Book Review
I’m a little worried about the state of the blog posts today–the office is cold, and the Internet connection is doing what it does sometimes, where it’s not sure it really wants to be functioning, or something.
At any rate, it is functioning, for the next nanosecond, and so I’ll try to go from there.
And first, I’ll give you an irony alert–you’ll see why at the end of the post.
But before that, let me say a couple of things.
First, jd seems to have misunderstood me. I did NOT mean that the legislature would pass laws that said things like “the workplace should be safe.”
That would be, indeed, ambiguous and subjective.
Rather, I want the legislature to pass, as laws, what are now issued by unelected agencies as “regulations”–“raw meat and cooked meat may not be stored in the same container,” for instance.
Unlike Mique, I do not think our legislative process is so “sclerotic’ that it could not cope with passing such laws in a timely manner. I think claims of the sclerosis of legislatures is one of the many excuses we’ve had over the last 70 years or so for abandoning the democratic process for rule by regulator and ‘expert.”
So let’s strip the agencies and departments of their ability to issue regulations and insist that any edict which is to have the force of law in a democratic country must be passed by a democratically elected legislature.
And if it takes a little longer, that’s good. That gives the citizens time to inspect what’s being passed in their name and decide whether it’s actually what they want.
What’s more, I would institute a legal principle that says if laws contradict each other–if you are breaking the law by doing A instead of B in one statue (or “regulation”), and breaking the law by doing B instead of A in another statute (or regulation), then you cannot be punished for doing either or neither.
Clear, objective, noncontradictory and democratically passed–no regulation without representation.
Second, ab should understand that capitalism does not need “saving.” Capitalism is not just the default position, it’s damn near a force of nature. It has never been fully and entirely suppressed anywhere, not even in the most totalitarian countries.
We don’t need to save capitalism, it can take care of itself.
We need to save the democracy.
And that brings us to the irony part of this program.
A couple of days ago, a book landed on my porch, called Pity the Poor Billionaire: The Hard Times Swindle and the Unlikely Comeback of the Right.
The book is by Thomas Frank, who also wrote What’s the Matter with Kansas?, and in a way it’s a shorter, more strident reprise.
The reprise is only in a way, however, because, in the time between the last book and this one, Frank seems to have stumbled across two things: a complete inability to keep control of his exasperation; and the fact that some of the things he keeps declaring as bogus and without basis in reality might, just…have a basis in reality.
I want to remind everybody here for a minute of an article I talked about a month or two back, that appeared in that bastion of modern American conservatism, The National Review. It was an article about “the 47%,” which is how it designated white working class voters, did and did not fit into the Republican Party.
It noted that the 47% had some very strong areas of agreement with Republican political ideas, especially on things like immigration and lowering taxes.
But in other areas, there was direct opposition–the 47% was strongly pro-union, for instance, and also strongly in favor of such social spending as social security and generous unemployment benefits. It also tended to think that some form of national health insurance would be a good idea, even when it was not 100% happy with the Obama health care reforms.
I bring this up because it’s an illustration of the fact that it is possible to analyze somebody else’s disagreement with your ideas without doing things like refusing to believe they mean what they say or declaring them too stupid to know their own interests.
Frank, unfortunately, hasn’t quite mastered this.
And that fact is made the more bizarre because this book seesaws back and forth between declaring “these idiots think THIS” and “okay, well, there may be some basis for this–BUT that doesn’t mean that’s what they really think!”
It’s one of the most disorienting performances I’ve ever seen.
He lays a lot of the blame for “the comeback of the Right” on “small business,” which he defines as largely useless, not really job creators, small minded, provincial and mean. Then he defines their concerns as largely baseless and exaggerated.
And then he’ll go–well, okay, in this case and this case and this case, there was “regulatory overreach” and that shouldn’t have happened.
And then he’ll whipsaw right back again and talk about how stupid they are because the real issue is regulating big business and–
Then he’ll hit the “let the failures fail” thing–which was a Tea Party slogan opposing the bailout of the banks–and first admit that he feels the same way, and then declare that they don’t really mean the big banks, they mean poor people and disabled people that they want to kick into the gutter and let die there.
It’s like living inside the head of somebody who has that old mistaken idea of schizophrenia as “split personality.”
It’s hard to keep your own head on straight.
The spinning head commentary–largely hyperbolic and foaming at the mouth–is unfortunately accompanied by a lot of distainful contempt for the way that those people behave–wearing costumes to rallies, for instance, and that kind of thing.
This proves not just that they’re tacky, provincial and stupid, but that they aren’t really interested in being part of a mass movement at all. They’re trying to distinguish themselves by weird clothes and outrageous behavior and declare their status as individuals who want to live on their own without supporting society, so society shouldn’t expect to be supported by them.
Or something.
I still say that, if you want to win elections, the first thing you have to do is to find out what the people want and then address those concerns.
There’s nothing wrong with thinking they’re wrong–but you still have to address their concerns, and prove to them why the course you want to take will fix what they want fixed at the same time it does not result in the negatives that worry them.
Declaring them stupid, greedy, provincial, ignorant and (underneath it all) evil is not likely to win their votes.
And neither is making fun of their clothes.
“Respecting” these people does not mean accepting that their ideas are right.
It does mean accepting their ideas are their ideas–that they really think what they think, that they really mean what they say, and that it’s NOT all a matter of some deep, subconscious maelstrom that makes it impossible for them to know what they’re doing.
Ack.
I didn’t agree with What’s the Matter with Kansas?, but I would have recommended it.
I don’t recommend this one.
8 Responses to 'Book Review'
Leave a Reply
You must be logged in to post a comment.
I wouldn’t even have recommended “What’s the Matter with Kansas?”
If you ever decide to sell your soul in exchange for a long non-fiction print run, there are two basic choices. One is the book which explains how in the coming catastrophe, one group of people will come through just fine: the Russians will nuke the cities and the survivalists will own the world, “Peak Oil” will come and the Greens will, or the dollar will collapse and the gold bugs will triumph. That’s not to mention the religious versions. Don’t do research. Don’t make sense. Just make sure your “winners” are people who buy books.
The second choice is the book in which the “target audience” is told to do something they want to do anyway, and assured that good things will come of it. The serious money here is in telling people they can eat chicken-fried steak three meals a day and still lose weight, but there’s room for about one “big book” a year telling conservatives that they lose elections because they aren’t conservative enough, or libersls that the Democratic Party will triumph as soon as they get rid of the wishy-washy Pelosi types and nominates serious leftists. “Kansas” was one of those. The basic premise was that middle America would accept the entire liberal social agenda if only the accompanying economic agenda was further to the left. It could even be true, but Franks presented not a shred of pertinent evidence. Given the number of polls and elections, you can make some sort of case for anything. He couldn’t be bothered, and the place for nonfiction which has neither facts nor reason is the local pulpers.
Oh. You wanted to sell your soul for an even longer FICTION print run? I recommend the romance novel with the beautiful heroine who doesn’t like the rich handsome hero for about 300 pages until she does. Just be sure neither of them has a serious moral issue to address, and that she doesn’t have to do anything to earn the hero’s love. Second choice is the crime novel pretending to be a mystery in which everyone is happier and better off once the villain–who is only in it for the money–is exposed. Third is the action-adventure novel in which (a) there are no ethical issues, and (b) the hero wins by being quicker, stronger or tougher than the villain expected. DO NOT make the hero smarter or better-educated than the villain, and certainly don’t make him have to study and practice in the time he might otherwise spend with the heroine.
But there’s less competition over in non-fiction.
robert_piepenbrink
5 Jan 12 at 5:57 pm
“Clear, objective, noncontradictory and democratically passed–no regulation without representation.”
Try this for size:
“COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 92
Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.”
Ignore the second paragraph. The first, on its very own, is probably about as clear, objective, noncontradictory and democratically passed – no regulation without representation as these things get.
Yet this is, almost without doubt, the most litigated piece of legislation in Australia. It may have been surpassed in recent years, but it certainly was so when I was studying law in the 1960s. It kept the High Court, the equivalent of the US’s Supreme Court, well occupied for many decades after Federation on 1/1/1901 and has the potential to continue to do so. States continue to try to raise revenue with various subventions, duties and taxes aimed at their own citizens who continue to find means to avoid those charges by building interstate trade into their activities.
War is then declared by one side or the other, and around we go again.
There is a reason for the complexity of laws, and the main one is an attempt at certainty. Hark back to the relatively recent American case where the placement/misplacement of a single comma cost the companies concerned millions.
I agree that laws should be democratically passed, but if I understand the US system correctly where “earmarks” and other special interest add-ons abound and are unlikely ever to be discontinued, I think that any convergence between democracy and law making in the US is already more accidental than by design, and a whole lot of other things in the political processes there need to be fixed first.
Mique
6 Jan 12 at 9:39 pm
Actually, Mique, although I agree that complicated laws arise partly from an attempt to achieve certainty, the misplaced comma thing was a dispute over the charges for pole use between a phone and a cable company in NB, Canada. IIRC, there was some kind of regulatory regulation involved as well, and NB being Canada’s only bilingual province, I think things were eventually settled by looking at the French version of the contract, which had equal weight in law as the English one, and which was unambiguous – I think on the side of the telephone utility, but it’s been a while and I might be wrong.
(Quebec is NOT bilingual, and has rather peculiar language laws designed to keep it unilingual. Federal services have to be available in both languages everywhere.)
Cheryl
7 Jan 12 at 8:07 am
No, if it’s TransAlta you’re thinking of, mine is a different case, Cheryl, but one I can’t find for the life of me at this hour (0150) and in my present condition (rather poorly). The one I’m thinking of was a few years ago when a power generating company in the States contracted with a power transmission line company to provide and maintain certain lines. IIRC, The generators thought they were contracting with the transmission line mob for a five years at an initial fixed price but, again IIRC, which was reviewable after 12 months. After 12 months, the power line guys said the contract had expired and unilaterally jacked the price up significantly, more or less holding a gun to the generating company’s head saying take it or leave it. It all came down to a misplaced comma in the contract. Can’t remember hearing who won, if either did.
Mique
7 Jan 12 at 10:58 am
The Comma That Costs 1 Million Dollars (Canadian)
By IAN AUSTEN
Published: October 25, 2006
OTTAWA, Oct. 24 — If there is a moral to the story about a contract dispute between Canadian companies, this is it: Pay attention in grammar class.
The dispute between Rogers Communications of Toronto, Canada’s largest cable television provider, and a telephone company in Atlantic Canada, Bell Aliant, is over the phone company’s attempt to cancel a contract governing Rogers’ use of telephone poles. But the argument turns on a single comma in the 14-page contract. The answer is worth 1 million Canadian dollars ($888,000).
Citing the “rules of punctuation,” Canada’s telecommunications regulator recently ruled that the comma allowed Bell Aliant to end its five-year agreement with Rogers at any time with notice.
Rogers argues that pole contracts run for five years and automatically renew for another five years, unless a telephone company cancels the agreement before the start of the final 12 months.
The contract is a standard one for the use of utility poles, negotiated between a cable television trade association and an alliance of telephone companies. French and English versions were approved by a government regulator about six years ago.
The dispute is over this sentence: “This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”
The regulator concluded that the second comma meant that the part of the sentence describing the one-year notice for cancellation applied to both the five-year term as well as its renewal. Therefore, the regulator found, the phone company could escape the contract after as little as one year.
“The meaning of the clause was clear and unambiguous,” the regulator wrote in a ruling in July.
But Kenneth G. Engelhart, vice president for regulatory affairs at Rogers, disagreed. “Why they feel that a comma should somehow overrule the plain meaning of the words is beyond me,” he said. “I don’t think it makes any sense.”
He acknowledged, however, that lawyers for his company might have underestimated the regulator’s interest in grammar.
“We were obviously too confident the first time around,” he said.
But this time, Rogers has turned to Canada’s other official language, French, as well as its own outside grammar expert to appeal the ruling.
Aliant, which is controlled by the Montreal-based BCE, declined to comment. But in a filing with the Canadian Radio-television and Telecommunications Commission, it called the issue “a classic case of where the placement of a comma has great importance.”
Mr. Engelhart said the grammar fight began when Aliant told Rogers in February 2005 that it was canceling a pole agreement for the province of New Brunswick one year early. The cancellation was necessary because a local electric utility was taking direct control of poles that Aliant previously managed on its behalf.
The power company, Mr. Engelhart said, planned to “really crank up rates,” a change that would cost Rogers about 1 million Canadian dollars over that final year.
To bolster its appeal, Rogers commissioned a 69-page affidavit, mostly about commas, from Kenneth A. Adams, a lawyer from Garden City, N.Y., who is the author of two books on contract language. It disputes the regulator’s analysis of what Mr. Adams calls “the rule of the last antecedent.”
Rogers is also pointing to the official French version of the pole agreement, which has equal status under Canadian law. While differences between the languages will not settle the comma question, Mr. Engelhart said the phrasing removed any ambiguity about the contract’s life span.
“It becomes very clear once you read the French version,” he said.
Correction: A caption in Business Day on Wednesday with an article about a contract dispute between two Canadian companies that turns on the placement of a single comma and could be worth $1 million Canadian dollars, misidentified the location of the disputed punctuation. It is the third comma shown in the copy of the contract – not the second.
http://www.nytimes.com/2006/10/25/business/worldbusiness/25comma.html
michaelwfisher@cox.net
7 Jan 12 at 1:44 pm
And here This might be the one Mique is thinking of):
“Examining the critical first sentence of Article 9.5, the subject of the sentence was the terms of all seven documents, given our analysis supra of what documents were executed contemporaneously. The verb is “are completely expressed and merged.” There is some question, however, into what the terms merge. U.S. Steel suggests that the terms merged only into the Contract for Power and that the comma, in effect, ended that thought. But such an interpretation would render the words “and such other contemporaneous agreements” meaningless. Such an interpretation would not harmonize the contract’s provisions. See Mid-States Gen., 811 N.E.2d at 431.
In contrast, NIPSCO argues that the terms of all seven agreements merged into “this Agreement, and such other contemporaneous agreements.” App. at 41. Following this interpretation, the second thought of the sentence would be that no previous promises were binding unless contained in a document. Furthermore, the drafters used the expression “therein contained,” not “herein contained.” As noted supra, derivatives of the word “herein” were defined to refer to the entire Contract for Power and nothing else. The Contract for Power did not address use of the word “therein.” Presumably, then, use of the word “therein” supported NIPSCO’s interpretation that the agreement consisted of all seven documents.”
Conclusion
We review de novo an agency’s grant of summary judgment when it is based entirely upon principles of contract interpretation. Our analysis of the parties’ arguments leads consistently to the same conclusion. Regardless of whether the Contract for Power’s pricing provisions were ambiguous and regardless of whether its integration clause was ambiguous, summary judgment should be entered for NIPSCO.
http://www.in.gov/judiciary/opinions/pdf/03070811lmb.pdf
{that one’s a 27 page court decision, so it’s rather too long to include the complete case here)
michaelwfisher@cox.net
7 Jan 12 at 1:58 pm
Both cases may have been followed by malpractice suits.
michaelwfisher@cox.net
7 Jan 12 at 2:01 pm
Thanks, Mike. Cheryl was right. The Canadian case sounds like the one I must have recalled, thinking it was American.
Mique
7 Jan 12 at 6:53 pm