Sneaking Suspicions

Archives--February 10 -16, 2002 (Week 6)

Commentary from a practical perspective

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This page includes posts from the site's sixth week, February 10-16, 2002 in the usual reverse order. Each week's postings are perma-linked to these pages.

February 16, 2002

Sing it loud. I’m out of it, and proud.

Justin Slotman and Ginger Stampley recently linked to a funny piece in The Guardian about the Dido Demographic. The game was to read down a list of 25 CDs to see how musically hip you are, even though you may be mired in early middle-age.

Judging by the Dido list and my own music collection, I am, it appears, tragically un-hip. Therefore, it seemed appropriate to develop a new test for others who may suspect they are not in tune, musically speaking.

Let’s call it the Out of Touch Bunch Music Test (OTB, given my acronym fetish).

The list for this test is derived from my personal collection of albums and CDs. It does not include any music owned by others in the household. They are blameless.

As with the Dido Demographic Test, read below and see if you have 12 or more of the following. If so, you are officially a member of the Out of Touch Bunch.

  1. Allman Brothers, Live at Fillmore East. Double album classic; my personal favorite is "In Memory of Elizabeth Reed."
  2. Ian Anderson, Divinities. Tull goes classical, with an interesting theme worked out in several satisfying permutations.
  3. Beatles, Abbey Road. Of course. We crossed the street two summers ago.
  4. Claude Bolling, Suite for Flute. Bolling, with Jean-Pierre Rampal, mixed jazz with classical flute. "Baroque and Blue" is a great start to this collection.
  5. David Bowie, Stage. Double-album live recording of Bowie’s best work up to 1978, when this was issued. My two favorites are "Warzawa" and "Heroes."
  6. Cajun, Vol.1—Abbeville Breakdown, 1929-1939. One of the benefits of CD technology is the chance to hear old 78s, restored to their original glory. A fabulous collection; knowledge of Cajun dialect is helpful, but not necessary.
  7. Ry Cooder and Vishwa Mohan Bhatt, A Meeting By The River. I first heard this on NPR, and took a chance based on one song. I’m glad I did.
  8. Focus, Moving Waves. Progressive Dutch rock, with yodeling. An early introduction to "world music," as it’s now called.
  9. John Klemmer, Touch. If you like good sax playing that’s not just noodling around.
  10. Leo Kottke, Six and Twelve String Guitar. I think I have over a dozen of his albums, and I’ve seen him play a couple times. An amazing talent.
  11. Little Feat, Waiting for Columbus. Live performances of some of Feat’s best work. This one helped me finish my third year of law school.
  12. Mahavishnu Orchestra, The Inner Mounting Flame. I’m required to use the headphones when I play this, but it’s great trip down the memory hole. Where’s the incense?
  13. John Mayall, The Turning Point. Best known for "Room to Move," but I always liked "The Laws Must Change" better
  14. Randy Newman, The Natural. I admit it. I like soundtrack albums, and Newman is one of the best.
  15. Randy Newman, Sail Away. The lyrics to "Political Science" gained some new relevance after September 11.
  16. Emmit Rhodes. This 1970 soft-rock release is gaining a new following in 2002, with one of his songs used in the soundtrack for The Royal Tenenbaums, the live New Yorker Magazine cartoon movie. I believe I was going through a "sensitive" period when I bought this three decades ago.
  17. Run Lola Run Soundtrack. We saw this movie during the Rehoboth Film Festival, and ordered the soundtrack from Amazon that night. Great movie, and the soundtrack fit the story about as well as any we’ve ever seen. I guess it’s called industrial techno music, but then again, I’m out of it.
  18. Seatrain, second album. The commercial hit was "13 Questions," but "Orange Blossom Special" is exceptional, as are most of the other songs.
  19. Shadowfax, Shadowdance. New Age jazz. "New Electric India" is a great introduction.
  20. Steeleye Span, Parcel of Rogues. Fun, mostly upbeat folk/rock group, playing songs about naughty wenches and such.
  21. Talking Heads, Remain In Light. "And you may ask yourself…."
  22. Traffic, John Barleycorn Must Die. Steve Winwood at his finest, although the instrumental "Glad" is my favorite piece on this album.
  23. Jethro Tull, This Was. The group’s first U.S. album. ‘nuff said.
  24. Hot Tuna, Burgers. Three reasons: "True Religion," "Keep on Truckin’," and "Water Song."
  25. George Winston, Autumn. My first introduction to New Age music, when we visited a good friend in Berkeley in 1982.

How did you score?

February 15, 2002

What I heard was different from what you said.

What’s all this talk about Champaign Finance Reform?

What's so important about a small Illinois city that the rest of us should care so much?

I checked on the Web, and it sure looks like they have the normal range of taxes to support themselves. They even offer a variety of economic development services, including

Industrial Development incentives, Enterprise Zone incentives, Tax Increment Finance Districts, development programs in the downtown and campustown and capital improvements planning and construction.

So what’s the problem?

Is it the wrong mix of incentives and disincentives? Is it a delayed effect of September 11?


It’s not Champaign?

It’s Campaign Finance Reform?

Oh, yeah, right. Like that’ll ever hold up to a legal challenge.

Limits on spending? Limits on the timing of political advertisements? Limits tied to a challenger’s personal campaign spending?

Are you kidding me? Didn’t these guys and gals ever hear of the First Amendment? The part that starts out "Congress shall make no law…?"

What a scam.

Are you sure it’s not Champaign? No offense or anything, but that would make a whole lot more sense.

I give that other thing a year, tops, before the courts tear most of it all up.

On the other hand, maybe that's all they wanted.

Now that we have that straightened out, feel free to click here for this week's golf column.

February 14, 2002

Sauce for the ganders

Apparently not everybody thinks preserving open space is such a hot idea.

A Virginia group called Citizens for Property Rights (CPR) is fighting against plans by the Loudon County supervisors to establish a 300-square-mile rural preserve. Based on the prior reportage about the issue, it looks like the county is prepared to pay for the privilege, but that hasn’t kept this group and others from fighting it.

Using modern tactics, the group bought advertisements to publicize their position and demonize their opposition:

The ads run by Citizens for Property Rights have often been cutting. One appeared in The Washington Post in April asking, "Why Hasn't Scott York Been Indicted?" then went on to accuse board Chairman York (R-At Large) of violating conflict-of-interest laws. A special prosecutor was appointed to investigate those allegations but found no crime.

York found a way to respond to the property rights group:

A judge appointed a special prosecutor yesterday to investigate whether [the] Loudoun County landowners group violated Virginia election law by not disclosing who is funding its campaign against the Board of Supervisors' efforts to slow growth.

The citizen group's attorney managed to object and be objectionable at the same time:

[Thomas] Plofchan said Citizens for Property Rights does not want to disclose its funding sources because it does not want to subject donors to harassment.

"Why should someone be chastised just because they want to participate in the political process and at the same time avoid being subject to ad hominem attacks?" he asked.

That question made me laugh.

Let me make sure I have the right impression: This group, whose own advertisement implied that a county official should be indicted, is now complaining that some of its members might be called bad names if other people knew they supported the group’s goals.

Oh, the poor dears.

This is a family-friendly site, so I’ll just stop there.

February 13, 2002

In defense of curling

I was lucky yesterday morning. When I tuned into MSNBC shortly after 6 a.m., I thought I’d be watching Imus. Instead, the Olympics were on, and it was the curling competition.


I’m a Delaware native, and with our relatively mild winters I’ve never tried curling myself, so bear with me as I try to explain this sport.

It’s a bit like bocce on ice. It uses highly polished stones on which brightly colored handles are attached, both for throwing and to distinguish between the two teams’ stones. The stones are aimed toward a set of concentric rings set on the court. One team member throws the stone, and two teammates step/glide along the ice, using brooms to try to influence the skidding stone’s direction and speed without touching it.

The object is to score points and deny the other side their points. Knocking the other team’s stones out of the circles is perfectly legal.

Closest stone to the center wins, and there’s a special device used by the judges to make the call. It’s like a large drafting compass, and when used there are no arguments about who wins the point.

The American team in the 10-country competition managed to beat the favored Swedish team in the first round:

With the Americans leading 4-3 in the seventh end, or inning, Sweden looked in position to tie when Tim Somerville used an angle shot to knock one stone into the Swedish stone and push them out of scoring position.

"It was like a 1-in-20 shot but it was kind of the only one I had," Somerville said. "I feel like I have won a medal already. But there is still a long, long journey to go.

The competition was in the second round when I started watching, and the Americans struggled against Canada. On a few throws from the Canadian team, there was very little "curling" going on. The stone was thrown hard enough and true enough that it simply went straight at one of the American stones, knocking it out of the ring.

Was it all a bit odd? Sure. What sport isn’t, really?

Even so, I could see several elements to the competition that told me it was a real sport.

First, it requires good eye-hand coordination, just as in many other sports. The thrower must have a delicate sense of touch with a heavy object, and great vision and timing for the throw.

The sweepers must also have a refined sense of how hard to work the brooms to alter the ice enough to affect the stone. It takes several seconds for the stone to reach the circle, so there are many opportunities to either do it well or screw it up.

Second, there are tactical decisions to be made. As the competition goes forward, the teams must figure out the best strategy to either protect a well-thrown stone or go after the other teams’ stones.

Third, and this was well-covered by NBC’s sound crew during the event, curling requires good team-working skills. The thrower has the best view of the stone as it glides, and calls directions out to the sweepers for the best chance to affect the results.

Finally, the judging required for scoring is completely objective. The sports uses a fairly simple scoring method. A measuring device handles the rare disputes about which stone wins.

Sounds like a real sport to me.

In contrast, here’s what the AP reported (via Drudge Report) on a figure-skating controversy:

NBC's Olympic figure skating announcers were thrown for a loop by the judging in the pairs competition Monday night.

The network's Scott Hamilton, Tom Hammond and Sandra Bezic were certain they knew who had won the gold medal.

The trio made it clear to viewers that Canada's Jamie Sale and David Pelletier had outskated Russia's Elena Berezhnaya and Anton Sikharulidze — and then were shocked when the gold went to the Russians by a one-judge margin.

"My heart breaks," Bezic said right before the medals ceremony, "and I'm embarrassed for our sport right now."

I hasten to add that I don’t have any problem with ice-skating. It’s beautiful, and the skaters are great athletes. Nonetheless, when winning is based on a set of judges giving style points, instead of objective performance criteria, I have a harder time remaining convinced that it’s a real sport.

The other thing I like about curling is that participants looked so normal, and middle-aged at that. A couple members of the U.S. Team looked like they very much enjoyed the occasional bratwurst and beer during the last two or three decades.

That’s why I took offense at the snide remarks made by Jim Lampley at the end of the curling segment. He made some odd reference to Salvador Dali, in a lame attempt to distance his own sense of what a real sport is, compared to what we just saw.

The bad rap against curling continued on the Web, with a reference in an Enron piece by Glenn Reynolds. After properly slamming Congress for scheduling former Enron Chairman Ken Lay for a televised slap session featuring the Fifth Amendment, Reynolds expressed the keen hope that no one would tune in:

Though I wonder who will watch. Even the curling finals are more exciting.

Not fair, Glenn. Not fair at all. Take it back.

February 12, 2002

Legislators and The Law of Continuous Dealing

Megan McArdle posted an intriguing comment recently:

Just opining in this space has opened my eyes to how much stuff there is out there that I don't understand anything about. I try not to publish on areas where I don't have a damn clue, but every so often, it turns out that although I thought I had a clue, I really don't. Which, I surmise, is the position most of our legislators find themselves in most of the time, as they are expected to have opinions on everything from tree mold to foreign policy.

She's right about the commonly held but unreasonable assumption that all legislators are required to be omniscient. It’s just not possible.

Some representatives help prove the point, especially the ones who present a danger to you if you find yourself between them and a microphone.

That kind of legislator is actually pretty rare, at least in my experience at the state and local level. The reality is a bit more nuanced, and highly dependent on what some call The Law of Continuous Dealing.

It’s not really a law; it’s more an expression of enlightened successful dealmaking.

If I’m in a situation where I’m sure I’m only going to have to deal with you once, and you feel the same way, either of us may decide it’s in our interest to screw the other person. Think of what happens at used car lots, for example.

At the other end of the spectrum, where you both know you’re going to have to deal with each other many times, perhaps over a course of years, there’s a tremendous incentive to be honest and straightforward.

Like many state legislators, Delaware’s 41 representatives and 21 senators don’t have big support staffs. Instead, over time they come to rely upon a few useful approaches to obtaining the information they need.

First, most of them develop a specific area of interest or two after their first term or two. Their fellow legislators come to rely on each other’s relative expertise. Vote-trading sometimes seems to depend on individual specialization as much as party affiliation.

Second, they develop relationships with lobbyists and reporters, especially the ones who are found at "The Hall" most of the days the General Assembly is in session.

Third, they develop relationships with agency officials and their representatives, who can give them the institutional history and knowledge of a situation, or explain the nuances of legislation affecting the agency.

In all these cases, however, the parties tend to understand and abide by the Law of Continuous Dealing (LCD).

There’s a saying at The Hall--the first time you lie to a legislator is the last time you’ll ever get anything from them.

The professional lobbyists’ livelihood depends on maintaining good relationships. Buying tickets for fundraisers simply isn’t enough. Most legislators can tell which part of a lobbyist’s pitch is salesmanship, and which part is useful information. They’ll listen to the pitch, and maybe even accept it, but more often they’ll simply appreciate an honest explanation.

The reporters don’t want to lose their sources, if they can help it. They’ll often trade information with legislators.

The agency heads and staff also have strong incentives to play it straight and give the legislators the information they need or want. The search for allies in support of the executive branch is everlasting, and besides, paybacks are hell.

It’s by no means a perfect system. Not everyone follows The LCD at all times, and in larger states with bigger legislatures and deeper party divisions, it’s obviously more difficult.

Even so, from what I’ve observed The LCD works better than most other methods to keep legislators reasonably well informed, or at least to give them opportunities to rely appropriately on the expertise of others.

It’s among the reasons why I don’t support term limits other than what can happen on Election Day.

February 11, 2002

Sure, your eyes are watering and you’re gagging. That’s the smell of progress!

Two related stories in the Sunday editions of the local paper and the NYT raise a few issues worth considering.

The NYT piece discussed the problems of groundwater and stream pollution in Iowa caused by hog farm operations and fertilizer runoff:

By the time the Raccoon River winds through the western hills here, passing corn fields and livestock pens before reaching Des Moines miles to the east, it is so polluted the city has to put it through a special nutrient filter to meet government standards for drinking water.

"Farmers are the problem," said L. D. McMullen, the general manager of the Des Moines Water Works. "And they are entirely unregulated."

The issue goes beyond Iowa. Across the country, metropolitan water agencies are battling increasing pollution from the countryside.

The local story centers on Foghorn Leghorn’s cousins:

State officials are lining up a $2 million grant for the new Perdue-AgriRecyle poultry waste plant in Sussex County.

Perdue Farms Inc. sought the five-year, taxpayer-backed grant to help cover transportation expenses at its fertilizer pellet-making venture south of Seaford.

Perdue and Missouri-based AgriRecycle built the plant to process more than 90,000 tons of poultry waste yearly. Much of the fertilizer could leave the state by rail, bound for the Midwest.

Delaware's poultry industry produced about 242 million broiler chickens last year. The industry also generates an estimated 300,000 tons of manure and millions of dead birds yearly. Farmers have long used most of the waste as fertilizer, despite warnings that because the practice far exceeds crop needs, the runoff pollutes wells and waterways.

In both cases, the millions of tons of pungent stuff that results from the production of protein are now replacing industrial pollution as the prime area of concern for water resource protection efforts.

I usually prefer state-based solutions to what are usually local problems. In this case, however, I believe a uniform federal approach will eventually be necessary, even though it will be harder to come to a national agreement on the best methods to reduce pollution from agribusiness.

Unlike grain operations such as rice, corn, and soybeans, hog and chicken operations receive far less in direct federal subsidies. As the Times piece points out, the hog farms buy up excess grain produced to take perverse advantage of subsidies, so to that extent the protein farms are indirect beneficiaries.

Subsidized or not, the market pressures to keep production costs down are tremendous. Chicken producers such as Perdue and others work on incredibly thin profit margins, and I’m sure it’s no different for the hog operations in Iowa, North Carolina, and elsewhere.

With profit margins so tiny, any state will be hard-pressed to enact pollution control rules that don’t exist elsewhere. The threat of losing farm operations to states with less stringent regulations will make state legislators and governors blanch.

At least with a federal program, there’d be no incentive to move the farms.

Of course, once the rules are in place, we’ll all pay more for our protein, as the costs of minimizing agripollution in groundwater are factored into the market price.

I can live with that.

Here's the newest golf book review, if you're interested.

February 10, 2002

It says what?

Ed Foster’s recent piece in Infoworld about Product Use Rights language found in copies of Microsoft XP Professional software is causing a bit of a stir. Momma Bear sent an e-mail note about it, and Glenn Reynolds weighed in with a short sharp jab at our friends in the Upper Northwest.

The concern with the licensing agreement relates to terms that give Microsoft the option of accessing user systems as part of the Windows Auto-Update feature, with the further option to "provide upgrades or fixes to the Product that will be automatically downloaded...."

This language will not please users with justifiable concerns about the uneven quality of Microsoft’s "fixes." In addition, the language raises legitimate privacy law questions, especially for those who must comply with government data access restrictions.

These license terms are examples of the kinds of relationships the law recognizes as "contracts of adhesion." One party presents the terms of a deal on a take-it-or-leave-it basis. There is little or no opportunity to bargain over the specifics, and there are often no reasonable alternatives other than foregoing the opportunity completely.

Software publishers are usually upfront about their relative bargaining position compared to their customers. Here’s the text on CD label of my copy of MS Publisher 97:

Important: You must accept the enclosed License Agreement before you can use this product. If you do not accept the terms of the License Agreement, you should promptly return the product for a refund.

These kinds of contracts are more prevalent than one might first think. Take a look at your next parking garage receipt, for example.

On the other hand, sometimes the courts will not enforce the more onerous fine print. Here’s a story from my private practice experience of long ago.

An honest-to-God little old lady driver was forced off the road by some idiot coming at her in another car. She swerved in time to avoid colliding with the fool, but crashed her own vehicle in the process. The other driver kept going, and there were no witnesses to identify who was responsible.

Imagine her surprise when her insurance company refused coverage for her claim. Her policy’s fine print included a limitation on hit-and-run claims, requiring an actual "contact" between the two vehicles.

The company’s defense to the lawsuit seeking coverage was that the contact requirement was a necessary protection against fraud. After all, any careless driver who took out a tree could easily claim he was only trying to avoid being hit by a phantom hit-and-run criminal. The company argued that it faced an unacceptable risk if it couldn't insist upon an actual contact between vehicles to prove there really was a hit-and-run.

The court ruled against the fine print. The contact requirement in the insurance contract was more restrictive than contemplated by the state insurance law. There were other ways the insurance company could deal with the occasional fraudulent claim, rather than to deny a legitimate claim on the basis of a contract term the insured couldn’t have bargained over in the first place.

Reynolds offers a legislative solution to the software issue:

Here's my legal proposal: No shrinkwrap or click-through license shall be enforceable if it can be shown that the terms are inconsistent with reasonable user expectations, said determination to be a jury question. Hardcore contractoids will disagree -- but there's no "meeting of the minds" on these damn agreements anyway, so why pretend?

That’s not a bad start. It would be fun to watch someone introduce a bill along those lines in a state legislature, and then see who fights it.

Full disclosure: My law firm defended the insurance company. As Jerry Seinfeld and other Americans said in another context, "Not that there's anything wrong with that."

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969

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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

Frederick H. Schranck 2002