Red Power

Indigenous Continent: The Epic Contest for North America
by Pekka Hämäläinen. Norton, 571 pp., £17.99, October 2023, 978 1 324 09406 7

The Rediscovery of America: Native Peoples and the Unmaking of US History
by Ned Blackhawk. Yale, 596 pp., £28, April 2023, 978 0 300 24405 2

Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline and the Long Tradition of Indigenous Resistance by Nick Estes. Haymarket, 320 pp., £14.99, July, 979 8 88890 082 6

The conquest​ of most of the North American continent by Anglophone settlers took roughly three hundred years, from the first stake at Jamestown to the last bullet at Wounded Knee. The Spanish had subdued a much vaster population of Indigenous peoples in Mexico and Peru in just under half a century and expected to repeat the formula, mobilising the Indigenous tributaries against the Indigenous core as they moved up from their outposts in Florida, only to find there was no power centre to replace. The last great city-state in pre-colonial North America, Cahokia, had dissolved two centuries before. Instead, the Spanish encountered a patchwork of peoples stretched thinly across the land, which would have to be won over town by town.

The fate of Hernando de Soto was paradigmatic. He sailed to the New World in 1514 and made his fortune in the Spanish campaigns against the Inca. By 1534 he was lieutenant governor of Cuzco, where he took an Incan noblewoman for his mistress and lived in the spectacular palace of the emperor Huayna Cápac. But his expedition of 1540 from present-day Louisiana to the Carolinas amounted to a series of disastrous confrontations with Native groups. He ended his days trying to pass as a god before a local chief, only to be exposed when he failed to dry up the Mississippi, into which his corpse was unceremoniously tossed by his men after he died of a fever. They scrambled back to Mexico City with the horses they had not slaughtered for food.

No prior record of success burdened the early English colonists. They could not afford the more languid colonialism of the Russian and French empires, whose fur traders established tributaries and commerce over the course of centuries, as well as making occasional attempts at the religious indoctrination of peoples in the tundra and wilderness that no settler planned to inhabit. The strength and entrenchment of Natives in North America, along with the Anglo determination to settle and not merely extract goods and labour, meant that there was a longer period of mutual testing before full-scale elimination could become an aspiration. (...)

The most foreboding development for Native peoples in North America was the cohesion of a unified settler state in the wake of the American Revolution. Far more than Black slavery, the Native question was central to the reordering of political loyalties on the eastern seaboard. From the vantage of the American colonials, the Indians were, as the historian Colin Calloway has put it, paraphrasing Thomas Jefferson, ‘the vicious pawns of a tyrannical king’. From the perspective of Westminster, the colonials were ungrateful rogue subjects who provoked needless border clashes that strained the Treasury, which had already been exhausted on their behalf in the French and Indian War. In his 1763 proclamation, George III made major concessions to Indian tribes and declared the Appalachian mountain range to be the outer limit of colonial expansion. For trigger-happy real estate speculators like George Washington, who had ignited the French and Indian War with an ill-planned attack on French forces in Jumonville Glen and who aimed to make his fortune selling land to settlers moving west, this entente was intolerable. Washington himself was at least willing to enforce a settlement line in order to prevent improvident squatters from occupying alienated land, but his more republican peers in the ‘Founding’ generation believed that the point of being an American was having access to cheap land. Any attempt to shut off the supply was met with strategic violence. When the crown sent the Pennsylvania trader and land speculator (and Washington rival) George Croghan into Ohio Country with a pack train of goods, including enough white linen shirts to clothe half the male Indian population, in an attempt to start realising its vision of imperial-Native co-prosperity, it was attacked in 1765 by a gang of American settlers (‘the Black Boys’) dressed up as Indians with charcoaled faces, who destroyed all 30,000 pounds of goods – three times the amount the Tea Partiers, also dressed as Natives, dumped into Boston harbour eight years later.

After the revolution broke out, most tribes treated the conflict as a British civil war. But the results were often dire for them: the Shawnee and the Delaware were pushed west of the Mississippi; the Haudenosaunee Confederacy, split between British and American-aligned factions, moved up to Canada and as far away as present-day Wisconsin, while the Seneca and Mohawks stayed in the east; the Creeks lost great tracts of territory in Georgia. The annexation and confiscation of Indian lands – and the control that the nascent US state would have over areas not already claimed by settlers – was expected to be one of the great boons of the revolution, allowing the state to build up its treasury by selling the land to its citizens. Yet the new federal government took a position similar to that of the empire it had overthrown: wary of the instability that resulted from a population fixed on moving west, it searched for a modus vivendi with the Indigenous peoples. The authors of the constitution considered the inclusion of an Indigenous local government led by the Delawares and with its own representatives in Congress as the 14th state of the union. In 1807, the United States forbade its citizens from surveying lands beyond the federal boundary, or even marking trees to signal future claims. Twenty years later, John Quincy Adams did not hesitate to send troops to burn down squatters’ homes and crops in Alabama. But these legal enforcements would be swept away in the coming demographic storm. The settler-sceptical northeastern Federalists had many political victories, and the state later used much of its ‘land bank’ for developments such as railroads and universities, while most yeomen farmers ended up as renters rather than owners. Despite this, the republican fantasy of numerous smallholders continued to power the trajectory of the young United States, which teemed with schemes for what Jefferson called ‘our final consolidation’.

Evaluations of Native resistance to European occupation have always been bound up with contemporary political reckonings. Dee Brown, an amateur historian from Arkansas, published his bestselling book, Bury My Heart at Wounded Knee (1970), during the Vietnam War. Brown depicted the Indigenous peoples of the continent as heroically resisting an imperial onslaught beyond their control and fixed in the public imagination the notion of Indians as the noble victims of a slow-motion extinction. Though professional historians pointed out the book’s many factual errors and criticised its flattening of all violence in the West into ‘Indian Wars’, its unwitting embrace of the myth of the ‘vanishing Indian’ and its emotional manipulation of readers, Bury My Heart set the tone for nearly half a century of historiography. From Francis Jennings’s The Invasion of America (1975) to Benjamin Madley’s An American Genocide (2016), the subject of this scholarly outpouring has been the destruction of Native peoples at the hands of the British and US empires and their proxies. More recently, in works such as Jeffrey Ostler’s Surviving Genocide (2019), there is increasingly bald acknowledgment that, more than the military or vigilantes or even disease, the organising force behind the destruction was the capitalist economy itself.

But recent road maps of the historiography either sidestep material questions or mistake a colonised mindset for a progressivist one. The symptoms manifest in different, competing ways. Some work overcompensates for Native agency in the face of the European onslaught to the point that it neglects wider historical forces. There are studies by legal historians – Indigenous originalists in all but name – who, however correctly they emphasise the disciplinary power of the law over Native peoples, have so thoroughly internalised constitutional ideology that they seem not to notice how their cause has been instrumentalised by the most fanatically libertarian segment of American society. There is also a nominally left-wing Native scholarship that recognises the unique force of certain Native groups in environmental and anti-capital movements in North America, but resists historicising Native experience itself. Instead, it holds to romantic notions about peoples who are still privy to uncontaminated, non-Western consciousness, immune to the profit motive, and if left to their own devices would build societies, administer land and protect water in ways that modern states fail to emulate at their peril. These three versions of Native history are all the more regrettable because the 20th century offered examples of Indigenous co-operation with the left, cases contemporary political theorists have examined with more care than their historian peers.

Pekka Hämäläinen’s Indigenous Continent, the third book in his celebrated trilogy about Native American ‘empires’ – following Comanche Empire (2008) and Lakota America (2019) – attempts to flip Brown’s script. Hämäläinen gives no quarter to the claim that Native populations in North America were easy prey for Europeans. In his account, the continent was still up for grabs and the Native peoples were capable of inflicting severe, potentially irrevocable losses on the young United States. His evidence includes Native archaeological and material sources such as the Lakota ‘Winter Counts’ – buffalo hides on which they depicted the decisive event of a given year. (...)

The balance of forces in the early decades of the new nation was far from clear. In 1791, General St Clair’s US army was defeated on the banks of the Ohio River by the Northwestern Confederacy; a thousand American troops were killed or wounded. In the periodisation laid out in Richard White’s Middle Ground (1991), the irreversible decline of Indigenous peoples only set in at the end of the War of 1812, when ‘they could no longer pose a major threat or be a major asset to an empire or a republic, and even their economic consequence declined with the fur trade.’ This is where Hämäläinen makes his provocative claim: ‘Indigenous power in North America,’ he argues, ‘reached its apogee in the mid to late 19th century.’ (...)

None of this would have been possible without horses. The domesticated horse originated in North America four million years ago, but had been extinct there for 10,000 years. Hernán Cortés and the Spanish brought the horse back to the Americas in the 1500s, and over the next two centuries they spread across their ancient homeland. Hämäläinen relates the account given to the English explorer David Thompson by one of the Blackfeet Indians, Saahkómaapi. In around 1730, the Blackfeet heard that there were horses in Snake Indian country and that not far away was the body of a horse that had been killed by an arrow. They found the dead horse and gathered around it. ‘We all admired him,’ Saahkómaapi told Thompson. ‘He put us in mind of a stag that had lost his horns; and we did not know what name to give him. But as he was a slave to man, like the dog, which carried our things; he was named the Big Dog.’

The people who most successfully mastered the power of the big dog were the Comanche of the Southern Plains. Like the Lakota, they were relative newcomers in their region, which incorporated parts of what are today Texas, New Mexico, Arizona, Colorado and Kansas. In the early 1700s, the Comanches started buying Spanish horses from the more sedentary Pueblo people, whom they quickly displaced as the major power in the southwest. When they forged an alliance with another horse people, the Utes, the result was a mounted army that raided Spanish settlements. The Comanche also operated a booming slave trade in subject Native peoples and other captives, as well as profiting from an enormous hunting range for buffalo. Hämäläinen writes that

 for the Comanches the sun was ‘the primary cause of all living things’, and horses brought them closer to it, redefining what was possible: the biomass of the continental grasslands may have been a thousand times greater than that of the region’s animals. The Comanches plugged themselves into a seemingly inexhaustible energy stream of grass, flesh, and sunlight.

The Lakota, too, secured a vast hunting range, annexing swathes of the Northern Plains. Their relations with the empire to their east – the United States – was initially a trading one, in which the Lakota were by no means the inferior party. Hämäläinen gives the example of the fur tycoon John Jacob Astor building his supply chain right up to the Lakota’s doorstep so that they did not have to inconvenience themselves delivering furs and hides. By the 1860s, the Lakota, in a loose alliance with the Comanches, held sway over a territory larger than Western Europe.

Indigenous Continent is determined to downplay the usual culprits of Native decline: disease brought by Europeans certainly devastated Native populations, but some, especially horse peoples who lived in less dense clusters, were not greatly affected. Every technological innovation the Europeans brought with them – the mounted horse, the gun, the kettle – was acquired and adopted by Natives. In his headlong rush to overturn the Dee Brown story, Hämäläinen ends up reproducing some of its most dubious elements. The focus on military confrontations between the ‘fledgling United States’ and Native ‘armies’ is one of the chief misprisions. The destruction of Native peoples was a result of commercial imperatives as much as political ones. Between 1820 and 1889, for example, the number of buffalo – a major source of Lakota power – declined by 99.99 per cent, from 28 million to 1091. Anglo-European demand for buffalo leather to use in factory machine belts set off a killing spree in the 1870s. The 1848 Gold Rush lured hundreds of thousands of settlers to California through Indian territory, upsetting agricultural patterns and diminishing food supplies. The market went ahead of the cavalry. When Crazy Horse and George Armstrong Custer confronted each other at the Battle of the Little Bighorn, it was reported to be 44°C in the shade, and Evan Connell noted in Son of the Morning Star that ‘a shrewd Yankee merchant on the Yellowstone turned a neat profit selling straw hats for 25 cents.’ Hämäläinen continually emphasises the amount of land area still under Native control, but as the historian Daniel Immerwahr pointed out (his critical review of Indigenous Continent has been cobbled together as praise on the back cover), this is like the Republican Party claiming mass popular support because much of the map is coloured red, no matter how sparsely populated the area in question. The usefulness of calling the Comanche an empire becomes less clear when one considers that at the height of their power they numbered forty thousand people – the population at the time of Cincinnati. (...)

By the mid-19th century, many Native nations found themselves in the position of powerless rentiers, living under what Emilie Connolly calls ‘fiduciary colonialism’. Washington had devised a system of annual annuities instead of one-off buyouts of land, but much of the money was invested in state and federal bonds, effectively making Natives passive investors in their own dispossession. In 1887, the Dawes Act was passed, allowing the US government to subdivide Indian land – previously commonly held – into private allotments of 160 acres apiece: the idea was to break Native patterns of land tenure and force Indians into the capitalist order. The new ‘owners’ would either have to make their portions profitable or sell up to settlers. Though some tribes were initially exempt, the extension of the act in 1898 and the abolition of tribal governments led to the loss of around two-thirds of Native American land over the next thirty years. 

by Thomas Meaney, London Review of Books |  Read more:

Image: Getty via

End Game: From Taylor Swift to Stephen Tennant

You don’t have to have attended Taylor Swift’s Eras tour yourself to be aware of it. After 18 months, it has become an inescapable international juggernaut, with documented effects on economies, infrastructure and policy. Perhaps the closest historical parallel is the Great Exhibition of 1851 – except, while that promised “the works of industry of all nations”, this spectacle showcases only those of Taylor Alison Swift.

That this phenomenon boils down to just one woman is staggering, a reflection of both Swift’s once-in-a-generation talent and the direct relationship she has forged with her fans. I started listening to her in 2011, sucked in by the girlish fantasy of Love Story, and never looked back. Many of my closest friendships were built on a shared appreciation: proof of the virtuous cycle started by Swift’s honest expression and vulnerability.

At the same time, I’ve never felt so alienated by my favourite artist. This year I have felt not so much a Swiftie as a conscript, roped into some broader project of streaming, spending and posting so as to cement and grow her cultural dominance – though it’s hard to imagine who, now, could possibly dislodge her.

Barclays estimated that the average Eras tour attender spent nearly £850 on tickets, travel, accommodation and expenses, including £79 on official merchandise. More than one city playing host to the tour has been renamed in her honour. The Beatles joked about being bigger than Jesus, but Swift really is bigger than music. She is spoken about in terms more commonly used for land masses, like GDP or earthquake magnitude.

The cultural tide behind Swift is so sweeping and powerful that I’ve struggled to hang on to my fandom, and the personal relationship to her music that’s always underpinned it. This may sound like I’m holding Swift’s success against her, that I liked her better before she got big (though, it bears repeating, no pop star has ever been this big). But I’ve been perturbed by signs that Swift is not just being overexposed, but actively tightening her grip on the spotlight.

Eras is already the highest grossing tour in history, generating $1bn last year and a further $261m from the concert film in cinemas. Yet Swift hasn’t stopped hustling, even after more than 100 sold-out shows. (...)

Swift is the biggest celebrity in the world and a billionaire, on track to make $2bn by Eras’ end. The suggestion that she is somehow dissatisfied or threatened is offputting, and raises very human questions about her motivation. Even five-star reviews of the tour have wondered about Swift’s endgame, where she possibly goes from here. (...)

But without any more insight into what is driving her, you’re left to assume it’s just money, or maybe revenge. Neither makes me feel more connected to her as an artist. Her songwriting may be personal, but seeing Swift perform I felt as though I was being engaged in a brand activation by a global behemoth like Nike or Apple, delivering focus-group-tested excellence. Even the friendship bracelets being hawked seemed less like a groundswell of fan camaraderie than brisk, industrial trade.

My uneasy feelings were later articulated by the culture writer Jonah Weiner, describing the insidious “co-opting of ‘community’ into a sales strategy”. Weiner was talking about luxury fashion brands, and the exploitation we are willing to overlook to feel part of a club. But his point about how our human desire for connection and belonging is hijacked and reduced by corporate interests seemed to me an apt description of the Eras tour, the economy that’s sprung up around it and our enthusiasm to participate in it.

The show’s supposed community is built on a basis of economic productivity; like a queue for a new Apple product or a sneaker, it “contains the possibility for meaningful interpersonal connection only in spite of itself,” Weiner writes. Not only that, it is actively at odds with building relationships and communities that might nourish us for the long term. 

by Elle Hunt, The Guardian |  Read more:

Image: Ennio Leanza/EPA

[ed. From the marketing/branding/money-making juggernaut of the Eras Tour, to an overwrought/tortured argument in favor of keeping up with new fashion styles, to a short essay describing one of the gayest sissies in modern history (Stephan Tennant - The Man Who Stayed in Bed). All in three easy jumps! What a world. By the way, 1950 feature film referenced in the second fashion link, Munekata Sisters, by Yasujirō Ozu is in fact a knock off of Jun'ichirō Tanizaki's Makioka Sisters (excellent):]

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SERIOUS PLEASURES The Life of Stephen Tennant. By Philip Hoare. Illustrated. 463 pp. New York: Hamish Hamilton/Viking. $29.95.

In 1910, when Stephen Tennant was 4 years old, he ran through the gardens of his family's Wiltshire estate, Wilsford Manor, and was literally stopped in his tracks when he came face to face with the beauty of the "blossom of a pansy." Thirty years later, so precious and high-strung that he sometimes took to his bed for months at a time, he was coaxed outside by a friend for a ride in the car on the condition that his eyes be bandaged, since passing scenery might make him too "giddy." Aubrey Beardsley, Ronald Firbank, Denton Welch -- believe me, Stephen Tennant made them all seem butch.

According to Philip Hoare, the author of "Serious Pleasures," the witty and amazing life story of this great sissy, Cecil Beaton was one of the first to encourage Tennant's eccentric vocation of doing nothing in life -- but doing it with great originality and flamboyance. Completely protected by class, Stephen Tennant couldn't care less what people thought of his finger waves, his Charles James leopard pajamas, his makeup ("I want to have bee-stung lips like Mae Murray") or his dyed hair dusted with gold. Who would dare criticize this "aristocratic privilege," this self-described "fatal gift of beauty"? As The London Daily Express, in 1928, so succinctly summed up Tennant's attitude toward life, "you . . . feel that condescension, indeed, can go no further."

Although many who knew Tennant later in life maintained that they "could hardly believe the physical act possible for him," the one real love affair of his adult life was with Siegfried Sassoon, the masculine, renowned pacifist poet old enough to be his father. Sassoon brought to their relationship "his fame, his talent, his position," while Tennant's only daily activities were "dressing-up" and reading about himself in the gossip columns. Looking at the photos of the two lovers in Mr. Hoare's book, Tennant posing languidly (vogueing, really), way-too-thin and way-too-rich, as Sassoon looks on proudly, even the most radical Act-Up militant might mutter a private "Oh, brother!" But the author makes us see that Tennant's extreme elegance was close to sexual terrorism, as it flabbergasted society on both sides of the Atlantic for half a century. (...)

To confuse things further, Tennant's idol and great friend was Willa Cather(!). It is hard to imagine the notoriously no-fun author of "O Pioneers!" hanging out with a man whose beauty tips included "an absolute ban on facial grimacing or harsh, wrinkle-forming laughter," but Cather, Tennant's "surrogate mother/nanny figure," always encouraged him to write, even though "Lascar," the novel that obsessed him for the last 50 years of his life, remained unfinished at his death.

After World War II, Tennant became, in the words of Osbert Sitwell, "the last professional beauty." From then on, it was time to hit the sack big time. (...)

"Reeking of perfume," "covered with foundation," with ribbons hanging from his dyed comb-over hairdo, he rested "non-stop" for the next 17 years in "decorative reclusion." Unconcerned about his grossly overweight figure (" 'But I'm beautiful,' he would reason, 'and the more of me there is the better I like it!' "), he lay in bed surrounded by his jewelry, drawings and Elvis Presley postcards while, as Mr. Hoare puts it, his "decorative fantasies were running amok" (the pink and gold statues in the overgrown garden, the fishnets and seashells everywhere, the tiny uncaged pet lizards, the bursting pipes and rotting carpets, the mice still in the traps). Happily re-creating the "perfervid environment" of his youth, Tennant calmly painted the tops of his legs with pancake makeup and proudly showed his "suntan" to astonished visitors like Princess Elizabeth of Yugoslavia. David Bailey, Christopher Isherwood, David Hockney, even Kenneth Anger all made pilgrimages and, though they may have laughed good-naturedly afterward, none laughed as hard as Tennant himself, who, after all, was in on the joke from the beginning. "To call Stephen affected," the artist Michael Wishart recalled, "would be like calling an acrobat a show-off, or a golden pheasant vulgar."

In his later years, as the antiques dealers circled outside his estate like vultures, waiting for the end, Tennant would sometimes stop traffic in nearby country towns by going shopping wearing tight pink shorts or a tablecloth as a skirt. His family had given up on him long before, exhibiting only "bemused resignation," a wonderful English trait sorely missing in America today. V. S. Naipaul may have described Tennant best when he noticed "the shyness that wasn't so much a wish not to be seen as a wish to be applauded on sight."

Are you a Yayoi or a Jomon? - Umehara Lectures on Japanese Studies, Takeshi Umehara and Kenji Nakagami, Design by Nobuyoshi Kikuchi
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Details You Should Include In Your Article On How We Should Do Something About Mentally Ill Homeless People

Suppose that you, an ordinary person, open your door and start choking on yellow smoke. You call up your representative and say “there should be less pollution”.

A technical expert might hear “there should be less pollution” and have dozens of questions. Do you just want to do common-sense things, like lower the detection threshold for hexamethyldecawhatever? Or do you want to ban tetraethylpentawhatever, which is vital for the baby formula food chain and would cause millions of babies to die if you banned it?

Any pollution legislation must be made of specific policies. In some sense, it’s impossible to be “for” or “against” the broad concept of “reducing pollution”. Everyone would be against a bill that devastated the baby formula supply chain for no benefit. And everyone would support a magical bill that cleaned the skies with no extra hardship on industry. In between, there are just a million different tradeoffs; some are good, others bad. So (the technocrat concludes), it’s incoherent to support “reducing pollution”. You can only support (or oppose) particular plans.

And yet ordinary people should be able to say “I want to stop choking on yellow smoke every time I go outside” without having to learn the difference between hexamethyldecawhatever and tetraethylpentawhatever.

I think you’re supposed to imagine the environmentalists’ experts and the industries’ experts meeting policy-makers and hammering out a compromise, then moving one direction or another along the Pareto frontier based on how loudly normal people protest pollution.

But if you’ve been demanding an end to pollution for years, and nothing has happened, then it might be time to hit the books, learn about hexamethyldecawhatever, and make sure that what you’re demanding is possible, coherent, and doesn’t have so many tradeoffs that experts inevitably recoil as soon as they have to think about the specifics.

II.

I’m not a pollution expert, but I’m a psychiatrist, and I’ve been involved in the involuntary commitment process. So when people say “we should do something about mentally ill homeless people”, I naturally tend towards thinking this is meaningless unless you specify what you want to do - something most of these people never get to.

Let’s start with a summary of the current process for dealing with disruptive mentally ill homeless people:

1. A police officer sees a mentally ill homeless person and assesses them as disruptive. Technically the officer should assess whether the person is “a danger to themselves or others”, but in practice it’s all vibes. They bring this person to the ER of a hospital with a psychiatric ward.
2. In the ER, psychiatrists evaluate the person. If some number of doctors, psychiatrists, and others (it varies on a state-by-state basis, and most people defer to the first psychiatrist anyway) agree the person is a “danger to themselves or others”, they can involuntarily commit them. Psychiatrists know lots of tricks for getting the evaluation result they want. For example, wasn’t the person brought in by the cops? Aren’t cops infamous for shooting mentally ill people? Sounds like whatever they did to attract the cops’ attention put them at risk of getting shot, which makes them a “danger to themselves or others”. Again, in reality this is all vibes.
3. The patient gets committed to the hospital. The hospital makes an appointment with a judge to legally evaluate the commitment order. But realistically the appointment is 4-14 days out (depending on the state), and by then the patient may well be gone anyway, in which case the hearing can be cancelled. If it does go to trial, the judge will always defer to the psychiatrists, because they’re experts trying to do a tough and socially important job, and the defendant is represented by an overworked public defender who has devoted 0.01 minutes of thought to this case. This is part of why everyone feels comfortable making commitment decisions on vibes.
4. If the patient seems psychotic, the doctors start them on antipsychotic drugs. These take about 2-4 weeks to make people less psychotic. But one of their side effects is sedation, that side effect kicks in right away, and heavily-sedated people seem less psychotic. So realistically the person will stop seeming psychotic right away.
5. After a few days, the hospital declares victory and discharges the patient with a prescription for antipsychotics and an appointment with an outpatient psychiatrist who can continue their treatment.
6. The patient stops taking the antipsychotics almost immediately. Sometimes this is because they’re having side effects. Other times it’s because they’re still psychotic and making irrational decisions. But most of the time, it’s because some trivial hiccup comes up in getting the prescription refilled, or in getting to the doctor’s appointment. Nobody likes dealing with healthcare bureaucracy, but semi-psychotic homeless people are even worse at this than usual. Social services can sometimes help here, but other times they’re just another bureaucracy that it’s hard to deal with, and it usually doesn’t take long for something to slip through the cracks.
7. Repeat steps 1-6 forever.

This isn’t going to win any of the people involved Doctor Of The Year awards. I’m sympathetic to attempts to change the system. But it’s hard to find the right point of leverage. (...)

Okay, then can you just make it a crime to be mentally ill, and throw everyone in prison? According to NIMH, 22.7% of Americans have a mental illness, so that’s a lot of prisoners. “You know what I mean, psychotic homeless people in tents!” Okay, fine, can you make homelessness a crime? As of last month, yes you can! But before doing this, consider:

• In San Francisco, the average wait time for a homeless shelter bed is 826 days. So people mostly don’t have the option to go to a homeless shelter. If you criminalize unsheltered homelessness, you’re criminalizing homelessness full stop; if someone can’t afford an apartment or hotel, they go to jail.

• Most (?) homeless people are only homeless for a few weeks, and 80% of homeless people are homeless for less than a year. If someone was going to be homeless for a week, and instead you imprison them for a year, you’re not doing them or society any favors.

• How long should prison sentences for homelessness be? Theft is a year, so if homelessness is more than that, it becomes rational for people to steal in order to make rent. And realistically it will take police years to arrest all of the tens of thousands of homeless people, so if a sentence is less than a year, then most homeless people will be on the street (and not in prison) most of the time, and you won’t get much homelessness reduction.

• What’s your plan for when homeless people finish their prison sentence? Release them back onto the street, then immediately arrest them again (since there’s no way they can suddenly generate a house while in prison)? Connect them to social services in some magical way such that the social service will give them a house within 24 hours of them getting out of prison? If such magical social services exist, wouldn’t it be cheaper and more humane to invoke them before putting someone in prison?

I admit that if you’re willing to be arbitrarily cruel and draconian (life sentence for someone and their entire family the moment the bank forecloses on their home!) you can make this one “work”. But anything less than that and it becomes just another confusing bad option.

In practice, the government tries some combination of these things, each of which works a little. Sometimes they fiddle with the law around inpatient commitment around the edges. Sometimes they give people free houses. Sometimes they threaten them with Involuntary Outpatient Commitment orders. Sometimes they throw them in prison. Most of these things work a little. Some of them could work better with more funding.

Nobody thinks the current system is perfect. I respect people who want to change it. But you’ve got to propose a specific change! Don’t just write yet another article saying “the damn liberals are soft on the mentally ill”.

The damn liberals are soft because some of them are the people who have to develop an alternative plan, and they can’t think of a good one. If you’re going to write yet another article like this, and you want to change minds, you should skip the one hundred paragraphs about the damn liberals, and go straight to the part where you explain how you plan to do better.

by Scott Alexander, Astral Codex Ten |  Read more:

Image: Luis Sinco/Los Angeles Times via Getty Images via

Al Green

The 70’s were different. Al Green on Soul Train
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[ed. Along with Let's Stay Together, here's another one covered by a few bands over the years, written by Al Green and Teenie Hodges:]

Magnum P.I.

Magnum, P.I. (CBS, 1980-1988)
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[ed. Pretty much the entire series in one minute... used to see them filming around Oahu and would stop and watch every now and then. Great show.]

Onigiri and Ochazuke by Kimiko Ono,
Taste of Japan Series 8,
Kosei Publishing, Design by Tetsuo Nakamura, Cover Illustration by Masayuki Miyata

Wild Vegetable Dishes by Sadako Wakabayashi,
Taste of Japan Series 12,
Kosei Publishing, Design by Tetsuo Nakamura, Cover illustration by Masayuki Miyata
via: here/here

Postmen in the Mountains

An old postman has spent his whole life delivering mail to the mountain of Hunan and is about to retire. His only son is due to take over his duties. As father and son journey through the mountains, the son begins to appreciate the toil and burden his father has to bear as postman for the villagers, and the old postman is also deeply moved as his son relates his mother's anxiety as she waits for him to return home from every trip. (IMDb)

***

The father prepares the postbag the night before, arranging the mail in the order it will be needed, and wrapping everything carefully against the possibility of bad weather. This will be the last time he packs the bag, and the first time the route will be carried by his son -- who is inheriting his job.

The next morning unfolds awkwardly. The boy's mother is worried: Will be find the way? Will he be safe? The father (Teng Rujun) is unhappy to end the job that has defined his life. But his son (Liu Ye) will be accompanied by the family dog, who has always walked along with the father and knows the path. It is a long route, 112 kilometers through a mountainous rural region of China, and the trip will take three days. The son shoulders the bag and sets off, and then there is a problem: The dog will not come along. It looks uncertainly at the father. It runs between them. It is not right that the son and the bag are leaving, and the father is staying behind.

This is the excuse the father is looking for, to walk the route one last time and show his son the way. The two men and the dog set off together in Huo Jianqi's "Postmen in the Mountains," a film so simple and straightforward that its buried emotions catch us a little by surprise. (...)

The trek represents the longest time father and son have ever spent together; the boy was raised by his mother while his father was away, first for long periods, then for three days at a time. They've never even had much of a talk. Now the son observes that his father, who seemed so distant, has many friendships and relationships along the way -- that he plays an important role, as a conduit to the outside world, a bringer of good news and bad, a traveler in gossip, a counselor, adviser and friend.

The villages and isolated dwellings are located in a region that must have been chosen for its astonishing beauty. There are no factories, freeways or fast food to mar the view, and the architecture has the beauty that often results when poverty and necessity dictate the function, and centuries evolve the form. The dog seems proud to show these things to his new young master. (...)  ~  Lives of 'Postmen' all about the journey (Roger Ebert review).

Kafka and Brod

Good evening! I come to you today as a lover, not an expert. (I am not a Kafka expert.) Some years ago, when I was working as a journalist, I had an encounter with Kafka and Brod that has stayed with me. It’s something I’ve been returning to in my writing, now that I am mostly a novelist. So what a joy and honor to get to work through these ideas here with you today, at the Jewish Museum in Prague (thanks to organizers, hosts, translators).

In 2010, I got a call from the New York Times magazine, asking me to go to Israel to report on the legal case surrounding Max Brod’s papers. (...)

Just to quickly sum up: in 1921, Kafka writes a letter naming Brod as his literary executor, instructing him to burn everything. When Kafka tells him about the letter, Brod replies that he won’t comply with the instructions. Kafka doesn’t name a new executor.

In 1924, Kafka dies. Brod starts editing and publishing the works, starting with The Trial in 1925.

In 1939, Brod flees the Nazi occupation of Czechoslovakia. He ends up in Tel Aviv, where he meets Esther Hoffe, his soon-to-be secretary. After Brod’s wife dies, Brod becomes very close with Esther and her husband, Otto. He goes on vacations with them in Switzerland. Esther has an office in Brod’s apartment.

Brod dies in 1958, leaving the papers to Esther Hoffe. Esther eventually auctions off the manuscript of The Trial for nearly $2 million. It ends up in Germany, at the Marbach archive.

When Esther dies in 2007, she leaves the rest of Brod’s papers to her daughters, Eva and Ruth. The National Library of Israel challenges the legality of the bequest. In 2010, the Supreme Court of Israel rules that an inventory must be taken of all the papers, some of which are still at Eva Hoffe’s home, on Spinoza Street in Tel Aviv.

Eva Hoffe at this point has a lot of cats. This is where I get involved. Basically what I’m told by by the Times in 2010 is: “So the daughter lives in an apartment with 100 cats, and she doesn’t talk to anyone. But we’re hoping she’ll talk to you.”

I was just getting started as a writer, so I took the assignment, even though I don’t speak Hebrew or German (so even if Eva Hoffe wanted to talk to me, how was it supposed to happen?). The travel budget was tiny—I don’t remember exactly, something like $2000, almost all of it went to the plane ticket from San Francisco. I didn’t have enough for a hotel. I stayed at a friend’s friend’s aunt’s (?) apartment. [I was lucky to have such a brilliant and helpful friend.]

I spent several days running around Tel Aviv and Jerusalem, feeling continually guilty about my lack of qualifications. I was talking to scholars, archivists, and especially lawyers. An incredible number of lawyers. Eva Hoffe had a lawyer, the National Library had a lawyer, the Kafka estate had a lawyer, even the Marbach archive had a lawyer. 

In the downtime from talking to lawyers, I lurked around Spinoza Street, hoping to somehow communicate with Eva Hoffe. I brought toys for the cats. Some of the cats came out, they were ready to go on the record, but Eva never answered the door.

Then I went back to SF and spent the whole summer writing the story. Meanwhile, the Times sent an Israel-based photographer (Natan Dvir) to Spinoza Street, and he had a really different experience from me: Eva invited him inside for tea and he was able to take a beautiful photo of her, and she even shared some old personal photographs. The story, “Kafka’s Last Trial,” made it to the cover:

That was in September, 2010. The trial, as you know, lasted for many more years. In 2016, the Israeli Supreme Court ruled in favor of the National Library of Israel. Then there was another trial in Switzerland, but we’ll just fast-forward past that one. Since 2019, everything is at the NLI. And that’s it for the court case! Now we can talk about the actual human relationships!

Everyone who loves Kafka, has to be grateful to Brod. Literally everything we know of Kafka, all of his writing, comes to us via Brod.

But is gratitude always a pleasant feeling?

In 2010, when I was doing all the interviews, I kept encountering ambient waves of animosity towards Brod. Some of the animosity was relatively overt and pragmatic, and was related to how this whole legal mess had been caused by Brod—why hadn’t he put the papers in an archive, instead of leaving them to his secretary?

But there was also a less clearly stated, more emotional, and more diffuse annoyance at Brod—for getting in the way of “our” relationship with Kafka. And that’s one of the questions I want to ask today: What does it mean to try to get past Brod—to get to the authentic, unmediated Kafka?

In some cases, there is a clear literal answer. We heard yesterday from Ross Benjamin, the heroic translator who, at great personal cost, did Anglophone Kafka fans the huge service of translating the diary Kafka actually wrote, instead of the version redacted by Brod. In situations like this, it’s not just possible, but also very meaningful, to get past Brod. But I think such cases are more limited than we think.

I want to point out that Western literary culture has a model of authorship that’s very individual-oriented.

We still have the German Romantic idea of the artist as a lone individual. And it’s not that this idea is wrong, exactly: a big part of writing really is you alone in a room with your awful self. But it’s not the whole picture.

I want to read you what I think is a very insightful observation from Brod. “Two opposite tendencies fought for supremacy in Kafka: the longing for loneliness, and the will to be sociable.”

This is a central tension, not just in Kafka, but in the act of writing. We find it stated very clearly in Proust. (One thing I love about Brod’s Kafka biography is the weight he gives to biographical and psychological similarities to Proust.)

At the end of In Search of Lost Time, we learn that literary “work” is a product of solitude and darkness—AND that the work is co-authored by others, by people outside of ourselves. Every novel is a collaboration with real people—with real life.

This is the main question of my talk: what happens when we look at the Kafka-Brod relationship as a collaboration? Just to clarify, I mean this in a very moderate sense—I’m not saying it’s an equal collaboration. Or only a collaboration. But what do we learn when we look at the relationship as, among other things, a collaboration?

One place where the monologic idea of authorship is very evident in our culture, is when it comes to Famous Quotes. We tend to visualize them as pure emanations from the brain of the solitary author.

This is a paraphrase of a quote we all know. Speaking for myself, I think it’s represented in my brain much like it is visualized here—floating in black space next to a photo.

In fact, that quotation comes, not from anything Kafka wrote alone in a room, but from a conversation with Brod. It’s in Brod’s biography. Kafka tells Brod that he thinks humans are “nihilistic thoughts that came into God's head.” Brod, trying to be helpful, quotes a Gnostic doctrine about how the human world is a sin committed by God. Kafka replies, basically: let’s not exaggerate, “we are not such a radical relapse of God's, only one of his bad moods. He had a bad day.” Brod is encouraged: “So there’s hope, then, outside of our world”—and that’s when Kafka says it: there’s infinite hope, but not for us. (...)

One of the main arguments between Brod and Kafka, as we know, is about Zionism—and, relatedly, the religious interpretation of Kafka’s work. Brod embraces Zionism in 1912—the same year he helps Kafka publish his first book. From the beginning, Brod is determined to see Kafka as a religious, moral (and eventually Zionist) thinker—not primarily as an artist. This becomes very controversial for Kafka’s readers.

In his review of Kafka’s first book, Brod writes: “How much absoluteness and sweet energy emanates from these few short prose pieces… It is the love of the divine, of the absolute that comes through in every line… not a single word is squandered in this fundamental morality.”

This isn’t what we would call a consensus interpretation of Kafka. It’s pretty niche. It’s gushing, it’s lacking in nuance—it’s not tasteful. Kafka found it embarrassing. (We know this from a letter to Felice Bauer.) (...)

So, unsurprisingly, Brod’s critics say: “This isn’t biography, it’s hagiography.” Brod is seen as gauche, tendentious, vulgar. He’s accused of turning Kafka’s works, which are SO multivalent—if there’s one defining feature, it’s plurality of meaning—into a mouthpiece for his own political agenda. (...)

In 1938, Walter Benjamin famously writes: Kafka’s “friendship with Brod is to me above all else a question mark which he chose to ink in the margin of his life.” Of all the mysteries about Kafka—how could he choose this guy as his best friend. This is a from a letter to Gershom Scholem in 1938. Benjamin has just read Brod’s biography, and his take is: “Brod has been denied any authentic vision into Kafka’s life.” (...)

Brod and Kafka meet in 1902 at the German students’ union at Charles University. They’re both law students. Brod has just given a bombastic speech about Schopenhauer, in which he calls Nietzsche a “swindler.” And Kafka comes up to him afterwards. It’s interesting that Kafka approaches Brod first. And Kafka, who is so self-effacing—“deeply unobtrusive,” as Brod puts it, in his dress and demeanor—nonetheless remonstrates with Brod for “the extreme uncouthness of [his] way of putting things.”

This is exactly what Walter Benjamin finds so irritating about Brod: “his striking lack of tact,” his tendency towards “feuilletonistic clichés.” And yet it seems that this very “uncouthness”—which may relate to Brod’s famous “vitality”—is part of what attracts Kafka.

So Brod and Kafka are walking home together, talking about their favorite writers. Brod quotes a line he loves from Gustav Meyrink, comparing butterflies to “great opened-out books of magic.” Kafka responds by quoting a phrase from Hoffmannsthal: "the smell of damp flags in a hall.” He then falls into a deep silence, “as if this hidden, improbable thing must speak for itself.” And this is such an important moment for Brod that, thirty-five years later, he still remembers the street they were walking on, the house they were passing.

Brod starts collecting all of Kafka’s utterances. A lot of the most famous Kafka lines come to us from Brod’s biography. “My head made an appointment with my lungs behind my back.” A lot of hits. So the claim that Brod didn’t understand Kafka, or didn’t appreciate him, or wasn’t sensitive to him—it doesn’t quite hold up. Of course, in every relationship there are blind spots and misunderstandings. But “our” understanding of Kafka is largely an understanding that was communicated to us by Brod. Can we really say it was totally unavailable to Brod himself?

Brod DOES come across as pushy and tendentious—even, or especially, in the biography. We see Brod subjecting Kafka to Gustav Meyrink quotes, hounding him to visit publishers. We see that sometimes this is too much for Kafka. The biography actually reproduces many beautiful, tactful notes that Kafka writes, to get out of meeting Brod. My favorite:

My Max,

I am in such a bad way that I think I can only get over it by not speaking to anyone for a week, or as long as may be necessary. From the fact that you won't try to answer this postcard in any way, I shall see that you are fond of me.

Your Franz

I remember reading that in Tel Aviv and having this realization that everything we know—even the picture of Brod as a bumbling oaf—comes from Brod himself. (...)

As we all know, there are many different Kafkas. One of them is Funny Kafka. And funny Kafka is very much in conversation with Brod. In the biography, Brod famously recounts how he and their friends laugh “quite immoderately” when Kafka reads them the first chapter of The Trial; Kafka himself “laughed so much that there were moments when he couldn't read any further.”

Let’s linger for a moment on that image: Kafka, reading his work aloud to Brod and their friends, laughing too hard to keep reading. (...)

It isn’t hard to see what Benjamin means when he says Kafka is “not a humorist,” or not primarily a humorist: Kafka’s works are wrenching and terrifying. And yet… it’s possible to be humorous about situations that are wrenching and terrifying. It’s possible to argue that such situations are the origin of humor.

by Elif Batuman, The Elif Life |  Read more:

Images: Author/and via

[ed. See also: Kafka’s Last Trial (NYT):]

***

During his lifetime, Franz Kafka burned an estimated 90 percent of his work. After his death at age 41, in 1924, a letter was discovered in his desk in Prague, addressed to his friend Max Brod. “Dearest Max,” it began. “My last request: Everything I leave behind me . . . in the way of diaries, manuscripts, letters (my own and others’), sketches and so on, to be burned unread.” Less than two months later, Brod, disregarding Kafka’s request, signed an agreement to prepare a posthumous edition of Kafka’s unpublished novels. “The Trial” came out in 1925, followed by “The Castle” (1926) and “Amerika” (1927). In 1939, carrying a suitcase stuffed with Kafka’s papers, Brod set out for Palestine on the last train to leave Prague, five minutes before the Nazis closed the Czech border. Thanks largely to Brod’s efforts, Kafka’s slim, enigmatic corpus was gradually recognized as one of the great monuments of 20th-century literature.

The contents of Brod’s suitcase, meanwhile, became subject to more than 50 years of legal wrangling. (...)

The situation has repeatedly been called Kafkaesque, reflecting, perhaps, the strangeness of the idea that Kafka can be anyone’s private property. Isn’t that what Brod demonstrated, when he disregarded Kafka’s last testament: that Kafka’s works weren’t even Kafka’s private property but, rather, belonged to humanity?

Two AI Truths and a Lie

Industry will take everything it can in developing Artificial Intelligence (AI) systems. We will get used to it. This will be done for our benefit. Two of these things are true and one of them is a lie. It is critical that lawmakers identify them correctly. In this Essay, I argue that no matter how AI systems develop, if lawmakers do not address the dynamics of dangerous extraction, harmful normalization, and adversarial self-dealing, then AI systems will likely be used to do more harm than good. 

Given these inevitabilities, lawmakers will need to change their usual approach to regulating technology. Procedural approaches requiring transparency and consent will not be enough. Merely regulating use of data ignores how information collection and the affordances of tools bestow and exercise power. A better approach involves duties, design rules, defaults, and data dead ends. This layered approach will more squarely address dangerous extraction, harmful normalization, and adversarial self-dealing to better ensure that deployments of AI advance the public good

Introduction 

It’s hard to know what to believe about our likely future with Artificial Intelligence (AI). The techno-optimists tell us that AI will be a “force for good” as it becomes integrated into almost every aspect of our lives. For some, we simply need to set up guardrails so society can benefit from these systems while minimizing their harms. The techno-doomers, a dramatic division of the AI hype machine, warn us that AI systems could become intelligent and powerful enough to wipe out humanity. Though that doesn’t seem to stop them from building AI systems as fast as they can. Meanwhile, the more skeptical and even cautiously optimistic crowds are not worried about AI systems becoming so smart that they take over the world, but instead are worried that they are too dumb, and that they have already taken over. Societal wellbeing hangs in the balance, as our rules and frameworks for regulating AI depend on policymakers’ mental models, theirpredictions for the affordances of AI, and how people and organizations are likely to respond to these affordances. But we already know how this will play out. 

The most prominent AI tools developed for use in commercial, employment, and government surveillance contexts feel hand-crafted for industry exploitation and fascist oppression. Companies are already using generative AI, biometric surveillance, predictive analytics, and automated decision-making for power and profit. No matter how AI develops, there are a few dynamics we can count on. Companies are going to seek to profit from AI and will take advantage of narratives to block rules that interfere with their business models. The governments that want powerful AI tools won’t stand in the way. 

When I was younger, I often played the game “two truths and a lie.” The idea is to offer up three statements, only two of which are true, and see if others can guess the lie. It’s a fun ice breaker and a great way to get to know others. It’s also a helpful way to work through what is and what is likely to be. 

In this Essay, I frame the pathologies related to industry’s deployment of AI systems in the form of two truths and a lie. I argue that lawmakers should shape their regulatory response to AI systems around three dangerous dynamics that will be inevitable unless lawmakers intervene. 

First, the truths. The primary certainty of AI is that commercial actors who design and deploy it will take everything they can from us. Companies cannot create AI without data, and the race to collect information about literally every aspect of our lives is more intense than ever. The trajectory of data collection and exploitation only runs one way: more. Second truth: We will get used to it. After initial protests about new forms of data collection and exploitation, we will become accustomed to these new invasions, or at least develop a begrudging and fatalistic acceptance of them. Our current rules have no backstop against total exposure. Third, this will all be done “for our benefit.” And that’s the lie. AI tools might benefit us, but they will not be created for our collective benefit. Organizations will say the deployment of facial and emotion recognition in schools is motivated by the desire to keep students focused and edified. Employers will say that the deployment of neurotechnology in the workplace is to keep employees safe and engaged. Platforms will promise that the use of eye-tracking and spatial mapping in augmented-reality and virtual-reality environments is to better cater to your desires. While it’s true people will probably realize some benefits from these tools, companies have little interest (and show no evidence of pursuing) societal improvement. The result is that the benefits of AI systems are often pretexts for market expansion into the increasingly few spaces in our lives that are not captured, turned into data, and exploited for profit. 

Regardless of how AI evolves technologically, data capture, normalization, and industry self-dealing will be a part of that evolution. Lawmakers should act accordingly. To that end, I suggest that lawmakers embrace four approaches to regulating AI: (1) Duties; (2) Design; (3) Defaults; and (4) Dead Ends (“The 4 D’s of AI Regulation”). Less sturdy and insufficient procedural strategies and spotty use limits will not be enough. Only stronger, substantive approaches can help ensure society will be better off with AI—notwithstanding the inevitable data grabs, normalization, and self-dealing that come with it.

by Woodrow Hartzog, Yale Journal of Law & Technology |  Read more (pdf)

[ed. Download, or Open pdf in browser to view. See also: Honest Government Ad|AI: ]  

Vertical Integration: Governing in the Political Twilight Zone

It’s hard to pay attention to anything in the antitrust realm right now, after the wild political ride America's been on the past week. The Federal Trade Commission is still governing, with the commission suing Teva pharmaceuticals over illegal patent listing, and then also voting unanimously to block what is called a ‘vertical merger,’ in another multi-billion dollar challenge. The two Republican commissioners voted for this challenge, so that’s a note of optimism for the durability of the anti-monopoly agenda. (In another such note, the Pennsylvania House just passed a new antitrust bill on a bipartisan basis.)

But first, let’s talk about the Political Twilight Zone, which I’m naming after the science fiction TV show in which characters would experience disturbing, unusual, or paradoxical events, often funny and always creepy. Learning about these alternative worlds where the rules applied in dark and unexpected ways meant you were ‘entering the Twilight Zone.’ 

So what is this Twilight Zone? Well we’re used to a world where our leaders are functional and healthy, if not always honest or competent. And yet, the most important man in America, President Joe Biden, is clearly not well, which we all saw on national TV last week. This dynamic is especially weird because there’s a public debate in which a large faction of Democratic elected leaders are pretending that he is well. It feels Soviet, or Twilight Zone-ish. (...) 

The stock market hit an all-time high, inflation is down, people are eating, shops are full, so in a sense things haven’t gone haywire. Yet, there seems to be little we can count on, whether it’s who leads us, how they lead us, or even the basics of how the government or law works. Anything feels possible, as long as it’s weird and ominous.

Life Goes On

Despite these events, at least the Federal Trade Commission is continuing to govern, with four bipartisan actions on consumer protections and competition this week. Here’s the FTC’s head of consumer protection, Sam Levine, making that point.

It’s telling that in one of the few parts of government run by younger decision-makers - all five commissioners are in their 30s - things actually happen. The most important of these actions is a challenge to a $4 billion merger of the world’s largest mattress maker, Tempur Sealy, and the nation’s biggest mattress retailer, Mattress Firm. (Levine means vertical merger not ‘verger merger,’ he later clarified he’s too busy protecting consumers to spell-check.)

What is this merger challenge and why does it matter? Well most of the big important monopolies we’re dealing with, from Google to Ticketmaster, are vertically integrated, which is to say, they own a bunch of different parts of a supply chain or ecosystem. Google runs search, but it also controls app stores, YouTube, adtech systems, Maps, and email, which it rolled up systemically through acquisitions over decades.

The reason it could do this is because for more than 40 years, the FTC didn’t challenge a single vertical merger, focusing only on the deals where a rival is buying a rival, instead of deals where a supplier is buying a customer. Libertarian economists argued that, unlike a rival buying a rival, such ‘vertical’ mergers helped reduce overhead and increase efficiency in the economy.

But that thinking is, of course, dumb, and has changed significantly. As antitrust lawyer and former FTC enforcer John Newman noted, this dynamic started to shift in 2021 under then-acting Chair Rebecca Slaughter with Illumina/Grail, and then continued with a bunch of different merger challenges, such as “Nvidia/Arm, Lockheed/Aerojet, Microsoft/Activision, and now Tempur Sealy/Mattress Firm.” And another, IQVIA, was challenged partly as a vertical merger, and the FTC won that case.

This refusal to challenge vertical mergers was an enforcement decision in the 1980s to ignore Congress, as the last update to anti-merger law was written in 1950 in part so that vertical mergers could be challenged. This Tempur Sealy case had all five commissioners in support, including the two new Republicans, Andrew Ferguson and Melissa Holyoak. It’s a very different FTC than it was just a few years ago. In terms of durability of the anti-monopoly agenda, this change seems like it’ll last. (...)

So there we go. It’s easy to discount such a move, since mattresses don’t seem to be a big deal, and we’ve become inured to these regular challenges of multi-billion dollar deals. But having a unanimous vote to challenge a multi-billion dollar vertical merger would have been unthinkable in 2019. Today, it’s so routine it’s unnoticeable.

That’s one item the FTC is pursuing. But it’s not the only one.

There’s also the commission’s bipartisan campaign against the high cost of inhalers and epipen-style injectors, old products priced at hundreds of dollars apiece in the U.S. that cost very little abroad. It’s a complex story, but one reason for the high price is that medical companies misuse their patents, particularly when medicine is delivered through a device, like an auto-injector or inhaler. Firms will make a minor tweak to a device, and then illegally claim more patent protection, allowing the firm to keep rivals off the shelf and maintain high prices.

In April, the FTC targeted 300 of these “junk patents” for a variety of medicines. The pharmaceuticals targeted were “diabetes, weight loss, asthma, and COPD drugs, including Novo Nordisk Inc.’s blockbuster weight-loss drug, Ozempic.” To add to that, yesterday, the FTC sent out subpoenas to Teva Pharmaceuticals for internal documents relating to “about two dozen patents for its asthma and COPD inhalers.” (...) [ed. see also: How The Jetson's Lost to Black Mirror]

But get ready. The FTC was created in 1914, long before the New Deal-era precedents that the Supreme Court is attacking. So it’s been mostly exempt from the litigation drama. But I think it’s fairly likely that a court tomorrow strikes down the FTC’s rule-writing authority, starting with the ban on non-competes that it finalized in April. [ed. It didn't, but the decision isn't final yet and the reasoning is murky]. I don’t know exactly what the judge will say or do. I’m not 100% certain it’ll be bad news, as the Fifth Circuit did shockingly uphold the Illumina-Grail challenge. But it could, and likely will, get ugly. And if it does, the response will be to build political support among the public to stop monopolization. Which, come to think of it, is exactly what anti-monopolists should do, Twilight Zone or no.

by Matt Stollar, BIG |  Read more:

Image: The Twilight Zone

[ed. Lina Khan, Chairman of the FTC, is like a breath of fresh air. Too bad she'll be gone in two seconds or less if a Republican administration is elected. See also: FTC Non-Compete Ban Survives a Texas Court, For Now (BIG).]

Escape From the Box

Mario Flores was told he couldn’t look at the documents until he signed them.

The saleslady at CardinaleWay Mazda in Corona, California, about 50 miles east of Los Angeles, was rushing Mario, a 20-year-old first-time car buyer, through a new loan agreement, asking him to make electronic signatures on a small tablet. When asked if Mario could see the physical agreement and all its terms, the saleslady insisted that the signature must be added in order to move forward. Anyway, she assured, it was a better deal than what he initially signed; the term was dropping from 84 to 75 months, and the interest rate from 13.77 percent to 10.99 percent.

But the printout she was showing Mario wasn’t the loan document, and it didn’t reveal other information in the contract, which he would be bound by upon signature. As Mario and his family were hustled through another screen, the man sitting next to them, an understated guy in his mid-thirties with a close-cropped beard, grew more vocal.

Jase Patrick had flown in from Miami that day to advise Mario, who had contacted Jase’s company Mozy about a loan that was full of red flags. Jase asked the saleslady if it was true that the extended warranty bundled with the deal was required to get the lower interest rate. She said it was.

Jase asked Mario and his family to leave the room.

“How long have you been doing F&I?” Jase told me he asked the woman, using the initials for the finance and insurance department. The woman said three years. In that case, Jase replied, she should know it’s illegal to tie a warranty to a lower interest rate. He said the dealership needed to unwind the sale, and he wanted to speak to the sales manager. The woman promptly left the room.

Jase put his feet up on the desk, and the sales manager, walking in on him, asked if he was comfortable. This set Jase off. How could the manager be comfortable with jamming a young kid? According to the original sale contract, F&I had added about $7,100 in extras—the warranty, a “door guard,” nitrogen-filled tires, two anti-theft systems, and a guaranteed asset protection (GAP) policy—onto a $24,335 Mazda3. Jase called it a “box close,” where the sales agent works out a monthly payment and sends the customer to F&I—the box—to negotiate the rest, layering on as much junk as possible. Jase even alleged that F&I doubled Mario’s actual income on the paperwork to get the bank to sign off.

The initial loan, Jase figured, must have evaporated upon the bank inspecting the numbers. This new one, with the lower terms and interest rate, still represented thousands of extra dollars padded onto the sale. “It only sounds like a good deal because of how poorly they treated him to begin with,” Jase told me later. With access to fairer financing and no add-ons, Jase estimated that Mario could have saved $20,000 over the life of the loan, a figure approaching his annual income.

“This is the ideal customer,” Jase said. “This is what they train for.”

The sales manager denied that the interest rate was tied to the warranty, and said that Mario could take it off. But Jase wanted the whole deal cancelled, and for Mario to get the $2,500 back that he already put down on the vehicle. And it seemed like he wanted more, too: some signal that confusing and squeezing customers was the wrong way to do business. So he asked for the owner.

About ten minutes later, the general manager walked in. Jase explained the situation; the general manager claimed he never heard of a box close, though he later conceded that completing a deal in F&I was common. He also didn’t like having his authority questioned, asking Jase how he knew so much about selling cars.

“I’ve been doing this 15 years, OK?” Jase told me he said. “I’m a regional finance director and now I have an F&I company, and we are bringing an ethical way to doing F&I. And you’re going to ruin this industry if you keep doing business like this.”

The manager threw Jase off the lot and threatened to call the cops for trespassing.

MOST CONSUMER SPENDING IN AMERICA, at least for now, has become standardized; you pay the price offered or find another product. Homes and autos, the biggest purchases most Americans will ever make, are more a matter of negotiation. Cars have a suggested retail price, but just about everything else—trade-in value, financing rate, dealer markup, optional extras, and ultimately the total payment—is up for discussion.

It’s an uneven negotiation from the beginning. Customers don’t spend their every waking hour thinking about how to buy a car, but they’re up against an entire architecture that does—a small army of sales, F&I, and service staffers, and a tight network of managers and dealers. They have deep experience in these transactions, and practiced techniques for how to maximize revenue.

The result is an experience that most people view as a grinding, tortuous journey, being upsold and pitched and bombarded with numbers until they resign themselves to the egregious overcharges as the price one must pay to get behind the wheel. A March survey found that 86 percent of auto customers expressed concern about hidden fees, and 76 percent lacked trust in dealership pricing.

Even a completed CARS rule, Jase Patrick believes, would not fully stop dealers from engaging in prohibited behavior.

Lina Khan, chair of the Federal Trade Commission, told me about a public comment she received from a veteran, who likened the experience of car-buying to preparing for war. “It was such an apt way to put it,” Khan said. “You’re kind of gearing up for battle every day to be pitted against corporations that have so much more money and resources and information, to just try and make sure you’re not getting harmed.”

As a tool in the fight, the FTC has introduced the CARS rule, which stands for Combating Auto Retail Scams. The rule attacks the most deceptive practices of the auto buying experience. Under the rule, dealers must provide up-front pricing, including the total amount paid after financing, not just the monthly payment; obtain “real consent” for all add-ons rather and not tie them to lower finance rates or rebates; and only charge for products deemed to have real value. The FTC estimates the rule will save customers $3.4 billion a year.

But in January, the National Automobile Dealers Association (NADA) filed suit to block the CARS rule, calling it “terrible for consumers… because it will add massive amounts of time, complexity, paperwork and cost.” The lawsuit remains under active litigation.

Even a completed CARS rule, Jase Patrick believes, would not fully stop dealers from engaging in prohibited behavior. “We’re not ready for it,” he told me. “There’s going to have to be a widespread effort to tell the police that you arrest people when this happens.” He cites as evidence his years of service inside the rooms where auto dealers perfected these techniques. He’s now on a quixotic quest to establish more honorable business practices in the industry. Getting to that place is a steep drive on rough terrain.

by David Dayen, The American Prospect |  Read more:

Image: uncredited

[ed. The amount of time wasted just trying not to get punked by every business under the sun probably represents a pretty significant percentage of most people's lives. See also: Economic Termites Are Everywhere (BIG); and, Hello From the Middleman Economy (AP):]

"The common thread here is an economy of middlemen, a group of linkers, connectors, and bridgers that offer little in value (or in these cases actively detract from it) and much in opportunity for skimming and causing prices to rise. This has in a real sense become the U.S. economy in microcosm, and in many ways it speaks to public frustration with it. (...)

America runs on middlemen. They have insinuated their way throughout the products and services we rely upon, and they make them more expensive, poorer in quality, and more vulnerable to hidden risks.

These risks can be seen most sharply in the information security realm. As Cory Doctorow writes, “This is the American story of the past four decades: accumulate tech debt, merge to monopoly, exponentially compound your tech debt by combining barely functional IT systems. Every corporate behemoth is locked in a race between the eventual discovery of its irreparable structural defects and its ability to become so enmeshed in our lives that we have to assume the costs of fixing those defects.”

via:

Mort Künstler, "I Fought the Sea Killer", 1956

via:

The Dandy Warhols