Commentary from a practical perspective
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
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.
Lets 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.
How did you score?
Whats 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
So whats the problem?
Is it the wrong mix of incentives and disincentives? Is it a delayed effect of September 11?
Its not Champaign?
Its Campaign Finance Reform?
Oh, yeah, right. Like thatll ever hold up to a legal challenge.
Limits on spending? Limits on the timing of political advertisements? Limits tied to a challengers personal campaign spending?
Are you kidding me? Didnt these guys and gals ever hear of the First Amendment? The part that starts out "Congress shall make no law ?"
Are you sure its 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.
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 hasnt kept this group and others from fighting it.
Using modern tactics, the group bought advertisements to publicize their position and demonize their opposition:
York found a way to respond to the property rights group:
The citizen group's attorney managed to object and be objectionable at the same time:
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 groups goals.
Oh, the poor dears.
This is a family-friendly site, so Ill just stop there.
In defense of curling
I was lucky yesterday morning. When I tuned into MSNBC shortly after 6 a.m., I thought Id be watching Imus. Instead, the Olympics were on, and it was the curling competition.
Im a Delaware native, and with our relatively mild winters Ive never tried curling myself, so bear with me as I try to explain this sport.
Its 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 stones direction and speed without touching it.
The object is to score points and deny the other side their points. Knocking the other teams stones out of the circles is perfectly legal.
Closest stone to the center wins, and theres a special device used by the judges to make the call. Its 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:
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 isnt, 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 NBCs 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.
I hasten to add that I dont have any problem with ice-skating. Its 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 its 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.
Thats 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:
Not fair, Glenn. Not fair at all. Take it back.
Legislators and The Law of Continuous Dealing
Megan McArdle posted an intriguing comment recently:
She's right about the commonly held but unreasonable assumption that all legislators are required to be omniscient. Its 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.
Its not really a law; its more an expression of enlightened successful dealmaking.
If Im in a situation where Im sure Im only going to have to deal with you once, and you feel the same way, either of us may decide its 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 youre going to have to deal with each other many times, perhaps over a course of years, theres a tremendous incentive to be honest and straightforward.
Like many state legislators, Delawares 41 representatives and 21 senators dont 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 others 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).
Theres a saying at The Hall--the first time you lie to a legislator is the last time youll ever get anything from them.
The professional lobbyists livelihood depends on maintaining good relationships. Buying tickets for fundraisers simply isnt enough. Most legislators can tell which part of a lobbyists pitch is salesmanship, and which part is useful information. Theyll listen to the pitch, and maybe even accept it, but more often theyll simply appreciate an honest explanation.
The reporters dont want to lose their sources, if they can help it. Theyll 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.
Its 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, its obviously more difficult.
Even so, from what Ive 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.
Its among the reasons why I dont support term limits other than what can happen on Election Day.
The NYT piece discussed the problems of groundwater and stream pollution in Iowa caused by hog farm operations and fertilizer runoff:
The local story centers on Foghorn Leghorns cousins:
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 Im sure its 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 dont 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, thered be no incentive to move the farms.
Of course, once the rules are in place, well 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.
It says what?
Ed Fosters 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 Microsofts "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. Heres the text on CD label of my copy of MS Publisher 97:
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. Heres 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 policys fine print included a limitation on hit-and-run claims, requiring an actual "contact" between the two vehicles.
The companys 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 couldnt have bargained over in the first place.
Reynolds offers a legislative solution to the software issue:
Thats 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."
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