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01 December 2002
The Shopping Season

Application of this month's headquote to current events is left as an exercise for the reader. Regrettably, this is neither a hypothetical suggestion nor a pass-fail exercise, as there are at least two plausible keys to this passage as a roman à clef. I only wish that it was either hypothetical or merely an expression of partisan angst (it's not the latter, as I despise both major parties as being too rightist, too power-obsessed, and too corrupt, and think the "alternatives" are in many ways worse).

◊        ◊        ◊

Speaking of nonpartisanship, I have a suggestion for all of you based on economic justice that is largely irrelevant to party politics, and could actually save you quite a bit in the long run (unless you've already got more money than is good for you, in which case I'm surprised that you're reading this, you running dog capitalist imperialist!).

I am deadset against broad-based sales taxes and VATs as regressive taxation—that is, the relative burden on those with lower incomes is higher than even a flat-rate income tax, both in actual and percentage terms. Thus, I propose that this year we should take steps to undermine the sales tax system by reducing its take during the holiday shopping season. (Ironic, isn't it, that this year the season for Hannukah lasted about ten hours, from store opening until sundown on the day after Thanksgiving.)

• Give magazine subscriptions as gifts, particularly to speculative fiction magazines.
• Order books, music, and video products from out-of-state vendors that have no sale tax agreement with your home state. Amazon (for some states) and Powell's are good choices for new and current-used books, while ABEBooks is a good choice for older used books and occasionally used music. Books-a-Million and Barnes & Noble, however, are not good choices, as they have physical presences in too many states to be good for evading sales tax. At least if you're paying a shipping and handling charge, you're not paying some politician's salary.
• Make gifts, particularly if it involves substantial skill. Build a bookcase from plywood and molding, for example; you'll spend under $55 if you're careful, and you couldn't buy something as solid for less than $200 (not to mention that you get to tailor its dimensions to where it needs to go).
• Whatever you do, thumb your nose at state "personal consumption" taxes that are supposed to make up for the loss of revenue. Although they have not specifically been tested, I doubt their constitutionality, even under the flawed reasoning in Quill. In any event, you'll be in good company; a recent survey of tax commissioners in states that have such systems estimates that less than five percent of the required returns, representing less than three percent of the amount claimed to be due, gets filed in a given year.
• Pay your income taxes on time. Although the system as implemented is indeed unfair, by any non-self-interested measure of "fairness"—whether "flat is fair" or "graduated is fair"—it is not as fundamentally flawed as broad-based consumption taxes.

I have little problem with special-purpose taxes, so long as there is a reasonable relationship between the use of the revenue and the items/services taxed. If all gasoline taxes went for road maintenance, subsidies for mass transit, and the necessary infrastructure (e.g., traffic cops), that would be fine. There are better ways to influence behavior on what goes out of people's pockets, however, than by misapplying something that is intended to determine what comes in to the government's.

Yes, there is another point to this, relating to authors' interests. But it will have to wait until next time. Or maybe later.

04 December 2002
Cowards!

Today's legal news for authors is quite mixed. The longrunning (in Internet time) dispute between Random House and Rosetta Books was settled today. Basically, both Random House and its opponent—about which more anon—decided that throwing more money down the drain was too much of a risk. So, instead, they have proclaimed a truce and a partnership, at least as to the titles at issue.

Cowards.

Random House probably "won" this round of the litigation, because it got more than it was going to get in the end (just read Tasini, or at least my comments on it) without paying the legal fees. What it got that is most important is the absence of precedent defining "book." Although the District Court's opinion will still be available to others as persuasive authority, that's all it is. By bailing out now, Random House has left the dispute open, allowing it to go after a weaker opponent later to get the precedent it wants.

The status of Rosetta Books is somewhat dicier. If one "follows the money," Arthur Klebanoff is the principal of Rosetta Books—and the principal of the Scott Meredith Agency, a now-notorious fee-charging agency with little current track record for authors who were not already clients before Klebanoff purchased the agency. Coming as close as I dare to giving legal advice in this forum, individuals who are clients of the Scott Meredith Agency are strongly advised to seek independent legal counsel immediately concerning potential conflicts of interest and other difficulties with such an arrangement—especially if any of their books were published by any unit of Bertelsmann AG (Random House and its imprints, Bantam Doubleday Dell and its imprints, and a number of others). Whether there is a legal cause of action is secondary; the key is to get advice to avoid future difficulties before they become difficulties.

Perhaps I should feel vindicated by this result, because I predicted it several months ago. This lawsuit is a direct result of Thomas Middelhoff's attempts to move Bertelsmann into dominance in nontraditional media, using its existing literary, musical, and cinematic properties. The overactive (which is to say normal) rumor mill indicates that he took a personal interest in this case from the beginning. (Again, following the money, Random House is owned by Bertelsmann.) But Middelhoff was fired this past summer, which I predicted would lead to a settlement by the end of the year.

05 December 2002
Fifth Column Right — — March!

As a former career military officer, I am sick to death of people with no real understanding of military history or command spouting off on military forces, military affairs, etc. as if nobody else knows anything. Over the last ten to twelve years, this has increasingly come from the right wing. Eventually, the pendulum will swing back; for now, it's elsewhere. At least those opposed to the forthcoming Round II of the Gulf War on ideological grounds are doing so at the policy level, not by casting aspersions on the services themselves.

Consider, for example, the idiocy of "don't ask, don't tell" policies. That's right: we'll reinforce the need for secrecy by gay military members to avoid punishment or discharge, thereby increasing any possibility that they might be blackmailed into giving away secrets. But that's not my point here. Over the last decade, the US military has been prohibited from recruiting law students at many law schools, including almost all of the top 25 schools, because the law schools treat the military's decision to discriminate against gays the same way they would treat a law firm's decision to discriminate against any discrete segment of the population: they ban recruiting. (Aside: Would that law schools would start looking at age discrimination by many leading law firms, which won't even give interviews to those over 30 no matter how high their class standing.)

Needless to say, this policy is somewhat controversial. So in wade the pundits who have no idea whatsoever of the military's historic role in society, let alone the requirements of command. (For any of you who come along, I served as a commanding officer for the majority of my career. Not once did I use the antihomosexuality provisions, because the military needs to get its heterosexual misconduct in order before it worries about consensual homosexuality.) Most of them get things completely backward, such as this one (taking the conclusion as a fair sample):

But perspective reminds us that those institutions that defend our lives deserve slightly more accommodation—yes, even despite what we may see as their vices—than institutions that don't. And any morality and any symbolism that fails to keep this proper perspective is not a morality or symbolism to live by.

Eugene Volokh, "Campus Military Perspective: The 'gay issue' isn’t the real issue" (05 Dec 02)

Wrongo, buffalo-soldier breath. The military has an obligation to be better than the petty prejudices of the populace. Mr. Volokh's article makes clear that he has no f&*)^)(&%()*!g idea of the military's role in desegregation. Sure, the military was segregated during World War II. However, it was desegregated in 1947, including in the schools—despite the conservative nature of the military. Had the outside been paying more attention, some of the pain of the civil rights struggle in the 1950s and 1960s would have been completely unnecessary.

A military necessarily reflects the society for which it fights, even when rules restrict military service. One of the major reasons that the Vietnam military failed us is that it was nonrepresentative: to oversimplify a bit (but far less than one might suspect before reviewing the statistics), the middle class was allowed to opt out, the upper classes opted out or sent their kids to officer-training programs and got them fragged because officer training in the 1950s and 1960s was horrible, and the lower classes got their kids killed on the front lines. (There are, of course, so many other reasons that no one reason stands out; I point to this as one factor.) Historically, every irrational service exclusion has come back to bite the military in the butt. Not just the US military, either; consider the early history of the International Red Cross, which is largely one of uppity women smacking supercilious men about the head and shoulders for their ignorance and insensitivity about battlefield medical conditions; or the history of the Gurkhas; or…

A "Fifth Column" movement is one in which purported loyalists are really working for another cause. Professor Volokh appears to be claiming that it would be to law students' advantage to have on-campus military recruiting (as an aside, in a given year each service hires fewer than 50 new active-duty lawyers, most of whom are already affiliated with the military). But that's clearly not what his article points at; it points at a much less honest goal. I'll leave exactly what that goal might be as an exercise for the student. The sheer intellectual dishonesty involved in someone admitting "There are decent pragmatic arguments for why the military [should be allowed to discriminate against gays]; and these arguments might be right, though I'm not expert enough to tell," then going on to say by implication that he does know enough to overrule the judgment of the various law schools that have concluded otherwise, is quite disturbing. That is a far more dangerous and subversive approach than would be outright condemnation of a policy on moral grounds, because it betrays the absence of the intellectual honesty to admit that the real rationale is one of personal morés.

Sadly, Professor Volokh is one of the less-outrageously guilty pundits of the Renegade Right (the counterpart of the Loony Left, if a far larger one). I shudder to think how Rush Limbaugh, or Jerry Falwell, or any of the other reprobates on that end of the political spectrum are going to twist his article. And they will. They always do. Which is not a defense of the extremists on the left, either, although the leftists are often closer to my opinions.

As a homework assignment, Professor, read Homage to Catalonia, "Politics and the English Language," and My Country Right or Left. Discuss.

10 December 2002
The Day Job

My recent scarcity has resulted from sick kids, bad back, and semiemergency motions to be prepared. Thus, things have been… interesting around here. Well, interesting for a lawyer. Considering that the most effective birth control for the average lawyer is his or her personality, that may not be saying much. So much for the day job.

All of which has led me, through a painkiller-induced haze, to thinking about the differences between category fiction (what is often incorrectly called "genre fiction"—primarily speculative fiction, mysteries, and political thrillers) and the so-called "mainstream" (including both "general" and "literary" fiction). The day job is a significant difference. The subject matter and "weight" of category fiction tends to revolve around the day jobs of the characters. Cops and private eyes solve mysteries for a living, and are so depicted in fiction. Starship captains captain starships; they are seldom engaged in long journeys of self-discovery after leaving the office for the day. Conversely, the subject matter and "weight" of mainstream fiction tends to happen after office hours—the long-smoldering affairs with the babysitter, the agonized boredom of the housewife, and so on. Of course, there is significant crossover in the better books, and significant exceptions.

What does this say about "escapism" and fiction? Or, rather, what kind of fiction is the most "escapist"—that which revolves around jobs that the reader (usually) does not have, or that which revolves around off-the-job pursuits?

That's not to say that escapism is necessarily "bad." It is to say that one should be accurate in characterizing literary works. It's just as easy to turn these definitions around.

Consider, for example, 1984 and Animal Farm. The former is science fictional in form, the latter a broader fantasy. Neither, however, could possibly be called "escapist": their point is that one cannot escape certain issues. On the other hand, consider even some of the better (or at least better-known) works in the mainstream since the Second Thirty Years' War. How much did we really see sales occurring in Death of a Salesman? The "day job" is generally kept off-stage, or used as at most an environment for office politics. Sometimes this can be biting satire (Richard Powers's Gain comes to mind), but usually it is not. It is an escape from the drudgery of the day job.

And that is escapism.

14 December 2002
No Harry Truman

The South won the War Between the States. Really. Assuming that one accepts George II's self-designation as a Texan, there has only been an eight-year hiatus from Southern presidents in the last quarter-century—and George II was the Crown Prince. The Speaker of the House has been from a Confederate state for most of the past century (Rayburn, Gingrich, Wright), as have the most notoriously powerful committee chairmen in the House (e.g., Wilbur Mills). The Senate has been even worse.

And the media is expressing shock and outrage at Trent Lott's apparent preference for a segregationist past.

Ignorant assholes.

This is precisely what we should expect with the kind of political/electoral system that we have imposed upon ourselves. We have saddled ourselves with a two-party system in which the parties do not, on balance, have a strong ideological basis for distinction. Third-party candidates can only win low-level elections with any reliability. This forces a "rush toward the center" among candidates, because it actually undermines party loyalty. (Presuming, of course, that one accepts political parties of any kind as benign—but that's for another time.)

Then there's the peculiar "primary plus final election" nonsense that purports to elect by a majority, and the silliness of the Electoral College. Then there's the election of all legislative officers by the members of the legislatures separately from election to those bodies. That means that the third in line for the Presidency can be elected first by a majority of the few who actually vote of around 600,000 citizens in a Congressional district, then 215 similar jokers.

In the end, people get the government that they want. The low voter turnout in this country allows—even encourages—the less-honorable element to seek and even obtain office. This past election, for example, a disgraced politician who had been thrown out of the House for corruption ran for election to his old seat. From federal prison. And received a substantial number of votes.

I am all for diversity of ideas. That my own politics are liberal and developed after hard study and experience doesn't keep me from learning from opposing views, and maybe even changing a position or three.

Senator Lott is one of the people who caused me to resign my commission. I took an oath to protect and defend the Constitution against all enemies, foreign and domestic. I lost confidence in the senior civilian leadership's commitment to that oath—one that they also take in a slightly different form. Leaving all questions of policy aside, Senator Lott's remarks and personal loyalties have shown for years that he cares only about power, not about the Constitution. That is unacceptable, unprofessional, uncouth, and un-American.

Senator Lott should resign, not just as Majority Leader, but from the Senate. (I would say the same if his views otherwise matched mine.) "All deliberate speed" has gotten pretty damned slow, with no real deliberation at all. And, in any event, the time for "all deliberate speed" is long past.

As a historical aside, I have a bone to pick with Messrs. Lott (and his ignorant staff) and Thurmond. One of the excuses offered for Lott's comments has been that he was agreeing with Mr. Thurmond on national defense policy in the 1948 election, not with segregation. But that is agreeing with segregation. Truman pushed for and signed the executive order that desegregated the armed forces in 1947 of his own accord, because he thought it the right thing to do. He ended decades of segregation in the military doing so, as part of his national defense policy. Indeed, in this regard, neither Strom Thurmond nor Trent Lott is any Harry Truman—who, for all his faults, was at least honest in accepting responsibility.

16 December 2002
Dirty Laundry

Enough politics for now. The moron who claimed that politics is not a dirty game, but that there are only dirty players, obviously had no real exposure to modern politics—American or otherwise.

On the other hand, the news in politics is generally more encouraging than is the news in publishing of late. I'm not referring to the annual publisher whining about sales not meeting expectations (meaning pipe dreams) during the holiday season. One can find the same bullshit in various industry publications every year for the last quarter century, despite the evidence to the contrary.

What is of greater concern in the publishing industry is the greater and greater disdain that the industry has for explaining itself. This encourages not only the bullshit "now everyone can be published" ads run by XLibris, and the outright lies put forth by iUniverse that don't quite literally say that iUniverse books will be freely available at the B&N down the block, and the even more dubious schemes out there, but actual disrespect for intellectual property. That is actually in nobody's best interest.

Intellectual property is the worst way to encourage the free creation and distribution of ideas. Except for all the others. Patronage? If you think there is censorship of the marketplace now… Government subsidies? Don't make me laugh. User donations? If it's generally available without cost, such a system will devolve into patronage in about the lifespan of an Italian government coalition.

Don't worry. There is a connection here. There is even a connection to the politics discussed last time. Reread the last paragraph of the 14 December entry.

20 December 2002
Not a Suicide Pact

The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (Goldberg, J.)

This little aphorism has been used more and more commonly in attempting to justify restrictions on individual rights in the name of both "national security" and "law and order." But what does it really mean? (Yes, this does connect to the last several entries.)

Mendoza-Martinez is a draft-dodging case—at least, on its face. The defendant was a naturalized US citizen who evaded the draft in 1942 by going to Mexico until 1946, presuming that his guilty plea to draft evasion was valid. After his conviction, the government stripped him of his citizenship and deported him. The case is really about the concept of estoppel—that is, one cannot argue against the result in a prior case that went against one, so long as the issue was (or could have been) fully and fairly tried in the prior case. Yes, that's a mouthful. Consider it in the context of a teenager trying to borrow the car. If the teenager asks Mom to borrow the car, and she says "No," the principle of estoppel would prevent said teenager from walking into the next room and asking Dad to borrow the car. He would be estopped from arguing against the result when he asked his mother (assuming, of course, that Mom and Dad have equal authority over the car). But what if he wanted to use the car to go take a college admissions test, and his mother just said "no" without listening to the substance of the request? Wouldn't that justify asking Dad to consider it anew? Probably not, because he could have at least gotten his reasons before Mom for her to reconsider her decision. Mendoza-Martinez is not at all about civil liberties, but about civil procedure. Citing this language in support of deprivation of civil liberties is at a minimum removing it from context.

The next question, a far more difficult one, is how one defines a "suicide pact." Compare Hirabayashi v. United States, 320 U.S. 81 (1943) (upholding curfew on Japanese-Americans) with Korematsu v. United States, 323 U.S. 214, 233–42 (1944) (Murphy, J., dissenting) (arguing that racial ancestry is not a valid ground for restrictions on individual freedom of U.S. citizens). The oath taken by federal officers, particularly those in the military, requires one to "protect the Constitution against all enemies, foreign and domestic." If the nation is so changed by overreaction to exigent circumstances that the Constitution is thoroughly undermined, is not that as much a "suicide pact" as failing to defend it against foreign invaders? That is not entirely a rhetorical question, for it is the basis of the Constitution itself: a government designed to prevent the tyranny of unlimited royal and Parliamentary power perceived in the American Colonies in the 1750s through 1770s.

This is a question of means and ends. Preserving the nation against terrorism is a satisfactory end, without question. The real controversy is the acceptable means to do so—keeping in mind that the means actually used will shape the ends actually achieved. Our collective memory appears so short that the "Red Raids" of the 1920s (that usually ended up as exercises in union-busting), HUAC, McCarthyism, Orville Faubus, Ernest Medina, William Calley, Daniel Ellsberg, and the sound of J. Edgar Hoover sucking civil liberties into the black hole of his integrity are completely forgotten. Those who do not know history are doomed to repeat it, and the USA Patriot Act is an invitation to repeat the less-savory aspects of late-1960s-style political protest—because the Act does everything it can to suppress criticism of potential or actual abuses.

22 December 2002
Sampling the Product

This weekend's Washington Post Book World includes a review by someone who just maybe understands that book reviewing does not mean cheerleading. As it happens, I'm not much of a fan of the kind of book under review, nor of the reviewer's own fiction. But, that said, he's absolutely right.

What we read in Decipher is publishing's increasing preference for product. As the Hollywood cliché suggests, the presumption is that people are willing to spend money to read a book that's just like one they've read before. Since we've checked our brains at the door, we won't notice or mind that the text reads like a manuscript in draft: ragged, overlong, troubled by run-on sentences and "said bookisms"—those awkward verbs used in place of "said." Pavlou's publishers apparently didn't care enough to hire a copy editor—or to tell him when his prose was embarrassing.

Douglas E. Winter, "What Lies Beneath"
(reviewing Pavlou, Decipher)

Of course, this shouldn't really surprise anyone for many publishers. If one follows the money, one finds a media conglomerate with a substantial Hollywood base either behind the publisher or closely affiliated with it. HarperCollins leads to NewsCorp and the Fox empire; Simon & Schuster leads to Viacom and Paramount; Warner leads to Warner; and so on. But the book discussed—which I have not read, and thus cannot comment upon specifically, but is symptomatic of so many others—is from St. Martin's, a publisher with a much better reputation than that. St. Martin's is part of the von Holtzbrinck group—as is Tor—which has much less connection to Hollywood than most. So what the hell happened?

Presuming that the reviewer is describing things accurately, this book was probably an acquisition error. It was almost certainly acquired at the direction of a noneditor, quite possibly some marketing dork. It is entirely possible that, with a good editor, the book could have been much, much better. It is highly unlikely, however, that it would have been better than many works that were rejected from the slush pile because they didn't look like "product." That's not to say that ignoring publisher guidelines is appropriate; it is only to say that books are not fungible commodities, and cannot be treated as such. There is one helluva lot more difference between fantasy novels by Naomi Kritzer and Melissa Scott and Lisa Barnett than there is between a Toyota Camry and a Honda Accord. One cannot expect to be successful in acquiring or selling books by treating them like last year's new cars. Reverse-engineering fiction is much more difficult than reverse-engineering a clutch.

The last few entries are all leading up to something. Something wicked. Something subversive.

25 December 2002
Saint Nick—or Old Nick?

 
Abbott: So what do you want?
Whistler: Peace on Earth, good will toward men.
Abbott: We are the United States government. We don't do that sort of thing!

Sneakers

Ho, ho, ho. Or is that Bah Humbug? Either way, it's time to look at Christmas lists and see who was naughty and who was nice. (I'm entitled—Jesus was Jewish, too.)
 

Children		Asked for		Got
Osama	:	The Death of the Great Satan, a worldwide Wahhabist Islamic dictatorship, and some candy.	:	Very naughty. The soundtrack to Saturday Night Fever (thoroughly scratched) and coal cunningly disguised as licorice drops.
George	:	World domination and more power and money for his buddies.	:	Naughty. Oil shale and fresh untanned deerskins.
Pat and Jerry	:	A Christian fundamentalist dictatorship.	:	Very naughty. The Torah tatooed on their butts.
George	:	Respect as a Great American Filmmaker.	:	Naughty. A copy of Introduction to Screenwriting superglued to his left hand, and a copy of The Golden Bough superglued to the right.
John	:	To exterminate everyone he believes is, or might be, a terrorist.	:	Very naughty. An indefinite term of confinement with no access to lawyers, the press, or political fundraisers in the brig at Guantanamo Bay, Cuba. With large roommates who lift weights.
Harvey	:	Regulation of the securities and accounting industries just sufficient to quell criticism—but with no budget or staff to enforce any regulations.	:	Naughty. Two years in military school, where he'll learn the meaning of "regulations."
Trent	:	Power.	:	Very naughty. A six-month visit to a country with an anti-Communist defense policy and plenty of segregation: Afghanistan under the Taliban.

It looks like Santa was a grumpy guy this year. "Bah Humbug" it is. (And the little girls ran away from Santa.)

30 December 2002
Testing Resolve

As a sort of sideways continuation of last time, OldSaint Nick has also suggested some New Years' resolutions for some prominent people…
 

Children		Suggested Resolution
Robert		To actually finish this bloated series of shitty books and get the fuck out of the way of people who can actually write (and do).
Bill and Virginia		To admit that somebody else has been writing all those books appearing under their names, and get back to being merely on the one hand an overbearing, tin-plated dictator with delusions of godhood and on the other a daisy-pusher. Learn from Milli Vanilli.
Bill, Scott, Steve, and Steve		To stop forcing me to use a computer the way you morons want me to.
Michiko		To stop being unnecessarily nice in book reviews.
George		To hire a real, no-shit screenwriter—and let him or her work.
David		To take only as much credit for screenplays as actual work put into the screenplays—especially when working from someone else's earlier draft.
Recording industry executives		To be employed and compensated on the same terms as they offer to musicians—determined under the same "accounting standards."
Publishing executives		To perpetrate the greatest practical joke in the history of the arts by providing scrupulously honest royalty statements and timely payments on 01 April.

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