LAST AMENDMENT (xlvii)*

#MeToo: TOWARD A MEANINGFUL REDISTRIBUTION OF POWER

Untitled, Oil on Panel, 35" x 46", Richard J Van Wagoner, 2013, Courtesy of Van Wagoner Family Trust**

When I was a 1L, Walter Oberer, then Dean of the University of Utah College of Law, scarred the law of contracts into my consciousness. The day before the final exam, a gaggle of students shadowed the Dean as he wandered the law school halls pontificating about this or that contract principle. Yes, I was one of those terribly insecure 1Ls, hoping for a last-minute morsel about meetings of the minds, executory contracts, unilateral and mutual mistake, promissory estoppel, quantum meruit, partial performance. Sadly for me, someone from my study group volunteered that I was struggling with an issue about consequential versus general damages. So I began. As I fumbled my way through the set-up with a hypothetical fact scenario, Dean Oberer stopped me. “Mr. Van Wagoner, I cannot teach you the law of contracts in ten minutes.”

Confronting my fears, I enrolled in Dean Oberer’s labor law class as a 2L. I’m sure we studied the NLRA (Walker Act), NLRB, NLMA (Taft-Hartley Act), history of and rationale for union organizing, collective bargaining, union security agreements, right to work laws, walkouts/strikes, lockouts, picketing and scabs. It’s been some 33 years since I took Dean Oberer’s labor law (a specialty that’s not part of my practice). What little I do recall is from the 50,000 foot level: exploitation as the result of power disparity and resistance through strength in unified numbers.

Unionizing and collective bargaining struck me as an apt analogue to the #MeToo phenomenon.

Parenthetically, growing up in a “right to work” state where the workforce and culture were distinctly homogenous (as compared to, say, almost any other set of demographics in the United States), I was oriented to people willingly acquiescing to power structures and voting (or raising their hands to the square) to maintain their subjugation. Indeed, I was one of those people. It would seem by voting with our tribe, we often unwittingly vote against our interests, concluding perhaps that life is safer, more secure, simpler when others make most of our important decisions. Or we hope by going along we may someday please our way past the gatekeepers, into the structures of power. Regardless, people like me wouldn’t have recognized or understood we’d been used, and had I understood, I likely would have gone along anyway. The rest, however, saw and understood their powerlessness but also went along, embracing or enduring their subjugation as a means to their survival. Or they withdrew or were driven away.

As Tyler Durden might declare, the “first rule” of power structures is to preserve the power and the structure. That is accomplished by design and by the very nature of unchecked power. Everyone beneath the structure is expendable and replaceable, a commodity that knows its place or soon learns the hard way. Challengers are silenced with threats and intimidation, promises and payoffs, termination and replacement. Powerful people and their enablers resist meaningful reform and capitulate only when confronted by existential threats. Until then, they are the existential threat to the powerless.

Untitled, Watercolor, 7.5" x 4.5", Richard J Van Wagoner, Date Unknown, Courtesy of Van Wagoner Family Trust**

The recent #MeToo movement did not expose the power disparity or the fact of sexual exploitation of others, primarily women, by those in power over them, primarily men. Was anyone really surprised to learn that entitled men might condition another’s entry into (or advancement in) a career on “giving it up”? Was anyone shocked to learn that such men just start kissing or grabbing ‘em, or open their robes, or grope ‘em, or walk in on teenage girls in various stages of undress, or rape 'em, or demand some form of sexual quid pro quo in exchange for pretty much anything (beyond, of course, the rapture of having been “chosen” to be used by such an important, sexually desirable man). Okay, the image of a powerful predator masturbating in front of his unwilling prey caught me a little by surprise. Sadly, however, I’m quite confident folks aren’t all that startled by sexual exploitation’s prevalence or by the names on the rapidly growing list of alleged and confessed predators and perpetrators.

What was the tipping point? What event or shift has allowed this movement not only to gain traction but to begin what most everyone, except the exploiters and their enablers, hopes will be a meaningful redistribution of power? How did the threat become sufficiently existential to force this avalanche of outings, this deluge of terminations and resignations, leaves of absence and separations, denials, apologies and, of course, boards of directors running for cover (but only after checking on their D & O coverage)?

My vote is the Hollywood Access “just start kissing ‘em, grab ‘em by the pussy” video. It’s about the only thing Trump’s done that’s resulted in a positive outcome, other than the firing of Director Comey which resulted in the Mueller investigation. As Alec Baldwin’s Trump said last night on SNL, Harvey Weinstein could have survived the scandal if he’d been elected president.

Hollywood Access struck and suddenly women he’d “allegedly” victimized in a manner consistent with his blunt self-description (and with whom he had no confidentiality agreement) began revealing their experiences. C’mon, the women’s logic went, Trump’s was a blatant admission, an explicit depiction, and the world would believe them. Right? Trump, of course, labeled them liars, denied it all, denounced one woman as not sufficiently attractive to have aroused his proclivities toward sexual assault, claimed he was the victim of the quickly growing coven of women who simply wanted their 15 minutes, women who targeted him for his fame and money. He would, of course, sue them for defamation. Standard strategy, mechanisms for the powerful to silence the powerless. And it almost worked.

The feigned outrage from the right (think Chaffetz) began. You may recall how these faux-righteous men politicized the event, protested their self-purity, invoked chauvinistic responsibility as protectors of the weaker sex, announced their inability to look daughters, wives and sisters in the eye were they (our faux-righteous protectors) to continue supporting a predator who should, given the details of his own description, be included on the national sex-offender registry.

Untitled, Watercolor, 10" x 8", Richard J Van Wagoner, Date Unknown, Courtesy of Van Wagoner Family Trust**

Posturing included, Trump’s Access Hollywood moment was a flash in the pan for the right, particularly because it was not a flash in the pan for the left. The outrage from the left, including or especially the Hollywood left, was raucous and unrelenting. The choice remained, however, Trump or Hillary: better anyone else, even a “Republican” sexual predator, in the White House than Satan (viz., Russian Bots). Problems from the right continued, however. Fox News. Big payoffs. What was buried in those SEC filings? What was being kept from investors?

Trump’s election in the face of Hollywood Access may have crossed the Rubicon for victims across many demographics. The offensiveness of Trump’s blunt admissions, the growing number of accusers, the unfolding Fox News disasters. Late-night television and social media kept it alive. All of this gave victims permission, strength in numbers, courage that they could be heard and would not simply be re-victimized or black-listed by the powerful and their enablers. Some of the predatory conduct had escaped confidentiality clauses in settlement agreements. So it started. When an alleged predator (a perpetrator whose conduct approximated what Trump boasted he had done and was entitled to do) arrived from the left, from inside the highest ranks of Hollywood, legitimate news organizations reported. So did Fox News, of course. Social media went nuts. Late-night television kept after it. Left-leaning people decided that exposing, confronting and addressing such reprehensible conduct, after having just castigated such behavior on the right, was the higher value.

Hundreds of voices in unison and union. A chorus against power that, as it turns out, created the necessary existential threat, thanks in part to Hollywood Access, Russian Bots Against Satan Hillary, and the left’s enduring outrage by the election of a sexual predator. I hope it sustains.

Maybe my favorite was Jr.’s attack on Democrats who received contributions from alleged sexual predator Harvey Weinstein and the ensuing Twitter colloquy between him and Jimmy Kimmel. Look it up. I suspect it gave victims an additional boost. (Hint, Trump has a history not only of sexual predatory conduct but of contributing to Democrats.)

Harvey Weinstein, Bob Weinstein, Kevin Spacey, Bill O’Reilly, Ben Affleck, Andy Dick, David Guillod, Dustin Hoffman, Terry Richardson, Roy Price, Mark Halperin, Michael Oreskes, George H.W. Bush, Lockhart Steele, Chris Savino, Andy Signore, John Besh, Cosmo Goss, Rupert Myers, Tyler Grasham, Leon Wieseltier, Robert Scoble, Andrew Kramer, Matt Mondanile, Ethan Kath, Knight Landesman . . . .

Next week’s post will discuss the harm a non-victim does to victims by falsely posting #MeToo

*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com

**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers.

ravchief

Natural US Citizen. Caucasian. Shamed into blogging by DSM-V Cluster B 9/9-led regime, Utah's most embarrassing congressperson, and Newton's Third Law of Motion. The views expressed are mine.

USA, Utah, Salt Lake City

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