All first-year law school students in the United States are introduced to American jurisprudence through six, core courses: Constitutional Law, Tort Law, Property Law, Contract Law, Civil Procedure, and some form of legal research and writing. Almost all law schools also require a course on the federal rules of evidence (commonly known simply as Evidence) at some point – whether in the first or second year.
For reasons I never bothered to investigate or resolve, my law school didn’t require Evidence. The closest I ever came to the subject was when I clerked for a federal judge one summer. And, in truth, I was thrilled to escape the requirement, as I had no ambitions as a litigator – that’s the type of lawyer who goes to court and therefore, should know something about the rules of evidence.
Actually, if I were to be frank, I had no ambitions of practicing law at all. My only goal when I graduated was climbing out of the giant crater of student loan debt I had dug for myself. So, forced to practice for financial reasons, I took the path of least resistance as a transactional lawyer in a big law firm – that’s the type who sits in an office and reads and writes contracts, which for me involved mostly moving zeroes around for other people.
But even before I got around to practicing law, I quickly realized why most law schools require Evidence. Even if you don’t plan on ever stepping foot in a courtroom, but do plan on practicing law, you need to pass the bar exam. And the federal rules of evidence are tested on the bar exam of all 50 states.
A quiet look of horror rippled across the faces of those around me in bar review – that’s a cram course usually taken right after law school that helps prepare aspiring lawyers to sit for the bar exam – when they found out I hadn’t taken Evidence (in addition to an array of other subjects being tested, like Commercial Paper and Secured Transactions, neither of which I had ever heard). One woman winced. Their law schools had taken a far more practical approach to legal education and required all, if not most of the courses that would be covered on the exam.
The boogeyman of the federal rules of evidence, as I would quickly learn, is the hearsay rule, which, like the plotline of the movie “Inception,” is a nightmarish labyrinth of rules within rules, and exceptions within exceptions, and even rules regarding double hearsay – you guessed it, that’s hearsay within hearsay. Whereas most bar exam subjects were quickly reviewed and dispatched within a morning or afternoon, two days of bar review were devoted to the federal rules of evidence, with an entire day focused on the hearsay rule alone. Since I foolishly never elected to take the class, it was a daunting crash course for me.
In practical reality, I never touched the rules of evidence again after the bar exam. But in retrospect, I do understand why the subject is tested by every state, and why I should have taken the course, even if I never planned on sitting for the bar. Along with the other compulsory subjects in law schools, our state and federal rules of evidence are a part of the bedrock of American jurisprudence. We are a free society that places such high value on the integrity of innocence that we have devised an elaborate system of safety belts and suspenders to help ensure that guilt is reserved only for those who are truly guilty. This is a good thing.
But, the system is not perfect, partly because humans are not perfect. The system fails us sometimes. And sometimes, we fail ourselves. There are countless stories of guilt that goes unpunished, and even more horrifying, wrongful conviction of the innocent.
Why am I telling you all of this?
We have all read the headlines, the allegations, the lurid details, and have experienced the outrage: some from afar, for many, up close. There is discrimination. There is harassment. There is inequity. There is abuse.
Yes, these things exist. I know they do because I have friends and co-workers, siblings and parents, who have experienced them. These things have existed for quite a while. And unfortunately, they’ll probably be around for a quite a while too. Of course, that doesn’t mean we shouldn’t try to eliminate them as best we can. As I have written on this blog before: “If anything positive has come out of all of this outrage, it is an increased awareness of the everyday reality and struggle of classes overlooked or repressed, and in some cases, abused. After all, aspiration for meritocracy is merely a platitude if the opportunity to merit is systematically uneven. We must constantly strive to even the playing field for all.”
But, in that previous rumination, I also asked: At what cost, and by what methods?
Certainly, some are guilty. These people should be afraid. They should be reported, evidence presented, and if proven true, they should be made to atone.
But many are not guilty. So, they should not be afraid.
And yet they are. Very, very afraid.
Sadly, the federal rules of evidence don’t apply in the court of public opinion, where charges can be thrown around wantonly, where words are misused or assigned new meanings for the benefit of some, and to the detriment of others. In the court of public opinion, context is often disregarded or selectively presented, and sometimes purposely erased. Hearsay is not only allowed, but amplified. And because of all of this, allegations alone often suffice as evidence.
The pile-on is swift and cruel, and often the verdict is fatal. When it’s not, the accused is often bullied into recanting crimes they never committed. This isn’t justice. This is Jacobinism.
As if the restaurant industry weren’t already hard enough, it has now become a minefield, where many are tip-toeing around, terrified of inadvertently stepping in the wrong place or crossing a tripwire so thin or so arbitrarily placed that it might as well be invisible. And, because the stakes are so high, few are willing to talk about anything honestly, not to mention openly, anymore.
This is madness. This isn’t right.
How do we solve problems if we shout at each other from the shores of clear contrast, and aren’t willing to wade into the grey waters in between?
What’s the difference between demanding and unreasonable? Where do we draw the line between discipline and abuse? At what point does a high-pressure environment turn toxic? (Have you seen the movie “Whiplash?”)
Is it financially feasible for all restaurants – large and small, urban and rural, casual and posh – to remove tipping, or to move to all-inclusive pricing? If so, what would that require?
What are you really doing to even the wages between the front and the back of the house?
Is it actually wrong to serve a canapé that looks like a coronavirus? Or is it merely bizarre, and perhaps a touch gauche? Or is it provocative, or playful?
Where do we draw the borders between stealing, borrowing, and reverence? If a Korean-American chef makes his fortune off of selling Japanese ramen, is that appropriation or enthusiasm?
What is the role of a restaurant critic? Is it to inform or opine, or both? Is it to educate or tear down? Should a restaurant critic be a consumer advocate or an industry cheerleader? Can she be both? Can he criticize the existence of a restaurant right after it closed? If not, why?
Is it responsible for chefs or restaurateurs to over-leverage their restaurants? Or is the restaurant industry one big risk factory, in which all who enter should be issued caveats emptor?
If an awarding body is forced to admit, or suddenly realizes that there has been longstanding, systemic injustice within the industry, does that nullify its awards? Should the awarding body recall all the medals from the past, or just some of them? If so, are all of those who took part in the awards, and those who cheered and celebrated the winners complicit? That’s a lot of people. That’s nearly every one of us.
Sometimes, the answers are pretty clear. Sometimes, they aren’t. And sometimes, we’re unwilling to ask the question because we know we won’t like the answer. That’s cowardice.
We need to ask the hard questions and talk them through so that we can work towards meaningful solutions, and also to determine what is and isn’t a crime before we start condemning people. But this requires us to lay down our weapons and listen to each other. If understanding is what we’re truly after, then context matters. If fairness is a primary goal, then intent matters – it’s usually what separates guilt from innocence. When it’s not, then an earnest apology is a good place to start. And if doing better is the right direction, then forgiveness will be necessary.
Instead, some have terrorized the rest into silence. Unsurprisingly, those who speak the loudest are still usually the ones who know the least. I don’t need you to announce what you’re doing to further social justice, I need you to just do it. That would be a great start.
Those who cry the loudest for empathy are often among the least willing to give it. Those who caution against judging others are often the first in line to do it – which makes me wonder if they’re not also the ones with the most to hide: perhaps if I point enough fingers, everyone will be too distracted with others to notice what I’m doing.
And the media – why are you even here anymore? Food writers seem to rarely write about food. And those who claim to be journalists, many who smugly declare the high road of truth-telling, are actually riding the highways of hypocrisy, trafficking in shock and horror – setting little fires everywhere.
Don’t fool yourselves: you’re not reforming the restaurant industry. You’re burning it down.
But there’s good news. There are a lot of truly wonderful people in it, many of whom I am very lucky to know and with whom I get to work. They want to cook good food, and run good businesses so they can employ good people. They may not always say the right things – but who does in an era of shifting definitions? And they may not always get it right – but again, who does? However, they’ll usually be the first to admit it, and earnestly try to improve. They strive to be decent human beings, have good intentions, and are always looking for good solutions. They keep their heads down, and work very hard to make their corner of the industry a better place. Some go beyond, and try to help others – to raise the tide and lift the boats around them.
If everyone spent less time placing blame, and more time doing these things, imagine what could be accomplished.
Of course, this isn’t to say that those of us who aren’t guilty should just mind our own business and do our best. As the rabbi philosopher Abraham Heschel sagely observed: “… in a free society, some are guilty, but all are responsible.”
So yes, if you see something, say something. That’s what I’m doing here. But before you do, make sure you saw what you saw, and you’re saying what you’re saying. Bring your evidence, and let’s hear it out. The bad apples should be ejected.
But that’s not what’s happening a lot of the time. We’re rummaging through carts and carts of good apples, finding some bad ones, but trying to throw out many others based on specious allegations, or because we simply don’t like the cut of their jib. And it’s becoming increasingly easy to do so, in part because everyone’s afraid to speak up. As long we’re not the target, it’s better to just go along with it. Injustice comes in many forms, and this is one of them.
In a free society, innocence should be the presumption, not guilt. But we’ve so twisted things around that almost the opposite has become the standard, which may explain why so many clamor to flood the airwaves with daily declarations and signals of just how not-bad they are. If only virtue were so easily achieved.
Perhaps this pandemic will force this industry to wake up to the fact that all are rowing the same boat. And if everyone is to make it to the other side, then everyone had better start rowing in the same direction.
The point is decency, not destruction, right? The hope is for courage, not fear, right? The focus should be positivity, not negativity, right? The destination should be joy, not joylessness, right? We want justice, not injustice, right? You cannot achieve any of the former through any of the latter. And yet, in so many ways, the latter is winning. To answer the question I asked above: In a free society – and especially in an industry of people who purport to be stewards of hospitality – these costs are too high and these methods are unacceptable.