Article 25

Ask an Unemployed Lawyer

In Uncategorized on 05/07/2012 at 9:24 am

ImageJesus Has a Business Plan

By U.L.

Photo by REUTERS/Toby Melville.

Dear Unemployed Lawyer,


Something has been bugging me. It has become very common for employers to require drug testing even for jobs that involve sitting at a desk all day. Now some companies are requiring applicants to give their Facebook passwords. What happened to privacy? What happened to being presumed innocent? How did we get to this point, and how do we change it?


Jennifer Spangler

Dear Jennifer:

Don’t know if you’re a baseball fan, but a few weeks ago Miami Marlins Manager Ozzie Guillen was suspended for five games for expressing his admiration for Fidel Castro because he survived so many assassination attempts. It was not unlike how people express their admiration for Keith Richards. It’s not, “Hey kids, you should model your life after him because of all his wise decisions.” It’s a more Lebowski-like reverence of life’s paradoxical mysteries: “The Dude abides.”

The orchestrated condemnation, led by the Entertainment and Sports Programming Network, was swift and fanatical. One talking head (sorry, I didn’t catch his name, but he was a reporter for Fox Sports) angrily lectured the TV audience that this was not a First Amendment issue, because the First Amendment only protects citizens from being silenced by the government, whereas private companies, such as the Miami Marlins, are free to act in their best interest.

Which is true. Ozzie committed a Private Crime, violating the Prime Directive: Thou shall not negatively impact thy employer’s freedom to maximize profit. He deserved a public flogging, which in these more enlightened times includes groveling apologies for ever holding a thought that could be interpreted as anti-profit.

Commissioner Bud Selig explained: “Guillen’s remarks, which were offensive to an important part of the Miami community and others throughout the world, have no place in our game.”

Which is certainly not true: The history of baseball is renowned for its offensiveness, such as the death threats that Hank Aaron received in Cincinnati when he was about to break Babe Ruth’s home-run record, as enshrined in Cooperstown for all to see.

What changed is the morality of economics. As industries deregulated and cross-pollinated, new markets were born, just as promised. The fans in the seats were not nearly as economically important as the fans who watch TV, the emotionally vulnerable who buy merchandise and the media who shill shoes.

(Kids won’t believe this, but it wasn’t that long ago that some play-by-play guys refused to do commercial plugs. Of course, back then lawyers weren’t allowed to advertise, either. Funny.)

Now, I’m no economist – hell, evidentially, I’m not even a very good lawyer – so the “How did we get to this point?” question you pose, Jennifer, is best answered pretentiously: the influence of the Chicago School of Economics, converging with a corporate ethos replacing religion and civic rule as our public moral structure.

There are good things about the corporate ethos: Since one does not want to offend any segment of the market, equality of opportunity to purchase is paramount. Was it not the mighty Procter & Gamble that forced Cincinnati to rescind its ridiculous anti-gay charter amendment? They even suffered a half-assed boycott attempt from a tiny homophobic tide because of its role.

I was exposed to the Chicago School, which includes such stalwarts as Milton Friedman, via the work of Richard Posner, who concisely explains justice as “efficiency” because “in a world of scarce resources, waste should be regarded as immoral.”

Sounds pretty moral, doesn’t it? Think about it a little more, and it sounds a tad neurotic. A wee bit more, and it reeks of Howard Hughes-level bat-shit crazy. Add to it an incomprehensible belief in human rationality and neoclassical price theory (the market knows best), and you have your modern mores.

How does one define “waste” in Posner’s postulate?  We’re not talking about wasting a life or opportunity or even getting wasted. No, it must be an objective measure: And what more objective measure is there than money?

And it can lead to funny outcomes. One of my favorite class discussions in law school was about how legalizing rape could be shown to have a net positive economic impact. Therefore is it not a moral imperative that we legalize rape?

And as “efficiency” and trust in the market (until Bears Sterns is allowed to fail in the name of “moral hazard,” which threatens a financial collapse that requires government bailout) is our moral base, “freedom” is more about commercial rights and less about human rights.

And so, as you point out, who tests your pee or asks for your Facebook password: the government, or private companies exercising their “freedom”?

But it’s far more pervasive than that. Privatization of prisons – does profit derived from those who’ve lost their liberty not mean slavery? – schools and the hatred of all things “government” perpetuate this ethos.

(Kids won’t believe this, but it wasn’t that long ago that newspapers didn’t even have business sections. If anyone cared about business news, they read the Wall Street Journal, or they kept quiet. Business advice books were separate from the self-help section, and Jesus lacked a formal business plan for growth. You not only could lie to the government, but you were expected to – that’s why we had to administer oaths.)

Metrics are another corporate bastardization of our culture. Giving most managers a metric is like giving an algebra problem to your average preschooler. “Solve for X, Maven.” “Four!” “Good girl, gold star for you!”

Recent conversation from one of those private colleges:

Administrator: This new metric will show your class attendance. You will be expected to achieve a minimum of 80 percent.

Teacher: What does that measure, exactly?

Administrator: It measures your class attendance.

Teacher: No, I mean, is there some correlation between class attendance and student success? Because I sure skipped a lot of classes.

Administrator: (Says nothing, writes lengthy note on clipboard.)

And leadership! Stop it! Leadership is not a trait to admire; it’s generally a precursor to more psychotic tendencies. Your Myers-Briggs ideal managerial candidate would live by something akin to Michael Pollan’s advice for eating food: Make decisions, don’t think too much, mostly gut.

We all know someone who has been marked by an errant HR evaluation as leadership material. They think their ideas are always good ones,

Those inspirational stories of persistence, like how many rejections Steven King got, or how many times Einstein got fired? Stories of failed leadership, every damn one. Sure, persistence can pay off, but you also need a little help and a little luck, because, as all those idiots who rejected these talents demonstrate, our leadership class is moronic on a good day.

Anyway, Jennifer, that’s how I think we got to this point. We no longer believe in religion, we no longer believe in government, and so egalitarian corporatism has filled the moral base.  The left is happy that gay couples can get benefits and women are primary consumer targets, the right is happy that we keep the prisons full and the guns loaded, and the rich are just plain grateful to all.

How do we fix it? Well, this might sound like a cliché coming from an unemployed lawyer, but the truth is always ultimately subjective. That’s why we have juries. And that’s also why we admire people who beat the odds, despite making objectively bad decisions.

Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to


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