Wednesday, June 26, 2013

this is the way prejudice ends (not with a bang but a whisper)

When our son Chris was born, Meg and I went into full nanny-search mode. We were both still practicing law. We needed help. We wanted nothing less than Mary Poppins. We lived in LA, so I don’t have to tell you that what we got was a succession of nannies who acted the part but reverted to narcissism as soon as the director left the set. Among others, there was the proper English nanny who took Chris to her apartment for trysts with her boyfriend and let him cry in his crib while she soaked in our jacuzzi tub. I learned all this from Sonia Aguilar.

Sonia and Chris (with his shoes)
Sonia was our housekeeper. She came in a few days a week and cleaned up and occasionally made dinner for us and left it in the oven. She is from El Salvador, and when we met, she didn’t speak English well (or thought she didn’t), which, coupled with her natural modesty, caused us to be slow to realize that she didn’t always have time to finish her cleaning because she was taking care of Chris while the nanny was doing god knows what. Eventually we figured it out and I asked my secretary, who spoke Spanish, to ask Sonia to be our nanny. Never mind the language barrier, she clearly loved our son. I learned to say “¿Dónde están tus zapatos,” which seemed to be the question she asked Chris the most.
The parents of my daughter-in-law Yvonne were born in Korea. She and Cord met at Penn and have two beautiful children, all the more beautiful because of their diverse parentage. There is something in my children that attracts them to Asians. Even when we lived in Nashville, Chris’s best friend was of Korean ancestry. After we got to Palo Alto, most of his friends, and a big chunk of Nick’s, were Asian: Indian, Chinese, Korean. This must explain why I like Jackie Chan movies.
Our next-door neighbor here was a man named Art Fong. Art was the number six engineer at Hewlett Packard. He and Bill Hewlett and Dave Packard all worked in one room then. When one of them had an engineering question, they called it out to the others. Art told me that in 1945, when he built his house, our street was the “Chinese neighborhood”--meaning Chinese could live there, as opposed to “Old Palo Alto,” where they were not welcome. Art used to come to parties at our house and hold forth on his engineering feats for Nick and his robotics pal Jon Xia. He kept them transfixed. The exclusion he had to deal with as a young man must have seemed to them as if it were from another era, not something that would have to be faced by a man whose patents at one time accounted for twenty-seven percent of HP’s revenue.
We had known some friends in Santa Barbara for five or six years before someone told me they were gay. Even though I have seen them with their partners now, they still don’t talk about it. They come from a time when that was the best approach. Nick has many gay friends from high school and college. No big deal. Meg and I see our writer friends who are gay all the time. The novelty is so long past that now, when I see the anger on the faces in the news of those who believe that homosexuality is a moral abomination, I wonder if I’m not looking back in time.

I think I am. Most of us can’t be around people and not develop empathy for them. Blacks, Hispanics, gays. It’s just a matter of exposure. It’s like getting inoculated against a disease. You have to be exposed to the virus. Maybe you feel a little queasy at first. But when you get over the initial symptoms, you begin to feel fine again. And best of all, after that you don’t get sick again.

Monday, June 24, 2013


The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread.
-- Anatole France (1844-1924)
The Supreme Court is struggling with Equal Protection again. One faction wants what is being called “formal”--I might say “literal”--equal protection of the laws, which means what it sounds like: no group can be singled out for better or worse treatment than another: black or white, straight or gay. The other faction urges a “dynamic” view of equality, under which in compelling circumstances a disadvantaged group can be given a leg up, even if that means discriminating against those who are not disadvantaged.

Adam Liptak reported in The New York Times on Sunday that the “formal equality” approach would likely produce good news for those seeking marriage equality and bad news for supporters of race-based affirmative action. As to affirmative action, we will have to wait for at least another year to see if that’s true, because the Court ducked today, sending the case before it back to the lower court to apply the review standard mandated by the high court ten years ago. This was a win--or at least not a loss--for fans of affirmative action.
For now, promoting student-body diversity continues to be a Constitutionally acceptable goal for a university. Important though this may be, it is a distant moral cousin to the lofty objective that gave birth to affirmative action generations ago: helping blacks recover from the privations of slavery and Jim Crow. No one even argues that notion to the Court anymore. As David Strauss, a University of Chicago law professor put it, blacks are now viewed by many as “just another interest group.” As a society we seem to be worn out with trying to atone for slavery.
Some believe that if schools want to help those in need they should focus on a more objective indicator of disadvantage: low income. Economic affirmative action, if you will, would indeed lift up many. Some would be black, some would be white. What troubles me is that I fear that many opponents of affirmative action don’t want it on any basis. They view it as just another government handout to people who are undeserving. In the case of college admissions, the kids are undeserving because they don’t have as good an academic record as those whose slots they are taking. If you apply that same logic to government assistance programs, the poor don’t deserve welfare because they are poor.
We are a proud and independent people. We like to stand on our own two feet. We think everyone should. I think it’s just hard for us to realize that not everyone can, that no matter how great their will, no matter how sterling their character, some people just don’t have the opportunity to achieve what others do. We are likely to help a stranger change a tire. We have empathy for his predicament. Abstract empathy is something of an oxymoron. Think of the politicians who have changed their minds on gay rights because a child has come out. Suddenly they understood. Suddenly they felt empathy. Not too many politicians have kids who are destitute, though.
I believe in self-reliance, but I don’t like to see us turn our backs on the poor. I don’t like to see Mitch McConnell oppose tax hikes to fund President Obama’s plan to provide high-quality preschool for poor children. I don’t like to see Sam Brownback, the governor of Kansas, work to scrap the state income tax and replace it with a sales tax, which by its nature hits the poor harder than the rich. And I really don’t like to see the governors of twenty five states, mostly Republican, refuse to expand Medicaid in the their states under the Affordable Care Act even though doing so would both save them money and provide health care for their poorest citizens.
Our hardened--or hard-hearted--self-styled fiscal conservatives have lost empathy. Cloistered in marble corridors and offices, they can no longer imagine the desperation and hopelessness of endemic poverty. I suppose it doesn’t help for me to use demeaning labels, any more than Mitt Romney’s “Entitled 47%” helped his cause. In this case, motives don’t matter. Without our help, the poor will remain poor. Their kids will be poor. The cycle will continue, and over the long term we will all bear the burden, moral and economic, of uneducated and unproductive citizens.

Friday, June 21, 2013


For many years I was a general contractor. Technically I was a corporate finance lawyer, but really I had more in common with the guy who does your home remodel than I did with Thurgood Marshall or David Boies. I met with businessmen who wanted to construct pleasure domes of commerce and convinced them that our law firm should be their builder, or, if that’s too grand a description of our role, at least their electrical contractor. I sent in a crew of young lawyers to do the work, and if the client got what they wanted--the legal equivalent of a seaside estate--in their moment of euphoria and gratitude I convinced them that our exorbitant fee was worth it.

There are hustlers everywhere. Everyone is suspicious of lawyers, but what about doctors? Not long ago most colonoscopies and other minor procedures were performed in doctors’ offices. Now many such procedures are performed in surgery centers at twice the cost to the patient. Surgery centers charge facilities fees that reap huge profits for their investors, which are often the doctors themselves. These doctors are hustling, leveraging their medical expertise and position as medical gatekeepers.
Hustlers are the heartbeat of capitalism. There would be no economic competition without them. Are they worth it? Is capitalism worth it? I think we’ve answered that last question with a resounding “yes” (see Berlin Wall, fall), so we’re stuck with, or depending on your perspective, blessed by, hustlers.
The guys selling snake oil from the back of a horse-drawn wagon were pulling the wool over our eyes. We’re smarter now. Mostly we know snake oil for what it is now. Still we get bamboozled. Bernie Madoff ran a huge con for decade. Greed still gets in the way of skepticism.
The key to keeping hustlers honest, and to keeping the hustler’s premium to a reasonable commission for organizing work, is what it has always been: information. The more we know about what is being done and who can do it, the better our choices will be. Unlike government regulation, information enhances competition rather than stifling it. Information lets other hustlers see where there are diseconomies in the marketplace that can be taken take advantage of. The result is usually good for the consumer: better products or services at lower prices.
Amazon is democratizing commerce. Legalforce wants to do the same for much common legal work. Wevorce for divorce. Angie’s List and Yelp are arming consumers with expert reviews of service providers of all kinds. Hustlers are now making a business out reengineering the delivery of heretofore exotic services, like trademark filings and divorces, and of educating consumers about which plumber or electrician to choose.
Then there are Google and Facebook. Can you think of two companies that have had a greater impact on our ability to get and propagate information? With Google you can find out anything. With Facebook you can tell the world about it. You can start revolutions. And yet those amazing services are free. Really, if you step back and think about it, it’s mind-boggling. Something so valuable--unlimited information and communication--for free.
In exchange for the gifts of the Internet, we are giving up some privacy. There may come a time when the cost of that will be considered too high. For now, though, from my point of view we seem to have entered a kind of capitalist paradise in which the hustlers may save us from the hustlers.

Wednesday, June 19, 2013

General Dad (Ret.)

It starts innocently, virtuously. “Don’t go near the street, sweetie.” Then, later, from where you watch beneath a big magnolia tree, “Don’t put your weight on the small branches. They won’t hold you.” I suppose from the way that one grinned down at me when I said that--Sorry, old boy, I don’t think you can reach me up here--I should have known my days of being in charge were numbered.

Still, I tried to keep up. I was protector-in-chief. It was a full time job. I wasn’t comfortable outsourcing it, especially to my charges. As they got older and more aggressively resisted my sage counsel, I became more insistent. One of Grant’s friends called me “The General.” I took it as a compliment.
At some point, I may have lost sight of the strategic objective and focused too obsessively on tactical victories. You can’t keep children safe, after all, if they don’t do what you tell them to (or do what you tell them not to). Obedience becomes the key. Generals must be obeyed. Everyone knows that.
Now they are all off at foreign postings: jobs, marriages, a last year in college. I don’t get to tell them what to do. When I try, they stop calling. The funny thing is—and this surprises me about myself—I’ve stopped (almost) wanting to. Maybe this is because I am so proud of the wisdom they have gained, of the smart choices I see them making. There is some of that, certainly. But something more is at play here, something I don’t quite understand.
My uncle used to tell the story about coming home drunk one night and, as he slipped in the front door, being greeted by his father’s fist. He said the next thing he knew he was looking up from floor at his father’s bathrobe fluttering down the hall. Later, when I was bumping along in my early twenties, I used to try to get advice from that same man, my grandfather. I could hardly pry it out of him. He was one of the smartest men I knew. He would have had great advice. He gave me twenty bucks for no reason now and then. I guess he figured that was what he had that I might actually find useful.
Maybe my grandfather felt guilty about decking his son. Maybe he was just tired of young men not listening to him. Maybe that’s what’s happened to me. I do feel guilty about all the too-harsh things I ever did to my children. It does get frustrating when they do something I think will be bad for them. But I don’t push them much anymore. It’s a nice change, one that is good for me and—although it's hard to believe that anyone could be better off without my advice—them.
My children are my friends now. I don’t tell my friends what to do. I listen to them. If they ask what I think, I tell them, but cautiously, guardedly. It’s almost like I’ve become afraid to influence them. They have to live with their choices, so they have to make them. What might be good for me, might not be best for them.
I wonder what that boyhood friend of Grant’s would think of me now. I imagine he would shake his head at my new-found reticence and pat me on the head they way one does an old dog with no teeth. He and Grant might sit out on the porch talking about old times while I nap in the sun, whimpering and kicking my legs as I dream of children I have chased.