My new novel, The prisoner's Dilemma is finished. I have written the Author's note below which describes some of the story.
The 1886 Santa Clara Supreme Court decision is probably one of the most misunderstood decisions in American history. The ramifications of this ruling have over the last 130 years have had severe consequences for ordinary Americans trying to obtain their legal rights in a court of law. Although there is no conclusive proof that the historic persons in this story behaved in the manner described in the novel, overwhelming evidence seems to indicate that this is what went on.
For months I had toyed with the idea of writing a story about how a system that seems stacked in favor of the rich and powerful can be changed by the deliberate actions of a few bold and enlightened individuals. I wanted to write about corporate corruption especially those issues concerning corporate personhood. But I was not sure how to begin. This seemed such a broad topic.
The breakthrough came for me a couple of years ago. I was selected to be a faculty advisor of the National Youth Leadership Forum on Law. This forum selects talented high school students considering a career in law to attend the Forum in Washington, DC. Here they attend seminars on the legal profession and visit various law schools and court in the DC area.
This experience provided the background that I needed especially in the area of Supreme Court procedures. Later I would revisit the Court for more research which confirmed my original theories.
I also want to clear up a few technical issues. The four ethical paradigms, justice v. mercy, self v. community, loyalty v. truth, and long-term v. short-term that Alan Gates struggled with are not mine. They come from a book that I have used in teaching some of my college ethics classes, How Good People Make Tough Choices, by Rushford Kidder. This book is the clearest explanation for ethical decision-making that I have come across.
Some will ask about similarities between the Justices described in the story and the real Justices currently sitting on the Court. I leave it to the reader to make those comparisons. Much of the backfighting on the Court does happen as I have described it. Some of the infighting in the story was derived from Jeffery Toobin’s Book, The Nine. I personally find it a bit scary that this is how such important decisions are made. One only needs to look at the Bush v. Gore decision of 2000 to see how often the Court is influenced by politics, rather than the law.
I also want to mention that the tour of the Mark Twain House given by the guide is similar to the ones that I give as a part-time Historic Interpreter for the Mark Twain House. However, I have exercised literary license and taken the liberty of embellishing some of the guide’s and the visitors’ comments for dramatic purposes. Come and visit the House, take a tour and maybe you’ll get me as your guide.
A word about the prisoner’s dilemma. I have often played this game in my college classes similar to the way John Michaels played it and usually getting the same results. This game is truly an eye-opener for my students.
The prisoner’s dilemma and the tragedy of the commons are two metaphors in a larger metaphor called game theory. The concepts go back centuries. David Hume (1711-1776) wrote about a situation where two farmers had pasture next to a swamp. It would be to the best interest of both farmers to drain the swamp, but one farmer figures he can get all the benefits with none of the work if the other farmer drains the swamp. Each waits for the other to drain the swamp and consequently the swamp never gets drained.
In the case of tragedy of the commons, the metaphor could be explained in one of two scenarios. Using the example of the common pasture discussed in the second chapter, one farmer will sneak in extra cattle thus starting a race to the bottom as the commons deteriorate. The second scenario is that all the farmers remain honest and all prosper until the cattle population becomes so great from the general prosperity that the commons deteriorate anyway.
Traditionally, game theorists have proposed two solutions to the tragedy of the commons. The first is an outside force such as the government regulating the commons. The second is privatizing the commons. The second solution is based on the naïve (I believe) belief that if one owns something they will care for it. At least until stockholders wonder what happened to their third quarter profit.
Regulation leads to inhibiting innovation and restricting choice while privatizing leads to short-term thinking where the next quarter’s profits become more important than the commons. For example, a farmer upstream who owns his land (privatizing) might have no problem with dumping his waste in the water while the folks downstream suffer. Thus the marketplace creates a problem but cannot solve the problem.
There is a third solution: expand the commons. Expanding the commons would allow prosperity to take place. However, there may have to be some regulations so some farmer doesn’t sneak in 100 cows and take over the commons.
Other solutions have been suggested such as buying and selling pollution rights (cap and trade systems). A company could buy the rights to pollute the air if another company is willing to sell those rights.
Both the prisoner’s dilemma and the tragedy of the commons can be seen in an experience we have all shared. Imagine a group of coworkers going out to lunch and all agree to split the check equally. If everyone orders the some amount of food there is no problem. However, if John orders an appetizer, a dessert, and a bottle of wine, the others are being taken advantage of. They are subsidizing John’s lunch.
The prisoner’s dilemma and the tragedy of the commons are illustrated by the true Woburn story described in the Prologue. Schlichtmann says, “As you know, your Honor, the purpose of a lawsuit is not to go to court but to settle. You settle by spending more money than you should, which forces your opponent to spend more money then he should. The side that comes to its senses first loses.” This is similar to the arms race during the cold war.
One can see examples of the prisoner’s dilemma and the tragedy of the commons everywhere. They are common in daily life.
These examples are also illustrations of the four ethical dilemmas mentioned earlier. Justice v. mercy, self v. community, loyalty v. truth, and long-term v. short-term. Clearly this topic is much too complicated to discuss here and the reader may wish to google the prisoner’s dilemma for him or herself.
To all those attorneys who want to write me a poison pen letter regarding legal terminology and procedures, let me first say that I am not an attorney. Because I am not an attorney, I was confronted from the start on how to present complicated legal arguments in a clear and understandable way. Therefore given a choice between presenting legal arguments as an attorney would do or presenting them in a manner that would be clear to the layman, I chose the second.
However, in some parts of the story I was forced to use correct legal terminology. To the best of my knowledge, the legal issues presented here are accurate, and although they may not be presented as an attorney might present them, I do believe conceptionally they are valid.
I realize that in this story, I have painted the evils of corporations with a broad brush. I recognize that there are many good companies that are truly ethical and do good things for their communities and for the public. I applaud those companies and too often their good deeds go unrecognized. However, the misdeeds of a few tarnish the reputations of the many.
This is why most cultures have laws. Not because all individuals or businesses are corrupt, but because those few existing corrupt persons or companies ruin things for the many honest persons and businesses. When we really think about it, every law or every restriction happens not because of corruption of the many but because of the corruption of the few. These few ruin things for everyone.
As I often point out to my ethics classes, if you don’t want the government regulating your business do the right thing.