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1.3. Justificación

2.2.1.1. Fuentes del Derecho

2.2.1.1.1. Fuentes Materiales del Derecho

On the website tlknet.com, you may order an Enron duffel bag, watch, mug, or pen, among many other accessories bearing the “Crooked E” logo. Also for sale are numerous shirts and hats celebrating Enron Field—the name of the Houston Astros’ home stadium while under previous sponsorship. Presenting these “Enron Collectibles,” tlknet promises:

Directly from the folks that brought you the LARGEST corporate collapse in history! Once this stock is gone...there will never be anymore made!

These items were purchased directly from the Enron Signature shop and are not knock- offs they are all BRAND NEW selling direct to you!! Most of the items we will have for sale are truly impossible to find anywhere!

The claim of authenticity is essential here, and fundamentally connected to a sense of temporality. In this general pitch, as in many descriptions of individual products, tlknet

emphasizes that these Enron artifacts, because real, are in finite supply. The company is gone, and all traces of it eventually will be too.

Even as it advertises its own merchandise, tlknet appears ambivalent as to the consumer appeal of Enron collectibles. The website offers an odd mix of items that refer directly to the bankruptcy and scandal—for example, a framed stock certificate or the cover of Enron’s ethics handbook—alongside miscellaneous corporate paraphernalia that would be entirely

unremarkable bearing any other logo. Most likely the latter items are simply left over handouts from promotions or staff retreats. Reflecting such a motley collection, tlknet cannot seem to infer how its customers would commemorate Enron. Is it simply a company that no longer exists, leaving behind rare relics like anything else that has vanished? Or is every Crooked E a badge of infamy? The website’s product captions cannot help but convey this unresolved question. A coffee mug with a cap for travel, for example, “would make a great conversational piece around

the office or workplace!”—but an online shopper is left to imagine what kind of conversation the mug would provoke. Especially in the professional setting that the vendor suggests, not all of the possibilities are appealing.

As if to acknowledge that risk, along with the dubious sentimental value of Enron souvenirs, the website makes clear that if nothing else, to “get it while you can!” might make an Enron collector some money. “Enron memorabilia,” tlknet claims, with the imprimatur of the Smithsonian, are “appreciating in value!” But with this pitch, like all its others, subject to doubt, it seems even the primary purveyor of Enron’s remaining merchandise is ultimately uncertain as to why anybody would want it.1 If the Enron mementoes on tlknet.com signify attempts to remember Enron, the website’s awkward sales appeals begin to articulate the complexity of such a project. In the years following the company’s collapse, its name remained meaningful, but it was not always clear how or even why. One challenge was the absence of almost anything material that was related to Enron—but as we see from the products on tlknet, even “Signature” objects could not necessarily make it tangible.

Enron proved difficult to remember for many of the same reasons it had been difficult to narrativize—and yet over time, these two tasks conflated. Narratives can make the past more coherent, and in Michael Schudson’s nonacademic but unassailable term, also more

“interesting.”2 (Enron was never, for most people, innately interesting enough, and this would only be truer as it faded from the news.) Thus if one component of memory is story in retrospect, then to construct an Enron memory was to continue a process that was already underway when the company went bankrupt. Narratives of Enron remembered, however, were distinct from contemporaneous narratives in that they signified—both deliberately and accidentally—the passage of time. From the company’s bankruptcy in late 2001 to the eve of Ken Lay’s and Jeff Skilling’s trial in late 2005, numerous stories emerged about Enron—and they showed both the benefits and the weaknesses of hindsight. At the same time, understandings of the bankruptcy

1

“Enron Collectibles,” http://www.tlknet.com/enron.htm. Accessed 1 February 2010.

2

Michael Schudson, “Dynamics of Distortion in Collective Memory,” in Daniel Schacter, ed., Memory Distortion: How Minds, Brains and Societies Reconstruct the Past (Cambridge, MA: Harvard University Press, 1995): 346-64. 355.

that were already vague, fragmented further into references that could not be called narratives in their own right, but which still gestured toward certain patterns in perception and political

meaning. Here I identify what I contend to be expressions of collective memory of Enron, and use them to critique existing memory theories.

Historiography has of late witnessed what Jay Winter calls a “memory boom;” a burgeoning field of scholarship dedicated to the study of memory in all its forms and manifestations.3 Various definitions of memory are on offer, but the one seemingly most capacious and versatile is the relationship between past and present.4 This conception of memory includes but does not end with the individual cognitive process of remembering. It can also encompass narratives and representations of past events, regardless of how or even if they are received and adapted as part of a particular memory. As numerous scholars have argued, that which can be called “collective memory” is not simply the aggregate of individual memories within a specified population. It “involves the integration of various different personal pasts into a single common past that all members of a particular community come to remember collectively.” The concept “implies a past that is not only commonly shared but is also jointly remembered.”5

As aspect in which working theories of memory are lacking, however, is in their apparent bias toward the traumatic, the violent, the emotional, and the visual. These qualifications

dominate discussions of memory per se, to the exclusion of certain events that, I will argue, do not fit this model but that nonetheless find expression in collective memory. My premise is that the Enron collapse was a noteworthy socio-historic event; and accordingly that in the years immediately following it was already being “remembered” in popular cultural forms even if by gross misrepresentation. Iwona Irwin-Zarecka has advanced the idea of multiple “frames of remembrance;” arguing that memory texts are “framed” according to the form in which they seek

3

Jay Winter, “The Memory Boom in Contemporary Historical Studies,” Raritan 21: 52-66. 52.

4

John Nerone, “Professional History and Social Memory,” Communication 11 (1989): 89-104. 89. See also Allan Megill, “History, Memory, Identity,” History of the Human Sciences 11, No. 3 (1998): 37-62, on the influence of the present on conceptions of the past (51-52).

5

(Emphasis in original). Eviatar Zerubavel, “Social Memories: Steps to a Sociology of the Past,” Qualitative Sociology 19, No. 3 (1996): 283-99. 294. A similar explanation of collective memory is in Barbie Zelizer, “Reading the Past Against the Grain: The Shape of Memory Studies,” Critical Studies in Mass

to be received—as commemoration, entertainment, or “the truth,” to name a few examples.6 Drawing on sources with a variety of different “frames,” I identify two related problems to which all attest. First, there appeared singular difficulty, for those who tried, in constructing and preserving a collective memory of Enron. Second, scholarly theories of memory seem generally inapplicable to an event of this kind.

Both for people trying to publicly “remember” Enron, and for an analyst trying to understand this process using current frameworks of memory, the round hole is the convention that collective memories necessarily involve trauma, emotion, personal investment, visual representation, a sense of time and location, drama, and at least some degree of narrative coherence. The square peg is a scandal that was only viscerally upsetting to a very few individuals, that was arcane or even irrelevant to much of the American public, that is nearly impossible to depict visually, that is not defined by any particular date or time, that few people actually understood, and that had little entertainment value even as it was happening; making it likely to become even less compelling with the passage of time.7 Enron lacks the fundamental features of the remembered event as we know it—and yet it has not been forgotten. Through a variety of means, memory-makers sought to reconcile the square shape of this scandal with the round hole of conventions in collective memory. This analysis will conclude, from these strained reconciliations, that additional ways of understanding memory are needed to accommodate Enron and comparable events.

Michael Schudson has argued that legislation is a form of memory text, stating in the case of the Watergate scandal that the reforms enacted in its wake were intended to

“institutionalize collective memory.”8 The same might well be said for the McCain-Feingold campaign finance law and the Sarbanes-Oxley accounting regulations passed after the Enron

6

Iwona Irwin-Zarecka, Frames of Remembrance: The Dynamics of Collective Memory (New Brunswick, U.S.A.: Transaction Publishers, 1994), 5-6.

7

Michael Schudson described a process of “distanciation,” by which a memory loses its detail and emotional intensity (“Dynamics of Distortion in Collective Memory,” 348). The question in terms of Enron becomes, what if the memory never had much of either one of these factors to begin with?

8

Michael Schudson, Watergate in American Memory: How We Remember, Forget, and Reconstruct the Past (New York: Basic Books, 1992), 90.

bankruptcy. Their proponents explicitly stated that these new laws were intended to pre-empt “another Enron,” thereby positing the scandal as something to be learned from. Not even a person, much less a nation, can learn from any experience without remembering it. Yet these post-Enron regulatory initiatives also functioned as memory in additional, more subtle ways. Given all the hearings and debate that their passage entailed, they created a record that, if not always coherent or complete, was permanent. Moreover, most congressional proceedings related to Enron—beginning with those theatrical interrogations and testimonies examined in Chapter One—witnessed explanations of root problems, and attributions of credit and blame. This also represented an early attempt to commit Enron to official memory; supposedly one that could be put to good use.

Such institutionalized commemoration, however, was only a small and fairly insignificant proportion of collective Enron memories emerging prior to the Lay-Skilling trial. In the realm of popular culture and mass media, numerous books, films and references were also remembering Enron. Because they targeted a much wider audience, these expressions of memory were both more accessible and—in cultural terms at least—more influential. Moreover, in nearly all of these popular commemorations of Enron, formal authority was conspicuously absent. That is to say, these narratives tended to exclude government, regulation, the judiciary, and even law

enforcement. Such a pattern of omission was a statement in itself as to how people remembered Enron. For purposes of this study, it also suggests that the lay public was more likely to “keep” informal rather than formal memorializations of this bankruptcy. Evidently, they found such retrospective narratives more compelling, or even more accurate.

Expository Memory: Insiders and Infiltrators Tell (Almost) All

Many expressions of Enron memory were primarily expository; framed as “information,” “fact,” or “the truth.” The main principles on which such narratives traded were honesty,

authenticity, and completeness. Several investigative journalists and business writers who had no direct connection to the Enron bankruptcy published books about it from 2002 through 2005, and some among them represented original and quite thorough work; in other words, a unique and

valuable account.9 The highest sellers, however, in print media as well as in documentary film, came promising the inside scoop. Here former Enron employees, Houstonians associated indirectly with the company, and the reporters who effectively helped bring on the bankruptcy, claimed audiences’ trust as authoritative sources above all others.

Some insiders seemed to claim the mantle of the survivor, thereby becoming “primary figures of authenticity.”10 The concept of survivorship seems always at a premium in the wake of disaster stories, and although Enron was in the end no real implosion or mortal tragedy, those who lived to tell the story enjoyed some of the same cachet. Former employees like Charles Prestwood, and former shareholders like “little bitty” Mary Bain Pearson, had appeared as survivors to testify in Congress. They also surfaced from time to time thereafter as quoted authorities in news articles about later Enron developments. Two more concerted manifestations of Enron memory came from higher-ranked Enronians—accountant and whistleblower Sherron Watkins and Enron trader Brian Cruver—in the form of published memoirs.

The memoirs of Watkins and Cruver carried both the authenticity of the survivor account and the assertion of professionally specialized knowledge. Their narratives were also

confessional, if ambivalently so. The authors had to present themselves as credible people of integrity even as they capitalized on publicity surrounding a disgraced corporation and its scandalous downfall. Yet these memoirists were not the last veterans of errant enterprises to make names for themselves by reversing loyalties—nor, by far, were they the first. The reformed businessman who starts life anew, guided by purified values after rejecting greed and

exploitation, should by now be familiar. He offers an exclusive inside perspective on his forsaken former world, and usually a vindication of outsiders’ suspicions about it. Having “seen the light,” the confessor can now be taken at his word. Such testimonials represent an important part of the “lost values” school of big business criticism, which holds that large systems and organizations in

9

See Loren Fox, Enron: The Rise and Fall (Hoboken: John Wiley & Sons, 2003); Peter C. Fusaro and Ross M. Miller, What Went Wrong at Enron: Everyone’s Guide to the Largest Bankruptcy in U.S. History

(Hoboken: John Wiley & Sons, 2002); Arthur L. Berkowitz, Enron: A Professional’s Guide to the Events, Ethical Issues, and Proposed Reforms (Chicago: CCH, 2002); Robert Bryce, Pipe Dreams: Greed, Ego and the Death of Enron (New York: Public Affairs, 2002).

10

Marita Sturken, Tourists of History: Memory, Kitsch, and Consumerism from Oklahoma City to Ground Zero (Durham, N.C.: Duke University Press, 2007), 28.

commerce have forced a departure from the traditional American mores of rugged

independence.11 This line of thinking has been traced back to populism, but echoes even earlier the Jeffersonian advocacy of yeoman self-reliance over Hamiltonian ideas of centralized

government and banking.

One of the most prolific of twentieth century reformed businessmen, who applied “lost values” to the modern corporate order that he left behind, was Theodore “T. K.” Quinn, onetime top-ranking Vice President in General Electric’s New York office. In 1948, he wrote of his epiphany:

…In the summer of 1935, I determined to resign. Being a symbol of so-called “success” was never going to satisfy me. My father had been a liberty-loving Irishman and a life- long fighter for the underdog. There I was on the wrong side of the fence…I do not suppose that General Electric was much worse or much better than any other giant, impersonal corporation, but there was no satisfaction in that…I only knew that I wanted…to get into something—anything—else.12

The controversy at hand, in Quinn’s memory of this moment, was the antitrust litigation constantly dogging his company. But these proceedings were, he averred in retrospect, merely a cue that life would be better once free of his “giant, impersonal” employer. He would join his father on the right side of the “fence” between rote, systematized profit-making and righteous independence. Though Quinn’s departure from the corporate world was actually gradual, and never really complete, he pretended later to have had an abrupt realization. He published a book called I Quit Monster Business (1948), and testified frequently against big business in general and against GE in particular.13

With every move, Quinn built his career like the savvy businessman that he was. He went on to make plenty more money as a Madison Avenue advertiser, but also as the author of books like this one. Watkins and Cruver, as Enron memoirists, made similar decisions, and probably for similar reasons. Cruver is still using his MBA—though apparently no longer in the fast-paced life

11

Irving S. Michelman, Business At Bay: Critics and Heretics of American Business (New York: A. M. Kelley, 1969), 165.

12

T. K. Quinn, Giant Business: Threat to Democracy (New York, 1953), 159, quoted in Michelman, Business at Bay, 158.

13

of a commodities trader—and Watkins works nationally as a consultant, speaker and writer on corporate ethics. Thus their recollections of Enron should not be accepted simply as they are presented: “the unshredded truth” or “the inside story,” respectively. They were written in part to serve personal goals, and each deliberately and strategically sidesteps certain issues.

Nonetheless, with the question of complete truth aside, it makes more sense to view these accounts as vehicles of collective memory than as personal reflections. Their decisions to

publish—and so soon after the bankruptcy—suggested Watkins and Cruver consciously proffered their memoirs as authoritative, authentic Enron memory, to be received as widely as possible.

In 2003—the year after her star testimony in Congress and her appointment as Time Magazine’s Person of the Year—former internal accountant and Vice President Sherron Watkins published Power Failure:The Inside Story of the Collapse of Enron. Watkins became famous for writing an anonymous memo to Ken Lay, urging him to take a critical look at some of Enron’s partnerships and accounts. This was in August 2001, which was probably the last point in time when something could have been done to avert disaster. Fatefully, Lay failed to act. But like Bethany McLean, whom Skilling had rebuked for impugning Enron’s business model, Watkins would ultimately be heard far and wide. She won recognition as a “folk hero” in the Enron drama, and the words she chose to describe her fears for the company; “I am very concerned that we will implode in a wave of accounting scandals;” were repeated often and by many, in retrospect, as something of a prophecy.

As in her statements to senators, Watkins presented herself in this memoir as entirely innocent—even cowed—amid all the shady dealing that she witnessed at Enron. She played down any personal motivations she may have had in writing her famous memo of warning, such as getting Andy Fastow fired or gaining job security or national recognition for herself. At the

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