Surreality Check
A Savage Writer's Journal
November 2002
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02 November 2002
Tuesday

 
Today's caption is stolen, with no apologies whatsoever, from Harlan Ellison's "Never Send to Know for Whom the Lettuce Wilts." If you haven't read it yet, go get a copy of Ellison's anthology Troublemakers.

Tuesday is an important day in this country. An important day that is all too often ignored by the majority of the population, although celebrated two or three times by residents of Chicago: Election Day. Although I certainly have my preferences for candidates, it's much more important that you vote than for whom you vote. What pisses me off about Bush v. Gore more than anything else is the unconscionably low voter turnout, which only magnified the significance of any discrepancies (one vote out of 58 being a higher percentage than one vote out of 100).

Besides, I'm much too far to the left for the Democratic Party, and much too close to reality (and not bigoted enough) for the Green Party. This is not too say that all Democrats are centrists or farther to the right, or that all Greens are bigots with little connection to reality; it is to say that the party structures have made the parties as a whole act that way.

That said, I think a Republican-controlled House and Senate, together with George III, would be a disaster for this country. Again, not so much due to individuals as due to the disreputable thugs who would be placed into leadership positions. They are "thugs" not because they beat people up in dark alleys, but because they beat other legislators up in dark hallways. Well, figuratively, anyway (I hope). Further, it would change the chairmanship of the Senate Judiciary Committee back to Orrin Hatch. Mr. Hatch has three blind spots: reproductive rights, freedom of speech, and court-packing. We don't need that.

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Jaws picked up this bimbo at ConJose. I tried to warn him how fickle prima ballerinas can be, but he just wouldn't listen. In his frustration, he sent her to sleep with the fishes. Which, as a shark, she probably does anyway…

09 November 2002
Long Black Wall

I am still shaking off a hangover from Tuesday's election results. (Not to mention the intervention of Life and fatigue.) It's really too bad that the hangover isn't from a bottle, because then it would have limited duration. It is highly probable that George III will now have the opportunity to name at least two new Supreme Court justices, including the Chief Justice. Nothing is ever certain until the public announcement, but my sources indicate that health concerns have caught up with the aging justices.

One of the most brilliant pieces of political art of the twentieth century graces a small depression just north of the Reflecting Pool on the Mall in DC. The design of this piece of art caused a lot of controversy before it was completed. Previous similar pieces had almost always been statuary, usually of idealized figures. Those pieces were cold—cold stone, cold emotional weight, cold execution. I simply cannot imagine Lincoln ever having posed as he is portrayed at the Lincoln Memorial (if only because the man was, according to many accounts, almost always in motion). Neither can I credit the "raising of the flag" at Mt. Surabachi, which was staged for a photographer and had nothing to do with the battle for Iwo Jima itself. And why choose one particular battle to commemorate? If so, why that one? Precisely because the memorial is "uplifting," if cold and meaningless at the same time. This is not a slight to veterans; after all, I am one. It is, however, criticism of both the art direction and art execution of that particular memorial.

By removing the idealized representational figures from the Vietnam Memorial—if you hadn't figured out what I was talking about, smack your wrist—the artist and architect actually made it more personal. Those names—cut in the same typeface and size as appear on veterans' graves at all national cemetaries except Arlington—commemorate both the individuals named and the great mass of the dead. Without stooping to local-news-if-it-bleeds-it-leads nonsense, that list of fifty thousand names brings home the horrors of war in a way that no representational memorial can. It also very subtly mixes all of the categories of the dead far more thoroughly than the military likes to admit. Catholics and Protestants; whites and blacks; men and women; homosexuals and heterosexuals; rich and poor; officers and enlisted; however one categorizes the individuals, their names share the same prominence on that wall as any others.

So this piece of political art is a more subtle antiwar statement than virtually any arch satire or scolding lecture, without disrespecting the individuals involved one bit. It is perhaps too subtle, because the current administration hasn't learned from it and is doing its very best to act like Kennedy and Johnson did. The "need" to take down Saddam Hussein and Osama bin Laden, and not incidentally the Taliban, by whatever means necessary thousands of miles from here bears disturbing parallels to the domino theory used to justify intervention in Southeast Asia. That's not to say that Hussein et al. don't deserve some action; it is only to say that the particular actions being proposed are far more likely to require another long black wall than they are to be successful in advancing long-term American (let alone human) interests. The best way to deal with unconventional warfare is to meet it with corresponding (not the same thing as identical) unconventional responses. Riyadh doesn't really need that much extra parking a few hundred miles to the north, although that seems to be the only response this administration can conceive.

Besides which, the Mall is getting rather crowded, and there are other past conflicts not yet represented there with their own memorials. There is no space on the Mall or in this society for another long black wall.

12 November 2002
Really, Really Sick

Really. Originally, these things began as Rotisserie League Baseball. Then, they branched out to other sport; while many play what is now known as Fantasy Leauge Baseball (in several competing versions, one might add), even more play Fantasy League Football. There was a Major League Soccer Fantasy League run by The Sporting News (the baseball-makes-the-world-go-'round idiots in St. Louis) this past year, in which your not-so-humble journal writer finished in the top 50 while spending around 10 minutes a week on it.

But the following is really sick: Fantasy [League] Supreme Court. It's so sick that one must love it. It's also a rather primitive game, akin to Fantasy League Umpires. At least there are no injury replacements or suspensions to worry about (although, if a justice were to die this year...).

Of course, my mind, being even sicker than the proponent of that little game, came up with the following (a variation on the law school game of "turkey bingo"):

Fantasy League Federal Judiciary

The rules are simple, even if the contest is completely unreal:

  1. The season runs from January 1 to the completion of the Supreme Court's term, usually the last week of June.
  2. Each team must consist of exactly ten judges. Judges must be sitting on one of the thirteen United States Circuit Courts of Appeal as of January 1. Each team must include judges from at least six of the thirteen circuits. Not more than three judges may be the Chief Judge of the Circuit on January 1. Judges on senior status on January 1 are not eligible.
  3. Each player gets six trades for the season (plus any bonus trades). The trades may be used in any fashion, but the resulting team must comply with rule 2.
  4. Basic Scoring:
    • For majority opinions written or joined by the judge that are affirmed with a written opinion by the Supreme Court, score two points for each justice voting with the Supreme Court majority or who concurs in the result, and one point for each justice who concurs and dissents.
    • For majority opinions written or joined by the judge that are reversed with a written opinion by the Supreme Court, deduct two points for each justice voting with the Supreme Court majority or who concurs in the result, and one point for each justice who concurs and dissents.
    • For dissenting opinions written or joined by the judge, the judge receives double the points that would be deducted from a judge who had been in the majority.
    • Per curiam opinions are worth seven points for affirming in the majority, ten points for reversing a dissent, and deduct five points for reversing a majority.
    • All points are tripled for any en banc opinion.
    • Points are scored on the date of the Supreme Court's decision, and only for judges actually on the team on that date. A judge's death or complete retirement from the bench is irrelevant, so long as he or she was sitting on January 1.
  5. Bonuses:
    • Score twenty bonus points for a judge nominated to the Supreme Court during the season, and an additional twenty if confirmed during the season. Add one bonus trade on the day the nomination is sent to the Senate. Later withdrawals of candidacy do not take away points or trades.
    • Score ten bonus points for a dissenting judge when the Supreme Court reverses unanimously.
    • Score five bonus points for affirming a majority opinion or reversing a dissenting opinion if the Supreme Court's opinion is issued less than 45 days after oral argument.
  6. The winner at the end of term is the player with the most points. There are no tie-breakers; in the event of a tie, both (or all) players can claim to be the (dubious) winner.

Why are you still reading this instead of calling 911 and telling the men in the white coats to come and take me away?

17 November 2002
Interventions

As should be clear from the last post, pharmaceutical inspiration can have distressing results. I'm more between-doses of codeine today than I was then. Consider that an intervention in reality.

I'll leave intervention in Iraq aside for the moment. I have nothing whatsoever against enforced regime changes under the right circumstances. The absence of UN authorization is not the right circumstance in this context. If the evidence comes forth to convince the UN that regime change is necessary, then do it. Swiftly. Ruthlessly. And probably unconventionally. But don't try to deflect attention from your domestic incompetence, Mr. President, with the age-old tactic of unifying a populace against an external enemy. That's not to say that the donkey's ass (bad linguistic pun hidden in there) doesn't deserve such treatment, nor that the suffering citizens of Iraq don't deserve a new ruler even more than he deserves to be deposed. It is only to say that there is no valid mandate for such action.

Well, I didn't really leave it aside at all, did I?

20 November 2002
Misuse of Copyright… by Lawyers???

Now I'm pissed off at lawyers. Again. Sadly, this time it's lawyers who more often than not are on the "good guys'" side—because they're misusing an area of law that they obviously know very, very little about.

The leading plaintiffs' securities class action firm is Milberg Weiss, of New York. Milberg Weiss does tend to play hardball—but no more so, and usually less so, than the counsel defending usually improper management decisions and actions. What the Enron, WorldCom, and other recent cases should disclose as a whole is that corporate management is all too often not acting properly. I cast no aspersions on the plaintiffs' securities bar for trying to use hypertechnical means to protect shareholder interests—because those hypertechnical means are all that are left after the expansion of corporate law in the first half of the twentieth century and the restrictions on securities actions in the last decade.

That said, Milberg Weiss has taken to copyrighting its complaints. Then filing registrations with the Copyright Office. And is now, in violation of the Rules of Professional Conduct (but possibly not the Code of Discipline that holds in New York and just about nowhere else), sending accusations of copyright infringement and cease-and-desist letters to competing counsel in securities actions who deigned to lift some or all of the allegations from the Milberg Weiss complaint.

Milberg Weiss is absolutely, positively in the wrong, and is misrepresenting its rights under the Copyright Act—itself a violation of the Copyright Act—with this course of conduct. Not only is a complaint a part of an official record, created for the purpose of creating an official record, and thus not subject to copyright protection once it is filed, but the complaint itself under the relevant rules must recite facts. In conformance with the legal requirements, the statement of facts in a particular matter is capable of only a vanishingly small number of variations, most of which will be eliminated by the legal judgment of counsel. There is no originality to such a listing of facts. See, e.g., Feist Pubs., Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340 (1991) (mere compilation of facts is not copyrightable absent substantially original selection, arrangement, and presentation). There is sure as hell no originality in a securities class-action complaint.

Thanks immensely, you [unbelievably foul and offensive expletives deleted], self-interested scumbags. That kind of nonsense makes my practice that much more difficult by reducing respect for proper assertions of copyright interests. If you're really that hyped up, consider using unfair competation law and the Lanham Act, which are actually what you really mean. You children of unwed parents. If, of course, as fellow lawyers, you had parents—something very much open to doubt. I would expect lawyers attempting to use law to control the actions of other lawyers to use the right law.

22 November 2002
More on Misuse

Just what was I talking about when I mentioned the Rules of Professional Conduct and the Code of Discipline? As usual, the legal community has managed to make something extremely simple into something extremely complex.

My legal ethics are very simple: I follow the Officer's Code. It has essentially three rules (slightly adapted for this context):

  1. Thou shalt not lie, cheat, steal, make misleading statements of law or fact, or tolerate other colleagues who do.
  2. Thy only acceptable motivation for any action or inaction is the best interests of thy clients consistent with objective fairness to all parties involved, including the judiciary or any other tribunal.
  3. If any action or inaction presents the appearance of a reasonably possible conflict of interest, thou shalt treat it as such until the conflict is resolved or knowingly waived by all persons and parties potentially at risk.

Being lawyers, we couldn't manage to accept that. The bar for the Bar is quite a bit lower.

Instead, there are essentially three complex, mealymouthed ethics systems, since lawyers are regulated state by state. The older system, now used in only a small minority of states (but including New York), was the Code of Discipline, generally called the "Code." The most-common current system, endorsed by the American Bar Association, is the Rules of Professional Conduct. In either of these instances, states may have minor alterations to the particular system adopted, either in the text adopted or in the interpretations of them in that state. (For example, until a ruling was issued only a couple of years ago, it was not an ethics violation in Illinois to engage in sexual intercourse—under any definition, not just Wild Willy's—with one's client, because the state Supreme Court said that the text of the rule did not clearly prohibit such conduct. However, it is now!) Then there's the California Exception, as California has refused to adopt either the structure or most of the substance of either of the two major systems. For good or for ill, as there are significant problems with all of them.

In any event, the critical duty that IMNSHO Milberg Weiss's course of conduct violates is that of candor toward others. Under the Rules, lying is prohibited by Rule 4.1:

In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;…

Under the Code, although the language is similar, Disciplinary Rule 7-102(A)(5) has been interpreted rather differently:

In his representation of a client, a lawyer shall not…[k]nowingly make a false statement of law or fact.

Rule 4.1 has generally been interpreted to mean that one cannot lie to opposing or adverse counsel about a legal right or responsibility or a factual matter; DR 7-102(A)(5), however, has generally been restricted to misstatements about facts unless the statement is made to a tribunal (court, arbitrator, etc.) or to an uncounseled individual, presuming that a lawyer will necessarily recognize an incorrect statement of law. Thus, Milberg Weiss—which is headquartered in a Code state, as noted last time—can quite possibly get away with misstating its legal right to attempt to enforce its copyright.

And the profession wonders why everybody thinks of lawyers as lying sleazebags…

Just remember that there are only three lawyer jokes—the rest are all true stories.

24 November 2002
Two Out of Three

Sex. Drugs. Rock and roll. Let's see: codeine—check (not to mention Thursday's forthcoming opportunity to overdose on tryptophan). J. Marshall Hendrix, Jethro Tull, The Who, Brian Auger's Oblivion Express—check. Cigars, blue dresses that haven't been dry-cleaned in six months, intern with big hips and big hair—not a chance. Two out of three isn't too bad, I suppose.

Unfortunately, the codeine is going to remain necessary for the near future, as things are not getting better on the pinched-nerve front. So maybe that missing activity would be out of the question anyway. It should, however, make this year's Turkey Awards even more bizarre than usual (if that's possible).

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Codeine also leads to some interesting other musings (the problem is at least partially the difficulty in remembering the more-interesting ones). The recent corporate scandals point out some serious systemic imbalances in who is getting paid how much. The class of people that earns the most (not Marxian class!) is corporate upper management. These are people with far more money than they can possibly spend.

So, then, what do they do with it?

A surprisingly large amount eventually gets aimed in the general direction of arts and entertainment. The amount is surprising only because so little of it ends up in the hands of the creators. Print publishing actually returns a higher proportion—about 7% on average, industry-wide—of the money spent by the end-user to the actual creator than most of the arts. Compare that to the struggling farmer whose wheat ends up garnering around 9% of the money spent on bread, and the concept of the "starving artist" really comes into focus.

This is not to say that the people in the middle provide no value. However, what the author provides is much closer to the finished product than is a bushel of wheat, but the author ends up taking home a smaller piece of the pie. Something is not right here.

Of course, I have some other ideas about this. But they'll have to wait until I'm a bit more lucid.

28 November 2002
The 2002 Turkey Awards

Gobble gobble. It's that time of year again, folks: my not-quite-to-the-end-of-the-year nominations for this years most ridiculous personages. Drumstick, please…

  • The Greasy Gravy Award goes to America's corporate executives, who have been so busy looking after their personal gravy trains that they've forgotten about their own bosses: the shareholders (both of stocks and in equity). This isn't any different from any other years; this time, however, they got caught.
  • The Red-Tide Oyster Stuffing Award goes to Attorney General Ashcroft for overt racism in the course of misfeasance and malfeasance in the performance of his duties. That's aside from the disdain he has expressed for the Constitution in the name of expediency, which deserves a special award.
  • The Broken Wishbone Award goes to the nonvoting American public for its pitiful turnout at the polls a few weeks ago. Regardless of whether they're "right" or not, the majority in Congress (both houses) was elected by, in toto, slightly over 13% of the eligible voters. That doesn't give me a lot of confidence in the democratic process.
  • The Golden Gristle Award goes to AOL Time Warner for its inability to decide as a corporation whether it decries piracy as a holder of intellectual property or encourages it as an ISP.
  • The Crabapple Pie Award goes to Peter Sprigg of the so-called Family Research Council for homophobia bordering on the truly paranoid, quoted in today's Washington Post as saying:

    Our position is simple: We don't believe that homosexual relationships should be granted any legal recognition at all. We're actually encouraged that courts in other states than Vermont have refused to recognize these relationships in terms of dissolving them, as well as affirming them.

    Gee. That sounds like a fundamentalist religious position to me, and one not all that much different from Wahabbist Islam. I guess Mr. Sprigg really is his brother's keeper. (I'm only picking on him individually because he was quoted; I've had my eye on the "Family Research Council" for quite some time.) <SARCASM>Bigotry in the name of someone's interpretation of the will of some deity is really one of the most attractive features of organized religion. Perhaps y'all should just keep it all in the Family. But that would be incest…</SARCASM>

  • The Brussels Sprout Award goes to Nancy Stouffer, for her ridiculous attempts to extort money from Joanne Rowling, which were quite properly trashed (see Judge Schwartz's decision). (Aside: Judge Schwartz just denied Stouffer's motion for reconsideration.)
  • The Dried-Out Breastmeat Award goes to book reviewers everywhere, particularly but not exclusively those at PW, Kirkus, and Booklist, who refuse to really tell us what they think of crappy books. Even less-than-glowing reviews seldom question the overall worth of the work under consideration. Virtually no source of reviews (except perhaps Savage Reviews) suggests not only that something is less than exemplary, but that it's so bad that it should not have been published. It reminds me very much of Tass and Pravda in the 1960s through 1980s: the only bad news reported concerns something other than the content of the industry, usually business practices and financial problems or snickering at other segments of the entertainment industry. It's really, really discouraging to see that movie reviews are more honest than book reviews (at least as a whole). Dammit, if you don't have anything nice to say, let's hear it!
  • The Rancid Drumstick Award goes to the Department of Homeland Security for insisting, through President Bush, that it be exempt from civil service rules—and in advance for the criminal acts it is going to commit over the next few years, in the name of "homeland security," that only the victims (and maybe not them) will ever find out about. I'm all for security, but we don't need the Geheimstaatspolizei to get it.

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