The Prisoner's Dilemma

Dedication

This book is dedicated to Roberto and Christina Bajonero.

Table of Contents

Dedication

Prologue

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

Chapter 14

Chapter 15

Chapter 16

Chapter 17

Chapter 18

Chapter 19

Chapter 20

Chapter 21

Chapter 22

Chapter 23

Chapter 24

Chapter 25

Chapter 26

Chapter 27

Chapter 28

Chapter 29

Chapter 30

Chapter 31

Chapter 32

Chapter 33

Chapter 34

Chapter 35

Chapter 36

Chapter 37

Chapter 38

Chapter 39

Chapter 40

Chapter 41

Chapter 42

Chapter 43

Chapter 44

Chapter 45

Chapter 46

Chapter 47

Chapter 48

Chapter 49

Chapter 50

Chapter 51

Epilogue

Acknowledgments

Author’s Note

Study Guide for The Prisoners Dilemma

Proposed Constitutional Amendment (Amendment XXVIII)

Supreme Court Brief

An Attorney reacts to The Prisoners Dilemma

Reader’s Reactions

About Melvin Hathorn

Other Works by Melvin Hathorn

Prologue

Washington, DC

May 5, 1886

Midnight

It was done. J. C. Bancroft Davis sat back with a satisfied sigh. For several thousand dollars he’d entered a two-sentence statement into his document. Davis, a flour-faced, short, fat man with the pallor of desk work, looked around his flat. The flickering light from the fireplace and a dimly-lit kerosene lamp revealed a dusty, gray carpet designed to hide dirt and a worn oak table. The splintered wooden stairway creaked in the hallway outside his door. His expected guest was here. Come in, he said.

A short man with rounded shoulders, bent back and protruding potbelly entered. Is it done? he asked. His dark eyes glittered.

Yes. It was a lot of work. It required rewriting several times to get it right. But no one will notice the insertion.

Davis’s wrist, accustomed to writing long documents without cramping, had begun to lock. But it was worth it. The two sentences had to be woven into the document so that they would not stand out, especially to eight of the nine Justices of the Supreme Court. Associate Justice Stephen Fields, his visitor and the ninth Supreme Court Justice, took the document and read the insertion. He smiled. It looks good. Your second payment will be delivered tomorrow.

This two-sentence insertion into the headnotes of the lawsuit, Santa Clara County v. Southern Pacific Railroad, would radically change American history. Ordinary Americans looking to the courts for justice would find that this insertion would deny them equal access to the law.

Boston, MA

January, 1992

Mr. Schlichtmann, two years ago you headed up one of Boston’s most prestigious law firms. You were Boston’s most eligible bachelor. What happened? the bankruptcy Judge asked.

Jan Schlichtmann told the court his story. His firm had fought on behalf of eight Woburn, Massachusetts families whose children had died of leukemia. The children had been drinking the city waters of Woburn, waters that were allegedly polluted by Beatrice Foods and W. R. Grace. Schlichtmann had devoted years pursuing a liability lawsuit filed against these corporations. Although the evidence demonstrated the defendants’ guilt, the two corporations had managed to stall legal proceedings through the use of frivolous motions and appeals. As expenses began to mount, his firm ran short of money. Eventually with his law practice collapsing, and his car being repossessed, Mr. Schlichtmann found himself in bankruptcy court.

WR Grace and Beatrice Foods settled the case and profited over the next few years. With unlimited corporate funds, they eventually drove Jan Schlichtmann’s firm and its partners into personal bankruptcy. Schlichtmann ultimately won 8 million dollars, but personal and legal expenses took most of the award.

Schlichtmann concluded his statement by saying, As you know, your Honor, the purpose of a lawsuit is not to go to court but to settle. You settle by spending more money than you should, which forces your opponent to spend more money than he should. The side that comes to its senses first loses.

Chapter One

June

West Hartford/Avon, CT

Early afternoon

Donald Kaddam shifted into low gear as the traffic light turned green. He dreaded this trip over Avon Mountain. The distance from the intersection of North Main Street and Albany Avenue (Route 44) in West Hartford to the other side of the mountain was four miles. It was a deadly four miles, especially for a loaded dump truck like his. He had asked his boss at Edifice Wrecks Demolition Company for permission to drive an alternative route, which unfortunately was clogged with traffic and twice as long. His boss told him to go the shortest way in the least amount of time.

His boss, Mike Jurgen, was under the gun. The large land development company in Seattle, Mighty Meadows Development Corporation, had bought out his business five years ago. He had to make his firm profitable; otherwise it would be spun off and he would lose everything. With the housing market crashing because of the sub-prime lending scandal, Mighty Meadows and all its subsidiaries were on the brink of collapse. Expenses had to be cut. Jurgen had been warned: profits must be protected at all costs.

Even worse, Donald thought, was the poorly maintained truck. The brakes were on their last legs. The transmission was miles past its last service and the coolant hoses were practically rotted out.

Kaddam, a beefy man with muscular arms, was built like a beer wagon. He wore a black T-shirt and worn work trousers. He drove his truck through the intersection and for about a mile, the road was level, rising slightly. After passing through the next light, the road inclined more steeply. Shifting into low gear, he drove his heavily laden truck slowly up the mountain. Several impatient drivers passed. He reached the top of the hill and slowed his truck to a crawl as he passed a sign warning of the 10-degree mile-and-a-half grade. At the bottom of the mountain a traffic light waited where Route 10 ran perpendicular to Route 44. He started down the hill.

Avon Mountain was the site of many accidents. Over 14 people have died on this Mountain since 1995. The stretch of Route 44 that traverses Avon Mountain was known as Connecticut’s version of Dead Man’s Curve. From the peak of the mountain, the road twists and winds down a 10-degree hill for a mile and a half. In spite of its dangers, it is a beautiful drive with tall pines and reservoirs on each side. Many families bring picnic lunches and hike or bike along winding trails beside the reservoirs.

Over 23,000 vehicles a day travel in both directions over Avon Mountain. It is a main thoroughfare for commuters going into Hartford. Truck traffic over the last few years has increased to 100 trucks a day, supplying the many stores and outlets in the town of Avon and further west. Many of these out-of-state truckers work for large global companies and their drivers are unfamiliar with Avon Mountain.

20 Summer Wind Drive

Avon, CT

Earlier that morning

Beth, don’t forget your lunch. Kate West, Beth’s Mother, ran after her to the school bus. Beth stopped halfway up the steps. Beth was an eleven-year-old fifth-grader with a face full of freckles and long blonde hair.

Don’t forget to pick me up after school, Mom. We’re going on our field trip to the Mark Twain House today, she said excitedly.

I haven’t forgotten dear, answered Kate. I’ll be there. Have a good time, honey.

45 Pine Hill Lane

Avon, CT

At the same time

Hurry up with your breakfast, Carl. The bus’ll be here soon. Lisa Richards, Carl’s Mother, took Carl’s lunch from the refrigerator, and put it on the table in front of him.

We’re going on a trip today to the Mark Twain House, said Carl, a boy with red hair and blue eyes. "We read Tom Sawyer in class. It’ll be awesome to see where he lived."

Carl, your bus is here, said Lisa. Have a good time, dear.

Kathy Jonson’s Fifth Grade class

Avon, CT

The class buzzed with excitement as they lined up with their lunches. Class, before we leave for our field trip, I want to remind you of a few rules. Once you are on the bus, stay in your seat. When we get to the Mark Twain Museum, remember to keep your voices down. The guides will divide us into two groups. When we go into the house itself, remember not to touch things and do not sit on the furniture.

The bus pulled into the parking lot of the Mark Twain House. When the children unloaded, they lined up single-file as they had been instructed to do and walked into the long hall of the Museum. They sat on wooden benches while Ms. Jonson talked to the staff.

The first group, that included Beth and Carl, left with Martha, a Museum Teacher. The second group went with Sarah. They walked up a flight of stairs that twisted back on itself and down a long hall that led into a cafeteria. Outside, they walked to the large porte-cochere where Martha asked them what they knew about Mark Twain.

"He wrote Tom Sawyer," said Carl excitedly.

He lived out west for a while, said Beth.

That’s right, said Martha. Anyone know anything else? After getting a few more responses, she led them to the door of the Mark Twain House and went over a few rules. No picture taking inside the house and please don’t touch anything, she said.

After the tour the first group went to the theatre to see a film about Mark Twain’s life. Then they visited the gift shop. Carl bought a small plastic frog that represented Mark Twain’s story, The Jumping Frog of Calaveras County. Beth bought a plastic pin that formed the head of Mark Twain. After lunch the class of twenty-five boarded the bus to return to school.

Avon Mountain

Early afternoon

Donald Kaddam proceeded down Avon Mountain in low gear. As the dump truck loaded with slabs of concrete and scrap iron moved down the mountain, it began to pick up speed. Kaddam applied the brakes harder and harder. They began smoking. The truck rolled faster and faster. It approached a sharp curve but Kaddam managed to keep control. The transmission began screeching and smoke poured out of it and billowed up the side of the truck. The brakes, now superheated and worn down to bare drums, squealed against metal disks.

As the runaway truck approached the final descent toward the bottom of the hill, Kaddam saw a yellow school bus sitting in the left lane waiting to make a left turn onto Route 10. Oh, my God!! He thought. The truck barreled out of the final turn down the straightaway toward the bottom of the hill. It swayed back and forth as worn steering gear gave way. In spite of Kaddam’s best efforts, the truck smashed into the rear of the school bus. The exit door was crushed. The bus was pushed forward into the crossing traffic of Route 10.

With dragging metal parts that created sparks and a ruptured fuel tank, the damaged school bus exploded in a massive fireball incinerating all inside and demolishing windows, stores and businesses along the roadway. Witnesses claimed that the resulting fireball could be seen for miles.

Chapter Two

July

Lilly Pond Camping Site

North of Moosehead Lake, Maine

Dad! Come quick! Look! Eight year-old Sean Michaels grabbed his father and pulled him to the edge of the pond as he brushed back some hair that the evening breeze had blown. He was a gangly child, tall with dark hair and the blue eyes of his father.

John Michaels left the campfire where he had been preparing the evening meal and walked a few feet to the edge of Lilly Pond. On the other side of the 125-foot wide pond stood a magnificent buck deer. Its antlers spread to at least four feet. Michaels, tall and about thirty-eight with an angular face, waved for his friend, Tom Dryer, and Tom’s son, George, to come and look. The four stood there in awe as the animal dipped its head to the water.

Quiet, whispered Michaels to the others. We don’t want to scare him away. Lilly Pond was named for its green lily pads that floated over three-quarters of the pond. At this time of the day, early twilight, deer often came to drink from the pond, but never had they seen such a beautiful animal here. I wonder what made him come this far down from the mountains, puzzled Tom, Usually animals like this stay farther up in the mountains. We’ve seen plenty of deer but they’re usually the smaller ones that seem tamer.

For the last three years the men and their sons had spent a week vacationing at Lilly Pond, to go hiking, canoeing, and swimming. Tom, a university economics professor, was a colleague of Michaels who taught American history at the same school. Tom had discovered Lilly Pond while vacationing with his family in the backwoods of Maine four years ago and the two men and their sons had been coming back ever since. The campsite included a built-in fire pit and a canoe that presently was pulled up on the shore.

Lilly Pond was quiet, and mystical. It was the kind of place where even the normally boisterous Sean and George maintained a quiet demeanor. At this time of day there was a pronounced sense of silent reverence. One could sit staring at the pine covered mountains on the opposite shore for hours.

Between the large green pads one could see the ripple of the water’s surface as a fish tried to dine on insects floating on the water. Occasionally, one would jump out to try his luck at dinner. The pond grew darker as the sun slowly sank behind the western mountains. The crickets began their nightly singing and the peepers began their chanting. Soon a chorus of night sounds filled the evening. A star appeared in the rapidly dimming skies. There was a woodsy smell of damp pine.

The buck turned away and the four reluctantly returned to their campfire a few feet behind them. Michaels continued preparing the evening meal as the boys gathered firewood and dropped it next to the fire pit. Tom straightened up the camp and organized the equipment.

After a meal of freshly caught trout and fresh-roasted corn-on- the-cob that they had purchased at the general store five miles down the road, they sat contentedly for a few minutes staring at the flames. Well, I think it’s time for the marshmallows.

Tom stood and walked to the chest where the food was stored in a bear-proof container. He pulled out a bag of marshmallows and grabbed four sticks for roasting them. Nothing like toasted marshmallows, he said.

Dad, said George, tell us about some of the stuff you used to do in school when you were as old as us. But make sure it is something different; not the same old stories. George was a tall slim child with brown eyes and light brown hair.

Well, I don’t know, teased Tom. I don’t think your mom would be happy. You know how she feels about my war stories. Not a good example. Tom was known for his antics while in school.

Aw, come on. The two boys leaned eagerly forward. Please! We won’t tell.

What do you think, John? Tom looked at John. Well, you know; it is just us guys; and I guess we can keep a few secrets from the women.

OK, guys, but remember it is just between us, right?

Right! George grinned in anticipation. Yeah, just between us, answered Sean.

Well, once when I was in sixth-grade, the guys had what would later be called ‘The Great Spitball Fight.’ Every time the teacher turned her back a barrage of spitballs would fly across the room.

Cool! said the two boys.

Of course we don’t want you guys copying this, said Michaels.

Of course not! replied George with a grin. Wouldn’t think of it.

Anyway, what started out as a few guys throwing a spitball now and then across the room escalated. We would build up supplies of them and hide them in our desks. Then it got more formal. Soon we were forming teams.

As soon as the teacher’s back was turned, we let loose a salvo of spitballs. It looked like snow, said Tom grinning.

That’s when we got caught.

What happened? asked the boys.

Unfortunately, one particularly gooey one hit Emily. It stuck in her hair. We always called Emily ‘Miss Priss.’

What happened then?

"She was always playing with her hair, twisting and tying it up. It stayed stuck in her hair for quite a while. Then she reached back with her hands to brush her hair. As soon as she felt it and pulled it out, she yelled, ‘Ooh! Gross! Yuck!’ The teacher turned around to see what all the fuss was about. ‘Miss Priss’ squealed on us. ‘Those guys have been throwing spitballs for three weeks,’ she said.

The teacher was really mad. We had detention for a week and had to have our parents come in for a school conference. It was worth it though.

All the guys laughed. I can see Miss Priss’ now," said George.

You know, said John, some of the things we used to do as kids could get you thrown in jail now. It’s a shame that kids can’t be kids anymore. Whatever happened to innocent fun?

Tom added, If you bring a plastic knife in your lunch to spread your peanut butter on your sandwich, the next thing you know the principal calls in the cops.

Michaels mused. You know, he said, "that escalation of the spitballs is a good example of what we call the tragedy of the commons."

"What’s the tragedy of the commons? asked Sean. Michaels, who loved to teach, delighted in the opportunity to explain things to his son. The easiest way to explain it is to use the spitball story. Suppose you were on a team in a spitball war. Imagine if your team had a supply of 100 spitballs. You knew that the other team also had 100 spitballs. If you engaged in the spitball war who would win?"

Neither side, said George. "The teams would balance out. It would be an even fight. Uncle John, how is that the tragedy of the commons?"

Listen, here is how it works. Each team has exactly 100 spitballs. The two sides are evenly matched. What if you learned that the other team had made 25 extra spitballs? Who would win? What would you do?

First, we’d make 25 more spitballs; maybe we’d even make more, say 50 more spitballs.

Now imagine the other team finds out you made all those extra spitballs. What do you think they would do?

They’d probably match us and maybe even make more.

"That is what is called the tragedy of the commons. Each side is forced to make more and more spitballs trying to beat the other team. Let’s use your imagination. Suppose you made so many spitballs that you ran out of paper. You used up all the paper in the class, and then all the paper in the school. And then all the paper in the town. And so on."

But that didn’t happen, said Sean.

No it didn’t, said Tom. And for a very good reason. First, we got caught. Second we would never have enough resources to buy all the paper in the town. There were many reasons why that didn’t happen. But in theory it could have happened and almost did back in the days of the Cold War.

What do you mean? asked Sean.

You remember from your history class that the United States and Russia—back then it was called the Soviet Union—were engaged in a war very much like your spitball war. Remember that you said you would keep making more and more spitballs to match the other team? Well, the United States and Russia did the same thing. If we built new and more advanced nuclear weapons, the Soviets would match us and make even more. Then we’d build more. Soon we had more than enough weapons to destroy the world many times over.

That’s crazy! said George.

Yes, it was crazy. But we and the Soviets were caught in a system that had spun out of control.

But that war didn’t happen either, said Sean.

No, fortunately it didn’t. The Soviet Union collapsed in the early 1990s, thank God, but many people were scared that it might happen.

Well, guys, said Tom, it’s time to hit the sack. We have a three hour hike up to Twin Ponds tomorrow and you need to get to sleep.

Yeah, I know. I love going up there, said George.

After the boys had settled in their tent, Michaels and Dryer kept talking by the fire, which had burned down to a low glow. You know, said Dryer, "the tragedy of the commons is a great metaphor to explain how people get caught up in systems that make them work against their own long-term self-interest. And not only self-interest, but also community interest."

Yes, I discuss it a lot in class. I guess that’s why I’m such a great teacher, said Michaels grinning.

Well, don’t rest on your laurels too much. Two years ago you almost lost your job. Remember when Samuel Reed almost got you kicked out of teaching at the University?

Michaels smiled. He had gone to Ireland to see if he could get a second citizenship. Reed had almost made him persona non grata here in the US.

"I always spend time talking about the tragedy of the commons to my history classes. Michaels continued. My favorite example is the pasture. Imagine a pasture that can hold 100 cows. Ten farmers are able to support ten cows each. "Year after year the pasture replenishes itself supporting the 100 cows. Now imagine that Farmer A figures that he can increase his milk production ten-percent if he adds one cow. Now the pasture is supporting 101 cows. At first no one notices. Finally Farmer B sees that A has an extra cow and realizes that he is at an economic disadvantage. His milk is worth less. So he adds a cow. Then farmer C does the same thing and D and so on. Soon there are 110 cows in the commons. The commons begins to deteriorate. Soon the commons is worn out and every farmer loses.

This metaphor applies to the stock market, the legal profession and any other situation where there is a win-lose possibility. You know, this sub-prime lending crisis is a perfect example of that.

What do you think the reaction of Annemarie and Janet will be when they find out we told the spitball story? asked Michaels. Why? Are you worried? Well I imagine Annemarie will probably roll her eyes and make some comment about male testosterone.

And Janet will say something to Sean about immature men and not to follow our example. Then they’ll commiserate by going shopping.

Chapter Three

The morning was still cool as the four left their campsite by Lilly Pond. The trail followed a rippling stream that wound through tall pines that smelled fresh in the morning dampness. For about one-half mile they passed along the miniature rivulet. The water swirled over small rocks and pebbles and was so clear that one could see polished pebbles on the bed of the stream. The morning sun shining through open areas in the tall pines shimmered and reflected sparkling shadows and created rainbows in the misty air.

Michaels shifted his daypack as the trail led into a clearing. Guys, he said to the boys,