Tuesday, August 23, 2016

"AN ELECTION CAROL" by Charlie Kenmore

            “You’re fired!” T bellowed.
            “B-b-but Sir, it’s so close to the election.”
            “Pack your things and get out before I have security throw you out without them!”
            The poor, lowly campaign manager raised his hand in protest, but realized it would do no good. Once T made up his mind, neither facts nor reason could change anything. He walked down the hallway with his head bowed, stopping only long enough to pick up a well worn box from the “Discharged Employee Use Only” stack by the water fountain. The twenty-two year old blonde Swedish receptionist with the 44DDD chest, who was working on an F1 visa on loan from her regular work as a maid at one of T’s private estates, gave him a wan smile as he passed.
            T stood at the doorway to his palatial office watching the retreating form of the vanquished former employee. He looked over the vast expanse of cubicles, mostly unstaffed, that comprised his national campaign office. In the few that were occupied, no voices were raised above a whisper. T nodded with satisfaction. Everyone in the office knew without question who was the boss. He waved his hand in a gesture that the lame stream media had claimed was analogous to a Nazi salute, but in fact was merely necessary to trigger the electronic sensors in the two story gilt doors to the office which promptly, obediently and silently slid closed.
            T reached for the dial on his safe, then jerked his hand back. He watched with equal measures of horror and macabre fascination as the dial transformed into a skull. Skin slowly covered the skull, followed in short order by closely cropped black hair that left a receding hair line.
            “No, this cannot be! You. You.” T gasped. “You’re dead, P! The party died in 2012. I saw the autopsy report.”
            “No, T. The electronic footprint we leave on this earth never dies. With every interview, every tweet, the footprint grows.”
            “No, I don’t believe this. You’re not here. I know. You’re nothing more than a speck of undigested pate foie gras.”
            “Polls show that eighty-seven percent of your office staff would believe that I am real. Feel free to ignore the polls. Regardless, I am here to warn you. Tonight you will be visited by three spirits.”
            “Who are these spirits?”
            “They are the ghosts of Elections Past, Future and Present. The first will arrive at midnight.” Before T could ask another question, the flesh boiled off of the grinning skull. The skull spoke on final word, “Midnight!”, before it crumbled away revealing the original dial to the safe.
            T, waiting impatiently in his custom tailored Dupioni silk pajamas, twisted the corner of his Charlotte Thomas “Bespoke” sheet around his tiny hand. For the third time in the last ten minutes, he convinced himself that the sheet had been used before and the immigrant workers in the house staff must be stealing the money he left for the daily allotment of new sheets.
            T checked his Monday’s Audemars Piguet Royal Oak Offshore Chronograph with Baguette Diamonds for the third time in the last ten minutes. This time, the million dollar watch showed that midnight was imminent. Of course, the watch could be fast because the Black who set it for him was raised in the inner city and might not have followed the complex instructions properly.
            Somewhere, deep within the bowels of T’s Tower, a deep, sonorous bell rang. Midnight! Kicking off the 22K gold thread laced sheet, T counted off the remaining chimes using all of his fingers and his left large toe. Nothing happened! T released the breath that he was not even aware of holding. “Whew! Just as I thought. It was nothing more than a case of … oh, shit.”
            The solid gold wall opposite the king size four post bed with its royal purple canopy glowed redly, then melted away in the middle. An indistinct androgynous humanoid form, its skin color shifting from yellow to red to brown to black and back, stepped out of the wall. T swallowed, then in a tremulous voice inquired, “Are you the spirit whose visit was foretold?”
            “Yes, T. I am the Spirit of Elections Past.”
            “I can barely see you, Spirit. Why aren’t you more solid?”
            “It is really not that hard to see people of color. But, at a minimum, you have to make an effort.”
            T squinted. The Spirit appeared marginally more substantial. “Okay. I guess I can work with that.”
            The Spirit crossed over to the bed. “Take my hand.” T hesitated. “Is something wrong? Do you have a problem with spirits?”
            “No. Of course not. It’s not that. In fact, Some of my friends are…never mind.” T took the Spirit’s hand.
T’s eyes widened as he observed the T Tower from a new vantage point a mile up in the sky. They widened further as the world froze, then slowly reversed the direction of its rotation on its axis, allowing the sun to rise in the west and set in the east. The sun rose and set faster and faster until it was nothing more than a yellow blur. After several moments, the blur resolved back into the sun flashing by a little slower with each pass, until it stopped at around forty degrees above the eastern horizon.
T noted with surprise that they were no longer hovering over T Tower. Instead, “That’s the Washington Monument. We’re in D.C.”
The Spirit did not reply. Instead, it took them on a power dive which ended in a well appointed office before T finished screaming. Several men crowded around a table covered with maps and diagrams.
T pointed at the man in the middle. “Hey, I know that man. That’s Richard Nixon. Lots of people have told me he wasn’t a crook. Lots of people.”
“What are they doing?”
“They’re planning a new election strategy.”
“Why are we here?”
The Spirit shook its head. “There is something else you must see first. Take my hand.”
T took the Spirit’s hand, and immediately found himself standing on the grass at the National Mall. Three small crying children dressed in tattered rags, their skin tones oscillating like the Spirit’s, walked by hand in hand, completely ignored by the passersby.
“Why doesn’t anyone stop to help them? Who are they?”
            “Those children are the avatars of Truth, Probity and Rectitude. What you witnessed in the office was the birth of the Southern Strategy. These were the first casualties. Come along.”
T took the Spirit’s hand. The sun streaked across sky.
The sun stopped straight overhead. High noon. T looked out over the Potomac River. A small military boat with a single large gun on the back floated in the middle of the river. A single black man appeared to be steering the boat. The three bedraggled children from the National Mall attempted to tread water and keep their heads above the surface just off of the boat’s stern.
T was confused. “What am I looking at?”
“That’s a swift boat.”
“Who is the man at the helm?”
“That would be Willie Horton.”
As T watched, a single white man with a lantern stepped out of what appeared to be a closet at the back of the cabin.
“Who’s that?”
“That’s the spirit of Ken Mehlman waiting for 2005.”
“I’ve seen enough Spirit. Please take me home.”
            T found himself back in his bed. He imagined that he had been gone for hours, but it had only been just under an hour by his conspicuous consumption timepiece. He considered changing his pajamas on the offhand chance he had soiled them during the trip with the Spirit of Elections Past, but the single tolling of the one o’clock bell prevented further consideration. Once again, the gold wall glowed.
            A decidedly female Spirit of Elections Future limped into the bedroom. She might have been pretty once, but her features were sallow and drawn. The tattered remains of a blouse hung loosely off her shoulders.
            “Hello, Spirit. I was expecting you. Well, not you exactly. What happened to you?”
            “I was a happy, young mother-to-be once. But when I was two months pregnant, I contracted Zika. The disease severely damaged the fetus I carried. Testing also showed that the lungs never developed. There was no way the child could survive. So I fled to Mexico to have an abortion.” The Spirit turned around to show her back which was crisscrossed with angry red keloid scars. She turned back around to continue her tale. “When I came home, I was seized as I came out of a tunnel under the wall. The Purity Police gave me 100 lashes in lieu of prison, but I had to serve six months in hard labor for asking for an attorney. But I am getting ahead of myself. Come take my hand.”
            Reluctantly, T rose from the bed. Steeling himself, he took the Spirit’s hand.
            This time, the sun streaked from east to west. However, the novelty had worn off. T was not impressed. What did impress him were the shocking changes to Washington D.C.
Although the White House and the Capitol Building appeared the same, the rest of the city was covered with uniform gray ten story buildings. Billboards appeared every two blocks with inspirational posters alternating between Russian and English such as “Слава труда!” and “Glory to Labor!” T watched a store clerk make change for a ten ruble note with Vladimir Putin’s picture including a five ruble note with a picture of Kim Jong-un.
            “What’s going on here, Spirit. Where are we?”
            “We are in the Imperial District of Columbia, the capitol of the Russo-American Hegemony. The year is 2036.”
            “What in the hell is the Russo-American Hegemony?”
“Following your victory in the 2016 election, you used your mandate to create a special police force to handle immigration problems. This police force was granted broad enforcement authority under the new cabinet Ministry of Public Protection. You expanded their powers by executive orders to include a woman’s right to choose to have her baby no matter what, to maintain public safety by closing subversive mosques and temples, and to serve as the overarching well regulated 2nd Amendment militia.  By the time a challenge to their authority reached the Supreme Court, they were powerful enough to seize the court. They executed the four subversive justices who voted to accept the case. The four new justices you appointed joined a unanimous court in deciding that the special police force was constitutional. The force took over the FBI and asserted jurisdiction over all domestic matters. They renamed the consolidated organization the ‘National Purity Police’.
“At your insistence, Congress passed a series of laws from 2018 to 2024 that drew the United States and Russia closer together economically, and then militarily to fight the threat of China. In response to China’s continuing aggression along the border with Russia, in 2025 you issued an Executive Order cancelling all debt owed to China. When China threatened military action, you signed the World Security Assurance Treaty which merged Russia and the United States, which was unanimously approved by Congress 378 to nothing, with 143 congressmen and fourteen senators not voting and never heard from again.
“Following your son’s election tomorrow (he is the only approved candidate), you plan to step down immediately. His coronation is planned for next week.”
“Enough, Spirit. Nothing else you could show me could be any bleaker.”
“Oh, but there is so much more to see. They just put a fresh coat of grey paint on the checkpoint between the White sector and Hispanic sector, and installed a new bank of automatic machine guns on the White side of the mine field.”
“No, I can’t take any more. And I still have one more Spirit to meet this horrid night.”
The Spirit relented. Once more, T found himself in his bed.
T was too upset to remain in bed. He paced back and forth for several minutes before walking over to the thirty foot bar to fix a drink. Normally T did not drink, so it took a few minutes to decide what would help. He picked out a fresh bottle of Ultra-Premium Ley .925 Pasion Azteca tequila, figuring since it cost a quarter of a million dollars, it had to be good.
Before T could open the bottle to find out, the gold wall shimmered. The Spirit of Elections Present turned out to be a nondescript Hispanic male, whose only noticeable physical attribute were his calves which were the size of cantaloups. The Spirit looked around, then nodded with approval. “Impressive digs.” The Spirit walked over to T, and took the bottle from him. He opened it, then took a long swig. “Nice.” He took another swig, then capped the bottle. “Time is short. We need to go.” He held out his hand with the bottle towards T. “Oh, sorry about that.” He set the bottle on the bar. “Let’s try this again.” He extended his hand to T who took it without further prompting.
            T looked at the block long boarded up one story building. “What is this, Spirit?”
            “This was a small manufacturer that made some custom furnishings for one of your hotels. You didn’t pay them. The company went out of business. Sixty-eight people lost their jobs. Come along.”
            T looked out at an open field. “What am I looking at this time, Spirit?”
            “Oh, this could have been a factory turning out ties and suits. But you decided to send that work overseas. Keep moving. We’ve got a lot more to see.”
            T looked out a larger empty field. “Let me guess. An even larger factory could have been built here to make the furniture I import from Europe.”
            “No, actually we’re in Mexico. This is a typical field where terrorists are not massing to invade the country from the south. And we’re moving.”
            T found himself in a busy emergency room. The Spirit pointed to a doctor working feverishly to save a white, bleeding auto accident victim. “See that doctor working his ass off to save his patient. Don’t tell anyone, but he’s a Syrian Muslim immigrant. It gets worse. His patient is a Jew, and the Muslim didn’t even hesitate to help him.
“See that woman grimacing over in bay three? She has a serious blood infection. She’s here because she has insurance under the ACA. Last year, she didn’t have insurance. If this had happened last year, she’d have put off seeking medical attention until she couldn’t be helped. And we’re moving.”
T flinched as a pair of four year olds ran right through him. Several dozen children ran, screamed and laughed as they played in the fenced in day care center yard. “The costs of daycare nationally can range from around $3,500 to upwards $18,000 with an annual average of around $11,000 per child per year. A full time minimum wage worker only earns a little over $15,000 a year. So how is a tax deduction for child care going to help a low income family? And we’re moving.”
T watched the young woman weeping softly on the park bench. “What is her story?”
“Oh, she used to be a patient at a Planned Parenthood facility. She got her general health care there as well as her contraception. But the facility closed. She lost her access to contraception, and now has an unwanted pregnancy. She decided to have an abortion for any number of reasons that may be meaningless to you, but are of paramount importance to her. But first she has to listen to medically unsubstantiated or intentionally misleading drivel, be subjected to medically unnecessary procedures, and wait an additional three days to have the procedure if she can find a facility that survived unconstitutional TRAP laws. And on top of that, you think she needs to be punished.” T shuddered as an image of the Spirit of Elections Future’s back flashed in his mind. “Seriously? Let’s move on.”
T found himself in the back of a pickup truck. A large Confederate flag affixed to the rear of the truck snapped in the wind. A CB radio squawked, “Yeah. Maybe next trip we can chain a couple of them up and drag them behind us all the way to the rally.”
“Stop, Spirit! That’s enough. You and your fellow Spirits have opened my eyes. Return me to my bed and let me reflect on all you’ve shown me.”
T awoke in his own bed. He ran to the bank of camera monitors and saw that it was day time. He saw a well dressed young black male standing within earshot of the front door speaker. He keyed the microphone. “Hey, bo…” He caught himself before he said “boy”. “Young man. Yes, you. What day is it?”
“It’s Tuesday.”
“What’s the date?”
“November 8. It’s election day.”
“Election day! Yes, of course it is. Tell me, are the banks open today?”
“I guess they are.” The young man shrugged and went about his business.
T practically jumped for joy. He pulled out his cell phone. Resisting the urge to tweet, he speed dialed one of his on shore bankers. “Good morning, R. Do you have that list of all of the charitable contributions that I committed to, but never made. Yeah, that list. Pay them all. Today. Yes, all of them.” He hung up without saying goodbye.
T hit the speed dial for his attorney. “M. Go ahead and release the tax returns. No, I don’t care. It doesn’t matter any more. Just do it.”
There was only one thing left to do. T smiled as he sent his first tweet of the day, “It's Election Day! Everyone go out and vote. Vote for the future. Vote for hope. Vote for justice. Vote for equality. Vote for what's right.”

CK Copyright 8/23/16; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988)

Sunday, August 21, 2016

A Tale of Two Prepositions

AUGUST 2, 2016
By Bruce C. Cohen
            This is the tale of two tiny prepositions, “to” and “by”. Between them, they have the power to decide all statewide elections this November. As it stands today, “to” is winning which means that if nothing changes between now and the November elections, Republicans will sweep all statewide contests.

            There are 115 counties (including St. Louis City) in Missouri. The election authorities for these counties is established in Missouri Revised Statutes Section 115.015 which provides, “The county clerk shall be the election authority, except that in a city or county having a board of election commissioners, the board of election commissioners shall be the election authority.”  Section 115.017 establishes the counties where a board of election commissioners can operate. Six counties qualify, including St. Louis County, St. Louis City, Kansas City, Clay County, Jackson County and Platte County. According to the Official Manual State of Missouri 2015-2016, as of 2014, these six counties had a total of 1,647,478 voters out of a statewide total of 4,081,259, comprising approximately forty percent of the electorate.

            In 109 of 115 counties, the county clerk serves as the election authority. In the other six counties listed above, however, a board of election commissioners serves as the election authority. The problem is, these six boards of election commissioners have no constitutional authority to act. Missouri Constitution Art. IV, Section 12 provides in relevant part, “Unless discontinued all present or future boards… of the state exercising administrative or executive authority shall be assigned by law or by the governor as provided by law to the office of administration or to one of the fifteen administrative departments to which their respective powers and duties are germane.” (Emphasis added) On its face, this section applies to “all” executive branch boards without exception, including boards of election commissioners. This is where the preposition “by” comes into play. Boards may be assigned “by” law or “by” the governor as provided “by” law.

Nothing in Missouri Revised Statutes Chapter 115 assigns the boards of election commissioners by law to the office of administration or to an executive branch department as required by Missouri Constitution Art. IV, Section 12. Accordingly, the responsibility for assigning these boards falls on the governor. The law providing for assignment of a board by the governor is the Omnibus State Reorganization Act of 1974, Missouri Revised Statutes Appendix B (hereinafter “OSRA”). Under the OSRA, if a board is not assigned by law to the office of administration or a state executive branch department, then the governor may assign the board. All it takes is a one page letter. It is so simple, even John Ashcroft could do it (see e.g. EXECUTIVE ORDER 86-03).

This is where the preposition “to” comes into play. Unfortunately, no governor has ever assigned the six boards of election commissioners “to” the office of administration or an executive branch department. The Official Manual State of Missouri 2015-2016, at page 871 lists the six boards of election commissioners as “Boards Assigned to the Governor”. Under Missouri Constitution Art. IV, Sec. 12, there is no such thing as a “Board Assigned to the Governor”. Boards may be assigned “by” the governor, not “to” the governor. Until such time as the boards of election commissioners are assigned “to” the office of administration or an executive branch department, those boards have no more authority to conduct election activities than a Wednesday night coed volleyball league.

In the governor’s election in 2012, Democrat Jeremiah W. (Jay) Nixon defeated Republican David (Dave) Spence 1,494,056 to 1,160,265. Governor Nixon outpolled Spence 725,825 to 366,058 in the six board of election commissioner counties: St. Louis 324,748 to 185,704; St. Louis City 117,979 to 19,478, Kansas City 107,474 to 23,806; Jackson 94,008 to 73,518; Clay 57,962 to 43,398; Platte 23,654 to 20,154. Without these six counties, Spence won 794,207 to 768,231. Similarly, in the Secretary of State election, Democrat Jason Kander defeated Republican Shane Schoeller 1,298,022 to 1,258,937. But if you subtract the votes from the six board of election commissioner counties (Kander 675,103 to Schoeller 382,293), Kander lost 876,644 to 622,919.

In short, democrats cannot win a statewide election without the votes from the six board of election commissioner counties. But without a constitutional election authority, the forty percent of the Missouri electorate residing in those six counties are disenfranchised. Their votes cannot be counted.

There are two ways to return the franchise to the voters in the six affected counties. First, Governor Nixon could assign the boards of election commissioners to the office of administration or an executive branch department in accordance with Missouri Constitution Art. IV, Section 12 and the OSRA. Second, the legislature could assign the boards by a new law. Unless one of these two things happen, Republicans have already swept the statewide elections in November. All that is left is the final paperwork.

Copyright 8/2/16 by Bruce C. Cohen
Permission granted for reproduction with proper attribution.

Bruce C. Cohen and Doni R. Miller are currently challenging the 2014 elections for St. Louis County Executive and Prosecutor at the Missouri Supreme Court, CAUSE NO. SC95793. Electronic copies of Appellants’ Brief are available upon request at bccohen1@earthlink.net.

Wednesday, August 17, 2016

Trump Campaign Shake Up Press Release

AUGUST 17, 2016


The Trump campaign announced a major shake up for the second time this political season. The executive chairman of Breitbart News LLC, Stephen Bannon, replaced Paul Manafort as the campaign's chief executive following Manafort's recent Ukrainian difficulties manufactured by the DNC and the Clinton campaign.

Mr. Trump explained, "We are absolutely thrilled, absolutely thrilled to bring Stephen Bannon on board. Breitbart is the world-wide leading publisher of right wing fantasy and fanfic. The world-wide leader. With Stephen here, we can finally start ignoring facts altogether."

Friday, March 11, 2016

Ballroom caning from The Mercies of Cinderella by Ken Charles

     It had the curious appearance of a ballroom dance. The twelve hand selected members of the Prince’s personal guard, in their finest dress uniforms, strode into the Court in two files of six. Each carried a four foot long cane at his side. As the two columns approached the thrones, the last in line stopped. Every four steps thereafter, the next in line from the rear would stop, until the first in each line stopped ten paces from the thrones. The guards then took two steps apart, clicked their heels once, then froze in rigid attention. Cinderella’s twelve Ladies in Waiting, dressed in diaphanous translucent white camlets, entered next in two files of six. When each had taken a place next to one of the guards, the Ladies curtsied to Prince and Princess.


     The Ladies turned around in unison, and bent over and grabbed their ankles. Each guard then parted his partner’s camlet at the rear, exposing twelve lovely pairs of creamy white orbs. The guards snapped back to attention as Captain of the Guard came forward, and bowed to the Prince and Princess. Captain of the Guard turned and addressed the twelve pairs.

     “It is the duty of a Lady in Waiting to attend to the needs and desires of her mistress. But the paramount duty of every Lady, which rises above tending to the needs or desires of her mistress, is to ensure the safety and well being of her mistress, even when it might conflict with a Lady’s other duties. In this regard, these Ladies have failed their mistress. While the fault might not be entirely their own, there is still a price to be paid for such negligence.”

     Cinderella felt tears welling up. She had not told any of them what she intended when she went for her ride. Indeed, until she gave Snow Princess her apple, she had not even thought of such a misadventure. It was not fair that her Ladies should have to pay for her misdeeds.

     “Assume positions. One!”


     Twelve simultaneous cracks echoed through the Court, accompanied by twelve concurrent gasps.



     Twelve red lines appeared an inch below twelve others. Twelve more gasps were followed by several intermittent sobs.



     The Prince and Princess looked out at thirty-six fiery bars.



     A dozen yelps, and a dozen more crimson weals leapt to the fore.



     Tears fell readily as a fifth line blazed forth, forming a dozen perfect staffs for musical compositions.



     A dozen vicious diagonal cuts barred the gates. The guards snapped back to attention, as Captain of the Guard turned back to the Prince.

     “A full measure, Milord, as ordered. Does it meet with Milord’s satisfaction?”

     “Well done, Captain of the Guard. You may dismiss your troops.”

     Captain of the Guard bowed, and turned to his troops.

     “Company dismissed.”

     The guards clicked their heels, then retreated in the reverse order from their entry, leaving the weeping Ladies bent over on display. When the last of the guards had left the Court, Captain of the Guard turned back to the Prince and Princess, bowed, and took his leave.

    The Prince rose. “I leave you, Milady, to deal with your Ladies further as you deem meet and proper.”

     Cinderella rose and curtsied to the Prince.

     The Prince left the Court to the fanfare of a dozen muted sobs. Once the great hall doors closed behind him, Cinderella ran down the steps to the center of the room.

     “Come to me!”

     The Ladies ran to Cinderella and hugged her and each other. Together they cried.


Ready to read the rest?  http://www.amazon.com/dp/B01B1W4YWK

Sunday, March 6, 2016


     A publishing contract is like any other contract. It establishes a business relationship between the author and the publisher. It is not an admission to a private social club. Although an author may feel privileged and proud to have a work under contract, the purpose of the contract is to exploit and disseminate the author’s work, not to stroke the author’s or the publisher’s egos.

I. “Shall” vs. “May”

     The publishing contract sets out the road map for the parties’ dealings, specifying what actions are required and so must be performed, and what actions are permitted and so are within the parties’ contemplation, but may or may not occur. Mandatory or required actions are frequently, though not exclusively, found in a clause containing the word “shall”.

Section 3--Within ten (10) days of the execution of this Agreement,  Author shall deliver three, right justified, printed copies of the Work on 17”x 23.529411” green paper to Publisher at Suite 123, Drilling Platform 138, North Sea.

Under this Section 3, the Author is required to deliver three copies of the work in a specific form, at a specific place, within a specified time period. Failure to perform any of these requirements constitutes a breach of the contract. Even though 20” x 20” paper has the same total surface area as 17” x 23.529411” paper, Author is required to use the latter paper.

     Permissive actions are frequently, though not exclusively, found in a clause containing the word “may”.

Section 4—Author may, in its sole discretion, substitute an electronic copy in PDF format for any written document or notice required or permitted to be sent under this Agreement. Any such substituted document or notice may be sent by facsimile transmission or e-mail in accordance with the contact provision of Section 3, 287 of this Agreement.

Under this Section 4, Author has the right, but not the obligation, to fax or email a document, rather than send a printed copy.

II. Basic Contract Construction

“You keep using that word. I do not think it means what you think it means.” Inigo Montoya in The Princess Bride (1987)

     The primary purpose of putting the parties’ agreement into writing is to make the parties’ rights and obligations clear. Unfortunately, sometimes the agreement isn’t as clear as the parties expected. Courts assume that everything in a contract was put there for a reason. Accordingly, wherever possible, a court will attempt to give meaning to every word in a contract. Therefore, just because the parties may disagree as to the meaning of a contract clause, it does not follow necessarily that the contract clause is ambiguous or unenforceable as written.

     Courts rely on a number of different kinds of rules for interpreting a contract. The most important rule, of course, is one that supports your position. That said, let’s take a look at a few of the more common rules.

     The first rule of contract construction is that there is no need to interpret a contract if the meaning is clear. Words are given their plain and ordinary meanings. If a simple reading will suffice, then a court will look no further.

Section Five—Author shall stand on the corner of Fifth Ave and Main Street in a chicken suit for one hour, commencing at 1:00 p.m. central standard time, on the third Tuesday in each calendar month containing the English letter “Y”.

This Section Five provides clear and unmistakable direction. Author is required (“shall”) to stand in a specified place, at a specified time, for a specified duration, in a specified manner of dress. There is no question as to Author’s obligations under this clause. A court will not resort to any rules of interpretation beyond the plain and ordinary meaning of the words in the clause. (The wisdom of such a clause is not the court’s concern. The clause was important to the parties or it wouldn’t have been included in the contract.)

     If there is some question as to a party’s rights or obligations under a particular contract clause, the next step is for a court to look at the contract as a whole to determine the meaning of clause.

“The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth…”  JARECKI v. G. D. SEARLE & CO., 367 U.S. 303 (1961)

     The meaning of general words that follow specific ones is limited by the meaning of the specific words.
"The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified...” Gooch v. United States, 297 U. S. 124, 297 U. S. 128 (1936)
Similarly, contract clauses that are specific take precedence over general clauses (generalia specialibus non derogant rule). Although the Publisher may have the general right to control the cover design, if the Author has the right to review or reject a cover, that exception will take precedence.

     Another rule of construction worth noting is the rule that “the expression of one thing excludes other things” (expressio unius est exclusio alterius). Sometimes, what isn’t included in a contract is just as important as what is. When a contract clause expressly provides that the Publisher has the right to do “A”, “B” and “C”, then it does not have the right to do “D”. If the Publisher has the right to review and correct the text, that does not mean that it has the right to line edit and change those portions of the text that are not erroneous. The right to correct means that the Publisher can fix mistakes such as closing open quotations and replacing misspelled words with the proper spelling. It doesn’t mean it can change the Author’s word choices.

     Finally, while there are other rules of construction, one rule particularly needs mentioning. When all else fails, and a contract provision’s meaning is still unclear, then a court will construe a contract against the party that drafted the provision (contra preferentem rule). In most cases, the contract will be drafted by the publisher, and presented to the author on a “take or leave it” basis. In such a case, where any doubt remains as to the meaning of a clause, the court will construe the provision in question against the publisher.

III. The Zipper Clause

"Th-Th-Th-Th-Th-... That's all, folks." Porky Pig

     Somewhere near the end of the contract, there is probably a “zipper” clause. The zipper clause (also known as a “merger clause” or “integration clause”) states that the contract represents the entirety of the parties’ agreement. Any other writings or representations to the contrary are of no force or effect. What the court sees is what it gets. A strong zipper clause can cause a court to ignore evidence about what was discussed in the formation of the contract (parol evidence).

     It is important before signing a contract with a zipper clause to make sure that the contract fairly and accurately reflects Author’s negotiations with Publisher. If the Publisher talked about sending Author to an all expenses paid writer’s retreat in Fiji, it better appear in the contract. If it doesn’t, Author will not be permitted to argue, “But they said they would. That’s why I signed the contract.”

IV. Non-compliance – Cure – Termination of Agreement

“Once more unto the breach” Shakespeare

     A failure to follow the requirements of a contract is known as a “breach”. While every breach of a contract constitutes some kind of violation of a party’s rights or responsibilities, there is no hard and fast rule about the parties’ course of conduct following a breach. Some breaches can be fixed or “cured”. Other breaches cannot be fixed, and may lead to claims for damages and/or termination of the contract.

     How the parties respond to different breaches depends in part on their general course of dealings. If the parties have been dealing professionally and respectfully with each other, then it is more likely that minor breaches such as sending a document a day late where time is not of the essence will be ignored by the receiving party. However, where there is antipathy between the parties, even minor breaches may become major issues.

     Treating the other party professionally is more than a mere platitude or common sense. I recently had a problem with a publisher that had total control over the cover of one of my works. When I raised my concerns over the proposed cover with the publisher, instead of attempting to address those concerns, the publisher claimed its rights to control the cover under the contract. However, instead of stopping at an assertion of its rights, the publisher chose to add in gratuitous ad hominem attacks on me for having the audacity to question its judgment. When the publisher committed several breaches of the contract that were time sensitive and could not be fixed or cured prospectively (a bell once rung cannot be unrung), I exercised my right to terminate the agreement. Had the publisher addressed my concerns over the cover in a professional manner, even if I was unhappy with the final result, I might have been more forgiving of their subsequent breaches.

     Some contracts may include specific procedures for handling alleged breaches. For example, a clause may require the aggrieved party to notify the offending party of the nature of the breach, and give the offending party a certain amount of time to fix or cure the problem. However, if the breach is not cured in a timely manner, the offended party may be entitled to certain specified damages, or may even be entitled to terminate the contract. If there are specific procedures in the contract for raising the issue of a breach with the other party, then the complaining party may be required to follow those procedures before seeking relief in a court.

V. And in Conclusion…

     The best contract is one that the parties never need to consult. By maintaining a professional relationship, it may be possible to resolve many issues without ever resorting to the agreement. However, if it becomes necessary to review the contract, then be sure to read not only any provision in question, but also any other provisions that may help you understand it. Finally, when in doubt, don’t be afraid to consult with legal counsel.

Copyright CK 2/19/12

Wednesday, August 19, 2015


                They went to Europe and kicked Fascists’ and Nazis’ asses. They went to the south Pacific and fought off hoards of slant-eyed devils. They came home and got houses and cars and a wife and two kids. Their word at home was the law. They got middle level management jobs and spanked and screwed their secretaries. They said hosannas at the feet of Joe McCarthy. All was right with the world. Then the world passed them by.
                The 1960’s came and their world ended. Suddenly they couldn’t refuse to hire minorities or give all of the choice work solely to white males. You could even get sued for pinching your secretary’s ass. Then by the time free love came into vogue, their hair lines were receding and their washboard abs were washed out.
                It only got worse over the next two decades. Sure they learned how to use a Dictaphone. But they still had to call their kids to come over and hook up the VCR and the Atari. Then came the computer age. The more adventuresome had the kids set up an AOL account. Some of them actually learned how to send an email.
But technology was moving too quickly. Computers shrank in size and phones grew beyond Alexander Graham Bell’s wildest imaginings. Information was too readily available to too many people. But too much information is overwhelming. People needed an escape from reality, at least for a couple of hours. And thus was born the Massive Multiplayer Online Role Play Game. While providing peace of mind to countless youth, it did nothing to alleviate the mental anguish of The Greatest Generation who don’t live grafted to their computers and smart phones. MMORPG didn’t work because the “O” was missing from their lives. Fox News gallantly rose up and filled the void.
                MMORPGs create fantasy worlds where you can travel to other worlds, shoot monsters, engage in felonies without fear of punishment, wage war, and make love without worrying about safe sex. Fox News provides an idyllic world where the 1950’s are brought back to life. For hours every day, one can sit back and listen to vapid blondes talking about how a woman can only be happy if she is married and how she needs to submit to her husband. Balding, overweight men will pontificate about the evils of premarital sex, abortion,  welfare, immigration and the relentless war on Christianity. In short, Fox News is nothing more than a Massive Multiplayer Role Play Game.

                Instead of letting Fox News raise your blood pressure because of a lack of factual foundation for their reporting, just recognize Fox News for what it is, a MMRPG. Facts have no relevance. In a fantasy world, the world builders control reality. Accordingly, the facts are whatever the world builders want them to be. If they want pigs to fly, then pigs will fly. If they think taking healthcare away from millions of people and controlling a woman’s body is best for society, then these things, indeed, are best for society. Just remember that it is only best for society so long as you remain immersed in the MMRPG. Once you reenter the real world, just as it is no longer permissible to steal cars or blow things up, the Fox News fantasies must be left behind.

CK Copyright 2015; Moral rights to be identified as the author of the foregoing story asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) 

Tuesday, June 23, 2015


Alexx Starnes and I are proud to announce our new children's book is available at Amazon.

Seven short stories about the adventures of Oswin Waddles, the manx kitten adventurer. With her best friend Puffie the Fluffie, Oswin explores, hunts, decorates a cake, designs jewelry and makes new friends. She learns valuable life lessons along the way.

Includes genuine color photos of the black and white kitten.