Tuesday, May 22, 2018

Here We Go Again

Or:  American Public Discourse is Pathetic.

These distinctly American ideas became the often unintended instruments for splitting the country into two classes: the protected and the unprotected. The protected overmatched, overran and paralyzed the government. The unprotected were left even further behind. And in many cases, the work was done by a generation of smart, hungry strivers who benefited from one of the most American values of all: meritocracy.

Why, that has never happened in American history!  Oh, how far we have fallen from the grace that we inherited, an unbroken period of a country with no class distinctions become a country with two classes!  Now watch carefully as the legerdemain continues.  His hands never leave his sleeves!  Presto!

Yet key measures of the nation’s public engagement, satisfaction and confidence – voter turnout, knowledge of public-policy issues, faith that the next generation will fare better than the current one, and respect for basic institutions, especially the government – are far below what they were 50 years ago, and in many cases have reached near historic lows.

"Near historic lows" is the euphemistic way of saying we've been here before, and probably worse, so maybe this is more status quo than it is the end of the affair.  Rather like I keep saying about the number of people who declared themselves unaffiliated with a religion in the early 20th century; when the number of "nones" gets back to that level, it might merely mean we've returned to the trough of the wave.  And I am wondering how many plantation owners, poor whites, frontiersmen, and manual laborers in the 18th and 19th centuries, not to mention slaves, had much knowledge, if any, about "public policy issues" or "faith that the next generation will fare better than the current one" (that one is a post-war, as in WWII, invention.  It is as meritless as the claim we are a "Christian nation.")  But I digress; if I start questioning all the cliches in this, I'll never get anything else done.

It is difficult to argue that the cynicism is misplaced. From matters small – there are an average of 657 water-main breaks a day, for example – to large, it is clear that the country has gone into a tailspin over the last half-century, when John F. Kennedy’s New Frontier was about seizing the future, not trying to survive the present.

Kennedy was "seizing the future" 15 years after World War II turned America into an industrial dynamo (and nearly bankrupted the U.S. government, but in the end that didn't happen, so the historical picture is uniformly rosy about that war; at least it is 75 years later) and we bestrode the world as the New Colossus.  "Made in Japan" still meant "crappy and substandard," almost nothing was imported except maybe French wine, and Germany's contribution to American culture was the VW Beetle.

Times have changed, in other words.  Texas, for example, built public buildings like schools on oil field money.  It was still the Saudi Arabia of the world at the time, although Saudi Arabia was already taking over that position.  Without that money, Texas schools would be as bad off as they are today (I know a school district in once oil-rich East Texas that is still using a school building from the 1930's. It's high schools are 60 years old in one case, almost 50 years old in the other, and badly in need of replacement (at least one of them should have been replaced when I was there, almost 50 years ago.  It was a terrible design.).  Nobody wants to raise the money to do it because it's expensive and oil money won't pay for those things anymore.  The optimism of the '60's was because the rest of the world came to us for finance and industry and while that didn't last long, it was a heady experience that took almost two decades to start to falter.  Baby Boomers were born into that myth, one that lasted until the early '70's, when it started falling apart.  The optimism and enthusiasm of the Industrial Revolution never meant that all public projects benefited everybody, or even that they included the maintenance budgets they required.  We like our growth free and we still like to think it "pays for itself."  It doesn't, of course.  It never did.  Even the transcontinental railroad was government subsidized; even westward expansion was funded and promoted by the federal government, anxious to secure the ground before another nation did.  It paid off, but not without huge public investment.  But since Reagan we have convinced ourselves the public investment wasn't the key; and is it any accident that decision was made as blacks were claiming their place at the table?  It isn't just public school funding that was abandoned as segregated schools became unconstitutional.

But this is where it gets hilarious:

But there is a theme that threads through and ties together all the strands: many of the most talented, driven Americans used what makes America great–the First Amendment, due process, financial and legal ingenuity, free markets and free trade, meritocracy, even democracy itself–to chase the American Dream. And they won it, for themselves. Then, in a way unprecedented in history, they were able to consolidate their winnings, outsmart and co-opt the forces that might have reined them in, and pull up the ladder so more could not share in their success or challenge their primacy.

I actually heard Brill argue in a radio interview this morning that the problem with "meritocracy" is that it did away with gaining positions of power (in law firms, on Wall Street, etc.) based on playing on the right lacrosse team, and replaced it with intelligence.  So women and Jews now have access, but only the smartest ones.  Which, yes, is a problem, because intelligence is valued above all things, reason is the supreme good; but, as Brill only implies, how do you define "reason" and what does it lead to?  Utilitarianism?  At a minimum, it justifies those in power staying in power, having the power, wielding the power.  It only stands to reason; right?  Brill thinks the shift from Ivy League (nee British) class privilege to the merit based system of how well you did on the SAT's, is a fundamental one.  Try as I might, I can't see the difference; and my critique of either one is that neither promotes wisdom, which would require taking into account morality, and concepts like compassion, concepts like the first of all must be servant and last of all.

I'm sorry, did I say Brill became hilarious at that point?  I didn't read down far enough:

I played a role in this “antisocial” movement. In 1979, I started a magazine called the American Lawyer, which focused on the business of law firms and the intriguing questions lurking behind their elegant reception areas. Which ones were best managed? Which offered the most opportunity to women or minorities? Which were more likely to promote associates to partnership? Which had the fairest or most generous bonus systems? And, yes, which provided the highest profits for partners?

That last question resulted in the American Lawyer launching a special issue every summer, beginning in 1985, in which we deployed reporters to pierce the secrecy of these private partnerships so that the magazine could rank the revenues and average profits taken home by partners at the largest firms. When the first survey was published, I received a call from a former classmate who practiced at a large Los Angeles firm. He was outraged because he–and his wife–had found out that another classmate who worked at a seemingly fungible L.A. firm made about 25% more than he did. Until then, they had been perfectly happy with his six-figure income.

The fallout from this report and those from similar trade publications was significant and double-edged. The new flow-of-market information about these businesses made those who ran them more accountable to their partners, their employees and their clients, but it also transformed the practice of law by the country’s most talented lawyers in ways that had significant drawbacks. The emphasis was now fully on serving those clients who could pay the most.

I was working in a law firm in the '80's, when "American Lawyer" began to show up in the law library.  Most of the lawyers I knew regarded it as little more than a gossip rag.  The bigger impact on legal practice came from "Rambo" lawyers who, aping the attitude of Newt Gingrich (remember him?  Brill apparently doesn't), were flamboyantly combative in the courtroom, not often to the benefit of their clients, but very much to the benefit of themselves.  I encountered a lawyer like that when I was practicing.  She forced me to attend a hearing on a motion to withdraw (mine) as counsel for a client we'd lost touch with.  It should have been handled with an agreed order submitted to the clerk for a judge to sign, but she demanded a hearing, all so she could (a) bill her client for the time, and (b) impress upon her client what a warrior-lawyer she was.  The judge listened to me politely, turned to her and asked "Why shouldn't I grant this motion?"  It was all over at that point, but she took up as much time as she could, anyway.  Those were the lawyers we were all worrying about.  Transforming the practice of law to "serv[e] those clients who could pay the most" came out of Rambo litigating and other pressures on law firms to make as much money as possible (and to specialize.  The days of the genial generalist ended long before I came along.  I was lucky enough to know one such gentleman of the law.  He wouldn't be recognizable in a museum exhibit today.  HIs example has passed from all memory.).   I honestly never worked for a law firm that wasn't concerned with serving the clients who paid the biggest legal bills.  Steven Brill had nothing to do with that.  He might as well say the sun rises just to shine on him.

This is where Brill inevitably ends, as the quintessential Baby Boomer: with this misbegotten mea culpa, a humble brag about how important he is (He single-handedly ruined American legal practice!).  No, sorry.  Boomer were the first generation to be regarded as a generation, and yes, it went to their collective heads.  They thought (a handful of them, the wealthiest and most privileged, who could afford college and trips to the South to organize voters, or take time off for Woodstock without losing jobs or privileges when they came home) they were going to usher in the Age of Aquarius.  When they found out they (a) weren't that important, (b) weren't that much in control, and (c) were just as human as everyone else, they went back to being human beings, and the band played on.  All that talk about changing the world was easier on daddy's money; once they had to earn their own bread they sympathized with Harrison's anger in "Tax Man," and decided to once again engage in that fine American past-time of pulling up the ladder behind them.  Frankly, no generation before or since has championed civil rights and human rights and gender rights and equality for all as much as the Boomers did, but they never really got behind Dr. King's march of economic rights and economic equality (his "Dream" speech was not at a voting rights or civil rights march, but a march for economic justice; he died at a protest for living wages for garbage collectors).  Brill doesn't advocate for that, either.  He basically complains that the present looks too much like the past, when we were promised a New Jerusalem at last, courtesy of American ingenuity and Yankee capitalism, and where is our flying car, anyway?  (His book is titled Tailspin, do you see what I did, there?)  He even whines that the advances the '60's made, were turned against us in the '90's and afterward:

A landmark 1976 Supreme Court case brought by lawyers for consumer-rights activist Ralph Nader gave corporations that owned drugstores a First Amendment right to inform consumers by advertising their prices. In the years that followed, lawyers for the protected morphed that consumer-rights victory into a corporate free-speech movement. The result has been court decisions allowing unlimited corporate money to overwhelm democratic elections and other rulings allowing corporations to challenge regulations related to basic consumer-protection issues, like product labeling.

Oh, noes!  When in human history has such a thing ever happened?  When have good intentions led to bad consequences?  Who could have foreseen?  Damn you, Boomers, for not being prescient AND perfect!  He later quotes Daniel Markovits to underline his point:

“American meritocracy has thus become precisely what it was invented to combat,” Markovits concluded, “a mechanism for the dynastic transmission of wealth and privilege across generations. Meritocracy now constitutes a modern-day aristocracy.”
You mean the land of the free and home of the brave, built on xenophobia against the natives, and slaves imported from Africa, and the grudging and slow acceptance of "white" Europeans (who didn't start out "white"), but not of "brown" people from anywhere, built a system meant to establish the principle that all men [sic] are created equal, but created the opposite of that?  How are such things possible?

Damn you, Boomers!  It's because of you I still don't have my flying car!  Or a completely white Jetson's future!


  1. I should have read this before I wrote my morning piece.

    I have to admit, I haven't been wondering where Steve Brill has been since Brill's Content folded. His article is a real mish-mosh of a piece.

  2. It's from his new book, which makes it even worse.