Tag Archives: work

Sizing Up A Successful FOIA Litigation

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Bill Moyers drafted this paragraph for President Johnson’s FOIA signing statement in 1966. LBJ rejected it, but it’s a good reminder of what FOIA is really all about, or should be about.

My Boundary Waters Freedom of Information Act case, Galdieri v. Department of  the Interior, is about to wrap up, with a Stipulation of Dismissal to be filed shortly.*

In my first outing as a pro-se FOIA plaintiff, I obtained over 6,500 pages of previously unreleased records. Some of these records made their way into congressional hearings, news stories , public comment, opinion pieces, and a webinar. Maybe they contributed to the public understanding of decisions the previous administration made; maybe they even helped change some minds. I’ll probably never know. Instead, I’m trying to sort through what I learned in the process and how these lessons might apply to my work in the future.

While there’s no formal judgment I can tout, a Settlement Agreement covers my litigation costs (a $400 filing fee), and I’m happy to take that as tacit admission that I “substantially prevailed,” in terms of the Freedom of Information Act. The statute says “a complainant has substantially prevailed” — and is therefore entitled to litigation costs and attorney fees — “if the complainant has obtained relief… through a voluntary or unilateral change in position by the agency.” That’s essentially what happened here, when the Department of the Interior agreed to review over 25,000 pages of records it had held back.

I might have pressed for even more than the filing fee, but I am not sure how strong my case would have been. In Cuneo v. Rumsfeld, the DC Circuit Court of Appeals offered this reasoning:

In enacting [The Freedom of Information Act,] Congress sought to lower the barriers facing the average person requesting information. Furthermore, successful FOIA litigants enhance the public interest by bringing the government into compliance with the law. As agents of the national policy of public disclosure it is equitable that they be awarded for their service. Under current federal attorney fee statutes when the social service rendered by the prevailing party is substantial, the courts have been willing to dispense with formal and rigid attorney and client requirements. … A successful FOIA litigant is entitled to similar consideration.

The question how I might value the time spent on this project doesn’t really come down to dollars and cents anyway. There’s another register of value in the language the court uses in Cuneo regarding “the public interest” and in the language about “good government” Bill Moyers uses in his draft of LBJ’s FOIA signing statement. These texts help hitch my efforts to a serious purpose, and I reach for them with that in mind.

I hope that doesn’t sound self-aggrandizing. This three-year-long episode started with an idea for a film, an investigative documentary that would travel from New York to Minnesota, Washington DC, and Santiago, Chile. That was ambitious. Instead, I ended up on a paper chase and locked down in Brooklyn during a pandemic. That was frustrating and humbling.

Along with what I learned during that period about the putative subject of my investigation, I am reminded (once again!) that there’s always meaningful work to be done after things fall apart or plans go awry.  A small consolation for mice and men.

*Update, 19 May 2022: A stipulation of dismissal was filed this morning and the judge ordered the case dismissed.

On Making Yourself Useful, Or Not

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The Effective Altruists have persuaded Rhys Southan that his screenplay-writing is of no social value and ethically idiotic. They may be right, but he’s going to keep doing it anyway.

Good for him, I suppose. Keep trying, expect failure and look for unexpected outcomes. Take some time to think about why you want to write a screenplay or make a film or pursue a project. (This post by Jay Webb is a good place to start.) But don’t bother with people who tell you to make yourself useful.

Southan is bothered by them, I gather, because he seems to be confused about what art is and the work that artists do — a theme I touched on the other day in a post about the misappropriation of a sentence from Aquinas’ Summa, and a couple of weeks ago in my post on the word “sullen,” where I discussed Ingmar Bergman’s disciplined solitude.

He seems to understand his screenplay-writing and for that matter all art as “self-expression”; and then he asks that art improve society. On the one hand, he reduces art to vanity — not a disciplined encounter with humanity of the kind Bergman describes, but an elaborate selfie. On the other, he subordinates art to half-baked social engineering schemes and encourages didacticism or morally uplifting platitudes of the sort Alain de Botton has foisted on to the collection at the Rijksmuseum.

To ask whether art is useful is to ask the wrong question of it — or at least to invite a Thomistic quibble that restricts the meaning of the term and helps move the conversation away from confused Romantic ideas: as an operative virtue, art is useful to the artist. “The craftsman needs art, not that he may live well, but that he may produce a good work of art, and have it in good keeping.”

What’s more, to live merely by calculations of utility of the kind the Effective Altruists urge is not to lead much of a life at all: you may set out to do others some good but you probably won’t have a very good life. May I enjoy a fresh fig or a cigar, split town and head for the coast, putter around in my garden, consider an idea, make love or make a friend without submitting to a utility calculation?

Of course I can and should and will, and this isn’t just a matter of opting for pleasure over other considerations of utility.

A person who becomes my friend, or professes to love me, based on calculations of utility would have to be a sociopath or a monster of some kind. A person who tells me how I might make myself useful — appealing to moral criticism in order to advance a social improvement scheme — would be equally suspect.

To question the altruism of Effective Altruism may ultimately be an altruistic thing to do.

Rickaby’s Doublet — Doing the Work Philosophy Bots Won’t Do

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The other day a Twitterbot called @AquinasQuotes tweeted this:

While others retweeted it and favorited it and seemed to identify with it, I thought the translation sounded ungainly and struggled to make sense of it.

As I’ve noted before, most philosophy bots seem to operate without editorial (let alone philosophical) oversight; so it’s no surprise to find misattributions, awkward translations, sentences taken out of context and once coherent thoughts rendered nonsensical. There’s often not much editorial discernment on the other end of the communication, either; if it sounds vaguely encouraging and uplifting, it will find an audience.

The quotable items the bots serve up usually appear without any link or citation that would allow them to be tracked down and read in context, and in most cases they aren’t even lifted from a work of philosophy. Instead, they’ve been pulled from some existing compilation of quotations — which was made, in the majority of cases, from some other compilation. We are almost always at several removes from the original text.

In this case, I tracked down the quotation about living well and working well to the Summa Theologiae, 1ae-2ae Question LVII Article 5. Here Aquinas takes up the question: Is Prudence A Virtue Necessary to Man? The full argument runs as follows in the translation by the English Dominican fathers.

Prudence is a virtue most necessary for human life. For a good life consists in good deeds (bene enim vivere consistit in bene operari). Now in order to do good deeds, it matters not only what a man does, but also how he does it; to wit, that he do it from right choice and not merely from impulse or passion. And, since choice is about things in reference to the end, rectitude of choice requires two things: namely, the due end, and something suitably ordained to that due end. Now man is suitably directed to his due end by a virtue which perfects the soul in the appetitive part, the object of which is the good and the end. And to that which is suitably ordained to the due end man needs to be rightly disposed by a habit in his reason, because counsel and choice, which are about things ordained to the end, are acts of the reason. Consequently an intellectual virtue is needed in the reason, to perfect the reason, and make it suitably affected towards things ordained to the end; and this virtue is prudence. Consequently prudence is a virtue necessary to lead a good life.

I understand the impulse to get away from “a good life consists in good deeds” or “good works,” but the translation of bene operari as “to work well, to show a good activity” doesn’t really help. First, it tries too hard to articulate the Latin verb, so that instead of a simple construction (“to work well”), we have to grapple with an unnatural sounding doublet. The English Dominicans seem to have understood that it’s not really all that necessary to fuss over the verb operor here, since Aquinas spends the rest of the article breaking down what he means by it: not only what we do but how we do it, from right choice rather than merely from passion or impulse, and so on.  And if we try to parse “show a good activity” we might run into other problems, since it could easily be confused with hypocritical display.

The trouble seems to have started with the publication of Father Joseph Rickaby’s Aquinas Ethicus in 1896, where the Stonyhurst philosopher offered “to live well is to work well, or display a good activity”. I’m still not sure what Rickaby was trying to accomplish with this doubling of the verb (why “display”? why “a” good activity?) and by what contortions he managed to get the adjective “good” for the second half of his doublet from the adverb bene. I take it that with “display a good activity” he’s reaching for something like Aristotle’s “activity of the soul in conformity with excellence or virtue” and that in bene vivere consistit bene operari the Jesuit hears Aquinas hearkening back to Aristotle’s definition of eudaimonia or happiness as eu zen (living well) and eu prattein (doing well).

It’s unfortunate that Rickaby did not consult with his friend Gerard Manley Hopkins for a more felicitous phrase. The thing might at least have had some rhythm to it.

In any case, it was only a matter of time before someone tried to make things a little more natural sounding and came upon the word “show.” (I haven’t yet tracked him down, but I should.) That’s how we find Rickaby’s doublet reproduced (without comment) by creativity guru Julia Cameron in her book Walking In this World, in Forbes magazine’s “Thoughts on the Business of Life” feature, and on a whole batch of sites offering inspiring quotations to live by.

I wonder how Forbes readers or Cameron’s readers make sense of this sentence from the Summa, without the benefit of Aquinas’ explication. Do they find in it something like Garrison Keillor’s exhortation at the end of Writer’s Almanac to “do good work”? Or do meaningful work? Or do the work to which one is called? (Can we still talk meaningfully about vocation?) I wonder, too, whether it genuinely clarifies things for them, or why they might wish to identify with the statement and pretend to themselves and others that it clarifies things or inspires them.

This isn’t just a matter of being fussy or snobby about the misreading of Aquinas or deploring the degeneration of philosophy into a meme, though I do have that reflex, I confess. I’m noticing something else happening here, and it has to do with confusion that Rickaby’s doublet causes, or at least fails to resolve, for modern readers around the English word “work.”

Consider just for a moment the appearance of this sentence from the Summa in Cameron’s book on creativity. It hangs there in the margin on page 105, as a gloss on the following passage: “When we start saying ‘Can’t, because I’m working,’ our life starts to work again. We start to feel our artist begin to trust us again and to ante up more ideas.” We have to make room for “our artist,” who retreats when we are busy and over-scheduled, to come out and play. Then and only then will our life “work” again. That’s Cameron’s word, not mine; she’s saying that when we cordon off time for artistic work, our life “works” — makes sense or becomes meaningful again.

This idea of a life that works should bring us back into the territory of eudaimonia as human flourishing, or happy activity; the life of the working artist flows, but not because she acts in accordance with virtue, but because she takes measures to care for the self and allows “her artist,” or what used to be called her genius, to come forward without fear or interference. “We forget that we actually need a self for self expression,” Cameron continues, and that is why we have to say “no” to invitations and other demands on our time: “Instead of being coaxed into one more overextension of our energies in the name of helping others, we can help ourselves by coaxing our artist out with the promise of some protected time to be listened to, talked with, and interacted with.”

The notion of an artist abiding within us who needs to be drawn out and cared for and listened to would be entirely foreign to Aquinas and the Aristotelian ethics on which the Summa draws. That aside, I’m sympathetic to the argument Cameron is making here. Just recently I wrote admiringly of Ingmar Bergman’s “disciplined solitude,” and I know firsthand how hard and how critical it is to secure protected time in order to do one’s work. There’s that word again: work. Maybe it’s always been a confusing word, and maybe that’s why in the 19th century Rickaby felt he had to render it with that doublet. But I have to point out that the “work” of artists, writers, craftsmen, creative people — the work Cameron wants us to put aside time for so that our lives will start to work again — isn’t at all the work Aquinas is talking about at this juncture in the Summa.

In fact, Aquinas takes great pains in this part of the Summa to draw a sharp distinction between the work of the artist and the performance of action: following Aristotle, he distinguishes the artist’s making (facere) from doing (agere); and with this distinction in mind he defines art as “right reason about things to be made” and prudence as “right reason about things to be done.” So the considerations that apply to “working well” or prudent action do not apply to the artist’s work. “The good of an art is to be found, not in the craftsman, but in the product of the art.”

Consequently art does not require of the craftsman that his act be a good act, but that his work be good (ad artem non requiritur quod artifex bene operetur, sed quod bonum opus faciat)….the craftsman needs art, not that he may live well, but that he may produce a good work of art, and have it in good keeping: whereas prudence is necessary to man, that he may lead a good life (bene vivendum) and not merely that he may be a good man.

By the time we’ve gotten to Cameron’s book and its ideas about creativity, the quotation from the Summa has lost all connection to Aristotlelian ideas about “work” as virtuous action and the other-directed performance of duties (or what Aquinas calls the “due end” of action). Instead, the focus has shifted here entirely to the self and the demands of “self-expression.” What Father Rickaby called “the display of a good activity” is now sounding more like self-display. Through accidents of translation and misreading, the idea of work that Father Rickaby tried to capture in his doublet has drifted from an activity of the soul in conformity with excellence — or virtue — to what might amount to nothing more than the production of an elaborate selfie.

Denning and the Death of Hierarchies

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Steve Denning, the “radical management” and leadership guru, published a post at Forbes.com yesterday about the shift taking place within many organizations, away from hierarchical models of command and toward more fluid, flexible and agile setups. Drawing on Fairtlough’s The Three Ways of Getting Things Done — which argues that the only “effective” organizational models are hierarchy, heterarchy and responsible autonomy — Denning argues that hierarchies “must sign their own death warrants to survive” in what he likes to call the Creative Economy.

In this post, Denning’s interested in why business leaders cling to hierarchy even in the face of evidence that it’s no longer the most effective way of getting stuff done (if it ever was), and in the paradox that in all the examples he can find, “it’s the hierarchical management itself that has led the shift away from hierarchy. The shift didn’t occur as a kind of bottom-up movement. It was the top that saw that there was a better way to make decisions and went for it.” Flatter organizations tend to cleave to the status quo and work within established frameworks, he observes.

Of course plenty of other people within an organization might see that there is a better way. Those atop the organizational hierarchy are the ones permitted or entitled to say it aloud or do something about it. Hierarchy isn’t just a way to get things done; it’s also a way of distributing power, and the power relations hierarchy maintains are a daily fact of life for subordinates. They usually don’t have a place at the table when the organizational models are being drawn up or redrawn. In order to effect change within a hierarchy, those at the bottom – and the middle – would need to be enlisted as stakeholders, entrusted with real power and respected as equals (which would itself require some undoing of the organizational hierarchy).

I am a little puzzled why Denning here doesn’t present a more considered and nuanced view of the way power actually works within organizations – and the way in which concentrated power can actually hamper performance and kill ideas or even the motivation to present ideas about how to do things better.

That aside, and no matter how or why or by whom “the shift away from hierarchy” is brought about, Denning’s article is a good place to start talking about what this shift will really entail and require of people at every level of a hierarchical organization. It seems fair to say that as organizations get flatter and try to operate with more creativity and agility, the way things are coordinated – the way we use language to order the world, get things done and coordinate action — will itself have to undergo a radical change. The way I’d put it is that coordination will have to shift from the power of command to the power of asking.

Indeed, how we use language – how we make claims and demands on others, how we talk and listen to others about what to do — can itself help effect a shift from hierarchical command structures to the more fluid structure associated with the give and take of serious conversation (the rough equivalent, to my mind, of what philosopher T.M. Scanlon calls “co-deliberation”). I’ll have more to say about what constitutes a serious conversation in a future post.

Everybody’s A Beginner

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This passage from Hannah Arendt’s The Human Condition has come up again and again as I think about asking, action and non-coercive power — or what I’m calling the power of asking — so I thought I’d share it. It’s a little dense, but it repays careful reading.

With word and deed we insert ourselves into the human world, and this insertion is like a second birth, in which we confirm and take upon ourselves the naked fact of our original physical appearance. This insertion is not forced upon us by necessity, like labor, and it is not prompted by utility, like work. It may be stimulated by the presence of others whose company we may wish to join, but it is never conditioned by them; its impulse springs from the beginning which came into the world when we were born and to which we respond by beginning something new on our own initiative. To act, in its most general sense, means to take an initiative, to begin (as the Greek word archein, “to begin,” “to lead,” and eventually “to rule,” indicates), to set something into motion (which is the original meaning of the Latin agere). Because they are initium, newcomers and beginners by virtue of birth, men take initiative, are prompted into action. [Initium] ergo ut esset, creatus est homo, ante quem nullus fuit (“that there be a beginning, man was created before whom there was nobody”), said Augustine in his political philosophy. This beginning is not the same as the beginning of the world; it is not the beginning of something but of somebody, who is a beginner himself. With the creation of man, the principle of beginning came into the world itself, which, of course, is only another way of saying that the principle of freedom was created when man was created but not before. (pp. 176-177)

Pay close attention to Arendt’s distinction of action from labor and work in the first few sentences. That’s crucial. For Arendt, action is “never conditioned” by “others.” Unlike labor or work, action isn’t something we undertake because it is “forced” upon us by necessity or “prompted” by utility. It is not prescribed, commanded or ordered, nor are its terms to be set down for us by others in the form of rules or requirements. Its “impulse,” for Arendt, springs from within, or rather from that within us which responds to the fact that we are, each of us, a beginning.

You might get the impression from this passage — which places emphasis on initiative and invokes “the principle of freedom” — that acting is something one does, something one can only do, entirely on one’s own. That would be a misreading. There is a difference between autonomy and isolation, and a difference between being free from constraint or necessity and acting freely with others. We are all self-starters but we are also capable of starting things together.

It takes coordinating, and that’s where asking comes in.

One of the things that interests me about asking is that it can prompt action while recognizing and respecting freedom and autonomy. It can be a way of coordinating our actions with those of others, or of entering into league or “company” (the word is Arendt’s) with others — acting together. The power of asking is that it doesn’t set down rules or requirements, or set up a chain of command. It is a different kind of prompt: more like a cue for improvisation than a script to follow.

Asking doesn’t mean we have to do away entirely with all those rules, protocols and titles that structure human society and human institutions, but we also don’t have to take them so seriously and assume they are the primary condition of our lives. They are, at best, secondary agreements.

Leaders — the first to ask, or the first to act — may be primus inter pares, but in this view a leader is always inter pares, among equals. When we ask and when we act we are all on equal footing, and all of us, by the very fact of our birth, by nature, have the capacity to act, to begin, to set things into motion. We are all beginners.