The Law and other Anomalies -

In prior posts, we have established the that there is substantial current dialogue about the role of certain intelligent machines; that these machines generally are viewed as falling into the categories of “drone” or “robot”; that, as society perceives the day when drones and robots will have true “autonomy,” the pressure is mounting to establish a legal system which will address misfortunes occasioned by the actions of these machines.  It is important to stop thinking about robots in human terms and to recognize them on the same footing as we recognize drones; there is no difference between an airplane making its own decision to shoot you and a robot (which looks and sounds just like a human being) making its own decision to shoot you. 

Human Rights

One significant dialogue is driven by a sensitivity to human rights.  Philosophers and the American Civil Liberties Union focus on these issues.  Machines are impinging upon our privacy and perhaps our freedom by tracking us down, spying on us, impairing our freedom both expressly and implicitly by making us know that every moment we are being watched. 

These concerns primarily focus on those kinds of machines we call drones.  It is recognized that most drones currently are not autonomous.  They are not only put forth to function in the world by human beings, but also there is some human control. 

In “drone-speak,” we say that these machines have either “human-in the loop” or “human-on the loop” control.  In the first category, humans not only target the person or situation to which the robot is paying attention, but also give the command to act (whether it is to intercept, injure, kill or spy upon).  In the second category, the robotic machine itself both selects the target and makes the decision to undertake the action, but a human operator can over-ride the robot’s action. 

The rubber hits the road when we are in a “human out of the loop” situation; in this ultimate machine autonomy, robots select targets and undertake actions without any human input.  All the human decisions are in the history of the truly autonomous robotic device; how to build it, what it looks like, what its programming is, what its capacities are, and when and where it is being put out into the world.  Once the door is opened and the “human out of the loop” robotic device starts moving among us, there is no more direct human control. 

The civil liberties critics note that military drones outside of the United States in fact hurt our national security and our moral standing, but also observe a linkage between non-U.S.-deployed drones with military application and impact within the United States. 

The Department of Defense “passes down its old stuff to its little siblings,” which means that DOD gifts military equipment to domestic law enforcement agencies without charge.  A primary recipient is the much-criticized Department of Homeland Security.  Indeed, public records suggest that Department of Homeland Security drones are ready to be equipped with weapons, although the Department claims that currently all their drones are unarmed.  (Source: column by Kade Crockford in the online “The Guardian,” as guest blogger for Glenn Greenwald, March 5, 2013).

The surveillance accompanying the domestic use of drones presents problems under the Fourth Amendment to the Constitution, which holds people secure from unreasonable search or seizure.  Obviously you don’t issue to a drone a warrant to spy upon all of us.  Beyond the Fourth Amendment argument, to the extent there is a right of privacy under United States law, drones negatively impact that privacy.  The public has a right to know what rules our governments are bound by, in the utilization of machines to spy upon us, and ultimately (with autonomous machines) to police us. 

We are tracked by license plates, by cell phones, by iris scans.  (We are told that these are no different from a fingerprint, although a fingerprint or DNA swab is obtained after there has been an alleged criminal act while machine surveillance is by definition “pre-act;” see particularly the Spielberg movie “Minority Report” in which the government arrests people in advance of the crimes they will ultimately be committing). 

Twenty states are considering legislation to limit the use of domestic drones, including Massachusetts.  Certain cities also are taking action.  The focus is privacy and freedom from unreasonable search, on constitutional grounds.  As it is clear that some drones shortly (if they are not already) will be autonomous and will function as machines with “human out of the loop” capacity, the world must evolve towards imposing functional controls on the use of drones. 

Killer Robots

The most comprehensive and cogent articulation of the legal issues presented by autonomous machines is contained in a report by the International Human Rights Clinic, part of the Human Rights program at Harvard Law School.  This November, 2012 “Report” is entitled “Losing Humanity-the Case Against Killer Robots.” 

The central theme of the Report is that military and robotics experts expect that fully autonomous machines could be developed within the next twenty to thirty years.  As the level of  human supervision over these machines decreases, what laws should be enacted to protect people from actions committed by these machines?  Although the focus of the Report is primarily military (not just drones; robotic border guards, for example, are given attention), it is important to remember that a drone is a robot is a machine; the law should develop the same, whether we choose to package the problem machine into something that looks like a small airplane or something that looks like you and me. 

Where does the Report come out?  It concludes that there is no amount of programming, artificial intelligence or any other possible control of a fully autonomous machine that can mimic human thought sufficiently so as to give us the kinds of controls that the “dictates of public conscience” provide to human operators.  All governments should ban the development and production of fully autonomous “weapons;” technology moving toward autonomy of machines should be reviewed at the earliest possible stage to make sure there is no slippage; and roboticists and robotics manufacturers should establish a professional code of conduct consistent with insuring that legal and ethical concerns are met. 

The focus of the Report is primarily military.  I suggest that similar kinds of thinking and constraints have to be applied toward what we commonly call “robots” and particularly toward the human-like robots we will tend to surround ourselves with, because a truly autonomous machine is just that: a machine that can make mistakes un-mediated by human controls. 

International Law re Weapons

There is international law concerning the utilization of all weapons.  Article 36 of Additional Protocol I to the Geneva Conventions places upon a country developing new weaponry an obligation to determine whether its employment, in some or all circumstances, would violate international law.  In commentary, it is noted that autonomous machines by definition take human beings out of the loop and we run the risk of being mastered by the technology we have deployed (remember in the Terminator when Sky-Net became “self-aware”). 

Particularly addressing the proper line of thought, which is to view airplane-like drones and humanized robots the same, the Report states (at 23): “reviews [of nascent technology] should also be sensitive to the fact that some robotic technology, while not inherently harmful, has the potential one day to be weaponized.  As soon as such robots are weaponized, states should initiate their regular, rigorous review process.”

There is much discussion that autonomous robots will be unable to distinguish between civilian population and combatants, and risk harming civilians in violation of the Geneva Convention.  Particular sensitivity to this risk is raised by the so-called Martens Clause, which is actually over a century old and derived from prior international conventions; it charges governments with complying not only with international law but also with “established custom, from the principles of humanity and from the dictates of public conscience.” 

How would a machine comply with the Geneva Convention?  It would have to be programmed to recognize international humanitarian law as subtly articulated in various sources, including the Geneva Conventions and “principles of humanity and. . . . dictates of public conscience.”  It would have to determine whether a particular action is prohibited.  It would then have to determine whether such action, if permissible by law, is also permissible under its operational orders (its mission).  It would have to determine whether, in a military setting, a given action met the standard of “proportionality” of response.  It would need to use an algorithm that combines statistical data with “incoming perceptual information” to evaluate a proposed strike on utilitarian grounds.  A machine could act only if it found that action satisfied all ethical constraints, minimized collateral damage and was necessary from the mission standpoint. 

It is argued that machines might be able to apply these standards better than human beings, because human beings can be carried away by emotion, while machines cannot.  This is balancing.  There is discussion as to whether artificial intelligence can provide sufficient cognitive and judgmental powers to machines to approximate human capacities in this area.  The Report concludes that this is impossible.  The Report concludes that we are much safer having a human being either “in the loop” or “on the loop;” in the words of robotist Noel Sharkey: “humans understand one another in a way that machines cannot.  Cues can be very subtle, and there are an infinite number of circumstances. . . .”  Remember the computer that ran out of control in the movie War Games and almost set off global thermo-nuclear war?  That was a pretty smart and autonomous machine.  Remember the machines that set off thermo-nuclear war in Dr. Strangelove?  How smart can our machines be?  How much risk can we absorb? 

The Report also notes that fully autonomous machines would “be perfect tools of repression for autocrats seeking to seize or regain power.”  Not a friendly thought.  The Report concludes that we should not develop or permit machines which are autonomous weapons. 

Peaceful Robots

The same thinking flops over into those machines we call “robots” which one day will be moving among us, bearing substantially human form and preprogrammed “personalities.”  Let us say a robot programmed to provide medical aid is accidently impeded by a human being and makes the judgment that its mission to provide immediate medical assistance leads to the judgment of eliminating the intervening human being.  Let us assume that a robot (or a drone) sees two children carrying realistic toy guns and running toward a sensitive location, chased by a mother calling out “Harry, Joe, please stop, you know I don’t like seeing you play with guns.”  What if the machine misreads that situation in a way that a human being would not? 

I submit that a legal system must be imposed with respect to all autonomous machines. 

Private Law

Our discussion until now has addressed what I will call public law; what international law and constitutional law ought to do with respect to the control or prohibition of dangerous autonomous machines?  What about private law, or the financial liability that should be ascribed in courts when a machine runs amuck? 

We currently have private tort liability laws.  These laws generally provide that a manufacturer is held strictly liable for any damage by a machine that it produces and that is inherently dangerous.  An injured party need not prove negligence of any sort; one just proves the dangerous machine was manufactured by the company.  Such a legal rule creates a wide variety of problems with autonomous machines. 

First, strict liability doesn’t make much since when we are talking about machines that are wholly autonomous by definition.  Furthermore, no manufacturer would produce any autonomous machine if this were the rule of law. 

Next, who is the manufacturer?  Is it the person who does the nuts and bolts?  Is it the person who does the programming?  Is it the person, the ultimate user, who defines the parameters of functionality (mission) of this combination of nuts, bolts and programs?  Or, is it not logical to hold responsible the last human being, or the employer of the last human being, who turns on the switch that permits an autonomous machine to move out into the world? 

Alternately, if there is a problem with a machine, should we actually look to see if there is a design flaw in the manufacturing or in the programming?  This is different from affixing absolute liability, without such inquiry, on the theory that it is an inherently dangerous device.  How many resources would it take in a sophisticated autonomous device to answer that question? 

What do you do with the machine itself? Destroy it?  Destroy all similar machines?

What do you do about the potential monetary liability of governments?  For example, our federal government is immune from being sued on a tort theory for any accident that is occasioned during the exercise of governmental powers.  Would this rule not automatically take the federal government and all its agencies off the hook if it sends out into the world a machine that kills or creates damage as part of the discharge of its governmental functions? 

Again, the Report concludes that you simply must not develop autonomous weapons, and that you must prohibit governments and manufacturers from doing so.  If that be the rule, I am suggesting that we understand that there is virtually no step between a drone/weapon and a human-appearing robot with capacity to do significant harm. 

Finally, to the extent we do in fact end up with autonomous machines flying over our heads, or standing next to us at the bar and ordering an IPA (even though the beer will drain into a metallic waste disposal stomach), what should we do about the private ordering of the law?  I believe that the United States government should establish an insurance program, funded by manufacturers, programmers, designers, and all utilizers of autonomous and semi-autonomous devices, to provide “no fault coverage” as an efficient method of dealing with the liabilities that all of us in society are willingly creating, as our science moves forward without regard to the antiquity of our thinking both with respect to public law and private law. 

In the politically sensitive comic strip Prickly City a few days ago, a small drone is seen chasing a coyote across a vaguely desert-like terrain.  The coyote complains in effect “I know I don’t have identification papers but I’m a coyote.  I COME from here.”  The drone unthinkingly continues its pursuit.

The March 7 strip finds a conversation about the propriety of such use of drones.  The protagonist objects that there is no due process or rule of law in sending drones after people and demands “protections to make sure you don’t just drone people because you don’t like them.”  The response is that indeed such protections exist: “Drone Court.”

The morning papers of the same date carry news of Senator Rand Paul filibustering Obama’s designee as CIA chief, John Brennan, until the administration commits to never using drones to kill noncombatant Americans. 

Press and television coverage has for many months been saturated with stories of the use of drones in the war against terror, although these drones seem to be of the non-autonomous variety; their deployment and functions seem to be controlled by human beings although at remote locations. 

The current (March, 2013) issue of National Geographic carries a surreal article, replete with creepy pictures of creepy drones in the form of moths and hummingbirds, entitled “The Drones Come Home.”  Noting that Obama signed a law last year that requires the FAA to open US airspace to drones by September 30, 2015, the article traces the discrete but growing use of what are seemingly unarmed but spying drones by certain State, country and federal (CIA) governmental agencies.

The Boston Globe of Sunday, March 3, Section K (“Ideas” is the name of that section), leads with the following headline: “ROBOTS ON TRIAL—As machines get smarter – and sometimes cause harm – we’re going to need a legal system that can handle them.”  In one of the few articles I have seen that appropriately ignores the false distinction between robots and drones, we learn a lot about the ubiquitous nature of the present dialog about machine liability:  Harvard Law has a course on “robot rights” (leave it to Harvard to frame everything in terms of inherent rights), many universities host conferences on robotic issues, numerous books are being written (look for Gariel Hallevy’s upcoming “When Robots Kill,” and the more austerely titled book by philosophy professor Samir Chopra entitled “A Legal Theory for Autonomous Artificial Agents”).

My purpose here is to highlight what I consider to be the underappreciated dialog being conducted about THE central issue here: what system of laws ought to be applied to machines when outside human control.  Some of the popular dialog focuses on “robots” and some on “drones” but such a distinction interferes with a proper analysis: we have machines here that can kill or cause harm accidentally or on purpose.  Do you take the machine to Drone Court, as suggested by Prickly City today, or do you take the manufacturer, or the last human to set the machine on its course, out to the tool shed and tan its corporate or personal hide?

The next post, to follow in the next few days, will detour into what I maintain is the diversion caused by our cultural anthropomorphization of the machines we call “robots” and its possible ramification in the way in which we end up treating autonomous  non-human-controlled airplanes, cars, border guards, household servants and electronic girlfriends—all of which should be treated exactly the same because they are all just alloys, motors and computer chips.

Why US Ambassador to the UN Susan Rice was forced out of consideration for Secretary of State based on her conveying incorrect information given her by the administration about a matter that was trivial and highly politicized.

Why people are shocked that when we drop American citizens into incredibly hostile environments they sometimes get killed or attacked, as in  our embassies and consulates.

Why the United States is negotiating about keeping any troops at all in Afghanistan after 2014; or after say next Tuesday for that matter.

Why banks accept penalties in amounts that begin with the letter "B" unless they are clearly culpable (these numbers do not support the argument that it is cheaper to pay the future costs of a long fight with a present fine than to contest matters, divert resources, etc.).

Why virtually every major bank has been hit in the last year with huge penalties for an upsetting list of infractions, indicating a total moral decay at the highest levels of our business world, although at the same time every banker you meet (or at least I meet) has proven to be ethical and straightforward.

Why the SEC is just waking up to the porous protections inherent in 10b5-1 stock trading plans, which as a matter of simple analysis are subject to abuse by inherent design, allowing executives to alter plans at will although the plans are designed to make stock transactions automatic based on timing or market forces and thus deny the executive the temptation to use inside information in trading shares.

Why, if as rumored business has co-opted all politicians, and if business is demanding resolution of the cliff, the politicians cannot seem to solve the problem and thus deliver the result their owners have demanded.

Why Congress on its own does not solve the cliff, given that virtually every American wants it solved --  unless Congress knows it must increase taxes and cut spending and cynically believes that if those results occur "automatically" then their personal reelection will be eased by the argument that "I didn't vote to increase taxes and cut your benefits, it just happened."

Why the Red Sox are so enamored with spending $13 Million per year per player that they just did it again, committing that approximate sum to buy a 35 year old fifth starter.

Why the Red Sox think it is okay to spend my money that way (today being the day that season ticket payments are due, thus affording the Team free use of my money for about four months before they are obligated to start delivering product to me).

I grew up in a none-too-elegant part of New York City, and when I finally got solvent and moved to a nice suburb, on occasion I would imagine a march of poor people, pouring out of Cambridge and walking up Belmont Hill with pitch forks and clubs, intending to uproot my rose bushes and smash in my front door and demand my standard of living for themselves and their children. 

Recent research suggests that my paranoia was not, well, so paranoid after all. 

The much-reviewed new book “Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else,” advances the proposition that successful states are inclusive, giving everyone access to economic opportunity, while failed states are extractive, with the ruling leaders attempting to extract as much wealth as possible from the rest of society.  Using Medieval and Renaissance Venice as a model, the authors trace the decline of that City as the elites first closed off social mobility and then utilized that closure as an argument for closing off economic mobility. 

Someone then might try for a perceived easy analogy: concentration of wealth in the United States, in the hands of the 1%, may lead to the destruction of the American society which is the original source of that wealth.  Recent studies cited by the author indicate that in America today the escape from social class at birth has become more difficult than elsewhere; we find ourselves on the “Great Gatsby Curve” of the super-elites educating their children disproportionately and training them to continue an extractive approach to society. 

The ultimate proof of course was the bailout: Wall Street was rescued by the elite, in control of the instrumentalities of government, while the poor were left behind; 93% of the income gains from the 2009-2010 recovery flowed to the top 1%.  Tax perks and pork barrel for the rich simply reemphasized the point. 

We next consider an opinion piece in the Sunday October 14^th New York Times, entitled “Which Millionaire Are You Voting For?”  It seems that whether you are a Republican or a Democrat, if you are running for office you are most likely very rich.  In a clever shorthand, the columnist notes that if millionaires were a political party, they would make up 3% of American families but “would have a super-majority in the Senate, a majority in the House, a majority on the Supreme Court and a man in the White House.”  The trend continues down the political pecking order, the author noting the lack of blue collar day job holders even at the City Council level.  You could conclude that this political reality is a symptom of the United States de facto cementing the ruling oligarchy in place, another proof that we are creating an extractive society.

The column suggests that American governance would be improved if we were to elect qualified people whose principal occupations were in the blue collar field.  Failing to do so feeds the concentration of wealth; “social safety net programs are stingier, business regulations are flimsier, tax policies are more regressive, and protection for workers are weaker than they would be if our lawmakers came from the same mix of classes as the people they represent.” 

To the argument that qualified public servants cannot be found in the working class, the columnist asks us whether we really believe that some number of qualified working class people cannot be found among the ninety million blue collar workers in the United States, even assuming that, as a cohort, they are less educated, less politically aware and less politically engaged (and let me throw in that they are simply dumber and lazier while we are at it, because that focuses the point even more).  Given the overall numbers, it is quite probable that there are more qualified blue collar Americans to serve as candidates than there are lawyers possessing electable characteristics.  Indeed if only a half percent of blue collar workers qualified as good candidates, you could fill the Congress and every state legislature more than forty times, and have enough blue collar people left over to “run thousands of City Councils.” 

The literature documenting the American oligarchy is robust and growing.  However, aside from the now-fizzled Occupy movement, little political impact has been felt by reason of this recognition.  Those who consider Obama’s politics to fall on the far left might require a reset of their metrics.  My European friends point out that American politics reflect a very narrow band of political and social thought, and that indeed the American political game “is played between the forty yard lines” rather than across the entire possible field of thinking. 

You don’t have to agree that this American fundamental commonality in political approach is bad, or that it is good, to acknowledge that it exists.  In this sense, the ardor with which the current campaign is being fought is somewhat surprising; from the standpoint of economics at least, the election of the next American President is very unlikely to constitute a game changer. 

Are we becoming an extractive society destined to fail, enforcing the closing of economic opportunity through a closed political oligarchy?  Are we doomed to shrink like Venice?  Should we be shopping for a gondola, rather than a Lexus?  Stay tuned. 

On June 21 I posted a blog entitled "Facebook: Grow Up and Smell the Carnage."  For the curious, it is archived under the "I've Been Thinking" category on this site.  The $38 stock on that date was trading at about $25.  Today as I write, the bid is bouncing between $19.50 and $19.75.  I would have been content never to visit the subject again, regardless of the vagaries of price, except that the details of the offering keep unpeeling like a slightly moldy onion; the odor is irresistible.

For example, visitors to Yahoo Finance can find a Bloomberg article that examines the correspondence between the SEC and Facebook's lawfirm prior to the IPO.  I hasten to add that the lawfirm is a respected one, the process of resisting points in SEC comment letters is standard, and the underwriters of course were the cream of the American corporate finance brotherhood, Morgan Stanley in the lead.  And those of us who have dealt with the SEC on disclosure issues know that they can be remarkably out of tune; if you say that water is wet, you can get a comment asking you to explain about steam and ice.

But lots of stuff that the SEC raised as possible risks were either resisted successfully or included reluctantly in the IPO filings, and some of these items are plaguing the analysis of the stock to this day:  dependence on the game site Zynga for a large portion of revenue, difficulty in actually counting the Facebook players (recently Zuckerberg claimed they topped one billion), problems in converting players on mobile devices into revenue sources, falling cash flow per member.

You could still look at all this and say "tsk, tsk, I told you so," just another bubble stock trading at too high a multiple, except for some of the details.

We had heard previously that analysts contacted institutional buyers just prior to the IPO going effective to warn of reduced projections, which may be one reason why so many institutions held back.  The fact that this action is facially legal, while it tilts the playing field against the retail investor, is however troublesome.  (Interestingly, it seems that retail accounted for 25% of the allocation, higher than the average IPO retail allocation of 15%, itself an interesting factoid about how the financial markets operate and how little leverage the retail buyer has.)

Another interesting fact: there is criticism from the professional investment community that Facebook management is amateurish in not addressing the investment community in defense of its business plan and its stock price.  It is a fact that management typically goes around educating the public as to the merits of its company, but the undertone that the stock underperforms because it is not being hyped is curious for an item selling for 40 times earnings. 

We also learn that the stock was priced at the top of the estimated IPO range (which had been increased by the bankers notwithstanding the issues that prompted the warning calls to institutions) because the bankers did not want to suggest that there was lack of demand; seemingly the pricing had little to do with the updated estimate of what the paper was worth.

I do not want to get ahead of reality here.  Having written IPOs, I can attest to the difficulty of prediction, the subtlety of disclosure, and the stated premise of our markets which is: do the best you can to disclose, and the investor who hopes for the reward takes the risk.  There are over 40 lawsuits  relating to the IPO, and I do suspect that the plaintiffs will lose the vast majority of them one way or another.  As I said in my first post on Facebook, if you invest in emerging companies you are in a high-risk game.

And retail investors really should be discouraged to play it.  Per Bloomberg, one first-time investor in California bought 100 shares and thus has lost about half her money; is this type of deal suitable for a first-time investor regardless of disclosure levels?  Another investor complained that the stock was supposed to go up more before it fell, the subtext being he was cheated out of his plan to dump the stock on the irrational up-tick before the price fell to earth.  Such trading speculation is a permitted and honored element in our securities markets, but the expectation of an ability to cash out one's coveted IPO allocation in a quick cynical dump is not something on which to build financial strategy for a retail player.

There is much literature about the retreat of retail investors from the markets.  This kind of story adds to that result.  It is perhaps not a bad development, but it is a change in the meme we hold as to the democracy of the American stock market system.   If retail investors either should not invest directly, or do not invest directly as a matter of fact, then should the SEC regulatory scheme be rewritten to make disclosure suitable for institutional buyers, thus saving time and money and perhaps actually encouraging more meaningful disclosure -- the kind the institutions seemed to get about Facebook in those telephone calls just prior to the IPO while the retail investors' telephones failed to ring?

There is an old joke that if you have two Jews you will have three opinions.  Former US Congressman and New York Mayor Ed Koch this weekend added, “And also four different temples.”  This joke is not a joke but an indication of the fragmentation of what can no longer seriously be categorized as “Jewish political thought” when that category has been totally deconstructed.

This past weekend I chaired a conference in New York City on the Jewish Vote, the Holocaust and Israel.  Speakers included Mayor Koch, present Republican Congressman Bob Turner, famous talking heads Tevi Troy and Hank Sheinkopf and several academics and authors, all under the auspices of the Wyman Institute for Holocaust Studies.  The conference was excellent in substance, tracing Jewish voting trends from Hoover to the present from both academic and political perspectives.

As interesting were the reactions of attendees.  Much of the audience was older, conservative, angry with Obama, seeing the election in terms of support of Israel.  Younger attendees were almost bemused by what they considered to be a narrow view of the world and of the election, saying “this is not how the younger Jewish community views these issues,” suggesting that a focus on the Holocaust as informing current voting is old fashioned in style and irrelevant on the ground.

And after spending a whole day at the conference, locked in Fordham Law School, attendees stepped out into the bright Manhattan sunshine and confronted a demonstration by a couple of dozen Hasidic Jews, dressed in dark coats and with untrimmed hair, holding signs objecting to the conference itself as purporting to address the US elections from the standpoint of the Jewish community; these observant Jews thought that any involvement in politics as a group was wrong-minded (signs admonishing us not to address political issues “in my name”).

Whether there is a Jewish vote (which implies some sort of bloc) or just a set of statistics reflecting historical voting patterns in Jewish neighborhoods is much a matter of semantics.  How Jews voted historically (typically Democratic from at least the ‘20s onward, almost without regard to attractive Republican positions) or were likely to vote this year (among the aged attendees of the conference, I don’t think Obama could get elected dog-catcher) was explored but without likelihood that the conference would change anyone’s mind.

The more interesting issue is, what if anything can be said about Jewish political views with any confidence that one is speaking for more than a fragment of the alleged cohort.  There are numerous groups speaking (they say) for "the Jews."  I conclude that we too, this weekend, even as a scholarly and open forum, were viewed as just another one of many fragments.  Is there merit in attempting to bond these fragments, or at least some of them?  Is there any prospect for doing so?

Important here is the gap in defining what is important for the Wyman Institute, or for many of the groups focused on the Holocaust.  A younger view wants relevance to the problems of today: current issues, current genocides not only focused on Jewish victims, issues currently presented to us by the world.  An older view says that yes, we can hear that, but there is another thread here, that Jews must be alert to their personal and special risks as historical punching bags over centuries and across continents. 

It seems to me the older view has a fear in delivering overtly the message that Jews should beware of the world even today, even as assimilated peoples in settings where the illogic of societal prejudice actually running wild seems paranoid.  The older view is two fold I think: first, it is not paranoid when “they” are in fact talking about you; second, how many times do we have to replay the same conversation before it sinks in that today's logical person is well advised to keep a weather eye peeled towards the almost inconceivably irrational beast?

I see a generational disconnect that must be overcome.  I see older elements of the Jewish community hesitant effectively to express the old fears, almost dismissing younger elements as so ill-educated as to be beyond reach.  I see younger elements appropriate offended that their eldest living forbears would so dismiss them after nurturing them and educating them and setting them loose to compete (and succeed) in the world at large.

There is both wisdom and lack of patience on both sides of the divide.  And there are so many ancillary divides, including but not limited to the guys across the street who invoke the Bible to criticize even holding the discussion. 

It is not odd that voting, viewed by historians of democracy as the ultimate expression of political freedom, should highlight the schisms within our polity, and within its constituent elements.  But whoever wins the election this November, there is work to be done to bring together some of the older strands of Jewish political thinking with the J-Street crowd.

Now that we are finished with both rather conventional and predictable Conventions, the "race" for the Presidency begins in earnest.  The seeming fragmentation of the body politic into discrete and intensely focused "voting blocs" which are fought over between the parties is an example of the growing polarization of American thought.

In this context, the upcoming September 23 conference in New York City entitled "The Jewish Vote, the Holocaust and Israel" takes on enlarged relevance. The allegiance of this constituency (which historically has both voted and contributed at high levels) is important in some of the swing states which may determine the electoral outcome.

There is a lot of history that impacts how Jews are likely to vote.  Notwithstanding the significant contributions to World Jewry by Herbert Hoover and other Republicans, the affinity of Jewish voters for the Democratic Party is deep and long-lasting, rooted in theoretical commonality, the labor movement and the power of inherited fundamental beliefs.  It survived Roosevelt's failures to address the Holocaust, and numerous subsequent strong endorsements of Israeli positions by Republican politicians, platforms, and constituent blocs attracted to Israeli claims through religious belief.

Will Jews continue to support Obama, who has been deeply criticized by more conservative Jewish elements?   Will the new omission in the Democratic platform of the reference to Jerusalem as the "capital" of Israel weigh into the debate in any lasting way?  What can we learn from the history of Jewish voting in the United States, and its deep-seated historical patterns, that may inform our understanding of November, 2012?  What should each party be doing to court this voting (and financial) bloc?

The one-day conference on Sunday, September 23 at Fordham Law School, sponsored by The Wyman Institute for Holocaust Studies, will explore these issues through the eyes of academics, Congressman Bob Turner (R-NY), former New York Mayor Ed Koch, and Dr. Tevi Troy (whose background includes advisor to the White House, and CNN and Fox News analyst).  If interested in attending or learning more, go to www.WymanInstitue.org.  (Disclosure: the Institute is a pro bono client of DuaneMorris LLP and I am chairing the conference.)

Today's Public Radio commentary was all about what candidates should do to appeal to various disparate  blocs.  Is that a relevant question, or are we destined by and large to vote as our parents and we ourselves have always voted, slaves to our own personal histories (and thus doomed to not learn from prior experience, but merely to repeat it)?

There may be a death-knell coming for Twinkies and I know this is true because this week’s Fortune magazine tells me that the corporate parent may not emerge from bankruptcy.  The article explores the allegedly intransigent positions of the private equity owners, the secured lenders and the labor unions.  The broader ramifications have escaped Fortune, of course.  Fortune is the People Magazine of business, and its reportage is about as deep as Cape Cod Bay at dead low tide.

The first ramification is social.  We are talking about an American institution here.  People have dropped Twinkies from office towers and made movies about them.  Lawyers have built insanity defenses around their sugar content.  Generations of New Yorkers, and business travelers in New York making the taxi trek to LaGuardia Airport, have looked at, around and past the Wonderbread sign dominating the Jamaica, Queens skyline and marking the hallowed ground where the Twinkies were, er, manufactured.  Blog posters are uniformly claiming to be crushed, as if the Twinkie were an FDA-approved universal cure-all being lost to mankind through some colossal business error.

The broader ramification is anti-American and surely anti-Fortune.  It is the fact that, when you look at the Hostess Company, now in its second bankruptcy in fewer years than one hand has fingers, you see the raw Darwinian logic of our economic system.  It is hard to believe that good business or social planning would include the Hostess scenario as a success story.

The culprit is capitalism.

I am not against capitalism.  I am not smart enough to be against capitalism.  I am sure there are numerous analyses proving it the best system net on a utilitarian basis, far superior to other forms of social organization (many of which I cannot, no doubt, even name).  My point is so much simpler: the failure of this company appears to be a disaster for absolutely everyone involved and it was accomplished in about four years by people we consider to be smart, and we are about to brush it off and forget about it.

When one openly says that our economic  system unexplainably produces failures,  the typical  reactions to such a statement  are these: clucks of condescension from business folk who look at such remarks as so painfully naïve as to be below reply; reports to government agencies that subversives are in our midst; well-trained functionaries in the capitalist system who are well enough off, and poorly enough educated, think that this must be Valhalla.  Classify me what you will for saying that the emperor has bad clothes and for not knowing the address of another tailor who can cut a better fit to human need, but as Hostess joins an almost unmeasurable parade of failures that bring economic tragedy one has a choice: to casually observe that such is the nature of free enterprise; OR to say that there is a problem if this is the best we can do.

And why write this blog post when it fails to advance our thinking on anything?  It at least advances our understanding of what we do not understand.

Well, you know how it goes.   That’s how the Twinkie crumbles….

American columnist and humorist Art Buchwald wrote the best stuff I ever read in a newspaper.  His column ran in some New York paper (the Post?) when I was a teenager and I loved its often staccato style: a series of quick thoughts, or bullets, about things anomalous.  Its tone and point of view --  serious stuff mediated by sardonic perspective -- I like to think informs the approach of my blogs.

Although I cannot find a specific reference on the internet, I believe some of his columns were captioned "I've Been Thinking."  I have made this phrase one of the categories into which my posts are sorted, and have selected the phrase as the title of this particular post. 

Seems that Buchwald won a Pulitzer Prize for doing all of this.  No risk of that happening here, but the below gets a whole bunch of confusion and a modicum of anger out of my system as I drift into the Fourth of July, so the exercise works for me.  You may not be so lucky.

I've been thinking:

*The reason that 57% of US mothers without college degrees are unwed and 94% of US mothers with at least a college degree are in fact married [reference: Harvard alumni magazine] has to do with people opting for choices that give them otherwise unavailable self-esteem.

*That is also the reason poor people buy clothes with conspicuous labels, fancy cell phones and sneakers that cost $100.

*I do not understand why Romney has chosen to make the policy underlying the Health Care Act his key issue as it is his very own policy, and the policy aspect does not change depending on whether it is articulated in a State or Federal program.

*Why do Republicans announce that Health Care is the largest tax hike in American history when it does not even come close, and when we had larger ones as recently as in 1993 and before that even a larger one under Reagan?

*Stock market prices rise and fall wildly these days, depending on each slight perturbation in the European situation, as if clearly minor and temporary developments reflect a final state of affairs; but if some recent negative developments in fact were final, the stocks should not drop two percent but fifty percent.

*Lots of so-called venture capitalists are not willing to venture their capital.

*Small businesses are engines of job growth because they are filled with entrepreneurs and employees fired by large businesses.

*Occupy Wall Street has entered into our national awareness through a slick CD recording of really bad folk-style songs excoriating the one percent, while the Tea Party seems to maintain real influence but lacks its own music CD.

*Boston public transportation was always broke because of lack of riders and, now that ridership has spiked upwards, it is even more broke, suggesting that management is off-track, or worse.

*Gary Loveman thinks he has a lock on a casino at Suffolk Downs, which does not look like a resort destination to me.

*The city of Boston replanted the entire Occupy Boston site, below my office window, with lots of barriers and some pretty big trees, but I think you could still fit a bunch of tents in there if you were so inclined.

*The Supreme Court Health Care decision is a victory for capitalism.  Beforehand, our system was pure socialism: you were sick, you went to the hospital or clinic, you had to be treated, you had neither money nor insurance, the cost went into the tax base, and middle class and rich people paid all the expenses for you through their taxes.  Marx would have been proud.

*If the US or NATO does not take out the Iranian nuclear program and Israel does it, what happens next?

*In that event, will it matter who wins the election in the US?

*The US is a fundamentally religious society with religious references in our currency, patriotic music and loyalty pledge, and an instinct to refrain from any criticism of any statement couched in terms of religious exercise -- in that limited regard, sort of reminds you of some Islamic societies.

*If you applied the statistics of major American politicians and presidents who have had sexual affairs to the population at large, we would be a grossly amoral society.  Makes you wonder if we are.

*If electronic or computer-printed postage becomes the norm as the volume of hard copy mail continues to plunge, will collections of rare stamps become more valuable or worthless?

*Does the rise of the internet doom American politics, as people drown in partisan and unreviewed content while losing the ability to study lengthy materials or debate openly and intelligently?

*If we follow the admonition to direct education to developing specific job skills, are we so ignoring the study of government and the social contract as to create the kind of apolitical electorate that will accept dictatorship as the price of order?

*How many Americans believe that it is improper to pass laws defining civil rights, as those rights are inherent even if not embraced by a large majority of voters?

*When is the year that we will have a gay President?

*Instead of legislating in favor of gay marriage, why don't we pass a law making everyone a party to a civil union for purposes of government policy, and people can privately call themselves married if that is a meaningful personal or religious designation?

*If, as his defense lawyer suggested, Whitey Bulger had immunity from the FBI, why did he bother to hide for 16 years?

I am off for one day of doing nothing.  Last reader out, please close the door behind you....

Criminal law addresses several issues with assumed results.  It addresses the need for fairness and closure by punishing disfavored behavior.  It addresses the need for moral retribution in the same fashion.   It is supported by lawyers and lawmakers as having prophylactic effect, preventing crimes from happening because people are fearful of punishment; this utilitarian argument is most favored by legal folks who are thinking about law, as opposed to abstract fairness, moral values or satiating a lust for revenge.  

Unfortunately it seems that laws may not prevent people from doing evil after all.  I do not know where that leaves us because intuitively it just feels wrong to say, hey criminal laws do not have impact so let people do what they want, we can save lots of money on the court system and on cops and jails. 

I thus eagerly await June 5, when Harper-Collins publishes "The (Honest) Truth About Dishonesty: How we Lie to Everyone--Especially Ourselves."

One can quarrel with the book's pop-culture title and its grammar, but the author is a credentialed behavioral economist (they write the very best books, don't they  --all those statistics that just disprove  everything we ever thought) who says that probability of getting caught has "no effect" on the occurrence of dishonest behavior. If that be true, then criminal laws therefore will exist only for much-maligned reasons: enforcement of subjective or moral values, or revenge.

We have long recognized that certain crimes of passion are not prevented by criminal law: the domestic dispute, the Jihadist, the withholding of tax dollars that go to support the military, .  No one seriously contends that these folks are impacted by the thought of jail time.

Bernie Madoff clones are particularly hard to think about in these terms.

But it seems there is a lot of experimental support for the proposition that dishonesty is controlled by things like "honor pledges," placing signatures at certain positions on documents, moral reminders, and simple supervision.  And interestingly, there is indication that increased amounts to be stolen may, for the vast majority of people other than hard core crooks, actually decrease dishonesty; apparently you can rationalize stealing a dollar while considering yourself a fundamentally good person, but somewhere up the line most people don't feel comfortable taking a really large sum.

Now, whether the experimental techniques used by the researchers (asking college students questions that afford them the chance to cheat, lie and steal if they so choose) have analogy to harsher and more raw factual situations, and whether the lack of criminal laws will turn loose the very small percentage of truly evil people in the world against whom we need protection, is likely to prove a philosophical question (at least until some economist begins to think about it).  But the idea (which by the way I have extrapolated, it seemingly is not the thesis of the book itself) that much of our criminal system is a waste of time is pretty startling, and worthy of a closer look when the no-doubt overpriced hard cover edition hits the streets. 

I pause to express confusion about one aspect of this implied result.  There are indeed physically dangerous people in jail.  Pathological killers, sex offender recidivists, etc.  Perhaps since by definition the criminalization of their offenses is just the rubric for locking them up, we need another category of confinement,  which will capture these folks for us; and perhaps that new nomenclature will foster new thinking about treatment of these people, if they cannot be dismissed as "criminals."  I am discomforted mightily by spending a lot of societal capital, in time and money, to address this aspect of the issue, but perhaps doing so is the measure of an increasingly humane approach to incarceration.

It sure does get complicated and I am sure I am leaving a trail of half-thoughts and logical lapses in my wake here.

Perhaps I can ask the publisher to comp me under the guise of my posting a blog about the book.  Now that I know that getting caught isn't going to hold me back, there is nothing standing between me and a free Kindle download.  Don't you just love economic analysis?

It is always dangerous to write something that could function as a putative "history" at a point in time close to the events being discussed.  One lacks the perspective of time, and the information that future events provides to illuminate those events.  The modern penchant for immediate analysis is good dialog but not necessarily conclusive analysis.

So it is with trepidation that I return to the Occupy movement and speculate on its importance.  Not only is the movement of recent memory, but also it is an ongoing event; NPR reported this morning that Occupy is setting up an igloo encampment even now at Davos, in advance of the worldwide economic conference annually held there.  

 But I am almost compelled to do so if only because, in glancing out my window just now at the snow-coated grass plot that until recently was the Occupy Boston site, I see traced in the snow-cover, in block letters that must be 30 feet high, the word "LOVE" facing away from me, but directly at the Federal Reserve Bank.  (I wonder if the City will come to erase the message before the polity is further polluted by such things.)

At the end of Occupy Boston I made bold to suggest that the residue of Occupy would, at a minimum, be a palpable contribution to the national dialog on who we are and what we ought to do about it.  I think I was correct.  Those who know me also know that I am not beneath an occasional "I told you so," particularly since my being correct is such a random, rare event.

Last week's Sunday New York Times  ran a detailed article about locating the 1% and understanding what it took to find those people within our borders.  The stunning (to me) graphic was a map of the United States made up of City names, and under each City the amount of earnings per year it took to be within the highest 1% of annual income. 

The range was remarkable; over $900,000 on Connecticut's Gold Coast, below $200,000 in some forelorn Cities (if I recall correctly, Jamestown New York and Flint Michigan).  The high numbers were concentrated along our coasts (save Chicago).  A rich man in Mississippi cannot ante in a poker game in Darien.  While we cannot necessarily equate annual earnings to true wealth, the map gives us a clue that the country is not at all a unity, but rather a conglomeration of diverse localities that have fared very differently in the face of economic developments.  There are numerous economies alive in the United States, perhaps something not surprising to affectionados of the House Hunter series on television (I am addicted, and I watch almost no other television; I love to see houses much nicer than mine being sold in Keokuk, Iowa for less money than it takes to maintain my lawn for a year in Newton.)

And this past weekend's Wall Street Journal (Review section) again discussed America in Occupy terms.  Author Charles Murray, writing a feature article extracted from his upcoming book on wealth disparity in our country, tracks fifty year trends in our collective perceptions of who we are as a country in a piece entitled "The New American Divide."  Expressly noting Occupy, and beginning his article with the words "America is coming apart," Murray chronicles the division among Americans that is partially financial and partially social.  He notes that we have not only differences in wealth, but also cultural differences in what we eat, how we get educated, whether we marry or pray, whether we have children of unmarried women, whether we are working or idle, all based on fundamental differences between our world views.

I look forward to the January 31 publication date of the book, entitled "Coming Apart: The State of White America, 1960-2010," which analyzes, prototypically, the upper middle class town of Belmont, MA and the depressed Fishtown neighborhood of Philadelphia, PA.

Differences in economics over time drive differences in culture in a way never before experienced here.  Occupy gave voice to these differences.  In a way, Murray's analysis answers the question raised by many as to what the message of Occupy really was, or the criticism that the message was so garbled as to be meaningless.  Occupy reflected the wide panoply of differences on many issues that reflect the division of America along deep cultural lines.  Money is a leading cause and indicator of that division, but all the ancillary complaints and causes espoused at Occupy really were of a single cloth:  different aspects of the two countries we have become.

Murray's suggestion to bridge this gap is for the "new upper class" to engage themselves and their families in breaking down the cultural isolation.  I am not quite sure what he has in mind, and must await the book to learn more, but it doesn't sound so different from applying the big block letters in the snow visible outside my window, left anonymously by some prophet of   cultural detente.

My father lived to almost 101; as for birthdays, he started counting at 39.  So for me today, November 10, I am by my dad's count 39 years old for the 31st time.  It of course feels no different from yesterday, and we cannot presume to compare it to tomorrow.

When I was 64 I declared an end to birthday celebrations; 65 sounded old, and I wanted no part of it.  Nor did the idea match my disposition or ambitions.  I was given a rousing 64th party; a cover band sang the Beatle's song asking "will you still love me when I'm 64,"  people dressed up as various Beatles or their lyrics, people came from long distances, and that is my last party.  All is good.

My assistant today gave me, for my birthday, a cup of Dunkin Donuts coffee, cream no sugar, and I know she wishes me well because it is a medium, not just a small.  My birthday dinner last night consisted solely of four scoops of ice cream topped with dark hot fudge; if arteries have not killed me yet, one more mega-sundae ain't gonna do it.

I detest people who pontificate on birthdays about what they have learned, or about the secret of life.  I am happy to awake on the right side of the grass each morning.  When that doesn't happen, I will try to send word, but we all should be prepared for the possibility that that blog post will not get published.  So save this blog post, just in case.... 

Today I write about the breakdown of the American social compact. 

The Congress cannot engage in dialog on important issues.  We do not speak to each other, we do not listen.  Republicans stonewall.  The President campaigns rather than inspires a dialog.

A candidate for school committee in Newton campaigns on the platform of building a bridge between the schools and the 80% without children in the schools.  This in a city noted for its educational system, and where once all taxpayers understood investment in the future of the children.

Commentators on the Occupy movement criticize the participants because they do not have a program, as if having a solution to incredibly complex problems is easy to articulate in a 140 character sound bite digestible by our slogan-ized polity.  Is not the message clear, that many of our fellow citizens feel grossly disenfranchised and mistreated in our society in a variety of ways?  Even suburban populations are forming support groups for the Boston "Occupy" movement.

Is it not clear that movements such as this always attract marginal issues, but that we must strip out the clutter and understand the fundamentals, rather than marginalizing the fundamental content?

The Boston Globe reports a heightened concentration of US wealth over the last three decades, and the Globe may be the last publication on earth to discover this reality.  This factual driver of "Occupy" seems to be missed by some of "the one percent," and the "movement" seems unable to communicate the core issue to many who clearly are not hearing it.

What do non-Americans think of our political state?   The other day in our offices, which overlook Dewey Square and Boston's tent city, a dozen Russian entrepreneurs attended a business conference to discuss their companies.  One or two commented on the protesters, but most were politely silent. The business of business is business, not politics. 

This convenient dichotomy is perhaps learned in countries where growing economic opportunity must co-exist without political freedom;  but is this a dichotomy (business as divorced from public debate of politics) that Americans living under our Constitution should embrace?  Aside from a mixture of embarrassment and distaste, what should the 1%-ers, looking down on the tents, be thinking?  How many go down to the streets and talk with the people?  Not many, to my experience. 

Why is it repellent when people exercise the rights they have under our Constitution?  Seems as if many folks in the office towers love the geographic or non-specific idea of America, but not the actual exercise of American rights which are part of our social compact: free speech, free assembly, economic opportunity in fact, and open communication leading to jointly reached and mediated solutions.

For those people who think that John Locke is a bolt for your toilet door, I suggest an elevator down to the street and a modest exercise in the way in which American society ought to operate: talk with, not over your fellow citizens. THAT is the social compact we once thought we had, and the one we need to redeem.

Yesterday, one of my partners forwarded to me an on-line article complaining that the Occupy people smell bad.  This is what purports to pass for political analysis today.  I'll bet George Washington's armpits stank at Valley Forge; let's give the country back to the British, seemingly smelly people don't deserve our attention.  Although I would bet my bankbook that the author of the smell test never visited the tents and, well, sniffed around.

And, returning to the young Russian entrepreneurs for a moment, as one of them said: "The people downstairs just want to be treated as people."  If a twenty-something Russian engineer with marginal English and no tradition of free politics can understand what "Occupy" is all about, why do so many Americans have a problem doing so?  Maybe we have stopped listening....

Normally it is better to attend any event in person, rather than suffering the misimpressions, disconnection (and commercials) dictated by television. I remember for example how much the people who saw on television my favorite fight, Sugar Ray Leonard beating up Marvelous Marvin Hagler under the Vegas stars in 1987, missed about that evening: the buzz, the distractions, the intensity, the globs of sweat from the ring reaching to the third row of patrons, and the truly superior talent of Leonard; TV viewers thought the fight was a close one, which it was not.

 But on this past Saturday night, if you were foolish or bored enough to shell out $69.95, you learned that sometimes what happens on television focuses an event, even shapes it.  If you payed your money, you were connected by Pay Per View to Las Vegas,Nevada to witness the hyped boxing match between Flloyd "Money"  Mayweather (an undefeated super-welterweight of undeniable skills) and a guy named Victor (Vicious) Ortiz, yet another tough Mexican kid fighter of the type that fills boxing venues from Staples Center to Madison Square with Hispanic fans who have transferred their personal dreams of glory onto the shoulders of a countryman.

 And so you find yourself in Las Vegas, a city so cheesy that it has become, gladly, the mecca of US boxing.  After suffering through three truly boring preliminary bouts, with all six boxers of Mexican descent  (what happened to those nights when places like the Eastern Parkway Arena were filled with Jewish, black, Irish clubfighters who dominated the sport during various eras, is it true that our poor lower classes that fuel boxing are now almost fully occupied by Mexican kids?), we are introduced to the main combatants, a 34 year old Mayweather who carefully selects opponents he is certain to defeat and a 22 year old smiling orphan who, the announcer reminds us,  grew up on some streets somewhere and has fought his way to respectability (or at least to the side of the incredibly stunning young woman who walks nearly into the ring with him).

 The fight doesn't matter until the end, which comes quickly in the fourth round.  Ortiz head-butts Mayweather (who bleeds slightly from his teeth on cue), the referee temporarily halts the fight to announce he has deducted a scoring point from Ortiz as a penalty, and as the fighters re-engage at center ring and the polite Ortiz leans forward to express apologies, Mr. Mayweather sucker-punches him with a left and a right and the kid is down for the count.

What is really great, however, is the post-fight interview with the winner.  The TV commentator, a venerable old dude with wavy white hair, sticks his mike into Mayweather's face and asks, in essence, how it feels to win a fight against a kid with a sucker punch while the kid is trying to apologize.  Mayweather starts by thanking God for His grace in allowing him to win the fight (and presumably to get a chance to sucker punch a kid), and then says that he was head-butted and then threw a left and a right and knocked his man out.  Yes, the commentator pursues, but what happened at the end when you sucker punched him?  Well, explains a patient Mayweather, I threw first a left and then a right and the kid fell down and didn't get up which means I win!  Trying one last time, the commentator asks if it were not true that said kid was trying to apolgize and that when the first blow landed did the kid not turn to the referee for an explanation of whether the official time out had expired?  "You never give me a fair break.  Never!" shouts Mayweather, losing his calm exterior and (likely) driven to say it by the very same deity who granted him his sucker punch; Mayweather puts his face right into that of the commentator and screams, "Never a fair break.  You're shit!"  Nonplussed (I guess being a commentator for boxing matches inures you to a great degree), the commentator replies, " I wish I were 50 years younger, I'd kick your ass." 

 You don't get that kind of drama  watching the fight while sitting live in your seat at the MGM Grand.  No siree.

 But let us turn to the defeated challenger, sitting on his stool in his corner of the ring, a magnanimous concussion-induced grin across his open and unmarked face.  The mike enters the frame and the commentator's voice is heard to inquire as to how if feels to have your clock cleaned by a sucker punch.  But the kid is from central casting, he knows the mantra, he knows the game he is in, and he wants his rematch, that's for sure.  "You know," he observes sagely as if invoking a philosophical truth handed down to us by the Greeks, "ya gotta protect yourself at all times...."

 That's TV! Those are the money shots.  I go to sleep pleased with how I have spent my $69.95.

Our economy is deeply distressed and won’t get better soon because our problems are systemic and will not respond to any of the policies recommended by either party.

The trigger for this blog is last Thursday night’s  debate of  Republican candidates, who seemed secure in the truth that untaxed businesses and their untaxed executives create jobs and wealth.  This is not unconvincing in two senses: it reflects the myth of  American experience, and it reflects the logic that when the economy is suffering from lack of liquidity you do not take money out of the system by taxation.

It seems, however, that on analysis of  facts, the problem is more complex and, regrettably, more fundamental.  (I do not fault the Republicans; the Democrats too seem to ignore the controlling facts I cite below.  I am not taking sides here as I find both parties are not so much wrong as they are discussing the wrong things.)

Fact: the gross national debt as a percentage of our gross domestic product has increased in thirty years from about 30% to almost 100%.  (source: OMB 6-30-11) (The only President who reduced it was Clinton, and likely for reasons of happenstance; but my inquiry is not concerned with who did it, but rather with what it is.)

Fact: The economic gains from our accelerating productivity have flowed to corporations and the rich and not to the workers.  (source: Conference Board, US Census, Bureau of  Labor Statistics)

Fact: Real average hour wage from 1970 to today has declined, notwithstanding improved productivity. (source: OECD Main Economic Indicators, IMF International Financial Statistics)

Fact: From 1985 to now, employment as a percentage of our work-aged population has fallen from 77% to about 74%, and from a couple of intervening peaks of over 80%.

Fact: from 1950 to the end of 2009, the share of total income earned in the US by the top 1% of earners has increased from about 11% (which in 1950 was within three points of the same statistic for Japan, France and Sweden) to about 18% (which is 2-3 times the percentage in those three countries).  (source: World Top Incomes Database).  Put another way, the disparity in earnings between the richest and poorest earners in the US has increased by over 50% and is disproportionate also on a world-wide basis.

What do these facts suggest?  

          *As observed by Jeremy Grantham in his GMO quarterly newsletter (August 2011), for 30 years before 2000, consumers compensated for flat hourly wages by working harder and longer  and workers constituted  a higher percentage of the total labor-eligible force; but in the last decade the hours worked have flattened (hitting a natural maximum perhaps?), the percentage of eligible workers actually employed has fallen, and so sustained middle class spending in that decade was supported not by earnings but by borrowing and the perceived “income” from rising housing values. 

          *Putting aside the risk of social unrest over time that comes from great economic disparities, since workers cannot work harder and since they are earning less and since they cannot borrow, there is no way they can purchase goods.

          *But two thirds of GDP in the US has been domestic consumption.

          *US companies, notwithstanding Romney’s assertion that corporations are people, are gaining profit by cost savings, including driving down wages; but  that kind of cost savings cannot be sustained as we are running out of runway on cost-cutting, and greater squeeze on labor is likely to be counter-productive when viewed from a consumer consumption vantage point.

          * How do you get more money into the economy without printing it?  You increase labor costs (as many countries including China are), driving a revitalization of the middle class as originally fostered in the United States by Henry Ford (see the blog Naked Capitalism by Yves Smith, as of last February the fourth most visited business blog, and by no means a bastion of liberal knee-jerk rhetoric).

          *You lower the actual income of, and increase the taxes on, business and the upper reaches of  US earners (again, see Grantham’s GMO quarterly for August 2011).  We could for example engineer ourselves down  to the level of income disparity obtaining in the Eisenhower years, half the disparity of today during a period of  sustained economic growth in the ‘50s (carried into the ‘60s).

          *When you take cash out of  the system by taxation,  does it in fact reduce job creation?  Corporations are sitting on vast cash reserves.  The very wealthy the same.  But we do not now have job growth today, we have increasing profits based on cost squeezes.  How do you re-circulate those funds?  They are not trickling down.  The statistics tell us that fact.  If one were to have government undertake major projects that would create liquidity in the middle class, with funds obtained from a rationalized tax structure (see George McGovern’s open letter to Obama in the August issue of Harpers), the economy would unfreeze significantly.

          Parenthetically, Warren Buffett’s suggestion, reported today, that it is appropriate and necessary to increase taxes on the wealthy is not the whole answer.  That alone does not create enough economic activity even if pumped back into the economy through government programs, whether works or entitlements.  To fund the middle class buying machine requires altering the relative  pre-tax incomes of corporations/high earners compared to middle class earners.  You need not only to tax the top, you need to raise up the middle.

          Think about the trickle down approach.   Pass over the statistics we have been discussing  until now that suggest that there isn’t any trickle.  Let’s look at WalMart, a company that drives down labor costs.  This reduces the pay of its employees and reduces the cost of the goods WalMart sells.  The system should and likely does allow the families to pay less for WalMart goods.  But where does the pay of the WalMart family (and other squeezed families) get applied?  To underwater mortgages which are not cheaper.  For gasoline and food that are priced based on a different economic model.  For  products generally not purchased at  WalMart (or from many of the other companies that operate on the same model).

          It is a heresy for a business lawyer with entrepreneurial and banking clients and a proclivity for free markets to suggest that labor needs a bigger share.  But we expect labor to pay down mortgages and not default, to reduce household debt, to survive pressure on social programs, to handle abandonment of  old-fashioned pension funds that often sustained retirements with defined benefits – putting aside one’s social views or economic philosophy, it is just hard to understand how the US is going to pull this rabbit out of a hat without pumping actual dollars into the middle of the US economic engine.

          Returning one last time to Grantham’s report, and I quote:

          “The average worker, with flat wages for decades and with 16% to 18% of the workforce out of work (9%), discouraged to look for work (4%), or forced to work only part-time (5%), must feel as if he (or she) is in a depression.  … Corporations are spending on capital equipment but are doing little in the way of domestic recruiting.  Profit margins in the financial system were protected, along with bonuses, which in some cases set records last year despite the undeniable fact that these were the guys who helped bring the Western world to its knees.”

          These are not the view of a wild radical Democrat, or a dogmatic Republican.  These are the perceptions of someone who runs a significant investment fund.

          And I do not think that Washington,  the debating Republicans or the Democrats in the White House, are thinking this way. 

I had it when I left New York.  Of course that was a long time ago, 48 years ago to be exact (being exact is, by the way, highly overrated).

When I moved to Massachusetts I took it off.  Actually it just fell off by its own accord.  But I picked it up and put it aside.  First on the dresser in my apartment in Cambridge, later in my basement in my first apartment, then in a clearly marked box in a series of houses, ready to be reclaimed or at least remembered.

Now, however, over this past weekend, I went looking for it but I just cannot find it.  Anywhere.  Have you seen it, perchance?

Why did I go looking?  Thought you would never ask.

Each week I get my “The” New Yorker magazine and I read it or pretend to read it.  But it has been getting harder and harder and, truth be told, this last issue wholly eluded me.  When living in New York City, even as a teen and college student, mojo insouciantly draped over my shoulders, I would flip through the magazine to guffaw at the cartoons, then go back and read the articles, or at least most of them, and even try the poems if they weren’t too long.

So Saturday morning I took the new issue and started flipping.  I ignored the loose reply mail subscription cards that fluttered down at my feet.  Starting at the back (easier to flip that way, and the cartoon don’t require a front-to-back sequence), I began reading.  Could not understand the humor in a single one.  Not one.  Tried again for irony, the new vocabulary of a jaded age.  No resonance there.  A third read for mere cleverness, a grin-inducing perception—nada.

Examples:

            *people on a subway platform hear a loud speaker announcement saying “Due to an incident at the Bergen Street station, everything has changed and nothing will ever be the same.”

            *four men dancing ballet in tutus turn to one man dancing in a suit: “Damn it, Hollister, you’re totally ruining casual Friday.”

            *man at computer to his wife looking over his shoulder: “I’m too busy recommending things to experience them for myself.”

            *one bowler to another: “You’ve got to learn how to bowl without irony.”

As for the articles?  Try these scintillating topics:

            *Hunting Horsetails (about the New York Fern Society).

            *Summer Fun for Boys (begins “You’re gifted, you’re pudgy and you’re nine.”)

            *Reverting to a Wild State (a piece of fiction illustrated by a man with 6-pack abs wearing Jockey shorts).

And why are there full-page ads for electrical and natural gas power grids?  When was the last time a reader bought a power grid?

Is it the magazine or me?  I must believe in my heart of hearts that the professionals who produce the magazine—this is THE New Yorker, for Godssake, not Mad, not that most useless of all publications the scrap paper packaged as the magazine “Boston”—still had their totally cool finger on the wry experiences, the anomalies for which New Yorkers are ever attuned and which are recorded faithfully and promptly in their eponymous magazine. 

It’s gotta be me.  I gotta get my New York edge back.  I need my mojo.  I haven’t much needed it in Boston; you need none in the suburbs of course, and being an attorney is not so much a matter of  mojo as it is a drill in chutzpah.

So I went through my basement.  I went through my attic.  I went through my memory.  I  am not lying, I am telling you it is lost.  Gone.  No clue, no resinous residue of remembrance where it once resided.  Just plain lost in time.

I threw out the magazine.  I feel better.

Much no doubt has been written about statistics and baseball. I think baseball is the National Pastime only because it is rich in numbers, has so many years of numbers to draw upon, and therefore reinforces the American passion for putting numbers on everything.

Look at grade schools: we teach reading and numbers. It is a very human thing. Our street games and our formal games are all shot through with numbers.

So Jeter is now a king of an important number, and gets all this adulation. As one of the Sox was quoted in the paper, Jeter is actually (now here is big surprise to all) a pretty great ballplayer and “there is a reason he has 3,000 hits.” Imagine, up to now I had sort of thought it was random, like getting a free cola from an occasional screw top soda cap.

I look forward to the Yankees coming to Fenway as I plan to stand up and cheer for Jeter because I love numbers too and think I can remember the batting averages of people from 60 years ago when I used to study the backs of chewing gum cards. I believe that most people at Fenway will do the same, particularly if a) the Sox are still in first place, and b) the Sox continue to own the Yankees, as they have all this year.

Joe Posnanski of Sports Illustrated, about the only blog I read (and only because one of my partners forwards his stuff to me), has had a lot of fun messing with numbers and their anomalies (things like Jacoby Ellsbury having many times the number of steals as Jackie Robinson or some infield substitute accumulating over a long and dolorous career more hits than Ted Williams). His piece on Jeter’s 3000th hit touches upon the simultaneous importance and irrelevance of the statistic. Real merit in a ballplayer has to do with integrity and grace and the occasional ability to pick up a team and carry it up a big hill all alone (and then in the locker room babble about how it is a team sport).

Which leads to a final melancholy; whatever the statistics, what can one really say about Manny Ramirez? That can be printed in a blog that my kid may read….