Month: October 2010

Ignorance Loses a Round

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The other day New York Republicant and Tea Party candidate for governor Carl Paladino criticized opponent Andrew Cuomo’s appearance with his children in a gay-rights parade, stating children should not be “brainwashed into thinking that homosexuality is an equally valid and successful option.”   They should, instead, be brainwashed into thinking the earth was created 6,000 years ago and Adam and Eve walked with the dinosaurs.  Paladino’s remarks came on the heels of the story of  the horrific assault and torture of three gay men in the Bronx.  There is progress in some parts of the world, though–today a federal court judge ordered the military to stop enforcing it’s Don’t Ask, Don’t Tell policy,

saying the policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruiting when the country is at war and requiring the discharge of service members with critical skills and training.

“Those Who Cannot Remember the Past . . . “

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The Troubled Asset Relief Program — TARP — expired yesterday, having cost nowhere close to its original  sticker price of $700 billion.  (See, e.g., TARP Bailout to Cost Less Than Once Anticipated)  $700 billion was a guesstimate born of political expedience, more than the $500 billion Treasury officials targeted in their initial bailout plans but less than $1 trillion, which Treasury officials feared might be required to slow the economy’s September 2008 death spiral.  As the NYTimes reports in the linked article, taxpayers may even make money of the deal.  Maybe.

Remember September 2008?  25 months ago?  The government took over Fannie Mae and Freddie Mac, Lehman Brothers filed for bankruptcy, AIG and Merrill Lynch were going down, Morgan Stanley and Goldman feared they were days away from collapse?  Wall Street had gone off the rails and crashed into the world economy like the train in The Fugitive?  No?  Apparently you are not alone:

Fewer than three in 10 Americans say they believe [TARP] was necessary “to prevent the financial industry from failing and drastically hurting the U.S. economy,” according to a poll in July for Bloomberg News.  (NYTimes)

I understand the rage against Wall Street’s excesses, but denying that the U.S. and world economy were hanging by a thread in fall 2008 ignores the facts.  Which brings to mind Derek Bok’s quote:  If you think education is expensive, try ignorance. The gleeful embrace of ignorance is the political Special of the Season; look no farther than Sarah Palin and the Tea Party’s enthusiastic embrace of  Christine O’Donnell, the Republican nominee for Governor of Delaware.  Rage against Wall Street, rage against TARP, rage against Obama’s stimulus package brought us the Tea Party, a “populist” movement financed by billionaires.  If you deny the existence of evolution, it’s easy to deny the plain truth about the need for TARP.

Proof versus Right

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Yesterday’s class on contract law prompted a number of students to ask variations on the same question:  why does the law allow oral contracts?  Wouldn’t one of the parties just lie in court about the contract’s terms?  You can restate the question more broadly to ask why do courts allow witness testimony?  Whether it’s two parties to an oral contract offering competing testimony about the contract’s existence or terms, or two divorced spouses in a child custody proceeding offering competing testimony about their relationship to the child, or a supervisor and employee offering competing testimony in a sexual-harassment suit, the issue is the same.  A short answer is that our law has always allowed oral contracts unless the contract’s subject matter is governed by the Statute of Frauds, in which case the contract must be evidenced by a writing.  If the terms are disputed then the law’s adversarial process deals with it as it does with any competing oral testimony.  Attorneys subject the witness to direct and cross-examination and the jury or judge evaluate the witnesses’s credibility with the tools we use every day to decide whether to someone is telling the truth:  body language, tone of voice, eye movement, nervous tics, uneasy laughter, etc.

This question involves what I call the proof versus right problem:  do not confuse whether a person can prove her case at trial with whether she suffered a legal wrong and has a cause of action.  In Introduction to Law I focus on the substantive issue–whether a person’s legal rights have been violated–not the proof issue–how difficult will it be to prove a fact at trial.  Do people lie in court?  Yes.  Do people get away with lying in court?  Yes, but most people don’t lie particularly well.