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Articles published in the Richland County Bar Association's Richbar News

What are we running toward?

August 22, 2017Richbar News Articles

At the new gym I’ve been going to, there is a long row of treadmills. The treadmills face a wall of mirrors. This means you get to watch yourself suffer. If you look to the left or right, you can watch other runners suffer too. You know what? Looking at yourself in the mirror when your heart rate hits 170 is not always pretty.

So sometimes I steal a glance to the left or right to see if (as bad as I look) others are holding up even worse than me. Or I look at the speed readout on their treadmill to see if I’m running faster. If so, I have a little private “mwhahahaha” moment. If not, I feel a little sting of envy.

How interesting it is that, when the suffering of others occurs right next to us, our first reaction is to use it as a yardstick to measure our own condition. But that’s human nature, right? That habit of comparison is part of our hard-wired human survival instinct. We can move beyond it to altruism and even self-sacrifice. But at our most basic level we’re pretty much concerned with looking out for number one.

That’s not totally a bad thing, by the way. As Adam Smith wrote famously in The Wealth of Nations: “It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard to their own interest.” Smith called self-interest the “invisible hand” that guides the economy — and to some extent the whole of society. But unfettered selfinterest can be a problem too. As John Adams wrote: “Power naturally grows…because human passions are insatiable. [T]hat power alone can grow which already is too great; that which is unchecked; that which has no equal power to control it.” Put more succinctly by Richard Hofstadter in The Founding Fathers: An Age of Realism: “To them a human being was an atom of self-interest. They did not believe in man, but they did believe in the power of a good political constitution to control him.”

So, on one side, we have the invisible hand of self-interest. On the other we have the hand of control. And, in a country where “Freedom! (TM)” headlines our travel brochures, it’s the arm-wrestling match between the two that frames nearly every societal issue. Take guns for example. Second Amendment advocates have been extraordinarily successful in framing the issue as the citizen’s “inalienable right to self-defense” pitted against the government’s attempt to limit that right. The frame is so persuasive that, following mass shootings, gun sales go up (See? It’s a dangerous world out there – arm while you still can!).

Yes, the Second Amendment is doing just fine these days. But what about a citizen’s right to a more basic, less extreme kind of selfprotection? Like under the Seventh Amendment: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, then according to the rules of the common law.” Well, apparently citizens can’t be trusted with that kind of weapon.

If you buy in to what our elected Congress appears to want, we citizens (lawyers, judges, litigants and jurors) are too greedy or easily misled to be trusted with something as dangerous as MONEY. So, some “control” is clearly in order. Whether that means substituting government judgment for our own in deciding that no citizen’s non-economic harm in a medical malpractice could ever be more than $250,000 (PAPCA), or limiting police liability under Section 1983 for unjustified force to out-of-pocket losses (like funeral expenses, see Back the Blue Act S1134), or trying to take down the CFPB before it can stop arbitration from undermining our jury rights completely: when it comes to your basic right to access the justice system to protect yourself – according to Congress – there’s no such thing as “too much” government control.

Ironically, the same members of Congress who oppose gun limits are the ones seeking to limit our more basic, useful, and civil form of self-protection under the rule of law. As of yet at least, the citizens who voted for them don’t realize they’re being disarmed by those who’ve pledged to protect their rights. By the time they do, we may be left with a well-armed populace blocked from fair, meaningful, or peaceful means of redressing harm. Like countries disarmed of all conventional weapons and left with only nuclear ones, it’s an explosive recipe.

Take all this with a grain of salt, of course. Just as the members of Congress proposing these bills have a self-interest in pleasing the lobbies and corporations that contributed to them, as a Consumer Protection lawyer, it’s in my self-interest that people be allowed to have judges or juries – not congressmen or private arbitrators – decide their cases.

But I would submit that it’s in your self-interest too. Not just as a lawyer, but as a citizen in a society where “freedom” – not the brochure tagline kind but the real thing – still has the potential to mean something.

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