have a uniquely glamor-driven mindset.  We want to biggest, the best, and the fastest.  We couldn’t care less for intellectual exchange or an in-depth explanation of a complex issue. We are obsessed during election periods, but quickly lose interest once election day passes.  We are easily swayed by simple, bunper-sticker phrases; we disdain thinking critically about critical issues.  We prefer instead simple, lofty language that tells us what we want to hear.  American politics is a spend-o-fest, fully equipped with all the lights, glamor, and sooth-sayings needed to win over the remarkably simple, glamor-obsessed minds of the respective politicians’ constituents.  We’re exceptionally easy to entertain.  Feed our craving for sensationalism, promise us a lot, keep our taxes low and employment high, then continue as planned.  A Brave New World anyone?  Perhaps some Foucault?

America.  Land of the “free.”  Home of the intellectually emaciated slaves of pleasure.

Open Letter to Ashleigh Banfield

2009 November 16

Open Letter to Ashleigh Banfield

Dear Miss Banfield,

I am terribly sorry to hear about the way you were treated by NBC, I think it is grotesque. I am writing to you as a law student having just worked extensively on restrictive covenants. I recently learned of your contractual censoring following a biting critique of Iraq in 2003:
new_formal_headshotI was office-less for ten months….No phone, no computer. For ten months I had to report to work every day and ask where I could sit. If somebody was away I could use their desk. Eventually, after ten months of this, I was given an office that was a tape closet. They cleared the tapes out and put a desk and a TV in there, and a computer and phone. It was pretty blatant. The message was crystal clear. Yet they wouldn’t let me leave. I begged for seventeen months to be let out of my contract. If they had no use for me, let’s just part ways amicably — no need for payouts, just a clean break. And [NBC News President Neal Shapiro] wouldn’t allow it. I don’t know what his rationale was — perhaps he thought I would take what I felt was a very strong brand, and others felt was a very strong brand, to another network and make a success of it. Maybe that’s why he chose to keep me in a warehouse. I will never forgive him for his cruelty and the manner in which he decided to dispose of me. Huffington Post

The Validity of a Contract/Non-Compete Depends on the Terms

Contracts may not force servitude.  Courts have struck down agreements that serve no purpose other than to unduly oppress an employee. The justice system is not indifferent to unfair contracts. A court finding that terms are against social policy will use it’s authority to excise and modify unfair portions. I recently wrote about the Al Franken’s Anti-Rape Amendment, which is a great example about how companies exploit employee’s via contracts – but this isn’t ADR – it’s a far easier issue. Keep in mind that if a reasonable person finds something grossly unjust, there is likely a legal argument to support that feeling.
-
I understand that you personally suffered, which if verifiable and correct,  is repulsive to the average person. If NBC refused relieve you of the contract, then this may be a prime example of the power imbalance in workplace setting. This power enables denigrating conduct because a person feels trapped.
-
I find it particularly egregious when employer’s use contract to exert authority over the serfs in the fiefdom, a jury may think so as well. Humiliating you while they had control is inexcusable. Miss Banfield, you were the victim and deserve justice.

Unduly Oppressive Terms Quite Often Fail in Court

If I may speculate on the nature of this contract, I would think NBC used a claim of “customer goodwill” wherein you were connected with the brand. Their argument following that should you appear anywhere else NBC may be damaged as well as their investment in you. It would be callous to think of a person as such a static object as well foolish to think NBC would truly be injured.
-
Then, to add insult to injury, I suspect a strong Non-Compete clause was tailored so that you, Miss Banfield, felt pressured to continue coming to a hostile workplace with a chance you may be able find chair. When signing this contract did you bargain for these highly repressive terms? I doubt it. Often, when employee’s continue to endure such humiliation they are under duress; perhaps a contract so restrictive that they would never be able to work in the industry. Only later do they find it was largely unenforceable, you didn’t know but an employment attorney would have caught it.
-
The harm you suffered was life altering and intense, while the harm to NBC would have been minimal. It was not only unfair, but oppressive. If you didn’t have competent legal guidance I could imagine the NBC legal team using a parade of authorities to scare you into submission. It is a widespread problem inherent with the knowledge and power imbalance of the parties.
Miss Banfield, you have a special position as a journalist to expose this employment nightmare – there is a professional responsibility. Use your personal narrative to illustrate the suffering that others surely feel. Make this your issue.
The court is not blind to the plight of restrictive agreements. Do not think that merely signing an agreement waives your human rights. Included is a short summary of the elements for IIED.

Elements of Intentional Infliction of Emotional Distress

1. Defendant must engage in extreme and outrageous conduct.
2. Intentionally or Recklessly to cause emotional distress.
3. Plaintiff must suffer severe emotional distress.
Noting your particularly cruel treatment and efforts to end the unfair contract, I would exclaim “Outrageous”. This exclamation is a metric used in the Restatement of Torts : Where the infliction of emotional distress reaches far beyond a reasonable conduct to the point that an average member of the community would utter this charge upon hearing the story.

Conclusion: This Story Can Help Others

This case extends beyond you Miss Banfield. I urge you to use your unique situation to ensure this injustice becomes public. As a journalist you must have a great desire to use the forum to advocate for social good. Seek out a good attorney who specializes in (1) Employment Contracts (2) Restrictive Covenants (3) IIEE Torts.

Sincerely,

Michael Kraemer

# # #

addendum

I felt this was appropriate because Miss Banfield may have been the victim of a morally corrupt NBC legal team. Having consulted with other students at various schools, I have begun to notice a disturbing trend in law school. Students are trained to methodically pick apart complex concepts, yet not taught compassion. Doesn’t morality come from ethics courses? No. It isn’t taught in the abstract.
-
working-poor-david-k-shipler-paperback-cover-artDuring undergraduate I read a book by author David Shipler which conveyed personal plights of poverty. Inside this revealing work, the reader learns about the true struggle to survive. Walking in shoes of another shocks the conscience and teaches an importance perspective too often ignored in the legal profession.
In this trenchant and sensitive study of Americans at the lower end of the economic ladder, a journalist documents the struggles of working people with low-wage jobs who are caught in the trap of poverty.
-
Lawyers are influential members of society – be it in the court room, legal departments, or in Congress.  Why is this profession considered conservative? Perhaps it is the disproportionate enrollment of upper middle class individuals with no real connection to suffering. Law school should require a class that teaches about hardship or pain, I want people to see the face of others whenever they author an oppressive contract.

Capability as Freedom

2009 November 14

I’ve been reading lately about a new approach to social and political freedom.  This theory, although not new, shows why the conventional focus on performance, utility, and output doesn’t adequately promote liberty and may, contrary to popular opinion, stifle or slow development.  The argument is put forward by economist Amartya Sen in his book Development as Freedom.  His general theory is that freedom – defined as the capability of individuals to freely choose and pursue their respective goals and interests – is the basic end and the most effective means to economic development and sustainability.  The most harmful of all unfreedoms is the inability to choose and pursue particular goals or desires.  This unfreedom is a severe denial of basic social and political justice.

Substantive freedom, the ideal goal of any free, democratic society requires that it’s citizens have the capability to choose a life they have reason to value.  “Capability,” as defined by Amartya Sen, refers to the “alternative combination of functionings that are feasible for her to achieve.”  Or, more simply, the freedom to choose and achieve various lifestyles.  This requires that a special attention be paid not only to the “primary goods” a person respectively holds, such as high income or private property, but also to “the relevant personal characteristics that govoern the conversion of primary goods into the person’s ability to promote her ends.”  So, not only must a person’s basic needs to be, so too must their ability to convert these goods into something useful.  Most importantly, the capability approach goes beyond the basic utilities idea, the bedrock of utilitarianism, by focusing on individual choice and not simply on “sum ranking,” which requires that the utilities of a given group of people be lumped together to get their overall, or aggregate merit, without paying any attention to the distribution of the utility to individuals.  It adds an individual component to a study that is, more often than not, an impersonal inquiry.

Conventional measures of a state’s well being like GDP per capita, or industrial capacity leaves out one crucial factor:  the individual.  Simply living in a wealthy nation doesn’t ensure a long and healthy life.  In fact, as Sen points out, African American men living in the United States have a lower life expectancy than those living in China or Kerala, India.  This despite America’s strong economic standing and high GDP per capita.  Instead of looking at aggregate measures of wealth, the capability approach looks at how capable an individual is of pursuing one’s interests and ambitions.  A lack a adequate health care prevents one from carrying out life’s goals; it inhibits one from living a free and life.  Sickness and death are formidable impediments.

The reason I like the capability approach to social and political justice is that is takes the focus away from aggregate measures of quality and focuses instead on the individual components that make up the system.  It is here that one finds the engine for change and the bastion of ideas.  The agency of human power is the most forceful and perhaps the most ignored aspect in societies.  Individuals are the active agents that produce change.  By focuses on more personal traits, such as general well-being, relative economic security, self-respect, and the opportunity to choose and pursue goals and ambitions, the opportunity approach seeks to analyze the individual within the system in order to make life for that individual as free and uninhibited as possible. The last trait being the crux of the capability approach.  It is in the self-interest of any state seeking development to allow it’s citizens a free and unobstructed path to their goals.  Health care, basic social services, strong political and civil liberties, and a relatively unobstructed market are the best means to meet the capability approach’s basic end:  individual freedom to live a decent life.

Practically speaking, the capability approach justifies positions such as providing universal health care, which just so happens to be a major policy consideration in America right now.  Providing basic and advance medical services to people at affordable prices allows people to live longer, more enjoyable, and thus more productive lives.  The denial of such basic services is a capability deprivation.  Either being denied medical services or being economically deterred from seeking medical help limits one’s capability to seek a preferable lifestyle.  It seems almost ridiculous that the most economically powerful country in the world would deny people such basic liberties as adequate and affordable health care.

The argument could also be extended to include access to information, via platforms such as the internet.  As fellow PC author Michael Kramer so adroitly pointed out, the invention and subsequent expansion of the internet as a information gathering tool may be one of the greatest achievements in human rights.  Thus, access should be easily obtained and access unrestrained.  The capability approach is easily extended to support his arguments for easy and unrestrained access to the cyber world. Information, more so today than ever, is power.  Power can be used as a capability agency.  Without access to the internet, one is denied a vital service to getting ahead in life and arguably denied what may soon be seen as a basic civil right.  As Michael accurately pointed out:  “Modern high speed internet facilitates economic growth and supports the public welfare.”  Denial of this civil right not only prohibits the capabilities of individuals and denies the basic freedom to gather information, it also indirectly harms society as a whole.  Ensuring access to high speed internet for every individual fits nicely into the capability approach to individual liberty and justice.

The greatest justice and the paragon of freedom is being able to choose how you want to live.

Lies College Students Hear

2009 November 13
Lies College Students Hear

Click to download a PDF of the pamphlet

Those who have followed Political Cartel for a while know that it was founded in part as a reaction to the incurious and anti-intellectual atmosphere at Harding University.  What we had to say was not generally as well received as things like Libertas Exemplar, a now defunct organization dedicated to promoting religious and political conservatism on the campus.

Since it’s Friday, I thought some might enjoy reading this pamphlet floating around Harding’s campus recently.  It appears to be associated with Libertas Exemplar and Derek Glover who is now a candidate for city council.  Glover said that he doesn’t know anything about it, though, which raises the possibility that this is being printed as a parody.  Sometimes it is hard to tell the difference between good-faith fundamentalism and mock fundamentalism.

The pamphlet is called Lies College Students Hear, and it features 1980s-style graphics as well as logical fallacies.   It really made me wonder, among other things, exactly how often these lies are being spread around my alma mater. There are nine total, but here are the first two:

Lies2

Lies3

UPDATE:  Mystery solved (sort of). The pamphlet comes from the Lake Road Chapel in Kirskville, Missouri.  Still no idea if it was plagiarized by a rogue Libertas Exemplar supporter or put out as a mockery of both groups.  That is telling in and of itself.  The PDF of the pamphlet is on the right side under “tracts.”  There are other gems, too, like What Every Woman Needs and Darwin’s Dilemma.