Five teens from my hometown were recently killed in a car accident.  They went to my old high school and were known to my family.  They were buried this week.  Police have confirmed that at least some of the boys were not wearing seatbelts, and speed "was a factor" in the crash (the boys collided with another vehicle on highway 26 near Meaford, while heading back from a canceled hockey game in bad weather).

As in all accidental death - particularly of such young people - saying that it "sucks" is an understatement.  In a town of a few thousand residents, the loss is hard not to notice.  At the same time the brief media frenzy I observed from here in Toronto hasn't, in my opinion, added much meaning to the story.  For a few days, the national newspapers and television news turned the spotlight on our little hometowns of Meaford and Thornbury.  Some could only repeat the same basic facts about the accident, and I suppose that's fine, if a wider audience wants to know.

But others - predictably, the Toronto Sun, ran the following headline on its Wednesday edition:

'The cream of the crop'

More than 1,000 mourners turn out to say goodbye to 'exceptional' teen killed in devastating crash

(full article: http://torontosun.com/News/Canada/2007/01/24/34380...)

This headline was a quotation from the grandmother of one of the victims.  Now I'm not saying that it would be strange for grandparents to think the world of their grandson.  Neither would it be odd for friends and family to make bold claims about the greatness of the recently deceased.  Even if these claims went so far as to challenge the worth of others still living... well, in their anguish and grief, people say a lot.

But when writer Brett Clarkson decided to print these particular comments and his newspaper decided to run with this particular headline, they proved once again why their publication is seen in many circles as a sensationalist tabloid.  The dead grandson mentioned was popular, played on the school hockey team, and a crapload of people turned out for his funeral.  That's what you get from the story.  (Oh, the public school principal adds in something at the end about leadership and academic excellence).  So which of these things are we, the objective reader, being told to use in our assessment of raw human worth?

When you're 16 and living, popularity surely feels like that which separates the "cream" from the rest of the crop.  For some teens, this can be a great source of satisfaction; for others, it is a great wall of pain and hopelessness.  Isn't this common knowledge?  Isn't the paradigmatic teenage suicide preceded by the question, if I died tomorrow, would anybody come to my funeral?  Is that a superficial value judgement ever worth encouraging?  Perhaps an essential facet of maturity is the full recognition of one's self worth and human dignity, independent of and equal to that of all others.

And when you mature, you learn to apply phrases like "cream of the crop" to narrow, well-defined areas of competition: academics, athletics, business, art, whatever.  But you try to avoid using such terms to suggest that people themselves are of entirely inferior or superior quality; especially with respect to teens (who are far from completing their self-definition) using the icons of their own pecking order (popularity, athleticism, etc.).

The Sun lacks this maturity, so instead they turned a grandmother's innocent favouritism into some pretty dumb reporting.

All the social conservatives are in a flap about the recent Ontario Court of Appeal decision handed down last week granting full parental rights over a child to the biological father, mother and her lesbian partner (A.A. v. B.B., 2007 - http://www.ontariocourts.on.ca/decisions/2007/january/2007ONCA0002.htm).  A representative of the Catholic Civil Rights League wrote a particularly sad retort for today's Toronto Star (http://www.thestar.com/opinion/article/169037) and so I decided to submit my first letter to the editor of a national newspaper.  Here it is in the original form, whether they print it or not.

Re: The three-parent family; issue needs more discussion (Jan. 9, 2007)

In Mr. Kokoski's opinion piece, he laments that the Ontario Court of Appeal is "making a mockery of morality and those traditional values upon which our nation was founded."  These founding values included the belief that First Nations peoples were somehow less than human and the idea that women were not smart enough to vote.  The presence of a social norm at confederation does not virtue create.

Rather than repeated appeals to ignorance and fear, Kokoski should explain just how he thinks same-sex parents or three-parent families will harm children (or perhaps he refrains to avoid hate speech?).  In the abstract, he calculates that an increase in the number of legal parents will cause a decrease in each parent's share of responsibility over the child.  By this logic, would he ban dual-parent families and only allow single parents?  After all, that would ensure that each parent feels 100% of the responsibility for each child!  Such simple math and blind assumptions are a thin veneer over Mr. Kokoski's underlying demand that all families fit his traditional mould.  Therefore, it seems ironic that he repeatedly calls the Court's decision "social engineering," a term better applied to his own views.

Benjamin Ries
Student
University of Toronto, Faculty of Law

This is the story of how a well-known watering hole in my town breached a verbal employment contract with me just before I graudated from high school - and the Employment Standards claim I filed against them.

Back in my little hometown of Thornbury, Ontario, I used to do kitchen work in various restaurants.  My friend Dave got me his old job washing dishes and helping with catering at the Trillium (now closed down), and later I joined him as part of the crew at the Harbour Cafe, under the direction of a hilarious chef/manager named Andrew.  The harbour cafe was always closed over the winter, but many of the staff had a generally standing invitation to return to our old jobs each spring.  After working one season in the kitchen for student minimum wage, I took a weekend job during my OAC year as a dispensary assistant at Thornbury Pharmacy, for $9/hr.  That was a pretty sweet job, but could not offer me anything more than part-time for the next summer.

The next spring (toward the end of our OAC year), Dave and I heard some bad news from Andrew: his financial backer, the owner of the Harbour Cafe, had unfortunately lost too much money on the stock market, and could not afford to open the restaurant for the 2001 season.  We were all screwed out of a summer job, and it was almost April.  I was desperate to get a job and save up for university tuition.  That's why Dave and I were excited to hear that a new restaurant was openning soon in town - Piper's Scottish Tavern.  The place was still under construction when we were invited to come down for an interview.

It seemed just our luck that the owner was behind schedule and had only just hired a head "chef"; both men took our references from other established chefs in town and were enthusiastic to be starting off with two experienced guys on staff.  They told us we could have the job.  The chef went in and consulted with the owner, and came back out.  I asked what kind of wage and hours we would have.  "You'll be making $8 or $9 an hour," he said, and told us we could have full time hours this summer, as long as we were willing to start when the place openned in a couple of weeks.

Other guys were hired - mostly dropouts.  Once the kitchen equipment was installed, we spent a weekend cleaning everything up.  The grand openning that spring was absolutely packed, and Dave and I worked two 50 hour weeks while still in school.  We'd get off the bus and basically work until 4 a.m. each night.  It sucked, but we were desperate to secure our places in the pecking order to ensure full time hours that summer; the rest of the staff weren't students, so they set the bar pretty high in terms of willingness to take shifts.

Meanwhile I had given notice and quit my job at the pharmacy, thinking that although the Piper's kitchen was hot, greasy and boring, I'd ultimately make more money there in the long run.  Imagine my surprise when I openned my first paycheck and discovered that good old student minimum wage of $6.25 staring me in the face.  Dave and I were pissed - we'd just worked through two crazy weeks with about 3 hours of sleep per night, and were getting at least $1.75 per hour less than what we'd been promised.  We went to the chef immediately, who went to the owner, who came out and told us it was a bookkeeping error.  Not to worry, he told us - they would fix it on the next paystub and pay us the difference.

Another two weeks, another 100-odd hours each... and same thing, $6.25 per hour.  Dave and I were pissed, and demanded to speak to the owner.  He dragged himself away from the bar and came out back of the restaurant, and told us to stop complaining.  He said that costs were higher than expected, and everybody in the kitchen would be getting $6.25 per hour until we "improved" and became more "efficient."  I protested that we'd been promised higher, and he just laughed and said that the chef must have been confused.  We couldn't believe that two weeks before, he had admitted that the wage rate was an error and had promised us - to our faces - that it would be fixed.

Dave left immediately, without notice.  See, our old friend Andrew had got a job running the kitchen at another local place called Carriages (now called Fitzgeralds, just down the road from Piper's).  He was slowly hiring back all his old staff from the Harbour Cafe, but business was slower and he could only take one of us.  I continued to work at Piper's, taking fewer shifts, and researching my options.  A few weeks later, Andrew called me with a job offer.  He could only pay me minimum wage, but that was fine with me.  I compiled the proper forms for an Employment Standards claim aginst Piper's, but first gave them my notice along with a formal letter explaining my position with respect to the Employment Standard's Act and the outstanding wages they owed me.

After quitting Piper's and receiving no reply to my letter, I went ahead and filed an Employment Standards claim.  These things can take a long time to process, but they immediately cause some serious-looking paperwork to go to the employer, as well as (in some cases, like a new business) a sort of audit.  Needless to say I was called soon after by Piper's owner, and asked to come down and meet with him.  Once there, I was escorted to the pub's half-finished basement, where two burly guys stood behind my chair while the boss glared at me.  He told me that I was just a kid working in a kitchen, and had no right to demand $8/hr.  I told him that a promise was a promise.  He said "fine... well if you want to come after me, I can come after you.  I have your address.  And I've talked to my lawyer and he says I can sue you for every break you ever took."  I told him that I'd taken no more than the breaks I was legally entitled too, and far less than my chain-smoking collegues in the kitchen.  I went back up stairs to leave, and on the way out, was shoved up against a wall by the floor manager, who told me to "watch my back."  Evidently, the whole "worker's rights" thing was a problem for my former employers.

How it ended

I went on to begin a co-op degree at the University of Waterloo that fall, and in the middle of my first work term the following year, I finally got a phone call from an Employment Standards investigator who had gotten around to processing my claim.  She had investigated the matter, and had received the following explanation from Piper's: maybe the chef had said those words when offering us our jobs.  But if he did, by the phrase "you'll be making" he had actually meant the amount I eventually could be making (you know, if I stuck around and eventually got a raise).  But Piper's refused to admit that they had ever intended to pay me a starting wage above $6.25, and claimed that the owner's later admission of a "bookkeeping error" was said in a moment of confusion.

The investigator told me that she was more persuaded my version of the facts, but was unable to enforce a contract since it was 'my word against theirs'.  Instead she had suggested that I take their offer to settle for a payment of half the back-pay I was claiming, on the condition that Piper's not admit any fault in the matter.  I decided to take the money.  Had I more knowledge and time, I would have refused settlement and taken them to Small Claims Court: their damaging admissions and odd explanation of the facts would likely allow my statements to be accepted on the balance of probabilities.  But nevertheless, I was happy that without much effort - and after all this time - I was able to get just a little bit of justice out of those bastards.

Meanwhile, I have siblings and old friends who have continued to frequent this pub ever since, despite Piper's unfair treatment of workers (I wasn't the only one they promised a higher wage to), questionable integrity, and personal threats toward me.  I haven't outright demanded a boycott of the place; rather, I guess I always expected that loyalty and solidarity would naturally come from those who I loved.  I've told this story before, and it is somehow viewed as my own personal problem - not a greater injustice, nor a reason for anyone to just drink somewhere else.

It is with this kind of experience that Marxists, perhaps rightly, look suspiciously upon traditional/religious systems of morality.  When I was in the quintessential labour conflict - vulnerable, young worker vs. powerful, manipulative owner - nobody came to my side.  It was seen as my own problem.  Sure, the whole church will get together and pray for "travelling mercies" when old couples load up the minivan for Florida every year.  That's easy.  But the owner of Piper's had little to fear while short-changing a local employee.

It isn't the gross indecency of underpaying a kid (who is just trying to save up and pay his way through university) that will cause collective action or justice against the capitalist.  It is the common interests of workers all at risk of getting similarily screwed, who decide to watch each other's backs.  It won't necessarily be my family or religious community that protects me in my time of greatest peril - it will be those facing the same direct threat, which is plainly greed.  And those who do not fear the greed of owners are likely members of the same class, able to own and exploit just the same.

Sadly, many workers have been compromised, confused, split up, and pitted against each other.  The prospect of one day being the manager makes it easy to let small injustices slide.  I'm told that I can be a real stickler about these things, and that I seem to have an overly-detailed memory of experiences that perhaps shouldn't matter (i.e. I'm holding a grudge).  But ultimately, I remember this stuff so I can feel it and see life for what life really is.  The little injustices do add up.  They convict us as liars when we pretend that the free market, casual love and white rubber bracelets will make everything okay.

Well, I guess everything has come full circle.  I'm about to rant big-time about certain Christian organizations and movements to which I dedicated several years of my life.  I may have changed since then, but the anger still leaves me sputtering.  So you might want to skip this one.

For those who were lucky enough not to meet me until AFTER my evangelical days, I'll try to explain: I was raised as a Christian, attending Wesleyan and Baptist churches that were more or less fundamentalist and literalist.  Thank God (haha) for my parents, who managed to embed a feminist streak in my consciousness, as well as a left-leaning political disposition (which this blog has addressed more often).

At the end of high school, though, I was still pretty much stuck believing that every word of the bible was absolutely true, and that you should always capitalize the words Bible and God and any pronouns referring to Him, and that you should believe this stuff or go to hell, and if you did believe you should make it your life's mission to make others believe the same thing.  So in first-year university, I got involved in the campus chapter of Inter-Varsity Christian Fellowship (IVCF), called Waterloo Christian Fellowship (WCF).  I quickly rose through the ranks in WCF and became president by 2nd year.

In the meantime, I changed a lot.  I started thinking that maybe the bible was absolutely true in a different way than before (like a flexible, storytale hidden-code way).  Or maybe some parts of it were more of a mystery.  Or maybe we shouldn't try to convert people - but instead just be nice to them and get to know them, and then they'd be more likely to convert on their own.  All of this was collectively called "post-modern" Christianity, and I picked most of it up during leadership development as president of WCF.  The group - which had started out as a place where I could hang out and flirt with older, cooler evangelicals whilst judging the condemned on campus - became more of a place to nurture these changes in faith.  The more I heard interesting new ideas from speakers at the group and stuff, the more I changed.  The more I changed, the more I used my position of leadership to influence the rest of the group in the same direction.  And so it went.

But then I met and lived with my good friend Jake.  Jake was an M.Div. student at Conrad Grebel finishing up his thesis.  He'd grown up Pentecostal, but like me, had begun to question and change quite a bit.  Unlike me, his approach was far more freestanding, rational, and serious.  He read real theologians and academics (as part of his degree work), while I had just been guided by amateur IVCF staff workers and populist books by generally unqualified "progressive" pastors.  Jake was the one who got me thinking that maybe all this "post-modern" stuff was simply a new kind of fundamentalism, more of a marketing ploy by the church than a real alternative theology.

Anyway, Jake's thesis was awesome.  He decided to take on the movement/enterprise which he collectively called "the purpose-driven church" or the "church growth movement," largely influenced by Rick Warren (pastor of Saddleback church) and Bill Hybels (pastor at Willow Creek church).  The two churches I just referred to are among the largest megachurches in America.  Both pastors were, at the time, doing quite well selling their leadership programs and study books to evangelical churches all over the world.  Rick Warren's book, "The Purpose Driven Life" was and remains a top seller, and is sold alongside tons of presentation materials that churches can order so that they may run the "40 Days of Purpose" program.  This program gets the entire church to split into small groups, with pre-determined sermon topics (and powerpoint fonts) on Sundays, and testimonials say that it will cause your church to grow.  So everybody was doing it.

I won't go into the details, but I had smelled something fishy with this whole thing before I met Jake - but as usual, he had really done his homework and was in the process of writing a grand-scale analysis of how corrupt and feckless the whole movement was at its core.  As he was completing the thesis, he and I became embroiled in The Embassy / Fed Hall controversy of 2004 at UW.  The Embassy was a Pentecostal church that had formed a student club on campus to act as a front for the church, gaining student-only access to preferential bookings of on-campus facilities (including Federation Hall, the student-owned pub where the church met weekly).  When the Federation of Students discovered that the student club was nothing but a front for an outside-led church, they revoked club status, which set off a political storm on campus as the church's followers claimed religious persecution.  Jake and I were among the only Christians on campus to publicly call for the Embassy to come clean and leave peacefully.  We were called the tools of Satan for doing so.  The scandal continued into 2005 when the church built a coalition ticket with certain conservative catholics and pro-lifers (hey, same difference at UW) on campus and attempted to get them elected to the Feds executive.  Again, Jake and I were among the only Christians to publicly suggest that religion was being used as a ploy to gain evangelical votes.  The Embassy candidate for president lost narrowly.

Now, at the time, this wasn't easy stuff to do while assuming repeated leadership positions in WCF.  Sure we were liberalizing, but many in the group attended local megachurches like Community Fellowship or Waterloo Mennonite Brethren, both of which were sending their leaders to Willow Creek seminars and conducting 40 Days of Purpose programs.  None of these students were too keen on my digs at the high-growth business model their churches had adopted (what kind of church adopts a business model at all?).  And still more of these students attended Embassy on Monday nights, and couldn't understand why I'd taken such a public stand against a church that was dynamic, growing, and therefore clearly doing God's work.

But I pressed on.  I told myself that WCF was different because it was truly student-led.  Turns out that it wasn't.  In a more recent struggle over the group's identity and the place of a burgeoning staff that essentially created their own positions and demanded to be paid, I felt more or less forced out.  It turns out that IVCF Canada has a growth strategy too, and students cannot be trusted to manage this on their own.  So the growing IVCF bureaucracy has pushed for new programs of change that often involve one key ingredient - the unquestioning handover of control and leadership to a rapidly growing base of paid, non-student staff workers.  You know, non-student leaders in charge of student clubs.  Kind of like The Embassy.

It is a brilliant growth strategy, really.  Campus Crusade for Christ (or Campus for Christ as it is now called, since they finally decided in the past year or so that "Crusade" might be, you know, offensive) has been doing it for quite some time.  University students are a vulnerable group in terms of changes in personal identity - this is golden for the evangelical with a conversion agenda.  University students are also about to graduate and earn a higher-than-average income, leaving lots of money for lucrative alumni donations.  For the traveling salesman / lay pastor evangelical who wants to just preach without credentials or requests or poverty, this sure leads to a better income than donation-supported preschool ministry.

And here were these evangelicals, hanging around on campuses in their own mixed up ways.  Some of them, like me, would end up liberalizing beyond recognition (this would happen with or without WCF's help).  Others would adopt more of the poisoned rhetoric of the backwoods fundamentalists, shouting loudly about the murders of foetuses and the abomination of gay marriage.  Neither of these deviations - which manifest themselves from time to time through the student leader who is most charismatic - can be tolerated if IVCF is to be a successful business enterprise.  The former type of student, you see, has lost their desire to convert the masses (no matter how sneakily or passively) and their fear of hell, a prime subconscious premise for manipulative staff control.  The later type of student is repugnant, and can never hope to win the coolest jocks and hot chicks on campus.

So in swoop the "post-modern" staff workers who, drunk on their own hubris and sense of divine right, have designated themselves the new IVCF.  This isn't the grassroots organization of Christian peers indigenous to each campus around the world.  No - this is a bigger enterprise entirely, guided from the top down by those who were once mere custodians of a movement that supposedly belonged to students.  And so the Urbana missions conference, held by IVCF every 3rd year, is no longer at Urbana-Champagne IL - because that campus, though low-cost and favourable for many, was not big enough to hold all the non-students and non-IVCF members who were being invited.  Instead the event has been moved to a stadium in St. Louis, and the students housed in hotel suites (read: higher conference fees).  And on the agenda for this great conference? (see http://www.urbana.org/u2006.speakers.cfm)

Donna Dong, the right-hand woman of IVCF Canada president Geri Rodman.  Donna heads up "multicultural ministries," and while she supported and fostered the growth of a segregationist Asian IVCF chapter in Alberta, president Rodman was busy "challenging" us IV execs in Ontario (N.E.W.T. 2002) on how our chapters were too Caucasian.  What's worse, when Ambassadors for Christ (parent organization of many Chinese Christian Fellowship chapters) proposed a merger with IVCF Canada, they were told that IVCF cannot support ethnic-based campus chapters.  Except, apparently they can, in Alberta, when it suits them.  They can rebuff organizational attempts at unity, while brow-beating students for not pursuing racial unity enough.  When I asked Ms. Dong about these contradictions at the Urbana '03 conference, she simply told me that Geri must have been referring to Caribbean students, who they were 'after' at the time.  WOW.

Jim Tebbe, the Urbana head-honcho at IV-USA.  Maybe Tebbe is still on the same kick from Urbana 2003, when he compared each conversation with a Muslim to coins being dropped onto a scale, which eventually tips in your favour (i.e. the Muslim decides to convert to Christianity).  I suppose Mr. Tebbe and friends think that they are showing a level of "openness" to Muslim Americans that is unparalleled in the evangelical community.  Sadly, this may be the case.

Rick Warren, the big man himself, pastor of Saddleback Church, author of the Purpose Driven Church and the Purpose Driven Life, creator of PDL coffee mugs and t-shirts and CDs and, well, highly-profitable business enterprise selling growth strategies to churches.

All of these tools will be under one roof this New Year's Eve (oh, and there are rumours that Bono might show up) - but I can't tell if they will be worshiping Jesus, the almighty dollar, or themselves.

It can't hurt to put off studying for a Torts exam by writing a little diss at tort law.  I've freaking had it with the system - it isn't just "weak," but entirely barbaric and unjust.  And this is the time of year to remember why.

For those readers outside of law school (any still around?), tort law is the set of principles that allow people and organizations to sue each other for nuisance, negligence, battery... pretty much private harms that are not criminal or breaches of contract.  It is the part of the private law that generally seeks to compensate victims for their injuries, while financially punishing those responsible for the harms.  Makes sense, right?

Shit Happens

One problem you run into right away is that injuries are not always simply and totally the fault of another person.  Other consequences can intervene.  Unlucky circumstances occur that may or may not be "foreseeable."  Judges have done rhetorical backflips trying to figure out who should be stuck with the bill when one person's dumb mistake touches off a chain of freak events.  On the one hand, you shouldn't have to pay for every single harm can be partially traced to your action.  As Andrews rightly explains in his Donoghue dissent, each act impacts the future like ripples in a pond.  For a more lucid analysis, see the recent Ashton Kutcher masterpiece, Butterfly Effect.

On the other hand, we don't want to tell victims that the cause of their injury was to strange or rare, so they get nothing.  The legal term here is "remote".  A less-discussed problem is the difference between the victims of accidents by rich people and the victims of accidents caused by poor people.  Is it fair that one is not even worth suing, because they don't even have enough money to cover your legal fees, let alone your damages?

Little Deterrent, Little Care

For once, law-and-economics fans should be able to agree with me when I say that tort law imposes an uneven, ineffective penalty for negligent activity.  If the goal is reducing dangerous behaviour, then shouldn't the same penalty be applied to the same behaviour every time, regardless of whether or not it causes damages, or how much?  Instead we have people who do very dangerous things but get lucky and cause no damage - they pay nothing.  We have other people who do something slightly dangerous but are unlucky when intervening yet "foreseeable" stars align, causing mass carnage - they get sued big time.  The deterrence is to getting unlucky - not just in terms of random circumstances of the act, but in terms of the propensity of the victim to afford a lawyer and sue your ass.  There's a weak deterrent somewhere in this system, but you have to roll the dice in order to get to it.

The same goes for care.  If tort law seeks to restore people when they are damaged by others, the big question is how much damage we can pin on somebody else, and who (i.e. how rich) are they?  If uncompensated harm is what we're trying to avoid, why are these questions even relevant?

Transactional Harm as a Base Instinct

Growing up, I learned the WASP understanding of justice in the Hebraic scriptures (only we WASPs said it was the "Old Testament"), and have only approached the text with more discernment in recent years (even taking a couple of undergrad courses in biblical Hebrew).  One simple assessment of God's justice in these stories remains fairly unaltered, in my view: "the wages of sin is death," as the traditional phrase goes.  Somebody's gotta pay.  Whether it be an eye for an eye, or a slain animal for the family's indiscretions, or a military loss for one man's deceit, these scriptures make it clear that the ancient law will do more than deter crimes - it will deliver serious payback whenever things aren't going well.  This kind of justice paints a God who sounds like comedian Russell Peters' impression of his own father: "somebody gonna get a hurt real bad!"

I hope biblical literalists (Christian or Jewish) won't be too enraged if I suggest that this kind of approach is neither unique nor innovative.  It seems entirely human - on an animalistic level, even - to point the finger as a response to pain, to seek a scapegoat.  When I was a young teenager, my sisters and I were getting ready to do some yard work with my aunt - and in a classic Elmer Fudd move, she accidentally stepped on a garden rake, causing the handle to fly up and smack her in the centre of the face.  She fell to the ground with the force of the blow.  I went to help her up, but she rose with fists clenched and looked as though she was ready to deck one of us.  We all took a step back, and in half a second she saw the rake and her fists relaxed.  Not knowing what had hit her, her immediate instinct was that one of us had attacked.  Knowing my aunt to be loving and reasonable, I think this was a very instructive image of what pure animal instinct looks like.

And thus the ancient world laid out their law - and whether through Moses or Hammurabi, retribution was the working assumption of justice.  Early religions seized on this principle and expanded it to deal with the supernatural and the unexplained.  This blame game worked out okay for some.  For others, it was a death sentence in response to a bad season of crops or someone else's marital breakdown.

Along Came a Baby

But I've heard another story.  Maybe God was sick of getting portrayed as Russell Peters' angry dad.  Maybe he just wanted people to stop blaming and harming each other for things that were out of their control.  So he found a couple of poor, working class Jewish kids who were deeply in love, and he said "I'm going to be your bastard son."  They were crazy enough to believe him, and when he was born, they named him Jesus.  He grew up trying to convince everyone that God wasn't as mean as they thought - that he loved kids, he loved women, he loved criminals and rejects, and he loved to forgive.  He told us that we all screwed up all the time, and that we'd be better off if we could agree to forgive each other in the same way.

Ironically, the old legal-religious system of scapegoating demanded yet another victim.  The harm?  Slipping religious/national legitimacy in the face of Roman conquest.  The charge?  Heresy.  The punishment?  Death.  So God stood up and said "no more! Take me."  And with one great leap into the crossfire, this God showed us that it is better to lay down one's life to save another from harm in the first place than to seek justice through revenge.  In the wake of this act, a revolution of the like-minded was begun.  A community of outcasts formed, caring for each others' needs and subverting a whole empire in the process.

Somewhere along the way, the wealthy and greedy infiltrated this community, and it has scarcely been the same since.  The tort system, as a legacy of Western 'Christendom', still stubbornly seeks to point the finger as a primary response to harm, and we call this justice.  Distinguished judges put hard, rational limits on the "neighbour" principle from the bench, while attending churches dedicated to the God who told us that everyone is our neighbour.  Jesus told story after story about the need to care for each other simply because we can afford to - not because the harm is necessarily our fault.  He said that five cents is worth more to the poor woman then five thousand dollars to the rich man.

Have we learned nothing?  True justice is caring for those who are harmed because we can.  Instead of wasting our days trying to find a scapegoat for every injury that befalls those of moderate to excessive wealth, why don't we admit that the world is a mysterious, unpredictable place where wrongs and harms need not be exhaustively paired like nervous teens before a semi-formal?

Justice Informed by Love

This is just my theology - you need not agree.  But a society that truly understands Christmas would do away with the tort system immediately, replacing it with the following:

1. an expanded progressive system of public insurance to compensate harms,
2. a broader range of public offenses to deter dangerous behaviour directly

Of course, this society would also recognize the broader injustices and failures of market capitalism, and establish democratic control over the means of production.  And you have to ask, just how many tort disputes would disappear if we eliminated profit as a prevailing incentive to engage in harmful behaviour?  It is truly astounding to look at the number of tort cases where profit is an underlying motivator for the circumstances of the dispute.  After all, isn't the instinct toward tort retribution merely a part of the broader individualism of self-reward?

Until we see the tort system for what it really is, we are sadly left pointing the finger, arguing cases that sound more like scapegoating than admitting that life sucks sometimes.  If there is even such a thing as the war on Christmas, surely this is it.  So instead I say to you: a tort-free holiday to all, and to all a goodnight!

These Environics surveys are like crack, I tell you.  Okay, we've established that I have no idea what crack is like... but come on.  Maybe I'm locked into a kind of "blog survey" arms race; as long as I keep seeing corny shit like "which Friends character are you?" then I'm going to keep bringing the legit sociology, foo.

This one is the Fire and Ice survey (http://fireandice.environics.net/surveys/fireandice/main/fireandice.asp?surveyID=1) which has been used to demonstrate, among other things, a divergence of values between Canadians and Americans.  My results are potted at http://fireandice.environics.net/surveys/fireandice/compare.asp?sid=1&tribeID=3&x=1.47&y=-1.86&dat=39056&sidImage=true and once again, I'm quite happy with the categorization.  Perhaps my only beef is that "Authority vs. Individuality" is one of the axis definitions; how completely status quo is that eh?

I don't usually post my web survey results, because most of them are pretty lame.  But this time is different, I promise.  By taking the 3SC Social Values survey by Environics Research, I got to read all about the generational categories that sociologists are slotting us into.

Here's a link to take the survey:
http://3sc.environics.net/surveys/3sc/main/3sc.asp
It is actually pretty quick; not one of those crazy ones where they ask the same question 20 different ways to make sure you're paying attention.

Now, for my results:
http://3sc.environics.net/surveys/3sc/tribeOverview.asp?sid=3&tribeID=11&x=-0.48&y=-1.4&dat=111514
I've looked at almost all the categories, and (predictably) I'm so stoked about being a New Aquarian.  Seems to have plenty of things I like: altruism, non-conformity, social conscience, etc.

Apparently I also have a slight bit of "Social Hedonist" in me, which is strange given that I:

• didn't drink alcohol until I was nearly 21
• didn't actually get "impaired vision and slurred speech" drunk until I was 22
• have never smoked weed (or regular cigarettes, for that matter)

WTF, am I "high on life" or just really supportive of different lifestyle choices?

Anyway, if we're supposed to be the Gen-X equivalent of hippies, consider me the sober dork giving everybody a big thumbs-up while they get stoned.

If you thought my game theory analysis of reclining airline seats was uniquely silly, think again.  Someone has come up with a way to fight back against the recliner:

http://www.gadgetduck.com/html2/how_to.htm

This is perfect!

With a certain contracts prof's infamous "you can't suck and blow at the same time" comment already making appearances on Facebook, I thought I'd do a brief brain dump concerning the issue.  I'm sorry, non-law students will have to either ignore what follows, or ask me to explain the basics sometime.

Those in section 1 may have guessed that I'm about to discuss Heywood v. Wellers (1976, English C.A.) where a woman (H.) seeks damages for breach of contract against some law firm which she retained, at a fee of 175 pounds, to seek an injunction against a man (M.) who had molested her.  The lawyers don't bother doing this, so she gets molested a few more times.  The lower court, contrary to the preferred award of expectation damages, instead just gives her the 175 pounds back as a refund.  She appeals, and Lord Denning says that she should get an additional 150 pounds back for her trouble.  Our professor thinks that Denning has not explained this one properly - either we're attempting to put her back in the position she was before signing the retainer contract (restitution interest, returning the 175 pounds) or we're attempting to compensate for what she should have received upon fulfillment of the contract (expectation interest, 150 pounds for intangible damages).  But you can't restore backward from the breach and award expectation forward from the breach, hence "suck and blow" and ensuing laughter.

Knowing that (although it is irregular to do so) you can theoretically award restitution and reliance damages as an alternative to achieving the expectation interest, I asked why we cannot think of the extra 150 pounds as compensation for H.'s reliance on the contract.  I was told that reliance damages are normally for out-of-pocket expenses.  Does this answer seem kind of flat to anyone else?  I mean, since we're in the business of representing mental happiness, healthy limbs and freedom from molestation with $$$ values for the expectation interest, why are we suddenly asking for receipts only with respect to restitution and reliance expenses?  If the law will recognize and compensate for such a wide variety of expected contractual outcomes - certain and uncertain, tangible and intangible, commodified or not, fungible or not - then why must we limit a recognition of reliance expense to mere cash?

I am nearly ready to propose a theory of contract, one which I hope is rather self-evident with respect to the rational choice perspective:

When a rational, non-breaching party makes a contract (in their view),
value of contract fulfillment = cost of own performance + some profit

Nobody trades unless they think they're getting a deal.  Whatever they are getting is worth more than what they are giving up.  Depending on your disposition, I think you can actually consider reliance costs as either necessary (i.e. part of what the party must spend in order to receive the thing they want) or unnecessary (i.e. spent out of the perceived profit, but whose value will depend on the fulfillment of the contract).  You can build a minimum-requirements barn to hold a horse you've bought, or you can build something much fancier... but either way, you've done so fully expecting the delivery of the horse.  Thus, I think the plaintiff's correct view of damages after a breach is

expectation = restitution + reliance

That is to say, rational actors make contracts when they expect to receive something that is worth more than the sum of what they must give to honour said contract.  Some of these necessary costs are explicit performance elements, and some of these necessary costs are incurred to receive the other party's performance.  As for reliance - you rely on gaining the difference between your valuation of your performance and your valuation of the other party's performance.  That difference is a perceived profit, so you spend out of it.  Maybe you build a nicer barn (in the horse example).  Maybe you intend to sell whatever you're getting out of the contract, so you're relying on making a profit.  Maybe you spend that profit on a new car.  Maybe you sit on it.  Either way, its something you're counting on.

NOTE: I KNOW THIS IS NOT THE PREVAILING VIEW, BUT I THINK IT IS BETTER.

This line of thinking is less silly than it may sound, and I wish to illustrate why.  Suppose a hypothetical Person A makes separate contracts to purchase horses from Persons B, C, D and E; the last of these persons, E, breaches.  Before the breach, Person A constructs a small stable big enough for 4 horses.  Can she get the original horse money back from Person E, plus some part of the cost of the stable, as a reliance expense?  On the later of these questions, I believe the answer is not easily or simply "one quarter of the cost of the stable."  Assuming this is a remote island where there are no more horses to be purchased, the court might instead think about the difference between the cost of the four-horse stable and the cost of a three-horse stable (substantially different, let's suppose)!  My point?  It seems fair to consider reliance interest as the cost, in hindsight, of choices which would have been made differently had the non-breaching party not made the contract at all.  Compensating for out-of-pocket expenses is a narrow manifestation of this consideration - namely, where there is an assumption that the impacted choice was between spending x and spending nothing at all, and that x is non-fungible and nearly worthless without the breaching party's performance.

In the case at hand, H. expects to receive a shot at an injunction order against M.  Her primary cost is 175 pounds; also, in reliance on the contract's fulfillment she does not take steps to otherwise protect herself from M.  This is a small price to pay... or is it?  What is the cost of inaction?  As it turns out, pretty high in this case.

My broadened definitions of the restitution and reliance interests subsume two important things: the necessary out-of-pocket expenses to receive the object of the contract (which, lets face it, are part of performance from one party's perspective, even if they aren't actually going to the other party) and the speculative value of the other party's performance.  If we allow these expanded definitions, then it shouldn't matter whether we attempt to award restitution + reliance or instead expectation...

But it seems to matter anyway, because the perspective of the non-breaching party isn't always rational.  The profit is speculative at the time of the contract's creation.  Another way of putting this is that the market's valuation of the breaching party's hypothetical performance is often different than the plaintiff's valuation.

In Heywood v. Wellers, this is especially problematic: what if we used the market to value expectation damages?  We might wonder about all the people (men and women) who might - this is sick, I know - enjoy being molested by M.  They might not value an injunction, or any attempt to achieve one, as very valuable at all.  Is it right that the market should determine the value of something that the plaintiff should never be expected to exchange (i.e. access to her body by M.)?

No, we shouldn't ask the market these questions.  Its perspective does not necessarily give us the neat equation of expectation = restitution + reliance.  Lord Denning knows this, and thinks it better to arrive at justice from the right side of the equation - restitution and reliance from the perspective of the plaintiff.  Put more simply, he knows that the plaintiff's valuation of the fulfilled contract will be equal to the sum of the plaintiff's performance (the 175 pound retainer fee) plus the plaintiff's lost opportunity to protect herself by alternate means (which he values at 150 pounds).  The later of these costs may be an estimate, and may be alternately expressed as some tortuous award for part of the plaintiff's eventual trauma.

In commercial disputes, it is perhaps much more efficient to assess expectation damages directly, using the market.  This is because the performance items may be assumed completely fungible - and, therefore, worth exactly what the market would be willing to pay at the time they are to be performed.  But Heywood v. Wellers makes this kind of assessment ridiculous, and exposes yet another example of the capitalist's blind commodification of everything - even chances to molest a woman.

In case my last post didn't make me sound like enough of a raving lunatic, here's a visual demonstration:

In true prisoner's dilemma form, we expect a resolution to the bottom-right quadrant - but now the whole plane is worse off (except for P1 who sits at the bulkhead). Knees are cramped; anger builds.

I was hoping to take this opportunity to try out my ink blogging plugin for Windows Live Writer. Unfortunately, the developer has been issuing very short-term beta / time-expiring builds of the plugin, and mine has expired. Oh well, some other time & guess... But right now I'm on a West Jet flight somewhere high above the prairies, so no dice. I'll have to post this later of course, once I get internet access. For now, I'm fascinated by an idea I just thought of: airliners should really think about removing the reclining functionality on passenger seats.

Why, you ask?

Game theory. Let's construct a variable-sum game in which passengers are attempting to maximize their seating space. The central question at hand is whether or not the choice to recline one's seat represents a "prisoner's dilemma". I will argue that it does, and therefore we should find a way to avoid the status quo of individual, independent choice to recline one's seat. To qualify as a prisoner's dilemma, the choice to recline one's seat must always be desirable from an individual perspective, but for less desirable in the aggregate (as opposed to all leaving their seats upright, being most desirable but inherently unstable as a game state).

If the objective of maximized seating space were only measured by the total volume between one's own seat and the one immediately forward, then we have no such dilemma. Once one person reclines, it stands to reason that the next row will recline to compensate, and like dominos the whole of the plane's passengers will recline. In utilitarian terms, nothing has been lost... except that the very front seats have gained over the starting position, and the rear seats (presumably unable to recline) are out of luck. Of course, this doesn't happen in reality, since there are other factors that make one row remain upright even when those in front have just leaned back and cut down on the former passengers' space. But as a general rule - and when other factors (i.e. the desire to eat an in-flight meal sitting upright) are absent, we can expect the aforementioned scenario to play out, even if localized to just a few rows. If you're self-interested and the person in front of you is upright, you'll recline to gain more seating area. Now that you've also reduced the space of the person behind you, their only remedy (aside from attacking you) is to recline their own seats and get the space back.

So how are you and your neighbours worse off, all reclining as you are? Well, in my opinion, the answer has to do with the fact that your knees are always horizontal to your ass, no matter what position your seat is in. As such, the rational evaluation of one's seating area is not just a simple measure of volume - rather, other factors are involved, such as the distance between any part of your body and the seat directly in front.

Imagine, if you will, the upright seating position on an airline. Your knees and your shins are generally the closest parts of your body to the seat in front, and thus have the least segmented room. Now, imagine the seat in front of you reclines. You will now experience a reduction in segmented head/torso space, as well as knee/shin space - the later being the part of your body already most cramped! This is clearly a problem that cannot be wholly remedied by reclining your own seat - for while you may gain back the total volume lost from the offending seat ahead of you, you only gain this volume in your head/torso area... Your knees remain decidedly more cramped than they were originally.

If you can agree to this reasoning - either abstractly, or from personal experience - then you can see that the current availability of individual choice in seat reclining creates an n-player prisoner's dilemma (hey if you still don't know what that is, check Wikipedia or something).

Two possible solutions I can think of:

1. Remove the recline function (or limit it to a few degrees). If you're really tired, you'll be able to sleep upright or with a 5 degree tilt. This is air travel, not a visit to the dentist.

2. Re-design the seats so that a recline has the effect of thrusting up one's backside, actually adding leg room for the person behind. The main goal should be to make an entire plane full of reclining passengers no more cramped than an entire plane of upright passengers.

Or we could avoid the conclusions of game theory by all being a bit more considerate of others, and limiting the amount we recline our seats. My kind and lovely wife wanted to sleep on the plane, but saw that the people behind us were using laptops, and thus left her seat upright. Did the people in front of us show the same consideration? Noooooooooooo. Of course, seeing people actually act in rational self-interest shouldn't be too surprising in a capitalist society that rewards them handsomely for it. Capitalist reclining bastards. :P

If I may, I'd like to propose rudimentary classification of the contentions that will be raised against my stated Marxist/communist/socialist disposition:

1. Strong capitalist, economic/predictive - objections to Marxist theories of value, disagreement with historical materialism
2. Strong capitalist, moral - protection of individual negative liberty and rational choice at all costs
3. Weak capitalist (incomplete/non-arguments) - suspicion created by capitalist brainwashing of the populace

Surely the first two kinds of objections cannot be resolved quickly or easily, because they are raised by learned individuals who have at least attempted to understand Marxist theory.  But the proper subject of a short blog post, I think, would be a quick reply to some of those which fall into the third category.

"Communism works great in theory, but not in practice"

This one might be my favourite, because it is raised by people who have never lived in communist countries, and have received all reports thereof from thoroughly capitalist sources.  My current response is:

Oh, so capitalism is working well "in practice"?

The unfettered market has distributed world resources in a way so uneven as to produce death, disease, rape, and general dehumanization that weighs on the conscience of anyone who bothers to pay attention.  Well, almost anyone - as I suggest in my earlier post, the rational choice economist can't seem to feel sorry for anyone who willfully agrees to work for $0.10 per hour.  But such people have put the "science" of capitalist economics before notions of morality or conscience, and are thus sociopathic.

 

"What about all the bad things that communist regimes have done?"

Aside from obvious questions about the bad things that all capitalist regimes are doing, we must also ask whether or not it would be fair to judge the best liberal democracies by the records of worst fascist dictatorships.  If not, then the major point of contention should be over the so-called "bad things" that any communist regime must necessarily do as a result of, well, being communist.

Capitalists imprison and rehabilitate those who do not respect capitalist values.  Communists would be no less justified in restricting the freedoms of those who do not respect communist values.

If you steal something instead of paying market price for it, the capitalist state will attempt to stop you from continuing in this course of action - by force, if necessary.  Those who attempt to participate in the exploitation of others would represent no less of a break from the societal values of a communist state.

"We need capitalism because humans are basically evil."

This contention, typically borrowed from various Christian theologies, is kind of odd.  Here we have capitalists saying "we're evil, so capitalism is the only system that works for us."

Communism is merely the choice to fight evils that capitalism blindly accepts.

Before we give our status quo a monopoly on the legitimate definition of evil, let's explore the unspoken premises here.  Presumably, capitalist "moralists" see capitalism as the maximization of individual freedom, such that nobody falls prey to the control of an evil person.  Does this in any way prevent evil acts from occurring?  Hardly - there are unspeakably evil acts that are done in the market, including (in my opinion) the decision of the rich to allow the enslavement and starvation of the poor.  The capitalist maximization of market hegemony, then, shifts opportunity for control from the political realm to the economic realm.  You get control not through votes, but through capital.

Following the assumption that corruption and evil is somehow a random disease that can strike anyone, under which scheme are we more safe - the scheme where control is

1. shared among us,
2. delegated by regular election, or
3. put up for sale? 

Our current combinations of 2 and 3 are perverse and laughable compared to a socialist combination of 1 and 2, with a gradual shift towards 1 (Marx's "withering of the state").  If we were truly suspicious of an evil nature in others, we'd find no solace in the capitalist distribution of power.

I've detected a troubling undercurrent in my Torts class that, briefly, I'd like to address.  It concerns the use of the word "rights" in a thin attempt to bolster one's position.

Many common law decisions have granted damages rather than an injunction in the case of necessary nuisance, i.e. one landowner seeks an injunction against the smelly production of nickel in an otherwise mining-dependent community; court awards damages rather than shutting down the mine and putting the entire community out of work.  These cases are characterized as the court deciding to trample "individual rights" in favour of "public benefit".  My esteemed classmates have been troubled by any such rights-trampling.  Who will, they ask, protect the "rights of the individual" against the "tyranny of the majority"?

Outside of the libertarian assumption of a general right against non-interference, these so-called "rights" to enjoyment of one's property are weak and residual, insofar as they are not prohibited by statute or in conflict with the established rights of another.  To speak of property "rights" as in any way special or supreme (or constitutional) in Canada is, well, ridiculous:

1. If you're allowed to do something because of what judges decide, I guess we can call it a "right".
2. If a judge decides you aren't allowed in some specific instance, I guess it isn't a "right" after all.

To say that judges have trampled on individual rights in favour of public benefit is entirely circular when the "rights", prima facie, are only provided by common law in the first place!  If there were some higher source of legitimacy for these rights - AKA constitutional rights like free speech, equality under the law, etc. - we would have reason to restrict the ways in which they may be subverted by the wishes or interests of the majority (i.e. "public benefit").  In fact, we do this in s.1 and s.33 of the Charter.

You cannot simply call something a "right" and then expect everyone to show deference.  This is especially true of property rights, the non-entrenchment of which is our only constitutional protection of the poor against the rich.  It is the worker who needs the nickel mine or the paper mill to stay open, as it may well be the only job available.  To construe the wealthy property-owning plaintiff in such cases as the David against an industrial Goliath is, all too often, mere emotive trickery.

Once upon a time, way back in grade 8, I read over the Communist Manifesto and thought "this guy is totally right!"  My parents promptly snatched away the book, but for about a year, I fancied myself a Communist.  Granted, I was also a fundamentalist Christian... so yeah, I was young and incoherent.  My family seemed to get the short end of the economic stick, so I guess I've always had some embedded lack of reverence for capitalist institutions.

Now, the public education system (particularly humanities) will do a number on anyone who lacks a basic liberal perspective.  If you come from conservative roots, you might adopt some form of pro-market libertarianism.  If (like me) you have a pro-labour instinct, you'd be more apt to accept some kind of welfare state / ra-ra-human-rights motif.  Either way, you're watered down and pulled to the centre.  I suppose once all political differences are reduced to the kind that might exist between Liberal leadership candidates, debates can become more "efficient" by skipping past major ideologies and focusing on a comparison of policy alternatives.  What should the income tax rates be?  How much should we subsidize health care and education?

But damnit, I won't take it anymore.  After a long process of spiritual, emotional and mental transformation, I can proudly declare that yes, I am a communist.  And this time I know what I'm talking about.  Sort of.  I can see that economic class warfare is a key factor in politics, theology, art, etc.  I can also see that capitalist economic theory - particularly when applied to the law - has made all our human "rights" mere artifices against a tide of commodification that cannot be held back, short of a complete socialist revolution.

(I'm consciously using all the stereotypical rhetoric here, by the way, as a written minefield for those who are so stigmatized against Marxism that they can stop reading here and write me off as a "dumb leftist."  I have neither the time nor the patience to properly address such closed-mindedness.)

Take, for example, today's Contracts class with a young instructor at UofT who seems quite smart and friendly.  The professor has been introducing us to the study of contract law by way of surveying a set of theoretical "perspectives" on the subject.  The major "law and economics" perspective, advanced by Tribelcock (and seemingly endorsed by our professor) holds that contract law enables non-simultaneous exchanges between rationally self-interested actors, a key necessity for economic man (and incidentally one of Hobbes' main justifications for the state in general, as a guarantor of contract enforcement).  To contract is to trade; that which is (by definition) commodified and exposed to the market.

Today the readings contained three other perspectives, all of which offered criticisms against the boundless exchange of neoliberalism.  I need only speak of the first view, put forth by Radin, that attempts to place limits on enforceable contracts via the identification of inalienable rights (as extensions of the self).  Let me see if I can spell out the argument's basic pattern:

1. People themselves can't be traded, so slavery contracts cannot be enforced.
2. If people cannot trade themselves, they presumably cannot trade (or alienate) anything else that is an integral part of themselves.
3. Integral parts of the self are, Radin suggests, "one's politics, work, religion, family, love, sexuality, friendships, altruism, experiences, wisdom, moral commitments, character, and personal attributes"
4. Thus, contracts which require the alienation of these things cannot be enforced.

It is also important to note that Radin's expansion of selfhood included an explicit declaration that such things are not "monetizable".  Our prof, in his attack on Radin, immediately appeared to ignore this premise.  From an economists' perspective, he argued, Radin was being "paternalistic" by saying that people ought to be prevented from alienating their religion, family, sexuality, etc. because they might make contracts that decrease their overall welfare.  The prof then offered a series of hypothetical cases in which people could conceivably put a price on their hair follicles, their babies, their labour, etc.

Of course, the key problem I see here is that the economist's response simply insists on commodification and monetization of all things, from the get-go.  The label of "paternalism", in my view, is undeserved: if parts of the self cannot be monetizable, then contracts involving their exchange cannot be judged from a cost/benefit, net welfare perspective.  The economist hears "not monetizable" and thinks "oh, you mean a really really high monetary value.  Gotcha!"  Useful debate and analysis is frustrated by this chasm.

I'll skip over the rest of the account and get to my major point about capitalism and rights.  The professor spent a lot of time arguing that newborn babies ought to be exposed to the market - bought and sold to barren couples.  Hey, why not?  Weak objections ensued, many along the lines of "it just doesn't feel right."  The prof conceded that it might feel weird to find out that you had been bought as a baby.  He joked that parents might say "we sure got a good deal on you!"

I must say, that's an interesting joke.  Let's imagine the opposite, for a moment (which nobody mentioned) - what if your kid became too much of a problem?  Maybe you might feel as though you had been ripped off?  And if you bought the rights and responsibilities over the baby, what would substantially change to prevent you from selling/trading the child later on?  Finally, commodification of the child also makes attempts at human rights rather artificial: first, because responsibility for its care may have been so subdivided and exchanged as to prevent rapid enforcement (imagine when a child must launch civil suit to enforce its feeding contract!) - but there is a more important and troubling reason still.

Assigning monetary (exchange) value to a child invites (nay guarantees) a system of market valuation for each child.  Naturally, then, the rights of the child in a given jurisdiction could and would be evaluated for the cost of their guarantee, and counted against the total value of the child.  Imagine that Babies'R'Us started warehousing newborn infants before reselling them to parents.  Would it not be in the store's political interest to see the state's legal minimum infant care standards lowered, to reduce its operation costs and turn a higher profit?  For example, if the babies were given the right to less human contact, Babies'R'Us might not have to keep as many night staff on the payroll.  A successful baby sales business would find the lowest, cheapest standard of care that does not cause an even greater reduction in final baby sale price.  Child rights in such a scenario are a sham - mere industry regulations, to be debated and adjusted between elections.

Capitalist pragmatism asks "why can't we commodify X" of everything.  In many ways, I see it as working through the reverse of the four steps of Radin's argument above: if we can sell off babies and small body parts, why not children and limbs?  Why not - dare I say it - people themselves?  Perhaps economists think that it will never come to this, because rational choice will prevent people from ever making such bad trades as to alienate themselves.  However, this view smacks of a lifetime of security and abundance.

Anyone from more humble beginnings should know that, in the context of scarcity and love, parents would sell themselves into slavery to put food in their childrens' bellies.  And hey, isn't that how we get people in the global south to produce all our stuff for so little in return?  Capitalists cannot conceive of a harm being done here, because again, why would an Indonesian worker take $0.10 per hour if she thought it was a bad deal?  If she's rational, then the contract is morally neutral.

When people begin explicitly selling themselves into slavery - and again, I believe we aren't far away from it - maybe others will start to wonder why the capitalists aren't bothered by it.  Then, surely, the revolution will come. :)

[EDIT: since writing this post, I've received indications that the students I addressed (previously alluded to) would either not stand by the positions I had initially ascribed to them (in the first case), or have some presumable discomfort with their statements being addressed in this fashion (in the later case).  The misunderstanding is mine, and so I've made a few changes.  In the case of the first point, I've my attention to a more general concern with the debate over Palestine.  In the case of the second point, I have just dropped it - perhaps impending refinements at a later date.  Some may contend that with the elimination of a specific antedote, I'm arguing with my own straw men... but I do wish to preserve my arguments below as responses to pro-Israel positions which HAVE been manifest in a number of recent contexts.]

Many international political actors have insisted that Hamas recognize Israel's "right to exist" before the receipt of any foreign aid, dialogue, etc.  Perhaps this position is not one taken by the most academic or sophisticated of pro-Israel hawks; nevertheless, it is frequently alluded to in common banter and political stumping alike.

Are we to presume that "Israel's right to exist" means Israel's right to be a state?  If so, there are many problems.  First, statehood is best described as entry into an international "club" of states; you're a state if the other states say you are.  Israel seems to have nailed this one down pretty good - the who's-who of world states all recognize the current flag, name, borders and government of Israel.  This comprises a status recognition - currently, Israel is a "state" because it looks, acts and smells like one.  But can a state have a right to exist?  Can a state have rights at all?

I'm going to say "no".  In common language we talk of a state's right to do X or Y, and we might mean one of several things - the first being that the state itself has an enforcable claim.  In this case, however, that would mean that we are speaking of the Israeli state's right to exist as a state.  Since statehood is predicated entirely on recognition by other states, the extrapolated meaning here would be (rediculously) a demand that people recognize Israel's right to be recognized as a state.

Alternatively, we may mean that the people therein are the holders of the rights, and are exercising them through a state mechanism.  Thus lets assume that the recognition in question is the Israeli people's right to have an Israeli state (that looks like the current one).  What justification can we offer for this right?

Here we might expect an appeal to the famous Wilsonian proclamation of the universal right to "self-determination" for all people groups.  But it doesn't take a rocket scientist to see that there are some people groups who get their own states (Hungarians?), while others merely get a province (French Canadians), while others get nothing (Tamils) in terms of state or sub-state ethnic government.  As Margaret Macmillan's bestseller Paris 1919 conveys, Woodrow Wilson's infamous principle of self-determination escapes a succinct definition, and caused all manner of headache when trying to carve up the post- World War I world.  Do the Italians get the towns where they outnumber the Serbs?  Do the Tyroleans count as unique, Austrian or Italian?  Do the Polish get to take over the towns that the Poles used to live in?

Macmillan's account of the treaty negotiations between the 'Great Powers' shows that an even and consistent standard was impossible to achieve, and explanations for the creation of new borders and states were a thin excuse to achieve politically strategic continental balances.  People claiming to be a unique ethnic group were often over-ruled for other 'practical' reasons - relatively straight and firm border lines, the historic control of territories and the natural resource wealth within, etc.

I ask, then - what gives the Jewish people the right to their own Jewish state, above (say) the Tamil people's right to a Tamil state?  Those who demand the status quo in this particular light have largely failed to give good reasons for the preservation of a uniquely Jewish state in preference to a federation or single-state solution.