Something Lighter for the Summer – The 35 Most Over-Used and Tedious Words and Phrases in the Parlance of Modern America

Posted by Mack W. Borgen June 20th, 2017

Blog 72

June 21, 2017

By Mack W. Borgen

Santa Barbara, California

Copyright (c) 2017. Mack W. Borgen. All rights reserved. University of California at Berkeley (Honors, Economics); Harvard Law School; Author, The Relevance of Reason – Business Politics (Volume 1) and —  Society and Cultue (Volume 2)As Advertised in The New York Review of Books and Recipient of Four National Book Awards.  A portion of the below essay will be included in my forthcoming book, May the Bridges I Burn, Light the Way – A Lifetime of Writings – 1977-2017.

Something a little lighter for the summer …  

A Humorous Listing

of

The 35 Most Over-Used and Tedious Words and Phrases

In the Parlance of Modern America

Introduction

It is summer. Finally. A time for a little well-deserved vacation and relaxation.

Politics and acrimony still clutter our televisions screens, but at least the 2016 Presidential election is finally behind us. Now, our tax returns have been filed. Our kids have survived another year of school. The sun is out. The flowers are blooming. The birds are chirping. Our days are longer, and even Netflix has at last released another season of shows. Things just don’t get much better.

Nearly everything seems a bit better; a bit lighter; a bit more relaxed.

And in keeping with this spirit of summer, the subject of this month’s blog/article is lighter; hopefully, a bit humorous in its own way. The heavier subjects won’t go away, and they will be waiting for us this fall. But, for now: Summer.

Background for This Collection of America’s Most Over-Used and Tedious Words

The background of this article is that, for the last several years, this author has been trying to develop a new, more engaging manner in which we, as a people and a country, can better learn and, depending upon one’s age, more accurately remember the history of Modern America. The underlying assumption of this effort is that for a variety of reasons, American history is poorly taught and rarely learned.

The methodology of this new manner of presentation of our recent history involves the assemblage, presentation, and brief narrative explanation of what are referred to as “memorable words.” These words included both the heavy and ponderous words of our country’s leaders and the light and, at times, even humorous words which, for their own many reasons, have become “memorable.” All of these assembled “Memorable Words” will soon be presented upon the publication in my three-volume book entitled Dead Serious and Lighthearted – The Memorable Words of Modern America (Volume I – 1957-1976), Volume II (1977-1993), and Volume III (1994-2015).

NOTE: If you want to pre-order direct-from-publisher sets of these books, merely email me at mwborgen@live.com with (i) your name and address; and (ii) the number of sets of hardback or paperbacks you wish. No payment is due until the publication and release of the books, and you will receive a pre-order discount of 25% off the Amazon.com price!

In the course of this author’s research, it became obvious that certain words and phrases are “memorable” for another reason – their constant over-use and tedious repetition.

These words are not included in my books because, as will be seen below, they are of little consequence. By themselves, they have little meaning. They have no lasting import. They don’t even decorate our language. To the contrary, they clutter our conversation. But they do so insistently. Their sole distinction is that they are everywhere spoken, repeated, and echoed until they become ingrained into our parlance. And for that reason alone, they deserve to be here recognized — briefly, but recognized nevertheless.

The Allure and Danger of Lists

“The dangers of definition, omission, and subjectivity

As we know, all lists have a certain allure. Like a guilty pleasure, most of us can’t resist knowing who or what is on this list or that list — the 100 Richest Americans, the FBI’s 10 Most Wanted, the Highest Paid Athletes, the Best Retirement Towns, the 25 Best Destination Resorts, the 37 Most Dog-Friendly States, the 5 Warning Signs of a Heart Attack, the 25 Best Airline Deals, and the 12 Best Coffee Houses in Arkansas. And on it goes.[1]

 But nearly all lists are subject to the same dangers – the dangers of definition, omission, and subjectivity.

 The dangers of definition relate to determining the most objective and meaningful criteria for inclusion on any list. In the context of tedious words, such determination is unavoidably subjective.

The dangers of omission are everywhere. Some words and phrases will be inadvertently omitted due to sheer oversight or the need for brevity. Conversely, some words are easily included, and the author has attempted to identify those words and phrases which we all, or at least many of us, may agree are unnecessarily over-used.

The dangers of subjectivity are closely related to the dangers of definition and omission. While it is the committed intent of this author to present these words and phrases in an accurate and balanced manner, realizing such intent is almost impossible. In the mere selection of these words and phrases, personal bias – the true demon of all writers — creeps in.

But even though lists, while fun, are a tricky business, let us proceed even though this list, like all lists, is always changing and can never really be completed.

Lastly, please know that the list is offered in good spirit and that this author welcomes your nomination of additional words and phrases. Just email me at mwborgen@live.com. On a personal note and for what it is worth, there is no sanctimony here. There are few words or phrases below on this list that this author has not himself used at one time or another. I’m as guilty as the next.

Over-Used and Tedious Words or Phrases Only

 – The Use of Gestures and Linguistic Errors Distinguished –

This article focuses only on words and phrases, but there are plenty of gestures which have long ago become similarly over-used and which deserve at least passing notice –

The “V “for Victory;

The forehead “L” for loser;

The fist pump;

The pistol point and thumb pull;

The ubiquitous middle finger,

The thumbs up

The nose hold.

The A-O.K.

The foot stomp;

The up-yours elbow pull

A million and one gang signs …

And ten million and one Italian gestures – which can collectively almost replace Italian as their language of communication [2]

But this article focuses only upon words and phrases— and more specifically, those words or phrases which, God-willing, will soon fade from our American conversation.[3] Certainly replacement words and phrases will surface and, in their own time, will become similarly hackneyed and over-used, but sometimes even a brief change, like all respites, is good

Just as this article does not include gestures, it also does not focus upon those over-used words or phrases whose infamy is rooted in their mere verbosity (e.g. “due to the fact that” or “on account of” as opposed to the simpler “because” or “so as to” instead of the simpler “to”) or linguistic incorrectness (e.g. “irregardless” for “regardless; or “thusly” for “thus,” or “firstly, secondly, thirdly” rather than the correct Queen’s English “first, second, third).

Lastly, this article does not include the growing number of code terms now commonplace in our evermore twitter-texting society. It is presumed that the dictionary will someday be produced but those code terms, but for now, my BFFs, this author has GTG, back to this, hopefully, LOL article. Enough said, OMG (Oh, my God).

So, bypassing gestures, verbosities, linguistic errors, and Twitter-code, this article focuses upon those words and phrases which may be grammatically correct but which have become – by their constant over-use – almost interesting in their level of generated annoyance to the listener as he or she absorbs the pounding of their tedious repetition. Like, at the end of the day, you’ll literally see what I mean. Really.

The Use of Topical Categories and Alphabetical Presentation

There are no Robert’s Rules of Order on how to and present these words and phrases. Thus, this author has taken the liberty of dividing them by into the following three general topical categories:

Business Parlance and Office Speak;

Conversational Parlance; and

Politics and Culture

Initially, the words and phrases listed below were ranked according to their degree of abuse and over-use; the degree to which they have become tedious components of our American conversation. However, even after multiple attempts, each of the words and phrases kept coming in first. Thus, it was decided that each, when considered, were deserving of equal, tired, and sighing contempt.

Therefore, the words and phrases are listed alphabetically by category. This author gladly defers to you, my readers. Each of you are encouraged to rank the words and phrases from the most to the least offensive and tiresome, but this author has determined that – enjoy this – “at the end of the day,” it is “literally” “beyond my pay grade” to “actually” even try. With each word or phrase, this author couldn’t resist some editorial comments.

I.

Business Parlance and Office Speak[4]

“At the end of the day”How about “at Noon or “At the end of tomorrow” or “at the end of the week” — what is really ever finished, completed, done, or fully comprehended “at the end of the day?”

“Beyond my pay grade” — At a minimum, this phrase should be used only by military personnel or civil servants who have amongst them forty separate pay grades (i.e. Civil Service (15 pay grades with 10 steps each); Uniformed Services – Enlisted Personnel (9 pay grades); Warrant Officers (5 pay grades), and Officers (15 pay grades). The rest of America, you know, us, has never been in a pay grade since we dropped out of Scouts.

“Branding” This general term encompasses the way one presents one’s self or one’s organization, company, or product to the world. The rough concept rests upon the dangerous assumption that success is achieved when the world views you or your company as you desire them to do so. Similarly, “rebranding” is when you or your company desires to change your self-image and does so by, in effect, re-presenting (or re-misrepresenting) yourself to the world.

“Learning Curve” (and its curve cousins – “experience curve” and “growth curve”). It’s nice to know there is such a thing as a “learning curve,” but it is a long curve. This author, possibly like you, has been on it since Kindergarten.

“Lean In” — A late addition to the list, but it seems as though everyone is “leaning in” into something or everything since the release of Sheryl Sandberg’s 2013 book by the same name.

“Low-hanging fruit” — This may be one of the most flexible of all business parlance phrases. Whether the phrase is thrown carefully or dumped unceremoniously into any conversation, it can be used in the context of every argument and every list of issues, negotiating points, or merger pick-offs.

“My people will talk with your people” — Ah, the phrase of arrival. There are exceptions, but usually once one gets to the point whereby it is necessary for “your people” to talk to “their people,” it is usually time for you to step aside, retire, withdraw, go home, and get a new life.

“New Normal” — This phrase is at best challenging and at worst meaningless since few of us, at least outside our sheltered cocoons, ever really know what “normal” is. And anyone who has ever travelled from the Hamptons to the Bayous; from the city to the farm, from the shores of Waikiki to the streets of Chicago, knows that there is no real “normal.” For that matter, there never was an “old normal” either.

“Paradigm shift” – It’s o.k. Admit it. Every time this phrase is used, half of the listening audience sits in self-imposed terror as they secretly try to remember what “paradigm” means – and, for that matter, why there is a damn “g” in the spelling of the word.

“Reach out, drill down, and circle back” – The endless phrases of deferral used by those of us who know that we’re not yet ready to do something. In the old days, we just expressed a need to “sleep on it.” Today, however, things are more complicated. “Sleeping on it” is not nearly enough. Now we have to “reach out” and gather other people’s input. We have to “drill down” to gather more facts and data. We have to “circle back” to assure that our assumptions and even our goals are correct.

“Run it up the flagpole” — The saving phrase for anyone who doesn’t have the authority or the guts to make a decision. In the risk-averse environment of Modern America, it is deemed safer to “run it up the flagpole” so that we can get more “sign-ons” and “everyone’s approval” in our quest for that coveted “cover” that everyone is talking about.

“Sign on the dotted line” — The last words usually heard before everything changes. Sometimes it’s for the good; sometimes it’s for the bad, but (for reasons we don’t know) the line is almost never “dotted.”

“Streamline” and “Restructure” – Everyone who has been in business for more than a couple of lunch breaks knows that many businesses can rarely be “streamlined” into profitability. Likewise, many organizations need elimination far more than “restructure.” It is this author’s belief that there may be some truth to the hallway rumors that both terms, “streamline” and “restructure,” were invented by the makers of PowerPoint.

“Win-win” — This phrase can sometimes accurately summarize the probable results of a particular decision or agreement. More often, however, it is used as a negotiating tool in which one party tries to convince another party that all is good and that everyone will “win-win” as soon as they “sign on the dotted line.”

“Work smarter, not harder” — This is the motto of the Disney character Scrooge McDuck, but it is also the phrase used as a means of offering of wisdom and supposedly, energizing encouragement from upper management to middle management; and from middle management to the rest of us who actually do the work.

II.

Conversational Parlance.

“Actually” and “Literally” – According to urban legend, these terms were injected into the American conversation sometime in the mid-1970s in The Valley just north of Los Angeles. Like Africanized bees, slime, and spinners, the use of “actually” and “literally” has spread across the country. Both words are intended to supply emphasis as in “we actually had to wait” and “we had to wait literally two hours for a table.”  The problem is, however, that actually, the words, add, literally, nothing to a sentence — other than a brain-fart pause in one’s conversation. Nevertheless, it is now four decades since the introduction of the words into America’s valley-style jargon, and their use is not lessening.

“Awesome.” The multi-purpose, generic term for everything wonderful —- from ice cream to ideas, from new plans to new products, from yesterday’s game to tomorrow’s wardrobe. Based upon a speech-tracking poll conducted at some major U.S. malls in the summer of 2016, it has been suggested that the removal of the word would collapse 47.3% of U.S. conversations. Alternatively, a rigorously enforced $0.25 fine for each use of the word would eliminate the federal debt in approximately 2.3 days (give or take 10-11 “awesomes.”

“Back in the day” – A common reference to anything which occurred, depending upon one’s age, prior to Obama, 9/11, the Boom-Boom 80’s, Watergate, or, for the senior set, Woodstock or Ike.

“Dude”  A term of reference more than endearment (unless modified by “Good” as in “Good dude” or

“Bad” as in Bad Dude” or even “Righteous” as in “Righteous Dude”). For some, the term seems to be applicable to nearly any male walking on Earth.

“Epic” — This word was once used reverentially in the context of world-changing evens such as heroic invasions, major battles, or world-altering discoveries. Pedantic linguists remind us that the word is also frequently used in conjunction with “proportions” as in “an event of epic proportions.”  Now, however, it has been watered down to apply to each weekend’s new movie release, Jane’s birthday party, and Bobby’s home run last week. Basically, “epic” is anything perceived to be even slightly over “awesome.”

“F*** bombs” of any sort and including “Get F****ed,” “I’m F****ed,” “You’re F****ed,” “F*** Off,”and “F***ing A.” Regrettably, the phrases are the go-to, catch-all words offered in response to any perceived act of aggression, misunderstanding, employment review, bounced check, foul-ball, car cut-off, price misunderstanding, and on and on. Americans, a deeply familial society, use the preface of “Mother-F****er” in order to raise the ante and emphasize a heightened sense of disappointment, anger, or outrage.

“In real time” – A phrase used to supplant “live” and used to contrast one’s viewing of an event or occurrence to that strangely, never-referred-term “un-real time.”

 “Just sayin …” – The multi-purpose, edge-taker-off applicable to the delivery of anything approaching criticism or cold truth. The phrase can be used in social situations and nearly all conversations approaching the subject of politics.

“Like …” with all of its iterations – “I was like (expression of alarm), and “he was like” (expression of disdain), and “now I’m like” (expression of dismissal usually delivered with a wave-off of the hand).”

“Literally” – See “Actually” and “Literally” above.

“No worry” – The go-to, ready phrase of comfort and assurance which is routinely offered to anyone suffering from mild anxiety to xanax-worthy panic.

“Oh, wow” – This phrase is starting to phase out of the American lexicon, but it deserves inclusion in this list because the phrase completely dominated the entire decade of the Sixties. Nothing, absolutely nothing, in the 1960s — from good to bad, from hot to cold, from up to down, from time to distance, from sounds to smells – was exempt from the universal response of “oh wow.” Some say that the last “oh wow” was heard as Nixon announced his resignation as the 37th President of the United States in August, 1974, but we have all heard the phrase mumbled at more than a few rock concerts since then, and there was certainly a resurgence of the expression with the election of Donald Trump in November, 2016. Note: whether or not  either “oh” or “wow” deserves to be called words  is far beyond the scope of this article.

 “Perfect storm” – Unlike most over-used phrases, the phrase “perfect storm” can, to a degree, be specifically traced to the nightmarish storm which resulted from the Category 5, Hurricane Grace which swept up America’s eastern seaboard in October, 1991. For those Americans who were not yet born, who were not living on the Eastern seaboard, or who were not tuned into the Weather Station, it is more likely that the phrase joined their vocabulary sometime after the release of Wolfgang Petersen’s 2002 film, The Perfect Storm starring George Clooney and Mark Wahlberg. Since that time, the phrase has come to be associated with every collision of bad or even consequential events – from business deal mis-timings to personal or family catastrophes.

“To tell the truth” – Similar to the emphatic use of the word “honestly,” “to tell the truth” is the curious preamble phrase used by people in response to a question or line of inquiry. The inherent curiosity of the phrase stems from the fact that the parties to the conversation had presumably been expecting “the truth” all along. When the phrase is used, it seems necessary for the listeners to ask how far back they should go in the conversation in order to determine when the speaker was not “telling the truth.”

 “Whatever” – The ultimate word of dismissal used by every teenager — ah, but not my own — to the suggestion, comment, command, or, god forbid, criticism made to the former “apple of their eye.”

“You know” or “You know what I’m sayin.” This suggestion of embracement and implied agreement or understanding  is far too commonly used. More problematic, however, is that the response of “no, I don’t know” is often needed, but rarely heard. This author would be more than willing to expand further about the use and mis-use of these phrases, but “you know what I’m sayin.’

III.

Politics, Culture, and the Media

 “Anything—Gate” — The short-cut, tag phrase suggesting wrongful or illegal behavior which is used with respect to every political scandal which survives three or four news cycles. The origin of the phrase comes from Nixon’s “third-rate burglary” which occurred at Watergate back in 1972, but since that time the tag line has been evenly distributed amongst many politicians. It has been used for Reagan’s Irangate; Clinton’s Whitewater-gate Troopergate, and Monicagate; Bush’s waterboarding-gate and Blackwater-gate; Obama’s Deepwatergate; and Hilary Clinton’s Benghazigate,[5] In rare instances, the tag line is also applied in the context of state-level matters (such as New Jersey Governor Chris Christie’s Bridgegate) and sports (such as the New Orleans Saints’ Bountygate and New England Patriot’s Deflategate).

 

 “Drive-By Media” and “Mainstream Media” — While the origins of these dismissive phrase is hard to track, many credit (if that is the correct term to use) their use to the Rush Limbaugh Show which has been dominating the conservative talk shows for nearly 20 years now. “Drive-by media” is intended to imply that reporters talk more than they investigate. In other words, speed dominates over accuracy, and journalists of all varieties — reporters, commentators, talk show hosts – report what they can quickly see by merely “driving by” a story. “Mainstream media” is different. It does not connote the supposedly light quality of the news. Instead, it connotes that there is a “mainstream media” which is unified in its presumptions, biases, and political preferences, if not affiliations. In this sense, the “mainstream media” should be contrasted with the more objective, deep-investigative reporting of the non-mainstream media, who, you know, report the news in a “fair and balanced” manner.

 “Fake News” and “Alt Facts” and “Post-truth” — These phrases are arguably too new to be included in the list, however, it is the opinion of this author that they are here to stay. The terms “fake news” and “alt facts” can be viewed as mere extensions, logical or otherwise, of the long traditions of criticism implied by the phrases “drive-by media” and “mainstream media” discussed above. But in the opinion of this author, all of these phrases – “fake news,” “alt facts,” and “post-truth” are merely political code expressions of cynicism, and people’s too-ready dismissal of news which is counter to the desires or objectives of a given person or party.

“Middle America” – For at least three reasons, this phrase may be the most misleading of all of the over-used and tedious phrases of Modern America. The first reason is that, somewhat confusingly for some, Middle America is not a place. In other words, don’t think Nebraska; don’t think Kansas. The second reason is that there are serious questions as to whether Middle America ever really existed. At least historically Americans have not been known for their lock-step thinking. Instead, individualism and family, along with racial, ethnic, religious associations and income and wealth levels have been far more a component of one’s association with other’s than the blind  association of oneself with Middle America. The third reason is that even if a Middle America did at one time exist, it may not now. Much has changed. Loyalties and associations are increasingly negotiable. And definitions are, at best, elusive. Nevertheless, for reasons beyond the full understanding of this author, all politicians claim to represent Middle America wherever or whatever it is. It remains the tired phrase of every echo chamber and every political speech.

IV.

Honorable Mentions

For Most Over-Used and Tedious Words or Phrases

 

     Business Parlance and Office Speak         Conversational Parlance and Politics and Culture

All hands on deck                                                               Aha Moment                         I can’t even …

Back to the drawing board                                       Bang for your buck             It’s on my radar  

Data points                                                                       Boys will be boys                 Keep calm and …

Get the bal rolling                                                              Bucket List                         Let’s touch base

Guesstimate                                                                             Chin up                          Move the goal post

I don’t have the bandwidth                                       Could care less …                       My bad

Leverage                                                                              Cray cray …                         No brainer                

Elephant in the room                                                    It is what it is …                       On my plate

Optimize                                             Everything happens for a reason   Par for the course               

Value Added                                                    Hit the ground running         Thrown under the bus     

                                                               And the 2017 Special: You’re fired!!

 Closing

 There is no perfect way in which to end any essay – but let me try with this best-efforts, assemblage of words:

At the end of the day” and even though it was “beyond my pay grade,” this author  just “leaned in” to “work smarter, not harder “ in order to “actually,” “like” “literally” write this “awesome,”epic” essay in order “to tell the truth” about the over-used and tedious phrases of Modern America. “I’m just sayin’” that I have done so in a manner lying somewhere between “whatever” andoh wow.” “You know what I mean,” but, if I have failed, “no worry,” but maybe “your people can talk with my people” “in real time” or whenever.

And with that, please have a great, great summer …. …

– – –

Notes and Citations

[1]    Part of this section is paragraph is excerpted from Part I of Mack W. Borgen’s forthcoming Dead Serious and Lighthearted – The Memorable Words of Modern America (Vols I, II, and III). 

[2]    See, e.g. Munari, B., Speak Italian: The Fine Art of the Gesture (2005).

[3]    Swaim, B., “Managing the Decline of, Like, a Great Language,” The Wall Street Journal, April 20, 2015.

[4]   For a clever listing and charting of these and other examples of “nonsensical office speak,” see Green, E., “Me Talk Office One Day,” The Atlantic, May, 2014, p. 18.

[5]  See, Carter, G., Vanity Fair, August, 2010, p. 42.

 

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Legal Newsletter No. 4 – Blog No. 71 – Business Succession Planning – Property Insurance Coverage during Period of Vacancy – Hazardous Waste Liability – Drought-Based Legislation and HOAs – New Transfer of Death Deeds – The Elusive, but Surprising, Definition of “Small Business” by Governmental Authorities

Posted by Mack W. Borgen May 21st, 2017

Blog 71

May 21, 2017

By Mack W. Borgen
Santa Barbara, California
Copyright (c) 2017. Mack W. Borgen. All rights reserved. University of California at Berkeley (Honors, Economics); Harvard Law School; Author, The Relevance of Reason – Business Politics (Volume 1) and —  Society and Cultue (Volume 2) – As Advertised in The New York Review of Books and Recipient of Four National Book Awards
FORTHCOMING BOOKS:  Dead Serious and Light-Hearted – The Memorable Words of Modern America (Volume I (1957-1976); Volume II (1977-1993), and Volume III (1994-2015))
RESERVE YOUR COPY TODAY:  c/o Brody & Schmitt Publishers at mwborgen@live.com. Please merely indicate (i) the number of requested sets of Vols 1, 2 and 3; (ii) hard-copy or paperback sets, and (iii) your shipping address and contact information. Your order will be email-confirmed prior to shipment and billing.

Legal Newsletter No. 4

Recent California Legal Developments

Business, Contracts, and Real Property Law 

“The 20-Minute Legal Developments Review” 

                The following is a summary of recent statutory enactments and judicial decisions affecting California or California-based businesses, contracts, and real property. Except in rare instances, the scope of my Newsletters is limited to transactional matters — business, contracts, and real property law, and only California laws and cases are referenced. However, legislation and rulings from other jurisdictions are sometimes noted if they may have immediate or future applicability to California businesses or if they may serve as useful reminders or cautions.

These enactments and decisions are only briefly summarized below. Since most of these enactments and decisions are both blessed and burdened with numerous exceptions and conditions, their applicability to any specific matter should be closely examined. The following matters are not presented in any order of priority, and please know that your comments are always welcomed.

The Advisability of Business Succession Planning

By Owners of Privately-Held Businesses

The use of planning in the context of succession strategies is particularly important for small and medium-sized, closely-held businesses for several reasons. First, such businesses oftentimes have a highly centralized and pyramidal management structure and oftentimes lack a strong governing infrastructure. Relatedly, they oftentimes have a more limited depth of personnel – and especially management personnel — and frequently have far less resources and liquidity options than those of publicly-held companies. The highest risk is that in the event of the retirement or incapacity of one or more of the owners, the viability and value of the company can quickly diminish. Tax planning is certainly a component of this planning, but it is this author’s experience that, for example, estate and gift taxation issues are rarely the driving, let alone dominant, forces behind the need for succession planning. Instead, the driving forces more frequently relate to deriving (or even preserving or maximizing) value for one’s company in an orderly manner. This can oftentimes be done by the thoughtful packaging and marketing of a company (or interest therein) long before being triggered by one’s desire or need for retirement or by one’s unexpected death or incapacity. The owners and senior managers of a well-run company are the best informed and are in the best position to package, market, sell their company to third-parties in order to achieve the highest and best value of the business as an on-going concern. Such business dispositions or mergers can be complicated, frustrating, and even costly, but a successful, well-timed sale or merger of a business simultaneously can preserve the long-earned great value one’s company and provide for substantial familial wealth. The business alternative of merely closing one’s door and liquidating is oftentimes and by far the least advisable approach.

Continuance of Property Insurance Coverage during Periods of Vacancy

                Many commercial and homeowner insurance policies contained special provisions relating to vacancy of the subject property. Sometimes these provisions exclude coverage of a property which is or becomes vacant during the policy’s term (with exceptions for vacations during periods of construction or renovation). Courts in various jurisdictions have argued many aspects of these types of insurance denials. For examples courts have opined on  whether the term “vacant” means “devoid of contents” and what level of renovation activity is sufficient to constitute “occupancy.” A recent California Supreme Court case focused upon whether or not the “under construction” exception (assuring continuing insurance) required a “substantial and continuing presence of workers at the premises.” If a party has or may have vacant commercial or residential (e.g. second-hone) property, it may be prudent to confirm the sustained continuance of insurance during periods of vacancy.

Certain Parties NOT Liable for Hazardous Waste Cleanup of Real Property

                Fortunately for its many beneficiaries, the California Land Reuse and Revitalization Act of 2004 was recently extended to 2027. Under this now-extended legislation, innocent landowners, bona fide purchasers, and adjacent property owners may be absolved of (usually costly) hazardous waste cleanup liability if they qualify for immunity under the act.

California Drought-Based Legislation Affecting Homeowners, Homeowner Associations (HOAs), Common Interest Developments (“CIDs”), and Landlords and Tenants.

                A considerable amount of drought-based legislation was generated in the recent sessions of the California legislature. Examples of such legislation are as follows: (1) Artificial grass – cannot be banned by HOAs/CIDs rules or by architectural policies thereunder, and (2) Clotheslines – cannot be banned by HOAs, CIDs, or landlords (so long as the clotheslines remain in owners or tenants backyards or private areas). (Minor Note: Banning of drying from balcony railing can still be prohibited).

New Transfer on Death Deeds

                California has (finally) adopted legislation authorizing the use of transfer-on-death (TOD) deeds. TOD legislation was first adopted by Missouri in 1989, and the use of such TOD deeds is now common in many other states. Such TOD Deed allow owners of real property to transfer certain types of property simply, easily and without the burden and cost of probate proceedings upon the owner/transferor’s death. The uses of such TODs as estate planning and property conveyance tools are considerable. First, unlike joint tenancies, they create no present interest in the named beneficiary (or contingent beneficiaries, if they are also named in the TOD deed). Therefore, the use of a TOD deed has no triggering tax consequences since, for example, there is no completed gift for gift tax purposes. Second, since the beneficiaries are not on title and have no interest in the subject property until the owner’s death, the property remains beyond the risk and reach of the beneficiary’s creditors. Third – and possibly most importantly, such TOD deeds are revocable. Thus, the owner/transferor can change his or her mind at any time by recording a new TOD deed or by recording an instrument of revocation. Fourth, the use of such TOD deeds may be far simpler and less expensive than the use of revocable or other types of trusts. And, fifth, upon the owner’s death, the beneficiaries avoid the cost and burden of probate proceedings. Obviously such TOD deeds must be carefully prepared and there are some theoretical downside issues, but they can be very useful for death transfers of these types of properties. (Cautionary Note: Despite the adoption of the California’s new “trial-run” authorizing legislation, if such statute is not extended, then it will be repealed in January, 2012).

Fact of the Day

The Elusive, But Surprising, Definitions of “Small Business”

As Used by Governmental Authorities

                There are many definitions of “small businesses.” However, the government’s definitions of “small businesses” vary considerably from most colloquial uses of such term and vary from widely-shared, “mom-and-pop business” perceptions of the term. For example, even though the U.S. Small Business Administration has a complex system for defining “small businesses,” the commonly used rule of thumb is that a “small business” is generally a business which employs 100 people or less and has annual revenues of $100 million (!!) or less. Other governmental and regulatory agencies and legislation define small business as those employing less than 50 persons. Many business persons would not consider a $100 million company a “small business,” but by the use of these seemingly high revenue- and employee-based definitions, it is less surprising when political and economic debates frequently (but arguably misleadingly) reference that such “small businesses” comprise 95% of the U.S. economy.

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What “They” Say – The “Must-Read” Books Every Conservative and Every Liberal (Supposedly) Should Read

Posted by Mack W. Borgen January 24th, 2017

Blog No. 70 

January 25, 2017

By Mack W. Borgen
Santa Barbara, California
Copyright (c) 2017. Mack W. Borgen. All rights reserved. University of California at Berkeley (Honors, Economics); Harvard Law School; Author, The Relevance of Reason – Business Politics (Volume 1) and —  Society and Cultue (Volume 2) – As Advertised in The New York Review of Books and Recipient of Four National Book Awards
FORTHCOMING BOOKS:  Dead Serious and Light-Hearted – The Memorable Words of Modern America (Volume I (1957-1976); Volume II (1977-1992), and Volume III (1993-2015)
RESERVE YOUR COPY TODAY:  c/o Brody & Schmitt Publishers at mwborgen@live.com. Please merely indicate (i) the number of requested sets of Vols 1, 2 and 3; (ii) hard-copy or paperback sets, and (iii) your shipping address and contact information. Your order will be email-confirmed prior to shipment and billing.

                                  This Is What “They” Say

– The Books Every Conservative and Every Liberal Should Read –

(Supposedly)

In the course of my research for several of my forthcoming books, I uncovered a series of lists, variously named, but all addressing the same subjects – namely,“The Books Every Conservative Should Read” or “The Books Every Liberal Should Read.”

As will be evident, the list of books “that every conservative should read” is more expansive than the list books “that every liberal should read.” Evidencing the viral dominance and organization of conservative authors and associations, there are a number of conservative websites which include recommended reading lists for conservatives. Contrariwise, liberals are left wandering, and the liberal must-read website lists are scarce.

In addition, there are more books on the conservative “must-read” list. Conservatives have 63 must-read books, whereas liberals only have 49 such books. Possibly this suggests that conservatives are more wonkish. Possibly conservatives are more avid and devoted readers. Possibly this just means that conservatives issue more homework. It is impossible to know, and it probably doesn’t matter.

However, the sad truth is that the must-read lists are, in the opinion of this author, entirely reversed. In light of the acrimonious nature of political and social discourse in Modern America, it would be far more useful if conservatives read the books on the liberals’ list and liberals read the books on the conservatives’ list.  

But this will not occur. We live in a stubborn age. People, consciously or otherwise, are strongly drawn only to materials which support and reinforce their pre-conceived opinions. Without serious consideration, contrarian readings are quickly dismissed.

Nevertheless, these lists are offered for your enjoyment, review and consideration. Where applicable, I have inserted the sub-titles when such sub-titles were used by the authors. Such sub-titles are especially important in the world of non-fiction because the main titles are normally designed only for marketing and eye-catch appeal. The scope and purposes of the books are, therefore, frequently better revealed in such sub-titles.

All such lists are dangerously subjective, and this author believes that every reader would recommend both additions and deletions to the list. On the other hand, these “must-read” lists and these books are being “pushed” by various writers and websites. To that extent, they may be influencing to others; to that extent, they are important and relevant.

The list of conservative must-read books are compilations from various sources. All books are presented alphabetically, by author, within the respective chronological period in which the book was initially published. The date of such initial publication is indicated in parentheses.

A few books appeared on “must-read” lists of multiple conservatives. In these instances, the number of such multiple listings are noted. Only one book (Russell Kirk’s The Conservative Mind: From Burke to Santayana (1953)) appeared on four lists, but five other books appear on three separate conservative lists thus indicating some rough consensus.

Lastly, it is interesting to note that only Hamilton, Madison, and Jay’s The Federal Papers (1787-1788) and John Stuart Mills’ On Liberty (1859) appeared on both the conservatives’ and the liberals’ must-read lists.

– THE BOOKS EVERY CONSERVATIVE SHOULD READ –

 General or Annual Publications
Bible
Citizens Against Public Waste, The Pig Book: How Government Wastes Your Money (Published annually)
 18th Century
Burke, Edmund, Reflections on the Revolution in France (1790)
Hamilton, Alexander; Madison,James; Jay, John, The Federal Papers (1787-1788) (3 lists) 
19th Century
Bastiat, Frederic, The Law (1850)
Mill, John Stuart, On Liberty (1859)
Tocqueville, Alexis de, Democracy in America (1831) (2 votes) 
1900-1949
Hayek, Friedrich A., The Road to Serfdom (1944) (3 Votes)
Hazlitt, Henry, Economics in One Lesson: The Shortest and Surest Way to Understand Basic Economics (1946)
Lewis, C. S., The Abolition of Man (1943)
Mead, Margaret, Male and Female (1949)
Mises, Ludwig von, Human Action: A Treatise on Economics (1949)
Orwell, George, Animal Farm (1945)
Waugh, Evelyn, Brideshead Revisited, The Sacred & Profane Memories of Captain Charles Ryder (1945)
Weaver, Richard, Ideas Have Consequences (1948) (2 Votes) 
1950s
Buckley, William F., Jr., God and Man at Yale: The Superstitions of Academic Freedom (1951)
Chambers, Whittaker, Witness (1952) (2 Votes)
Jaffa, Harry, The Crises of the Houses Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (1959)
Kirk, Russell, The Conservative Mind: From Burke to Santayana (1953) (4 Votes)
Rand, Ayn, Atlas Shrugged (2 votes) (1957)
Voegel, Eric, The New Science of Politics: An Introduction (1952) 
1960s
Friedman, Milton , Capitalism and Freedom (1962) (3 votes)
Goldwater, Barry, The Conscience of a Conservative (1960) (3 Votes)
Hayek, Friedrich. A., The Constitution of Liberty (1960) (2 votes)
Laslett, Peter, The World We Have Lost: England Before the Industrial Age (1965)
Oakeshott, Michael, Rationalism in Politics and Other Essays (1962)
Strauss, Leo, Natural Right and History (1965) 
1970s
Solzhenitsyn, Alexandr, The Gulag Archipelago (1973)
Nash, George, The Conservative Intellectual Movement in America Since 1945 (1976) (2 votes) 
1980s
Bloom, Allan, The Closing of the American Mind: How Higher Education Has Failed Democracy and Impoverished the Souls of Today’s Students (1987)
Buchanan, Patrick, Right From the Beginning (1988)
Friedman, Milton and Rose, Free to Choose: A Personal Statement (1980) (3 Votes)
Gilder, George, Men and Marriage (1986)
Hollander, Paul, Political Pilgrims: Western Intellectuals in Search of the Good Society (1981)
Kirk, Russell (Editor), The Portable Conservative Reader (1982)
Murray, Charles, Losing Ground: American Social Policy, 1950-1980 (1984)
Skousen, W. Cleon, The 5000 Year Leap: A Miracle That Changed the World (1981)
Skousen, W. Cleon, The Making of America: The Substance and Meaning of the Constitution (1985)
Sowell, Thomas, Ethnic America: A History (1981) 
1990s
Bork, Robert, The Tempting of America: The Political Solution of the Law (1990)
Evans, Lee, The Conservative Revolution: The Movement That Remade America (1999)
Kristol, Irving, Neoconservaticism: The Autobiography of an Idea (1995)
Noonan, Peggy, What I Saw at the Revolution: A Political Life in the Reagan Era (1990)
Piper, John, Recovering Biblical Manhood and Womanhood: A Response to Evangelical Feminism (1991)
Steele, Shelby, The Content of Our Character: A New Vision of Race in America (1991) 
2000-2009
Baker, Dr. B. Leland, Tea Party Revival: The Conscience of a Conservative Reborn: The Tea Party Revolt Against Unconstrained Spending and Growth of the Federal Government (2009)
Buchanan, Patrick, Day of Reckoning: How Hubris, Ideology, and Greed Are Tearing America Apart (2007)
Frohnen, Bruce; Beer, Jeremy; Nelson, Jeffrey O. (Editors), American Conservatism: An Encyclopedia (2006)
Goldberg, Bernard, Bias: A CBS Insider Exposes How the Media Distort the News (2001)
Hanson, Victor, Mexifornia: A State of Becoming (2003)
Levin, Mark, Men in Black: How the Supreme Court is Destroying America (2005)
MacDonald, Heather; Dee, Ivan, The Burden of Bad Ideas: How Modern Intellectuals Misshape Our Society (2000)
Micklethwait, John, Wooldridge, Adrian, The Right Nation: Conservative Power in America (2004)
Schneider, Gregory L., Conservaticism in America Since 1930: A Reader (2003)
Schoenwald, Jonathan M., A Time for Choosing: The Rise of Modern American Conservatism (2001)
Sowell, Thomas, Basic Economics: A Citizen’s Guide to the Economy (2004)
Weigel, George, The Cube and the Cathedral: Europe, America, and Politics Without God (2005) 
2010 – 2015
Breitbart, Andrew, Righteous Indignation – Excuse Me While I Save the World (2011)
Cole (Stein), David, Republican Party Animal: The “Bad Boy of Holocaust History” Blows the Lid Off Hollywood’s Secret Right-Wing Underground (2014)
Coulter, Ann., Mugged: Racial Demagoguery from the Seventies to Obama (2012)
Sommer, L. B., The Next American Revolutionary War (2012)
Ward, Beth, Dying in Indian Country: A Family Journey from Self-Destruction to Opposing Tribal Sovereignty (2012)
Wikker, Benjamin, 10 Books Every Conservative Must Read: Plus Four Not to Miss and One Imposter (2010)
Primary Sources of Recommended Conservative Reading Books
D’Souza, D., “27 Books Every Conservative Should Read,” dinedsouza.com, January 18, 2013; Goodreads.com (Top 10 Books to Understand REAL Conservatism); Human Events (Conservative Website – Top 10 Books Every Republican Congressman Should Read, November 21, 2006) (Books receiving votes of 20 or more are included in the above list); Quinn, Justin, “Top 10 Nonfiction Books for Conservatives,” usconservatives.about.com; Wyler, G., Szoldra, “The 13 Books That Every Young Conservative Must Read,” Business Insider, March 29, 2013.

– THE BOOKS EVERY LIBERAL SHOULD READ – 

18th Century
Hamilton, Alexander; Madison, James; Jay, John, The Federal Papers (1787-1788)
Paine, Thomas, Common Sense (1776)
Paine, Thomas, Rights of Man (1791) 
19th Century
Mill, John Stuart, On Liberty (1859) 
1900-1949
Cardozo, Benjamin N., The Nature of the Judicial Process (1921)
Croly, Herbert, The Promise of American Life (1909)
Orwell, George, 1984 (1949)
Sinclair, Upton, The Jungle (1906)
Steinbeck, John, The Grapes of Wrath (1939) (Pulitzer Prize) 
1950s
Bradbury, Ray, Fahrenheit 451 (1953)
Galbraith, John Kenneth, The Affluent Society (1958)
Hofstadter, Richard, The Age of Reform (1955) (Pulitzer Prize)
1960s
Carson, Rachael, Silent Spring (1962)
Durant, William F. and Hannah, The Lessons of History (1968)
Friedan, Betty, The Feminine Mystique (1963)
Fulbright, Senator J. William, The Arrogance of Power (1966)
Harrington, Michael, The Other America: Poverty in the United States (1962)
Hofstadter, Richard, Anti-Intellectualism in American Life (1963) (Pulitzer Prize)
King, Martin, I Have a Dream/Letter from Birmingham Jail (1963)
Lee, Harper, To Kill a Mockingbird (1960) (Pulitzer Prize)
Morgenthau, Hans J., The Purpose of American Politics (1960)
1970s
Brown, Dee, Bury My Heart at Wounded Knee: An Indian History of the American West (1970)
Halberstam, David, The Best and the Brightest (1972)
Manchester, William, The Glory and the Dream – A Narrative History of America – 1932-1972 (1974)
1980s
Sheehan, Neil, A Bright Shining Lie: John Paul Vann and America in Vietnam (Pulitzer Prize)
Zinn, Howard, A People’s History of the United States: 1492-Present (1980) 
1990s
Bartlett, Donald; Steele, James, America: What Went Wrong? (1992)
Diamond, Jared, Guns, Germs, and Steel: The Fates of Human Societies (1997)
Goodwin, Doris Kearns, No Ordinary Time: Franklin and Eleanor Roosevelt – The Home Front in World War II (1994)
Hacker, Andrew, Two Nations: Black and White, Separate, Hostile, Unequal (1992)
Krugman, Paul, Peddling Prosperity: Economic Sense and Nonsense in an Age of Diminished Expectations (1994)
Lakoff, George, Moral Politics: How Liberals and Conservatives Think (1996)
Lind, Michael, Up from Conservatism: Why the Right Is Wrong for America (1996)
Phillips, Kevin, Politics of Rich and Poor: Wealth and the American Electorate in the Reagan Aftermath (1990)
Putnam, Robert D., Bowling Alone: The Collapse and Revival of American Community (1995)
2000 – 2009
Andersen, Kurt, Reset – How This Crisis Can Restore Our Values and Renew America (2009)
Chomsky, Noam, Failed States: The Abuse of Power and the Assault on Democracy (2006)
Frank, Thomas, The Wrecking Crew: How Conservatives Rule (2008)
Frank, Thomas, What’s the Matter with Kansas? How Conservatives Won the Heart of America (2004)
Gore, Al, An Inconvenient Truth: The Planetary Emergency of Global Warming and What We Can Do About It (2006)
Gore, Al, The Assault on Reason (2007)
Klein, Naomi, The Shock Doctrine: The Rise of Disaster Capitalism (2007)
Krugman, Paul, The Great Unraveling: Losing Our Way in the New Century (2003)
Krugman, Paul, The Conscience of a Liberal (2007)
Obama, Barack, The Audacity of Hope: Thoughts on Reclaiming the American Dream (2004)
Rosenblatt, Roger, Where We Stand – 30 Reasons for Loving Our Country (2002)
Wellstone, Paul, The Conscience of a Liberal: Reclaiming the Compassionate Agenda (2002) 
2010 – 2015
Hacker, Jacob S.; Pierson, Paul, Winner-Tate-All Politics – How Washington Made the Rich Richer – And Turned Its Back on the Middle Class (2010)
Lewis, Michael, The Big Short: Inside the Doomsday Machine (2010)
Stieglitz, Joseph E., The Price of Inequality: How Today’s Divided Society Endangers Our Future (2012)
Primary Source of Recommended Liberal Reading Books
Goodreads.com (Top Books to Understand Progressiveness in American social and political life) and Other Collected Sources

 

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Legal Newsletter – Recent California Legal Developments – Commercial Real Estate Acquisitions Due Diligence – Square Footage Representations – California Finance Lender Law – False Advertising of Competitor’s Prices

Posted by Mack W. Borgen January 13th, 2017

Blog 69

January 15, 2017

By Mack W. Borgen
Santa Barbara, California
Copyright (c) 2017. Mack W. Borgen. All rights reserved. University of California at Berkeley (Honors, Economics); Harvard Law School; Author, The Relevance of Reason – Business Politics (Volume 1) and —  Society and Cultue (Volume 2) – As Advertised in The New York Review of Books and Recipient of Four National Book Awards
FORTHCOMING BOOKS:  Dead Serious and Light-Hearted – The Memorable Words of Modern America (Volume I (1957-1976); Volume II (1977-1992), and Volume III (1993-2015)
RESERVE YOUR COPY TODAY:  c/o Brody & Schmitt Publishers at mwborgen@live.com. Please merely indicate (i) the number of requested sets of Vols 1, 2 and 3; (ii) hard-copy or paperback sets, and (iii) your shipping address and contact information. Your order will be email-confirmed prior to shipment and billing.

Client Newsletter

Recent California Legal Developments

Business, Contracts, and Real Property Law 

“The 20-Minute Legal Developments Review” 

The following is a summary of recent statutory enactments and judicial decisions affecting California or California-based businesses, contracts, and real property. Except in rare instances, the scope of my Newsletters is limited to transactional matters — business, contracts, and real property law, and only California laws and cases are referenced. However, legislation and rulings from other jurisdictions are sometimes noted if they may have immediate or future applicability to California businesses or if they may serve as useful reminders or cautions.

These enactments and decisions are only briefly summarized below. Since most of these enactments and decisions are both blessed and burdened with numerous exceptions and conditions, their applicability to any specific matter should be closely examined. The following matters are not presented in any order of priority, and please know that your comments are always welcomed.

Use of Due Diligence Checklist for Commercial Real Estate Acquisitions

Especially in the context of commercial real estate acquisitions, the methodical use of a due diligence (“DD”) checklist is important. In many instances, for example, it is prudent to require that the contract-specified DD period not commence until the seller delivers to the prospective buyer a list of DD documents.

The specific components of any such DD documents list will vary depending upon many factors such as the jurisdictional location of the property, the existing or intended use of the property, and the size of the transaction. However, the following checklist sets forth at least some of the DD documents which a prospective buyer may want to require in the context of larger commercial real property transactions:

  1. Most recent title policy or title commitment and legal description of property;
  2. ALTA survey and construction blueprints;
  3. Copy of (i) Zoning Compliance Certificate, (ii) all permits and certificates of occupancy, and (iii) all notices received from any governmental agency within last X years;
  4. All applicable CC&Rs or any other reservations, easements or exceptions to title and affecting the Property;
  5. Environmental Reports (including at least a Phase 1 Report);
  6. Copies of all (i) written leases and lease guaranties, if any, and (ii) service contracts;
  7. Accounting of (i) all rent and other income, all security deposits or other advance payments and (ii) all costs and expenses of or relating to the property.
  8. Copies of last 3 years’ real estate tax bills or any governmental charges or assessments;
  9. Schedule of any seller- or third-party-owned personal property in or on the property;
  10. Copy of existing insurance policies and any pending claims;
  11. Copy of any pending or known imminent litigation affecting the property.

Representations of Square Footage in Real Property Transactions 

Litigation based upon alleged misrepresentations relating to square footage remains relatively common in the context of buyer claims against both sellers and their real estate agents. This is especially so when the real estate agent serves as a “dual agent” for both seller and buyer. In these cases, there may exist a duty to both learn and disclose any and all material facts relating to the property – including square footage. Mere reliance upon public records may be insufficient. The party’s normally must disclose that which they know (including any variant measurements). However, it is also recommended that the seller and the seller’s agent require the buyer to independently verify the square footage and, relatedly, to cause to be completed any and all inspections which the buyer wishes to make – albeit at buyer’s expense and with an indemnity with respect to any damage to the property caused by such investigations. 

Avoid Being Required to Obtain License as a “Finance Lender” in California 

The California Finance Lenders Law (the ‘CFLL”) sets forth certain compliance and licensing requirements applicable to all parties deemed under the CFLL to be a “finance lender.” The law defines a “finance lender” as any person who makes or brokers consumer or commercial loans. For years, there has been an exemption for someone making five or fewer commercial loans in a 12-month period if the loans are incident to the person’s business. Effective January 1, 2017, a new law also exempts a person who makes only one commercial loan in a 12-month period from regulation under the CFLL. 

False Advertising 

A retailer who advertises sales products in comparison with other seller’s supposedly regular prices must be prepared to prove that the subject product was, in fact, offered by a third-party at such other regular price within the last three months. Last month, Los Angeles prosecutor filed false advertising and unfair competition charges against four national retailers for allegedly misleading shoppers by falsely over-stating the supposed original prices of designated products. State law prohibits advertising a former price unless it was “the prevailing market price” for the product within three months prior to the advertisement being so challenged.  

The Four Reminders for Construction Contractors (and Sub-Contractors) 

Construction is an almost definitionally challenging business due to, among other things, (i) the nearly inevitable (and sometimes unavoidable and un-ending) requests for design changes which are made by the property owner, (ii) the mid-construction discovery of unforeseen conditions, and (iii) sometimes the unavailability of certain construction materials. At a minimum and in order to protect the contractor, the following four recommendations are offered:

1 –           Condition all bids upon the execution of a formal construction contract in form and substance mutually acceptable to the property owner and the contractor;

2 –           Promptly document (at a minimum by email, photos, or daily reports) all change orders;

3 –           Comply with all contractual notice requirements with respect to such change orders; and

4 –           Pay all subcontractors promptly. NOTE: Although not required in California, in some states the failure to pay subcontractors and suppliers within a designated number of days can trigger an obligation to pay 18% interest surcharge plus legal fees. 

Facts of the Day

U.S. Net Exports of Natural Gas

For the first time in 60 years, the U.S. in 2016 exported more natural gas than it imported. The Department of Energy expects the U.S. to become the third-largest exporter of liquefied natural gas within about four years – behind only Australia and Qatar. Forbes.com. 

Holiday Bonuses

According to The Wall Street Journal and based upon a survey of 500 HR departments of firms of various sizes, approximately 75% of companies in the U.S. (up from 67% in 2015) planned to give workers holiday bonuses in 2016 — up from 67% in  2015. While median data would have been more meaningful, the average amount of such bonuses was expected to be about $1,100.

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Legal Practice Blog – December, 2016 Legal Newsletter – Recent California Legal Developments – Business, Contracts and Real Property Law

Posted by Mack W. Borgen December 16th, 2016

Blog No. 68

December 15, 2016

Client Newsletter 

Recent California Legal Developments 

Business, Contracts, and Real Property Law

“The 20-Minute Legal Developments Review” 

By Mack W. Borgen
Santa Barbara, California
Copyright (c) 2016. Mack W. Borgen. All rights reserved.
University of California at Berkeley (Honors, Economics); Harvard Law School;
Author, The Relevance of Reason – Business Politics (Vol 1) and —  Society and Cultue (Vol 2)
As Advertised in The New York Review of Books and Recipient of Four National Book Awards
Forthcoming Books
 Dead Serious and Light-Hearted – The Memorable Words of Modern America (Vols I, II, and III)
Direct Order Today: c/o Brody & Schmitt Publishers at mwborgen@live.com

The following is a summary of recent statutory enactments and judicial decisions affecting California or California-based businesses, contracts, and real property. Except in rare instances, the scope of my Newsletters is limited to transactional matters — business, contracts, and real property law, and only California laws and cases are referenced. However, legislation and rulings from other jurisdictions are sometimes noted if they may have immediate or future applicability to California businesses or if they may serve as useful reminders or cautions.

These enactments and decisions are only briefly summarized below. Since most of these enactments and decisions are both blessed and burdened with numerous exceptions and conditions, their applicability to any specific matter should be closely examined. The following matters are not presented in any order of priority, and please know that I always welcome your comments.

SEC Adoption of New Rules Relating to Intrastate and Small Offering Capital Raises

(Including Crowdfunding)

New SEC Rules have finally been adopted which expressly authorize capital raise solicitations (including Internet solicitations) of $5.0 million in any 12-month period (up from $1.0 million) so long as solicitations are limited to persons residing within the state where the issuer was formed or has its principal place of business. The new rules also repeal Rule 505 which had previously limited such offerings to accredited investors and only up to 35 other persons who do not meet the financial sophistication standards. The SEC adopted a troublingly-vague “reasonable belief” standard for determining remaining the residence of the purchaser/investor whereby the issuer may be able to rely upon a mere written representation from the prospective investor as to such investor’s residency. 

Employment Agreement – New Restrictions upon Choice of Law and Venue Requirements

With respect to all employment agreements (including those which are new, modified or extended on or after January 1, 2017), the employers’ right to designate a choice of law or venue other than California has been severely limited. With respect to any employee who primarily resides and works in California, employers shall be precluded from requiring that employment-based disputes be adjudicated in any jurisdiction or under any choice of law other than California. These California law and venue requirements apply to both litigation and arbitration, but they do not apply to independent contractor agreements.

— Certain Non-Compete Agreements Enforceable –

Continued Permissibility (and Advisability) of Trade Secrets Agreements

Unlike most other states, non-compete agreements with respect to employees and independent contractors are illegal in California. However, trade secrets agreements can sometimes protect an employer in similar ways, and trade secrets and confidentiality agreements are enforceable. In addition, non-compete agreements executed by owners of a business (corporations, LLC etc) are enforceable in the context of selling one’s interest in a business. As noted above, in the context of employee non-compete agreements, California’s rules are different than those of most states. In California they are not enforceable, and an employee cannot be terminated for refusing to sign such an agreement. 

Social Security – A Dangerous Alchemy of Math and Gambling

Most social security decisions rely upon a dangerous alchemy of math and gambling. None of us can see the future. None of us know our life expectancies. Nevertheless, the Social Security Administration mandates age-based, monetary decisions. This subject is complicated. There are many factors to consider, and there are exceptions. But one aspect of social security is here addressed because of the proliferation of poorly-considered, inadequately-detailed articles about when one should start drawing social security. Basically, the articles too often advise American’s not to take “early” age 62 social security – although appr. 73% of Americans still do. The articles recommend that social security be deferred until one’s full entitlement age which for most Baby Boomers is age 66. The most commonly cited reason for this recommended deferral is the roughly 8% per annum increase in social security payments if one waits until what is known as “Full Retirement Age.” However, this analysis is frequently too simplistic. Sometimes it is dead-wrong. Very summarily, the decision should depend largely upon whether or not one plans to continue working after age 62. If you do, then deferring social security normally would be advisable because payments will be decreased if your annual employment income is over a small annual income amount – about $16,920 as of 2017. However, if you don’t plan on working, then it may be advisable not to wait. Admittedly, a lower monthly amount will be paid (aggregately about 32% each month less than if you had waited until you were 66), but in those four years (from age 62 to 66) you will have received 48 months of checks. Thus, the cross-over age at which the age 66 aggregate monthly increases exceed your 48 months of received payments is about age 79! This is a complicated and important decision, but the math must be run. If you die before you’re 79, you may win. If you live past 79 you may lose, but – very bluntly, due to one’s life condition, the presence of long-term care insurance or annuity receipts – such monthly loss may be inconsequential. One other, little-known factor to consider is that if at age 62 you have a minor child living at home, you will; receive an additional, double-up check for the minor until the minor reaches age 18. If you delay payments until age 66, such payments are non-recoverable.

Commercial Leases – New Disability Access Obligations for Commercial Landlords

Previously, a commercial landlord was required to advise a prospective tenant (a) whether or not the subject premises has been inspected by a Certified Access Specialist (“CASp”) and (b) if so, whether the premises had been determined to meet all construction-related accessibility standards. These obligations have now been expanded with respect to all commercial leases entered into on or after January 1, 2017. If a CASp report exists, but no modifications or alterations have been completed, the landlord must deliver a copy of the report to the prospective tenant prior to the execution of the lease. Otherwise, the tenant has a right (albeit a short 72-hour right) to rescind the lease. If corrective modifications had been noted in the report, then there also now exists a presumption that such modifications are the responsibility of the Landlord unless the parties otherwise agree. Lastly, if the premises have not been issued a disability access inspection certificate, then the tenant must be advised (a) that it can request such inspection and (b) that the cost and resulting repairs, if any, shall be borne as agreed between the tenant and the landlord. From a tenant’s perspective, it should be noted that the tenant’s “as-is” acceptance of the premises may result in the tenant later being responsible for post-lease commencement CASp inspection-mandated corrections.

Fact of the Day 

Median Age — U.S. and Comparisons with Other Selected Countries and World Regions.

The U.S. median age is 36.8 years old (compared with the global median age of appr. 28 years and the U.S. median age of 35.3 years just 12 years ago in 2000). The nations with the highest median ages are Monaco (50.5) and Japan (45.9). A total of 27 countries (nearly all European countries) have median ages above 40 years. Conversely, 21 countries (nearly all in Africa or the Middle East) have a median age of less than 18.5 years!! U.S. Census Bureau and The Economist, Pocket World in Figures—2016. See also, The Economist, December 22, 2012 — January 4, 2013, p. 102, citing Pew Research Center. Excerpted from Mack W. Borgen’s forthcoming 2017 Edition of his award-winning book The Relevance of Reason – The Hard Facts and Real Data about the State of Current America (Vol. 1 – Business and Politics).  

Summary of Prior Topics

November 15, 2016 Newsletter

Corporate “Veil-Piercing” May Not Be Limited to Shareholders or Other Owners of Entity

Employment Law and Pay Inequality – New Legislation

Prop 13 Tax Reassessments

Barring of Certain Non-Disparagement Agreements – California’s New “Yelp Bill”

Uber-Drivers Are “Employees” — Not “Independent Contactors”

Facts of the Day

U.S. Exports as Percentage of World Exports and As Percentage of U.S. GDP (Trade Dependency)

 

 

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Legal Practice Blog – Recent California Legal Developments – Business, Contracts and Real Property Law

Posted by Mack W. Borgen November 11th, 2016

Blog No. 67

November 12, 2016

Legal Newsletter 

Recent California Legal Developments 

Business, Contracts, and Real Property Law

“The 20-Minute Legal Developments Review” 

By Mack W. Borgen
Santa Barbara, California
Copyright (c) Mack W. Borgen. All rights reserved.
University of California at Berkeley (Honors, Economics); Harvard Law School;
Author, The Relevance of Reason – Business Politics (Vol 1) and —  Society and Cultue (Vol 2)
As Advertised in The New York Review of Books and Recipient of Four National Book Awards
Forthcoming Books
 Dead Serious and Light-Hearted – The Memorable Words of Modern America (Vols I and II) –
Direct Order Today: c/o Brody & Schmitt Publishers at mwborgen@live.com

The following is a summary of recent statutory enactments and judicial decisions affecting California or California-based businesses, contracts, and real property. Except in rare instances, the scope of my Newsletters are limited to transactional matters — business, contracts, and real property law, and only California laws and cases are referenced. However, legislation and rulings from other jurisdictions are sometimes noted if they may have immediate or future applicability to California businesses or if they may serve as useful reminders or cautions.

These enactments and decisions are only briefly summarized below. Since most of these enactments and decisions are both blessed and burdened with numerous exceptions and conditions, their applicability to any specific matter should be closely examined. The following matters are not presented in any order of priority, and please know that I always welcome your comments. 

Corporate “Veil-Piercing” May Not Be Limited to Shareholders or Other Owners of Entity

In certain circumstances a claimant seeking redress from a corporation or other business entity may try to “pierce the corporate veil.” This concern is normally limited to the corporate shareholders or other entity owners. However, in some instances courts may allow claims to be made against non-owners (e.g. officer or employee of the entity) if the claimant can show that such non-owner exerted requisite control and dominance of the entity and misused the entity structure. 

Employment Law and Pay Inequality – New Legislation 

New legislation (enacted Sept., 2016 and effective Jan., 2017) amends the California Fair Pay Act and prohibits an employer from relying upon an employee’s prior salary to justify a disparity in salaries between similarly-situated employees. In other words, the common practice of using a job applicant’s salary history as a basis for current salary may now be unacceptable. Instead, if there are employees within the company performing similar services (even if they have different job titles), then the salaries must be comparable. In addition, the employer cannot rely upon the “same establishment” standard, and intra-company salary comparisons must be made with respect to all of the employer’s offices and facilities. 

Prop 13 Tax Reassessments 

For nearly 40 years California’s Proposition 13 has limited the annual increase in a property’s assessed value to a maximum 2% annual inflation factor. Because real property is re-assessed to current fair market value upon a change of ownership, extreme caution should be used with respect to all potentially triggering change-of-ownership transactions. While double-checking with tax counsel is nearly always advisable — the following are a few reminders:

  1. Upon the recordation of a deed, a Preliminary Change of Ownership Report must be filed. On this form the exclusion from the change-of-ownership valuation must be noted. If the report is not filed or if no exclusion is checked on the form, then the property will be re-assessed.
  2. Upon the death of any owner of California real property (whether the deceased was a California resident or non-resident and regardless of whether or not the property was held in trust), the county assessor office must be notified within 150 days. Substantial penalties can be imposed if such notification is not timely made.

C .           If the property is transferred to an entity, a change of ownership will occur thereafter only if there is a change of control – i.e. a new party acquires more than 50% interest in the entity.

D .           If the property is co-owned by persons, the property can be transferred to an entity so long as the percentage ownership does not change. Under this proportionality rule, even if a change of ownership reassessment is not triggered upon the initial transferring of the property to an entity, a re-assessment can be triggered if cumulatively more than 50% interest in the entity is transferred over time. 

Barring of Certain Non-Disparagement Agreements – California’s New “Yelp Bill” 

In a clumsy attempt to deal with modern marketing practices and customer-comment postings on websites such as Yelp, in September, 2016 California enacted what has been referred to as the “Yelp Law.”

This new law is in response to the fact that over the last several years more and more businesses have been requiring customers to sign non-disparagement agreements. Under such agreements the business purports to reserve the right to sue any customer who writes a negative review about their business. While non-disparagement provisions are common in many other types of business contracts (e.g. sale-of-business agreements and most forms of settlement, compromise, and mutual release agreements), their use in the business-customer context is relatively new.

Under the new act, business contracts cannot limit customer’s right to make statements about the business and may not require customers to waive their rights to make such customer opinion statements. The act provides for civil penalties ranging from $2,500 to $10,000. It is this author’s opinion that this matter is far from being resolved since, at a minimum, it is difficult to fully reconcile this type of legislative prohibition with business’ long-standing rights to seek damages for defamation and, arguably for the more creative, interference with contractual relations or other business tort claims.

NOTE: Adding insult to injury, the Ninth Circuit also recently held that Yelp could coercively require businesses to help pay for Yelp-provided marketing or suffer the consequences of its hiding positive reviews.

Uber-Drivers Are “Employees” — Not “Independent Contactors”

(Out-of-Jurisdiction Case)

The New York State Department of Labor recently concluded that two former Uber drivers were employees for purposes of the state’s unemployment insurance plan. This is another example of the constant, dangerous, and costly risks of mischaracterizing employees as independent contractors. Such mischaracterization of workers as independent contractors is going to continue to be challenged by governmental agencies seeking additional tax revenues and by plaintiff’s lawyers seeking to retrieve wrongfully denied minimum wage and overtime pay for such misclassified employees.

Facts of the Day

U.S. Exports as Percentage of World Exports

and

As Percentage of U.S. GDP (Trade Dependency)

The U.S. exports 11.4% of the total world exports of goods, services, and income. It is second only to the Euro Area (14.5%) and followed closely by third-place China (10.4%), then Germany (7.2%) and Japan (4.0%). The U.S. is the 4th least trade dependent nation with foreign trade constituting only 11.6% of its GDP. Excerpted from Mack W. Borgen’s forthcoming 2017 Edition of his award-winning book The Relevance of Reason – The Hard Facts and Real Data About the State of Current America (Vol. 1 – Business and Politics) citing The Economist: Pocket World in Figures, 2016 Edition.

Credits and Acknowledgements. My appreciation is expressed to Thompson Coburn LLP; Mintz Levin Cohn Ferris Glovksy and Popeo PC; Jackson Lewis PC; Mr. Mark Wilson; and Constangy Brooks Smith & Prophete LLP for their respective summaries of some of the above-described legal developments.

 

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The Glimpsing of America – 9,506 Miles Across America – And Back

Posted by Mack W. Borgen August 22nd, 2016

Blog No. 66

August 23, 2016

A GLIMPSING OF AMERICA

– – –

Observations from the Road

By Mack W. Borgen
Santa Barbara, California

Copyright (c) Mack W. Borgen. All rights reserved.

University of California at Berkeley (Honors, Economics); Harvard Law School;
Author, The Relevance of Reason – Business Politics (Vol 1) and —  Society and Cultue (Vol 2)
As Advertised in The New York Review of Books and Recipient of Four National Book Awards
Next Forthcoming Books
 Dead Serious and Light-Hearted
– The Memorable Words of Modern America (Vols I and II) –
Direct Order Today: c/o Brody & Schmitt Publishers at mwborgen@live.com

A GLIMPSING OF AMERICA

– – –

Observations from the Road

Preface

9,506 miles. 57 days.

Most of my writings are more serious in nature. Although I try to infuse a touch of humor and a degree of levity into my writings, they usually focus upon the serious challenges and somber realities of our country. This article is different.

This article is intended to be light-hearted and fun. It is based upon – or at least inspired by — my family’s travels across America this summer. Across the Southwest to San Antonio and New Orleans. Up to Nashville, the Great Smokies, and Washington, DC. Through Pennsylvania and New York to Niagara Falls. Over to Chicago and Madison. Across the Great Plains to the Black Hills. To my family’s beloved Montana, and finally home to Santa Barbara.

Every family’s journey will vary. As it should. Based upon differing interests, varying levels of patience, the stubborn demands of work and clients, and the constraints of health and budgets, every family will tailor its own trip. Every family will drive its own roads, go to different destinations, and see different things. But regardless of which path we take across this country, certain things about America come into view. This article won’t address the price of gas, preferred roads, family foibles, or the usual travel trivia. But certain observations about America may be useful for understanding our country. And certain surprises and curiosities may be worthy of note – or at least may be too interesting to ignore.

Some observations are light-heart and humorous. Some are more somber and serious. But they are not based upon academic study. They are merely that which was observed through the windshield of a car; through the travels of one traveler, this author.

Many of you know this country well. Many of you may have travelled more extensively and with better skills of observation and memory than those of this author. As I hope will be obvious from this writing, I honor you. Indeed, with your permission, I envy you.

Introduction

For most people “glimpsing” is a rarely used word. But it should not be. It is too accurate a word to be ignored. It is how many Americans conduct their lives. Amidst the time pressures of living, we only have time to glimpse the news; to glimpse the Internet; to glimpse what is going on. At times, our kids glimpse their homework – just like we did when we were their age.

Most of us have neither the chance nor the privilege to study and stare, to dig and delve, to ponder and reflect. Instead, we see what we can see — usually at high speeds and only for brief periods of time.

Thus, my selection of the word “glimpsing.” It is simultaneously imperfect and precise. It correctly implies both observation and brevity.

The obvious problem of glimpsing America is that our country is so big – 3,120,000 square miles in the continental U.S. alone – but who’s counting in the middle of Nevada, in the expanse of West Texas, or in the vastness the Great Plains.

Interestingly, at least one form of glimpsing America has already been tried. In Rick Smolan’s 1993 book, A Day in the Life of America, “200 of the world’s leading photograph journalists” in hundreds of different settings throughout the country sought to “capture the life” of our nation through pictures. They were all taken on a single day – May 2, 1986.[1]  Trying to capture the life and condition of America with words is in some ways more challenging. But allow me to try.

I.

Resetting the Narrative about America

 There are several, more specific purposes for this article. The first purpose is to suggest a modest resetting of our narrative about America – if even for a few moments, in order to help us see our country in a different way and from a wider perspective.

The problem is that the beauties of America are too easily lost in the headlines. They remain buried under the headlines. America gets itself lost amidst the news about crimes and tragedies, about the state of our economy, and the comings and going of celebrities. Especially in this election year, the beauties of America have also become lost amidst the anger and discord of our political theatrics. Many of these things are important, but not today. Today — or at least this article — is about that which is good and beautiful in the country.

Thus, the first and over-arching purpose of article is to try – if even for just a moment — to rebut the news and to reset the narrative about America so that we can see our country and its peoples in a slightly different way. A slightly better way.

II.

Traveling the Roads of America

The second purpose is to humbly encourage each of us at some point in our lives to discard air travel for awhile and instead travel the roads of America.

Certainly travel is tough. As mentioned above, travel is always subject to the constraints of one’s time, money, jobs, health, and schedule. Like you, this author has suffered all of these constraints at different times in my life. However, I am also reminded of my mother’s repeated adage when I was young — that we will all run out of time long before we run out of money. In my case, it’s too early to know if this is true. But I am getting older, and I fear it may be.

This article is intended to share, but not to preach, and sharing one’s observations about this country is at best a risky and humbling task. Partly this is because seeing America is almost impossible. The very act of traveling serves up its own limits, and this author knows that we did not do it perfectly – not remotely so. We did not see everything.

Our feet got tired. Our energies waned. Our stomachs got empty. And we made mistakes. For example, to go to Virginia and not see Jefferson’s home, Monticello, is a sin. And we sinned. To travel near Philadelphia and not stop is a sin. And we sinned.  But we tried.

We saw more than we can understand; more than we will be able to remember. And there was always more that we wanted to see. Other than being barred by money, logic, and my wife, I relentlessly wanted to buy a cabin in nearly every state we saw (o.k. — Central Nevada and West Texas not so much). But I suggest that one must travel America — by its roads. It remains the only way to see America.

The days of horseback and wagon train are long over – now just the things of old movies and dated lore. Regrettably, only a very few parts of America can be seen by rail. And America cannot be seen by air.

Many people – especially my compatriot traveling professionals – have criss-crossed our country many times by plane. They come to know Manhattan and DC; Dallas and Atlanta; Chicago and Los Angeles; Hilton Head and Jackson Hole; Carmel and the Hamptons. But they don’t know America — because it cannot be seen from 35,000 feet in the air. America cannot be absorbed at 550 miles per hour. America needs more than an impatient glance out of the cramped window of a plane.

Thus, the only hope of seeing America is by road. One mile at a time. That is kind of a law. That is kind of a fact, and such facts are stubborn, implacable, and, yes, inconvenient. But such travel will be worth it – for all the reasons suggested in the next section of this article.

III.

Verbing America

Excepting for some of Ken Burns’ films or Stephen Ambrose’s writings, no one really has the interest or patience to read someone else’s travel log. Words never do such a story justice, and life is far too short.

But, humbly and quickly, allow me to offer up the following verbs to describe the country that is ours; the county that is (still) there. As implied by use of the verbs below, if a country can be “glimpsed,” it seems that it can also be “verbed.”

With that in mind — and again remembering that your trip would always be different than ours – it may at least possible for anyone traveling the roads of America …

To feel

The pushy winds off Lake Michigan and the gentle winds of the Great Plains;

The quiet beauty of the Finger Lakes;

The isolation of Little Big Horn; and

The dry heat of the desert and the thick humidity of the South.

To wonder:           

At the beauty of Niagara Falls and the size of the Great Lakes;

At the say-what uniqueness of the Corn Palace and the relentless advertising of Wall Drug;

The carved faces of Rushmore; and

The sheer audacity of Crazy Horse.

To see:

The natural beauty of the Red Rocks of Sedona and the thick forests of the Smokies;

The rivers and streams and lakes and falls — from the Appalachian to the Rockies —

From the Rio Grande to the Mississippi;

From the Potomac to the Susquehanna;

From the Ohio to the Yellowstone;

The winding beauty of the Natchez Trace and the Blue Ridge Parkway;

The rust and trouble along the cities along Lake Erie;

The imposing beauty of Vanderbilt and Georgetown and Notre Dame;

The dated majesty of Southern plantations and the elegance of the Biltmore in Asheville; and

The tidy brownstones of Georgetown and the big-lawned houses of the East.

To endure:

The sheer width of Texas;

The roadside absurdity of America’s box stores;

The occasional crowds and the lines of admission; and

Even the tour buses that clutter some of our major cities.

To appreciate:

The magnificence of the Smithsonian in DC and the Field Museum in Chicago;

The simple beauty of the Washington Monument and the Lincoln Memorial;

The cleverness of the Spy Museum and the creativeness of the Newseum in DC;

The brilliance of the thousands of exhibits and displays; and

Possibly most of all, the courtesies of both locals and fellow travelers. Everywhere.

To listen to:

The pounding of the “L” trains in Chicago;

The heavy silence of the swamps;

The Dixieland in New Orleans and the Country in Nashville; and

The sounds of the distant train whistles meandering their way through the west.

To taste:

The jambalaya in Louisiana;

The deep dish in Chicago;

The cheese-everything of Wisconsin; and

The Flathead Lake cherries of Montana.

To calorie your way through:

The cafes and diners and the Dairy Queens and Subways;

The Blue Dog in Lafayette and Ted Bulletin’s in DC;

The Echo Lake Café in Bigfork; and

And, from time to time, the hundreds of fine foods and fine restaurants along the way.

To wander

Through the shops and stores and markets and malls;

Through the hiking trails of the Great Smokies;

Along the Potomac River; and

Through the (wonderful) state parks.

To Watch:

The prairie dogs and the buffalo herds in the Blacks Hills;

The size of elk, the grace of antelope, and the surly scorns of coyotes;

And different kind of people animals –

The everywhere joggers in DC;

The hustlers and bustlers in Chicago’s Loop;

And the friendly smiles at the street fairs in Madison.

And on a personal note — if you have time and energy left over, you can always step over desert snakes in Borrego Springs; turn over road kill armadillos in West Texas, catch rainbow trout in the Black Hills and trap river turtles in Montana.

It’s a big country. It’s an open country. It’s inviting.

IV.

Road Surprises, Observations and Discoveries

The road has surprises. Sometimes they are disquieting; even disturbing. Sometimes old memories are re-kindled and old beliefs are confirmed. But sometimes new observations and discoveries are made. As noted at the beginning of this article, “glimpsing” is just that — but, as in life, first impressions have a unique form of resilience. First impressions, though sometimes wrong, can linger and matter.

The following is a list of seven such road surprises, observations and discoveries. They are not listed with any order of priority. They are not offered with adamancy. Instead, they are tendered in good spirit for your consideration. Possibly they are accurate. Partly they merely evidence why PhDs. are not passed out for anyone’s “glimpsing” – no matter how well-intentioned or sincere.

No. 1.

Diversity

The diversity of our national community is huge. Such a statement is certainly not profound, but it is worth remembering as a conversational mantra. Such diversity includes far more that mere differences in our races, ethnicities, national ancestries, religions and religiosity, speech patterns or accents, cuisine, employment, or wealth. Complicating matters and excepting only Louisiana, such diversity cannot be drawn along any state lines or regional association.

The diversity is deep and significant. It underscores everything. It is one of the boundaries of our national conversation. It mandates caution, deserves acceptance, and requires certain patience as we talk with one another.

It is gently suggest that the most significant diversity of our people rests upon the nature and location of their community — large or small; urban or rural; isolated or centralized; mountainous, farmland, or desert.

No. 2.

Size

The country is huge. Again, there is little news in this statement. However, like our country’s diversity, it cannot be stated often enough. The reiteration of this statement can also serve as a constant reminder that our country cannot be seen from the air. America is not a 5-hour flight.

Most people measure distances in the context of their own lives — minutes to town; minutes to the store; the length of one’s work commute, and so forth. This is understandable, but it is problematic in that focusing upon the size of our country is rarely a component of our thinking.

The politicians and the press constantly speak of one America. Performers have road trips and sports teams have national game schedules. BYU plays Notre Dame; Michigan plays Stanford; the New England Patriots play the Wherever-They-Are-Today Raiders.

Even more important, neither our television nor our Internets are affected by distance. One can click on New York as fast as they can click on Seattle. There is no burden of miles.

Similarly, local papers are on a death graph. It is hardly surprising that USA Today now has the highest national circulation with its 2,278,000 daily readers – no longer a local paper such as The New York Times or the Chicago Tribune or The Atlanta Journal or the Los Angeles Times. .

It is just too easy to forget the impact of America’s size. It is just too easy to believe that America is America – albeit with touches of regionalism. No one, including this author, counts tangible miles anymore. We count flight connections. We compare travel times. But it is the tangible miles that matter because at the end of those many miles, people see different Americas. People feel different Americas.

I have written before about the difficulty in absorbing the meanings of large numbers. See, e.g. Mack W. Borgen Blog No. 59 (June 16, 2015) at www.mackwborgen.com. But the meaning and the extent of America’s size presents unique challenges.

To give a sense of order of magnitude, one must think far beyond the 50 states and four times zones.[2] There are 3,007 counties, 64 parishes, and another gaggle of boroughs, census areas, or other county equivalents in America. Our country has 123,439 lakes and more than 250,000 rivers with 3,500,000 miles of shoreline. Depending upon definitions, there are from 8-14 major mountain ranges in the U.S. There are 58 national parks with another 6,624 state parks. And although our measly who’s-counting 9,506 miles seemed like a lot of driving at the time, our trip covered only about 1/3rd of 1% of our country’s 2,678,000 miles of paved roads.

But the most staggering number is the number of square miles — 3,119,885 square miles in the continental U.S. — roughly equivalent to 2,400,000 Central Parks, 6,203 Los Angeles’, or 2,574 Rhode Islands.  These numbers lead to my third observation.

No. 3.

More Openness and Less Urbanized Than One Expects

America thinks of itself as urbanized. By many measures, it is. In fact, as of 2010, 82% of the U.S. population now lives in an urban area “as compared with approximately (50%) worldwide and 78% of the inhabitants in the more developed regions.” Borgen, M., The Relevance of Reason – Society and Culture, pp 180-181 citing The Worldwide Factbook at cia.gov. But this 82% U.S. urbanization percentage can be misleading.

Such urbanization incorrectly may suggest that America is now paved; that our cities now abut one another with relatively little remaining open land. One does not need to drive across the expanse of West Texas to know that is false. Much of the Great Plain remains. There are thousands of open acres in Wisconsin, in central and upstate Pennsylvania and New York, up and down the Appalachian and Rocky Mountains. Wyoming and Montana remain beautiful states – but few people are there. The population of the State Montana is still less than the population of the City of San Diego. This author does not suggest that this is a good fact or a bad fact. But it remains a fact.

There are many reason why people remain tied to their large cities – family, employment, health care –, but it is not because there are no options. It is not because there is no land left. To the contrary, there are hundreds and hundreds of small and medium-sized communities in which to live throughout this country.

No. 4.

Beauty

Everyone has their own definition of beauty. Everyone has their own definition of that which is exciting and that which is not. This author is a Westerner, but I went to law school in Cambridge. As a young man, I remember arguing with a classmate about the West. I have long forgotten his name, but I remember our conversation – maybe not like yesterday, but certainly like last week.

He was born and raised in New York City. He loved New York City. But he saw no reason to see the West. New York had a few buffalo in its zoo. A deer is a deer. A wolf is a wolf. Mountains are bumps in the way, and everything could be seen on television or in National Geographic. End of story. He saw no reason to ever head west – although as a friend and in gentle concession he promised me that sometime in his life he would head west … or at least as far “west” as Buffalo, New York. I don’t know if he ever did.

But a special reference to the beauty of America has to be included in any listing of observations. The nature of the beauty was diverse – from the roadside flowers to the skyline of Chicago; from the red rock formations of Sedona to the thick forests of the Smokies; from the Lincoln Monument to the hundred miles of extraordinary scenery (so little recognized – why?) along Pennsylvania’s Susquehanna River.

In here closing, a special mention is made of the small towns and picturesque communities. They remain. They are not far from the urban sprawls of the large cities. But, again, they remain. They are not waiting for us. Maybe we should all be there. Someday.

No. 5.

Dramatic Variances in Tidiness, Courtesy and Manners

Tidiness, courtesy, and manners – these are important things, and the West loses. Badly.

It gives me no pleasure to report that in the context of tidiness, courtesy, and manners, the West is far behind the rest of the country. I believe that any objective observer would note conspicuous distinctions between the West and the rest of the country. It is beyond the scope of this article and the knowledge of this author to know why, but the West is by far less tidy. Westerners are far deficient in their courtesies and manners.

Generalities are inherently dangerous, but they can carry a seed of truth. New England has always had a reputation for its tidiness – mowed yards and tended gardens. And while not ignoring the dark dimensions of its history and culture, the South has always had a deserved reputation for its slower ways and “Southern charm.”  But it is more than that. Far more than that.

One can argue that the dramatic variances do not matter. Certainly there is crime in New Orleans. There are jerks in South Bend. There is ugliness in Asheville. But impressions matter. And small things matter – opening doors, saying “thank you,” taking one’s turn, and standing in line.

There is a theory in the context of criminology known as the “broken windows theory.” The theory suggests that monitoring small crimes (vandalism, public drinking, toll-jumping, and graffiti) helps to create an atmosphere and norm of lawful order which in turns helps to diminish the occurrence of more serious crimes. Possibly there is a parallel within the social culture of our communities as well.

In other words, peoples’ manners and courtesies do matter. Mowing yards and tending gardens do matter. They all contribute to the appearance, the spirit, the very pride and sense of community.

Although rarely articulated, there is a saddening acceptance in the West, however one wishes to vaguely define even that term, that one out of every ten homes in most communities will be junked up. One in ten houses will be untended and unkempt — with cluttered yards, too many cars, or pealing paint. But that is less the case in many of the Eastern, Northeastern, and Midwestern communities. There – nearly all of the yards are mowed. One after another. There – nearly all of the trash is removed. There – nearly all of the gardens are tended. In these communities, exceptions do prove the rule. Anyone driving through mile and after mile, town after town, neighborhood after neighborhood, block after block … can notice the tidiness. Not perfect; but better. It doesn’t take a lot of glimpsing to appreciate the difference.

The varying styles of behavior are the same. Once again, there are jerks everywhere, but the presentation of small manners and the extension of small courtesies are more commonplace in the East, the South, and the Midwest. It is a risky generalization … but the examples were everywhere.

No. 6.

The Somber Cautions and Sobering Embarrassment

of

Modern American Commercialism, Construction, and Architecture

 Jobs, work, employment, GDP, trade balances, economic growth, median incomes. These are all the focus of many conversations about our country. For some, these are measures of our success; the indicators of our future.

But much can be lost amidst the flood of data and the reduction of all things to cold numbers and percentages. GDP, median incomes, unemployment rates aside, we are a retail economy.

We are devoted to the buying and consumption or discarding of goods. We are burying ourselves under our own rampant commercialism. Shopping centers abound. Strip centers are everywhere. Quaintness has been lost. The box stores have won. It is sad that the symbol of post-war American architecture is the box. Adding insult to visual injury, little energy is spent on building the boxes for either beauty or longevity. They are built for raw efficiency. Their future rests in their own demolition.

Certainly we saw the shut-down factories in the Northeast. We saw the old barns which are almost a trademark of the rural countryside. We saw the abandoned homesteads in the West which reminded us of someone’s now long dead dreams. But it is the 20th Century architecture and the roadside/exit-ramp construction which dominates America’s newer skylines. They are the horizon of our urban and suburban America.

Pre-war homes were built with a hope, if not almost an expectation, that they would house generations of families. And they have. Pre-war downtowns have more than charm. They have a deserved reverence. Town after town now hosts a “historic downtown,” but there will never be a “historic shopping center.” First, the buildings and the construction materials almost assure a fixed-year obsolescence. Second, a box is a box — even if there is a parking lot next to it.

Possibly America (and its city planners and architectural review boards) should consider that people now readily pay hundreds of thousands of dollars to preserve and renovate the beautiful brownstones in Georgetown, the beautiful middle-class homes in some of the older suburbs of Chicago, and the stately sandstone buildings in South Bend. But no one is going to hesitate to plow under a strip mall or to expend energy or resources to preserve a formula-designed mall.

We can do better. Possibly we should — even if it takes community action to do so.

No. 7.

A Few Last Surprises and Discovered Curiosities

This last category about our glimpsing of America is intended to merely list some of the good, the bad and the ugly surprises and curiosities which were seen over these last two months. As with the above listings, they too are not set forth in any order of priority.

(A)

Armadillos and Raccoons

Call us stupid, but it was not until San Antonio that we learned that one can catch leprosy from armadillos. Sound absurd? It’s true. It would be an idle fact of limited medical interest except that we spent time in West Texas trying to catch one of the little buggers. The closest we came was roadside road kill. We all remain healthy, and it is far more likely that our health was impacted by our devotion to end-of-the-day Dairy Queens.

Raccoons – what can I say? There may be a few raccoons left in the woods, but possibly not. Based upon our rough road kill count, the poor critters have had a really tough year. We stopped counting at around 300.

(B)

The Amish

It is estimated by the U.S. Religious Census that there are about 308,000 Amish in the America. We had expected to see them in Pennsylvania and Ohio, but we saw them in nearly every state. It is an honorable religion with a fascinating history, but based upon what we saw — the number of 308,000 may be far, far too low. The Amish were everywhere. They have been busy making a lot more than furniture.

(C)

Tourism Gimmicks

Tourism is everywhere, and Americans are traveling. In most places, tourism is controlled, indeed, almost orderly – from the Red Rocks of Sedona to the Riverwalk in San Antonio. But not in some places. Bourbon Street is still crowed with all of the folks you don’t want to bring home, and a few places may have been lost. A few places – beautiful places — are so deeply buried in tourist gimmicks that they may not be able to dig themselves out.

Niagara Falls deserves a dishonorable mention in this regard, but Pigeon Forge and Gatlinburg, Tennessee are the unequivocal winners. Frightening, disappointing, and a word I rarely use – disgusting.

Pigeon Forge and Gatlinburg are Tennessee’s gateway towns to the Great Smoky Mountains National Park   – one of the great national parks. As gateway towns, it had been expected that they would be like West Glacier or West Yellowstone. Some motels. Some restaurants. Some whitewater and tour guide offices. Maybe a few trinket shops.

Instead, Pigeon Forge, Tennessee was 11 miles of side-by-side, stand-alone tourism stores and gimmicks – putt-putt golf and wax museums, bumper cars and go-cart tracks, roller coasters and Hatfield & McCoy Shows, Dairy Queens and Pancake Houses (7 of them to be exact), fast food and Stop-N-Goes, Walmarts and Dollar Stores, gift shops and trinket stores, and on and on.

(D)

Lawyer Billboard and Class Action Solicitations

Especially down south there are Just-Call-Saul attorney billboards everywhere. We almost felt badly for passing through so many states without having a car accident; without retaining a lawyer, without suing at least someone.

And even though we made it through the day without the advice of billboard lawyers, at night we were bombarded with class action solicitations on television. Possibly because we are Netflix users, we were unprepared for the relentless solicitations to call for Free Consultations. Based upon what I heard, everyone in my family qualified for inclusion in at least a couple class actions — “have you ever had a headache?” “Have you ever felt full after a meal?” “Does your back hurt after a day of splitting wood?” “Just call 1-800-HERE-TO-HELP.”

We decided to own up to our own aches and pains; to accept our years and our aging. We just weren’t sure America needed more plaintiffs. We decided to pass.

V.

Closing

As with our trip, this write-up must come to a close. Thank you for your indulgence in allowing this author this personal narrative.

The repeated thought, again humbly offered, is that you try to go – money and time and jobs and health and schedules permitting.

Admittedly, there is never a good time. Admittedly, America will always be there.

But the sooner we see America, the sooner we may be able to take some of the headlines in better stride; the sooner we may better remember why America matters, how the distant corners of our country are different; and how we must stand together as a national community – mindful of both the beauty of our country and the differences of our people.

As for this family, we will look forward to seeing you at the Dairy Queen. Maybe we can exchange some good ideas, discuss the direction of our country, reminisce about what we have each seen, and finally get to the bottom of this road kill raccoon problem!

 

FOOTNOTES

[1] See, Smolan, R., A Day in the Life of America (1993). This collection of photographs of America was one of as series of national books done in a parallel manner. See also, “A Day in the Life of Canada (Smolan, R.)(1985), — of Japan (Smolan, R.)(1985), — of the Soviet Union (Smolan, R.)(1987), —of China (Cohen, D.)(1989), — of Italy (Enwitt, J., Rowan, R., Barry, J.)(1990), — of Ireland (Enwitt, J., Lawlor, T.)(1991), and —of Israel (Smolan, R.)( (1994)).

[2]    For purposes of this article reference is used primarily to the continental United States.

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Charitable Contributions – Announcement of Second Round of Annual Charitable Contributions to Four Charities from Sales of Award-Winning The Relevance of Reason

Posted by Mack W. Borgen August 11th, 2016

Blog 65

August 11, 2016

Second Round of Charitable Contributions

from the Proceeds of My First Two Books

I am pleased to announce that I have today made my second round of annual charitable contributions to the four charities described below. These contributions are from the continued sales of my first two books – The Relevance of Reason – The Hard Facts and Real Data About the State of Current America (Volume 1 – Business and Politics and Volume II – Society and Culture).  I thank all of you who have purchased copies of my books or are thinking of doing so, and I am honored that sales of these books continue and that they received four national book awards including the Best Business Book of the Year (Volume 1 – Second Place) at the Los Angeles Book Festival.

Special 2-Volume Books Sale – Personal Note

Especially in this year of political angst and heated discourse, may I offer to you copies of my signed books. I tried hard to write them with a touch of humor and without bias or agenda. They may be enjoyable — even useful — for yourself or as a unique gift for your friends, family, or even business associates. A Second Edition is scheduled for completion next Summer, but sets of the first two volumes are now available with the following 30% discount:

Hardback – Two-Volume Set of Books – Retail Price: $49.00 – Sale Price – Only $34.00 for 2-volume set

Paperback – Two-Volume Set of Books – Retail Price: $29.95 – Sale Price: Only $19.95 for 2-volume set.

Plus $3.50 total shipping and handling.  Just email me directly at mwborgen@live.com. Payment can be made by check or Paypal. Please allow about 7-10 business days for delivery. While supplies last.

Recipient Charities

With respect to the charitable contributions — and as will always be the case — I wish that I could have contributed more. Nevertheless, these modest contributions are made in the hope of furthering and encouraging a renewed and more constructive American conversation and in our recognition of those many Americans who are already working selflessly to better our American community. This initial round of charitable contributions was made in August, 2014. The second round was made today.

Brief descriptions of the recipients of these charitable contributions from The Relevance of Reason are as follows:

First Book
Washington, DC 20004

First Book has distributed more than 90 Million books and educational resources to 27,000 schools and educational programs since it was founded in 1992. Access to books, especially among low-income families, remains one of the biggest barriers to tackling illiteracy, and by making new, high-quality books available on an ongoing basis, First Book is transforming the lives of children in need and elevating the quality of education.

 

The Steppingstone Foundation
Boston, MA 02110

Founded in 1990, The Steppingstone Foundation develops and implements programs which prepare urban schoolchildren for educational opportunities which lead to college. The Steppingstone Academy prepares motivated urban schoolchildren for acceptance and success at top independent and public exam schools in the greater Boston area. After gaining admission to the Academy, scholars participate in a rigorous academic preparation component that spans 14 months. After completing the 140-month component, Steppingstone provides comprehensive support services, including college counseling, through middle school and high school. After graduating form high school, scholars stay connected to Steppingstone through alumni relations.

Shoes That Fit
Claremont, CA 91711

Founded in 1992, the mission of Shoes That Fit is to build self-esteem of children in need by providing them with new shoes for school. Shoes That Fit provides new shoes and/or clothes to children in need so that they can attend school in comfort and with dignity. They do this by matching a sponsoring group  a business, school, church, civic organization or even a group of friends  with schools near them that have children in need. New clothing items that are appropriate for school help these children fit in, slowing them to concentrate on their studies rather than their circumstances.

Scholarship Foundation of Santa Barbara
Santa Barbara, CA 93105

For over 50 years, the Scholarship Foundation of Santa Barbara has helped local students pay for their higher education  vocational, community college, or four year college or graduate school. The Foundation seeks to inspire, encourage and support Santa Barbara County students in their pursuit of college, graduate, an vocational education through financial aid advising and scholarship. Beginning with nine $100 books awards in 1962, the Foundation has grown so that, for example, in one recent year The Scholarship Foundation of Santa Barbara awarded $7.2 million in student aid and reached 23,470 students, parents, an educators through financial aid and scholarship presentations and financial aid advising sessions at school sites.

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