Article - January 28, 2007 - National Institute for Advanced Conflict ResolutionR

When a decision-maker says, “it’s only about money,” he means that the choice to be made is purely rational and that strong emotions – feelings – will play no role in the analytic process to follow. When lawyers say a case is “only about money,” they are not only saying that emotional factors will not influence their decisions. They are often also saying that Plaintiffs’ expressions of injustice are insincere – otherwise they would not accept money in exchange for losses that cannot be reduced to monetary value such as the loss of life or emotional suffering.

Whenever any of us attempt to arrive at a monetary value for anything we buy, barter or exchange, we, like the lawyers and decision-makers above, are engaged in the process of commensuration in which qualities are transformed into quantities. In the case of a legal conflict, commensuration takes place not only in reducing physical and emotional loss into monetary values, but also by contracting the conflict itself into certain rigid categories of redressable wrongs we call “causes of action.” In both cases, the texture, context and idiosyncratic particularities of a conflict are reduced to a common metric of an actionable claim compensable in monetary damages. [2]

While the process of commensuration allows us to more easily grasp, represent and compare differences in an effort to “manage uncertainty, impose control, and secure legitimacy,” [3] we often thereby give up our recourse to “[e]veryday experience, practical reasoning, and empathic identification, [all of which] become increasingly irrelevant bases for judgment. [4] In simplifying matters for ease of analysis, we inevitably strip away context, ignore differences, and reduce the “relevant” facts to categories that reproduce past experience for the purpose of equating the thing to be valued with a supposedly objective metric. [5]

[1] Henry David Thoreau, WALDEN at 44.

[2] Stevens, Mitchell and Espeland, Wendy Nelson, COMMENSURATION AS A SOCIAL PROCESS (1998)24 Annual Review of Sociology 313-43.

[5] Id.; see also Even, William E. and Macpherson, David A. THE WAGE AND EMPLOYMENT DYNAMICS OF MINIMUM WAGE WORKERS (2003) 69 Southern Economic Journal 676 for examples of the way in which the profound differences in the labor we perform and the products that labor produce are abstracted and reduced to “manageable” categories for the purpose of determining the minimum acceptable wage that our fellows should be required to accept. A quick review of census and other statistical employment data reveals that the identical minimum wage is generally paid to the college student who passes your bag of burgers through McDonald’s take out window; the middle-aged mother of three who changes your sheets and linens at the local Holiday Inn; the retired high school chemistry teacher who tends to the needs of your elderly father at the local assisted living facility; the young actor bagging your groceries at the Bristol Farms; the Viet Nam veteran flipping burgers at an all-night Dennys; the night watchman guarding your downtown office building; the seamstress who embroiders designs on the back pockets of your $200 jeans; and, the cashier calculating the cost a 5,000 mile tune-up for your new BMW.

Money has been described as a medium of exchange, a measure of value; a standard of deferred payment, a store of wealth, [1] a criterion for measuring worth [2] and a “universal means to whatever ends are available in the market.” [3] Although the desire for money has been termed everything from irrational [4] to pathological , to evil,[5] the thing itself has meaning only insofar as people are willing to accept it in trade for items with intrinsic worth – food to eat, clothes to wear, medicine to treat disease, or property to give shelter.

We all know that money itself – its tangible form -- can neither sustain life nor enhance it. Nevertheless, we all too often pursue money for its own sake rather than for that which it can provide. [6] As we commence our investigation of money and value, we would do well to keep in mind the often overlooked but obvious facts of money -- that cash, credit, checks, money orders and wire transfers cannot themselves be consumed. Grant deeds and lease agreements cannot be inhabited. Stock certificates cannot create warmth in winter nor illuminate the dark of night. A policy of life insurance cannot support a family nor health insurance reduce a fever or prevent childhood disease.

At one and the same time, there is no relationship and every relationship between any given sum of money and that which it can buy. With $20 in my wallet, I can purchase dinner for five at McDonalds or a bottle of so-so Bordeaux at a local restaurant. I can pick up a pair of sandals at Payless; subscribe to Time magazine for six months; rent a surfboard at the beach; fill half my tank with gas; hire a day laborer to do odd jobs on a Saturday afternoon or, according to my Sunday magazine, save a third world child from starvation. Sentimental pop songs to the contrary, enough twenties can even buy me

It is money’s nearly infinite plasticity that makes exchange of unlike things not only possible, but nearly effortless. Unlike barter, which famously requires a “double coincidence of wants,” [8] money creates a bridge to the future; permits trade at a distance; allows the exchange of durable objects for perishable goods; and, is capable of reducing nearly every human activity into a quantitative monetary value. [9]

Even money’s form exerts some control over the way in which we are willing to deploy it. Credit card companies have recently seen the benefit in selling “debit” cards as a means of making the gift of money (rather than carefully chosen things) appropriate in settings where cash would seem gauche or even insulting. . [12] Gifts of money are generally meant to be expended on a single item or experience and are typically delivered with injunctions that the recipient buy something “frivolous” or do something “luxurious.”

The recipients of “cash” gifts are expected to report back on the special use to which the gift was put. If the beneficiary of the largesse were to spend the money on rent or groceries, it would surely be taken as an insult to the donor and embarrassment to the donee, or else cause for general alarm at the donee’s unacknowledged impoverished state. When we respond to our friend’s needs rather than their desires, we tend not to give monetary gifts but to (often reluctantly) make loans. And where we might happily and without serious thought spend $50 on a gift, we might well wring our hands at the prospect of lending such a sum for necessities. A dollar is not simply a dollar.

We are so oblivious to our own idiosyncratic uses of money that few of us stop to ponder why, for instance, we are willing to pay more than $7.00 for 100 tablets of Bayer brand “coated” [13] aspirin when we can purchase 500 tablets of identical “store brand” coated aspirin for $7.99 [14] let alone why we’re willing to pay hundreds, even thousands, of dollars for designer apparel of all types from tennis shoes to evening gowns.

Nor are we generally cognizant of the way in which our social and family relationships control our expenditure of money. [15] Certain classes of people, for instance, can and should be “tipped” for providing goods or services whereas others (such as one’s doctor) would be grossly offended were we leave her a $20 dollar bill at the end of the appointment.

Social (and class) relationships also control the form the payment of money should take. In some American sub-cultures, it is proper, indeed expected, for wedding guests to attach cash to a “money tree.” I have personally observed people from other American sub-cultures respond with horrified dismay to this practice. Those people live in a sub-culture in which gifts of cash are tacky at best, offensive at worst. “Gift” money, however, in the form of a certificate for goods at Williams Sonoma or Bed, Bath & Beyond are perfectly appropriate. Finally, anyone who has ever saved the “first dollar he earned” or set aside a particular cash gift with a specific purpose in mind, understands that money possesses sentimental as well as actual trade value. [16]

Particularly when it is used to satisfy our desire to see justice done, money can and does convey social and well as personal psychological meaning. As one commentator has written,

[v]oluntary monetary transfers can demonstrate individuals' acceptance of responsibility for the consequences of wrongdoing, sympathy for those less fortunate than they, solidarity with members of their community who have suffered misfortune, or obligation to family members or others. Socially mandated transfers--in the form of fines, civil damages, alimony, child support, social security payments, or taxes-- express group norms. Norms establishing the amount of money that should be paid in these different circumstances also convey meaning about how large an obligation one set of people has to another and about how much recipients deserve from these

As we explore the various meanings and uses of money in the context of a litigated dispute, we will increasingly come to see that the idea, indeed the ideology, that money is a single, interchangeable, absolutely impersonal instrument of rational, quantifiable market value may be the great mass delusion of contemporary society. [18] More importantly, a deeper understanding of the social, cultural, psychological and personally idiosyncratic “money meanings” people carry with them can aid lawyers and mediators alike in helping their clients translate (or de-translate) perceived injustice and its possible transformation into monetary terms.

The cognitive tendency in modern life to reduce qualitative determinations to quantitative ones permeates the law. Tort law is particularly reductive in carving out from the innumerable potential injustices only certain particularly defined “wrongs” for which remedies are available. By means of objective “forms of action” such as negligence, trespass or battery, the law takes unlike qualities and translates them into quasi-objective quantities.

By reducing the characteristics of intentional physical injury into actionable “battery,” for instance, we remove the textured qualities of the particular human relationship at issue and sort its objectively verifiable “facts” into predetermined categories of permissible or impermissible conduct that we call the elements of a cause of action.

The goal of this system is to provide as much predictability and equality as possible. Thus, we hope, every person who suffers an “unconsented to touching” will be recompensed for resulting losses without the “passion and prejudice” that the “irrelevant” details such as age, gender or social standing might evoke. [19] As a result, areas of ambiguity are eliminated, parties’ positions and opinions are polarized, and the matter is reduced to terms that are as black and white as they can be made to appear so that a jury, ultimately, can give the negative or affirmative verdict the law requires.

Difficult as it may be to reach a verdict that finds the defendant liable or not liable for a negligently caused injury, it pales in comparison to the nearly impossible mental and emotional work of assigning monetary value to non-economic harms such as humiliation, unresolved physical or emotional pain, or the loss of a loved one. [20] When presented with that task, the idea of value itself begins to collapse under the weight of its own first principles. Why does anyone pay $1,000 for a pair of Jimmy Choo shoes? Ten million for an early Hockney? $10,000 for the fresh ova “harvested” from the womb of an Ivy League [21]–college girl of suitable parentage and social class willing to trade her fertility for help with her tuition.

Such matters are generally considered incommensurable, i.e., one cannot be substituted for the other nor any two incommensurables treated as part of a single category to permit assignment of value and potential rational exchange. [22] Attempting to value incommensurables creates great discomfort and cognitive dissonance at a minimum and defies valuation at a maximum. Social, cultural, political, legal, artistic and professional communities are often responsible for creating and defending boundaries between commensurables and incommensurables. These include:

“art critics and museum professionals who certify some objects are masterworks . . . ;attending physicians who invoke clinical wisdom and professional privilege to designate some medical cases extraordinary . . . [;]intimate others [such as] the mothers and fathers of premature newborns . . . who are encouraged by hospital staff to name their babies, dress them in clothes brought from home, personalize their ward cribs with toys and photographs, and otherwise mark their infants as unqiue[; and,] organizations . . . that designate official historic sites, landmark neighborhoods and wildlife habitats. . . Whether they are priceless artworks, national treasures or precious children, incommensurable things are often regarded as somehow sacred, and like all sacred objects, their distinctiveness is defined through symbols and rituals [such as] the sequestering of certain cash [that] define[s] it as money for distinctive purposes and thus incommensurable with other savings. [23]

It is to the incommensurability of injury, loss, suffering and historic wounds that we now turn.

[1] Ingham, Geoffrey MONEY IS A SOCIAL RELATION (2002) 54 Review of Social Economy 507; Stevens and Espeland 1998.

[2] Wilson, Valerie, THE SECRET LIFE OF MONEY: EXPOSING THE PRIVATE PARTS OF PERSONAL MONEY (1999) Allen & Unwin, St. Leonards, N.S.W. at 52.

[3] Simmel, Georg. THE PHILOSOPHY MONEY (1978 [1907]) Boston: Routledge at 210-211. According to Simmel,

“[m]oney is the purest form of the tool . . . ; it is an institution through which the individual concentrates his activity and possessions in order to attain the goals he could not attain directly. The fact that everyone works with it makes its character as a tool more evident . Money in its perfected forms is an absolute means . . . [and] is perhaps the clearest expression and demonstration of the fact that man is a tool-making animal, which . . . is itself connected with the fact that man is a purposive animal.

Id.

[4] Despite our culture’s undeniable love of wealth, seeking money for its own sake rather than for what it can buy is considered pathological. World famous economist, Maynard Keynes has called the love of money per se, that is, the accumulation of gold, coins, papers or any other form of liquid wealth both irrational and fundamental to capitalism. Smithin, John, WHAT IS MONEY? (2000) Routledge: London at 196.

[5] Zelizer,Viviana A., THE SOCIAL MEANING OF MONEY (1994) Basic Books: New York at 2 (“Conservatives have deplored the moral decay brought by prosperity while radicals have condemned capitalism’s dehumanization, but both have seen the swelling cash nexus as the source of evil.” Id at 1).

[6] Although money owes it value exclusively to its quality as a means, i.e., its convertibility into more definite values, it has become the end itself. Simmel 1978:198; see also Coughlin, Richard, MORALITY, RATIONALITY AND EFFICIENCY: NEW PERSPECTIVES ON SOCIO-ECONOMICS (1991) M.E. Shape, Inc.: Armonk, New York at 80-81 (noting that the difference between the pleasure that possession of money provides and the degree of well-being expressed by what it provides can be measured by comparing the “money index,” and the “consumer” index, with money reported as contributing fifteen percent to life satisfaction and consumer goods only seven percent. Id.)

[7] As Valerie Wilson notes, although there may be some things that money cannot buy, its inability to purchase even happiness is “cast in doubt when life (e.g. children, surrogate motherhood), death (e.g. contract murder, abortion), [and] love (e.g. bridesprice, prostitution, contributions, philanthropy) are all bought and sold with money.” Wilson 1999:58.

[8] Ingham 2002.

[9] According to Simmel, who argues that money is “entirely a sociological phenomenon” and “form of human interaction,” money’s character

stands out all the more clearly, the more concentrated, dependable and agreeable social relations are. Indeed, the general stability and reliability of cultural interaction influence all the external aspects of money. Only in a stable and closely organized society that assures mutual protection and provides safeguards against a variety of elemental dangers, both external and psychological, is it possible for such a delicate and easily destroyed material as paper to become the representative of the highest money value.”

Simmel 1978:172)

[10] In a society where intellectual activity and abstract thought is ascendant, money becomes “more and more a mere symbol, neutral as regards its intrinsic value.” Id.152.

[11] Evans, John H. COMMODIFYING LIFE? A PILOT STUDY OF OPINIONS REGARDING FINANCIAL INCENTIVES FOR ORGAN DONATION (2003) 28 J. Health Pol Pol’y & L. 1003, 1022 (noting that people “tend to consider dollars that circulate within the same institutional sphere to have the same moral status.” Id. As Evans’ study of attitudes concerning the payment of money for human organs demonstrated:

“equating the surgical removal of organs with an object outside the medical sphere – such as the college education [a] family could buy with [a] $25,000 hypothetical payment [for a “donated” organ] – violates our sense of the sacredness of these [two] institution[‘s] boundaries.”

Id.

Thus, respondents in Evan’s study rejected the hypothetical exchange of organs for a college education but accepted the hypothetical exchange of organs for medical treatment. Id.

[12] Visa and MasterCard now make “debit” cards in certain denominations, permitting a gift of “cash” in a form that gift certificates have recently taken, i.e., in the form of plastic “credit” cards.

[13] For Bayer aspirin buyers, characterizing the resulting caplets as being “safety” coated as opposed to simply being “coated” increases the price of 100 325 mg. Bayer tablets from $6.33 to $7.39.

[14] A recent internet side-by-side on-line aspirin price comparison revealed:

500 caps 325 acetylalicylic acid	Family Pharmacy (coated)	$7.99
100 caps 325 acetylsalicylic acid	Family Pharmacy (coated)	$3.99
100 caps 325 acetylsalicylic acid	Bayer Caplets (coated)	$6.33
100 caps 325 acetysalicylic acid	Bayer “Safety” Coated	$7.39

[15] Although the exchange of money inevitably carries multiple messages about personal and social relationships and personal and social worth, these messages “are so embedded in the culture that many people rarely stop to consider them.” Hensler 2003:452.

[16] In one of American cinema’s most humorously touching scenes, Danny DeVito shows his writing teacher, Billy Crystal, his coin collection. When Crystal points out the obvious fact that DeVito’s coins are entirely ordinary and of recent vintage, DeVito recounts, coin by coin, the occasion on which his father gave him the money and the purpose for which it had been given. It is not surprising, then, that when we refer to our categorized money, we call them “accounts,” much as we “account” for our own actions by organizing our experience in relationship to societal norms and expectations. See Wuthnow, Rober, POOR RICHARD’S PRINCIPLE: RECOVERING THE AMERICAN DREAM THROUGH THE MORAL DIMENSION OF WORK, BUSINESS AND MONEY (1996) Princeton Univ. Press: Princeton, N.J. at 95. (“Accounts make sense of an activity’s relationship to the norms and expectations that exist within its social environment. Accounts are thus the connective tissue between activities and their social context. Their role and purpose is to render activities meaningful and legitimate in relation to certain features of their normative milieu. Accounts of work link this activity with some part of the culture in which it occurs.” Id.)

[17] Hensler, Deborah, MONEY TALKS: SEARCHING FOR JUSTICE THROUGH COMPENSATION FOR PERSONAL INJURY AND DEATH (2003) 53 DePaul L. Rev. 417, 451-452.

[18] As Viviana Zelizer emphasized, despite our practical experience to the contrary, we continue to treat money as an

“intellectual construct [in] a world in which unfettered individuals behave as rational participants in market transactions, making distinctions only of price and quantity, a dispassionate sphere in where all monies are alike.”

Zelizer 1994:3.

[19] Espeland and Stevens 1998 (noting that Plato believed commensuration would “make us more rational and render human values more stable and less vulnerable to passion, luck and fate” whereas Aristotle rejected the process, believing that “our sense of beauty depends precisely on its ephemeral qualities [and] that our ethics require us to invest in the singularity of others.” Id.)

[20] Happiness, expressed as “subjective well being” or SWB, has been said to consist of three components: life satisfaction, the presence of positive mood, and the absence of negative mood. Ryan, Richard and Deci, Edward ON HAPPINESS AND HUMAN POTENTIALS: A REVIEW OF RESEARCH ON EUDAIMONIC WELL-BEING (2001) Annual Review of Psychology 141.

[21] Graduation from one of the Ivies or a recognizably “superior” State University such as Michigan or Cal, endows the graduate with “social capital,” that is, the “capital of social connections, honorability and respectability.” Bourdieu, Pierre, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGMENT OF TASTE (Richard Nice trans., 1984) (1979) at 145. As Ivan Light & Steven J. Gold explained in ETHNIC ECONOMIES (2000) 92-93,

“denoting the web of connections, loyalties, and mutual obligations (shared fate, solidarity, and communal membership) that develop among people as part of their regular interaction, social capital refers to the sense of commitment that induces people to extend favors, expect preferential treatment, and look out for one another’s interests.”

Id.at 110.

[22] Espeland and Stevens 1998.

[23] Id.

Victoria Pynchon: Judicate West Panelist (www.adjudicateinc.com) 25 years complex commercial litigation and trial experience; instructor, National Institute for Trial Advocacy and Anderson School of Business, U.C.L.A. Entrepreneurship Institute (Summer 2006 - Negotiation Seminar); J.D. U.C. Davis, Order of the Coif; LLM. Straus Institute for Dispute Resolution; Federal District and Superior Court Panelist; Extensive Co-Mediation Experience with Judges Alexander Williams, III and Victoria Chaney of the L.A. Superior and L.A. Complex Litigation Courts, respectively. For full profile see http://www.settlenow.com. See her mediation blog "Settle It Now Negotiation Blog" at http://settleitnow.blogspot.com/.