Whatever

Blonde burris more compressed.JPGI’ve been working on a business for when I get tired of being a law professor. False memories. There’s a huge potential market. Everyone has missing pages in the scrapbook, things we’ve always wanted to do but never managed — that grand April affair in Paris, climbing K-2, or perhaps just nobly and diligently overcoming some childhood adversity. False memories have a bad name in law: we don’t like it when a victim remembers abuse that never happened, or an eye-witness realizes that the short Black defendant is the tall White gunman he saw pull the trigger. But why not harness that power for good? My idea is to help people recover detailed memories of things that, if you want to be technical about it, never actually happened. From the point of view of present emotional value, a false memory is just as good as a real one, so why confine your remembrance of things past to that poor parade of things that actually passed you?

Well I thought this was a pretty good idea, until last week, when a New York Times editorial reminded me that this sort of fantasy is already a mainstream business. Working in public health law, I should have realized a long time ago that most of what passes for the facts beneath our health policy are, in fact, things we know for sure that just ain’t so. (Wait, I just recovered a memory of having this precise insight fifteen years ago, during a magical week in Paris). Anyway, in this editorial, the Times catalogued the myths that shape health care politics in America today. Here’s a bit:

Seven years ago, the World Health Organization made the first major effort to rank the health systems of 191 nations. France and Italy took the top two spots; the United States was a dismal 37th. More recently, the highly regarded Commonwealth Fund has pioneered in comparing the United States with other advanced nations through surveys of patients and doctors and analysis of other data. Its latest report … ranked the United States last or next-to-last compared with five other nations — Australia, Canada, Germany, New Zealand and the United Kingdom — on most measures of performance, including quality of care and access to it.


We lead the developed world in un-insurance. Germans get to specialists faster, and our access score is even worse if you decide to count the poor and uninsured. “The United States ranks dead last on almost all measures of equity because we have the greatest disparity in the quality of care given to richer and poorer citizens.” And so it goes, through measures of public health, health care quality and even patient satisfaction.

I started to think about what this means, this gap between the real and the imagined, and fortunately, when I was not reading the Times, I was going back and forth between Dan Kahan and Martha Nussbaum on shaming sanctions, a debate that actually sheds some light on the question of our fantasy politics league. Kahan’s recent partial recantation of shaming sanctions is based on his theories of the social meaning of legislation. I think he’d say that, after all, our health policy will never be primarily about good health statistics and a fair and efficient system; rather, it will be a symbolic crusade, or set of nested crusades, that will turn on questions like the extent to which reform proposals can somehow affirm our national greatness, and can have enough pliability of meaning to unite free-marketeers and social-safety-netters. It may not be pretty, I can imagine him saying, but that’s just how it is.

Nussbaum, by contrast, takes the Enlightenment line. In her Hiding from Humanity, she distinguishes between two kinds of shame. “Primitive shame” is “a shame closely connected to an infantile demand for omnipotence and the unwillingness to accept neediness — is, like disgust, a way of hiding from our humanity that is both irrational in the normative sense, embodying a wish to be a type of creature one is not, and unreliable in the practical sense, frequently bound up with narcissism and an unwillingness to recognize the rights and needs of others.” This shame does no good for the individual or the society; it is just another defeat in the struggle for reason. But there is also a healthy, mature and socially productive shame. Nussbaum tells about her reaction to Nickel and Dimed, Barbara Ehrenreich’s account of her effort to get by in the unskilled labor market. Nussbaum is ashamed at the gap between our social values of equality and opportunity and the real conditions of life for the poor in our country, and is spurred to action. As a public health person, I was schooled in stories of epidemiological data and social statistics instigating reform. Just think of the great sanitary reports of Chadwick or Shattuck, or The Jungle. This is how I thought things were supposed to work in a liberal society.

I want to believe that I still inhabit a society that can feel shame when facts and norms collide, but I doubt I am the only empirical legal scholar who wonders what it takes to get people mad. Several years ago, I and my colleagues published an exhaustive study of EEOC processing of employment discrimination complaints. We focused on the ADA, but showed that the EEOC was basically tossing most cases coming in for “investigation” into the circular file. In all, we showed that the administrative system for dealing with American workers’ claims of discrimination was broken. The media were barely interested and I’m not aware of any Congressional or executive action, much less social outrage. Later we added plausible evidence that courts and administrative agencies enforcing the ADA actually discriminate against people with psychiatric disabilities. And we are hardly alone. I take considerable comfort in the fact that the elegant Harvard Malpractice Study and its replications have had no significant impact on tort reform, in spite of demonstrating that our malpractice system doesn’t do anything it is supposed to. Or consider Melissa Jacoby and Elizabeth Warren’s work on the link between high health care costs and personal bankruptcy, which seems to have given no pause whatsoever to the proponents of the punitive bankruptcy “reform” movement.

So I’m pursuing a two-prong strategy. I’ll keep doing research on the gap between what the law promises and what it delivers, in the hope that shame is more powerful than the spin of the moment or the disassociative shrug of “Whatever.” But, just in case, I’m developing some false memories of how much better things got at the EEOC after Congress instituted sweeping administrative and budgetary reforms.

Don’t remember your work having a big impact? Hey, call me.

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4 Responses

  1. Patrick S. O'Donnell says:

    Yes, it’s hard to imagine a book like Michael Harrington’s The Other America: Poverty in the United States (1962) having a comparable impact today.

    Richard Flacks, one of the founders of the Students for a Democratic Society (SDS: see Kirkpatrick Sale’s seminal study and James Miller’s Democracy Is in the Streets, 1994, which has a nice discussion of ‘The Port Huron Statement’ while also focusing on key individuals of the New Left like Dick and his wife Mickey) addressed some of the difficulties raised here in his Making History: The Radical Tradition in American Life (1988) [‘radical’ here generous enough to include that which often falls under the heading of ‘Liberal,’ particularly today]:

    “How can the making of history be democratized when Americans are committed to the making and living of their private lives? From the perspective of the left that commitment represents a profound resistance to political engagement and social responsibility. There are two principal ways that leftists have sought to deal with that resistance. On the one hand, they have tended to stand outside the mainstream as prophets and critics, bemoaning the emptiness of daily life, attacking the ‘false consciousness,’ the selfishness, the conformism, the bigotry of Americans, calling on them to wake up and change their lives. Alternating with this prophetic, moralistic stance, leftists have often adopted an opposing strategy deemed more practical. Pragmatic organizers suggest working with people ‘where they are,’ finding the issues that actually bother them, organizing them around ‘bread-and-butter’ problems, rather than addressing them in moral terms. Neither of these stances is particularly satisfactory. The prophetic posture tends to be self-isolating and elitist; the pragmatic approach often appears opportunistic (gives the appearance that the organizers are ‘using’ issues to recruit people for ulterior purposes) or else exceedingly reformist (the demands made are so limited and particular that no development of consciousness or political commitment results from the campaign).”

    Flack proceeds to elaborate suggestions for making everyday life a terrain for history making.

    Progessive social change seems to require a fortuitous and often unexpected or spontaneous confluence of propitious conditions that are set in motion by one or more catalytic sparks. However, this does not mean that we can’t work to plant the seeds of such conditions, to struggle to create them. For example, the civil rights movement of the 1960s was in large measure the germination of seeds planted a decade or more earlier: See, for instance, Charles M. Payne’s I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (1995).

    Persevere: often our lives aren’t long enough for us to see the fruits of our labors, however righteous they may be (hence the Beatitudes in the Christian tradition)….

  2. Patrick S. O'Donnell says:

    Erratum: Flacks

    I might had added the “karma yoga” tradition as exemplified by Gandhi likewise gives us reasons for persevering:

    Karma yoga or path of ‘works’ or selfless social service, is one of the three yogas to spiritual fulfillment or moksa. It is the path to God through selfless action and service to others. Devotion to God through such works means one must learn non-attachment and renunciation regarding the fruits of one’s actions, effectively surrendering oneself to God. Cf. Bhagavad Gītā III.3: ‘Men may pursue either of the two paths I have taught in former times, that of yoga through contemplation of the Truth, as expounded by the sāmkhya, and that of yoga through devotion to disinterested action, as exemplified by the yogins.’ In Gītā II.7 we learn that karma-yoga involves the use of our mind to control the senses and acting without becoming attached to sense-objects. Generally speaking, a karma yogin acts in a dispassionate manner, without attachment to the ‘fruits’ of action, meaning those consequences of actions in and for the agent: for instance, pleasure or pain, success or failure. Thus the karma yogin performs dharma without desire for personal pleasure, success, reward and the like, proper motives being on the order of something like Mohandas K. Gandhi’s satyāgraha (nonviolent resistance; relentless search for truth) or sarvodaya (social good, public interest; universal welfare) or, in a different cultural context, the impersonal motives that inspire members of The Catholic Worker Movement founded by Peter Maurin and Dorothy Day. Indeed, Gandhi is best thought of (and thought of himself as) as karma-yogi.

    Even if one does not accept the religious presuppositions of karma yoga, I think it can teach all of us something about the value and virtues of non-attachment and renunciation regarding the fruits of one’s actions, meaning those consequences of actions in and for the agent: for instance, pleasure or pain, success or failure.

  3. Fraud Guy says:

    To be agressively cynical; I have read several authors who believe that the reason that concepts such as karma and the ideals of the Beatitudes have been as well publicised and supported as they have has been due to their usefulness to established hierarchies in keeping those below them in place by giving them hope for future reward for current abnegation. Too often those in power who espouses such concepts do nothing to follow them in their private (and public service) lives.