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Lex maniac

Investigating changes in American English vocabulary over the last 40 years

Tag Archives: Bernie Madoff

clawback

(1980’s | bureaucratese? legalese? financese? | “recoup,” “recover”)

No longer the sole property of sportswriters, this noun-verb complex has invaded the financial pages and legal journals in force. When I was young, you clawed your way back into a contest through determination and effort, not quitting until the game was on the line and you had a chance to win. It didn’t have to be a single game; it could happen over course of a season, as in a baseball team clawing its way back into the pennant race. It might be used in the context of an individual sport like tennis or golf, but I think it more often went with team sports. In the business world, you might claw your way to the top, but you don’t claw back your way to the top — though you might claw your way back to the top. There’s something ruthless about clawing when people do it; it requires unreasoning vigor, like a jungle cat, blindly fighting its way forward as long as it can move.

In the late seventies, the U.S. began imposing treble (i.e., threefold) damages on defendants who lost certain kinds of civil suits. The U.K. responded by passing a law of their own that gave a British person or corporation the right to recover the portion of the total damages that was not actually compensatory (in other words, the part that was multiplied on after actual damages were awarded). In both the British and American press, this was widely referred to as a “clawback provision.” The expression was much more common in the British, Canadian, and Australian press for at least a decade thereafter, and it is indubitably a Briticism.

My impression was that the expression refers mainly to something governments do, as in the Bernie Madoff case, but a corporation can do it, too; take Wells Fargo’s repossession of stock from disgraced executives in the wake of a banking scandal. I suppose that a business partner could claw back money that another partner had misused, but for the most part it seems to be something an institution does. Clawbacks normally occur when assets have been stolen or used illegitimately; when you hear the word, you can be pretty sure that there was some funny business that has been found out, and a governing body, private or public, is doing something about it. (That isn’t always true; for example, when the British government was privatizing public industries in the eighties, they decreed that a certain number of shares had to be available to British investors. In some cases, that meant “clawing back” shares bought by foreigners to make sure enough shares were available.) The government generally needs some kind of judicial ruling, but a corporation needs no more than the approval of the directors.

In truth, the new expression here is “clawback” (n.) since “claw back” (v.) has been a permissible construction for a long time. (As we saw above, “clawback” also serves as an adjective. I hope I am cold in my grave before “clawbackly” becomes standard English.) But its present sense seems to have arisen around the same time, and I wouldn’t want to state with certainty that one preceded the other, though I would guess the verb came first. It has never left legal and political contexts, or spread outward from them. Law and justice must have their own language.

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race to the bottom

(1990’s | activese? bureaucratese? | “beggar thy neighbor,” “downward spiral,” “how low will you go?”)

According to LexisNexis, the expression originated in a very specific context: banking and financial regulation. The idea was that if banks were not regulated properly, they would engage in progressively riskier practices in pursuit of short-term profits, destroy some banks entirely, and weaken the entire system. That was the early eighties. Only a few years later along came the S&L scandals. Such swift and decisive confirmation of such a straightforward principle is unusual and worthy of note. “Race to the bottom” is commonly still used in political and bureaucratic contexts. President Clinton seems to have helped make it prominent, but it is not as closely associated with him as “shovel-ready” is with Obama, who in 2009 gave us “Race to the Top,” a federal education initiative. (You can tell a new expression has arrived is when it becomes fodder for adaptation and parody.) It was not just a phrase Clinton used regularly; it became a rallying cry for opponents of his trade agreements. Activists bewailed the tendency of nations to gut labor and environmental standards in order to attract short-term investment.

There does seem to be some truth to the proposition that we need governments to rein in our worst instincts where profit is concerned. Some bankers seem to revel in their failure to grasp the consequences of reckless speculation, or at least they convince themselves that they won’t suffer. Some other sap will get stuck with the bill (often as not, the sap is us). Even Bernie Madoff got caught eventually, and it would be nice to think that our financiers would have the brains to avoid hazardous gambles and sharp practice, if only in order to protect the gravy train. But there always seem to be a few.

Of course the use of the term spread, and by 2000 it was readily applied to other targets. Displays of sex, violence, and crassness in popular entertainment, especially television, were taken as evidence of a “race to the bottom” of standards of decency. A related target was tabloid-style journalism. And sometimes the phrase was used to talk about price wars and other familiar forms of economic competition. For the phrase always denotes competitive lowering of standards, each party intending to undercut the other(s). (It is generally understood to be deliberate — meaning that the perpetrator should be held responsible — and not merely an inevitable consequence of the widely acknowledged economic principle that greed causes people to do demonstrably stupid things.)

The race to the bottom is kind of like the slippery slope. They’re both foreboding phrases that describe what will happen, not what has already happened. Both bear relation to an older cliché, “the straw that broke the camel’s back,” because they envision a single event leading inevitably to a point of no return, followed swiftly by irrevocable and ruinous loss. Matters don’t always turn out as badly as advertised, of course. Yet over time decline is real, and its criers are bound to be right a goodly percentage of the time.

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