A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.



Stab back: cmnewman99-at-yahoo.com


Home

 
Best. Book Report. Ever.

Except now I'm really pissed that back when I was in school somebody obviously gave me the abridged version. What a gyp.
posted by CMN at 8:14 PM
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Ethril Part 2: A halfhearted ambush.

UPDATE: I've decided to segregate my D&D campaign narratives into a separate blog. If you have any interest in the exploits of the Ethril brothers and their companions, you can follow their adventures here. That way this site will remain uncluttered for my occasional random rants on matters pertaining to this world.
posted by CMN at 3:38 PM
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Once a geek…

Lucas had been lobbying me for a while to teach him how to play pen & paper Dungeons & Dragons. He had played Baldur's Gate and Icewind Dale on the computer, and seen some of my artifacts in the basement from the ancient days when we did such things by hand. Stuff I had not touched since the early 80's. I knew that the rules had gone through several editions since the old AD&D tomes I used to know by heart, and decided that I should investigate to see what the state of the art in fantasy geekdom was. I have to say that said state (I'm talking Version 3.5) struck me as quite a bit improved. I particularly liked the skill system and the way it makes all the basic character abilities have repercussions, even the ones that are not key to your class. For example, back when I played as a kid, if you were a fighter, you could care less what your intelligence and wisdom scores were. They were almost never relevant. Now if you have low wisdom you'll be bad at spotting bad guys or hearing them sneak up on you. If you have low intelligence you’ll be bad at finding what you’re searching for. And so on. I also liked the new melee rules, which incorporate miniatures to make battles a lot more tactically complex and interesting, and enable you to figure out with some consistency questions like "what happens if I stop to drink a potion while a hobgoblin is trying to skewer me on its halberd?" Reading of all these improvements, I started to get resentful that they hadn't existed back when my friends and I were playing. Why is there an inverse proportion between the quality of available pastimes and the amount of free time you have to enjoy them in?

You can probably guess where this is going. Someplace very scary. Because, you see, now I'm grownup and gainfully employed. Which means I actually have disposable income to spend on rulebooks, plastic miniatures, and battlemats. I'm now DMing my first campaign in over 20 years. (It stands for Dungeon Master, which I know sounds very S&M, but try to work with me here.) The players are Lucas, three of his friends, and two of his friends' fathers. I'm trying to make this a real role-playing campaign, one with an over-arching story line and characters that mean something beyond roll-miss-roll-hit-get-treasure. (I rationalize my efforts as providing a potentially useful educational experience, as the three of us adults interact with the kids in solving various tactical and moral dilemmas. Yeah. That's why I'm doing it.) So after they all rolled up characters I spent several weeks creating detailed backgrounds for them. I gave each of them a fancy printed copy of his deity's creed. I gave each of them an independent back story containing his unique motive for embarking on a quest, as well as important information that would be unavailable to the other characters unless voluntarily shared. I printed spellbooks in calligraphic fonts. Each person's backstory ended with his entrance into a particular tavern to meet with other potential travelling companions. And so on our first session I sat them all down at the table and let them negotiate what they wanted to do. It's been a very interesting dynamic. It seems that my telling them they had personal information not accessible to the others has made them regard that information as a resource to be jealously guarded. They're being very cagy with each other, even as they travel together and depend upon each other's abilities to survive. Which, I suppose, is just the psychological realism I was looking for. It will be interesting to see how long it takes them to learn to trust each other and work as a team. Right now there's almost no consensus building, no sharing of information that would benefit everyone. That will need to change if they're going to make it …

So since I'm putting a fair amount of time into this, I feel I may as well start documenting the storyline as it develops. Some day it will be a nice souvenir for Lucas. I'm not even going to attempt to produce anything of literary value--just tell the story so we'll have a record of what we spent all those Friday evenings doing. In fact, since some of the players might read this, I have to be careful not to say anything about the characters' backgrounds or motivations that hasn't been revealed during the game yet. If you have low tolerance for fantasy geekery, you'd best skip the rest of this post now. Otherwise, you can regard this as the pilot of a weekly series of low-rent serial adventure episodes.

Thus begins...the saga of the Ethrils.

Our story is set in the Forgotten Realms, a fantasy world about which you can find as much or more information on the web as you can about many real countries in this world. Of course, the more I flesh it out for purposes of my own campaign, the more it will diverge from its multifarious other incarnations. In planning my storyline, I drew from the huge array of published resources available, combined a couple of pre-written adventures, and added my own twists and details as needed. I can only plan the storyline up to a point however, because it largely depends on what the players do. Which of course is what makes it fun.

The region that concerns us for now is known as the Dalelands, and our tale begins in Dagger Falls, on a warm summer evening during the month of Kythorn in the Year of Wild Magic. Dagger Falls is a rough frontier town where people openly wear weapons in the street and one senses that social order might be rent by open warfare in the blink of an eye. Until recently it had been occupied by the Zhentarim and their Black Network, but for the moment the traditional ruler of Daggerdale, Randal Morn, has succeeded in retaking the town and is imposing a welcome but precarious benevolent order.

There is an inn in Dagger Falls known as the Red Rock. Contained in a stone and wood structure two stories tall, it has a down-to-earth atmosphere assiduously cultivated by its owner Kessla, a strikingly beautiful half-elf woman with long dark hair and a wry alertness in her eyes. Kessla runs a sort of informal referral service for adventurers. The way it works is that you go there and talk to her about the nature of your intended journey—as much as you are willing to divulge—and pay a small fee. Many people do this, so Kessla talks to a lot of people and has a lot of contacts. Dagger Falls is a well-travelled hub for people looking for opportunity, and Kessla is a well-known figure, a close friend of Randal Morn. If you are lucky, there’s a good chance that within a couple days she’ll send a note up to your room telling you to come into the tavern at such and such a time because there are some people she thinks you might want to meet. She makes no guarantee that these people will be suitable to your purposes, or you to theirs, but she’s known to have a good knack for putting people together who share enough common interests that they can work together fruitfully.

Over the course of the tenday before our story begins, a number of people had come into the Red Rock looking for companions to travel south from Dagger Falls, down to the vicinity where the Tethyamar trail meets the Northride. Six of them, to be precise. The first two came in together, a pair of elves, brothers from Tangled Trees in the forest of Cormanthor. Both were uncommonly strong and rather ungainly for elves, and had clearly spent more time alone in the woods than in polite company. The slightly older of the two, Yonnis Ethril, was a ranger from a guildhall in Cormanthor. He had green eyes and silver-white hair, and wore a small symbol around his neck—the green-fletched silver arrow associated with followers of Solonor Thelandira. His brother Lanatil shared the same eyes, but had black hair. Lanatil’s scruffy looks and hide armor pegged him instantly as a druid, and any remaining doubt was dispelled by the large hawk perched on his shoulder. The brothers told Kessla that they had business in the village of Oakhurst, located along the Northride a few days’ walk south of the Tethyamar intersection. They were both headstrong and stubborn, given to brotherly bickering.

Next to arrive was a fledgling monk from the Abbey of the Vigilant Eye, located somewhere within the dark wilderness of Cormanthor. He gave no name. He too was an elf, and he too had an exceptionally powerful frame. He bore his, though, with considerably more grace than the Ethril brothers, despite the fact that he was a good eight inches taller than they. Like most monks, he wore simple robes and had few possessions beyond his serious demeanor. He also told Kessla that he wished to find travelling companions with whom to go south down the Tethyamar trail in the direction of Oakhurst.

Fourth to arrive was a wizard who had made the long journey across Anauroch from Silverymoon in the company of a trading caravan. Yet another elf, short and definitely not strong of sinew, he gave his name as Elvis the Conjurer. He too sought comrades for a journey south. Before long a fifth elf came in, and this one was tallest of all. He stood an astonishing six feet and a half, and had a magnetic presence that compelled the attention of all who beheld him. His came was Cameron, and he was a young sorceror who, like the Ethrils, also hailed from Tangled Trees. Unlike the Ethrils, Cameron tended to listen to those around him and speak only when necessary.

The last of the six to speak to Kessla was far from being tall. He was a halfling, by the name Ogy Hairsplitter. The only native of Dagger Falls, as well as the only non-elf in the group, Ogy was a rogue whose family had played a role in the resistance against the Zhent occupation. Ogy was restless and unruly, seemingly unable to stay still for long. He knew Kessla, and when he told her that he wanted to go south she told him she had just the party for him, provided he wasn’t averse to being stepped on by elves.

The next night they all met in the tavern at Kessla’s invitation. All were wary of revealing anything specific about their aims, stating merely that they “had business” in the vicinity of Oakhurst. At one point during the conversation, Ogy made a reference to the plague of vampires that had afflicted Daggerdale in recent memory, and the nameless monk was interested in knowing when the last sighting had been. About ten years earlier, Ogy replied. They shared little other information, agreeing simply to meet the next morning to buy any needed supplies and set out down the Tethyamar trail.

posted by CMN at 1:34 AM
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Tell that to Anna Nicole

Smirking aside, I think Randy deserves some kind of most cunning oralist award for this exchange in the Raich argument

Barnett: The point is that economic activity and personal liberty are two different categories.

Souter: That is not a very realistic premise.

Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity.

Beautifully done. Now let's hope that the Chief is truly able to participate in this decision, and that he wants to end his career by fulfilling his federalism revolution rather than by scotching it.

posted by CMN at 8:00 PM
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I am the great and powerful UN!
Pay no attention to the petty bureaucratic fiefdom behind the curtain.

posted by CMN at 4:38 PM
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Don't worry, things were always this bad.

So you're depressed that our democracy is going to hell in a handbasket? We've become hopelessly polarized and partisan? Media is scurrilous and manipulative? Politicians are engaged in character assassination, dredging up their opponents' war records, playing underhanded games with matters of state, and using prospects of war for personal and party advantage? Urban and rural voters don't see eye to eye? The electoral college system is a crisis waiting to happen? People are trying to use legal maneuvers to steal the election, which is in any case too close to call? If only we could go back to the days of high-minded statesmen like the founders, wouldn't it be great?

Well, read this. Welcome to democracy. Remember, it's not a good system, just better than the alternatives.

It's an excellent book. And it's available on audible for podheads.



posted by CMN at 1:32 PM
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If a story occurs and no journalist is there to report it, does it still contain inaccuracies?
Justice Scalia spoke at Michigan. But as Heidi reports, the media heard only what they wanted to hear. Don't miss this hilarious account of her exchange with a nuance-challenged journalist.
posted by CMN at 6:22 PM
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Critical Christian Studies

I received a link to this article from a law school friend of mine, along with the following comment:

I believe these schools are scary. Although it seems axiomatic that judges bring their personal moralities to bear on their decisions, and is likewise axiomatic that those morals shall often stem from religious precepts, I find quite disturbing the recent trend toward religious law schools. I can only hope they are never accredited. This is so because, it seems to me, their students are highly inclined to view the law through the prism of Christian dogma. Not only does this not make for a good attorney, I rue the possibility that such persons would, inevitably, be in positions to fill judcial posts. There can be no room in such positions for people who believe that "God's Law" is more important than "man's " law. Because, by their presence at these schools, these students are wedded to the principle of the superiority of God's Law over man's law, I do not believe that they can ever be really fit to serve in judicial roles. Because they are not fit to serve in such roles, the easiest way to keep them out of such roles is to refuse accreditation for their law schools.

Here's my response:

Let me hasten to agree with you that anyone who believes he can substitute the Bible for the Constitution in ruling on a case should not be made a judge. But let me raise a few points:

1) Don't these schools merely represent the rise of what one might call "Critical Christian Studies" (hereinafter "CCS"), just as we have long had critical race and critical gender studies? Like all crits, these people subject the law to radical criticism from the perspective of a given set of values, and assert that because the current system of legal decisionmaking gives insufficient weight to those values, the resulting "rule of law" lacks legitimacy. I think it's fair to say with regard to any of the "crit" schools of thought, that the more strongly a judicial candidate adheres to it, the less likely he is to feel morally bound to apply established legal rules where that would lead to results his ideology deems unjust. I think, therefore, that to be consistent on this score you would have to say that anyone who is "highly inclined to view the law through the prism of critical race theory" should be regarded as being at least as unfit to be a judge as one who views it "through the prism of Christian dogma." Do you disagree?

2) On the other hand, one doesn't have to take one's crittiness to extremes. Obviously, being committed to the rule of law does not preclude being critical about the current state of the law. Criticism of the law is usually based on some normative vantage point outside the law, and surely it is valuable to have such criticism from diverse viewpoints. Moreover, one can gain worthwhile insights from listening to what crits have to say without necessarily swallowing all six of their impossible things before breakfast. See Don Herzog, As Many as Six Impossible Things Before Breakfast, 75 CALIF. L. REV. 609 (1987). It's all a question of deciding which are, and which are not legitimate means of pushing legal norms in the direction you think they ought to go. A judge might very well sincerely believe, as you put it, "that 'God's Law' is more important than 'man's' law," and yet believe that ultimately her job permits her only to apply "man's law." One might even feel marginally more sanguine about the chances that an adherent of CCS, believing as she does in a God who will enforce her solemn oath to uphold the Constitution, will refrain from reading into said Constitution things she cannot in good faith find there.

3) I find your zeal to deny accreditation to schools presenting competing viewpoints much scarier than the fact that such schools exist. The only reason you have schools devoted to CCS is that unlike CLS, this viewpoint has been excluded from mainstream law schools. Had the leftist tilt of academia not ensured that CLS would get a respectful hearing, competing alternative law schools could easily have been the only places students could go to study with folks like Bell, Delgado, and MacKinnon. Would it have been acceptable to deny accreditation to such schools? Or would it have been more appropriate to apply to them the same neutral principles (given that we non-crits believe there is such an animal) that we apply to any school? Frankly, I don't even know exactly what those principles are, but I imagine (hope) that they prescribe mainly certain minimum standards with regard to competence in providing students with a grounding in key substantive areas of law. I'd agree we should deny accreditation to a "law school" that consisted entirely of bible study, but that's clearly not what we're talking about. As long as someone can demonstrate that he understands the difference between the holding of Erie and his prof's pet theory about Erie (something that might actually be easier when one comes from Ave Maria than from Yale…), what justification is there for disqualifying him from practice because we think his prof's pet theory is pernicious?

4) There is, in any case, no constitutional requirement that an Article III (or state) judge have graduated from an "accredited" law school, or any law school at all for that matter. (Personally, I don't think there's any justification even for making graduation from such a school a legal prerequisite of admission to the bar either, provided one can pass the exam.) If the ABA or whoever it is that doles out "accreditation" starts doing so according to ideological litmus tests, it will serve merely to devalue accreditation in the eyes of those who disagree with the ideology. If we get to the point where any President is willing to nominate, and Senate is willing to confirm, a judicial candidate who believes that his job will be to "preside under the Bible"--a prospect that I regard with as much horror as you, but that I regard as much farther-fetched than you--I think they will not be deterred by the fact that the godless legal academy refused to sanction his views.

5) Your horror at the prospect of these schools and their graduates becoming judges makes a prophet of Justice Scalia. Part of the point of textualism and originalism is that they greatly restrict the extent to which judges can get away with making their personal views determinative in their legal reasoning. Of course they do not do so perfectly, as Nino would be the first to admit. But you pays your money and you takes your choice. A living constitution can change its lifestyle, and if you want a system where the Court can short circuit democratic debate by giving you Roe, you will live forever in terror of the day when five people in robes may decide fetuses are persons.

posted by CMN at 4:35 PM
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So what do I do with this quill?
Here's Dahlia's take on the Pasquantino argument, which was yesterday morning. She's pretty much got the gist of what happened. It is foolhardy to predict case outcomes from what one sees on the bench, but I'm feeling pretty optimistic.

posted by CMN at 11:40 AM
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No need to explain, Eugene.
What you tell me three times is true.
(But what if you told me four times? Would it be even more true?)

posted by CMN at 8:59 PM
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Dad, what's a UN pussy?

This is exactly what Judge Kozinski and I were addressing in this article.  I don't think the copyright holders should be able to prevent Jibjab from using the song in its video (which is hilarious), but I do think they have a right to some share of any profits Jibjab is making.

And yes, I did have to come up with an answer to the above question.  Lucas knows the whole song by heart.   Speaking of which, today is his birthday.  Tonight the three of us are going to see the Alanis Morisette/BNL show, after he gets out of nerd camp.  (He's taking a course in inductive and deductive reasoning.  And loving it.)



posted by CMN at 9:41 AM
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Mourning Moore's Movies
No, not that Moore.  The one that matters.  Alan.  Terry Gilliam was going to do Watchmen, but then the Cold War ended.  (Okay, maybe that was a decent trade off.)  The Wachowskis were going to do V for Vendetta, but then 9/11 went and made the idea of someone blowing up Parliament a little too close for comfort.  They made LXG, and turned it into trite Hollywood pabulum.  So why was I so naive as to even get excited when I saw the link to this? 
 
John Constantine.  One of Moore's best characters, who started out as a bit player in Swamp Thing and went on to have his own series (which was good, though Moore didn't write it).  John Constantine is a Brit.  He's articulate and morbidly witty.  He looks like Sting.  He wears a battered trenchcoat.  And his name rhymes with Valentine, not Ovaltine. 
 
Armed with this information, now go watch the trailer.  And see why I'm still cringing.

P.S.  I forgot about From Hell.  Which I haven't seen, but have heard is pretty good.

Update:  Whoa, looks like Watchmen may well happen after all.  And this preview is enough to make one guardedly hopeful that it will actually be good.


posted by CMN at 8:04 PM
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Go into his parlor
Jim Henley has some great exegetical Spidey Deux posts up. Start here and work up.

He doesn't answer my big question, though: If Doc Ock was actually hoping to get information from PP, why does he hurl a car through the cafe window at him? That should have squashed Parker like a bug, in which case, no info.

I can think of two explanations: 1) He wasn't aiming for PP, just randomly throwing a car like we see him do elsewhere in the film. 2) Just chalk it up to some parasitical-arm-burnt-chip-induced irrationality.
posted by CMN at 5:25 PM
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A blast from my past.

Actually, several. In rapid succession. Pejman sent me a link to this, probably not realizing that I in fact spent the better part of my junior high career playing D&D.

Even I was never quite that nerdy, though.

What I really want to know is, how the hell did that guy have so freakin' many lightning bolts? I mean, it's a third-level spell, and he's firing them off like an elf shooting arrows. Nobody could cast that many spells per melee round unless he was under a Haste spell, and even then I find it hard to believe he had that many memorized. If he'd been using a Staff of Lightning I could see it, but he was clearly empty-handed.

OK, maybe I was that nerdy.

I did have a girlfriend, though.
posted by CMN at 12:01 PM
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Filed
Alright Ted, bring it on. Oh yeah, I forgot...you're retiring. Didn't want to go up against us, eh? Smart move.
posted by CMN at 6:11 PM
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Up to my eyeballs
You haven't been hearing much from me, because I'm burning the candle at both ends, and in the middle too, to get a draft of the Pasquantino brief done. The nature of the case makes the research an overwhelming array of common law (including English, Irish, Scottish, and Canadian cases), tax treaties, legislative history, and scholarly articles. At least I get to find quotes like this to warm the libertarian cockles of my heart:

[T]he nature and incidence of governmental and revenue claims are not dictated by any moral principles, but are the offspring of political considerations and political necessity. Taxation originally expressed only the will of the despot enforceable by torture, slavery and death. Though it may be conceded that in modern times it is more often designed to further a benevolent social policy, and that the civil servant has usurped the position of the executioner as the agent enforcing it, yet in essence taxation is still arbitrary and depends for its effectiveness only on the executive power of the State.

Peter Buchanan Ltd. v. McVey, [1955] H.L. 516 (Eire Sup. Ct. 1951).
posted by CMN at 1:05 AM
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Have to give Trudeau credit, though...
He anticipated this development years ago.

Do the hours of operation strike anyone else as somewhat odd?
posted by CMN at 10:23 AM
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I'd love to have been a fly on that wall...
Which wall? Why, the one in Malibu when Babs's lawyer told her she had to cough up $154,000 and change to pay my client's attorney's fees. Which sum, as I had pointed out, is less than 2% of the damages she was demanding.

P.S. Note to summer associates: the documents linked above should be a lesson to you. Your work counts, it gets billed to clients, and courts recognize it as having value.


posted by CMN at 2:28 PM
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But you will not believe a 13 year old can redesign a fashion magazine.
Oh, yeah. We also went to see 13 going on 30. (Not my idea, but I didn't resist, so I can't avoid all responsibility.) Jenny's cute, no denyin' it. She manages to make this--barely--palatable. And you know, in 1983 I probably knew the Thriller choreography by heart too--not that I ever would have tried to reproduce it. But apart from the rueful humor in seeing how hackneyed and retro is the pop culture of one's own youth, there wasn't a lot to chew on or laugh at. For the under-13 crowd we took with us, there was a worthwhile message: having real friends is better than being in with the cool crowd. But even that got taken a bit absurdly far. They could have had her go back and remain loyal to her friendship with the boy (literally) next door, and we'd know she was on the way to happiness and good character. But did she necessarily have to marry him? I mean, I know I may not be one to talk, but choosing your spouse at 13 does seem a tad early. (I met Paola at 15, but we had several years apart and other relationships before deciding to get hitched.)

Lucas is such a sensitive lad, he was glad that the triangle was resolved by Jenna's altering the time-line so that Matty never met Wendy. She was a nice girl, and he would have been sad to see her get jilted just before her wedding day for no fault of her own, just so the protagonist could have a happy ending. He's been rather preoccupied with the conundra of time travel lately, having also seen T3 and read that Harry Potter essay. Now that John Connor has been warned that he's going to be killed by Arnold in the future, will it still happen? Is it as inevitable as Judgment Day? Heinlein always said that paradoxes are impossible. If you exist now, it means that you won't go back in time and kill your grandfather. Or to be more precise, you didn't. You can't change the outcome of events by going back, because whatever you will do when you go back has already been done, and has led to this result. Of course, your trying to change events may be part of the chain of causality. It'll be interesting to see how Rowling addresses this.
posted by CMN at 3:35 PM
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You will believe a man can grip a soccer ball with his abs.
We went to see Shaolin Soccer this weekend. Lots of fun. Don't miss it.
posted by CMN at 3:08 PM
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If you want to be snide and condescending, you also need to know what you're talking about.
I used to be a big fan of Doonesbury. I still occasionally see one that I enjoy. But this epitomizes why I often can't stand it these days. Look, I'm no fan of many of the directions in which this administration seems to want to take the law. And "strict constructionism" is not, in practice, a terribly useful jurisprudential concept. (It's not about "strictness," it's about accurate reading where possible and reasonable extrapolation where necessary.) But there is nothing inconsistent about believing in "strict construction" and also wanting to amend the Constitution. The former doesn't denote a belief that the Constitution is perfect or should never be altered--it denotes a belief that judges should not be the ones to alter it. Indeed, some people believe that the Constitution needs to be amended precisely to do away with erroneous interpretations foisted upon it by judges who failed to be "strict" enough.

I think one of the tests of good political humor is: Would you still find it funny (or at least appreciate its cleverness) if you shared the views being made fun of? Trudeau used to meet this standard for me. No doubt my politics have shifted since I used to collect his comics, but I don't think that explains why I don't read him much anymore. I love the Onion, and it often barbeques my sacred cows. And while I tend to agree with Day by Day, I sometimes find Muir to be heavy-handed as well. Of course, he's just starting out, while Garry's had 40 years to hone his craft. Instead he's blunted it. Trudeau has come to epitomize the smug liberal mindset, which takes its own superior perspicacity so much for granted that the broadest of pot shots and most facile of sneers pass for clever wit. Which is too bad.

Update: I just got a polite email from Chris Muir thanking me for the comment and asking for input when I think he's off-base. How many cartoonists solicit that kind of interaction?
posted by CMN at 10:27 AM
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But wait!
I thought Columbine happened because the U.S. doesn't have enough gun control laws. Or was it because there was a factory in the neighborhood that had some military contracts? I forget.
posted by CMN at 1:50 PM
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...and Asparagirl is our queen
Lucas and I are going to have lots of fun working our way through this.

Update: SPOILER ALERT. Well, perhaps not technically so, because the people who wrote the essay Asparagirl links to don't really know whether they're right or not. But they've got me convinced. So if it would bother you to have the biggest surprise of the series possibly revealed to you in advance, don't risk reading it.
posted by CMN at 1:46 PM
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Somebody should buy Babs a complimentary subscription...

When the 40,000 subscribers to Reason, the monthly libertarian magazine, receive a copy of the June issue, they will see on the cover a satellite photo of a neighborhood - their own neighborhood. And their house will be graphically circled.

No joke, apparently. Check it out.


posted by CMN at 3:11 PM
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Speaking of outspoken Italians...
With a penchant for self lionization...


posted by CMN at 11:24 AM
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And now she knows how Joan of Arc felt...

Thanks to the generosity of one Ilario Vige, I have just received Oriana's latest by priority mail from Italy. It looks like this book is even longer than Rabbia. Here's what the quote on the back cover says:

This time I do not appeal to rage, to pride, to passion. I appeal to Reason. And together with Mastro Cecco who is once again burned at the stake lit by irrationality I tell you: we must regain the Force of Reason.

I had never heard of Mastro Cecco before. According to the two seconds of research I've found time for, this is apparently a reference to Francesco Stabili, called Cecco d' Ascoli. He was a priest who was burnt alive for saying, with regard to the temptations of Christ, that it is not possible to see all the Earth from a mountaintop as described in the gospels.

I have mixed feelings about the analogy. Yes, Oriana has been figuratively burned at the stake by the European liberal establishment. She's been sued and excoriated and dismissed and ridiculed. But she's also been lionized and feted and sold over a million books. So presumably she has a much easier time than poor Cecco did laughing all the way to the pyre. More importantly, I'm inclined to worry about an appeal to Reason that begins with the announcement that one is a martyr. It makes me wonder whether she's the kind of martyr who is so dispassionately focused on truth that the fact of her martyrdom is irrelevant, or the kind who courts and glories in her martyrdom. Is she Socrates, or Antigone?

We shall see.

Update: Bad choice of words. I should have said "singlemindedly," not "dispassionately." Socrates was quite passionate about truth.

posted by CMN at 10:25 AM
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In the news
Here's a story about the Pasquantino case. To read it, you would think there had been a hearing. But no, all that "telling" that Laura and Ted did was just in briefs on the cert petition.

And here's another one.
posted by CMN at 9:46 AM
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Up to the Supremes
Just got word that the Court granted a petition for certiorari that I played a big role in drafting. So I'm actually going to be writing the briefs for a Supreme Court case, going up against Ted. Pretty wild. I won't be arguing it, of course. Unless something were to happen to the partner I'm working with....

Just kidding Laura. You know I love ya.

So what is the issue, you ask? It's somewhat excruciatingly legal, but here's a fairly user friendly description I wrote for a legal newspaper before we actually got the case:

When is a tax not a tax? When it's property!

Our circuit split of the week concerns an obscure legal doctrine that could have potentially far-reaching consequences to any business that pays--or owes--taxes to foreign nations. First, the doctrine. As you no doubt remember from law school, there is a common law rule of venerable lineage known as the "revenue rule." As formulated in section 483 of the Restatement (Third) of Foreign Relations Law, the revenue rule states that "Courts in the United States are not required to recognize or to enforce judgments for the collection of taxes, fines, or penalties rendered by the courts of other states." Jurists from Lord Mansfield on have given various justifications for this rule, mainly involving reluctance to have the courts of one nation get involved in parsing, applying, enforcing, and--heaven forfend--"subjecting to potentially embarrassing judicial scrutiny" the tax codes of foreign nations. Under the normal application of this doctrine, if a foreign nation--say, Canada--were to issue a judgment against a U.S. company doing business in that nation for unpaid taxes owed to the foreign government, the judgment would not be enforceable in a U.S. court, even if the general principles of comity ordinarily favoring enforcement were satisfied. Last month, an en banc panel of the U.S. Court of Appeals for the Fourth Circuit opened a hole in this doctrine big enough to drive a truck through.

In this case, the truck in question happened to be laden with cheap booze intended to help slake the thirst of suffering Canadian consumers oppressed by their nation's onerous sin taxes. Defendant Mr. Pasquantino and his associates are accused of finding an enterprising way to provide Ontario drinkers with discounted spirits. The government alleges that they accomplished this by purchasing in bulk in Maryland and smuggling in smaller quantities across the Canadian border, so as to share with their customers the significant savings to be derived from avoidance of excise taxes. As we shall see, the element of this business plan most abhorrent to the eyes of the law was not the alleged smuggling, but the nefarious use of a telephone to order the liquor in the first place.

Pasquantino and company were prosecuted and convicted in federal court. The federal prosecutors, however, did not charge them with smuggling. After all, the goods were going out, not coming in. Instead, the prosecutors charged Pasquantino with wire fraud. Those phone calls to the wholesale liquor store, you see, had been made in furtherance of a "scheme to defraud." Here is where it gets interesting. As most readers are undoubtedly aware, the federal wire fraud statute (18 U.S.C. 1343) requires that interstate wires be used in furtherance of a scheme to defraud someone of "property." So whom did Pasquantino "defraud"? Of what "property"? Not his customers, certainly. They got exactly what they bargained for--cheap booze. No, in this case the "property" that served as the basis for the wire fraud charge was the Canadian government's "property rights in accrued tax revenue." U.S. v. Pasquantino, 336 F.3d 321 (4th Cir. 2003). The question thus arises: Isn't a prosecution on this basis tantamount to the U.S. government enforcing Canadian tax law?

An earlier case in the First Circuit had answered this question in the affirmative, invoking the mighty revenue rule to reverse a wire fraud conviction against another group of entrepreneurs involved in the clandestine cross-border tobacco business. See U.S. v. Boots, 80 F.3d 580 (1st Cir. 1996). In Boots, the First Circuit reasoned that even though the case did not require them to enforce a foreign tax judgment as such, upholding the conviction would "amount functionally to penal enforcement of Canadian customs and tax laws." Id. at 587. The first Fourth Circuit panel to hear Pasquantino's appeal agreed with this reasoning, and voted to reverse the convictions in an opinion by Judge Gregory. The case went en banc, and resulted in a majority opinion affirming the convictions, written by Judge Hamilton, who had dissented from Judge Gregory's opinion. In Judge Hamilton's view, the feds' prosecution of Pasquantino did not enforce Canada's revenue law. Rather, it merely vindicated "our government's substantial interest in preventing our nation's interstate wire communication systems from being used in furtherance of criminal fraudulent enterprises." 336 F.3d at 331. That the property belonged to the foreign government by virtue of its revenue laws was "merely incidental." Id.

As Judge Gregory--this time in dissent--pointed out, the majority opinion glosses over an important question. Without interpreting and applying Canada's revenue laws, how could the district court possibly determine that any property interest in accrued but unpaid taxes had arisen? And how could Pasquantino, in ordering liquor from a Maryland wholesaler, have been scheming to defraud Canada of a property interest that didn't exist yet? After all, had he been stopped on the border before a single bottle got through, no tax obligation would ever have arisen. See id. at 342. One might take this logic another step further and wonder, given that wire fraud is a predicate RICO offense, what would prevent Canada from bringing a civil RICO suit to recover the "property" of which it had been "defrauded?" Would Judge Hamilton regard this as federal enforcement of Canadian revenue law, or as merely a vindication of the government's interest in making whole the victims of interstate racketeers?

The question raised by the Fourth Circuit's ruling has potential implications far beyond the context of cross-border rum-running. If widely adopted, this reasoning could pave the way for federal prosecution of domestic acts whose only wrongful element is that they seek to circumvent or avoid payment of taxes owed to foreign sovereigns. Given that there is now a direct split of authority between the First Circuit and the Fourth Circuit's en banc opinion, there would seem to be a reasonable chance that the United States Supreme Court will grant certiorari were the defendants to seek it.

Whaddayaknow? Turns out there really was a reasonable chance after all. I've learned a lot about the case since writing the glib blurb, and there's definitely more to it. First, my RICO hypothesis isn't just a hypothesis. It's already happened a number of times that foreign sovereigns have tried to sue under RICO to recover tax revenue of which they had been "defrauded." So far courts have rejected these claims, saying that they are barred by the revenue rule. This creates an irreconcilable disjunct in which the same conduct constitutes "wire fraud" if prosecuted criminally, but not if made the basis of a civil RICO claim.

Second, by using wire fraud in these cases, the feds are doing an end run around a number of statutes Congress has enacted specifically to deal with these situations. For example, there's a statute on the books to deal with prosecution of international smuggling (18 USC 546), and it allows for such prosecution only to the extent there is reciprocity from the other country, as well as limiting sentencing to two years. By using the wire fraud statute, the feds circumvent these limitations. Which is why they have made this their statute of choice for going after international smugglers when they feel like doing so. Then there's the fact that we actually have a tax treaty with Canada, which states that "[n]o assistance shall be provided" with regard to Canadian revenue claims against persons who are U.S. citizens or corporations at the time that the tax liability is incurred. And even in those cases where we do provide assistance (presumably against non-citizens), we are supposed to do so only when a revenue claim has been "finally determined." See Revised Protocol Amending the Convention With Respect to Taxes on Income and on Capital of September 26, 1980, Mar. 17, 1995, U.S.-Canada, art. 15, S. Treaty Doc. No. 104-4.

Given both of these provisions, it seems highly incongruous to conclude, as did the Fourth Circuit, that the wire fraud statute--adopted without any apparent consideration of international tax issues at all--authorizes federal prosecutors to bring criminal actions against U.S. citizens for evasion of any revenue law promulgated by any foreign country, regardless of whether there is or ever could be a "finally determined" tax judgment on which to base such prosecution.

To most people, this probably isn't the sexiest Supreme Court case they can imagine. But as I've said before, it's important to keep the government on its leash in these areas. So wish me luck.
posted by CMN at 1:40 PM
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I get by with a little help...
Yay! Many thanks to Lynn and Meryl for telling me how to fix my template. One of these days I really must take the time to actually learn html. And how my car engine works.
posted by CMN at 1:19 PM
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SHEEEE'S BAAAAAACK....
Oriana's got a new book coming out April 5th in Italy. It's not the novel about her youth in Florence that she's supposed to be working on, but a sequel to La Rabbia e L'Orgoglio. This one is called La Forza della Ragione--The Force of Reason--and she says it was her "duty" to write it. Apparently it addresses (and defends) U.S. actions since 9/11, including the war in Iraq, and (of course) goes after the many detractors of Rabbia. It's sure to be lively reading. Nobody wields a dagger like Oriana. I hope that it's more than polemic this time, though. I hope this book lives up to its title as well as the last one did.
posted by CMN at 11:03 AM
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Man, is this depressing. As is this. I've cut the administration a lot of slack in being willing to believe that going for democritization in Iraq is a good proactive move in the WOT. But it ain't gonna work if we can't do better than this.
posted by CMN at 2:24 PM
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OK, anybody know how to get rid of the annoying blank space at the top of my blog?

And don't just say "get off blogger."
posted by CMN at 11:55 AM
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Every Breath You Take

Indomitable soul, cold turkey sushi addict, and former cotenant of mine in the Book Review Office at Michigan Law Review, Rosemary Quigley, is guest diarist on Slate this week. She recently (on my birthday, in fact) had a double lung transplant. Go, and read, and marvel at her spirit, and at the miracle of modern medicine. You will never take breathing for granted again.
posted by CMN at 11:53 AM
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West Side L.A. Story

They're doing a version of Bernstein's magnum opus in Lucas's music program at school. Of course, they had to make a few changes to render the material appropriate for fifth graders. It's okay to sing and dance about gang rivalry, but we wouldn't want anybody dying from it. We certainly wouldn't want any suggestion of racial or ethnic tension. No need for that Bernardo character at all, in fact. (Come to think of it, Jets and Sharks would make good names for soccer teams, wouldn't they?) And most important, we absolutely can't have any glorification of the Greatest Of All Evils. You know what I mean. The one that required the following lyric rewrite:

When you're a Jet, you're a Jet all the way
From your first knucklesmack to your last dying day.

So instead of "Make Love, Not War," we now have "Make War, Not Smoke Rings."

I can understand the desire to branch out musically, but if you think certain material is inappropriate as written, don't use it. What is the point of butchering it like this? Even leaving "artistic integrity" out of it, how is the end result any less pernicious to young impressionable minds than the original? Now we have essentially a musical comedy about gang violence that studiously ignores the bloody bereavement that such violence causes in the real world. These kids live in L.A. Granted, the Crips don't do much recruiting on the Santa Monica Promenade, but still. If I were a Concerned Busybody Parent, I'd have half a mind to strut in there in high dudgeon and complain about this morally contextless glorification of gang membership.

But I'm not, and Lucas saw the real movie a long time ago. He's even been to Italy, where people still smoke. So I'm really grateful, in a way. They're teaching him a valuable lesson about the silliness of bowdlerization.
posted by CMN at 11:28 AM
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Yes, I know my case got linked on Drudge
Both Drudge and Smoking Gun are reporting it slightly wrong, by the way. The court hasn't ordered her to pay us anything yet. That's what the motion we filed is for.

posted by CMN at 12:18 PM
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More grist for the mill
Here comes Eugene with a post distinguishing same-sex from interracial marriage, and explaning why, while he supports same-sex marriage as a political matter, he doesn't think the Equal Protection Clause requires it to be made available.
posted by CMN at 3:59 PM
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Here's another essay well worth reading. Thanks to Stuart Buck for pointing it out to me.

Isn't the blogosphere wonderful? Ask, and you shall receive.
posted by CMN at 2:08 PM
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What he said.
posted by CMN at 12:37 PM
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Any takers?:

If you are one of the thoughtful opponents of same-sex marriage whose opposition is based on policy reasons having nothing to do with prejudice, I could really use your help. See, I'm open to the argument, or to the possibility that a compelling argument exists--I just honestly don't get what it is. This disturbs me, because I generally like to think I understand both sides of important questions like this. If you're willing to help me out, here's what you can do:

1) Please explain what you regard as the purpose or purposes of the institution of marriage, and list both the rights and the responsibilities that you regard as essential to implementation of these purposes.

2) Please explain what would prevent same sex couples from exercising the rights and fulfilling the responsibilities you have identified, or else explain why their doing so would be detrimental to the purposes behind the institution.

Thanks in advance for your time and effort. Since I don't believe in posing questions I'm not prepared to answer, I'll be working on my own responses too. (Just don't hold your breath.)

[I earlier posted these same questions, along with some basic thoughts on equal protection, here, in a place far more likely to be seen than my obscure little angle of the blogosphere.]

Update: Well, here's one response to question 2).

But seriously, here's a good answer to both questions. I find it ultimately unpersuasive, but it will take me some work to explain why.

Well, not that much work.

Ah, now here's an answer I need some time to chew over.
posted by CMN at 1:57 PM
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Attack of the Zionist Yuppies
The long promised, never--till now--delivered blog with two backs has finally made its debut. Oh frabjous day! Caloo! Calay!
posted by CMN at 10:14 AM
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An idle thought. I've peripherally followed some of the hoopla over Charlize Theron's new movie, Monster. It sounds worth seeing. It sounds like she put in a great peformance. I can't help but wonder, though. Would people be quite so awestruck with it if she looked like that (or closer to it) in real life?
posted by CMN at 10:09 AM
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Why, oh why, couldn't we just have a president who could combine the resolve in action of our present one with the ability to articulate his views like this?

I can dream, can't I?


posted by CMN at 7:02 PM
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Nel mezzo del cammin di mia vita

Well, I hope not. But today I reach the age that Dante so designated. I'm far from having followed la diritta via, but I certainly can't complain about where I've found myself.

Course, it helps a lot when your Beatrice actually sticks around. Grazie, amore.

Update:

Should I regard it as a bad sign that today's feature on my word origin desk calendar is "anthrax"?
posted by CMN at 10:49 AM
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