GATHER AROUND, CHILDREN

 

         

My wife, Linda, has been a public school teacher for over thirty years, and as most might suspect, there are times when I am by circumstance but another of her students, appropriately dazzled by her powers of perception.  She is a marvelous teacher, recognized as such by various teachers’ groups, her superintendents and principals over the years and most especially by so many of her students…in addition to me.  Teaching is a rewarding profession if the teacher is intelligent, loves children, and truly cares about helping them become better persons and obtain the ability to meet the challenges of our society…and increasingly, our world.  Linda fits that profile perfectly.

 

          Just yesterday after I finished mowing our yard in the sweltering heat and crawled into the cool refrigerated air of our home, I told her of another revelation I had just experienced.  Since I am now retired, much of my daily activity often involves pondering “matters political” as contrasted to matters of legal analysis and practice, or solutions to business problems with which I routinely dealt in a “prior life.”  I have found over many years that very often, without even attempting to think of the issue, the “answers” to some of my most pressing business and legal problems have just kind of magically “popped into my head” while I have been mowing the yard!  Which I always found marvelous–while a bit puzzling.

 

          Yesterday, Linda politely listened to my most recent of such revelations (which I shall share in a moment), and when I had finished, she simply said, “Well, it is now known that students learn subjects, or how to solve problems when: i.) they are presented with new information for approximately fifteen minutes, and ii.) then given “idle time” to allow the mind, in a relaxed state, to sort that information and process it. 

 

          While mowing the yard, my mind is always in “idle…,” and now I recognize that it is in a free floating mode unrestrained by the pressures of daily life and work.  And my Linda’s point was that during that time my mind had been subliminally processing an issue I had been considering earlier.  So, while I was least aware (or concerned) about the matter, the answer, or the best way to approach the issue, just came to me!  The teaching point makes good sense to me, for this phenomenon has truly been a regular occurrence for me while mowing the yard over the last thirty-five or so years.  It has helped me resolve innumerable cases and has helped a number of private clients and the Public whose interests I had sworn to protect.   

 

          Now the “free-floating” resolution of the current issue: Many of my friends and correspondents are of a “conservative” political persuasion (and a few are true “right wing nuts“).  Most of this latter group are always complaining about “Big Government” and asserting that everything would be better, more money would be made by everyone (Reagan and Gingrich’s “Trickle Down” theory), and the financial stability of the County would be greater, etc. if only people like Franklin Roosevelt’s and the Kennedy Boys’ ideological heirs, e.g., Dick Durbin, Barbara Boxer, Henry Waxman, Russ Feingold, Nancy Pelosi, Howard Dean, John Dingell, Harry Reid and that “danged Obama feller” would just get out of the way and let capitalism “work its magic!”   

 

          And my problem was simply to come up with a readily understandable series of examples and reasons for the application of reasonable restraints upon capitalism in some cases; and as noted above they just hit me in the face while I was cutting the grass.  Capitalism is, of course, the best system the world has ever devised for generating wealth and creating an economically stable society–as opposed to various systems which involve concentrated state power and state ownership of the means of production.  But it must nonetheless be recognized that due to the nature of Mankind himself, Capitalism has never been perfect, and it has always required a little “nudge” here and there in order to truly work for society’s best interests–not just for the best interests of the few.

 

          But, OH! I just cannot get over the delusions from which my well-meaning “anti-government” friends suffer…to their own and our ill!

 

          Everyone has heard, or should have heard, the political and psychological dictum, or precept, first coined by the British philosopher  Lord Acton in a letter to Anglican Church Bishop and Bishop of London Mandell Creighton in 1871.  The line, stating a conclusion which we all really know is indisputable, reads as follows:

 

                   -Power corrupts; and absolute power corrupts absolutely.

 

          Just a very few words, but they encapsulate so very much about the nature of Mankind.  When we are unimpeded, when there is nothing of note or seeming value or importance between us and our goal, we run pell-mell toward it oblivious of, for example, the wrens’ nest that is lying under the brush upon which, in our breathless rush, we are about to tread…and smash.  Extend that idea into the competitive business worlds of, let’s say, the sale of insurance, the development of pharmaceuticals to help mankind, the sale of leisure products for markets hungry for same, the drilling for and discovery of petroleum for sale to societies with an insatiable thirst for crude, the organization and conduct of financial markets and the allocation and re-allocation of great wealth associated therewith, and what does that do to our basic proposition?  It means that in both the small and great issues faced by Man and the determination of who “wins the game” in either of such venues, it is Man’s inborn nature to live by the belief that, “He who ignores the wren’s eggs under his foot will always win.” 

         

          Unless, of course, societal interest (some say “the greater good”) is made a part of the calculus of the game.

         

          I recall so well a lawsuit I handled twenty or more years ago where I represented a professional “master fishing guide” who worked primarily on a certain large impoundment, a lake, in this area of Mid-America.  Persons of the stature of this gentleman in his trade are, as a matter of course, given superb fishing boats and massive outboard motors by the manufacturers of same, receiving the new model each year, and, since the old “boat and motor” are the property of the fishing guide, he sells them when he gets the new models and keeps the proceeds.   In this particular lawsuit, however, my client had sold his “old” boat and motor to a certain third party who was injured by the outboard motor in a horrible accident–with the result that he lost a goodly portion of one of his legs.

 

          The manufacturer of the motor, one of the very best and well-known in the business, as it turned out, purposefully “cut a corner” in the manufacturing of that motor that particular year–to get a leg up on the competition…not seeing, or perhaps caring, that there was a nest of baby wrens underlying the decision process.  So, in this subsequent “products liability suit, it was ascertained that even though the “state of the art” in the manufacture of outboard motors in that particular model year called for an automatic “kill switch” to be installed on the control handle mechanism, the manufacturer decided to leave off the switch since it cost $2.76 per unit to install one!  So, the result of the unimpeded action of Man, the entrepreneur, was to take away a man’s leg–for two dollars and seventy six cents.

 

          Now the rule, or constraint that the manufacturer of the motor pushed to the side in this instance had been put in place by the common law system of “Products Liability.”  This is a theory of law established decades or actually a century or so ago whereby the maker of any product used in the course of business which might end up in the hands of an “unprofessional,” must be held in its manufacture to the “state of the art” in the manufacture of such devices at the time of the making of same.  If the maker does not, if there is no third party modification, and if someone is injured as in this case, liability for the injury lies upon the manufacturer, and it is what is called “absolute.”  No other questions asked.  The reason for the law?  To protect the purchasers of these outboard motors, the “wrens,” from the product manufacturer’s greed, i.e., the greater good.

 

          In the business of electrification, especially rural electrification, there was back during the 1930’s unrestrained and unregulated competition for business with every rural electric co-operative and every private power company buying up easements, digging post holes and hanging electric wire everywhere—so as to have its power grid as expansive as possible and to be better able to quickly bring service to the customers for which it was competing.  From the competitive angle, it all made sense–but from the angle of the simple beauty of the countryside, it was an atrocious practice, for rural Cherokee County, Oklahoma, for example, had as many overhead electric lines running everywhere, just as if it were the City of Chicago!

 

          To solve this problem every state in the United States (if there are exceptions I would like to hear of same) enacted “Rural Electrification Laws” which provided the impetus for the various states to create Public Utility Boards or Commissions, which, as just one part of their responsibility, was to create and then enforce the equitable division of electric consumer markets.  The reason?   To protect the consumers view of the Blue Ridge Mountains and the population of wrens.  The greater good.

 

          Back in the 1970’s the United States Congress and the President effectuated a new law known as the “Clean Air Act.”  The short explanation of the premise for the law was that industry in general, and electric generating companies in particular, must take every step possible to make certain that the O 2 that we all breathe is as healthy as possible.   A real problem for those of us humans who like to breathe and have well-functioning lungs was the sulphur dioxide emitted by all such plants in the process of burning the coal that ran the furnaces that tuned the generators that created the electricity. 

         

          The electric companies were faced with two options if they wished to remain in business and not be forced out of business, i.e.,: i.) perhaps use coal mined nearby that happened to have a high sulphur content and put sulphur dioxide “scrubbers” on the top of each of their “stacks”–each of these masterful bits of technology, however, costing several millions of dollars, or ii.) pay a huge railroad freight bill for having low sulphur coal shipped in from Wyoming’s Powder River Basin essentially in the middle of nowhere.  As any sentient reader would surmise, almost all coal-fired electric generating plants in the United States chose to ship their coal in from Wyoming–which had the direct effect of putting all high sulphur coal companies such as one of my firm’s clients into bankruptcy.  The reason? Yes.  The Greater good–human health. 

 

          (Of course we all know that with the current issues surrounding the production of petroleum, the calculus of generating power may at some point in the future change so as to require that more coal, even high sulphur “scrubbed” coal, be used than at present.  All to the greater good, of course.)

 

          This analysis can be applied to almost every area of business in our society–and I can give examples and reasons for each and every one of the regulations being railed against by the anti-government crowd–a group who, by definition, do not often bother to make such calculations.  All such regulations really do to them, of course, is to sometimes increase the expense of producing or delivering a product, but what they ignore is that if we have “good and fair government” and overcome the occasional problem of graft by lawmakers and law enforcers being “bought off” by some of each and every type of regulated business, all enterprises will still be competing, or playing, under the same rules.

 

          And, of course, we all know of the Great Recession in which our economy is still foundering.   How did it start?  President Bill Clinton’s good heart told Fannie Mae and Freddie Mac (who provide the entire nation with its secondary wholesale mortgage take-out) to stop enforcing the regulations on the books in order that poor families in America might have a chance to live the “American Dream”–even if the poor folks could not afford the debt they were assuming.  Add that ignorant move to President Bush XLIII’s de-regulation of the mortgage finance industry by the Securities Exchange Commission, and join in the nature of Man, and one inevitably has a “Great Recession” where all of the players–especially in the area of bundled mortgages being turned into derivative securities (of which Messrs. Clinton and Bush could never have dreamed) and then we have a world wide recession.

 

          The point in the latter sample situation is that the laws that would have prevented the recession were on the books but politicians chose to make them irrelevant.  No matter the so-called complex and convoluted  nature of the derivative securitized instruments, if the requisite “nudge” is not there and there is no regulation, given the nature of Mankind, we as a Nation and a World could not possibly have expected anything else.

 

          And what is the closing point?  Let us all be in favor of a growing, stable capitalistic, full employment society and economy; but we cannot  ever allow the Rush Limbaughs, Newt Gingrichs, Roger Aileses, Sarah Palins and Glenn Becks of this Country convince “the People,” and thus indirectly the idiot pandering politicians, that we will all be better off with no government power relative to the conduct of business.

 

Don Switzer

Rogers, Arkansas

(c) June 21, 2010