Plain paper cancersticks

I'm fascinated by disagreement about Australian proposals to restrict cigarette packaging in implementing the international Framework Convention on Tobacco Control (FCTC), ie cigarettes will be sold in plain paper cartons rather than in those colourful boxes that are minimally disfigured with health warnings that alert consumers of associations between cigarettes, cancer, heart disease, emphysema and other nastiness.

The tobacco industry, as one might expect, has climbed onto the nearest marble pedestal (the sacredness of property, intellectual property, enterprise and free trade) to denounce the Bill put forward by Senator Fielding - the Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009 ["A Bill for an Act to amend product information standards to remove brands, trademarks and logos from tobacco packaging, and for related purposes"] and plans for a Government Bill - being considered by a Senate Committee here - that would give effect to recommendations by the government's Preventative Health Taskforce [PHT].

That denunciation includes a Plain Packaging site, complete with a particularly unhelpful letter from the NSW Law Society (little more than "if either of these proposals was implemented, then trade mark owners could not use their trade marks. While it is noted from the information provided that plain packaging could have positive health benefits, the Committee believes that the protection of intellectual property rights is important and trusts the Taskforce will take this into consideration").

The Institute of Patent & Trade Mark Attorneys of Australia submission to the Senate Committee is somewhat more helpful, concluding that -

It is submitted that there are defects in the wording of the Bill and that those defects are such that the implementation and operation of any resultant legislation will present difficulties. Furthermore, the purpose of the Bill – that is, the removal of trade marks from cigarette packaging – have far reaching consequences – that significantly affect the rights of trade mark owners under the Trade Marks Act and there is nothing in the Bill that addresses the many statutory loose-ends that will inevitably arise under that Act. In addition, the provisions contained in the Bill are in breach of article 8 of the TRIPS Agreement.

The Washington-based Property Rights Alliance similarly frets that -

It is submitted that by denying tobacco companies their right to use their trademark to identify their product, this Bill strikes at the very core principles of corporate identity and consumer information that the Australian economy is based upon. As such, it not only violates the legal rights of the companies affected, but furthermore sets a very dangerous principle for the future of a government unwilling to honour or respect intellectual property rights.

It is finally submitted that as tobacco remains a legal product, the assault on the centuries-old protection of trademarks represents a grave threat to the future of property rights, individual freedom, and freedom of speech, and as such, ought be rejected without reservation.

British American Tobacco (BAT), with around 42% of the $8.3 billion local market, is reported as commenting that it would "take every action necessary to protect ... its right to compete as a legitimate commercial business selling a legal product".

A paper [PDF] by the Institute of Public Affairs, champions of deregulation and opponents of the 'nanny state', warned this week that forcing the tobacco giants to remove their trademarks from products was equivalent to compulsorily acquiring property, with the result that the government would be obliged to pay the industry $3.4 billion compensation.

Other observers have commented that Australia cannot force removal of the trade marks, because that would be a violation of TRIPS and the Australia-US FTA.

Academic commentators disagree. The Trade Marks Act 1995 (Cth) gives the national government power to revoke trade marks altogether. The Government would appear to have the power to restrict where marks are used (eg evident in restrictions on tobacco advertising on television) without an absolute revocation of a particular mark. There appear to be no plans for the Government to use the marks itself, to favour one mark over another, or to gift one brand owner's existing mark to a competitor (or to a health advocacy body). Would comprehensive restriction however be equivalent to revocation, substantiating the claim that restriction = confiscation = requirement to pay large amounts of compensation?

Advice to Philip Morris on the Plain Packaging site argues that -

Article 20 prohibits any interference with the use of the trademark unless such interference can be characterised as mere justifiable encumbrance:

The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.

Article 20 does not define the term "encumber". However, according to its ordinary meaning, the term "encumber" refers only to requirements which would have the effect of hampering or limiting the use of a trademark. A requirement, like plain packaging, that effectively constitutes a total ban on the use of a trademark is not a mere "encumbrance". As such, it amounts to an impermissible interference with the trademark owners' rights under TRIPS.

Does TRIPS feature a back door if we accept the contention from the cigarette industry? On first reading TRIPS (Article 7) appears to offer far less leeway than GATT Article XX(b), which would have allowed "the adoption or enforcement by any contracting party of measures ... necessary to protect human, animal or plant life or health". The rationale for restriction on advertising would appear to be the protection of health or life. Although it would affect a handful of companies, which would not be able to exploit the good will inherent in their trade marks, the restriction would not privilege one tobacco company over another, or serve as an invisible trade barrier protecting a local entity from overseas competition.

Although plain packaging has been discussed in the UK, Canada and New Zealand it hasn't yet been established. The leading case in the European Court of Justice appears to be The Queen v. Secretary of State for Health (ex parte: British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd; supported by: Japan Tobacco Inc. and JT International SA), 2002, Case C-491/01, in which the court considered restrictions on packaging but did not decide on overall removal of identifiers. In that case the court specifically did not comment on trade mark or other intellectual property aspects of international agreements. In referring to EU Directives it stated that -

the only effect produced by Article 5 of the Directive is to restrict the right of manufacturers of tobacco products to use the space on some sides of cigarette packets or unit packets of tobacco products to show their trade marks, without prejudicing the substance of their trademark rights, the purpose being to ensure a high level of health protection when the obstacles created by national laws on labelling are eliminated. In the light of this analysis, Article 5 constitutes a proportionate restriction on the use of the right to property compatible with the protection afforded that right by Community law.

The Court went on to comment that -

I take the view that Article 7 is none the less not at variance with the right of (intellectual) property. In reaching this view I do not base myself on an assessment as to whether the very substance of the use of the trademark right is being undermined in this case, but rather reason on the basis of the trademark right itself. That right is not inviolable in se. Community legislation on trademark rights already provides for a number of individual grounds of invalidity. In this case, particular significance attaches to Article 3(1)(g) of Directive 89/104 on trademarks. Under that provision, trademarks which are of such a nature as to deceive the public are liable to be declared invalid.)

Cybergrime

The national Attorney-General and Minister for Foreign Affairs have announced Australia's intention to accede to the Council of Europe (CoE) Convention on Cybercrime [here], characterised as "the only binding international treaty on cybercrime".

Don't step away from your computer: the Convention (in force from July 2004) "serves as both a guide for nations developing comprehensive national legislation on cybercrime and as a framework for international co-operation between signatory countries".

Implementation will be dependent on the specifics of the Australian legislation giving effect to the treaty. It is unclear, from the announcement, whether Australia will ratify the Additional Protocol Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, eg criminalising dissemination of racist material via the net and racist and xenophobic-motivated threats or insults [exegesis here]. In Europe the Convention has been held to cover expressions of Holocaust denial. The US has, unsurprisingly, announced that it will not be ratifying the Protocol: US neonazis can breathe free.

The Ministers state that -

Cybercrime poses a significant challenge for our law enforcement and criminal justice system. The Internet makes it easy for criminals to operate from abroad, especially from those countries where regulations and enforcement arrangements are weak. It is critical that laws designed to combat cybercrime are harmonised, or at least compatible to allow for cooperation internationally.

The Convention promotes a coordinated approach to cybercrime by requiring countries to criminalise four types of offences, including:

i. offences against the confidentiality, integrity and availability of computer data and systems, including illegal access to computer systems, illegal interception, data interference, systems interference and the misuse of devices;

ii. computer-related offences, including forgery and fraud;

iii. content-related offences, including child pornography; and

iv. offences related to the infringement of copyright and other related rights.

It also establishes procedures to make investigations more efficient and provides systems to facilitate international co-operation, including:

· helping authorities from one country to collect data in another country;

· empowering authorities to request the disclosure of specific computer data;

· allowing authorities to collect or record traffic data in real-time;

· establishing a 24/7 network to provide immediate help to investigators; and

· facilitating extradition and the exchange of information.

To date, over 40 nations have either signed or become a party to the Convention, including the United States, Canada, Japan and South Africa. Over 100 nations are also using the Convention as the basis to strengthen their legislation to combat the threat of cybercrime.

The excellent Derridian has meanwhile pointed me to the Harvard National Security Journal [HNSJ], a new publication grappling with issues such the legality of targeted killing by drone and legal frameworks for cyberwar. It's a nice corrective to the somewhat flaccid analysis in several papers in Spinning Intelligence: Why Intelligence Needs the Media, Why the Media Needs Intelligence (London: Hurst 2009) edited by Robert Dover & Michael Goodman.

Daniel Geer's 'Cybersecurity and National Policy' in the HNSJ for example comments that -

Some degree of international engagement is essential for no other reason than that our opponents are location-less. Much work has been done on this, but the path to any treaty is steep and the clock of upward progress ticks in years, not minutes. The Council of Europe’s Convention on Cybercrime is a case in point. At the same time, the recent decision of the Internet Corporation for Assigned Names and Numbers (ICANN) to wildly proliferate the number of top-level domains and the character sets in which domains can be enumerated is the single most criminogenic act ever taken in or around the digital world. United Nations treaties are all but useless — unenforceable and thus popular with the worst state offenders — so “coalitions of the willing” are the best we can hope for, taking the G8’s Financial Action Task Force as an example. Put differently, international engagement is likely necessary but certainly insufficient.

Readers of the Lost Ark

The ABC kindly reports yet another discovery of Noah's Ark on Mt Ararat - the mountain must be littered with arks, judging by the frequency with which they are discovered (with or without 'fossilised' animal dung and animal feed left over from the epic voyage.

This time a "group of Chinese and Turkish evangelical explorers" from Noah's Ark Ministries International believes they've found the genuine article: "It's not 100 per cent that it is Noah's Ark but we think it is 99.9 per cent that this is it".

Perhaps faith isn't enough, especially when asking people to praise the Lord and pass the contribution, so the intrepid explorers are reported as saying that they recovered wooden specimens that 'carbon dating proved was 4,800 years old, around the same time the ark is said to have been afloat'. The structure - ie what's left of the Ark - is reported as having "several compartments, some with wooden beams, which were believed to house animals".

Why stop there? Local Turkish officials will reportedly ask Ankara to apply for UNESCO World Heritage status "so the site can be protected while a major archaeological dig is conducted". The national government is more likely to declare the location as a national park and license a tourist facility, in the way that it has handled other discoveries in regions where there's lots of poverty and minority groups are unhappy with repression by the state.

As a sceptic I wonder whether we can't have too many genuine Arks (the Lord in His generosity may have salted Mt Ararat and other locations with multiple arks to edify the faithful and delight intrepid explorers or publishers), in the same way that there were cartloads of bits of timber from The True Cross, holy Nails from ditto, thorns from the Crown of Thorns, sundry sponges, vials of holy blood and at least four foreskins from the Son of God.

The late Ronald Eldon Wyatt, complete with Indiana Jones hat, modestly claimed to have found the Ark of the Covenant in a tunnel at Jerusalem (complete with a sample of the dried blood of Jesus), gold-plated chariot wheels from the Red Sea crossing, the site of the Golden Calf apostasy, Sodom and Gomorrah, the Tower of Babel and so forth. Readers of this post, pious or otherwise, can draw their own conclusions.

I discount the announcement made to me, several years ago, by an Australian correspondent who had discovered that Mt Ararat in Victoria was the mountain and that if the pure of heart would give him some cash (presumably to buy a spade or two) he would be able to quickly disinter The Ark - slightly weather-beaten (as you'd expect after a millennium or two among the kangaroos and gumtrees) but otherwise in full working order.

I confess instead to a certain fondness for Athanasius Kircher's 1675 speculations about the Ark, with images of his illustrations and inventories featured in 'Athanasius Kircher (1602-1680) on Noah's Ark: Baroque 'Intelligent Design' Theory' by Olaf Breidbach & Michael Ghiselin in 57(36) Proceedings of the California Academy of Sciences, 4th Series (2006) 991-1002 [PDF]. The latter unfortunately doesn't provide Kircher's famous description of the Katzenklavier, a fictive musical instrument that comprised a line of cats whose tails would be hit, pulled or pricked when a keyboard was struck. Not a nice way to make music and less melodious than the Duetto buffo di due gatti attributed to Gioachino Rossini.

free speech and civil societies

An article by Andrew Kenyon in 4 International Journal of Communication 4 (2010) 440–467 on 'Investigating chilling effects: news media and public speech in Malaysia, Singapore and Australia' [PDF] comments that -

News media in Malaysia and Singapore are often said to be constrained in covering political and public issues, in comparison with plural democratic states such as Australia. However, commentary also suggests that online communications are allowing more independent speech.

Kenyon's article investigates whether such restrictions and changes online can be identified, using an analysis of media content to illustrate factors relevant to the concept of a "chilling effect" on public speech, including matters of law, media ownership, journalistic practices, and civil society. He suggests that although news is constrained in Malaysia and Singapore, it seems that online media can be less limited. Rather than the internet being decisive, however, it is the extent of civil society and political opposition that appear more significant.

Kenyon comments that -

Overall, the differences in content between Singapore, Malaysia, and Australia are consistent with several strands of the existing literature. First, they support the importance of less restrictive ownership laws in allowing the potential for greater speech online. Second, they show the emergence of examples of independent journalism online; examples which, drawing as they do from domestically trained journalists, suggest that normative arguments for ASEAN media serving primarily a national-building and government-supporting role deserve critical examination and substantial modification, if not rejection. Third, and perhaps most importantly, they suggest the importance of civil society and political opposition in underpinning public speech.

He indicates that for legal analysts -

it is worth noting the results are certainly consistent with defamation law affecting public speech. There are differences in the overall rates of defamatory content found in Australia compared with the rates in Malaysia and Singapore, particularly in relation to what is traditionally thought of as political and public interest material. Indications that speech is constrained, and that law may be a factor, in turn support further investigation of how the legal rules — or their application — may differ from contemporary commonwealth standards. ... the success rate of defamation plaintiffs from Singapore's governing Peoples' Action Party is "overwhelming", with no leader having "ever lost a defamation action against an opposition leader in the Singapore courts". While plaintiffs are thought commonly to succeed in defamation actions under the traditional English law, the Singapore experience is still quite unlike that in other common law jurisdictions. At the same time, the reasoning offered by judges in Singapore defamation cases has long been criticized as disappointing and insufficient ... The results here reinforce such concerns and underlie the value in closer examination of the application of defamation doctrine in Malaysia and Singapore — particularly in comparison with the approach in English law and other commonwealth jurisdictions — to see what part the law and its operation plays in the limited speech that is evident in the media content of Malaysia and Singapore. However, a useful caution for lawyers also follows from this study of media content. At least in contexts like Malaysia and Singapore, where multiple factors tend to constrain media speech compared to more plural democracies, law may well not be the most significant element.

He concludes that -

the implications are wider than the three jurisdictions examined here. This study suggests the value in considering a range of factors in relation to any chilling effect on public speech. Law, media ownership and control, practices of journalism, and the style and extent of civil society, and political opposition all interact within an ecology of public speech. To consider only one of these elements may be unnecessarily limiting. For example, suppositions about legal effects on the media, which are commonplace within the media law literature, can be investigated through a variety of theoretical and empirical means. But if legal scholarship is to understand the role of law within mediated speech, it could usefully remember the wider context in which law exists. For it is in that context that one might understand a little more about how the law might matter. Thus, research into public speech could take account of a range of relevant factors, such as media ownership, journalistic traditions, and civil society, as well as law. Equally, the study illustrates how media content research can, perhaps especially for questions related to free speech, benefit from the judicious use of legal concepts and techniques. Here, a legally informed analysis has revealed the importance of some existing strands of non-legal scholarship about the region, especially those related to the roles of technology, journalism, and politics in public speech.

Guns don't kill people?

Guns don't kill people, it seems, but the UN does. That appears to be one implication in 'How Many Global Deaths from Arms? Reasons to Question the 740,000 Factoid Being Used to Promote the Arms Trade Treaty' by David Kopel, Paul Gallant & Joanne D. Eisen in a forthcoming issue of the NYU Journal of Law & Liberty (SSRN version here). 

 The authors hark from the Independence Institute in Colorado, a "free enterprise" advocacy body that is resolutely opposed to seat belts and nastiness such as gun control. Kopel for example authored 'Human Rights Atrocities: The Consequences of United Nations Gun Confiscation in East Africa' and 'Mandatory Seat Belt Laws Cause Dangerous Driving, and Invade Privacy', the latter replete with treats such as -

no jurisdiction that has passed a seat belt law has shown evidence of a reduction in road accident deaths. To explore this odd but highly robust finding, experimenters asked volunteers to drive five horsepower go-karts with and without seat belts. They found that those wearing seat belts drove their karts faster. While this does not prove that car drivers do the same, it points in that direction.

Mr Kopel might want to look at the Australian data regarding seatbelts ... or any consumer and occupational health & safety measures. In an earlier article the authors announced that "Guns Don't Kill People, Gun Control Kills People". Presumably getting rid of gun control will stop the killing. Guns, it seems, are good. 

The authors indicate that -

Currently, the United Nations is drafting an Arms Trade Treaty to impose strict controls on firearms and other weapons. In support of hasty adoption of the Treaty, a UN-related organization of Treaty supporters is has produced a report claiming that armed violence is responsible for 740,000 deaths annually. This Article carefully examines the claim. We find that the claim is based on dubious assumptions, cherry-picking data, and mathematical legerdemain which is inexplicably being withheld from the public. The refusal to disclose the mathematical calculations used to create the 740,000 factoid is itself cause for serious suspicion; our own calculations indicate that the 740,000 figure is far too high. Further, while the report claims that 60% of homicides are perpetrated with firearms, our review of the data on which report claimed to rely yields a 22% rate. The persons responsible for the report have refused to release their homicide calculations, or any other calculations. This Article also shows how a narrow focus on restricting firearms ownership continues to distract international attention from life-saving, viable solutions. We propose some practical alternatives which have already saved lives in war-ravaged areas.

One might well quibble about the source data, its interpretation and its exploitation by different advocacy groups. 

Having said that - and putting aside the touch of conspiracism ("mathematical legerdemain which is inexplicably being withheld", unanswered email to academics) - one response might be to suggest that the authors are missing the point in relation to the arms trade and to question the "life-saving, viable solutions". The latter, it seems, involve readier access to firearms (on the basis that people won't be killed if they have guns of their own) and use of efficient mercenaries (in contrast to the inefficient mercenaries deployed by the nasty nasty UN). 

 The authors resort to rhetoric such as -

The United Nations’ obsession with gun control serves a political purpose: distracting public attention from dictatorships that cause violent deaths. In our example of the accidental canal bombing, the destruction of the canal, and the subsequent cholera epidemic, might not have been intended by anyone. Yet the truth is that a huge number of indirect deaths are deliberately caused by governments or by other warring factions. ... In the Democratic Republic of the Congo, the blame for the millions of direct and indirect deaths should not be placed on guns, but on the UN's stubborn reliance, for decades, on a failed policy premised on the existence of a sovereign, unitary DR Congo.

In dealing conflicts in Africa, give the people guns, or hire efficient mercenaries -

the UN’s own "army" is, in essence, itself a mercenary army, albeit an especially bad one. The UN forces are overwhelmingly composed of soldiers from countries such as Pakistan, Sri Lanka, India, Morocco, and Bangladesh that rent their soldiers to the UN. The governments pocket the difference between their soldiers' low rate of pay, and the rental rate which the UN pays the governments. The contrasting performance of the large, near-worthless UN mercenary army and the highly effective Executive Action mercenary army directly points to a solution for protection of humanitarian aid workers. Instead of relying on the UN's mercenaries, hire mercenaries who have a proven record of success. A politically incorrect solution, to be sure. But as events in Sierra Leone demonstrated, it is a solution which can save many innocent civilians, and which can help protect the humanitarian workers and thereby save civilian lives.

Bring on the contractors from Blackwater? After that it's unsurprising to read the call by Independence Institute President Jon Caldara for donations -

Defend Colorado from Obama Care! On Sunday, March 21st, the US House of Representatives passed what we call "Obama-care." This is one of the darkest moments in American history. The federal government has taken a large step towards control of our healthcare, and with it control of our very bodies. The federal government is taking away our decisions over health insurance and, unprecedented in history, forcing citizens to purchase private products, ultimately under penalty of incarceration. We at the Independence Institute refuse to watch this atrocity corrode the quality of healthcare in Colorado. For months we have been at work bringing forward an amendment to the Colorado Constitution to preserve as a basic human right our "Right to Health Care Choice." It is my goal to make Colorado a sanctuary state for quality healthcare.

"Darkest moments"? "Unprecedented in history"? Really. Blame it on the little black helicopters, fluoridation and the shortage of alfoil beanies, perhaps. Promoting the sacred right to carry a Saturday Night Special or evade tax apparently doesn't come with a clear disclosure by the Institute of where it gets its funds and what it does with them. Care to dot the is and cross the ts might be expected when the authors are so pernickety about the deficiencies of other people's data collection/analysis and prone to insinuating a cover-up. Is the Independence Institute getting money from small arms manufacturers? Arms dealers? Munitions suppliers ("guns don't kill people, bullets do")? It's not clear ... and we might reasonably look for the same sort of disclosure from the authors that they appear to expect from the people with whom they disagree and whom they condemn for not adequately responding to their email.

Coregulation

In Casablanca the charming Captain Renault announces that he is shocked, shocked, to discover that there is gambling on the premises - pausing only to collect his winnings.

His statement came to mind, however inappropriately, on reading the announcement by ACMA's chief executive Chris Chapman, that he is nailing the national telecommunication regulator's "colours to the mast" in launching a "formal inquiry into customer service and complaints handling in the telecommunications industry following the on-going high volume of complaints to the industry ombudsman".

Mr Chapman commented that -

Many would share the ACMA's concern about whether the current arrangements which underpin telecommunications consumer protection are really effective in dealing with the issues that concern consumers most.

Alas, ACMA hasn't been particularly vocal about those concerns in recent years, leading critics to muse that coregulation does not mean cohabitation and that an occasional public warning might be more efficacious than corporate pillow-talk away from the public arena.

Chapman stated that -

The trend-line growth and sheer quantum of complaints about complaint handling and customer service — up to 900 every working day — reflects poorly on the entire industry. Whether this is evidence of a failing regulatory system or just a perception of that failure, I now believe this issue has to be confronted directly and urgently otherwise we will be talking about these same issues for years to come.

Quite so.

One response is his commitment that -

As part of the inquiry, I will personally brief CEO's of the larger service providers (representing 90 per cent of the TIO complaints) and ask for their support. As the learnings emerge from the inquiry, I will seek their collective agreement on enforceable strategies for lowering the number of complaints to the industry ombudsman about complaint handing.

It is disappointing that such briefing hasn't been taking place already and that agreement has not already been sought. The absence of such briefing - the CEO's are, after all, just a phone call or short flight away - does not bode well for future engagement.

Chapman foreshadowed a 'regulatory forum' -

As regulators, we need to turn the mirror on our structures and roles. I do not believe the current regulatory 'alphabet soup' of ACMAs, TIOs, ACCCs, DBCDEs, CAs and TISSCs (along with the state Offices of Fair Trading) is leading to the best solution for some of the bigger problems. In the short-term, I will be seeking to work with my colleagues at the ACCC and the Department of Broadband, Communications and the Digital Economy and with consumer groups, led by the Australian Communications Consumer Action Network, to identify emerging issues in telecommunications and develop appropriate regulatory responses. This is best done in collaboration.

In a speech titled Telco regulation 2.0 – Reconnecting the customer on 20 April he indicated that -

it is also incumbent on the ACMA to lift its general facilitation game. At a time of rapid change, it is important that we engage in genuine dialogue and solution building. This is an important message, not only for senior executives of our respective organisations, but also for the many technical and operational relationships we have with our stakeholders. ...

the ACMA Authority [sic] today takes this opportunity to set out its approach:

1. We remain supportive of the co-regulatory approach but, building on what we have learnt in the Telco space over the last several years as to the shortcomings of that approach—particularly with respect to consumer and user concerns — we are moving ahead with renewed vigour and a strong, pro-active bias.
2. We want to forge the new paradigm, together with industry participants, with consumer perspectives effectively engaged and accommodated.
3. We expect that the data, learnings and evidence from the formal inquiry to resolve to solutions for us all to deliberate on and execute as a foundational piece of telco regulation 2.0.
4. We see great opportunity for leaders in the Telco space to establish customer-centric approaches that are brand equity led.
5. So I am nailing the Authority's colours to the mast. We're not waiting for anyone, anymore.

Jamesonian hegemony

From Benjamin Kunkel's 32(8) LRB (2010) 12-16 review of Fredric Jameson's Valences of the Dialectic (London: Verso 2009) -

In Late Marxism (1990), his book on Adorno, Jameson wrote of Dialectic of Enlightenment that "the question about poetry after Auschwitz has been replaced with that of whether you could bear to read Adorno and Horkheimer next to the pool". With Jameson the question has been whether you could avoid reading him on a university campus, or continue reading him outside one.