Don Corleone's Guide to Attorney-Client Privilege

So the President of the United States is very concerned, and very confused, about attorney-client privilege. Let me try to explain, using the example of Tom Hagen from The Godfather. Why The Godfather? Two reasons. First, I want to. Second, I have a terrible suspicion that some of Trump's misunderstanding comes from watching the Godfather movies. (He does love TV.) Trump reportedly believes any meeting that has a lawyer in the room is protected by attorney-client privilege, and oh my sweet God is that not true.

Tom Hagen, as you know, is the Corleone family's unofficially-adopted son, a lawyer who doubles as the Corleone Family's chief lawyer and its consigliere, or criminal adviser-in-chief. No real Mafia organization has ever used an attorney as consigliere. It's just a pun (consigliere means "counselor," which Americans use to address lawyers), and a bit of narrative efficiency. Puzo uses one character to do two or three different jobs (Puzo's consiglieres also do the job of Mafia underbosses) so that he has one well-developed character instead of three sketchier minor characters. But Mafia consiglieres are most definitely not attorneys.

That said, how much of what Hagen does in The Godfather would be covered by attorney-client privilege?

None of it. Basically, not a damn thing.

Now, I am not a lawyer. I am also not a racketeer. But I think I've got a basic layman's grasp of the principle involved here, which is: You are not allowed to use your law degree to commit crimes. Get real.

Criminals are allowed to have lawyers. But lawyers are not allowed to be criminals. The Crips can have an attorney. But attorneys cannot join the Crips.

What this means, in practice, is that if you are accused a crime, even if it's something you actually did, you can hire a lawyer to defend you. And that lawyer cannot tell the authorities about things you reveal while preparing your defense. Attorney-client privilege protects your conversations with your attorney because otherwise you couldn't use an attorney. (A defense lawyer who tells the prosecution incriminating things about you is worse than no lawyer at all.)

On the other hand, if you are planning a crime and you ask your lawyer to help you plan it so it will work better, that is not attorney-client privilege. That is, what's the phrase, a criminal conspiracy. In the same way, if you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice.

So, let's say hypothetically that Don Corleone, the Godfather, is accused late in his life of a murder he committed in his youth, in which case he can retain Tom Hagen to defend him. Hagen would not be conspiring with him; he would be defending him in exactly the way the law envisions, and they would enjoy attorney-client privilege. This would allow Don Corleone to admit, privately to Hagen, that he actually did shoot Don Fanucci to death back in the day; he wouldn't have to lie to his lawyer and pretend to be innocent. Then Hagen and Corleone could effectively strategize about what case the prosecutors might have and what evidence there might be. Hagen could ask the Don what he did with the murder weapon, and Don Corleone could tell him, so Hagen could decide how likely it was that the police had found it. (Answer: probably not.) He could ask if the Don had used accomplices who might rat him out. (Answer: no. Tessio and Clemenza suspected, but weren't involved and didn't know anything.) This isn't pretty, but it allows the accused criminal to defend himself in court. And the prosecutors could not then haul Hagen into court and force him to tell them what Corleone said about the gun. That's how attorney-client privilege works.

If on the other hand, Hagen and Don Corleone have a conversation about beheading a horse in order to intimidate a Hollywood producer, that is not an attorney serving a client. That's two gangsters conspiring to commit a crime. Hagen can't play the attorney-client privilege card.

Hagen and Don Corleone actually know this, which is why they behave like criminal conspirators rather than attorney and client. Corleone carefully gives his instructions to Hagen in private, with no witnesses and nothing written down, so there is no evidence. (The horse-beheading is presented as a kind of gangster magic trick, where we can't see either man give the order or even see when Hagen had time to communicate any instructions to confederates. "Could you have your car take me to the airport?" is the construction of an alibi.)

Later on, when Don Corleone is incapacitated, Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant. Then Hagen is part of a more involved discussion about whether and how to kill a rival mobster and his pet police captain. Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either, for a simple reason: he is committing multiple felonies.

If you're trying to solve the Sollozzo-McCluskey murders, you probably need to flip one of the five guys who were in the room when the plan happened. But a fictional detective might have some luck looking at some of the paperwork. Someone arranged for the trigger man (Michael Corleone) to go directly from the scene of the crime to a ship bound for Europe with a false passport. That means someone acquired the passport, and the boat ticket, before the murder. That's a conspiratorial act; it's done with foreknowledge of the crime, in order to abet it. It is part of the murder scheme. If Hagen purchased the passage, or the passport, through his firm, the police could raid his firm for that evidence. Attorney-client privilege would not apply.

Also, the Corleone Family clearly does a lot of boring, paperwork-based crime to run their operation. They pay off large numbers of judges and politicians. (Don Corleone is described as extraordinarily good at bribing and corrupting public officials.) They launder their illegal profits into seemingly legitimate enterprises. They evade taxes, for the inevitable reason that they cannot declare their annual income from gambling, loan-sharking, and extortion. To the extent that they do any of this through Hagen and his firm, those activities are not protected from law enforcement. They're crimes, and if the authorities in The Godfather got wind of them, Hagen's Manhatttan law office would be vulnerable to a raid by the FBI, directed by, well, by the US Attorney for the Southern District of New York, the same US Attorney's office that raided the real Michael Cohen's home and office yesterday.

Which brings us to where we are today. The FBI and Department of Justice are especially cautious about piercing attorney-client communications, and err on the side of assuming they're privileged. But attorneys whom they investigate don't have much cause to complain. Being a lawyer does not mean you're allowed to help your clients evade the law. You don't have a license to launder money. You don't get to violate tax laws for your clients, or election laws. In fact, slow down with me for this one here, you don't get to violate the law at all. Because first, it's the law, and second, you're a lawyer. You know, an officer of the court. You are even more bound to obey the law than the rest of us. But then again, what do I know? I'm not an attorney. I'm not even a crook.

cross-posted from Dagblog; please comment there, not here

In Defense of Ebeneezer Scrooge

Oh, joy. The War on the War on Christmas is back. People are hollering that now that Trump has been elected, everyone is going to have to say "Merry Christmas" all the time and have "Merry Christmas" said to them all the time, whether they like it or not, and they don't like it, screw them anyway. What better way to express the meaning of Christmas? It's so very far from the spirit of Christian humility and love that I find myself, against all odds, ready to mount a defense of Ebeneezer Scrooge.

As we all know, Scrooge's response when wished a "Merry Christmas" is to say "Bah! Humbug!" We all know that, from early in childhood, as Scrooge's tag line. And we don't worry about what it means, exactly. It's an old-timey phrase that Scrooge says, and we get that it's negative. We learn the phrase much too early for the word "humbug" to be in our vocabulary for other reasons. So we don't think about it. But Scrooge is saying something very specific. The word "humbug" means fraud. Scrooge is saying that the holiday of Christmas is a fraud and an imposture. And, as Dickens's original readers all knew, Scrooge is saying that for well-established religious reasons.

Scrooge is expressing a religious objection to Christmas. A Christian religious objection to Christmas. Although Scrooge isn't shown as especially pious (because the whole story is set up to make him lose his argument), he is speaking for a long English Protestant tradition that viewed Christmas as a bunch of non-Biblical paganish nonsense. Those Puritanical Protestants had a strong  theological point here, in that the December 25th date is sooooo totally not Biblical.

(I'm not going to walk you through the details, but think about the Gospels' reference to the shepherds tending their flocks by night. What kind of shepherds tend their flocks outdoors at night near the end of December? Terrible, terrible shepherds who are letting all of their sheep die of painful exposure to the cold. What is wrong with these shepherds? Why don't they bring the flocks in for the winter like everyone else does? Do they hate sheep? But I digress. The answer is, it's not actually winter in the Gospel story.)

Anyway that have-you-heard-this-before rap your atheist office-mate annual lays on you across the cubicle divider about how Christmas is really this pagan holiday that Christians took over blah blah etc. etc., turns out to be basically accurate. But your atheist explainer friend has unwittingly borrowed that argument from a group of hard-core Christian fanatics from earlier centuries, who were absolutely determined, on the grounds of their faith, not to celebrate any Papist idolatrous nonsense like Christmas.

Ebeneezer Scrooge is recognizably descended from those Christian hard-liners, which is why his first name is Ebeneezer. Giving your children names from the Old Testament, rather than the name of a later Christian saint, is a Puritan practice, and into the 19th century that combination of Jewish first name and English last name is a sign of Puritan family history, the same way having a first name like "Rainwater" suggests that your parents were hippies. (If you see an early American named Ezekiel, Abraham, or Nathaniel, you can be 95% certain they have New England Puritans in their family tree.) Ebeneezer Scrooge is actually named after a rock (no, really) from the first book of Samuel. He's got a stony heart, right? But notice that his hard-firsted partner, Jacob Marley, also has an Old Testament/Puritan name. The nice guys in A Christmas Carol don't get those Old Testament names. They're named Bob and Fred.

Also notice that, partly because of stubborn religious objections, Christmas was not actually a legal holiday in Dickens's England. As in, no one had to close their store. That little exchange near the beginning where Bob Cratchit asks for Christmas off (or, and this is worth noticing, Scrooge prompts Cratchit to ask for Christmas off: "You'll be wanting the whole day off tomorrow?") makes no sense to us today. Why does Bob have to ask for the holiday off? Everybody gets the holiday off. Actually, they don't, because it's not actually a holiday. So give Ebeneezer Scrooge his propers: even at the beginning of the story, he gives Cratchit Christmas Day off when he doesn't have to. He closes shop on a day he could have done business and he pays Cratchit a full day's pay for a bogus fake holiday, a fraudulent humbug that Scrooge probably thinks of as un-Christian. He even goes out of his way to make sure to that Cratchit asks, which means that however much Scrooge huffs and grumbles he has actually decided to give Cratchit the paid day off before Cratchit asks. So don't be so hard on the guy.

Now, my boy Charles Dickens is very intent on promoting Christmas, for lots of reasons. Part of it is about a larger High-Church Anglican movement bent on reviving traditional holidays. And part of it, famously, is commercial, because Dickens wanted to promote Christmas gift-giving. (He published a lot of work in once-a-year annuals designed to be given as Christmas presents; A Christmas Carol was first published in one of these Christmas-gift-ready compilations.) He wants to make the strongest case for Christmas he can. And therefore, by and large, he leaves Jesus out of it.

A Christmas Carol always works from the premise that Christmas itself is not religiously defensible. The Ghosts make every conceivable argument for the Christmas holiday EXCEPT the argument about Jesus's birth. They never go to the Bethlehem story, never even get close. Because there's no way to con Scrooge, or frankly to con the readers, into accepting that this is actually Jesus's birthday. Dickens knows better than to make an argument he can't win.

So Dickens makes a case for a non-sectarian, ultimately secularized Christmas, based on recognizably but not exclusively Christian values, such as generosity, and a generally small-c conservative emphasis on the pleasures of tradition. (Dickens is working the tradition angle from the first few sentences of the story, in ways that work all the better because they don't call full attention to themselves.) And in there Dickens slyly folds in his message that the best way to celebrate Christmas is to buy things.

Now, I love A Christmas Carol. It tells its story very well. But then, I'm a superstitious Papist. What do I know? But I want to point out that one of the things A Christmas Carol is doing is taking Christ out of Christmas. And it does that in 1843. So don't tell me it's some modern liberal conspiracy. Charles Dickens did it, long before any of our grandparents were born. And he invented the holiday we all know today: a commercial and secular holiday that's about vague, feel-good sentiments and about tradition for tradition's sake, rather than about any actual religious content per se. Dickens made Christmas for everyone, because if it were actually about Jesus most Christians would not have accepted it.

Ebeneezer Scrooge doesn't accept Christmas because of Jesus. Ebeneezer Scrooge doesn't accept that Christmas has anything to do with Jesus. And no one in the story who comes from the Afterlife tries to tell him any different. What turns Ebeneezer Scrooge around is a general set of positive values, loosely tied to Christianity but by no means tied to any specific sectarian identity: kindness and generosity, warmth and affection, values that you'll tend to find among believers of nearly every religion. Scrooge likes to hear the Christmas bells, but you'll notice he doesn't actually attend any church. He's not observing a religious holiday. He's just in it for the peace on earth and goodwill to men.

So, however you celebrate these winter holidays, let's keep Dickens and Scrooge (reformed version) in our hearts this winter: a warmth and generosity that extends itself to all without exclusion, without getting hung up on the details of doctrine or on membership in any specific sect or tribe. Wish people well this holiday season with no strings attached, without being stingy of your good will. And God bless us, every one.

cross-posted from, and all comments welcome at, Dagblog

Dylan's Nobel and the State of American Literature

I was very pleased when Bob Dylan got the Nobel Prize today. But I understand a number of people were not. Almost immediately upon the announcement my social media stream was full of disgruntled poets complaining that Dylan should not be eligible for the prize. (The silver lining was that one of the talented poets I know was immediately pushing back on this.) And by mid-afternoon the websites of major periodicals were full of think pieces, ready for tomorrow's print editions, about why Dylan should not have won.

So Friday morning America's newspapers will be filled with these editorials about how our fellow American Dylan does not deserve this prize. That will be a change from most years, when those same newspapers have no earthly idea whether or not the new Nobel laureate should have won, because even the editor of the books page does not really know who the new Nobel laureate is.

Do you see the connection? This year, the Nobel committee gave the prize to a figure with global stature and an international audience. That is not the only benchmark of merit, obviously, and I have always been glad that the Nobel sometimes elevates lesser-known writers. But to say that fame should not matter at all, in the terms of a global literary prize, is absurd.

Let's be clear: the idea that a songwriter is not a writer is transparently false and historically ignorant. By that standard Homer would not be eligible for the Nobel Prize. The Prize does not specify particular genres. It says only "in the field of literature" and the definition of literature changes over time. The novel was once a despised junk form, as was live theater before it, and the migration of low genres to high places will always continue. The real complaint is that a popular artist won. The horror!

The complaint is that a famous pop artist won something that "rightfully" belongs to more "serious" artists. But that complaint only masks the real problem. The real problem, for American poetry and all of American literature, is why none of the "serious" artists has a broad popular following.

The truth is that there is not a single living American poet who is a serious contender for the Nobel Prize. I wish that were not so, but it is. That is not meant as an insult to any of wonderful poets who are working today, or to the talented poets among my friends, or to my friends' accomplished mentors. Those poets are wonderful. A few are unsung national treasures. But they are, nonetheless, mostly unsung, and not one is a legitimate national figure, let alone an international figure. I saw someone today, in a serious publication, negatively comparing Dylan to Richard Wilbur. Now, Richard Wilbur is a gifted artist who deserves respect, but to say that he is a global figure in real contention for the Nobel Prize is simply delusional. If I could put an American poet up for the prize I would nominate Ferlinghetti, but I do not for a second expect that Ferlinghetti will win. No living American poet has that kind of international stature.

This is not because the individual poets lack talent or dedication. It is because American poetry, with its institutions and ambitions and professional culture, has turned away from wider relevance. No American poet is even attempting to write for a broad national audience today, and a young poet who attempted it would be considered a hack. More importantly, there is no infrastructure in place for an American poet to write for the general public. But if you ignore for the wider public for decades on end, it will ignore you back and then forget about you completely.

And, lest we forget, the Nobel Prizes are specifically intended for those who have done "the greatest benefit for mankind" and the Prize in Literature specifies "the person who in the field of literature the most outstanding work in the ideal direction." The "ideal direction" part clearly specifies some attempt at public uplift, which has not been part of American poetry's general ambitions for some time now. "The Times Are A-Changing" does display that ambition, pretty clearly, even if many working poets would find that corny. The finding-it-corny part, actually, is the heart of the problem. I get it, poets, I get it. You don't want to be Carl Sandburg. Congratulations: you're not.

Now, I have also seen a number of complaints by and on behalf of novelists and fiction writers, with whom I still strongly identify despite the long lapse of my artistic practice. But to them, too, I say: be honest. There may be, and I would say that there are, a handful of American novelists who are plausible candidates for the Nobel. But they are merely plausible, and perhaps even dark horses. If Oates or Pynchon or DeLillo or Roth won I would be happy, but I would never say that I had expected it all along. And I recognize that many people would have said, "Hmm. Okay." My own favorite for the prize is Le Guin, who would surely be a controversial winner in her own right, and who has done her work in a despised popular field. There are a few people who could win the Nobel, but no one who is an overwhelming favorite. None of them are culturally central in that way. Toni Morrison? Sure. But she's won already. There are other Americans whom I would like to see win, but none of them can say that they were robbed if they don't. None of them, much as I love them, are owed that prize.

But it's important to ask why not. It is not about lack of literary gifts. Nobody could ever say that Pynchon or Oates does not have enough talent. And some of this is audiences turning away from the written word to various electronic media. I know that. But American fiction has also lost part of its claim on the public arena by relinquishing that claim. Are we even trying to write the Great American Novel anymore? Maybe. But I'm not so sure. I worry that American fiction has ceded something of its public ambitions. If we don't have a Tolstoy among us, it is partly because, of course, the conditions are not there to create a Tolstoy may not exist any more, but also because American letters, not simply the writers themselves but the agents and editors and teachers and critics, have lost interest in producing one. I would like our ambitions to be greater and our horizons wider.

Forgive me if this post has been negative. It was prompted by a wave of public grumbling and complaining, of the kind I like least: the claim that an artist does not deserve something. To say that Dylan does not deserve this prize is ungenerous and small-minded, because many more artists deserve than get. To say that someone else was owed the prize instead is vainglorious and delusional, because no artist is ever owed anything but the chance to make art. And the worst trap for any artist, or any artist's backer, is to complain about what someone else has achieved, when the answer -- the only answer -- is to try to become better. Talking about taking something away from Dylan is petty and mean. We should talk about making our "serious" literature more serious.

cross-posted from, and all comments welcome at, Dagblog

J. K. Rowling Is Wrong About Her Own Books

So, J. K. Rowling has told an interviewer (the actress Emma Watson), that she paired off the wrong characters at the end of her Harry Potter series. Instead of marrying Harry's right-hand girl Hermione off to his left-hand boy Ron, Rowling has decided that she should have married Hermione to Harry himself. So, Rowling concludes, she was wrong when she wrote the books. In fact, she's wrong now.

Almost anyone who's taken a college literature class has been told that figuring out the author's intentions isn't the point of reading a book, that the author isn't the final judge of what the work means. That claim sounds weird to lots of people: of course the author gets to decide what the work means! She wrote it! Professors just don't have any common sense! [Cue jokes about pointy-headed academics who believe in the "death of the author."]

But it's not just a pointy-headed theory. It's common sense about the way books work. And Jo Rowling has given us a perfect example. The books don't mean something different because she's changed her mind about them. They don't get better or worse because of how she feels about them at a given moment. The book is the book. She wrote those books, but now they are their own thing, and she doesn't get to tell you how to read them.

Rowling's current claim is that the Ron and Hermione match, which she painstakingly builds up over the seven books in the Harry Potter series, is motivated by her own "personal" desires, rather than by artistic considerations:

"I wrote the Hermione/Ron relationship as a form of wish fulfilment. That's how it was conceived, really.

“For reasons that have very little to do with literature and far more to do with me clinging to the plot as I first imagined it, Hermione ended up with Ron." 

What that sounds like, as far as I can tell, is that Rowling paired up Hermione, a character who fairly clearly represents an imagined version of Rowling's younger self, with a character whom she initially based on someone from her own early years. If I've got that right, Rowling sees the Hermione and Ron relationship as a story of her adolescent self getting a boy who got away. Of course, only Jo Rowling herself would read these characters this way, since none of us read Ron as Sean Whathisname that Jo Rowling had a crush on in sixth form. Why would we? We have no idea who Sean from Sixth Form is, and we don't care.

More the the point, although Jo Rowling might have intended Ron and Hermione as wish-fulfillment versions of Young Jo Rowling and Her Teen Crush, the characters aren't actually Young Jo and Teen Crush. They're independent characters. The reader figures out who Ron and Hermione are from the things they say and do on the page. There is no Ron or Hermione separate from the Ron and Hermione on the page. They don't have any other existence. They're characters in a book.

Now, if Rowling says her reasons "have very little to do with literature," that suggests that marrying those two characters off is an artistic mistake. Rowling is saying that her books would have been better books if Hermione married the main character in the end.

But Jo Rowling doesn't get to decide this either. She wrote the books she wrote. The rest of us decide if they work or not. If Rowling wants to persuade us that her ending stinks, she has to make an argument for that just like the rest of us.

Would wedding bells for Ron and Hermione have been better? It would certainly have been a more obvious ending: main male character marries main female character. And some people have clamored for that on the internet since the nineties, because they feel it's a story-telling imperative that Male Character #1 pair off with Female Character #1. But it's hard to feel that adding yet another cliche would improve the Harry Potter books. The problem with these books isn't that their points aren't too obvious or on-the-nose.

It's much easier to argue that Rowling's actual ending works quite well. The three main characters end up as part of a large happy extended family, with Harry marrying Ron's sister. It's a classic Dickens conclusion. And it creates a nice structural completion. The main character is an orphan who is repeatedly depicted as longing for a family. (At one point, the character looks in a magic mirror that shows you your heart's fondest desire. What he sees is himself surrounded by hordes of relatives.) In the first book, he's hapless and alone at the station where he's gone to catch the school train, and he gets taken under the wing of Ron's family. (It's worth pointing out that we meet Harry's future wife in that early scene, before even Hermione has been introduced. The book is setting things up already.) In the last scene of the series, Harry is putting his own children on the school train, surrounded by his in-laws and his old school friends. The character has what he's been shown to want most: he wished to be part of a family like Ron's, and now he's a member of Ron's family. And his own children have their parents to put them on the train, as he did not.

It works, because it's a decent story. "Orphan gets family" is more specific and interesting than "hero gets girl." The hero always gets the girl. It's also nice to see the boy hero actually, you know, form a genuine friendship with a girl. That the Harry Potter books don't girlfriendzone the female lead is a point in their favor. And it's also pleasing that the main female character is allowed to have a marriage where she will be the senior partner. But most importantly, the ending works because it's structurally satisfying. The last scenes of the book recall earlier scenes and rhyme with them. Structure is one of Rowling's best things.

Rowling now objects that the Ron and Hermione match lacks "credibility," meaning they wouldn't be a good couple long-term. But that's just silly. The one thing you learn in a college English class before "the author isn't always right" is that characters are not real people. What's going to happen to Ron and Hermione in the future after the book ends? Nothing. They only exist in the book. If Jo Rowling belatedly decides that they're maritally incompatible, so what? She depicted them as happily married in the last scene of the last book. Jo Rowling now imagines them as growing estranged and needing marital counseling. I imagine them growing more compatible as one of them matures and the other learns to live with his more benevolent quirks. I mean, that's what Jo Rowling's actual book suggests. Who am I going to believe? The person who put the words on the page? Or the words on the page themselves?

Rowling is talking about the characters in terms of psychological credibility. But the characters don't actually have independent psychologies. They're parts of a story. And the Ron and Hermione characters are structurally paired for hundreds and hundreds of pages. The plot provides the ending that it has prepared the readers for. Rowling complains that it was "the plot as she first imagined it" but it's the plot as she actually executed it, and she executed it pretty thoroughly. She started laying the trail of breadcrumbs for the Ron and Hermione ending from the start of the series. She didn't drop even a crouton on the Harry-loves-Hermione trail. The thought is never presented as crossing either character's mind. Providing a different set of romantic pairings would require her to rewrite all seven books. It would be like saying "I think Pride and Prejudice ends wrong. Elizabeth should be with Bingley and Jane should be with Darcy." Effecting that change would require you to change the whole book, start to finish.

If Rowling wants to rewrite her entire series to have a "better" ending, I'm sure her publisher will indulge her. But that doesn't mean it will be better. George Lucas re-edited Star Wars to reflect his second thoughts, but the rest of us are free to prefer his first version and most do. Han shot first, whether George likes it or not. He's the creator. He's not the decider.

 

The great W. H. Auden decided late in his career that some of his famous early poems needed to be improved, and that some should never again see the light of day. When rewrote his poem "In Memory of W. B. Yeats," he was mostly right; the rewritten lines are better poetry. When he decided that "Spain, 1937" should never be published again, he was wrong. "Spain, 1937" is a great poem, whether Wystan likes it or not. He doesn't get to tell the rest of us not to like it. The author gets to write the book. But that's the end of her job. She has to leave the reading to us.

cross-posted from Dagblog

Cooking in Rome: Soda Bans and the Illusion of Choice

A judge has overruled Mayor Bloomberg's soda ban, calling it "arbitrary and capricious." So New York City's ban on large sugary beverages, meaning more than 16 oz. servings, is basically dead. This is a big win for Big Gulp Libertarianism, which derided the government soda ban as Nanny State tyranny, taking away individual's freedom to make their own rational choices. But you know what else is arbitrary, capricious, and erodes individual freedom of choice? Marketing. Every food package you will ever encounter was designed to limit the exercise of your free will. Selling someone else a 64-ounce cola may be a rational individual decision. But buying a 64-ounce cola is not quite an act of unfettered free choice.

I spent a month or so last summer living in Rome, which meant cooking and shopping in Rome (a great pleasure) and becoming that timeless figure of comedy, the Americano nel supermercato. That meant everything I bought in a bag, packet, or can came in a smaller bag, packet, or can than I'm used to. A can of tuna, say, was a little more than half the size of an American tuna can (80 grams instead of 140+). And within 24 hours of getting off the plane, I had adjusted to thinking of that as a standard can of tuna. When I flew back to the United States and walked into an American supermarket, I switched back. But I didn't constantly open a second can of tuna in Rome so that it would be the size of a "real" can. There's no such thing as a "real" size for a can of tuna. I just worked with the set of units I was given, like everyone does. It's not that I decided I wanted exactly 80 grams of fish. But by the same token, I don't "want" exactly 142 grams of fish at a time when I'm in America. That's just the size the can comes in, and so when I open a can I try to use the amount of tuna that's in it. I didn't decide that I wanted this or that amount.

Opponents of the Bloomberg ban say that people will just order two (or four) 16-ounce sodas to get around the ban. The judge says the same thing. In fact it seems like such common sense that it's a joke: how ridiculous not to expect people to buy two sodas instead!

Please. No one was going to do that. That is not how the world works at all.

No one just naturally decides on their own that they want 32 or 64 ounces of soda. You don't go into the 7-11 and think, "Man, I need 64 ounces of something cold, 'cause there isn't nearly enough pressure on my bladder." The idea of buying something that size has to be suggested to you, and the suggestion has to be framed so the decision feels natural. If there were no 64-ounce sodas on sale, you wouldn't think the 16-ounce soda looked inadequately small. It wouldn't even occur to you.

Seriously: before people started buying Big Gulps, were customers buying two or three sodas at a time because the available sizes did not satisfy their thirst? Does anyone actually believe that the super-sized drinks were created to respond to customer demand? If you do, I have some shares of Lehman Brothers to sell you. Those sizes were invented to create customer demand. It's better for the seller to sell larger amounts of the (cheap and government-subsidized) sugar water, so they created a set of packaging choices where 16 ounces went from "extra-large" to "medium" or "small." And they frame super-sizing your drink as a bargain. Bingo! Illusion of choice. You get to experience 7-11's corporate strategy as your natural exercise of free will.

If you're not willing to believe that, let me point out a basic fact. There are professional stage magicians all over this country who can "read your mind" by identifying the number/playing card/primary color/etc. that you think of when they ask you. They don't do this with trick decks of cards: it still works with numbers, colors, and so on. They do the trick by choosing the number or color for you. This is so easy that a non-trivial number of people make a living doing it. You never know they choose for you. You experience it as your own choice. But the trick, called the "force," works effectively and reliably. If you ever want to ruin a magic show, just write down the second number that comes into your head after the magician asks you to write down the first number that comes into your head. The first number that comes into your head is the one the magician picked for you. (But if you ever ruin a magic show, you are using your knowledge for evil and I disown you.)

We like to think of a magician's force as just something that happens on stage in Vegas. But it happens all the time. We all fall for the Jedi mind trick every day, and when someone points it out to us we angrily insist that it was our own idea all along: those are not the droids we were looking for! It's simply too uncomfortable to think that many of the ideas that seem to appear independently in our head have actually been placed there by others as we happened by. If we're that easily suggestible, what about our free will? Science's answer seems to be: what about your free will, sunshine? Where did you see it last?

If you want to strike a blow for the freedom of human self-determination, fighting the soda ban is a sucker's game. All you're fighting for there is the right of corporate entities to manipulate your behavior, and your personal right to be their sucker. If what you're interested in, however, is fighting to preserve your illusion of self-determination, your right not to notice that your free will isn't 100% free or 100% yours, then you go right ahead and fight that evil nanny state, brother. But don't expect the rest of us to hail you as a champion of liberty. You're perfectly free to delude yourself. Enjoy your visit to New York.


cross-posted from Dagblog

Lois Lane, My Love

cross-posted at Dagblog

Joanne Siegel has passed away. She was the model for the first sketches of Lois Lane and the wife of Superman's co-creator, Jerry Siegel. That gives her the best claim to being Lois Lane that any real person has ever had. In her later years, she was a fierce advocate for her husband's intellectual property claims. I've thought a lot about the Superman creators over the years, and part of me is tempted only to blog about intellectual property. But the truth is that Lois Lane has probably shaped the course of my adult life more than any other fictional character has, without me thinking about it.

All the years I spent reading comic books, before I was old enough to think critically or to act on the messages I was being given, I was picking up a bunch of basic lessons about how adults were supposed to live and what they were supposed to want. You were supposed to live in a big city. You were supposed to have a job. (Even if you could fly and squeeze diamonds out of coal, you were supposed to have a job. It wasn't about the money.) And when you fell in love, you were supposed to fall in love with a poised, confident, and whip-smart brunette, someone who was at least as good at her job as you were and at least as smart as you were: a woman like Lois Lane.

I have Lois and her creators to thank for an adulthood full of smart, interesting women. Women with careers and style, women who appreciate good prose and smart remarks, women who are nearly impossible to intimidate. Some only gave me a bout of spring heartsickness or an autumn of giddy smiles, some became my partners for as long as we could make our partnerships work, and one has redefined my notions of happiness, but they've all been bright and self-possessed and ambitious, and my life has been incalculably richer for it. I grew up presuming that if a straight man were able to do nearly anything he wanted and could pursue anyone he liked, he would choose a woman who was undeniably his equal. With more experience behind me, I still feel this is true. I would like to thank Clark Kent for the tip.

I'm not going to pretend that Superman comics were feminist documents, or that Superman is a good role model when it comes to romance. Everyone knows you shouldn't lie to your beloved, let alone systematically deceive her about who you are; you'd have to be from another planet to think otherwise. And it takes neurosis beyond the scope of mortal man to start a love triangle where you are your own rival, let alone to keep that phantom rivalry going for more than half a century. By the time I discovered Superman, Lois, and Clark's triangular mishegas, the comics had toned down most of the overt snickering at Lois for not figuring out that she was being lied to on a daily basis. In the 1950s, Superman would collude with the readers by literally winking to them out of the panel frame, sharing a joke on silly Lois who couldn't figure out the secret that every schoolboy with a spare dime already knew, and who was moreover a girl. But when I started reading, thirty-six years back, the wink had stopped being part of the monthly formula. And while Lois surely needed rescuing on steady schedule, even as a schoolboy I knew that this was about genre and not gender. Lois had to get herself in regular jams to keep the plot machinery from jamming, and I knew that. But the premise, after all, was that Superman was not like other men, so I naturally chalked up the rescuing to the super part, not the man part. Being rescued by that guy was nothing to be ashamed about; it could happen to anyone.

And it mattered, although I could not have articulated this, that Lois really did get herself in those jams, that it was her fearless sense of enterprise that got her in trouble. In fact, she's much more adventurous than Superman is; she takes more risks. Inevitably, one of her daring gambles would lead to a bad break and she would need to be bailed out by her bulletproof admirer. Lois didn't need rescuing twice a month because she was too stereotypically girly. She needed rescuing because she was too brave.

Lois Lane worked for me precisely because I encountered her in the middle of an extremely male fantasy, a fantasy where she was placed at the core. And in many ways she set a better example than characters like Wonder Woman, who represent a male fantasy about powerful women; you won't catch Lois wearing a pair of slave bracelets. An adolescent fantasy about the strongest woman in the world ends up with her dressed like some kind of harem girl. But with Superman, it's a fantasy of unchallengeable male power. And the lesson was that a strong, confident man wants a strong, confident woman. Made sense to me.

After all, it was always Lois who made the Superman concept work. She was Siegel and Shuster's great stroke of genius: Superman is absolutely invincible in adventure-plot terms, but love lays him low every time. The relationship with Lois, not the nonsense with gangsters and mad scientists and goofy-looking monsters, is the problem to be overcome. Lois, not Kryptonite, is his weak spot. What's great about this is that the adventure-story plot, where any suspense is artificial, becomes openly unsuspenseful, and the characters' relationship, which is potentially interesting, remains complicated and unresolved. Superman always saves the day (as you expected) and he never fixes his personal life (or didn't, until 58 years into the game). Of course, it was part of the formula that Clark and Lois never resolved their issues, but leaving them unresolved again and again focuses the narrative suspense toward what is real and human. Radioactive green rocks from outer space are not a real problem, not for us and not really, when it comes down to it, for Superman either. Love, on the other hand, will kick your ass all the way back to Krypton.

Lois was Superman's key difficulty from the very first episode: she's at the core of his character and the heart of the entire story concept. Before there was Kryptonite, there was Lois. Before there was Lex Luthor, there was Lois. When and if Superman is ever allowed to enter the public domain, Lois will go with him, because she was with him in his very first appearance. And he needs her. Without her, he has no story. Nothing can hurt him. Nothing can keep him from doing whatever he pleases. There's no suspense of any kind. (Put another way, Superman is an enormously boring character, but Clark Kent is fascinating.)

Jerry Siegel's central insight was that superhero comics, which he and Joe Shuster were inventing, are all about girl trouble. All of Superman's superhero descendants are about girl trouble, too, both the reader's and their own. (Bruce Wayne has been in his basement putting on a clinic on How Not to Date Successfully since May, 1939.) When you see a superhero whose relationship troubles aren't actually featured in the plot, the stench of Girl Trouble hangs over the whole enterprise. For Superman, the founder of the species, it's right out there in front. Did I mention I used to read a lot of these things?

Of course, if you buy a Superman comic today, you'll find Clark and Lois happily married and domesticated. That happened in 1996, about two years after Lois, Clark, and Clark's special pajamas would have gone into the public domain but for copyright-extension laws. And that provides an object lesson in what our current perpetual-copyright regime does to very old properties.

Under the terms of the bad deal that Siegel and Shuster made in the 1930s, DC Comics and later its corporate parents gained complete rights to the character for a measly $130. (Later, when Siegel and Shuster complained that DC was creating spin-off characters like Superboy without giving them a cut, they were fired from their jobs writing and drawing the character they'd created.) In 1938, that $130 bought DC exclusive rights for a maximum of 56 years, but since then Congress has extended the terms of copyright repeatedly. This is notionally for the benefit of creators, and more directly creators' heirs (extending the term from fifty years after the creator's death to seventy-five years after the creator's death can really only be about the heirs, and about the publishing company). To some extent this is true, and after one of the later extensions Joanne Siegel and the rest of Jerry's heirs did actually get half of the Superman copyright back. But of course, they get nowhere close to half of the revenue from that copyright. Creators and their families do get thrown the occasional bone, because they're the big media companies' official excuse for extending copyright again and again; you've got to at least hand out a few bucks to maintain the pretense. But the real profits of the extension go to companies like, say, Time Warner. It's nice that Siegel's family finally saw a piece of the money, but it's only a piece.

Meanwhile, Superman and Lois remain in the exclusive custody of DC comics, 73 years after they were invented. That means DC Comics gets to define the characters and shape their portrayal. Some fans of perpetual copyright actually cheer for this exclusivity on the grounds that the corporate owner looks after the characters and guards the core of the tradition. But in fact, DC Comics (a subsidiary of Time Warner) drastically reinvented Lois and Superman and removed the core of their storyline. Characters who were defined by not getting together are now blandly married. (Actual married life is not blander, simpler, or less interesting than single life is, but married life in Action Comics is just one long snore.) And with that half-smart re-thinking, the only legitimately interesting thing about Superman vanishes. (It's a bit like deciding that Romeo and Juliet's families should get along better. If one company still had a monopoly on Romeo and Juliet and decided that, it would just be a story about two good-looking kids and a bedroom window.)

This is what happens when fictional characters outlive their original creators but are kept from the free market. The official custodians are now too far from the moment of creation to have any intuitive sense of how and why the characters originally worked, but rival creators who might have a better or smarter grasp of the characters are barred from competing. Over time the writers and editors at DC forgot that Lois was supposed to be the humanizing weakness and started to wonder why their perfect superhuman leading man had this puzzling and "uncharacteristic" weakness. How could the Greatest Superhero of All Time be such a loser in his personal life? It made no sense! They had to make the character more consistent!

It wasn't enough that Clark Kent was immune to bullets, gravity, and abdominal fat. No, he had to have a perfect love life, too. And so he became perfectly boring. Now I have to root for Luthor.

If you're one of the fifty thousand people or so who reads a Superman comic this month (what remains from the old audience of millions), you'll find that the focus is on just how perfect Superman's conduct and values are, and on how much all of the minor DC Comics characters admire him. (What's interesting about the world-famous character is sacrificed in order to make him a more effective backstop to valuable DC properties like Beast Boy and Air Wave.) And there's now a heavy emphasis on Superman's "Midwestern values." You see, he's such a good person because he was raised in Kansas. And if being from the Great Plains States isn't an interesting character hook, I don't know what else could be.

The indomitable Lois Lane of my own childhood won't be infiltrating youngsters' boyhood fantasies, alas. Her publishers gave up on selling to kids long ago, or selling to anyone but a small core of hobbyists. (When I wanted to read a Superman comic, I got thirty-five cents and a posse of friends together and walked to the variety store. These days, Superman is sold in specialty shops, like kayaking gear.) And even so, she's no longer quite the same fearless adventurer who stealthily rearranged my expectations of what adulthood and adult relationships would be like. But the deed is done; I long ago graduated to real women, smart and confident professionals like the famous Miss Lane, and discovered that a few of them actually wanted to spend their time with the nerd in the glasses, and liked me even if I couldn't fly.

Thanks, Jerry. Thanks, Joe. And rest in peace, Joan.