The trouble with capitalism

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

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Posted on May 22, 2021 here.

It is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God.  (Matthew 19:24)

For what will it profit a man if he gains the whole world, and loses his own soul?  (Mark 8:36)

Man shall not live by bread alone, but by every word that proceeds from the mouth of God. (Matthew 4:4)

When people use or hear the word “capitalism,” some of the things they might bring to mind are:

1. The institution of private property, including private ownership of the basic means of production

2. Market competition

3. The existence of corporations as legal persons

4. Inequalities in wealth and income

5. An economic order primarily oriented to the private sector, with government acting at the margins and only where necessary

Now, there is nothing intrinsically wrong with any of those things.  Indeed, some of them (such as private property and a government that respects subsidiarity) are required as a matter of natural law.   Eliminating all economic inequalities (as opposed to remedying poverty, which is a very different matter) is neither possible nor desirable.  The concept of the corporate person has long been recognized by, and regarded as salutary within, the natural law tradition (whatever one thinks about its instantiation in modern business corporations).  Socialism in the strict sense, which would centralize the most fundamental economic decision-making, is intrinsically evil.

On the other hand, other people using or hearing the term “capitalism” might have in mind things like:

6. A doctrinaire laissez-faire mentality that is reflexively hostile to all governmental economic intervention

7. The market as the dominant social institution, with an ethos of consumerism and commodification of everything as its sequel

8. Corporations so powerful that they are effectively unanswerable to government or public opinion

9. Doctrinaire minimalization or even elimination of social welfare institutions, even when there is no feasible private sector alternative

10. Globalization of a kind that entails dissolution of corporate and individual loyalties to the nation-state and local communities.

Now, all of these things are bad and should be opposed on natural law grounds.

This list is not meant to be exhaustive, but merely illustrative.  And what it illustrates is that it is unhelpful to talk about either embracing or rejecting capitalism full stop.  The term has too many connotations for that, and needs to be disambiguated.  Hence the sweeping claims often made by both sides in the debate over capitalism inevitably generate excessive heat while reducing light.  When people say “I support capitalism,” they often mean “I support 1-5” but their opponents hear them as saying “I support 6-10.”  And when people say “I oppose capitalism,” they often mean “I oppose 6-10,” but their opponents hear them as saying “I oppose 1-5.”  To a large extent, they talk past each other.

When we do disambiguate the term, we get more light and less heat.  But we also lose the simpleminded pro-capitalist and anti-capitalist slogans.  No doubt that is precisely why friends and critics of capitalism alike prefer not to disambiguate it. 

Does this entail that no interesting general claims can be made about actually existing capitalism (as opposed to the abstract models of capitalism put forward by its defenders and its critics)?  Not at all.  Having pleaded for nuance, let me now boldly make some sweeping claims of my own.  I can at least promise that I will offend both sides.  Here are the claims:

I. Capitalism has made us materially much better off.

II. Capitalism has made us spiritually much worse off.

In defense of the first claim, I would simply refer to the standard arguments made by libertarians, free market conservatives, and liberals like Steven Pinker, which I regard as unanswerable.  The rule of law, stable property rights, the price mechanism, the division of labor, and other aspects of modern market economies have made possible astounding wealth creation and technological advances that have raised the material conditions of everyone.  As Pinker writes:

Together, technology and globalization have transformed what it means to be a poor person, at least in developed countries.  The old stereotype of poverty was an emaciated pauper in rags.  Today, the poor are likely to be as overweight as their employers, and dressed in the same fleece, sneakers, and jeans.  The poor used to be called the have-nots.  In 2011, more than 95 percent of American households below the poverty line had electricity, running water, flush toilets, a refrigerator, a stove, and a color TV.  (A century and a half before, the Rothschilds, Astors, and Vanderbilts had none of these things.)  Almost half of the households below the poverty line had a dishwasher, 60 percent had a computer, around two-thirds had a washing machine and a clothes dryer, and more than 80 percent had an air conditioner, a video recorder, and a cell phone.  In the golden age of economic equality in which I grew up, middle-class “haves” had few or none of these things.  (Enlightenment Now, p. 117)

Before you respond that government had something to do with this as well, let me emphasize that I don’t disagree with that.  Again, I am not talking about the laissez-faire fantasy capitalism of libertarian dreams and socialist nightmares.  I am talking about actually existing capitalism, which has always had a significant public sector component – government provision of basic infrastructure, military research and development vis-à-vis technology, redistributive programs, and all the rest.  The point, though, is that it was precisely the governments of capitalist countries that oversaw these advances, because they protected and supplemented the overall capitalist order rather than subverted it.  Even redistributed golden eggs have first to be laid by the market economy goose. 

But affluence can have a high spiritual cost, as classical philosophy and Christian theology alike teach us.  Modern capitalist society is essentially an instance of what Plato called the oligarchic sort of regime, which he regarded as the third-worst sort – or third-best, if you want to accentuate the positive.  It is better than democracy and tyranny, but worse than either the rule of the Philosopher-Kings or what Plato called timocracy. 

Now, keep in mind that the way Plato characterizes the five sorts of regime that he distinguishes is primarily by way of the kinds of souls which predominate in them, and that the characterization thus presupposes his tripartite conception of human nature (in terms of reason, the spirited part of the soul, and appetite).  A society governed by the Philosopher-Kings is one in which the highest part of the soul, reason, is idealized and is dominant in those who govern.  A timocracy is a society in which the spirited part of the soul, and the martial virtues that characterize it, is dominant in those who govern it.  A democracy, as Plato characterizes it, is a society in which the lowest, appetitive part of the soul dominates and tends toward licentiousness.  A tyranny is what results when a particularly ruthless democratic soul imposes its will on the rest. 

Oligarchy as Plato conceives of it stands between timocracy and democracy.  Like democracy, it is governed by the appetitive part of the soul.  But the specific appetite it fosters, the desire to acquire wealth, is not as unruly or chaotic as the pursuit of sensual pleasure that dominates democratic society.  Its satisfaction requires some degree of self-discipline and delay of gratification – and thus the bourgeois virtues, which, though not as noble as those honored in the two higher sorts of regime, at least put some restraints on the other appetites.

The trouble is that, for one thing, later generations within an oligarchy, who enjoy the benefits of affluence without having had to exercise the discipline required in order to create it, tend to become soft and decadent.  And for another thing, there is money to be made in catering to the lower appetites.  Hence oligarchy tends to decay into democracy in Plato’s sense.  And that is why the America of the robber barons and of the military-industrial complex eventually gave way to the America of Woodstock and the sexual revolution, and now to that grisly amalgam of the two – the America of contemporary woke capitalism. 

If easy affluence is corruptive of the natural virtues, it is even more corruptive of the supernatural virtues.  The rich young man, though he showed initial interest in following Christ, opted instead to hold on to his possessions when he had to make a choice (Matthew 16: 19-22).  This famously led Christ to warn that “it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God” (Matthew 19:24). 

Now, superficial readers of this passage suppose that it is fundamentally about the duty of material assistance to the poor.  They overlook the reaction to Jesus’s teaching:  “When His disciples heard it, they were greatly astonished, saying, ‘Who then can be saved?’” (Matthew 19:25).  Why would they ask such a thing, since only a minority of people are rich?  St. Augustine answered as follows:

When the Lord says that a rich man does not enter the kingdom of heaven, his disciples ask him who can be saved.  Since the rich are so few in comparison with the poor, we must understand, then, that those who yearn for such material goods must realize that they are included in the number of those rich. (Questions on the Gospels)

Or as Haydock’s commentary puts it: “The apostles wondered how any person could be saved, not because all were rich, but because the poor were also included, who had their hearts and affections fixed on riches.”  The problem with the rich young man, then, was not that he was rich, but that he valued riches above following Christ.  And that is a spiritual malady that can afflict even those who are not rich, but who cannot bear the fact.  Indeed, they can be in even worse shape if they add to this sin of avarice the sin of envy. 

But it is a commonplace that those who suffer want of any kind are more likely to perceive their dependence on and need for God, whereas those who have much can become self-satisfied and distracted by worldly concerns.  In particular, they are in danger not only of the sins people usually associate with wealth – avarice, gluttony, and pride – but of the even more insidious sin of acedia or distraction from the highest, spiritual goods.  Hence the rich stand in special need of warning.  How many more are bound to be in this spiritual danger, then, when many more are affluent – as they are in modern capitalist societies?

That Plato’s and Christ’s warnings have been borne out is obvious from the collapse of traditional morality and widespread apostasy from Christianity that have characterized modern capitalist societies, and from the way of life that has replaced them.  In such societies, “success” is conceived of in terms of the acquisition of material wealth.  Preparing the young for adulthood is conceived of in terms of training them for a “career” that will assure them this “success.”  Pursuit of this goal is the preoccupation not just of an elite, but of everyone – achieving it is the “American dream.”  Social justice is conceived of primarily in terms of enabling as many as possible to achieve this “dream.”

Everyday life is devoted to making money that one might spend on dining, entertainments, travel, and other material goods – which enable one to rest up so as to be ready to get back to making money.  Advertising is ubiquitous, and consumers dutifully pursue the latest new product, the latest pop culture fad, the latest fashions, or the latest enthusiasm in cuisine.  Though political fights may arise over various cultural and moral controversies, in the end it is the state of the economy that tends to determine who gets into power.  Even conservative parties tend to cave in on “social issues” but will fight tooth and nail for tax cuts, deregulation, and the like.  “It’s the economy, stupid!” is the bipartisan conventional wisdom. 

Even otherwise traditionally-minded Christians become suckers for obscene materialistic distortions of the faith, such as the “prosperity gospel.”  Liberal Christians, meanwhile, emphasize helping the poor and marginalized – not to save their souls, but rather to get them into the same rat race that the rest of society runs in.  Christ says: “If anyone would come after me, let him deny himself and take up his cross and follow me” (Matthew 16:24).  But secularists and modern Christians alike, whether conservative or liberal, take the highest end of moral and political endeavor to be to build a world where no one ever has to deny himself anything and there are no crosses of any kind.

From a traditional Christian point of view, then, the main danger of actually existing capitalism is not that it makes people poor, but on the contrary that it makes them rich compared to most people who have ever lived, and certainly fixates them on the acquisition of material wealth.  It has thereby led the mass of mankind into a particularly insidious sort of temptation that relatively fewer were faced with in previous ages.  Most people read passages like Matthew 19:24 and smugly think of the rich as “them.”  But to paraphrase Walt Kelly, we have met the rich man, and he is us.

Is the solution to abolish riches?  No, because wealth is not intrinsically bad, and indeed is a positive good.  Again, the problem is not riches per se, but the fixation on riches.  And the fixation can exist even when riches do not.  The solution is to counter this fixation.  Sound principles by which this might be done were set out by popes Leo XIII,  Pius XI, and John Paul II, who condemned socialism in absolute terms, but defended capitalist institutions only with significant qualifications of a kind that no libertarian or classical liberal could accept – and who insisted that both the crisis of modernity and the social transformation needed to remedy it are fundamentally moral and religious rather than economic in nature.

Related reading:

Hayek’s tragic capitalism

Adventures in the Old Atheism, Part IV: Marx

Liberty, equality, fraternity?

Aquinas contra globalism

Continetti on post-liberal conservatism

A RUN ON THE COURTS

I recently heard on the radio a story about a woman and her young child who were kicked off of a bus because the child had a seriously smelly diaper. They were on the way to see the pediatrician because the child had a stomach virus. The bus company defended the driver’s actions, stating that he acted in the interest of the safety and comfort of the other passengers, who had complained about the odor.

                Although I can sympathize with both sides in this tale, and with the mother’s comments that being tossed off the bus made her feel like crap (appropriately said), I don’t sympathize with the mother’s next statement that she was going to sue.  Of course she is going to sue.  Every day lawyers hear from people who want to sue some person, company, school, government entity, etc., etc.  The rallying cry for these people is that something is unfair and that someone or some institution should be sued. Some of these people promise that the lawyer will make millions of dollars on their case, if the lawyers first provide their services for free and assume huge costs.

                Aside from the substantial costs to bring and defend a lawsuit, which is one of the main reasons most cases are settled before a trial, there is also the strong possibility that one side will lose. Regardless of how wonderful it seems one’s case is, there is still only a 50% chance of winning.  And sometimes, if one loses, filing fees and legal fees of the opposing party’s lawyer are tacked on. Even if one wins, the other side can appeal 1, 2, or 3 levels higher in the legal system, leading to even higher costs and a lengthier time for a decision. This can often span years. The justice system is not for the weak of heart or the poor of coin. But, even more important, everything that happens doesn’t always have a legal remedy, and even if it has a legal remedy, that remedy often requires that specific elements must be proven. And even if the specific elements are proven, it doesn’t mean that there are valid damages. Unless the mother above can prove that her child’s illness worsened after they were kicked off the bus, or that she couldn’t take another bus or find other means of transportation she could take to see the doctor, I think that she will have a hard time providing that she suffered damages. That doesn’t mean that the bus company won’t pay her something to avoid the unwanted media attention and for her inconvenience.

                But, I don’t get the feeling that her main interest is proving her case; instead her main interest is calling the news media to express her outrage about her situation which she obviously feels outweighs the rights of the other passengers to enjoy their ride and not be exposed to illness.

                There have been several cases which I have turned down where large verdicts were decided after other lawyers accepted the cases. But, all of these verdicts were either substantially reduced or overturned after 5-10 years of litigation.  Lawyers generally trust their guts on which cases they will succeed with, and despite some people criticizing lawyers for discouraging them from going heading into a disastrous legal battle, after they have fallen over the legal cliff, hopefully they will learn to respect the opinion of people who fight in the legal fields daily.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

PHILANTHROPISTS OF TIME

The word “philanthropist” was formerly reserved for a very few wealthy people like Walter Annenberg who donated to charitable or civic causes. Yet, every day I read or hear about someone who is referred to as a philanthropist by the media, or often refers to him/herself as a philanthropist.

So, how much does one have to contribute financially to charities or causes to become a legitimate philanthropist? Obviously there is not a set amount. Is someone who gives half of their income of $50,000 to charitable causes considered a philanthropist, and, if so, are they placed in the same category as someone who gives $1 million and earns a salary of $10 million? If that is the case, than the person earning less is a more generous philanthropist than the person who earns substantially more. Other considerations are whether one is donating money they have inherited or whether they are donating money they would have to pay toward taxes instead. If that is the case, perhaps we should consider the more sincere philanthropist to be the person who really wants to donate, and doesn’t do so just to save taxes. 

I read the other day that young people donate twice as much of their time to charitable causes as their elders. I think that has something to do with their elders having to spend most of their time earning money to support their children.

Another form of philanthropy is giving of one’s time, and in the case of lawyers, their time and advice. Although I contribute financially to charities, and the colleges I have attended will receive funds from my estate when I die, most of my philanthropy is and has been that of giving freely of my time and expertise to thousands of callers over the years.  If I were to place a monetary amount on my time and advice it would amount to many millions of dollars. Every day I listen to people’s stories and problems and try to guide them in a certain direction, educate them about their legal rights and possibilities, and open their eyes and minds so they can reach the best decisions for themselves based on their circumstances. Although I never give legal advice unless someone becomes a client, I do try and educate anyone who calls me about the law in general and their choices.   Sometimes people are in denial and don’t want to hear that their choices are limited under the law, that their choices are often limited by their finances, and that justice has limitations.

Iam not alone in time philanthropy.  Most lawyers provide this service, and it is a service that many people think should be provided for free.  However, As Abraham Lincoln said, “a lawyer’s time and advice are his stock in trade.”  I think lawyers are unique as they are giving of their time and expertise, quite often initially for free. Can you think of a doctor, dentist, accountant, or other professional who will listen to your story for free, at least for any length of time? Yet, people expect lawyers to give freely of their time. So, let’s applaud lawyers, many of whom are major time philanthropists, as they give of their time for the common good without charge.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

YOU’RE ENTITLED TO WHAT?

America is a melting pot of immigrants, and New York City is a prime example of this. On a recent trip there I was given a tour through Central Park by an enthusiastic young man who was born in North Africa, spoke 3 languages, was a college student in international relations, and earned his living  and college tuition doing the strenuous job of driving people through the Park in a bicycle cab. He was knowledgeable about the Park’s history and funny and enthusiastic about his job. It was wonderful to meet this young man, who was so happy to be doing a job few Americans would do.  And, he didn’t act as if he was entitled to anything. He pointed out the residences of the rich and famous high in the sky in buildings surrounding the Park, worth many millions of dollars. It is interesting to note that the Park was created and landscaped by man, sheep grazed on its flat fields, and its original inhabitants were the poorest in New York City who lived in shanties.

                At some point in life, usually at a young age, each of us learns, via our parents, teachers, friends or the police, that we aren’t entitled to do whatever we want and get whatever we want to have. But, that doesn’t stop the human species from trying to get what they want and feel they are entitled to things.  Entitlement is a concept shared by all classes of society, although many people feel that it applies only to lower income people who receive some form of government assistance.  That is not true.  I read the other day that the wealthy have weathered the latest recession best because they didn’t have to rely on their jobs or the equity in their property, which resources make up the majority of an average person’s assets.  But, in a survey, most of the wealthy felt they would be even happier if they had over $5 million in assets. I also read about a top executive at a large company who earned $6 million dollars a year, and although he stated that he was in favor of medical care for everyone, and he had family members who are burdened by large medical expenses, he didn’t think it was fair for him to pay more taxes than people who earned less simply because he earned so much.  In other words, for most people, enough is never enough.

                The same day I met the tour guide I spoke with a potential client who I felt had been discriminated by her employer by not being accommodated when she had a disability. Employment and civil rights clients rarely suffer physical injury in their jobs, but they often suffer what I call “psychic” injuries such as emotional distress, depression, anxiety, and post-traumatic stress disorder.  Usually this is due to mental abuse at the hands of supervisors or co-workers, or the effort involved in just trying to do or keep their jobs, when someone has decided for one reason or another, which may not have anything to do with the person or their work performance, that they have to leave.  The trauma of having to leave one’s job can be severe.  Yet this trauma must be balanced against the law in most states, which is that an employee serves at the will of their employer, and can be discharged at will, but cannot be discriminated against based on specific civil rights laws.

                The potential client suggested that she would like a year’s salary, or $50,000, as a settlement because I felt her employer may have violated a civil rights law.  She also said that she didn’t want to return to her job, and that the $50,000 would not be significant to her large and wealthy corporation. I pointed out that in my learned opinion $50,000 is not an insignificant amount, and regardless of whether corporations can afford it, money is not given out by them on a willy-nilly basis.  Yet, this is a common issue lawyers face—convincing their clients that simply feeling that they are entitled to money is not enough. Sometimes a long, hard, and expensive battle must be fought and the client may not always prevail, as the legal system has many pitfalls.  That is why, many lawyers, including me, include in our fee agreements that clients must accept an offer which I consider to be reasonable, and not an amount they feel they are simply entitled to.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

Preventive war and quarantining the healthy

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

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Posted on March 4, 2021 here.

A “preventive war” is a war undertaken proactively against a merely potential enemy, who has neither initiated hostilities nor shown any sign of intending imminently to do so.  The Japanese attack on the United States at Pearl Harbor is a famous example.  This is not to be confused with a “preemptive war,” which involves a proactive attack on an enemy who has shown signs of intending to initiate hostilities.  The Arab-Israeli Six-Day War is a standard example. 

The Iraq war of 2003-2011 was sometimes characterized as a “preventive war,” though in my opinion that is, whatever else one thinks of that war, not an accurate characterization.  Rather, I think it fell under the category of “punitive war,” a war fought to punish an enemy nation for some offense (such as a violation of treaty obligations).   Whether it was justifiable under that description is not an issue I am addressing here.  What is relevant is that critics of the Iraq war who characterized it as a preventive war took it to be ipso facto unjust.  For while preemptive war is generally thought to be justifiable, preventive war is – rightly, in my view – widely thought not to be justifiable. 

The reason should be obvious.  Until a potential enemy has actually done something – such as actually attacking (which would justify a defensive war), or preparing to attack (which could justify a preemptive war), or in some other way actually committing a sufficiently grave offense (which might justify a punitive war) – said potential enemy is in all relevant respects innocent.  You cannot justifiably attack a nation merely for what it might do, any more than you can punish an individual for what he might do.

This is why we don’t arrest and punish gangsters even when we have good reason to suspect that they will at some pointcommit crimes, and don’t fine corporations even when we have good reason to suspect that they will at some point pollute.  You can justifiably inflict harm on people only for what they have in fact done, not for what you think they probably will do in the future, and certainly not for what they merely might do.

But don’t we rightly punish people for certain negligent acts, even when they don’t actually result in harm?  Yes, but that is because such punishments are relevantly analogous to preemptive war rather than to preventive war.  Suppose I use a flamethrower to clear away brush or scare off raccoons in my backyard.  Suppose I don’t actually end up igniting your yard or house.  I still have in fact put your property in imminent danger of harm, even if I had no hostile motive but was just being stupid.  And it is reasonable to forestall actions that are per se dangerous in this way by prohibiting them altogether, as well as by punishing them after they occur.

It would not be reasonable, though, to prohibit ownership of (say) chainsaws, merely because someone might be so stupid as to use them in a way that endangered others.  It is very difficult to use a flamethrower in your backyard in a way that does not pose an imminent grave risk to your neighbors.  But it is not difficult to use a chainsaw in a way that poses no serious risk to others.  Sure, I could do something really stupid with it – say, tying it to a rope, starting it up, and then swinging it around in a wide arc that crosses over your property line – but it is extremely unlikely that many if any chainsaw owners would do such a thing.  Flamethrower use in a neighborhood context is per se dangerous to others in a way that chainsaw use is not.

Now, this is the principle on which quarantining disease carriers is justifiable, at least when walking around with the disease is more like using a flamethrower than it is like using a chainsaw.  Hence, it is reasonable to quarantine people with bubonic plague.  But it would be unreasonable to quarantine people with the flu, even if occasionally there are people who die from the flu.  Quarantining someone with bubonic plague inflicts a harm on him – it takes away his freedom of movement and may thereby prevent him from making a living or going to school, cause emotional distress, and so on – but this is justifiable given that his walking about freely would impose a grave and immediate threat to others, just as using a flamethrower in your backyard would.  Quarantining such a person would be analogous to a preemptive war – the forestalling of a grave and imminent threat that the person actually does in fact pose.

But it would not be reasonable to quarantine a person simply because he might get bubonic plague and pass it to others, or because he does in fact have an illness but one which merely might cause grave harm to another (such as the flu or a severe cold).  That would be analogous to a preventive war rather than a preemptive war, and illegitimate for the same reason.  You can justifiably quarantine Typhoid Mary.  But how can you justifiably quarantine Potentially Typhoid Mary, any more than you can justifiably attack a potential enemy?  Or how could you justifiably quarantine Severe Cold Mary on the grounds that some people might in theory die if they catch her cold, any more than you could legitimately ban chainsaws on the grounds that someone somewhere might use a chainsaw foolishly? 

Now, COVID-19 is not remotely like bubonic plague, and while for some people it is certainly worse than the flu, for most people it is not.  And we know who is most vulnerable – the elderly and those with certain preexisting medical conditions.  So, how can it possibly be justifiable to quarantine those who do not have the virus, on the grounds that they might get it, and then might go on tospread it to someone among the minority of people to whom it poses a grave danger?  Especially when there is an obvious far less draconian alternative, namely quarantining only those who do have the virus and those who are at special risk from it?  And especially when there is no proof that the more draconian measures are really necessary, and evidence that in fact they have no net benefit over less draconian policies? 

In short, how are lockdowns for vast populations of healthy people any more justifiable than “preventive war”?  How is the argument “If we don’t quarantine the healthy, grandma might die if they catch the virus and spread it to her” any better than the argument “If we don’t proactively attack country X, grandma might die if X attacks us”?  If those who start a “preventive war” are war criminals, what are those who have “locked down” the healthy and thereby destroyed livelihoods, inflicted severe mental distress, and set back the education of millions of children – and all for nothing, given the evidence that such policies have at the end of the day done little or no more good than less destructive ones have? 

Don’t answer: “But killing people in a war is worse than quarantining them!”  Of course it is, but that’s irrelevant.  Destroying the livelihoods, etc. of innocent people is not as bad as killing them, but it hardly follows that it isn’t extremely bad.  And since when is a government morally permitted to inflict whatever damage it sees fit on innocent citizens, as long as it stops short of killing them?

Related posts:

Lockdowns versus social justice

The rule of lawlessness

The experts have no one to blame but themselves

What “the science” is saying this week

The lockdown is no longer morally justifiable

The lockdown and appeals to authority

The burden of proof is on those who impose burdens

The lockdown’s loyal opposition

Some thoughts on the COVID-19 crisis

YOU CAN’T BE A JACK OF ALL TRADES

For days after Hurricane Sandy I was flooded with calls from disgruntled, suspended or terminated employees seeking legal advice. I guess they were stuck at home and decided to call a lawyer and discuss their issues. For the most part, employees who call me should have sought legal help far earlier than they did. I am of the opinion that given the current workplace environment every employee needs to keep a lawyer on call. If retained early enough a lawyer may be able to save an employee’s job, and if that is not possible, for one reason or another, some type of severance agreement may be negotiated which may or may not involve money, a neutral employment reference, and/or an agreement that an employee may apply for unemployment compensation benefits without the employer contesting benefits.  A lawyer may be able to assist with a disability claim, or perhaps fashion some other remedy.

                In addition to assisting with the above, a lawyer can give a client a studied opinion, stripped of emotion, as to whether they have good legal grounds to pursue their claim, and even if they do, what their chances are of prevailing on their claim with a government agency or in a litigation setting, and whether it is financially beneficial for them to even proceed with their claim. Even if the only benefit is avoiding the stress, anxiety, loss of self-esteem and depression that quite often accompanies the potential loss of one’s job, it is worth seeking legal assistance. So, people shouldn’t be penny wise and pound foolish. If one were to balance on a scale the cost of hiring a lawyer versus the loss of a job and/or other benefits, it is usually financially worthwhile.  

                Despite all of the above benefits which clients can derive from early consultation with a knowledgeable lawyer, many people think they can serve as their own lawyer, or they listen to people who are not lawyers, many of whom work for government agencies, who tell them they don’t have to hire a lawyer. Even if one is not required to hire a lawyer, it is never a bad idea, and usually a very good idea. Time and again I talk or meet with people who have not hired a lawyer and they have missed filing or appeal deadlines, and have been bullied into giving up benefits or their legal rights by their employers or their human resources’ representatives, or their union representatives.

                We are living in a time when large amounts of information are available to us via the Internet.  All of this information sometimes makes people think they can become jacks of all trades.  Yet it is often preferable, and often cost-saving and less frustrating to hire a trained professional rather than try and do something by oneself. Lawyers are trained and experienced in how to handle matters, yet many people think they don’t need lawyers.

                An example of another type of profession which deals with do it yourselfers, is interior design. Of course one can select their own paint colors, fabrics or furniture. If people have the time and money and aren’t concerned about making mistakes, they may find these activities fun. As for me, I have worked with interior designers since I was a young woman for many reasons. First, I get overwhelmed when confronted with a large range of choices and I prefer to have someone else narrow the choices for me based on my taste. I know a lady who taped wallpaper samples to her walls where they remained for years, because she was too confused to do anything. I also know a business owner who went to a store many times, eventually trying out 26 paint samples, and even having to repaint walls when he didn’t like the results on a large area. This was a process that was costly in time, gas and sample prices.

Second, an interior designer can find reliable, qualified, and reasonably priced vendors like painters, carpenters, and other craftspeople. And, the interior designer can make sure they get the job done right and on time. 

Third, in the long run, an interior designer can save you time and money. As a professional, who charges by the hour, it really isn’t worthwhile for me to spend hours looking at samples, etc. I did that some years ago with curtain trim which I thought was too expensive, so I decided to look for cheaper trim. It required 3 trips to fabric stores located in an area where the roads were under construction, in 100 degree weather, and at the end, the trim I liked was one foot short. So, when I recently refurbished my office building, my interior designer and I selected the paint colors, the new window shades and carpets, she recommended the painter, the window shade company and the carpet company, and she rehung the paintings and diplomas in groupings, and they look far better than before.   Although I am paying for her assistance, in the end, it made for less expense for me, less stress, and a lovely result. So, her services have been priceless!

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

Trust Mislaid

                There is little or nothing about the law which is feely-touchy. The law is defined by rules, procedures, and a history of decisions established on a case-by case basis.  There are strict deadlines set by statute and sometimes previous legal precedent, which must be met by parties who wish to initiate a lawsuit or take some other type of legal action using the court system.  These deadlines are called statutes of limitation and they are usually interpreted strictly by the courts.  The law isn’t concerned with whether someone knows about these deadlines, as the burden of knowing about them is placed on the party initiating a lawsuit.  The reason for this strict interpretation is because evidence to prove one’s case may no longer be available after a certain length of time, the party being sued may have destroyed evidence in their possession if not sued in a timely matter, or has been asked to preserve the evidence, or witnesses who can testify may have forgotten the facts, may have moved, may have become ill or may have died. For example, in Pennsylvania, if a person is injured, they generally have two (2) years in which to sue someone if one feels the injury was a person’s, company’s, etc.’s fault.  There are sometimes exceptions which delay, or toll, this deadline, such as if one is a minor, his right to sue extends beyond the time he is 18.  In contract actions the statute of limitations is generally four (4) years, but circumstances like fraud may be able to extend that period.

                Despite these strict deadlines, I receive many calls each week from:

• people who have either sat on their legal rights, despite knowing they had deadlines, and missed their deadlines to sue;
• people who state they didn’t know about these deadlines, and don’t feel they should be held accountable for missing them;
• people who state they have been too busy to initiate a lawsuit, or it slipped their mind, or took some other action which they thought tolled the deadlines, but didn’t.

                Where people took some other action they thought tolled their deadlines, there seems to be similar scenerios.  In the first scenario, people have spent considerable time and energy discussing or writing about their issues with their elected city, state or federal government representatives, or their relatives, friends and neighbors. Yet, they never initiated a lawsuit in a timely matter.  They are often surprised to learn that they have lost their rights to do so, because these contacts don’t toll statutes of limitation, even if the elected representatives state they are looking into one’s complaint or situation.  TRUST MISLAID.

Often people will go to the courthouse and speak with a clerk who takes the time to explain the legal process to them. They do this instead of consulting with a lawyer. They then feel that the clerk is the font of significant knowledge, and tend to rely on what the clerk told them, which may or not be correct, and is often misinterpreted and limited, even if it is correct. Even if a clerk is sympathetic and agrees with them, it is a far cry from what is necessary in proving one’s case.  A clerk’s information and/or advice, if incorrect, cannot be the basis of tolling a statute, or even a lawsuit. TRUST MISLAID.   

Union members often rely on information the union representative, who is usually not a lawyer,  provides them.  However, the union representative’s advice is usually based on the terms of a collective bargaining agreement, and often doesn’t involve other types of legal actions such as civil rights. I have seen many persons miss filing deadlines required to preserve their rights under civil right laws because they are waiting for a lengthy union process to conclude, and their union representative didn’t discuss other possible remedies with them. I am not criticizing union, but it is a good idea to consult a lawyer to learn if there are other possible remedies. TRUST MISLAID.

Many people feel that because they have discussed their case with a lawyer, or left their paperwork with a lawyer to review, this tolls their statute of limitation.  Unless the lawyer has accepted the case, and there is a written fee agreement signed by the lawyer and the client, the lawyer does not have a responsibility to initiate a lawsuit.  Although a lawyer is not supposed to decide at the last minute that he will not bring suit, so as to disadvantage a person, this happens frequently, so a person must diligently follow up with a lawyer, especially if some months have passed without word from the lawyer, or if the lawyer is not returning their telephone calls when they call about the status of their matter. TRUST MISLAID. 

 Therefore, it is important to preserve one’s legal remedies by consulting with a lawyer or lawyers as soon as possible for advice on whether one has a potential lawsuit or remedy. One should not mislay one’s trust on the wrong individuals.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

WHO IS AN EXPERT?

                Some weeks ago a man had a consultation with me concerning his issue which involved dealings with a federal government agency which investigates discrimination in housing. My extensive experience and background in civil rights law, dealing with numerous federal government agencies, and real estate, are outlined on our Firm’s website.  However, the person decided he wanted to have another consultation with someone who was an “expert” on his issue, and he had been provided that person’s number by a friend.

                This experience got me thinking about what constitutes “expert” status.  The media (print, television, radio, the Internet and various social media like Linked In) provide us with self-serving testimony by persons who want us to do business with them, and state they are experts in certain fields.  If one is a bus passenger or finds oneself alongside or behind a bus, one can view large photos of lawyers who proclaim that they are experts in certain fields of law. If one listens to the major local radio news station, one can hear about doctors who work at medical facilities who are experts in joint replacement surgery. If one views television station news and morning broadcasts one will see many self-proclaimed experts in all sorts of fields like beauty, fashion, food, gardening, decorating, politics, etc. Some of these self-proclaimed experts appear to be barely out of college.

                So, I have come to the opinion that anyone can declare him/herself an “expert” these days, as there really isn’t a guideline or a requirement for that designation.  Some of my recent experiences with legal experts are as follows:

• A fellow lawyer who practices worker’s compensation law, and is a sole practitioner, told me that he inherited a case from another law firm, one of the largest in the area, who had settled part of the case for the client, and forgot to include language which ultimately cost the client over $30,000 in benefits.  Yet the larger firm is considered to have “expert” status.
• Some lawyers I know have been called as guest commentators on television news shows because they have declared themselves experts on real estate or other areas of the law, when their practical experience regarding these areas is quite minimal.
• Some of the most prominent personal injury firms in the area readily declare themselves experts because they have tried and won or settled 1 or 2 cases on a particular issue.
• A lawyer who knew nothing about a certain area of the law, and I know this because he called me to pick my brain about the matter, accepted a high profile case and got his name and his client’s name splashed all over the media. The end result did not turn out well for the client.

It is highly unlikely in the legal field that lawyers will sue the same defendant over the same fact circumstances, unless it is a highly specialized area of the law.  Although lawyers may encounter some similarities in their cases, there are many variables which enter into each case.  So, take the designation of someone who is a self-proclaimed expert with a grain of salt, because these days self-promotion is the rule. Also, bear in mind that an expert may not have experience in other areas of the law which may impact on the particular fact situation.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

Bye Bye Humanity

                Recently I took an Amtrak train trip to New York City. It used to be that one of the interesting things about traveling outside of one’s local environment was that it gave one an opportunity to meet new people and experience new things. I recall meeting interesting people over the years and having interesting conversations while traveling to and from someplace, and some of these people became acquaintances I kept up a relationship with for years. But, that is no longer the case, because it is very rare that someone initiates a conversation with strangers while traveling. Perhaps it is a generational thing, but people in their 20’s or 30’s seem to look through or not even look at, people of my generation. However, from my readings, I don’t think it is a generational thing. I think it is because people are either busy or want to appear busy working or typing, listening to music, or watching programs or movies or reading on their iPhones, Blackberry’s, iPads, Kindles, Nooks, computers, etc., and they don’t even take the time to say hello, or ask where and why someone is traveling, and they certainly do not ask a fellow traveler’s occupation, or engage in any behavior that can be remotely related to establishing some type of human contact.

                For example, the young man next to me was listening to music, and did not attempt to make eye contact once. In fact, he seemed afraid to make eye contact. The young man on my companion’s side was wearing a large set of earphones and moving in rhythm to the music. The woman in front of me was talking to a friend in a loud voice for most of the trip, and I heard the conversation clearly (something I didn’t really want to overhear) about her travels and her life. In fact, on nearly every public transportation trip I take, someone is talking in an inappropriately loud voice for the duration of the trip, and the subject is usually mundane. I always wonder how it is possible that person on the other end of the line has the time to spend hours in the middle of the day on a mundane telephone conversation. Another woman, apparently from Spain, spent the entire time looking at Spanish news. Another woman was playing solitaire on an iPad. People these days seem to be tethered to some mode of electronic device, and appear to invent things to do, such as stay on the phone, so they will appear to be busy. Of course, those of us who have e mail know the hypnotizing effect of the need to constantly check e mails and text messages, so we are always doing that.

                I recall years ago in Italy seeing people walking through Rome talking incessantly on their cell phones, years before they became prevalent in the USA. I thought it was really funny. Now, as the world has adopted this behavior, I no longer think it is funny. In fact, I see it as a diminishment of humanity. People need to speak with each other and communicate for many reasons. A “friend” has to be a real person, not someone who likes something you say and who you may never meet. We cannot make new friends or have interesting discussions or meet new people if everyone is talking to their current friends, or is entertaining themselves, or is removing themselves from humanity. Human isolation is bad on many levels—it can lead to health problems, it can lead to job problems, and it can lead to violence, as many people who commit crimes, and some of these are mass crimes, are often described as “loners”. Being a “loner” doesn’t always mean the person wants to be alone, but in today’s world, it is hard to get connected in a real, and not superfluous, way. As I am lawyer, I think this isolation will also lead to legal problems as people become less interested in trying to resolve their problems by communicating with each other, and instead rely on the legal system to assist them.    

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

Vicious Adversaries

I read a daily paper for lawyers, which discusses legal developments in this area. This paper is always interesting, and often highly entertaining, because some lawyers and judges tend to get themselves in all sorts of trouble, and many of the cases featured involve humorous fact situations featuring lawyers, judges and clients, and sometimes all three.

                Generally, when lawyers pursue lawyers in litigation, watch out! Recently there have been several cases reported which made me feel that I was living in the time of Roman gladiators, and lawyers were fighting battles to the death with each other.  The viciousness was apparent, and some of these lawyers and law firms involved were fighting tooth and nail with their counterparts who they have had friendly relationships with in the past, and probably even worked on cases together.  I was raised in Minnesota, and although I feel that the famous Midwest friendliness is often contrived, at least the knives are aimed at one’s back rather than one’s heart. On the East Coast I feel that knives are often aimed for the jugular, and the hatred is not contrived, it is real.

                I actually became upset reading about some of the accusations lawyers were throwing at each other. Lawyers are required to adhere to a code of ethics and professionalism and their licenses are monitored. It is scary to realize that one’s professional reputation is often a stone’s throw away from being besmirched by accusations which one must defend, especially if they are exaggerated or untrue. I have written before about the adversarial system, in which stress is placed on lawyers by many organizations and people.  We really operate in a war zone these days, albeit without actual weapons.

                Although I don’t know about the merits of the following matters, nor do I have an opinion as to which side appears to have the better argument, I am providing them by way of example about the kinds of matters currently being litigated:                

                A former justice of the Pennsylvania Supreme Court has been asked to give her deposition in a case initiating from the new family law courthouse which is being built in Philadelphia. The issue is whether an advisor on this project, who also received a fee from the project’s builder, did so inappropriately. The former judge has some information considered relevant. She is also being represented by a former judge of a lower level court. After numerous delays, and the outright refusal of the judge to attend a deposition, she was ordered to do so by another judge. The interesting lesson here is that everyone is subject to the legal process, and the maneuverings involved by a judge who worked to enforce that process, not to participate in the process, appears disrespectful of the system.

                Another case involves a lawyer who left a firm, but before and after he did, he allegedly installed some software permitting him to take data with him. The new firm he joined vigorously represented him until they apparently learned of some improprieties, or perhaps that he wasn’t truthful with them about this situation, so they apparently asked him to leave. The judge in that case raised the issue that since the new firm represented the lawyer who joined them, and he has now left, perhaps they can be required to provide information about that lawyer although he was their “client” and whether they can refuse to give it based on attorney-client privilege.

             The last case involves a lawyer who got a million dollar referral fee from another law firm to whom he had referred a case. He thought he was entitled to more, and after some litigation, the lawyer settled for an additional million dollars. Yet the referring lawyer, who was quite elderly and ill, continued on and on with litigation, which has now lasted close to ten years, and the most recent case required that he reimburse the other lawyer for time and fees spent responding to this ongoing litigation. The interesting part of that case was that litigation can go on for many years, and people have to stay involved in it, whether it is reasonable or not.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”