In a recent U.S. Supreme Court decision [ Connick vs. Thompson], the Court ruled 5-4, essentially that the office of the District Attorney in the city of New Orleans did not have a responsibility to ensure that its attorneys were properly trained, and therefore, the city was not liable for unprofessional behavior on the part of the four attorneys who withheld and suppressed evidence that would have exonerated a man erroneously sentenced to death… and thus the city had to pay no damages to the man who had spent 18 years in prison.  Less than a month before Thompson’s scheduled execution, a private investigator discovered that prosecutors had hidden evidence that exonerated Thompson. Later investigations discovered that in 25% of the death penalty convictions during the tenure of District Attorney Connick as chief prosecutor, evidence was withheld or suppressed by the DA’s office.

New Orleans is far from the first city in which such abuses have occurred, but it does appear to have been the first in which they’ve been documented so thoroughly, and that documentation and the fragmentary evidence from other cities strongly suggests that all too often district attorneys are more interested in “winning” than in justice.  Unfortunately, the Supreme Court’s decision in the Thompson case also illustrates, to my way of thinking, how coservatives, from business executives to politicians to jurists, so revere the conservation of money for those who have it in large amounts, that they are willing to twist the law, and the federal budget to almost any extreme.  Don’t get me wrong – I’m equally willing to point out that the far left has for years essentially taken the position that all income effectively belongs to the government, and that government should determine what income levels are “fair” through the taxation system.  In addition, the far left has effectively endorsed, through its support of unbridled tort claims against business, the medical profession, and any defendant with “deep pockets”, that justice can be obtained merely through massive damage claims, despite decades of experience that shows that seldom, if ever, do malpractice claims resulted in expelling poor physicians from practice or in obtaining actual improvement of products and services.  What such tort claims do accomplish, in the majority of cases, particularly class action lawsuits, is to enrich the lawyers.

Both the liberals and the conservatives are wrong in focusing on money and/or winning, rather than on law or justice, because in focusing on winning and money, the justice system reverts to trial by combat, and in that combat, ethics and justice both lose to unbridled ambition and greed.

While the Thompson case certainly was about money, the Court did not, and likely could not, deal with the issue of whether the compensation Thompson had obtained from the lower court case was excessive.  The Court could, and should, have held that the previous case law and precedents required that the city of New Orleans had a duty to train its district attorneys to follow the law themselves, while noting that the compensation awarded to Thompson for their failure to do so was excessive.  Instead, the Court overturned those precedents. That decision was a clear indication that the U.S. Supreme Court, as presently constituted, is far less interested in justice than it is in making a statement about excessive tort claims, twisting the law to do so, and thus, in effect, legalizing the unethical and unprofessional behavior of local prosecutors who had themselves twisted, if not broken, the law.

In the Thompson case, the prosecutors broke the law, convicted an innocent man, and, after the fact, the U.S. Supreme Court declared that more than twenty years of case law did not apply, and therefore the city of New Orleans had absolutely no legal liability for failing to ensure that its attorneys followed the law. And if a local government cannot be held accountable, how can anyone be sure of justice?

Or is the Court decision merely an after-the-fact affirmation that in the United States, the pursuit of money and winning at any cost trumps justice every time?

Former President Gerald Ford once noted that any government big enough to accomplish everything you want will be big enough to take everything you have.  A similar observation might be made of the combination of technology and business. Think about the history of how technology has become an integral part of business, especially large businesses.

I’m not that old, and I can remember when people traveling abroad actually arranged for letters of credit with foreign banks, a concept that is not only unnecessary today, but not even the faintest of memories in the minds of most people. I can also remember when there was essentially no interstate banking, and when “charge cards” – essentially the forerunners of today’s credit and debit cards were essentially local or limited to accounts at a single business, such as an oil company. The first “national” credit card was the “Diner’s Club” card, launched in 1950, but a national credit card system didn’t develop until the mid-1960s, and it was close to a good two decades after that, if not longer, before credit cards were a feature on a world-wide basis. Today, you can use a debit or credit card for a cash withdrawal/advance in most large cities across the globe and not have to carry hundreds or thousands of dollars in travelers’ checks.

Of course, none of this would have occurred without massively large banks, and massively large banks with nationwide and international outlets and connections aren’t feasible without technology and high speed computers and networks. 

But progress comes at a cost… and that cost is vulnerability.  The same technology that allows you to withdraw cash from your New York or Denver or Charlotte bank from where you are, whether it be Amsterdam or Buenos Aires or Sydney, also makes it possible for a hacker in Ukraine or Bulgaria to tap into your account.  The same technology that allows you to buy and sell stock in minutes from your home computer is the same technology that allows programmed trading systems to do so in milliseconds and crash the entire New York Stock Exchange in minutes when the slightest thing goes wrong. The Obama Administration is pushing for national centralized and computerized medical records, something that already exists in many states and hospital networks, in order to allow you to receive better treatment if you fall deathly ill or are injured away from your home… but that technology is far more susceptible to misuse than the “antiquated” paper files and charts that were once only located in your local hospital and your doctor’s office.  With the growth of the new technology has also come a massive growth in medical records fraud, especially involving insurance and government medical programs.

The point is simple.  Technology multiplies everything, both the benefits and the liabilities, the gains and the thefts, and because it does, unless a technologically “improved” system is designed to minimize abuse, abuse will multiply faster than benefits.  But… all the abuse prevention systems and passwords have the effect of making to harder to access the new technology – so that most of us who have any online presence or business needs either have password after password or court fraud and abuse by using simple passwords or employing only one or two for everything.  And that, of course, increases vulnerability. 

So it’s no wonder that the total cost of electronic-based fraud is skyrocketing.  Not only that, but the “official” totals don’t even include the uncounted personal time lost in dealing with such problems as spam and would-be fraud… or forgotten or mistyped passwords. 

Yes… we have progressed… but it’s been a great deal more costly than most of us realize, and it’s likely to get more so… not less.

Lady Gaga and Mother Teresa – world class marketers!  That’s what a column in the latest edition of The Economist [that I’ve read, at least] declares.  This struck my fancy, especially after my earlier blog about Lady Gaga’s marketing, because if you include Richard Wagner, or Adolph Hitler, who, whatever else he was, was a superb marketer of himself, and a whole range of other individuals across a range of occupations, it becomes clear that marketing is merely a tool.

Now… most people would say, “Duh… that’s not rocket science… or even close.”

And they’d be right, but what most people don’t get are the implications behind that finding.  The right wing fiscal conservatives believe in unfettered markets, with no regulation, or as little as possible, while those on the far left believe that no market can be trusted in any way at all. In effect, the “pure” free market types believe that a free market is a moral instrument, and even if they deny that phrase, the fact that they refuse to believe in controls and regulations declares that, whether they’ll admit it or not, they believe the free market to be “moral” or to behave in a moral way.  On the other hand,

It’s no surprise that those on the far left declare unfettered capitalism as immoral, and requiring a heavy dose of regulation to cub its “immorality.”

Yet in practice, superb marketers know how to use the tools of marketing to sell anything at all, as noted in the Economist column. That “anything” can range from Nazi propaganda to pop music to greater faith in a deity.  Especially in a technological society, marketing is merely the tool, a means to an end.  If the means of marketing are unfettered, so is what’s sold and how;  if they’re too tightly restricted, commerce grinds almost to a halt, and you end up with a police state and a black market as the only market with a semblance of economic function.

And what’s the point of all this?

The point is simple.  Because marketing is a tool, and a powerful one at that, it needs to be handled like any other system with great power – with the kind of safeguards that prevent its abuse while not destroying its very effectiveness.  One of the principal reasons for the economic meltdown of several years ago was the effectiveness of real estate sales people, lenders, and investment bankers in selling what amounted to flawed and unsafe products to people without the ability to understand its implications. In addition, as more and more evidence has shown, significant numbers of lenders and investment banking firms engaged in shady, and in many cases, illegal actions in granting and processing these mortgage loans. 

What’s absolutely more appalling and horrifying is that little has been done fundamentally to deal with such problems, and that investment bankers continue to rack up multi-multi-million dollar bonuses for continuing the same sort of practices and behaviors that led to the last crisis… all of which definitely suggests that “free” markets do not, by themselves, engender anything close to moral behavior, that, in turn, suggesting the need for better and more effective tools in governing the U.S. financial system.

 Just remember, every superb marketer believes that he or she, and what they’re selling,  is the best thing since sliced bread, and that includes Adolph Hitler, Lady Gaga, and Mother Teresa.

In a recent non-fiction book, In the Garden of Beasts, author Erik Larson recounts the story of William E. Dodd, the U.S. ambassador to Germany from June of 1933 until December of 1937.  What is so surprising about the story is that it has not been told before, at least to my knowledge.  Within months of his posting to Berlin, Dodd was reporting on the beatings and detentions of American tourists by the Nazis, the beatings and torture of Germans who failed to salute storm troopers or who dated Jewish people, and other clear signs of a police state deteriorating into a world menace.  Yet, Dodd’s reports were mocked and derided by colleagues and superiors in the State Department in Washington, D.C., and he was chastised when he finally refused to meet with German officials because such meetings were a total charade.  In late 1937, he was forced to resign and was replaced by Hugh Wilson, who described Hitler as the “man who has pulled his people form moral and economic despair into the state of pride and evident prosperity.”  Dodd returned to the U.S. and toured widely, reporting on what he had witnessed in Germany.  Then his wife died, and he died in February 1940, well before Pearl Harbor.

It’s clear that the U.S. government knew for years of the atrocities of the Nazis, long before the attack on Poland and the outbreak of war and more than a decade before U.S. soldiers uncovered the horrors of the concentration camps. It’s also clear that they didn’t really want to know what was happening in Germany.

What’s most discouraging about this is that, almost 75 years after Dodd’s death, we still have a government – and a great number of citizens – who “don’t want to know.”  No one really wanted to know about genocide in Cambodia, the former Yugoslavia, or Ruanda, or Darfur.  No one really wanted to know about the financial disaster lurking in sub-prime mortgages.  No one really wants to know about the dangers of global warming… the list of denials and deniers is almost endless… and all of them had what they believed to be good reasons… and all of them were wrong.

You can’t fix a problem you don’t recognize or one whose existence you deny.  It may make you feel more comfortable… until it can’t be denied, until hundreds of thousands or millions have died, or the bombs are falling around you, or the storms get worse and worse…

So… what’s exactly so good about our not wanting to know, both individually and as a society?  That we don’t have to do anything… and we can secretly hope that it will miraculously go away or that someone else will deal with it?

The other day, as I was trying to extricate my vehicle and myself from one of the few traffic snarls in my town of some 30,000 odd people, I couldn’t help but ask why we had a traffic jam at all around the sole shopping center in more than sixty miles in one direction and two hundred in the other, especially in a town with more than enough open space. There have already been a number of accidents at the intersections adjoining the shopping center, where multiple streets converge all too closely within less than a block, including an interstate highway off ramp, and that’s before all the retail spaces have been filled. 

So how did we end up with such a dangerous situation, and one which now requires a multi-million dollar relocation and rebuilding of the interstate access ramps and roads? The answer boils down to a free-market failure. The shopping center developers designed the shopping center to maximize the amount of retail usage for the amount of land involved. The town was happy with this because that also maximized the property tax revenues.

One of the defenses mounted by those who complain about government regulation of business is that businesses cannot stay in business if they create too many dissatisfied customers. While this is dubious at times, if not more often, it’s definitely untrue in several sets of circumstance that have become more and more common in modern society. The first case is where the “customer” has no way to track and no way of knowing who or what business has created the problem.  The second is where a customer deals with the business only once or twice in a lifetime.  The financial meltdown created by the housing/mortgage collapse embodied both of these circumstances

The dangers around my shopping center embody just the second, because the shopping center developers developed the only shopping center in my town and likely the only one, given demographics, for at least a generation.  Once the land is planned, subdivided, and built, they’ve made their bundle, and because they can’t do it soon or perhaps ever again in this town, free-market economics press them toward making as much as they can, regardless of the consequences. Under the threat of having a badly designed shopping center or none at all, the town caves in… and the citizens are left with the mess, and the taxpayers (including those in cities hundreds of miles away, since the interstate ramp rebuilding will be partly funded by the state) will fund all the remedial measures.

Economists call those costs external diseconomies or negative externalities or the equivalent, but what it amounts to is that unchecked free markets, or those not scrutinized enough, have a disturbing tendency to foist way too many costs off on others, not to mention deaths at times – and certainly in the case of the financial meltdown, all those billion dollar profits and high bonuses were never recovered while the taxpayers picked up the tab, and no one compensated those whose lives were ruined.

While I’d be the last person to endorse government planned and directed economic development, because that’s just another road to ruin, I’d also be one of the last to endorse unchecked free markets. We need a balance between the two – and that’s something that none of the politicians or the multibillion dollar corporations seem to want, whether it’s in the planning and regulating of the design and operation of local shopping centers or the nation’s financial structure.