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


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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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