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Love (and Anger) in a Time of Plague: THE NORMAL HEART at Vagabonds

Eric C. Stein and Steven Shriner

Posted on BroadwayWorld.com February 29, 2016

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Relatable HICK, Eleanor Roosevelt’s Lesbian Love Story, at Theatre Project

Terry Baum

Posted February 26, 2016 on BroadwayWorld.com

From the advance publicity, I had been concerned that Hick, a one-woman show now appearing at Theatre Project, might have been little more than lesbian agitprop, an exercise in triumphalism over the revelation of First Lady Eleanor Roosevelt‘s passionate affair with newspaper correspondent Lorena Hickok. I was relieved to discover this was a substantial play that, yes, included some agitprop, but also dealt thoughtfully with a host of issues. There’s feminism: the story of a woman fighting her way through a male-dominated profession, rising from a little paper in Battle Creek to a national byline with the Associated Press. There’s journalistic ethics: what happens when a reporter gets too close to a subject, and the tricky line between reporting and public relations. Then there’s the problem encountered by an involuntary archivist: what to do with a trove of letters that reveal a historical personage’s private life? And most of all, there’s a strange love triangle: on the evidence of the play, Hickok was nearly as smitten with Franklin Roosevelt’s policies as she was with his wife, going so far as to serve in his administration.

So it’s a meaty play, a huge burden for one performer, impersonating Hickok, to carry. The obvious performer is the co-author Terry Baum, who performed in a play on the subject by the late Pat Bond, a scene from which, so the program notes seem to tell us, was incorporated into Baum’s fuller treatment of the subject. From the photos, Baum does not look much like her subject. (The only publicity photo for the show I was able to rustle up, shared above, unfortunately does not give a good idea, inasmuch as in it Baum seems to be impersonating Franklin Roosevelt as much as Hickok.) And unfortunately, while we have, by the thousands, Eleanor’s letters to Hickok, some quoted verbatim in the show, there is no boast of similar source material in Hickok’s voice. Less control by the historical record as to Hickok means greater opportunity to improvise, in classical “biopic” fashion, when it comes to Hickok’s story as well as her appearance, and I have a sense that there was some creativity going on there.

No matter. Baum and Bond have given us a fascinating love story (however accurate or not in the details), and to some degree a universal one. Obviously, the tale of a lesbian affair, any lesbian affair, in the 1930s, is going to be different from the tale of a lesbian affair today, and both will differ in important particulars from the tale of any affair not involving two women. In the 1930s, the notion that there was nothing degenerate in the attraction between two women would not have come easily even to the women involved. “I’m a monster, but I was born like this,” Hickok says in the play, and she believably means it. By coincidence, I had finished reading Patricia Highsmith’s lesbian love story The Price of Salt (source for the recent movie Carol) on the same day I saw the Baltimore opening of Hick. And there, about a decade and a half later than the events of the play, Highsmith’s lesbian lovers are still struggling to come to terms with the notion, held by the world and maybe by themselves, that what they are doing is, and I quote, “an abomination.” There’s a gulf between that world and ours. Hickok’s temptation to self-doubt, if not self-hatred, would obviously be less of an issue today.

Likewise, the dalliances of a first lady, like those of a president, would be much more widely publicized today. It used to be that journalists understood their job description as including protecting the public images of public figures. The press corps, including Hickock, for instance, covered up not merely FDR’s own love life, of which many of them probably knew, but also his crippled state of which they all certainly knew, throughout his presidency. If a similar affair happened today, we’d find out all about it on TMZ and the Drudge Report. The certainty of publicity would certainly alter the dynamics and the course of the relationship. Hickok, by contrast, is depicted at the end wrestling with whether to donate Eleanor’s highly revelatory letters to the FDR presidential library.

So it’s a tale of a particular time and place, not to mention a particular sexual orientation. But there remains a universality to it. And Baum is good at bringing that out. From her exultation at recognizing that she is loved back, to her lashing out in frustration at gawkers when she is trying to have what she calls a “honeymoon” with Eleanor in Yosemite, to her mourning and nostalgia as an old woman after Eleanor’s death, her Hickok is relatable, whoever you are. “The fundamental things apply,” the song tells us, “as time goes by.”

On a weekend when the noisier gay-themed play The Normal Heart is opening on another stage in town, the quieter pleasures of this love story should not be overlooked.

Copyright (c) Jack L. B. Gohn, except for production photo

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Commedia

Wine Safari, by Rolfe Kent (2004), encountered 2006

Buy it here | Available on Spotify | See it here

She’s okay, you know, the nun said, speaking of my mother who had just died a day or two before. We were sitting in the retirement community where my mother had spent her last, confused, unhappy years. The nun meant, of course, my mother’s soul, in the hands of God. She spoke confidently, and I told her confidently I was sure she was right. Her struggle with dementia was behind her; her good times had begun.

I was not to be so sure for very much longer. An uncertainty, very unfamiliar to me, was about to arise.

Belief

Nowadays, I look back with nostalgia at the way I thought and felt then.

I passed fifty-six years believing essentially what I had been taught in grade school by other nuns: that there was a God who gave both existence and meaning to life, a God who would preserve us from the death trap of our bodies, and even from the larger death trap of our universe.[1] I knew that this was what most of us desperately wanted to believe, but I also knew that merely wanting to believe something is no proof of its falsity. We also desperately want to believe there’s food and sex, for instance, and we can say, on the basis of overwhelming evidence, that such things do exist. The proofs for food and sex are more empirical than the proofs for the presence and agency of a deity, but still: wanting something to exist is no good reason, standing by itself, to disbelieve in it either.

And at the moment I’m speaking of, I had both sense and reasoning to persuade me affirmatively in my belief. I felt I could sense God’s immanence in various things: a shiver down my spine at the moment of the consecration, a frequent exposure to beauty and goodness in all sorts of places including my fellow-worshipers, and the sheer authority with which Jesus spoke. Nor was I unpersuaded by at least two of the philosophical proofs of God: the various perfections in the universe which made our corner of it such a suitable cradle for humanity, too convenient to be the plausible outcome of random events, and the inconceivability of there not being an uncaused cause at the start of the chain of events. I was well aware that neither my subjective senses nor the philosophical proofs were unassailable, but they were enough for me.

So I went on believing even after most of my contemporaries had given it up. I don’t think I was a grating bore about my somewhat passé point of view, but I wasn’t embarrassed of it either.

Dantean and Modern

And in that conversation with the nun I still was not. I still looked at life as a comedy in an older sense of the word, Dante’s sense: a progression from a world familiar with discord and pain to one from which these things will be banished.

That sense of life as comedy was far-reaching and had many roots, including my sense of the fundamental accuracy of the world-view of comedies in the modern sense: narratives intended to make us laugh, and to reassure us that in the long run all manner of thing shall be well.

Paul Giamatti and Thomas Haden Church

One comedy-in-the-modern-sense that became emblematic of my viewpoint at that time was 2004’s Sideways, an aptly-titled road story about two middle-aged guys on a tour of California’s wine country. Every generic hurdle was surmounted – as must happen in road comedies – but in off-kilter fashion. One of the two travelers, Jack (Thomas Haden Church), is on a mission to get some pick-up sex notwithstanding that he is engaged to be married in a few days, and consequently the trick can only be pulled off by concealing this important fact from the women involved. The other traveler, Miles (Paul Giamatti), is unable to detach himself from his feelings for a wife who has not only left him but divorced him and remarried as well, even when a woman who is both appropriate and available slides into view. In unforeseeable and quirky fashion the universe seems to dispense happiness to them each, together with appropriate punishment for their respective sins, by the end.

I was able to enjoy it with my son, a budding cinéaste who was now (just) of an age to appreciate sex comedies, but I know he thought my enthusiasm for the movie excessive. The truth was, I was responding to the Dantean comedy in it, to the way everything moved toward the good and the beautiful, as much as I was responding to the comedy-in-the-modern-sense. It was important to me that the way things worked out for the best was unfathomable in advance, and full of moral ambiguity.

It chimed with my updated Dantean thinking. Clearly, if there was a God at the helm of the universe, He was a devious Bastard. All the bad things there were, all the pain and sickness and terror, all the death, somehow – or so my faith urged me to believe – were unimaginably transfigured into agencies of providential good. And I believed they were.

The film score for the movie, by Rolfe Kent, was absolutely a part of this. If you listen to any track of the soundtrack album for a spell, you’ll come to realize that the cheerful and agreeable surface of the cues is a bit deceptive. You keep hearing things that are wrong, that aren’t what your ears expect. I’m not saying that Kent was a full-fledged disciple of Thelonius Monk, the high priest of unexpected turns of melody and harmony; I am morally certain, however, that Kent was familiar with Monk’s oeuvre, and was very happily borrowing Monk’s line of attack.

What I had, then, when the movie came out, even when my Mother died, was a confidence that the universe made sense, that when the inmates were running the asylum, God was running the inmates, and that despite all the evidence to the contrary, the God running those inmates was benign. Like a confidence that Monk’s (or Kent’s) dissonances made sense: which in the end they always did.

Downloading a Boundary Line

That album was close to my first legal download, in September of 2006. By the moment I authorized Napster to fire the tracks to me over the telephone lines, Mother’s death, as I’ll discuss further in later pieces, was already wreaking unforeseen havoc in my psyche. I stood flummoxed, grasping hard for the old certainties and ways of looking at things. The Sideways album, purchased over a year after I’d seen the movie twice in theaters and some months after I’d bought the DVD,  promptly became a sort of touchstone for me, an aural reminder of the careless confidence I had enjoyed but a short time before. Call it a musical boundary line.

Commedia on one side, something a lot less fun on the other.

_______________

[1]. The physicists tell us that, owing to the Second Law of Thermodynamics, everything must eventually cool down to the point that human lives, which require warmth, can no longer go forward. Christians of all stripes, including all Catholics, are taught to anticipate an end of this creation, when, as our creed says, Jesus “will come to judge the living and the dead.”

Copyright (c) Jack L. B. Gohn, except for cover art and production still

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Deluded If You Think You’re Secluded: Welcome to the Drone Age

To be published in the Daily Record the week of February 14, 2016

The civilian drone era has barely begun, and already heads are throbbing with the issues drones raise.

There are lots of juicy ones, including national defense, air safety, and conflicts between federal and state authority, but I only want to focus on privacy problems. Because – let’s face it – the drone is, first and foremost, a privacy killer. Whatever other attachments it may come equipped with, almost every drone has a camera.[1] Wherever a drone can be positioned, therefore, it can see what there is to see. And mostly the point of the drone is to go somewhere one couldn’t conveniently and/or lawfully go before and see things one couldn’t hitherto have conveniently and/or lawfully seen.

Privacy the Way It Used To Be

Theoretically, everyone has what the courts call a “reasonable expectation of privacy” (meaning the government couldn’t snoop there without a warrant) and a “seclusion” (something private parties couldn’t intrude upon) in a lot of places where that expectation and that seclusion may not survive now. Take your house, theoretically your castle. There has been a presumption that things inside a house that couldn’t be readily seen from the street were protected by reasonable expectations of privacy, and seclusion.

But it was always complicated. For instance, assume I have a third-floor window without blinds. If there’s a third-floor window directly across the street, I’m exposing the contents of the room inside the window to the neighbor, and hence to the public, and have no expectation of privacy, at least to the extent of what can be seen through that opposite window. But up until now, if there were a building across the street that had no window that afforded the neighbor a vantage point, I might be secure. To be sure, at least since Florida v. Riley (1989), if the police could fly any aircraft past my window in airspace generally available for fixed-wing flights, they could take pictures. But the existence of that building across the way would pretty much preclude anything except a helicopter, not a fixed-wing craft, and might even make it hazardous for a helicopter to roar through the space between my building and my neighbor’s. That gap between the buildings would not be conventionally navigable airspace. So I might have had an expectation of privacy, and a protected seclusion, after all.

The drone is going to upset this equilibrium. The choice of fixed-wing aircraft as the standard for privacy and seclusion was a compromise based essentially on the facts that in our society no one expects our homes to be free from constant overflight at 500 feet or more, but conversely we also don’t expect helicopters roaring past residential windows at eye level. Drones, on the other hand, will likely be excluded from the altitudes at which fixed-wing aircraft fly,[2] if only because we’ve had hundreds of near-misses between drones and aircraft already, and it is believed that a jet engine ingesting a drone would suffer catastrophic failure.[3] But if the drones are all forced down close to the ground, and they continue their explosive proliferation (1 million purchased in 2015) we are going to get to the point where we expect to see them outside our windows almost every day.

From Fixed Wings to Tiny Rotors

Clearly, then, unless we pass laws that restrict where drone-users may take their craft, and what drone-users may observe and make images of when they get there, we are in for a drastic diminution in what, practically speaking, we may call private.

This multiplication of the vantage points seems to call for a corresponding expansion of the notion of curtilage, the legal name for an area others cannot enter without your permission. However, air travel has not been kind to that notion. Once it became technically possible for balloons and airplanes to overfly your property, it also became obviously absurd to maintain that you owned all the airspace above it.

The question instead became where the boundary would be drawn. Something akin to the notion of navigable waters became the standard. If the sky above your neighborhood could be safely flown above a certain level, then basically you didn’t own the sky above that level – and could be observed from it. But drones can usually safely fly far lower than that, and as we have seen it is shaping up that they must do so.

Carrying the logic of this old compromise to its logical conclusion, then, drones should not only be able to look in your windows from the other side of the boundary line, but should also be able to hop your fence. After all, the air on the near side of your fence is also navigable. To a drone.

And then – so is the air inside your house. A drone that is small enough could easily navigate the airspace in your open window or open door, after all. At some point some other principle has to come into play. It can’t simply be navigability; there must be a privacy principle.

What’s Left of Privacy?

A privacy principle: easy to state broadly, hard to articulate in detail. A rule that says that a drone can’t fly in your window would block the deployment of drones – and we’re sure to get them – that can fly in your window and deliver your Amazon order right to your desk. (Wouldn’t you prefer that, for the sake of security, to the drone dropping your latest purchase on the front porch where it could be easily stolen?) Of course, that kind of drone could be covered by some sort of business invitee exception, and probably would have some kind of cyber-password to disable your burglar alarm when it buzzes in. Still, when you’re allowing robotic strangers to fly into your house for any purpose, it certainly diminishes the expectation of privacy you might want to rely upon for other purposes.

For instance, let’s say you are running a business in illegal drugs from your third-floor desk. The cops bust in without a warrant and seize as evidence the heroin you were cutting on the desktop. You move to suppress because you had a reasonable expectation of privacy there. Then the prosecutor subpoenas Amazon’s records, and, lo and behold, one of their drones visited your desk yesterday to drop off the latest Taylor Swift CD! How private was that desk really? Well, my guess is you lose the motion to suppress.

On the flip side, what rights do drone owners have if they do overfly your house? Are they protected if you employ a “Second Amendment remedy”? There was an amusing case out of Kentucky recently where the defendant felt he had a “stand-your-ground” right to blow an offending drone out of the sky. The drone owner felt otherwise. Interestingly, the complaint in that case claimed the drone owner was privileged to overfly because he was only looking at the horizon, woods, and rooftops. So is the right to overfly contingent on whether or not the drone was playing the voyeur? What if the property owner had just happened to have been sunbathing in the nude on his rooftop? Would that have suddenly rendered the overflight wrongful?

Ah, drone law! We’re going to have fun! Just close your windowshades and cover up!

^[1] A search for drones in Amazon on February 10, 2016 failed to reveal a single drone without a camera.

^[2] I’ve not been able to nail down authoritatively the source of this requirement. From numerous secondary sources it appears that a 1981 Federal Aviation Administration circular, not even a federal regulation, on the subject of model airplanes, is being treated as the rule for drones, and that circular specifies a 400-foot altitude limit. The Federal Aviation Administration in 14 CFR 91.119 has established a minimum altitude of 500 feet or 1000 feet, depending, for all fixed-wing craft not taking off or landing. It follows that drones are being kept below fixed-wing craft.

^[3] See T. Lehrich and D. Rifkind, Drones! A Regulatory Process Struggles to Keep Pace, 41 Administrative & Regulatory Law News, No. 2 at 4 (Winter 2016).

Copyright (c) Jack L. B. Gohn

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AS YOU Don’t LIKE IT: Misdirected Direction at Center Stage

Posted on BroadwayWorld.com January 30, 2016

It’s hard to imagine exactly what a completely realized version of Shakespeare’s vision in As You Like It (now presented at Center Stage) would look like. The gender stuff is so hard to think through. But directors and critics must each try.

Women to Men, Not the Other Way Around

One thing we know is that in this, as in at least two other comedies, female characters dress up as male and successfully assume not merely a different gender role, but different identities. Whether we are considering Portia in The Merchant of Venice or Viola in Twelfth Night or Rosalind in As You Like It, we are looking at women who have pulled off a successful imposture both as male and as some other character.

Considering that Shakespeare had only male performers to work with, it is not surprising that he almost always went in this direction; the only male Shakespearean character who passed himself off as a woman that I can recall was Falstaff in The Merry Wives of Windsor. And the explanation, I think, was that a male actor can be convincingly male, and as for the female role the actor also had to play, well, at least the performer would be no less convincing to Shakespeare’s audience than every other male “actress.” In other words, I think the intent was that the character’s maleness – and hence the character’s deception of the other characters while occupying a male role – carry great verisimilitude. That is important, because in not one of these plays is the imposture ever seen through. Everyone is fooled. The plots don’t work unless everyone is fooled. And the more plausibly the better, even in fanciful works like these plays.

At the same time, I think the great romance that every one of these female characters is involved in was envisioned as quite specifically heterosexual. Yes, I know, Shakespeare and his contemporaries may have lacked a vocabulary for homosexuality, but I see no inarticulate gay passions lurking beneath the surface of these comedies – at least not between female characters. (Maybe the male Antonio and the male Bassanio in The Merchant of Venice may have had a thing for each other, likewise maybe Achilles and Patroclus in Troilus and Cressida. But I can think of no female comparators.)

Not What Shakespeare Had in Mind

If these speculations about the “transvestite comedies” are correct, then what Center Stage is presenting, via an all-female cast, is far off from Shakespeare’s intention. There is simply no way that an average female performer can convey convincing maleness, either in a character who is supposed to be a man or a character who is supposed to be a woman pretending to be a man; primary and secondary sexual characteristics are hard to overcome. Instead, it becomes simply a stage convention that the disguises somehow work and that the other characters whom the disguises fool are not dolts for having been fooled. In the modern world, where female performers generally play the female roles, that convention must be the standard, even though it belies the gender dynamics Shakespeare probably had in mind.

But then we come to something Shakespeare probably never dreamed of: female performers taking on the roles of the male characters. It is complicated, because in our society a woman’s presentation as mannish is apt to be associated with homosexuality. (Yes, yes, of course there are plenty of exceptions, but the stereotypes are there.) If the heterosexuality of the romances that I believe Shakespeare wanted is to be realized with an all-female cast, there arises a real difficulty in how to present the male characters: too butch and the story takes on lesbian overtones, not butch enough and the maleness of the characters becomes as much a matter of mere convention as the convincingness of the transvestite disguises.

Assuming I have correctly identified Shakespeare’s vision, there is no perfect way to realize it, at least not on stage with flesh-and-blood performers unaltered by digital wizardry. But employing an all-female cast is apt to be among the less successful ways, for the reasons I’ve just touched on.

Or in the Alternative

In the alternative, you can say the hell with realizing Shakespeare’s vision, and simply have fun with your own. And that, I think, is the approach that director Wendy C. Goldberg has chosen to pursue at Center Stage. Going against Shakespeare’s grain may be a strange way to celebrate the 400th anniversary of Shakespeare’s death, which is what Center Stage is claiming to do, but there is no denying that this version is often fun, if maybe not as much fun as Goldberg thinks.

It’s not simply that this show goes against the grain. At times it seems like outright rebellion against the Bard. This starts with various alterations of Shakespeare’s language to make it more accessible. The program tells us that it was “adapted by Gavin Witt,” Center Stage’s Associate Director and dramaturge. It was definitely adapted. For instance Charles the wrestler (Liz Daingerfield) tell Oliver, the hero’s evil older brother (Tia Shearer): “Tomorrow, sir, I wrestle for my credit.” Except that isn’t what Oliver says. Goldberg and Witt presumably fear for the comprehensibility of this line, and render it: “Tomorrow, sir, I wrestle for my reputation.” Okay, little harm done by one change, but there are a lot of emendations of this sort. It ends up being maybe more comprehensible, but not quite the play Shakespeare wrote. A big emendation is the removal of the Duke Senior (Margaret Daly) from the encounter of the forest exiles with the starving old man Adam – presumably for no other reason than that Adam is also portrayed by Margaret Daly. But in making that particular doubling choice, one of the most pleasing scenes is lost. Doing it Shakespeare’s way, we would have gotten a much fuller picture of the humaneness of Duke Senior’s encampment in exile, seeing the Duke, one old dude, taking pity on and providing care for an even older dude.

Back to the wrestling match: it stops being a wrestling match and turns into a choose-your-weapons-from-the-pile free-for-all apparently cribbed from Hunger Games, and Orlando, the hero, wins not by wrestling but by garroting Charles. That’s not even fun; that’s kind of creepy. And while we’re on the subject of Orlando, Sofia Jean Gomez,pictured above, presents him not as a handsome young man but as a butch young woman. Even for a female performer, there is a difference. So apparently Goldberg is messing with Shakespeare’s heteronormativity as well. And so it goes.

It’s a quite rational response to everything I’ve just said that the very title of the play suggests an ad lib, free-spirited approach – and that the impossibility of fully realizing Shakespeare’s vision makes some ad lib-ery de rigeur. And I guess the question in reply is whether it is wise to take up Shakespeare on his invitation to innovate wildly, if such an invitation there truly be.

To draw the obvious comparison, it is traditional to take liberties with Gilbert and Sullivan’s texts, subbing in contemporary references to take the place of, for instance, older political and cultural jokes whose context may have faded. And it is traditional to restage Shakespeare in settings different in time and place from those Shakespeare had in mind. But it is not so traditional to change Shakespeare’s language as we do Gilbert and Sullivan’s, even when Shakespeare’s lines are at their most archaic, or to cut out parts of scenes. It isn’t traditional because Shakespeare was a great poet, a great character-developer, and a great plot-spinner. Few of us can improve much on what he wrought. Some invitations may better be declined.

Ad-Libery

In fact, it is fair to say that the innovations that work best in this production are in keeping with “different settings” kind of innovations that are more traditional. The set (Arnulfo Maldonado) and the costumes (Anne Kennedy) are most effective. As Maldonado indicates in an interview in the program, his primary aim was to design a contrast between the dreadful world of Duke Frederick’s court and the delightful world of Duke Senior’s exile in the Forest of Arden. The straight and hard lines of the court on the one hand, and the curvy and tree-filled space of Arden together with a couple of delightful surprises on the other, come from different fictive universes, for sure. And it is a great change when the severely black-clad courtiers yield to exiles clad in some unimaginable but amusing cross between L.L. Bean and hippiedom.

I should also say a word in appreciation of the music and dance of the show. As You Like It is surely one of Shakespeare’s more musical plays, and I was quite taken by both of the approaches on display here. One is a percussive electronica for various dance routines which were appropriately angular and faintly military at the court, and which were more like folk-dances in the country. The other was, in effect, singing around the campfire accompanied by a beat box. I don’t believe I’ve ever seen a production of this show in which the songs were sung, even partly, by choruses, and it’s dramatic and pleasing here. Heather Christian (music director) and Karma Camp (choreographer) are to be commended.

The acting is Center Stage quality, which is to say excellent. I particularly liked Tracey Farrar as Amiens, the loose-limbed, beat box-equipped character who leads most of the singing; Celeste Den, who doubled in the very diverse roles of the usurping Duke Frederick, one of Shakespeare’s nastiest characters, and Corin the contented shepherd, and convinced me totally in both; and Angela Reed as Jacques, whose “seven ages of man” speech was beautifully served up. I also liked Jenna Rossman as Phebe, the scornful contemnor of her suitor Silvius until Rosalind sets her straight. She manages to make Phebe almost a pitiable character without sacrificing her mean streak.

You’ll note that I have singled out more the performers in the secondary roles; the reason I have not named the principals is that I really feel the strategic choices of the direction did not serve them well.

The production as a whole is served well by the venue, the Mainstage Theatre at Towson University’s Center for the Arts. It’s not quite as elegant as Center Stage’s regular house, which is under thorough renovation, for instance the floors beneath the seats are of concrete. But then again there is far more foot-room than Center Stage audiences generally get to enjoy. Overall, it’s a good, well-equipped house. I look forward to seeing Center Stage’s next show there as well.

Copyright (c) Jack L. B. Gohn, except for production photograph

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A Horribly Good Time with TITUS ANDRONICUS at CSC — But Don’t Call It Shakespeare

Posted on BroadwayWorld.com October 31, 2015

Lisa Hodsoll, Rachael Jacobs, Joel Ottenheimer

Whatever the obscurities in Shakespeare – and they are infinite – one is never in doubt as to the dominant genre into which one of his plays fits. Often the title itself will tell you whether you are watching a comedy or a tragedy. A case in point is The Tragedy of Titus Andronicus, now being staged by the Chesapeake Shakespeare Company. The title tells you you are watching a tragedy. At least you’re supposed to be watching one. Apparently director Ian Gallanar doesn’t think so, and he plays the whole thing as a comedy.

It’s a very understandable temptation to do this difficult work strictly for laughs. The whole affair is seemingly engineered to the sole end that there be as many bodies as possible littering the stage throughout and especially at the end. In pursuing this “production value,” Shakespeare was clearly following the taste of the times, the way Michael Bay knows his modern-day audience demographic likes big explosions and fast cars. But to the modern palate Shakespeare’s drive to depict death and gore in Titus seems overdone. And, as we know, it’s a natural progression from horror to black comedy.

Unfortunately, if you turn a Shakespearean grand guignol into black comedy, you’re revenging yourself on old Will for trying to take you somewhere you don’t want to go (the land of tragic gore-fest). It’s much easier to poke fun than to stage Shakespeare’s actual play. And that’s what Gallanar’s choices have amounted to.

First of all, there are the casting choices. Shakespeare’s Titus is supposed to be a military man, a general for the battle-field. As played by Michael P. Sullivan, even wearing faintly-ridiculous reddish camos, he carries himself and looks more like a Northern Virginia military contractor who spends most of the day doing something with computers. (Yes, that’s a bona fide type, and plenty of us who live in this neck of the woods know plenty of them.) No miles gloriosus about him, and not much gravitas. His chief foil, Tamora, Queen of the Goths (Karen Rosnizeck) comes across as a suburban matron who’s taking time off from working out with a personal trainer because being a scheming empress is so much more of a hoot. And what is Saturninus the cadet emperor (Vince Eisenson) doing marrying Tamora anyway? Whatever the actors’ real ages, it looks as if he’d paired up with his mom. (Are we supposed to think that’s the real dynamic?) And what’s Marcus, a tribune and hence male by definition, doing being recast as female (and I’m sure I heard her inconsistently referred to as Marca) (Lisa Hodsoll) (picured above at left), and looking more like an art professor than a member of an all-male governing body?

Even when the casting isn’t off, the characterization is. Tamora’s brutish sons Demetrius and Chiron (James Jager and Sèamus Miller), are played as punks who seem to have wandered off the set of Mad Max, more canine than human. Lavinia would never have let herself be in the same zip code as those two. The lovely and chaste Lavinia, played about as well as can be expected in this chaos by Rachael Jacobs (pictured above at center), is still required to make a ridiculous gag-me-with-a-spoon face when first offered in marriage to the wrong guy. And there’s lots and lots of glee in various quarters over all the gore, and not, so far as I could make out, one moment of genuine, not-played-ironically, not deliberately overplayed pathos over the death and loss accompanying the stabbings and dismemberments. The only character who in Shakespeare’s conception seems to have taken that kind of pleasure in mayhem is Aaron the Moor (Gregory Burgess), but in this setting his over-the-top villainy and bloodlust do not stand out as they should.

In short, there seems to be zero respect for the play itself. It’s just a text to abuse about as badly as Demetrius and Chiron abuse Lavinia.

Sooo – that said: How was it? Well, let me put it this way: a lot of people in the audience were having a lot more fun than I was. I think if you take this show for what it was intended to be rather than what Shakespeare’s play was intended to be: if you view it as an entertainment for those whose taste runs to the aforementioned Mad Max, toRocky Horror, to the movies of Quentin Tarrantino (none of which I’m knocking, but let’s not call them Shakespeare), then this may be a lark for you. Within those broad and relatively undemanding parameters, Gallanar’s conception of the entertainment works.

But I do find myself wondering what we would have seen if the talented folks at Chesapeake Shakespeare Company had risen to the challenge of doing it straight, if the cast had been told to eschew modern-day cheap laughs and gone for Elizabethan cheap thrills instead. The audience might not have had so good a time, but I think we might have been dragged to an interesting place modern theatergoers seldom get to visit. You can catch a glimpse of what might have been at the end, when Titus serves Tamora and Saturninus meat pies that Sweeney Todd would have appreciated; the buildup to the moment works both as straight melodrama and as parody; Shakespeare knows how to build a scene. At a theater bearing Shakespeare’s name, you might have hoped for more of that to happen.

Well, that didn’t happen. I think it’s fair to say, though, that audiences looking for comedic horror will get enough of it to satisfy them.

Copyright (c) Jack L. B. Gohn, except for production photograph. Photo credit: Teresa Castracane.

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Trip Hop

In These Shoes?, by Kirsty MacColl (2001), encountered 2005

Buy it here | Hear it here | Available on Spotify | See it here | Lyrics here | Sheet music here

Jim the Jinn, by De-Phazz (2001), encountered 2005

Buy it here | Available on Spotify | See it here | Lyrics here

If you’re lucky, you’ll spend your earliest years in a fine flush of rapture in which everything seems new and memorable. Later on, unless you make up your mind not to grow up like Peter Pan or Jim Morrison and you’re more successful at it than most of us, you won’t go on perceiving things that way. Having made the sensible choice to grow up, you’ll find that most of the time, most of the things around you will appear “bleared, smeared with toil,” to use Gerard Manley Hopkins’ phrase. Yet even then, life affords the occasional wormhole moment, when gaps open up in your mental cosmos and allow you momentary trips back into that earlier state of mind.

In late February 2005, I stumbled on a wormhole.

It was time. After various struggles (some recounted in these pages) that had predictably done their share to blear and smear, I had reached a non-ecstatic, if comfortable, adult moment. I was eleven years into being my own boss. I was writing a newspaper column, and receiving some respect in my profession. My mother and my wife’s mother were in a stable environment where we could keep an eye on them. Our son was in the last throes of childhood. Mary’s writing was going well still; the great destruction the Internet wrought on freelance journalism was a year or two in the future. Everything was sufficiently under control. But there wasn’t much contact with what Hopkins called the “dearest freshness deep down things.”

And it was time for some fun, the perfect moment for me to encounter Trip Hop. Let me acknowledge immediately that there’s a complete lack of unanimity in what that label means.[1] But for me it was captured in two CDs I ordered from Amazon the preceding month, and fell in love with immediately.

I was playing them on the day our son Matt and I drove the 110 snow-covered miles from Baltimore to Berkeley Springs, West Virginia. We were making the drive to join Mary, who’d traveled there the day before, to be a judge in a water contest.

A What Contest?

That’s right, a water contest, a showdown among various brands of bottled spring water. This simple combination of hydrogen and oxygen molecules, among the commonest and most homogeneous stuff in the universe, was competing and being judged, fundamentally, on minute differences amongst the impurities its bottlers were compelled to purvey, a bug treated as a feature. And Mary, by virtue of her travel writing, had been made a judge. The whole enterprise evinced a happy frivolity.

How appropriate, then, were the two CDs in the car’s player! One was Death by Chocolate, a collection of collage-like songs full of sampling and turntablism by De-Phazz,[2] a German collective with at least a couple of Americans sprinkled in, all performed in English. My favorite was Jim the Jinn, which I’d first encountered as the music (speeded up) for the opening titles in the movie The Truth About Charlie,[3] and been so enthusiastic about that first I’d bought the soundtrack album, and then, in January, the source album, Death by Chocolate. The song was all about shape-shifting:

You might just be a poor tailor’s lazy son

I don’t mind, rub the lamp

and the show goes on

I can make you travel in time and space

I can change your sex,

I can change your race

If that weren’t enough, the song begins and ends with the throwaway phrase “Daddy was just a girl in disguise.” The movie was about shape-shifting, too, being a remake of Charade, both movies full of sinister people who keep turning up in different contexts, and an apparently wholesome guy whose claimed name and job keep changing. De-Phazz’s music is irresistible, from the first upsweep of a harp to the bouncy, trombone chorus-propelled fuselage of the song. You cannot possibly take any of it seriously.

Shoe Fetishism and Cuban Trumpet Breaks

The other album was Kirsty MacColl’s Tropical Brainstorm, an extended exercise in sublime frivolity with a strong Cuban accent. Come to think of it, its mambo flavor was itself a form of shape-shifting for a quintessentially British pop songwriter and performer. The standout song, In These Shoes?, is a upbeat tale of the singer being propositioned by three different men. She cheerfully accepts each overture in principle, but she has to evaluate the specifics of the proposed tryst relative to her shoes. Two of the guys are told that “in these shoes,” the idea of making her tramp or ride a horse somewhere else to get it on is … not on. The shoes aren’t described, but it seems likely from the description of the third encounter that shoe fetish styles may be involved. All to the sound of Cuban trumpet breaks and a somewhat inconsequential chorus sung in Spanish by a female chorus.

It was perfect background music for that day, the whole of which was just for fun. We picked up Mary at the bed-and-breakfast where she’d stayed the preceding night. We walked around the park in the heart of town, taking in an apothecary and a print shop. We drove Mary up to the Coolfont,[4] where the judging was to be, stopping to admire the nearby valley. Then Matt and I drove back and took a Roman bath in the heart of town, fed of course by the eponymous Springs. Matt and I had never had a Roman bath before, and found it a wonderful change from the cold weather outside. We also drove off westward, exploring, and ended up in Cumberland. I wanted to show Matt the locomotive shops where I had spent so much time two decades before, as I’ve written in these pages. We came back and took pictures of Mary in judging mode, before going to dinner with her and driving back to Baltimore.

Somewhere along the line, maybe while I was uncharacteristically unwinding in the baths with my son, it came to me not merely that I was happy, but that everything around me seemed wondrous. As we drove through the woods in the chilly afternoon in the direction of Cumberland, that feeling persisted. The way the winter sunlight cut through the denuded trees and blinked upon our car seemed a revelation – of what I cannot say, but maybe that’s merely because words are lacking, not because nothing was revealed.

Unnameable Connection

Even when we got to the Cumberland shops, which Matt, it must be said, found massively unimpressive, and which seemed to me to have lost some of their grandeur (perhaps along with some grime), the feeling did not go away, perhaps owing to a perception that the diminution of the mundane, workaday shops only highlighted the lasting grandeur of the surrounding hills, the works of God almost always overshadowing those of mankind.

So what then was the connection that day between the frivolous fun of the music and of the water-judging competition on the one hand and the more serious sense of Hopkins’ “dearest freshness deep down things”? Again, impossible to articulate in any way I find convincing. All I can say with confidence is that there was a connection, that light-hearted fun is sometimes a gateway, likely sometimes the only gateway, to something much more profound. There are those who scorn fun as a distraction from the proper objects of our attention. Days like that February day assure me they are wrong.

_________________

[1]. The term has been used to characterize everything from extreme electronica to torch, in other words denoting everything from a stylized absence of human emotionality to a stylized overindulgence in that emotionality, from a deliberate deprivation of the satisfactions of melody to a saturation in melody, from a dadaistic rejection of intelligibility to the height of ironic distance from uncomplicated emotion – a distance which requires a good deal of intelligibility to convey.

[2]. I’ve also seen it rendered as DePhazz and De|Phazz.

[3]. I’m not sure when I saw the movie. It came out in 2002, but, as I recall, I and Mary had planned to see it twice and were foiled, in one instance by a sold-out theater. I believe my first encounter with the film would have been as a rental, and I’m guessing it was sometime in 2004.

[4]. Alas, as of this writing it appears that this historic resort hotel is closed, and the lands surrounding it will likely be repurposed for vacation homes.

Copyright (c) Jack L. B. Gohn, except for album cover art

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Abhorrent, Not Unconstitutional: Trump’s Would-Be Muslim Ban

Published in the Daily Record January 8, 2016

There is no question that Donald Trump’s plan to cut off all entry to the country by Muslims, immigrants and visitors alike, is widely and justly felt to be contrary to this country’s values. But I have heard it said that such a ban would also be unconstitutional or illegal. I’m far from convinced. To be abhorrent is not necessarily to be illegitimate. Look at Guantanamo, legal enough, apparently, no matter how much it affronts our values. The proposed ban on entry by Muslims is in a different category from Guantanamo, to be sure, because Guantanamo is a fact, while the ban will probably never happen. But speaking of it strictly as an academic exercise, the ban looks at least as lawful as Guantanamo.

I’ve heard it said that the ban would violate the First Amendment. Why? The First Amendment forbids Congress to make any law respecting establishment of religion and instead guarantees the free exercise thereof.  Does the proposed ban really do either?

We know what an established church is: a church supported by state funding and/or given some preferred place in the national laws, the way the Church of England is in Britain and the Greek Orthodox Church is in Greece. Trump’s ban wouldn’t fund any faith with public money. And the closest it would come to giving any faith a special place in our laws would be by a very indirect route: by predictably diminishing the number of Muslim worshippers who would otherwise join communities across the nation, while not similarly diminishing the number of adherents of other faiths. Since the legislation and regulations that would be called for here would obviously be aimed at national security, a very different goal, it is a safe bet that an argument under the Establishment Clause would have a tough time. In court tests, complaints about incidental effects secondary to legislation to protect the public seldom  succeed.

What about Free Exercise? Well, there would be no direct impact upon the ability of Muslims already in this country to worship freely. The impact would fall only upon non-citizens abroad. They couldn’t come here to worship or evangelize. But foreigners in a foreign land are a group to whom the guarantees of the First Amendment would not ordinarily extend. The cases giving any Constitutional guarantee of rights an extraterritorial application are few and far between. In the Guantanamo cases, the Supreme Court did hold that due process applied on what was technically Cuban soil which was totally under U.S. control. But the U.S. has no control over most places in the world. Where U.S. control lapses and the parties involved are not citizens or even legal immigrants, U.S. rights do not ordinarily enter.[1]

Professor Laurence Tribe has also been quoted as saying that the program would violate the spirit of Article VI of the Constitution which says that no religious test shall be required for any public office. This remark had me scratching my head. Being allowed into the country is quite different from being allowed to hold public office.

Meanwhile, we must acknowledge that ordinarily U.S. control over the granting or the denial of immigration benefits is ordinarily plenary. And religion seems to be almost deliberately left out of the statutory description of forbidden bases for denying immigration: “[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” And we are even as I write in the process of crafting a change in our non-immigrant visa policy that amounts to a new screen for Islamic extremism. Our so-called Visa Waiver Program currently allows passport-holders from many countries in the developed world to enter the U.S. as visitors with few formalities. That program is being tweaked to diminish or deny its benefits to those who have recently traveled to countries in the Middle East believed to be hotbeds of Islamic radicalization. In effect that travel is being used as a sort of proxy for a sort of Islam. Call these changes Trump Lite, a way of discriminating in providing immigration benefits based on feared adherence to a kind of Islam. In any case, they are permitted by law

That’s about as close as we have ever come, so far as I am aware, to any kind of classification of persons based on religion, and it’s a pretty weak kind of classification. Of course, here I venture into the taxonomy of a religion that is not my own, so I must be careful. But my understanding is that the forces the Obama administration is mainly concerned to exclude are not members of a particular sect; certainly, even if they are all or mostly Sunni, we are not looking to exclude the vast majority of Sunnis, only those whose religious views impel them toward militant enmity against the West.  And we do that only because of the enmity, not the religious views tied up with that enmity. And we do it only as a national security measure, because that enmity has wrought murderous attacks it is only rational to try to prevent. Legitimate national security and law enforcement goals have in the past justified certain discriminations against religion, even as to individuals who can claim the protection of the Bill of Rights, like Native Americans seeking to use peyote in their religious observances.

Moreover, though religion and nationality are not the same thing, we also have a long and strong and currently extant tradition of classifying people for immigration benefits based on their nationality. To this day, notwithstanding the general language I quoted above, your chances of being allowed to immigrate to the United States vary greatly based on what country you currently call home. They have ever since the Chinese Exclusion Act of 1882. It seems that there is now a strong feeling expressed by law professors and Supreme Court justices that that law was unconstitutional. But I have never seen a convincing arguments why, let alone how that arguments reconcile with current practice.

Another argument I have heard is that the International Covenant on Political and Civil Rights, a treaty to which the U.S. is signatory, forbids exclusion on the basis of religion. I’ve read the treaty, however, and while there is much there which protects the religious rights of persons within our borders, and while it would prohibit discrimination based on religion in determining who could exit, it says nothing interfering with the ability of signatories to impose religious tests for who may enter.

So yes, it’s loathsome demagoguery to deny people entry because of their religious faith, especially when many are fleeing violence at the hands of the very extremists we would lump them with. It won’t likely happen. But it’s hard to see where it’s unconstitutional or illegal.

[1] Professor Anna Su of the University of Toronto has sounded an interesting contrary note, suggesting that the free speech guarantees of the First Amendment do or should have extraterritorial application when U.S. public institutions control what happens abroad. Speech Beyond Borders: Extraterritoriality and the First Amendment, 67 Vand. L. Rev. 1373 (2014). But exclusion is such an indirect form of control of worship it hardly merits the description.

Copyright (c) Jack L. B. Gohn

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Losing the Rule of Law, Memorandum by Memorandum

Published in the Daily Record December 3, 2015

It was disheartening, in a deep-down, bone-wearying sort of way, to read the recent report in the New York Times of how four top federal lawyers drafted secret memoranda of law to the President to justify the 2011 raid that killed Osama bin Laden and culminated with his corpse being spirited away so that no one could ever honor his burial-place. These memos told the President he could order a number of violations of what most people had understood to be the law. He could invade Pakistan, execute someone wanted for violations of U.S. law without benefit of trial, fail to consult Congress in advance, and sink the body of an enemy combatant at sea. The Attorney General was kept in the dark about any of these memos until the day before the raid; even the notorious Office of Legal Counsel was not told. And if the raid failed, the plan was, if possible, to lie and deny that the raid had occurred.

Doing It Bush-Style

This kind of secret legal memorandum, justifying enormous violations of things like the Bill of Rights, the Geneva Conventions, international law, and Congressional controls on presidential war-making powers, was a staple of the George W. Bush administration, as this column has chronicled over the years. Now we find, with little surprise, that it has gone right on in President Obama’s time. The Obama memos have not been published, so one cannot be certain, but it is a safe bet that these memos used the same basic technique as the old Bush ones: when the law in one category doesn’t work, shift paradigms, especially moving back and forth between the paradigm of criminal procedure and that of the law of war.

All of this was fundamentally at odds with what lawyers, especially government lawyers, were supposed to be doing: determining, publicly and accountably, how to follow the law. They were not supposed to be planning how to break the law, secretly, under cover of lies.

Symmetrical On Asymmetry

This perversion was, however, a natural temptation in an age of asymmetrical warfare, the only kind of warfare bin Laden waged, despite all those videos we saw of al Quaeda camps training recruits in the use of military weapons and tactics. The essential al Quaeda technique, perfectly displayed on 9/11, was to infiltrate civil society as civilians and commit atrocities from within, essentially as criminals, not as armies, mostly attacking civilian society, not the armies and governments that protected it.

The freedoms the law of war permits nations in wartime were granted because of the nature of armies and the paramount importance of governments. But when the target is mostly the spirit and the ideals and the morale of one’s country rather than its army or government, are the freedoms of the law of war equally appropriate?

To those who wrote the Bush/Cheney/Rumsfeld-era memos, the answer was yes. And apparently now, that is the case for the Obama lawyers as well. The basic impulse is pardonable. When the enemy does not respect the civilian/military divide, it is natural to follow suit in self-defense.

Yet it is a terrible thing to follow our enemies’ example in this way. It has been argued in this column as well as many other places that the dichotomy in our laws between civilian and military spheres is vital to the country’s rule of law. Under Bush and Cheney and Rumsfeld, we saw what ignoring that dichotomy led to: torture, gulags of black sites nearly impervious to due process, violations of territorial sovereignty of allies, warrantless arrests and renditions, degradation of the law of war. And it culminated in gratuitous and destabilizing warfare that squandered American lives and money, warfare which would never have been waged had we not, with the advice and blessing of lawyers, found ways around our Constitution and laws, had we gone on treating civilian matters as civilian matters, and adhering to the law of war in military ones.

None of this is to ignore or to minimize 9/11. It was that event, above all, that led the lawyers to make their recommendations – and our country to follow them. Nor am I making light of the threat bin Laden posed. But there are cautionary examples, from the Roman Empire to the West Bank, showing what happens when threats drive nations into what would have once been thought morally and legally unacceptable places. The poison tends to stick around long after the reasons we first started taking it have gone.

And now (this is written just after the Paris attacks) the dismal scenario seems to be happening again. Today’s signature threat, ISIS, is a new twist, a foe that simultaneously employs both armies and criminals to wage both conventional and asymmetrical war. But the new twist will likely only intensify the impulse to blur and blend the rules by which our society responds to warfare and those by which it responds to crime.

Not to Make It Easy

In such a climate, our duty as lawyers, in and out of government, is not to make it easy for our leaders to give in to that impulse. Changing times always require changing laws, that is true, and changing threats do require changing responses. But most of the time the tried and true ways are the best. Our country has done very well when the old rules have been followed: when wars were declared, not covertly and illegally undertaken; when murderers were arrested, not assassinated from the skies; when criminals were imprisoned and fairly tried, not secluded in an island prison or an unacknowledged black site; when personal privacy was fostered and not subverted by the government; when the Geneva Conventions actually guided our actions, and prisoners of war were treated humanely; when we respected the boundaries of other nations. The more we allow ourselves to stray from those norms, the less we shall even know who we are.

It will always be possible for lawyers to find a reason that the rules do not apply in whatever situation we face at the moment. Every circumstance is distinguishable from others, and the thicket of laws is so thick, we lawyers can always venture into it and come back brandishing some legal principle to justify whatever our leaders want to do. But if we lawyers justify our leaders into losing their way, we shall have failed in our most important responsibility.

Unfortunately al Quaeda and ISIS and their ilk have shown they can kill a lot of people, which is bad enough. It would be a greater tragedy, however, if they killed the rule of law. If there truly is such a thing as American exceptionalism, the rule of law is at the very heart of it. Make a hollow mockery of that rule, and America will with utter inevitability become just another country. More than anyone else, it’s up to the lawyers to prevent that from happening.

Copyright (c) Jack L. B. Gohn

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Diesels, Directors and Dogma

Published in the Daily Record October 23, 2015

To a hammer, the proverb goes, everything looks like a nail. One might add: Even when it’s nothing like a nail at all.

Recently the workings of this principle popped up in a New York Times column on the Volkswagen mess by James B. Stewart, a journalist whose beat is business, and who seems, on the evidence of that column, to have been covering it too sympathetically and too long. As of September 24, the day Stewart’s piece ran, and indeed as this column is being written in mid-October, we did not and do not know who in management ordered or who in management knew about the hidden software feature that fooled regulators into believing VW’s diesel fleet emitted far lower levels of nitrogen oxides than it actually did. In fact, as cooler heads at the Times had admitted two days earlier, we still do not even know what the feature was designed to do: save fuel, increase torque and acceleration, or both? Nor do we know how it worked.

Undeterred

Yet none of that deterred Mr. Stewart from using the scandal to make far-fetched but familiar arguments better suited to the editorial page at the Wall Street Journal than to a responsible contributor to the news hole of the national paper of record.[1] The Volkswagen scandal, Mr. Stewart confidently informed us based on almost no facts, was the result of two things WSJ-ers cannot abide: a board on which founding family members and labor unions have a significant clout, and a commitment to maintaining a large labor force. Somehow – Stewart never tells us exactly how it came about – a board answerable to unusual constituencies, and a determination to see lots of German workers comfortably employed was to blame. How, then, do we know there was a connection? Well, because a professor at the University of Delaware said the governance scheme constituted “an accident waiting to happen.” Oh, and “a longtime former senior Volkwagen executive … agreed that a scandal … was all but inevitable at Volkswagen.”

Right. That’s helpful and informative.

A People’s Board for the People’s Wagen?

Okay, so one could shrug this off as a simple instance of journalism unworthy of the Times, proof, if you will, that even Homer nods, and leave it there. But I see an unpleasant agenda at work here. The constituents of the board that so offended Stewart were the family of the people who had founded and built the corporation and the people who work there (all right, also Qatar’s sovereign wealth fund and the government of Lower Saxony, which also control board seats). Running a board as if it were about people! Stewart was so appalled he needed to denounce it, even if board’s makeup and goals may have had nothing to do with the engineers subverting the software.

None of which is to excuse what VW did here. Nitrogen oxides in diesel exhaust are very bad for people who breathe them and bad for the environment. They are what economists call an externality. As handily defined by Wikipedia, an externality is a “cost or benefit that affects a party who did not choose to incur that cost or benefit.” By selling a car to a consumer, VW and the purchaser obtain the benefits of the transaction between them. They chose and will obtain those benefits. By selling a car which belches illegally noxious fumes, however, VW also burdens everyone with lungs plus all the leafy vegetation in countries which not only had not bargained for that kind of burden, but had actively sought to prevent it by regulation.

False Choice of Externalities

The slick little ploy Mr. Stewart had sought to pull was to blame one form of externality (air pollution) on efforts to avoid another (unemployment). And what a terrible thing trying to avoid that second externality was! Imagine, as Mr. Stewart chronicled, VW using 600,000 people to build about the same number of vehicles as Toyota built with 340,000! Well, that Delaware professor knew just what to say about that: “[M]aximizing employment shouldn’t be the primary goal of a board.” So take that, VW! If only you fired about half your workers, you too could be like Toyota and – not pollute so much. Because that’s the only possible choice, of course.

I’m going to assume (since Stewart didn’t bad-mouth Toyota’s board the way he did VW’s) that he would be happier with Toyota’s corporate governance and goals. But what then would Stewart say about the recent recall of the lethal Takata airbags in 5 million Toyota vehicles worldwide? A bit of an externality, too, I think you’d agree, but one you can’t blame on a board of directors trying to stem unemployment. Or what about those even more lethal GM ignition switches?[2] Was there an issue with too much philanthropy on GM’s board that made those switches inevitable?

Pro-Shareholder Dogma

Mr. Stewart’s hysterical invocation of the quite possibly unrelated emissions scandal as a reason to distrust VW’s corporate governance scheme betrays a palpable fear of allowing unconventional stakeholders a voice on corporate boards. The Delaware prof he quotes says that there is a “fundamental conflict” between profit-seeking, the only true goal of management in his eyes, and workers’ interests, which unions promote, and that in view of that conflict, workers shouldn’t sit on boards. Stewart acknowledges that workers do sit on typical German corporate boards. And how awful can that be? After all, Germany’s is the strongest economy in Europe.

The dogma Stewart wants us to accept unquestioningly elevates the interests of one set of stakeholders (investors) above the interests of all others when it comes to directing corporate agendas. Yet corporations affect a wide variety of stakeholders, including workers and (as in the present scandal) people who must breathe the air. Corporations are creatures of state law. Historically corporations were created to implement state policy. Why then is it so unthinkable to have a policy of designating board seats for representatives of those affected by corporate externalities?

Anti-Shareholder Realities

I assume that Stewart is happier with corporate governance in keeping with U.S. norms. But a notion that U.S. corporations are run in the interests of shareholders reflects reality about as well as VW’s former claims about its cars’ emissions. We haven’t reached the situation where a tiny sliver of the population controls the vast bulk of the wealth by having corporate boards look out for investors. Corporate boards are primarily made up of and look out for the interests of senior executives. Two years ago Bloomberg News calculated the ratio of the compensation of CEOs to the median compensation of other employees at the Standard and Poor top 250 companies. The ratios ranged from 1,795-to-1 down to 173-to-1. Those CEOs are a large proportion of the people who are getting the nations’ wealth. Even at the lowest ratio, can anyone honestly say either: a) the interests of the stockholders are being well-served? or b) the interests of the workers are being adequately protected?

To anyone who says yes, I have a used VW diesel to sell you. Trust me, it has super-clean emissions.

_______________

[1]. By way of full disclosure, I myself have had an article published in the Journal, a publication which maintains high journalistic standards – except on the editorial and op-ed pages.

[2]. As of this writing, it would appear that the airbags have killed eight people. At least 100 appear to have died as a result of the ignition switches.

Copyright (c) Jack L. B. Gohn

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