Williams, Diary of a Mad Law Professor

THE NATION
diary of a mad law professor
Economic Bad Boys
Patricia J. Williams

When the "scrawny boy from Austria" delivered his peroration against faint-hearted "economic girlie men," it was an unusually seductive, even witty, appeal to a notion of free enterprise that is not just flexible but musclebound, not just robust but smackdown and not just strong but hypersteroidal. But the American free enterprise system, particularly since the Depression, has always rested on an assumption that the marketplace would be bounded by notions of fairness, reasonableness, rationality as well as efficiency. Recently, libertarian clichés and Republican oversimplifications seem to have left many people with the impression that commerce should be utterly unbounded by any kind of regulation whatsoever. This kind of thinking is littered with references to survival of the fittest, dogs eating dogs and snarling consumption of large quantities of red meat still bloody enough to spatter impressively.

But the government's role used to mean insuring that the market was free of transactions posing great risks to life, limb or cultural capital. In such ideal circumstances, parties might bargain as wisely or foolishly as they please as long as they are capable actors, the terms are reasonable rather than unconscionable and no undue force, either public or private, is brought to bear. Where such circumstances did not exist, it was understood that public willingness to participate in the market would be affected and that participants could not be pacified by monetary damages alone but might rather be motivated by pain, fear, vengeance or fury.
Two things have happened in the years it has taken to convert Arnold Schwarzenegger into a political philosopher. One is that the pricing of risk has overtaken all other categories of analysis. From the high-flying executives at Enron to the mercenary soldiers of Executive Outcomes, every jot of daily life, from the highest ideal to the most basic principle, seems to have its price tag. Our political discourse is configured much more by models of hasta la vista baby commercialism than guided by civil libertarian or humanitarian ethics. The second thing that has happened is that the notion of the state as a monopoly of power has been under attack by antigovernment ideologues, who think the only function of government is policing a narrow range of business interests. This has resulted in broad suspicion of the judiciary as well as Congress, and an increased tendency to reduce the executive function to that of a military-minded CEO. But the degree to which this theoretical decentralization of government power also results in an unchecked aggregation of corporate power is ironic.

I guess I bother to go through this rather academic rendition because I worry that the notion of free enterprise driving the he-man model of capitalism is dangerously flawed. Let me give a bottom-line example of what's bothering me. A few months ago, National Public Radio's Talk of the Nation did a program about a Dutch physician working for Médecins Sans Frontières who was kidnapped and held for nearly two years in southern Russia. The Dutch government paid the ransom, but then sued Médecins Sans Frontières for reimbursement of about $1 million. The questions asked during the radio discussion were revealing: Did the Netherlands violate a presumably public policy principle of "not negotiating with terrorists"? Or was it simply lending Médecins Sans Frontières money under stress of a deadline, with the implicit assumption that it would be repaid? And what do corporations, if not governments, do when their employees are kidnapped?

In response to this last question, there was an interview with a man from an outfit called Corporate Risk, a service that handles the negotiation, delivery of ransom, coordination of law enforcement and communication with family. Callers seemed to relate to the mission of Corporate Risk. One listener described the world as a dangerous place generally; it was only natural to put a price on that danger. The guiding light for many seemed to be a corporation's--and ultimately a government's--willingness to absorb or dismiss beheading as the cost of doing business.

To me, there are a couple of fundamental moral mistakes here. The first is that governments, in their policy of "no negotiation" despite risk to human life, seem to be treating criminal or battlefield behavior as though it were an economic transaction--as though it were a usurious or extortive system of raising capital. Your money or your life, says the terrorist. No deal, says the wise, if short-lived, free marketeer. But if we view our bodies as beyond price, we might move heaven and earth to save a life--consider how different the Lindbergh case or the desperate negotiations for Daniel Pearl. Loss of life disorders much more than the marketplace, and that should guide our response. The second mistake is that private corporations are not really "undercutting" public policy--they are underwriting it. Politicians get to stand firm, while private companies hire desperately poor men from Nepal, Turkey, Bangladesh, to work in the line of fire--people whose lack of options become recast as "choice" or "freely assumed risk"--people whose lives are easily bought, and whose loss or injury is a transaction cost invisible to the voting public in powerful polities. In this model, neither the individual nor the state can lay claim to a value beyond price. Rather, the stock in the business enterprise itself is the prime interest to be protected.

Recently, Médecins Sans Frontières withdrew all its doctors from Afghanistan after the government there failed to investigate or prosecute the murderers of five of its doctors. As I flipped the dial through talk-radio rather farther to the right on the dial from NPR (I was driving from Boston to New York and could not identify all the voices or stations), I heard several discussions describing the decision as an unfortunate "cost of doing business," and that you can't "whine" if you put yourself "in harm's way."

The characterization of Médecins Sans Frontières, a neutral charitable organization operating in war zones around the world, as just another risk-calculating "business," is just one example of how much of what we used to think of as humanitarianism has been negotiated away in the politics of testosterone.

Cynthia McKinney Apologizes

McKinney apologizes for scuffle with officer
Grand jury to hear testimony on incident, sources say


Thursday, April 6, 2006; Posted: 2:20 p.m. EDT

WASHINGTON (CNN) -- Rep. Cynthia McKinney apologized on the House floor Thursday for a confrontation with a Capitol Police officer last week.

"There should not have been any physical contact in this incident," McKinney said.

"I am sorry that this misunderstanding happened at all, and I regret its escalation and I apologize," she said surrounded by colleagues on the House floor.

She said she would vote for a resolution expressing support for the efforts of Capitol Police. (Watch McKinney express her regret Thursday -- :43)

McKinney's apology came as a District of Columbia grand jury began hearing testimony Thursday related to the confrontation, sources said.

A decision on whether the Georgia congresswoman will be charged could come as early as next week, federal law enforcement sources said.

Senior congressional sources said that two House staff members -- Troy Phillips, an aide to Rep. Sam Farr, D-California, and Lisa Subrize, executive assistant to Rep. Thaddeus McCotter, R-Michigan -- have been subpoenaed to testify.

Legal sources familiar with the case said the investigation into the incident is continuing and that is it unclear what impact McKinney's apology will have.

Police say McKinney struck a Capitol Police officer last week when the officer did not recognize her as a member of Congress and tried to stop her from entering a House office building when she did not present identification.

McKinney accuses the officer of "inappropriate touching" and racial profiling in the incident.
James Myart, an attorney representing McKinney, said he wouldn't be surprised if his client were indicted.

"Grand juries do what grand juries do," Myart said. "However, I would think that they would recognize that there simply is not enough evidence here to even bring an indictment."

Members of the Congressional Black Caucus, which has declined to comment because the facts of the case are in dispute, met Wednesday evening to discuss the incident. McKinney was in attendance.

Also Wednesday, McKinney deflected questions about the confrontation, while the Capitol Police chief said the lawmaker should have known better. (Watch McKinney deflect questions -- 10:46)

Capitol Police Chief Terrance Gainer said McKinney didn't stop at an officer's request, then turned around and hit him after he grabbed her when she passed a security checkpoint.
"Any time an officer does not know who the person is coming in the building, I direct them to stop that person. And even if you're stopped, you're not supposed to hit a police officer. It's very simple," he said. "Even the high and the haughty should be able to stop and say, 'I'm a congressman,' and then everybody moves on."

But Myart said that Gainer and other officers went to McKinney's office after the dispute and apologized for the officer's conduct. Myart also questioned why McKinney wasn't arrested on the spot for assaulting an officer, if that is in fact what happened.

Citing potential criminal charges against McKinney, another of her attorneys, Mike Raffauf, said Wednesday his client would not discuss specifics of the case.

McKinney has acknowledged that when she was stopped she was not wearing the lapel pin given to lawmakers. The lawmaker said the identification pin is irrelevant.

"It doesn't have a face or a photo ID on it, and quite frankly it can be duplicated," she said.
McKinney and her attorneys insist that Capitol Police officers should be trained to recognize all 535 members of Congress on sight.

But while Myart has said McKinney was "assaulted" and that her reaction to the officer was appropriate, Gainer argued that McKinney has turned an officer's failure to recognize her into a criminal matter.

Gainer said race was not an issue and that he has seen officers stop and question white, black and Latino members of Congress. He added that officers are given photos of new members of Congress, but with 30,000 employees in the Capitol complex and more than 9 million visitors a year, officers have "to make sure we know who is coming in the building."

Republicans have seized the opportunity to take shots at the legislator. Rep. Tom DeLay, R-Texas, called McKinney a "racist" on Fox News Channel and House Speaker Dennis Hastert, R-Illinois, downplayed the Georgia lawmaker's allegation of racial profiling.

"This is not about personalities. It's not about somebody's ego. It's not about racial profiling," Hastert said. "It's trying to make this place safer and working with the people that try to make it safer."

Also, two Republican members introduced a resolution Tuesday commending the Capitol Police for their "continued courage and professionalism." (Full story)

McKinney, 51, represents Georgia's 4th Congressional District, a majority-black, Democratic district on the east side of metro Atlanta.

First elected in 1992, she was defeated in a 2002 Democratic primary but made a comeback in 2004, winning her old seat after the candidate who had defeated her two years earlier decided to run for the U.S. Senate.