Law in Contemporary Society

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HelenMayerFirstPaper 4 - 15 Apr 2009 - Main.HelenMayer
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 -- By HelenMayer - 27 Feb 2009
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As a casual observer of politics, I am always fascinated by the idea of the “fix.” The cycle, call it a play even, goes something like this: an issue arouses the public conscience and a popular call for action results. After Congress passes legislation addressing it, commentators spend a week reviewing each player’s performance and wrapping up the story, after which time the issue slips off the front pages while politicians take a curtain call. Everyone prefers to consider the problem “fixed” until a blue ribbon commission of experts publishes a report reminding us that, in fact, the problem still exists. Then comes the “reform effort,” more legislation to quell the popular outcry, more curtain calls, and so the play continues. We see this phenomenon all the time. We “fixed” the Nation at Risk with No Child Left Behind legislation and now are schools are accountable. We “fixed” the problems of our country’s working poor by raising the federal minimum wage to $7.25 an hour. We “fixed” children’s health care by extending SCHIP and now millions more have access.
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As a casual observer of politics, I am always fascinated by the idea of the “fix.” The cycle, call it a play even, goes something like this: an issue arouses the public conscience and a popular call for action results. After Congress passes legislation addressing it, commentators spend a week reviewing each player’s performance and wrapping up the story on the Sunday shows. The issue then slips off the front pages while politicians take a curtain call. Everyone considers the problem “fixed” until a blue ribbon commission of experts publishes a report reminding us that, in fact, the problem still exists. Then comes the “reform effort,” more legislation to quell the resulting popular outcry, more curtain calls, and so the play continues. We see this phenomenon all the time. We “fixed” the Nation at Risk with No Child Left Behind legislation and now are schools are accountable. We “fixed” the problems of our country’s working poor by raising the federal minimum wage to $7.25 an hour. We “fixed” children’s health care by extending SCHIP and now millions more have access. I think this tendency has a simple, but potentially intractable source. Political action follows this pattern for the same reason that the ultimate decision of guilt or innocence is left to twelve people locked in a blackbox, and for the same reason that people turn to religion to assuage their fear of death – to provide a comforting resolution to problems people feel otherwise powerless to cope with.
 
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There are standard explanations for this cycle of events. These things take time to work, we are told, and it will take years to measure their full effect – if it is possible at all. Until then there is no sense in Monday morning quarterbacking. Another popular explanation is the role of the media, with its penchant for flash over substance. The only way the networks can even approach profitability is to be the first on the scene of the next big crisis – no time to cover yesterday’s news, let alone its after effects!
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The traditional explanations for society’s response to major problems are often structural. We are told that these things take time to work, that it will take years to measure their full effect – if it is possible at all. Until then there is no sense in Monday morning quarterbacking. But I for one have heard enough talking heads debate how much is left in the TARP fund or whether capital projects are really “shovel-ready” to wonder if we as a public are even interested in the answers. Others blame the media in general with its penchant for flash over substance. The only way the networks can even approach profitability is to be the first on the scene of the next big crisis – no time to cover yesterday’s news, let alone its after effects! But I would argue these explanations are little more than symptoms of this same human tendency to convince ourselves that the problem solved whenever possible.
 
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I think what’s happening here has a simpler, but potentially more intractable source. We have read about it in the writings of both Frank and Leff. Political action follows this pattern for the same reason that the ultimate decision of guilt or innocence is left to twelve people locked in a blackbox, and for the same reason that people turn to religion to provide a comforting explanation for death – to solve problems they feel otherwise powerless to cope with. In the drama of politics, when a society identifies a problem ordinary people play their part as outraged citizens clamoring for its resolution because it seems too difficult for a person-by-person solution, just as it seems too difficult to deal with the problem of the subjectivity of facts in a trial or the fear of death in the human psyche. So, Congress and the President are cast in the roles of “fixers-in-chief” with the networks serving dual functions as microphone and narrator. When the “fixers” develop a solution, we may not be able to grasp what it means for a country to spend $634 billion on health care reform, or to home in on $2 trillion in budgetary savings over the next ten years. (These astronomical numbers often leave me, at least, at a loss – what is the difference between an $800 billion stimulus package and a $700 billion one?) But passing the law or developing the way forward alleviates the uncertainty we feel about these problems. Once the “fix” portion of the play reaches its conclusion, we can return to our steady state of contentedness while telling ourselves that although it was not a perfect bill, such a thing does not exist. At least we as a society “dealt” with the problem, and for pity’s sake next time we should remember not to watch how laws or sausage are made. We remain in this cognitive state until the blue ribbon commissions and “outside agitators” lead us to clamor once again for a solution (this time with lessons learned, of course) and the play begins anew.
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We are familiar with the players in this drama of politics, and their actions belie their underlying motivations. In the opening act, a problem hits the front pages - today it might be the economic collapse or violence on the U.S.-Mexico border. Ordinary people play their part as outraged citizens clamoring for resolution to these problems because it seems too difficult to deal with personally, just as it seems too difficult to address the problem of the subjectivity of facts in a trial or the fear of death in the human psyche. So, Congress and the President are cast in the roles of “fixers-in-chief” with the television networks serving dual functions as microphone and narrator (ironic is it not, that in this nation that hates paying taxes and claims to hate government interference in our own lives, that our first response to the problems of others is to demand government intervention?). When these “fixers” develop a solution, we may not be able to grasp what it means for a country to spend $634 billion on health care reform, or to home in on $2 trillion in budgetary savings over the next ten years. But passing the law or developing the way forward alleviates the uncertainty we feel about these problems. Once the “fix” portion of the play reaches its conclusion, we can return to our steady state of contentedness while telling ourselves that although it was not a perfect bill, such a thing does not exist. At least we as a society “dealt” with the problem, and for pity’s sake next time we should remember not to watch how laws or sausage are made. We remain in this cognitive state until the blue ribbon commissions and “outside agitators” lead us to clamor once again for a solution (this time with lessons learned, of course) and the play begins anew.
 
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Admittedly, this is a discouraging portrait of how our laws are written. And in focusing on the public’s role in encouraging a “fix” I have not touched on the undercurrent of competing interests that lurk just below the surface. This is not to say I do not recognize the existence of that element as well. Indeed, when all the check-writing attendees at a fundraiser with John Murtha, Chairman of the Subcommittee on Defense Appropriations, attach business cards from Boeing, Lockheed and Northrup Grumman these players are brought into stark relief. I focus on other parts of the play because I often find that this class elicits a deceptively simple question in each context we discuss: which is more effective – changing the script from the outside or acting out the script from the inside with different goals in mind?
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Admittedly, this is a discouraging portrait of how our laws are written. And in focusing on the public’s role in encouraging a “fix” I have not touched on the undercurrent of competing interests that lurk just below the surface. This is not to say I do not recognize the existence of that element as well. Indeed, when all the check-writing attendees at a fundraiser with John Murtha, Chairman of the Subcommittee on Defense Appropriations, attach business cards from Boeing, Lockheed and Northrup Grumman these players are brought into stark relief.
 
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To my mind, working from the inside has a slight edge. Fear is a powerful human emotion, and fear of uncertainly is especially so. I mention this not only to recognize the difficulty of altering this aspect of the human psyche, but also because humans use magic not just to explain areas we are uncomfortable dealing with, such as death, but also to assuage our doubts in contexts where conquering uncertainty and finding the “truth” is impossible because it is inherently subjective. A trial is such a context. If the facts we allow a jury to hear are ultimately subjective, we cannot say whether the rules of evidence as they stand are “right” or “wrong." We can only say whether we think a change into the rules will get us to an outcome we believe is just more often than the rules would without it. I believe political solutions fall into this latter category. To take an example from class, when we pass a law such as the State Children’s Health Insurance Program, we should evaluate the move by asking whether, given that it is funded with a cigarette tax increase, it will further our values on the whole. We should evaluate our laws with this metric in mind, rather than the more comforting but ultimately cyclical goal of curing uncertainty in the public mind.
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Instead, I focus on other parts of the play because only by understanding what actually motivates individuals will we be able to dismiss ineffective solutions. In fact, the idea that reforms could change a process which is perpetuated by the human inability to cope with uncertainty might be little more than an act of the drama itself (see ethics reform, for starters). I think a better metric for evaluation when there is a popular clamor for a fix to the latest problem is whether the proposed solution will further our values on the whole. So to take an example from class, when we expand SCHIP with a cigarette tax increase we should ask whether, knowing that this is our only chance to tackle children’s health care for several years, we prefer their health over the liberty of citizens who are smokers. Of course, if we are really good, we might even become the people who start the public outcry in the first place!
 
  • This essay is very strong for three quarters, but it wanders a little towards the end. I think you could strengthen it by

Revision 4r4 - 15 Apr 2009 - 01:54:38 - HelenMayer
Revision 3r3 - 26 Mar 2009 - 22:17:08 - IanSullivan
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