The Marburger Proposal to "Save Newspapers" Round up and Initial Thoughts

Connie Schultz began what is rapidly becoming a national conversation about the economic future of newspapers with her Sunday column about a proposal by the brothers Marburger. Daniel is an economist at Arkansas State University, David is a partner at Baker Hostetler who represents newspapers, including the PD.

You can find a pdf of the proposal on the "blog" version of the column.

The default blogger reaction has been to hate on this mercilessly. Of course any time Connie Schultz ventures anywhere near blog world, Tim Russo's melon explodes, so the Marburger plan has taken over #JamesRenner among Russo Trending Topics. But other negative reaction has been nearly as intemperate from Jeff Jarvis, Anastasia at ODB, Mediactive, you get the idea. Some reaction has been a bit more measured and some has been borderline positive, but overall, it hasn't gone well.

I also have problems with the proposal, but since the haters have had their vein-bulging, spit-flying fun, I will try to break things down a little more soberly. Not as much fun, I know, but the proposal raises real issues that merit serious discussion. And let's face it, I'm generally the wet blanket at the hater party.

So. Let's start with what the proposal is. And isn't.

Aggregation Aggravation.

The Marburger proposal takes aim at news aggregators, in particular those they call "parasitic aggregators." The Marburgers begin with the assumption that some news aggregators summarize and rewrite reporting from online newspaper sites, and by doing so skim some would-be visitors to the site that did the actual reporting to put that information online. Whether this actually happens is highly questionable, but let's leave it for now. I know you want to stop and yell and scream about strawman scenarios, but seriously, let's lay this out before we pick it apart.

The problem is that copyright protection traditionally protects expression, not information. So while it would violate copyright to simply reproduce news stories verbatim, it does not violate copyright to write up the information into a new story.

So assuming aggregators are actually taking eyes away from newspaper site, they are doing so using the work product of newspaper reporters. The Marbugers spend a large chunk of their 51 pages making the case that because doing journalism is labor intensive and expensive and aggregating is relatively cheap, that aggregators work at a comparative advantage that will eventually drive newspapers under.

While the argument that aggregators are cheaper to run than news sites is well-established, the authors also claim that the loss of traffic to aggregators is a big reason newspapers cannot monitize their website traffic. This part of the argument they extrapolate from their talk of aggregators. It is entirely data-free. Indeed, to preview one blanket criticism of the paper, the authors engage largely in thought experiments to establish propositions that should be testable by examining actual data.

The Unjust Enrichment Solution.

In the early days of the teletype (1918) the AP successfully sued to prevent a competitor from rewriting its stories and selling them to newspapers. The case went all the way up to the U.S. Supreme Court and according to the Marburgers (I haven't researched it directly yet) won under a theory of unjust enrichment pursuant to what was then called Federal common law. The Court has since declared that there is in fact no Federal common law and that instead, a Federal court not deciding a case under a Federal statute has to choose some state's common law under which to decide. Bear that in mind when we talk about problems with the proposal, a post or two down the line.

Unjust enrichment is a well-established common law doctrine. Basically it means you can't profit from someone else's work. In law school we mostly study it under contract law. If two parties do not agree to a contract but one mistakenly starts doing work, the party that profits from that work can't refuse to pay because the contract wasn't finalized.

After the AP case, the particular strain of unjust enrichment enshrined there was referred to as the "hot news" doctrine. Importantly, the doctrine limited the use of information contained in a "hot" news story, but did not prevent enterprising reporters tipped off by a story from going out and doing their own reporting on it.

Problem is copyright law is a federal statute and federal laws generally preempt state laws. During a 1980s rewrite of copyright laws, Congress explicitly stated that state law remedies for copyright violation are preempted; copyright is the exclusive remedy for violations.

The Marburger proposal reverses that decision. Copyright law would be rewritten to allow state law claims for unjust enrichment. The individual states would then thrash out what constitutes unjust enrichment, what the remedies are and so forth. While commentators have called it an expansion or tightening of copyright, it isn't. It is more of copyright-plus regime, where the plus is the "hot news" unjust enrichment doctrine.

The Marburger proposal is neither benign toward First Amendment freedoms, nor the total squelching of those freedoms some critics have claimed. It is not the information land grab some have predicted, but it does expand rights to control of information under very limited circumstances. In sum, the proposal will benefit newspapers and put some burdens on other content providers, though the extent of those burdens would have to be hashed out in court.

Given the problems/burdens attendent in the proposal, my biggest problem with it is that it will not work. We'll take that up in the next post.

City Council: Finley's Slate

Last Thursday the latest salvo in the battle for the soul of Akron began as Joe Finley announced his slate for City Council. Finley is styling his slate "Democrats for Reform," though as the ABJ points out, he hasn't been specific about what needs reform and what these guys plan to do about it.

Here's the Finley slate:

Ward 2: Bruce Kilby (incumbent)Ward 3: Jan David (vs. Marco Summerville - good luck with that)
Ward 5: Willis Smith (v. Kenneth Jones)
Ward 6: Wayne Kartler (open seat -- Terry Albanese is vacating to run at-large)
Ward 7: Dave Reymann (v. Tina Merlitti)
Ward 10: Jay Moore (v. Kelli Crawford)
At-large: Joe Finley

Say this for Finley -- he's not shy about going after hard targets. On the other hand, he does seem to trying to distance himself from Team Mullligan. From the ABJ post-recall story:

Plusquellic accused Finley of being in league with those behind the recall, noting that Finley appears in a photograph from one of the group's early meetings. He said Finley's slate is the ''same group'' at the ''same time'' who will use the ''same tactics.''

Finley, who along with his ally, Ward 2 Councilman Bruce Kilby, came out against the recall in late March, acknowledged he attended one of the pro-recall group's early meetings. But, he said, he didn't circulate petitions or otherwise help the effort.

Hmm. Yes he came out against the recall. But according to the ABJ the bulk of the Democrats for Reform worked on the recall. And Joe himself joined all three pro-recall Facebook groups. I certainly understand Finley not wanting to be associated with the toxic asset that Mendenhall has become, but he probably should have thought of that sooner.

As of now, the Finley slate has no web presence, so it's pretty much impossible to know what exactly they are proposing aside from being unfriendly to the Mayor. During the Mayoral primary, Finley seemed to have no position other than the opposite of whatever Plusquellic said, and he famously doesn't have much of a record as a Councilman. His main claim to fame at this point is having come closer than expected to winning the micro-turnout primary in 2007 (then getting horsewhipped in his run at Russ Pry for County Executive). If he wants to be something more than a drag on his slate-mates, he needs to come up with some specific policy goals.

And for God's sake, can he run without bashing the city he wants to serve? Nothing irked me more during that primary than his constant poormouthing of Akron and its prospects. The same thing happened in the recall election. Akron is challenged by economic forces not under anyone's control, but it's better postioned for the Twenty-First Century economy than any other city in the region. Candidates who fail to acknowledge this fact do themselves and the people whose votes they court a disservice.

J. Ken Blackwell Acting as One of NRA's Hatchen Men on Sotomayor

The Brady Campaign blog reports that the NRA and other gun lobby organizations are pursuing a "two-faced" strategy in opposing Judge Sonia Sotomayor's nomination to the Supreme Court. While the NRA proper is quietly expressing "concern" about her nomination, certain NRA-affiliated individuals are bringing out the long knives. Among them is spectacularly unsuccessful gubernatorial candidate J. Ken Blackwell.

And, as Brady Blog notes, Blackwell is not being exactly forthright about his affiliation:

While Blackwell – a former officer holder in Ohio and unsuccessful candidate for Chair of the Republican National Committee – now identifies himself as a Senior Fellow of the American Civil Rights Union or the Family Research Council in this context, he neglects to disclose that he is also an elected NRA Board member.

I'll follow this up with a post unpacking Blackwell's argument. For now, just marvel at Ken being Ken.

Recall Roundup

Briefcase Radical called it before the polls closed, but like everyone else, he low-balled the final tally. Fem Dem has a brief post-election post up.

Ohio dot com has full coverage. Some, but not all, of the anti-Plusquellic comment trolls are out. The loudest appear to be keeping their heads down today. BTW, Ohio.com's breaking story about the election posted around 9:20 last night after they called it. I suppose being a source for real-time updates isn't going to make or break ABJ but it's worth noting that ANN owns them on this score as of now.

For their part, ANN has audio of the Mayor's victory speech, audio and video of his remarks to reporters and some snippets from Mendenhall.

Cleveland Magazine's politics blog saw it ultimately as a contest between Chrissie Hynde and Miss Tia. This sort of thing will happen when you let a lifestyle magazine carry a politics blog.

As noted in comments in the last post, CAN lost in every ward, in every precinct. Think about that. The recall effort couldn't even win a ward in Ellet, which to this day resents having been annexed into Akron two generations ago. You can find that official canvas here.

Whither Akron?

So now it's time to ponder what all this means. Contrary to what the recall supporters say, the only messages they sent is that there aren't very many of them and they don't learn very quickly. The conventional wisdom was that the actual election result would be about ten percent worse for the mayor than the actual sympathies of the population, given the motivation gap. Given the final tally, it probably isn't that high, but when you start with a 3:1 split it doesn't have to be. Fact is, the people who think the administration is bad enough to be run out midterm constitute a fairly thin group.

That said, we need to have a sensible loyal opposition in this city. Akron has been proactive in bringing and retaining business. That means it has funded improvements, granted tax breaks, cofunded ventures and otherwise spent a great deal of tax money. While I won't pretend to believe that it's all lily-white, it's damned impressive to see the combination of robust spending on business development and political hegemony hasn't bread a patently, undeniably corrupt administration. Nonetheless, with temptations abounding, it would be good to see some division of government to provide checks and balances.

Unfortunately we don't have a sensible loyal opposition. A sensible loyal opposition doesn't bray about restaurant receipts, it doesn't pretend that the city's difficulties are unique to the region, and it doesn't mutter about corruption then resentfully skulk away when people expect, y'know, proof for gawd sake.

Most of all, (pace Akron Watch and the CANCANners) sensible loyal opposition doesn't count all of the spending and none of the benefit. The SLO of which we dream would seriously analyze the benefits of the various projects, acknowledge the ones that work and decry those that don't. By refusing to acknowledge anything positive about either Plusquellic or Akron (Mendenhall's "good heart" comment being a classic damning with faint praise) the pro-recall/anti-Plusquellic forces have painted themselves as untrustworthy hacks.

Going forward it will be interesting to see if they can come up with an actual coherent platform. And no, "The Mayor should play nice with others" isn't such a platform. They will certainly say spend more money on neighborhoods, the problems being a) Akron already spends money on neighborhoods and b) if the city ignores business develepment there won't be any money to spend. When confronted with those problems, expect Mendenbot candidates to do the political equivalent of "Na na na I can't hear you."

So. The city will not be rendered leaderless as a result of this folly. But the recall election hardly puts to rest the challenges the city faces. The Mayor's Office continues to confront those challenges, but will anyone we can trust confront the Mayor's Office?

Following the Recall Results

The best online place to be is Akron News Now which has a live feed from the newsroom. It's kind of cool -- you can see anchor Lindsay McCoy gathering info from online and from the BoE and relaying it to on-air talent. A bit of behind-the-scenes.

One thing we learn from Lindsay is that the online BoE updates are more current than what the reporters at the BoE can get from staff there (having done voter protection duty at BoE, it's not surprising. At this time of night, the main BoE office is essentially vacant as everyone is in back processing the ballots.) As such, you can keep an eye on the BoE page by loading it and refreshing it every couple of minutes.

As of now (around 8:30) the Board shows 48% reporting, the results are 76.85 against the recall to 23.15 for. The trend line has been slightly toward narrowing that enormous gap. At around 8 the first 12 percent of precints showed an 80/20 split.

UPDATE 8:36 56% in, still 3-1 advantage for Plusquellic. ANN is calling it against the recall. Fascinating to see how manifestly unscientific the "call" decision is. Also, ANN is Twittering the results under hashtag #akronrecall

UPDATE 10:20 It's official -- Change Akron Now got boatraced. 74%-26%. Akron News Now signed off their live feed, but the recall page now features an interview with Mendenhall in which he confirms that his group will try to field candidates in all the city council races and that his wife Kelly is running for council at large. He also whines that he didn't have any money to run the campaign. Of course if people agreed with the recall they would give money, but . . .

Some recall results fun facts:

The received wisdom was that pro-recall voters would certainly vote and that the election would be close if turnout was low. Well turnout was low -- 21% -- and the recall still got crushed. That means either the pro-recall folks weren't significantly more motivated than anyone else (possible) or that there just aren't that many of them (more likely.)

At a total vote of 7325, Team Mulligan didn't even double up the 3800 some-odd valid petition signatures. That is, if everyone who signed the petition voted and brought a friend to vote, they would have exceeded the total actually garnered by 275 votes.

At 20895 the anti-recall vote is 30% higher than the 15895 he got in the uncontested general election in 2007.

Last Thoughts on Recall Election Day

Mostly, if you haven't already, GO VOTE. The general impression, bolstered by anecdotal evidence and what the anti-recall camp has said about their internal polling, is that a clear majority are against the recall but that the pro-recall voters are fanatical highly motivated. It would really be a shame if the will of the majority were defeated by the zealotry of the minority. Yes it's a beautiful day and all, but GO VOTE. You won't be in their long.

A few other points.

• I was voter number 46 in my Ward 8 precinct. The flow was pretty steady this morning at my polling location which includes two other precincts. That is consistent with the report from Summit BoE that Ward 8 is heaviest, and that Ward 8 voters led in absentee voting. In that last story, Mendenhall acknowledges that Ward 8 is more Plusquellic territory
  
• It's a shame that the recall has cast a shadow on the rare bits of good news Akron has heard in the current climate. For example, the rollout of the downtown wifi zone has been scheduled for June since at least last Fall. But because that prescheduled date happens in proximity of the recall it's dismissed as a political stunt.
  
• That said, the Mayor skipping the the rollout was the political equivalent of Darryl Strawberry acknowledging the Fenway crowd. Hizzoner needs to ignore the bleacher creatures.
• The Team Mulligan campaign has been able to pull off little other than volunteer canvassing. No mailers, no bilboards, no yard signs. But over the weekend someone tried to go online-linkage with FixAkron.com signs. The website is more of the same. (E.g. Akron is losing population (as is every city other than Columbus and Cincy). One interesting aspect -- hanging problems with the Akron Building and Health Departments on the Mayor. But remember how Mendenhall tried to pump up Joe Finley's campaign by claiming that the mayor had a tirade at the Building Dept? And that we found out later that he went off because they were offering lousy service to property developers? And that in fact that same building dept was put on probation by the state? Same stuff as we've seen this entire campaign.
• Count me among those who grew weary of the anti-recall mailers that demonized Warner Mendenhall. I'm assuming that with a quarter million to play with that stuff was focus-group tested and all, but after the third mailed reminder of Mendenhall's tax delinquency, I was done.
• Having said that, look for a reprise this fall. Mendenhall's "band of radicals" (according to the mailers) will have candidates going in a lot of city council races this fall and I'm guessing their linkage to Mendenhall will be a frequent talking point in the campaigns.
• One interesting feature of this election has been the total radio silence from the local Republican Party. It may be that the Republicans prefer the devil they know. It may be that the rank and file was insufficiently interested in a recall to make it worth putting the party behind the effort. Still, given the past practice of A²cutting deals across the aisle, it's worth keeping in mind going forward that he never put a dog in this fight.

BTW, if you missed the tweet, my absence the last few days was due to technical difficulties. As of now, those difficulties appear resolved.

Now GO VOTE.

I've Got No Job, But I'm an Opera Fan*

This evening I will be a guest blogger/Twitterer at Opera Cleveland's rehearsal for their performance of "Falstaff." Their publicity manager -- and Opera Chicken blogger -- is a blogging veteran whom I got to know back when we were trying the GABB thing. (And BTW, all respect for anyone who can secure a paid gig that includes blogging.)

The idea is to let some social media types see behind the scenes and blogg/tweet the experience. Yes, it's more than a little off-topic, but I'm looking forward to it. I will certainly do some real-time tweeting under hashtag #operacleveland. The blogging may be live but more likely will be a retrospective once we get home.

Now I have a pile of stuff to do to justify this little excursion. See you then.


*Long inside story about the title. Years ago NPR did a story about the group rock Chumawumba -- remember "Tubthumping" with it's "I get knocked down, but I get up again" refrain? A listener mailed in a thanks for the profile and in particular in clarifying that refrain. "It sounded to me like "I've got no job, but I'm an opera fan." While that description meets a number of my friends, it didn't seem sufficiently universal to form the basis of an international pop hit. " That exchange has stuck with me. In fact, as I've been working all this out, the song has been going through my head, with the alternate lyric.
On the other hand, it's not entirely accurate. But "I don't have a full-time job, and while I appreciate opera, I don't actually seek it out generally," but it didn't have the ring, so . . .

Tomorrow in Akron Legal News

My column for tomorrow will answer the question so many of you have been asking (OK, it was one Facebook Friend responding to a Tweet, work with me): what do I think about last week's case about residency requirements for city workers?

The case, Lima v. Ohio, upholds a state law passed a couple of years ago that bans residency requirements. Both Lima and Akron sued to challenge the law under the Ohio Constitution. And lost.

My focus in the article is about the implications of the case for home rule in Ohio. Under the home rule provision in the Constitution, municipalities are afforded some protection against state laws that exist only to limit municipal power (there are other aspects to home rule, but that is the one that generates the most -- and most interesting -- litigation).

At first blush the case looks like it should be an easy one for the cities. But the anti-residency requirement law was passed under a section of the Constitution that grants the General Assembly broad authority to regulate employment for the benefit of workers, and says specifically that no other constitutional provisions can supersede it. The Court broadened the reading of that section, but as precedent it only applies to employment cases, not to other aspects of home rule. It certainly isn't a ruling friendly to home rule, but it's also not a dire as the urban papers made it out to be.

I quote three editorials singing dirges to lament the death of home rule. If you are keeping score at home, 's the PD, here's the LMJ and here's the Blade.

As for what I think of the residency requirements themselves, I think Akron should have gotten rid of ours some time ago. I think we lose more in damage to morale than gain in keeping the employees here. In a time when Ohio cities are shrinking, I understand the impulse, but the best way to keep people in the city is to make the city an attractive place to live.

All that said, I thought the legislature overstepped its bounds banning the practice. It's not the worst insult to home rule of late (that would go to a state law forbidding cities from banning assault weapons.) But whatever the bounds of home rule, local autonomy should be respected.

Fisher Campaign Mining Hillary's Email List. Brunner . . . Responds?

Got an email today titled "Why Lee Fisher Is Right for Ohio." I've gotten some other Fisher communiques, so nothing unusual there. Upon opening I read, after the opening grafs:

We are contacting you as an Ohio resident and a member of Hillary Clinton's online community. If you do not wish to receive email messages from Lee Fisher's campaign, please click here to unsubscribe.

The opening is artfully managed:

Back during the presidential campaign, Lee worked hard to help Hillary win the Ohio primary and helped Barack Obama win in November, just as he's worked hard for Ohioans in the state legislature, as Attorney General, Director of Economic Development, and Lieutenant Governor.

None of this is a surprise. Fisher (well, Strickland and Fisher went along) did indeed come out early for Hillary; Fisher's campaign manager Geri Prado (the putative author of the email), is a Hillary campaign vet; and of course Bill is actively campaigning for Fisher. Whatever else you can say about the Clinton's, they know how to repay favors. Whatever else you can say about Fisher, he knows how to bank favors and call them in at the right time.

What's funny about all this is the fundraising email I got from Brunner just ahead of the Prado/Fisher solicitation. The opening is a not-at-all veiled reference to the Clintons:

Last Tuesday, voters in Virginia defeated the well-funded "establishment" candidate for the Democratic nomination by a huge margin - 50% to 26% in a three-way race - sending State Senator Creigh Deeds to face the Republican in November. Deeds won resoundingly because, as the Washington Post noted, his "message and momentum" swept him to a big victory.

Who was that well-funded "establishment" candidate? Uber-Clintonista Terry McCauliff. Don't know if Brunner got wind of Fisher using the Hillary list or if it's just a coincidence they went out so close together. In any event, Brunner is calling out to Clintons without calling them by name.

This is still a race between two people I have a hard time caring one way or the other about, but at least it's entertaining.

Norka Notes

A semi-regular round up of news and ephemera about our hometown.

TV on the Internet

AkronNewsNow has started a short Akron News video segment on the website (h/t Eric Mansfield who enthuses about the effort). Today's effort includes one substantive news story (Summit BoE staying open late for early recall voting) one feature (on Temo's Candy) and a sports story about the Aeroes. Given that local TV too often is little more than a parade of burning homes, it's not bad. Ohio.com's video capability has pretty much gone by the wayside since they did a great job with the airdock fire, so it's good someone is picking up the ball.

Changes at CVNP

John Debo, the Cuyahoga Valley National Park Superintendent, is stepping aside after 21 years to head a nonprofit that raises funds to support the park. He presided over the transition from National Recreation Area to National Park, has kept thing together through funding cuts and floods, and maintained what have to be tricky relations with the many many political entities that border the park. Cuyahoga Valley is one of the treasures of the region. Here's hoping we get another able Superintendent to continue the good work.

Goodyear Job Cuts -- It Could Be Plus Mal

Goodyear announced this week it got union approval for 120 job buyouts. Worse news: "The vote clears the way for a possible move of rubber-making production from Akron to Buffalo, N.Y., within two years." But we may be getting let off easy -- Amiens, France is losing 820 jobs.

Another Week, Another National Award

Akron -- where things suck so bad we have to recall the Mayor, you know -- has won another national award. This one is the City Livability Award from the US Conference of Mayors, awarded for the innovative plan to rebuild Akron Public Schools as Community Learning Centers.

DowntownAkron.com Tries Blogging

The Downtown Akron Partnership, the business consortium working to improve and promote downtown business, now has two blogs up. One is the DowntownAkron blog, and the other is about the GO -- for Get out of the Office -- intiative which encourages, well you can figure it out. So far one post each over the past week, but surf by and offer encouragement.

Chryssie Hynde Pretending Again

The Telegraph offers a rare interview with Akron native and entrepreneur Chrissie Hynde as she readies a new Pretenders release and a best of collection. Not much specific about Akron, aside from acknowledging Vegiterranean.

ESPN: Akron Football Is "Soft"

Penn State will host Akron, and for it's effort is being awarded with the title of second-softest non-conference schedule by ESPN columnist Bruce Feldman. According to Feldman, "Akron also is an OK opponent, but is still coming off a 5-7 season." Something to hold onto for the maiden season of InfoCision Stadium.

Mendenhall Grasping at Straws Again

Team Mulligan leader Warner Mendenhall's comment to last week's post about the recall warrants special attention. Quoth he:

My opinion is based on knowledge of the city's current and future liabilities. The expert failed to include about $500 million in liabilities that are coming due--Sewers and Retiree Health Care. When those future, but imminent, debts are accounted for we are bankrupt.

The expert is only as good as the information he is given to review. The input from the City was junk. The expert never called Change Akron Now to become informed about what our concerns are.

The Bond ratings companies are similarly kept in the dark about these liabilities and property values. (the median sale price of houses in Akron fell 50% over last year).

That bit about retirement liabilities didn't sound right. While that's a broadly germane topic, what with Chrysler and GM sinking under legacy costs, local governments in Ohio generally aren't saddled with such costs for retired workers. Local governments are responsible for some contribution into a statewide retirement fund (e.g. the Public Employees Retirement System [PERS], Ohio Police and Fire Pension Fund [OPFPF]; State Teachers Retirement System [STRS]). Once an employee retires, the liability for benefits and health care shifts to whichever fund the employee participates in.

Entertaining the possibility that Mendenhall knows something I don't, I contacted the city and confirmed the above. The city does not have an imminent legacy cost liability.

And so it goes with Team Mulligan. Aside from the conceded fact that the Mayor can be a piece of work, they've been consistently wrong in their critcisms of the city government.

Random Thoughts on a Friday

Y'know what I really can't stand? When people use the word "literally" to mean "really." They apparently feel the need for an emphatic adverb but don't want to sound like middle schoolers so they misuse a perfectly innocent word. Yesterday on NPR coverage of the Cash for Clunker's bill I heard one interviewee observe that a similar program is "literally going gangbusters in Germany."

I thought, "Really? Cash for Clunkers is actually busting gangs?"

It metaphorically drives me up a wall.

Part of getting back to blogging has been getting back into reading blogs. On Obsidian Wings I found this takedown of the tendency of too much of the conservative punditocracy to paint Teh Left with one broad brush. Required reading.

On the other hand this Volokh post on Sotomayor's "wise Latina" speech. Though I disagree with some of the conclusions, it's a sensible, balanced reading of what Judge Sotomayor said and what it means.

In case you haven't noticed, Akron is rapidly becoming a university town. It's always funny to read the trolls on Ohio.com opine as to how that's a Bad Thing.

I meant this week to blog extensively about the recall and the Sotomayor nomination. I did not mean to write a zillion (OK, four) posts about gay issues, one way or the other, but I have. Happily I have the perfect musical coda for Unintentional Gay Week at Pho's Akron Pages:



h/t Lives and Times

Now here it is, your Moment of Ten.

1. Old Crow Medicine Show, "I Hear Them All"
2. Death Cab for Cutie, "Summer Skin"
   
3. Little Walter, "Blues With a Feeling"
4. John Coltrane, "Giant Steps"
5. Toots and the Maytals, "Louie, Louie"
6. Barenaked Ladies, "Home"
   
7. Dexter Gordon, "Stairway to the Stars"
8. Low, "California"
9. Robin, "Little Black Dress"
10. Bright Eyes, "Nothing Gets Crossed Out"
    

Lee Fisher's Gay Marriage Flip Sends Me to the Wayback Machine.

I've been asked offline who I'm supporting in the Senate primary. Frankly the contest is between two people about whom I have a hard time caring one way or another. I'll get to why Jennifer Brunner gives me the blahs at a later date. As to Lt. Gov. Lee Fisher's, look no further than his sort-of maybe flip-flop on gay marriage. I've seen this movie before and know how it ends.

In 1994 I was a volunteer in the Summit County office of the Tom Sawyer/Joel Hyatt/Lee Fisher combined campaign. I was a drone, but nonetheless we heard things, and of course we were paying attention to the race. Fisher was defending his Attorney General seat against Betty Montgomery in a bad year for Democrats -- between Clinton backlash (the less virulent pre-Lewinsky strain, but still), the House check-kiting scandal, and Republicans who generally felt energized and optimistic, everyone was running scared.

Montgomery's main attack on Fisher was that she was a career prosecutor and he wasn't. "Lee Fisher has never even tried a criminal case" she cawed in her commercials. A few weeks out from the election the Fisher campaign trotted out a counter-attack -- that Montgomery's office pled down a child sex case. Having litigated more than my share of such cases I can tell you that every responsible office has plead down child sex cases. They are hard to win and traumatic on the victim. If you can plead down to get 9 years out of a possible 25 and spare the victim having to testify, that's the smart play.

Montgomery's office was able to document why the case was pled down, the papers generally went against Fisher, the campaign backed down and his lead in the polls slipped. Then he did it. Again. We couldn't believe it. The exact same scenario all over again. And again his lead dwindled.

What it looked like was a politician with poor political instincts overreacting to campaign events and unable to say no to his staff. And that's what this looks like as well. In the party primary, Brunner is tacking left, having declared her support for marriage equality long before that looked like a winning issue. Despite being on a ticket that won Ohio with a yes on partnerships/no on marriage position, and despite watching Obama carry Ohio with an identical campaign platform, he is overrunning the volley from Brunner and saying "me too."

And while I agree with the (apparent) policy change, let's be real -- this isn't even good politics in the long run. Fisher's one good argument on this point is that his position is far less of a liability in the general election in a state that overwhelmingly voted for one of the most restrictive anti-equality amendments in the country a mere five years ago. He's not just pandering, he's pandering a hole in his foot.

Lee Fisher isn't the only candidate in the field who has run a statewide campaign before. But he is the only one who has lost one. Stuff like this right here is why.

Early Pho Endorsement: Sandra Kurt for City Council

My friend Sandra Kurt is running for City Council in Ward 8. I've known Sandra for a few years now, having met her at Summit County Progressive Dems. Professionally, she's an engineer but off hours she's a tireless advocate for causes she feels passionately about, particularly domestic violence prevention and LGBT issues.

The Ward 8 seat is the one vacated by Bob Keith. Sandra was in the mix for the appointment to replace him, but that appointment ultimately went to Raymond Cox. While Dr. Cox has great academic credentials, I want a fighter on Council.

Infinite Summer: Because at 1079 Pages, It's Still a Good Beach Read.

As longtime readers know, I'm a big David Foster Wallace guy. So I was thrilled to hear about Infinite Summer, an online challenge/discussion forum dedicated to reading, discussing and celebrating Wallace's sprawling, daunting and ground breaking Infinite Jest over the summer. The "official" reading period is June 21-Sept 22. The "Guides" of the effort have calculated this working out to 75 pages a week.¹

I'll be rereading along with the effort -- in fact I've gotten an early start. I'd love to blog the whole thing, but that seems unlikely given my summer schedule. But I will no doubt have something more to say.

If you are tempted, but not sure, consider the following both a pitch and caveat. The book for the most part is eminently readable, but the book as a whole is challenging. The narrative is written in a nonlinear, sometimes seemingly random timeline. To confuse things further, the years in the near future world Wallace imagines are not designated by numbers, but by corporate sponsors², increasing the degree of difficulty in following the action. That said, the individual "chapters"³ by and large are easy to read.

Second point, understand that the story is not the major point here. Wallace is exploring ideas without explicitly laying out what those ideas are. We're not supposed to include spoilers, but let me just say this: You know how in Pulp Fiction you never find out what's actually in the briefcase? There's a lot of that sort of thing in Infinite Jest. Wallace drops plentiful clues to explain the McGuffins, but speculating about what happened ultimately is beside the point.

If the above has enticed and/or failed to dissuade you, a few tips to get you started:

• Consider buying the book. Yes, libraries have copies, but trust me, this is a book you will want to go back to. It's also one of the few novels in which I've written margin notes.
• Use two book marks -- one for the text and one for the endnotes. A fair amount of action/explanation/McGuffin-clue-giving happens in the endnotes. I used a sticky note in the endnote section that I moved with each note read.
• Have a dictionary handy. Wallace drops a lot of fifty cent words in some sections.⁴
• Consider doing a little reading ahead of time. Various sources have their recommendations for DFW gateway readings. Mine are the story "Octet" from the collection Brief Interviews with Hideous Men and the essay "Joseph Frank's Dostoyevsky" from the collection Consider the Lobster. You will find embedded therein almost Jerry Maguire-style mission statements that will help understand what Wallace may be up to. If you really want to go geeky about it, consider some of the theses posted on The Howling Fantods.
  

All that said, I hope at least some of my readers take up the challenge. You will be rewarded.

¹Though the final 94 pages of that 1079 is endnotes which you really need to read in conjunction with the text -- no really, you need to -- making it difficult to calculate exactly how much you are reading.^a

¹Of course a post about DFW must have footnotes. Of course.

²The bulk of the action occurring in the Year of the Depends Adult Undergarment.

³The book isn't divided into chapters per se, but is more of a collection of vignettes and epistles, most of which are designated only by a date, but some of which have some sort of heading not a few of which (i.e. the headings, not the dates) are comically long. Said vignettes/epistles range from a paragraph to a score of pages or more.

⁴Particularly those concerning central character Hal Incandeza who is described as a "lexical prodigy."

Casino Effort Calls and Raises

Following up on posts from last week, the would-be casino operators who were subject to an injunction last week have moved to have the whole thing vacated. Their theory -- that Mahoning County Common Pleas doesn't have jurisdiction over a statewide petition effort makes little sense. Where violation of a state law is alleged, you are going to start at the county level somewhere -- there is no statewide court with original jurisdiction. Without seeing the actual motion, it's hard to opine further.

Having said that, this description of the argument in the Dispatch's Daily Briefing blog is pretty funny. Granted this is a reporter putting the position into non-legalese, but it's pretty funny:

In today's legal filings, the Ohio Jobs and Growth Committee asks Mahoning County Common Pleas Judge James Evans to dismiss the party's lawsuit and lift the restraining order against lying. The committee's lawyers say the Mahoning County court has no jurisdiction over a statewide signature-gathering process and that the Democratic Party is playing politics.

Objecting to an injunction against lying? Accusing a political party of playing politics? Yep, sounds like a gambling initiative.

Ohiosphere Alum now Blogging for Brunner Campaign

A quick and hearty congrats to my friend Jeff Coryell, late of Ohio 2006 and Ohio Daily, and now house blogger for the Brunner campaign. Personally I'm still not sold on her as the candidate, but if she keeps showing this level of taste and judgment, she'll win me over eventually.

One quick note about the blog. One issue on which Brunner is able to put daylight between herself and Lt. Gov. Lee Fisher is gay rights. No coincidence that the two most recent posts highlight the issue -- one announces Brunner's upcoming participation in the Dayton Pride parade and another her support for the workplace discrimination bill now before the General Assembly. Time will tell whether tacking left on this issue will work over the long haul, but it will be interesting to watch.

Law Dork pwns Time Magazine

Yesterday the Supreme Court decided against hearing on appeal a challenge to the military's Don't Ask/Don't Tell policy. So first off, a pox on every headline writer who announced that the Court "upheld" the policy. One of the first things you learn in law school is that the Court declining to hear an appeal (denying certiorari in lawyerspeak) is not the same as upholding the result below. Often the Court just doesn't feel the case isn't the best for deciding the issue.

Chris Geidner blogging at Law Dork explained this and more, including what he calls the "odd background posture" of the case:

Servicemembers Legal Defense Network, a legal group dedicated to supporting lesbian and gay soldiers, had been involved in this case, originally representing the 12 individuals challenging the policy. The organization, however, was no longer representing James Pietrangelo when he sought certiorari. SLDN continued to represent the other 11 individuals and filed a brief opposing having the Court accept this case.

Chris goes on to note that Pietrangelo then tried to have the SLDN brief in opposition struck from the record. Reading between the lines, Pietrangelo comes off as a bit of a loose cannon.

For a little broader context, consider the dissent among gay activists over the high profile suit challenging California's Prop 8 gay marriage ban. Again, just reading this from afar it appears that gay activists are seeing greater chances of success (and of minimizing backlash) by securing legislative victories as opposed to court challenges.

Enter Time Magazine. They've posted a story headlined "Dismay Over Obama's Turnabout on 'Don't Ask Don't Tell.' Who is dismayed? Well, the entire story consists of Pietrangelo hurling invective at Obama. Not one recognized leader of the gay community is quoted. If Chris Geidner, a blogger in flyover country (though granted an extremely well-read and well-connected one) understands the backstory of the case, why can't Time at least offer a little balancing perspective before winding Pietrangelo up and watching him go?

But no worries. This post will soon hit my Twitter feed. And that will change everything.

Bankrupt: The Fundamental Incoherence of the Recall Argument.

The nature of the recall campaign allows each discontented resident to project his particular gripe onto the Mayor. Job losses? Mayor's fault. Money spent retaining or wooing employers? Mayor's fault. Crime? Or "out of control" police? Check and check.

As a result trying to take on the recall argument is no easy task. And it's made harder by the slipperiness of Recaller-in-Chief Warner Mendenhall. The Beacon Journal has been braving the fray and reporting on the major arguments raised by the Warneristas. Two weeks ago the paper examined the Mayor's travel expenses (Yielding Warner's precious "The business of the city is not business" quote). Yesterday the lede was an analysis of the argument that the city's debt load is excessive (the city is "broke" they like to say.) None of this will matter to the hard core of the recall movement, but at least they do not vent their folly in a vacuum.

The bottom line of the ABJ story is that Akron's debt is not out of line with that of similarly situated Midwestern cities. The story could have been better -- I would like to have seen opinions of experts who are more generally hawkish on debt that the CSU prof they rely on. But overall it's a good read.

The major lesson of the article is that not all debt is the same. Much of the $760 million that Team Mulligan goes on about is special obligation debt -- that is, debt incurred with a funding stream already in place to pay for it. The best example of this is the school rebuilding project for which the city has taken out $200 million in debt to be paid for by a voter-approved income tax.
Confronted with evidence that the debt is not crushing the city, Mendenhall shift the subject. The problem, says he, isn't the debt. No, that's not what he's saying at all. It's what we've spent it on:

Mendenhall said Akron should have spent more on neighborhoods, rather than on public improvements to assist projects like the Northside Lofts and a student housing and retail complex being built on South Main Street downtown.

''When you have strong neighborhoods and good housing, this supports the tax base and the schools,'' Mendenhall said. ''The neighborhoods have clearly suffered.''

First and foremost, if that's the argument, it surely is not a recall argument. I might listen to an argument for recalling a Mayor who has recklessly spent a city into bankruptcy. But this amounts to different policy priorities, which is not an appropriate reason for upending an election result.

Second, the city has spent money on neighborhoods. When I first moved to 'Akron in the early 90s we lived in a neighborhood a little dicier than the one we're in now, one in the midst of a city-sponsored street-level upgrade. The city fixed sidewalks, driveway aprons and sewer lines and provided grants to homeowners to bring their houses up to code. This was going on all over the city in "transition neighborhoods" -- basically those that could go either way. Neighborhood level work has limitations in that people will only allow the city to do so much on their private property, but the city does have a history of doing that sort of work.

And of course the AMHA has been revamping housing projects and trying to create mixed-income subsidized housing developments, first in Cascade Village and in now in Edgewood. Not the city per se, but certainly the city has been at that table.

Moreover, the school/community learning center building project is all about neighborhoods. Good schools grow good neighborhoods. A shiny new building isn't the end of school reform, but at least anecdotally the new schools have seen improvements in student and parent morale which can't hurt.

Ultimately a lot of how people feel about the recall comes down to how they feel about Akron. Team Mulligan has been poormouthing the city from the start. I see a city no longer reeling from losing it's one-time manufacturing base and reinventing itself as a tech center. Doing so requires investment, and not just from the private sector. Akron may have debt, but we also have a more discernable future than most of the metro areas in Northeast Ohio.

Recall Catch-Up

With the recall election 15 days away, that will be a focus of this blog in the near term. A few developments from last week deserve attention.

• This week Akron FOP will vote on what stance, if any, to take on the recall. The fact that there is a debate at all is good news for the Mayor. His conflicts with APD and the rank and file's distrust of him is legendary. Personally I think it's a good thing that the two most powerful agents of executive power -- the police and the executive himself -- are not on the same page.
  
• The funniest event was recall face guy Warner Mendenhall declaring that he won't run for Mayor if the recall is successful. The anti-recall messaging has in part focused on him, his tax delinquency, his general nuttiness. Clearly he felt the need to allay fears that a vote against Plusquellec is a vote for him.
  
• More nuttiness from Team Mulligan. They have petitioned Secretary of State Jennifer Brunner to remove Wayne Jones from the Board of Elections. According to the Beacon Journal article, the letter to Brunner criticized Jones for being "overly partisan in his efforts against the recall." Not, mind you, in his work on the Board, but in his political work outside the Board. *sigh* For those of you still in touch with reality, Ohio's election administration system is built on a theory of bipartisanship, not nonpartisanship. Wayne Jones, Chair of the Democratic Party is, wait for it, partisan. Not exactly a news flash.
• The ABJ lede yesterday was an analysis of the city's debt burden. Thoughts on that later.
  

Casino Petition Update: Circulators Enjoined from Lying

Mahoning County Common Pleas Judge James Evans handed the anti-casino crew a partial victory today. The judge found enough evidence of shenanigans (excuse the legalese) to intervene, but stopped well short of enjoining the petition drive.

It is therefore Ordered that Defendant Ohio Jobs and Growth Committee and all persons who act in concert or participation with Defendant Ohio Jobs and Growth Committee are enjoined from misrepresenting the contents, purpose or effect of the initiative petition proposing an Amendment to the Ohio Constitution to authorize a single casino with each of the cities of Cleveland, Columbus, Cincinnati and Toledo.

What does it mean? Basically that if circulators are caught dealing from the bottom again the judge can levy fines and possibly a harsher injunction.

Some unsolicited strategic advice based on the discussion in the comments to the last post. If the plaintiffs do find evidence of further misrepresentation, they should do discovery to establish how the circulators are paid. If they are paid per circulator, you can make a case for enjoining the practice (which is generally a pesitilent practice, infesting the political practice with this sort of low-level fraud.)

Friday Randomness

The kids are off school for the summer. This means that if I sleep in with them (as happened today) most serious blogging will have to wait until the evening.

The sting of the Caveliers' early exit from the NBA playoffs is a lot sharper as we watch our vanquishers unable to play with the Lakers. Safe to say that if Dan Gilbert is serious about bringing a championship to town, he's going to be doing some serious shopping this summer.

Apparently Chip Bok is "under fire" for another tasteless insensitive cartoon. If you don't mind be tasteless and insensitive, there's really no excuse for also being stubbornly unfunny.

I like Obama's speech. But for sheer entertainment value I prefer the handwringing in the conservasphere about how acknowledging that other countries a) exist and b) have a point of view is one step away from AONEWORLDSOCIALSISTISLAMICSTATE!!!!!!

Now here it is, your moment of ten:

1. Parliament, “Up for the Downstroke”
2. Modest Mouse, “The View”
3. A Tribe Called Quest, “Check the Rhyme”
4. Radiohead, “Wolf at the Door”
5. John Coltrane, “Syeeda’s Song Flute”
6. The Ramones, “Somebody Put Something in my Drink”
7. Wilco, “Hoodoo Voodoo”
8. Bjork, “Headphones”
9. Brooks and Dunn, “I’m No Good”
10. Elvis Costello, “Lipstick Vogue”

Casino Petitioners Caught Loading the Dice

Got a presser today calling out the Ohio Jobs and Growth Committee (i.e. the hundred somethingth attempt to legalize casino gambling in Ohio) Folks working against the issue (yes, including some adjacent-state casino interests) caught some petition circulators erm bluffing a little with the facts. And caught it on video and posted it.



The Mahoning County Dem Party has filed for a temporary restraining order to stop the Committee from circulating petitions.

The video gives a good picture of how this sort of thing happens -- including the celebrated case of ACORN. The guys in the video don't look like they've read the same briefing book about which lies to say. They look like guys who are paid by the signature and say anything to get voters to sign on the line that is dotted.

As someone opposed to legalized casino gambling I enjoy seeing a little mud splashed on those who insist on inflicting this issue on us every election cycle. As someone interested in how campaigns use online tools, this is an interesting case study (about 500 views so far. Meh.)

But mostly it's the lawyer in me that will be watching this with fascination. While the evidence doesn't support a vast conspiracy to lie to potential signatories, it does point to bad training and bad quality control. So what will the judge do about that? I've been told that the judge will decide the case shortly. Wait and see.

UPDATES. The judge in the case issued a temporary restraining order on June 5. The pro-casino group moved the court to vacate the order and dismiss the action on June 9.

Oh Dear Blog, I Have Neglected You So

It's time for a return. I haven't regained the fire in the belly to start blogging, but clearly it's time to fish or cut bait. Either this is going to work or I need to officially shut the Pages down.

To that end I've started updating the sidebars. Mostly this is about purging the blogs that have gone dark or at least have been quiet for several months. A few developments in the blogosphere during the period of my absence should get a mention. First, and most happily, Law Dork is back after his sojourn into the public sector. Ohio Daily and Buckeye State have each seen some changes in personnel. Closer to home a blog inexplicably called I Tire Akron sprung up, then went quiet (it's marginally more explicable in pictograph).

Some folks have emailed from time to time to alert me about new blogs they had started. I'll try to dig up those emails and check our those blogs, but if you are one of those people, this would be a good time to send a reminder.

OK, that'll do for a restart. Substance beginning tomorrow.