32 posts categorized "November 2011"

Consent of the Regulated

Judge Rakoff's opinion in SEC v. Citigroup, rejecting a negotiated settlement proposed by government and bank, rounds out what is now becoming a mainstream or conventional understanding of what has happened to our federal government. In the perversion of representative democracy where legislation is purchased and where money is speech, it makes sense that those charged with enforcing law will back down when it comes to the conduct of large corporations.

John Cassidy in The New Yorker draws a link between the proposed Citigroup settlement, now rejected by Judge Rakoff, and regulatory capture:

"The head of enforcement at the S.E.C., Robert Khuzami, released a lengthy statement saying Judge Rakoff’s judgement 'ignores decades of established practice throughout federal agencies and decisions of the federal courts.' That may well be true, but that only raises larger questions about the cozy relationship between Wall Street and its primary regulator. Khuzami is, by all accounts, a tough and able lawyer, who earlier in his career worked for more than a decade in the office of the U.S. Attorney for the Southern District of New York. But he subsequently spent seven years in a highly remunerated position at Deutsche Bank, one of the firms that the S.E.C. is now investigating. After that experience, Khuzami would hardly be human if he hadn’t come to view the world at least partly through the lens of Wall Street."

Analysis all too plausible in light of what #occupy is teaching us.

Below, in part, is the Judge's reasoning. His rhetoric is stirring because he is talking about nothing less than the Executive's abandonment of constitutional responsibilities, and the responsibility of the Judicial branch of government to not be complicit in the banana-republicanizing of the nation.

“[T]he proposed Consent Judgment is neither fair, nor reasonable, nor adequate, nor in the public interest. Most fundamentally, this is because it does not provide the Court with a sufficient evidentiary basis to know whether the requested relief is justified . . . . Purely private parties can settle a case without ever agreeing on the facts, for all that is requires is that a plaintiff dismiss his complaint. But when a public agency asks a court to be come its partner in enforcement by imposing wide-ranging injunctive remedies on a defendant, enforced by the formidable judicial power of contempt, the court, and the public, need some knowledge of what the underlying facts are: for otherwise, the court becomes a mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance. . . .

"As for common experience, a consent judgment that does not involve any admissions and that results in only very modest penalties is just as frequently viewed, particularly in the business community, as a cost of doing business imposed by having to maintain a working relationship with a regulatory agency, rather than as any indication of where the real truth lies. This, indeed, is Citigroup' s position in this very case. . . .

"An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. The injunctive power of the judiciary is not a free-roving remedy to be invoked at the whim of a regulatory agency, even with the consent of the regulated. If its deployment does not rest on facts - cold, hard, solid facts, established by admissions or by trials - it serves no lawful or moral purpose and is simply an engine of oppression. . . . 

"In much of the world, propaganda reigns, and truth is confined to secretive, fearful whispers. Even in our nation, apologists for suppressing or obscuring the truth my always be found. But the S.E.C., of all agencies, has a duty inherent in its statutory mission, to see that the truth emerges; and if it fails to do so, this Court must not, in the name of deference or convenience, grant judicial enforcement to the agency's contrivances."

Where is President Obama? Why isn't he applauding the Judge's ruling and promising to get the Executive Branch's act together? Why does he refuse to use his office to govern?

Scny screenshot

Screenshot is of the website for the US District Court on which Judge Rakoff sits. It's powerful stuff, that rulings like this are published and disseminated for free. You can't say this about all judicial opinions, but non-lawyers can certainly read and understand all of Judge Rakoff's ruling.

Tank of Electricity

When in Orange visiting my brother Tim, we do a lot of driving.

But this visit is the first visit I remember stopping for gas.

Tim has a Prius.

I've thought a lot before about how his car handles, how quietly it runs, how it accelerates on a dime, how its dash and guidance UI interface with windshield and road.


But this visit I'm struck with how fuel efficient it is.

Of course, it took the act of stopping for gas for it to *click* that we never do that.


Friday, my girlfriend Helen and I heard the world premiere of Sirens at Disney Concert Hall.

It's a half hour piece by composer Anders Hillborg, written for the following instruments (quoting from the program notes):

"3 flutes (all = piccolo), 3 oboes (all = English horn), 3 clarinets (all = bass clarinet), 3 bassoons, contrabassoon, 4 horns, 4 trumpets, 3 trombones, tuba, percussion (crotales, glockenspiel, tubular bells, vibraphone, wind chimes, tam-tam, bass drum, glass harmonica), harp, piano, and strings, plus soprano and alto soloists and chorus"

Actually that inventory is not comprehensive. The percussionists also "played" four half-filled wine glasses (running index fingers along the rims to make that sound that half-filled wine glasses make when you run your index finger around the rim) and the chorus snapped their fingers like beat poets at a hipster club.

6406424239_1fc4569273_bThe piece is about the gamut of Sirens encountered by Ulysses in Homer's The Odyssey. And there was more dramaturgy than typical for staging an orchestral work: the players were bathed in a variety of strong, colored lights, as though they were to represent a tossing sea; the black gowns of the women in the chorus were lined with blinking micro-Christmas lights; and the conductor, Esa-Pekka Salonen (to whom the composer dedicated the work), in black tunic, hair curling around his neck, evoked Alan Rickman playing Snape in the Harry Potter movies.

We were surprised to hear violins, not screech in strokes, but sustain a screech for what seemed like minutes at a time.

The libretto featured synesthetic lines such as, "Clouds of sweet fragrance swelling and roaring around you," together with unmistakable if economical references to the Beatles' A Day in the Life ("I'd love to turn you on") and Nelson Riddle Sinatra ("come fly with us").

After the show, we walked the roof of the Hall, to let the parking garage thin out. We also dropped by the store to get a closer look at Emmanuel Axe, the soloist for the Beethoven piano concerto on the first half of the program, who was signing CDs.

We tarried long enough that the garage was nearly empty as we reached the car my brother lends me when visiting. No question that we preferred the Beethoven and found the Hillborg more challenging, but Sirens proved powerfully suggestive: as we pulled away, spiralling to the mouth of the garage five floors higher, we could hear a sustained screech of tires and power steering columns reverberating from an unseen car (or cars) above or beneath us. Sirens again! The garage the synesthetic sea!

America's Near Future in Jennifer Egan's Novel, "A Visit From the Goon Squad"

Late in the novel, A Visit from the Goon Squad, author Jennifer Egan takes an odd and ambitious turn.

The first 85% of the book skipped, chapter by chapter, around episodes in the featured characters' lives, sometimes occupying a near-past that might actually be contemporary, but generally including historical references that belied the unrolling of the narrative in the present tense.

But at Chapter 12, Egan pushes the present tense into an anxious future.

What interests me about this move is how willing Egan is to commit to a critique of social media, game mechanics, and personal technology that makes America's urban tomorrow as grim as 19th Century London in a Dickens novel. Just replace the indifference of industrialization with the insincerity of perpetual affiliate marketing.

Here's the narrator melding minds with a character asking himself why he's selling out and agreeing to manipulate the social influence of his network of friends:

"Because he never could quite forget that every byte of information he’d posted online (favorite color, vegetable, sexual position) was stored in the databases of multinationals who swore they would never, ever use it—that he was owned, in other words, having sold himself unthinkingly at the very point in his life when he’d felt most subversive?"

Egan does not use today's tech buzzwords, however. She invents her own:

  • "pointer," used to describe the smartphones of the near future, which include features of a gamer's wand as well as personal surveillance tools;
  • "pointer," used metonymically to refer to toddlers, the age group that takes intuitively to the smart phones of the near future and, in wielding them, becomes the age group that sets trends in fashion and popular culture; and
  • "word casings," words "shucked of their meanings and reduced to husks," or made ironic (in Egan's future, "word casings" include "American" and "democracy").

There is some relief to be found in Egan's near future, if one travels west. In the desert of Arizona, two characters from earlier chapters have left Manhattan and are raising a family. Desert creatures have been displaced by vast solar panel farms, but at least they can repair to lawns and golf courses that have been abandoned. The family's story is told in first person by the couple's precocious young daughter, writing in fluid power point.

Egan slide 2

Is Egan underscoring that the past must be as fanciful an imaginative construction as the future?

If so, I'd like the past and future, both, to be brighter.

Sunny California

Orange, California

California and I have a complicated relationship.

The Pacific Northwest is my adopted home. I've raised three children there, my professional life is based there, friends there taught me how to blog.

In Seattle, unlike other parts of the world, things like good government and meritocracy don't seem out of reach. The art scene could be more robust (more shows like Paradise, now at the Frye, could change that (my review here)), but people are well read and capable of civic thought (public transport excepted). Too many in the Seattle startup community seem burdened with the insecurity that business grass is greener in California, which is nonsense masquerading as resentment. Amazon will continue to centralize power in Seattle. Microsoft will pay to train and then throw off engineers into the talent pool for years to come. The only way Washington State can fuck up and become truly provincial will be to under-fund education; otherwise, the brainwork of California companies will continue to migrate north.

6400797853_d87bfab4a9_bBut I do like the scene down here in sunny California. The people here are not like Washingtonians, but if they were, they would be a mix of people from Seattle and eastern Washington, in equal proportion, all in the same place.

California is full of the kind of people who shop at Costco and aren't too fussy to mind coffee from Starbucks. Contractors who congregate around open-bed pickup trucks early in the morning at mini-mall donut shops (that's how you find the good ones?).

I used to think Northern and Southern California were different worlds, but I don't think that anymore. The smell is the same. Eucalyptus everywhere. The outdoor air is everywhere scented the same. Interiors smell like new drywall.

Pictured: Eastside strip mall construction that I simply can't abide back home. But it seems okay down here. Maybe it's the sun and the palm trees?

Imagined Obama Speech on James Fallows' Blog

Regular readers of this blog will want to know that the Thanksgiving Day address I imagined for President Obama ran yesterday on James Fallows' blog.

4455914253_6796ba0def_oThe speech is included there as part of a second guest post by Michael Jones - a self-acknowledged member not just of the 1% but of the 0.1% - on the importance of the #Occupy movement for all of us. Jones added stage direction that helps set up the speech itself: he posits that White House staffers bring Fallows' blog to the President's attention. Obama is then moved to attempt to provide the leadership that, so far, has been missing from his presidency.

Please definitely read the imagined Obama speech on Fallows' blog. It reads better there.

By the way, Fallows briefly indicates on his blog that he went through an accident and other mishaps while traveling this week. I'm very thankful he is okay.

Photo by Pete Souza, White House.

President Obama #Occupies Thanksgiving

Transcript of a dream, a speech that President Obama might webcast later this this morning:

"My Fellow Americans:

“I had an epiphany last night, and I want to share that with you today on Thanksgiving, that uniquely American holiday recognized by proclamations of Abraham Lincoln when he was President.

“I know most of you are cynical about your government.

“The cynicism is compounded by a national confusion over the proper role of government. On this fundamental question, we are a divided people. Many of you want the federal government to do little more than provide for the common defense. Others, however, think the federal government has a role in setting national goals, building infrastructure, even providing for the common welfare.

“We’re going to have to figure that out. What is the proper role of national government.

“But before we can do that, the government that we have, such as it is, must again become legitimate, accountable to you.

“We all agree that politicians in Washington today have lost their way.

“When I became President, I thought my job was to learn as quickly as possible the levers of power within the Executive branch and the Congress. I thought my job was to work the system, as an insider, on behalf of the people.

“As you may know, I look up to President Lincoln as a model and have thought to learn from his example. I read Doris Kearns Goodwin’s ‘Team of Rivals,’ and that book influenced decisions I made about my cabinet, about working with Congress, about compromising with interest groups, because I thought that was the essence of American political leadership.

“The epiphany I have had is this. I have made a mistake. I have drawn the wrong lessons from history. I have failed to appreciate an essential, central lesson of our past that should be informing our direction today. Changes in the 21st Century yield a unique opportunity to reclaim that most American experiment, representative democracy, and, so far, I have been squandering that opportunity.

“What I’ve done wrong was put best by Dave Winer on his blog, Scripting News. ‘Communication,’ Winer wrote, ‘isn't just getting your message out. If Obama had been listening, he might . . . have had a better feel for the crisis happening with users of real estate, not just developers and financiers. It was naive of the President to think that, once elected, he could ensconce himself in the gridlock and somehow his charm would overcome Republican barriers. They weren't charmed by him, and they saw his reliance on charm as a weakness, and took advantage of it. Had Obama kept his army of discourse’ – and here Winer is talking about the grass roots methods I used to get elected – ‘Had Obama kept his army of discourse mobilized, developed it, we would be able to now tell him exactly what to do to get us out of the ditch he drove us into.’

“As hard as it is for me to read that, I know Winer is right."

"Our time is not President Lincoln’s time. When Lincoln established his team of rivals, he did so before communication between the people and the people’s elected representatives was frictionless, before information could be shared by posting a picture or a link to Twitter. President Lincoln genius was to connect with America using the means of his time, to hear the widest variety of views from the largest diversity of sources possible in the mid-19th Century. It's easy to forget, because the world has changed so much since, but President Lincoln lived at a time when citizens would still drop in, uninvited, to visit him in the White House. In a way, he was using the social networks of his day to stay connected to the people he served.

“What I failed to understand about President Lincoln’s example should have been obvious to me all along. It’s not how he built a cabinet or cajoled Congress, methods that made sense in his era. It’s the timeless, sacred aspiration he set for us as a people, as a nation, during a time of deep, national division. The powerful idea that this great nation would embody democracy. Government of the people. By the people. For the people.

“Not government of the lobbyists. By the campaign contributions. For the benefit of corporations.

“I have been listening to the wrong people. I have been sitting down and breaking bread with monied interests because they can pay my bills. I have been playing a game with insiders who have long since obscured  any accountability the government may have once had to the people.

"I should have been listening to you all along.

“Deadlock persists in Washington because deadlock serves the interests of the plutocrats who have no interest in what, to them, must be the most subversive of ideas: government that cannot be bought. Government that is not for sale. Government of the people. By the people. For the people.

"As long as Washington remains in partisan deadlock, that is just fine by the oligarchy. Their taxes are as low as they've ever been. Their business interests are beyond the reach of regulators outside of their control. The only reforms they'll approve are those they write for themselves, dropping legislation in the lap of a compliant Congress.

“Time’s wasting, and here’s what I’m going to do. Effectively immediately, I am shutting down all efforts of my campaign to solicit cash contributions. All money on hand from donors that can be identified will be returned. If anyone wants to work for my campaign for re-election, I appreciate that, but they will have to work as volunteers. I am going to learn how to blog and how to make my own YouTube videos.

“Other details of how I will support my campaign for re-election will have to be worked out. If he’s willing, I will reach out to Jack Abramoff and ask if he would serve me as an unpaid advisor, helping me banish all lobbyists from access to my campaign. I know Abramoff is a convicted felon, but he has served his time, and how better to anticipate the ways of crooks than get advice from the reformed among them?

“But before I resume campaigning, I’m going to take some time to listen.

“Later today, the First Lady and I, and our two daughters, are decamping from the White House to an Occupy camp here in Washington DC. We mean to set up a tent and live with occupiers for a few days. Where are we getting a tent, you might ask? I am borrowing one from Camp David. It has the presidential seal on it. It’s a very nice tent. It should be. You paid for it.

“And you know this about me, I’m always wanting to reach out to all sides. When I can figure out how best to learn from the Tea Party movement, I will spend equal time among Americans who identify themselves that way. You’ll forgive me if I bypass the Tea Party offshoots that have been co-opted by the Republican party and the oligarchy that does not really believe in President Lincoln’s vision. I will need your help in identifying the right Tea Partiers, though I do know they are out there.

“I am going to listen. You won’t hear me spouting off or hawking any agenda, at least for the next few days. Of course, you may see me on videos people may take with their phones. I’m worried that I’m going to be caught on tape, sneaking a cigarette behind the tent. But so be it. In 21st Century America, all citizens are members of the press. And so we add to speech, assembly, and religion, one more right under the First Amendment that is equally the province of all Americans, not just those with press passes, not just those with "credentials" handed out by government.

“Several members of my cabinet are upset about my plans. Frankly, when I told the staff this morning what I am telling you now, they freaked out. To assuage these concerns, Vice President Biden has agreed to be on call at the White House, receiving the endless rounds of briefings I traditionally receive, and otherwise remaining ensconced in the Washington bubble, doing those things that seem so important and vital to do, at least when you are inside the beltway. I am not turning over the power of the office of the President to Vice President Biden under the Constitution. If I decide at any point to do that, you and Joe, but not anyone else in Washington, will be the first to know. In fact, better yet, I’ll let you tell me if I should think of doing that.

“Of the people. By the people. For the people.

"When President Lincoln first uttered those words that beat like a drum in our blood, words that require so much more of us than any other nation before us, he did so at Gettysburg. He did so in the context of telling the American people that the Civil War was testing whether government of the people, by the people, and for the people, would vanish from the earth. He wasn’t predicting that government for the people was a sure thing. He was telling us what was at stake. What we were fighting for then, at Gettysburg and Shiloh and Chickamauga. What patriots are fighting for today, in New York, and Atlanta, and UC Davis.

“The American narrative is unique like that. It may explain why our national anthem ends, not with an assertion of inevitability, but with an open question: ‘Oh say, does that star spangled banner yet wave, o’er the land of the free, and the home of the brave?’

“We are plenty brave. I should say, the patriots across America today holding us to our own ideals; the service men and women who come back from fighting our wars abroad to say, we didn’t fight to bring democracy to other countries only to fail to defend it at home; the entrepreneurs who say, we may or may not be right in thinking that software patents oppress innovation, but surely it is wrong to pass a patent reform law that cuts a special deal and exempts the banking industry, but no one else; the elected leaders – rare, but growing in number at the state and local level – who understand that the people are the bosses, even if they don’t have jobs and can’t bundle contributors to their campaigns – all these Americans are brave. And today’s patriots are telling us, our freedoms are at stake. The system is broken. The federal government is not legitimate.”

“Of the people. By the people. For the people. That is our narrative. The reason the American people today are so disgusted with their federal government is that their elected representatives have forgotten that. To use a British expression, we have ‘lost the plot.’ I have lost the plot.

“I’m leaving Washington, not to raise money, not to campaign, but to find the plot. That is the best way I know at this moment to observe my oath to defend the Constitution and to exercise this great office that has been so sullied by the corruption in Washington and my own willingness to compromise with a system that is so broken, it is no longer a representative democracy.

“Make no mistake. I will be fighting. But the power to set the agenda is not mine. It is not the super-committee’s. It is not the lobbyists in Washington. The power to set our national agenda is yours.

“Happy Thanksgiving. Thank you for letting me intrude on your family holiday. God bless you. God save the United States of America.”


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