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Side Pockets, Essay Example

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Essay

Background to a Crisis

Side Pockets focuses on corporate identity management amidst scandal. The term ‘Side Pockets’ refers to hidden portfolio investments which have emerged as one of the hot buttons within Congressional investigation into financial services firms in the past several years. The foregoing is a proposal to conduct research on the organizational protocols and business practices that led to what became the most mismanaged financial market in American History since the Great Depression. From banking, to the stock and bond market, to insurance investments and Securities Exchange Commission (SEC) regulatory oversight, every element of America and American’s security entrusted to a futures market upon which citizens relied upon met almost disastrous collapse.

Since the commencement of the American International Group, Inc. (AIG) financial crisis in at the beginning of 2008, and the subsequent $85 billion, public outrage previously unknown to a generation of Americans whom were accustomed to the ‘risk free’ perceptions built into the investment strategies promoting insurance as a financial product, consumers have been introduced to a new set of terms outlining the failure of AIG’s credit default swaps (CDSs), collateralized debt obligations (CDOs) and sub-prime mortgage-backed securities linked to an imploding market of real estate defaults. Simultaneous to the September 16, 2008 bail-out by the Federal Reserve Bank, the SEC announced a warrant for 79% of AIG shares that were held by the Reserve’s Board. On September, AIGs credit liquidity facility resulted in a loss of $28 billion, furthered in October with $37.8 billion, and the corporation was removed from Dow Jones Industrial Average. With the Congressional approval of the Emergency Economic Stabilization Act, 2008, Reserve Board Chair, Ben Bernanke and Treasury Secretary, Henry Paulson set forth a national scope of bail out as the entire country’s banking system began to collapse.

Until the 2008 crisis, AIG was a company specializing in the pursuit of compensation claims for victims of accidents for compensation on behalf of victims. Largely reliant upon revenues generated from successful representation of their claims by company employed counsel, AIG was structured around procedural litigation. Amidst a fall in the success rates for personal injury claims and the withdrawal of a key financial backer, the company ceased trading in late May 2003. Approximately 2500 staff lost their jobs. Rumors about the future of the company began to circulate amongst staff when some received text messages advising them to look at their bank accounts because there are problems paying salaries; later text messages advised them that their salary had not been paid. There were then stories of the company actually notifying staff of dismissal by text message. The Chairman of the company, Mark Langford, claimed the decision to tell workers they had been made redundant through text message was not his, and blamed the administrators, PriceWaterhouseCoopers (PWC).

AIG had been debilitated by unsuccessful legal actions, and was already suffering implications in relation to poor performance and consumer confidence levels. The retraction of investment from the insurance company by investors severely impacted the company’s asset basis and ability to perform, as recuperation seemed almost impossible given the ineffectiveness of AIG’s counsel with its claims. Knowledge of AIG’s precarious position may have prompted PWC to prey on its own client in retaliation. Due to the high turnover rate of insurance cases in contract litigation, and AIG’s position as a specialist in compensation claims for client-victims of work and other accidents made the insurer vulnerable as an entity known to litigate against big business.

From a conflict of interest perspective, it is probably safe to say that PWC’s client list contained corporate parties whom were previously concurrently or previously adverse parties forced to pay remedy on deep pocket complaints to AIG on behalf of their employees. When AIG began to go belly up, someone with executive decision making power at PWC obviously decided to pound the final nail in the coffin. After all, identity management and legal protection were both issues at stake at PWC when the accounting conglomerate noticed inability to pay on employee obligations, a condition of the firms’ contract. Furthermore, knowledge of employees educated on the viability of insurance claims, and related claims against employers by the very nature of their business, was certainly a basis for PWC to move on the situation without consultation or trust in AIG, even if it appears nefarious in hindsight. Barriers to the communication were obviously many.

The fact employees were warned, rather than executive and top-end investors, reveals that PWC was vying on the behalf of another competitive clients’ adverse position, or even their own investors whom may have previously had interest in the firm whom demanded that the client’s default on payroll was really the last sign in a terminal situation, where the only “best practices” mode of responding to the situation would be on the level of absolute dissolution, and direct acknowledgment of individual fiscal obligation to employees by the third party’s contract bi-lateral partner, obligor. AIG Chairman, Mark Langford’s lack of adequate response to the situation through press release and counter-communication other than indicating that the text notices were without his knowledge, points to an executive either hiding behind the instrumentality of the third party in order to publically state independence from the responsibility of the decision, and toward the hostile destabilization for affordable acquisition or takeover, or just complete sabotage. In either case, the initial loss of approximately 2500 jobs prior to the incident, underscores that little could be done to effectively stabilize the corporation’s actual asset position at that time without an external intervention.

Since the collapse of AIG, investors across the globe have suffered. This includes Americans, many of whom are working or retired people living normal, ‘everyday’ lives. Much of the demographic in the United States that has been affected, is a population comprised of the market masse, the ‘Baby Boomers.’ Since childhood in the 1950s, the Boomers have witnessed nothing more than the development mass consumerism. Accompanied by the advent of the television and mass consumer advertising, the United States has been decisively middle-class in ideological structure, and highly vested in notions of American cultural ascendancy through consumer products and investment wealth. Indeed, identification with the market is often articulated by Americans as a right to be a consumer. Financial planning strategies sold as the primary vehicles for pension fund retirements to supplement social security upon retirement, typically included the ‘safety’ of insurance policies; investments for the future of they and their families.

In short, consumer-citizenship has evolved into unadulterated patriotism write large. How Americans think about the global economic crisis since AIG, and the foregoing legislative investigations of executives and counsel staff employed to make at the very minimum adequate decisions towards investor wealth, is deeply influenced then, by media communications.

Sociologist, Arjun Appadurai  provides the theoretical positioning of this rather complex socio-economic project, and offers a methodological vehicle through what he calls and ‘ideo-scape’ of information management, whereby cultural knowledge disseminated by numerous sources (i.e. economists, lawyer, public relations staff, policy wonks and television reporters) converge into something that most Americans might say is an ‘educated guess’ about the impact of this major and far-reaching financial event. The priorities Americans find important as consumer-citizens in relation to commerce, finance, law and politics will constitute the terrain for inquiry within the study. What happened at AIG, also happened elsewhere, and as we can readily observe in the very recent 2010 Congressional investigation into another large financial services institution, Goldman Sachs, is a potential for infinite response to this type of inquiry. A sociological analysis of communications, ethics and the due process of law, the project seeks to delimit this discussion to the finite terms of identity management, and its articulation of economic outcomes. Situated between the various discourses on corruption, and the truth of what ‘really’ took place, the study incorporates Americans, and common law counterparts in the finance savvy nation of Britain, as they observe and experience the fall out.

Statement of Problem

The communications fiasco surrounding the collapse of Accident Insurance Group (AIG), and subsequent blame of its accounting firm, PriceWaterhouseCoopers (PWC), was the result of a series of text message memos sent out as notification of 1) potential payroll shortage, 2) no payroll disbursement due to shortage; and rumored 3) notification of dismissal. Post the text messages, the employees engaged in a rumor mill surrounding the messages, and the status of the corporate insurers viability. This unwieldy flow of communication was clearly the undertaking of PWC, and pertained to their binding contract to act as fiscal controllers, and legal obligation to disburse funds to employee accounts according to individual, direct deposit agreements with employees and their banking institutions. While PWC was not concerned with individual and class action response by employees under labor law, and was protected as a third party from complaint under respondeat superior, their decision to directly contact employees constituted a legal debacle as contractor restricted by parameters of agreement with AIG to protect the insurance corporation’s interests, and ethical and legal obligation to the employee direct deposit recipient parties that were not only owed, but promised via the third party agreement, that they would be compensated according to constructive condition of employment contract with AIG, and thereby also subject to reliance upon PWC for performance on their vendor contract with the employer firm, AIG.

The rumor mill that was the result of the text messaging is a salient example of the critical nature of responsible corporate communications, and especially in regard to such a large team of employee professionals whom have very clear understanding of their contractual rights. Furthermore, the decision by PWC must be assumed to be an effort by the accounting firm to hedge against mass legal complaint, and also collective reporting of corporate fraud to governmental agencies such as the Federal Bureau of Investigation (FBI) and Federal Deposit Insurance Corporation (FDIC).

What happened at AIG in its fall from grace is unfortunate, but relatively common in the spheres of business heavily reliant upon litigation. Indeed, insurance carriers and their financial considerations are perhaps one of the most vulnerable sectors of the market. Despite the relatively independent judiciary in the United States, litigation as business is a precarious practice, whereby lawyers are the incumbent fiscal agents responsible for the mode of production. If the courts are the factory for insurance companies, their accounting firms are their primary, back end distributors. Inability to distribute funds either to the insurance company’s clients or to its employees is largely the result of its workers’ inability to optimize profits on individual matters. As attorney’s are by-and-large protected by certain restrictions on contract pertaining to their ability to transgress “non-competition” clauses unavailable to other workers, in spite of malpractice concerns, counsel is typically segregated as an elite source of production, with individual lawyers barely accountable to results within court decision. Attorneys also tend to have little interest in loyalty to relations long-term, if not contracted as a principal partner. Therefore, questions of loyalty are a moot point.

Lawyers are not loyal to downturn, only to fee compensation. In the case of AIG, the initial reduction of staff by 2500 employees should have been enough of a signal to executive management that focus on “winning those claims” was not their provenance nor within their control at all, but buffering the corporation’s image through adequate communications strategy would have enabled Langford et al. to weather the forthcoming budgetary crisis with some certainty. At the very least, disclosure of restricted funds would have put the insurer in a position of neutrality, and counsel could have easily consulted on how to plan some provision against inability to pay. By not disclosing the danger of the situation to the employees, AIG appears to be operating fraudulently. If anti-trust issues were to result, and in the next phase of the AIG fiscal disaster this was indeed the case as investors accused of fraudulent insider $500 million reinsurance activities, the firm’s intent to perform on contract in good faith with its employees at least sometime in the near future, only reinforces PWC’s position; denying AIG of credibility and forthcoming solvency. In the corporate world, as on the school playground, once the bully’s rumor mill moves on the most vulnerable, the take down is typically near. In short, accusation of PWC for its text messaging turns bully into scapegoat, and the weakest is put out of competition (or at least until a merger comes along).

Furthermore, all uncomfortable situations are best assuaged by professional communications staff whom are trained to detract from detrimental circumstances, and toward identity reconstruction discourses of competence and leadership. Internally speaking, messages to employees, even where bad news is dictated by financial terms which may affect employee attitude and relations, should remain focused on positive employee performance and requests for continued commitment. Damage control is driving principle amidst crisis, and communicative action should perform as a dual mechanism for immediate confrontation with the problem, as well as buffer against emerging dissent. In the case of employment termination, had the notifications of dismissal been planned overtly by AIG, letters with thorough recognition of employee contribution and loyalty throughout their tenure in the insurance firm, as well as factual indication of 1) reasons for decision in the difficult action; 2) organizational intent as competent in facing the situation in order to avoid legal action; and 3) conclude in termination based in responsibility of the firm, without suggesting that the employee take unduly blame. Conclusively, restructuring or dissolution of organizations is always uncomfortable for involved parties. The possibility of hostile takeover by third party investors, or even fiscally dependent vendors whom serve potentially adverse parties is not all unusual. Where attorneys and their work constitute the core means production in an extra-legal environment, the boundaries between generation of revenue, and those it is intended to compensate outside of counsel, are extraordinarily opaque.

For investors, insight into results is traditionally the manner in which capital is monitored, however, only the accountants in conjunction with the executive management staff have actual knowledge of fiscal production and its affect on the organizational processes. As an important and innately human function within the systemic health of any firm, communications strategy provides employees and related parties whom are not highly trained lawyers or accountants with an informational window on situations affecting their everyday lives in the workplace. Without strict articulation of the series of events following the mass dismissal of employees and following AIG payroll shortage, gossip overruled all other informational channels, and PWC’s ability to access AIG employees directly via text messaging was a slight of hand that no one in particular took responsibility for. While perhaps a surprise to no one engaged in the situation, what an insidious and unprofessional finalé.

AIG Chairman, Mark Langford indicated that the text message snafu surrounding non-payment of employee compensation, and potential forthcoming dismissals were not executed under his decision, but rather administered by the insurer’s accounting firm, PWC. Form PWC’s position, the rather cheap, non-traditional mode of feeding negative news to financially and legally vested parties involving in the contractee party, was a success: effective in slaughtering loyalty, and resulted in a rumor mill with a life of its own. While PWC was instigative in producing a ready direct message to individual contractee employees whom were under consideration by the accounting firm as signatory direct deposit recipients of payroll compensation owed to them by the client-firm and their employer, PWC was remise in its failure to contact AIG executive management. The vendor had literally responded to inability to perform on contract due to voidability (i.e., an express condition of the contract) and became null and void due to negative balance on the expense account. The result was the prohibition of the PWC agreement upon condition of performance.  How PWC acted, however, was somewhat illicit. The communications resulted in bad faith with parties still working at AIG. Contractually speaking, PWC’s response to the insurance firm’s contract breach was in the realm of protective interest. However, from the AIG’s position, the action was clearly hostile, albeit ephemeral, and certainly effective in its immediacy and treachery.

In the proposed study, Side Pockets questions of ethics and corporate responsibility once implicated in corruption and economic crisis is put into dialogue with legal perspectives. Similar investigations on the sociology of the economy, such as case studies on Enron, have examined the transition from the “yes-man” culture to a “check and balance,” open management style, and that includes variances in relation to structural organization. Recognizing the distinction between ethics and law, and the lapse in due process  between reliance upon the former until the latter is enforced where ethics no longer prevails, the project examines the ethics of identity management amidst crises, and subsequent reconfiguration of public consensus and public choice responsive to the due process of law and its mass mediation. It also looks more broadly at how communications procedures interface with policy transformations, and especially in representation of business services that are integrally reliant upon lawyer staff.

As we see from the AIG case, the high degree by which the insurance industry is based upon attorney practice, and is only furthered by their representative interests in the halls of the legislature. The project proposes a “built-in” justice approach to ethical decision-making that stems from the culture of law, come what may, as the only basis of acceptable resolution. Inside the chosen perspective, distinct yet mutually dependent approaches are accorded to the three sub-theories of Justice: 1) Distributive Justice; 2) Procedural Justice; and 3) Compensatory Justice. Distributive justice is a practical in that it disallows disenfranchisement or selective preference to be sustained.

While states continue to focus their efforts on regulatory prohibition, corporations have also responded to issues management by incorporating activist principles that affect their ability to do business in certain contexts. Social movements against violation of ethical expectations around the globe have become the basis from which both policy decision makers and respondent organizational leadership have shaped their agendas. Social responsibility platforms are now not only instruments within organizational structure such as mission statements, but actual service divisions that reach out to employees, consumers, and nonprofit community partners through charitable contribution, employee scholarships and volunteer match programs, and lead organization, company based advocacy networks

In an effort to also adequately portray the interests of ethics, a utilitarian model of social justice as it pertains to corporate responsibility is also examined through the lens of counsel, executive management, and public relations staff.  According to Utilitarian thought, “which action would result in the greatest good” underscores the instrumentality of legal theory, as well as the assent to the Moral Right as primary (i.e., the role of “good faith” oral agreements in consideration, conditions, reliance and limitations under the US Statute of Frauds) are inherent within the Justice perspective. The research proposes to look at ethical choices and ethical dilemmas. Ethics are a “belief” system, that once codified, restricts parties that may not be engaging other parties under the same restrictions. Side Pockets is ultimately an inquiry into the common good persistent within business practices and common law theory, and looks to the consumer-citizens from which the efficacy of legislative policy is still intended to serve.

Theoretical Prospectus

The study proposes to contribute to the following three bodies of scholarship: 1) Communications theories that look at organizational leadership by executive and public relations management toward mitigation of crisis in the mass media(Citation string here); 2) Political Economy inquiries into legislative policies directed at oversight of the recently corrupted financial and insurance sectors (Citation string here); and 3) Public choice theories addressing the sociology of Law as it is understood from a perspective of distributive and participatory justice (Citation string here).

Methodological Considerations

Methodological consideration on the project is based on a tri-partite research design, and will be conducted in three Phases: Phase I: Field Investigation; Phase II: Data Analysis; and Phase III: Archival Research. The study is directed toward interpretation on how consumers and policy makers build consensus surrounding corporate investment practices — and especially where staff counsel is central to consumer financial services. The implication of common law practice as an instrument of revenue generation is of core interest. How common law citizens think about their rights and responsibilities amidst widespread devolution of investment pensions funds and personal wealth is fresh and timely. The project also underscores the illusory shift from a laissez faire market ‘without borders’ and National market constraints and national politics. Congressional interests, and the SEC lawsuits. A discourse analysis project, the research proposes to analyze the relationship between executive decision making by employees of Goldman Sachs, and the resultant fraud scandals.

Phase I: Qualitative Data Collection

Method 1: The Side Pockets Interviews

Case Study: an insurance corporation parallel in size to AIG.

The tension between existing organizational culture and resistance to environmental change can be measured in terms of productivity. As we have seen, in the case of AIG productivity was the critical factor in financial outcomes of the organization. How people work has much to do with their attitude toward the company they work for. Strong organizational culture will always impact behavior, and whether that is positive or negative may not always be subject to individual preference, nor stasis achieved through vertical management styles. In short, even overt dominance is not enough of an indicator in a workplace, as attitudes are affected by external cultural orientations that can shift over time. Organizations can best accommodate employees and optimize performance in a real sense, by conducting ethnographic and organizational evaluations. Ethnographic evaluations enable employees to articulate detailed issues that may be percolating under the surface of organizational relations, or orientation business processes. Team group methodology that incorporates a focus group format into part of its exercise, will extract necessary data pertaining to specific troubleshooting areas that may need to be worked on, or even identified. Once identified, deeper inquiry into procedural problems arising from cultural issues can be approached through one-on-one interview.

Building cognitive maps with visual instruments (i.e., photos of the workplace, organizational flowcharts, and procedural documents) employees are encouraged to articulate problem areas in a more precise sense. Outcomes to the ethnographic data can then be used in original qualitative form, or as part of quantitative narratives developed more fully in a company-wide survey on the back end of the focus group and interview data collection. Grounded questions in issues that emerged from the depth instruments will provide more meaning to survey outcomes and enhance the organization’s comprehensive interpretation of itself. Organizational assessment of the organization with recommended instruments drawn from best practices models of evaluation provide the final link in the researched management strategy. All forthcoming strategy for organizational change, execution of those strategies, cultural changes, and structural outcomes should be based on this approach. By doing this, educated decisions about everything from accounting to training may be evaluated for performance.

Method 2: Blog Talk Comments on the Crisis

Nowhere is the American crisis written about more outside of the United States than Britain. An investment center, London and its financial experts forge exceptional media relationship with the British public through dissemination of knowledge on the bond markets, financial services, and offshore portfolio options. Britain’s legal culture and system is also the historical antecedent of U.S. common law. As discussed throughout the exemplary discussions, the legal philosophy is a natural inclusion within the manner in which Brit’s articulate socio-political critique. Following the logics and praxis of sociological methodology the research includes analysis of blogging by British citizens, as they watch and read the unfolding of scandalous disclosures made in light of Congressional review, and SEC legal action against institutional fraud by high wealth investment institutions. While objectivity is an island, so too is the UK to some extent. Throughout the essay the critical analyses of British citizens are they observe the former colony, and its legacy through common law jurisprudence, lend discursive commentary.  The following are examples:

At 4:56pm on 16 Sep 2008, alphaGlen wrote:

Governments and central banks can do a lot more. They all have to tighten regulation, cut interest rate and pump more money into the system. They have to break this cycle.

 What is happening is not in the interest of any one as this will lead to dramatic fall in oil price (Opec needs money as well, so each member will break the quota) also counties with manufacturing bases will suffer as Westerns cannot afford to buy what they produce.

At 5:12pm on 16 Sep 2008, AnddrewH wrote:

The clue in the above is the three small words “prinicipally in Europe”. The people who lose biggest out of the collapse of AIG are the European banks. And, from a certain perspective, it is very much not in the interests of the US to pay for the rescue of the competition. It would be preferable to allow the US banks to move in for the kill. Logically, it would fall to the Europeans to rescue AIG. The two big questions, though, are ‘who pays’ (no one government would have the funds, which therefore requires European co-operation), and ‘how is it legally done’ (there might be accusations of state aid if it is not handled correctly). I’m glad I didn’t take the devil’s dollar…

At 5:38pm on 16 Sep 2008, bodgitt wrote:

Why not just let the failed banks and insurance companies sink or swim. Market forces are ultimately the most efficient way of correcting this mess. It will be painful for some, but ultimately better for everyone else who has not been greedy and wreckless.

The government did nothing to intervene when it was blindingly obvious that the piggy bank was being raided and now they are acting all surprised. It’s a joke and raises the question if the banks were lining the politians pockets to turn a blind eye.

I certainly do not have much sympathy toward the current suffering of the casinos..I mean banks.

Phase II: Data Analysis

The second phase of the research will be dedicated to transcription of the interviews, and comparative analysis of the primary qualitative data will be put into analytic dialogue with information drawn from public media communications on corporations in crisis, case law history of SEC fraud litigation (i.e. AIG), and congressional debates on regulatory amendments to securities acts.

Method 3: Legal Analysis in Media & Television

In Phase II, significant attention will be given to comparative legal analysis based on empirical data collection of legal matters pertaining to litigation over SEC fraud by insurance and financial investment firms. Legislative policy discussions on the ‘business of law’ as foundation for discourse analysis in this area, promises to further information on the complexity of corporate identity management from the perspective of ‘Law Talk.’ Data from the legal matters will be examined in relation to Federal Reserve and SEC regulations; related mandates by international financial institutions will augment the study.

Phase III: Archival Research

Archival investigation at [name of library] in, [location] under the scholarly review of [name of affiliation] in Phase III will situate the study in the areas of contributory scholarship and support preparation of the manuscript.

Implications of the Study

In interest of the political economy of insurance law, the proposed policy study follows the U.S. Federal Securities Exchange Commission’s sphere of market governance. Support from the [Foundation – Fellowship Title] will enable empirical data collection on the project, and furtherance of scholarship with honorable mention. Copies of articles from the chapters of the dissertation and all other publications from the project will be provided to the [Society].

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