We're Men of the World Ain't We?

Mr. President (for the next 30 odd days): On Thursday evening last, after the Old South raised its long-forgotten head and nuked Congress’ bridge loan to the American auto industry to oblivion, in a way that the cannon of Fort Sumter could only dream of, you said that you were “prepared” to help us. It’s now late Monday night, more than 4 days later and unless the check got lost in the mail, you haven’t done anything. Anything at all. Are we to exercise the patience that Alfred Doolittle in Pygmalion requested of Henry Higgins, while he thought he was bargaining to sell off his only child? You’re willing to help us; you’re wanting to help us, you’re waiting to help us. If you’re prepared to help us, just what are you waiting for? Why can’t you or your Treasury Secretary just pick up a pen and write the damn check.

Never mind that you’ve done this already more than once with absolutely no strings, conditions or even “plans” from the Wall Street gangs. Never mind that an industry that not only puts food on the table for tens of millions of Americans and has done more to create the middle class and the small business class that you’re repeatedly said are your concern is on the brink of catastrophic collapse. Never mind that too many Republican have obviously sold their souls and a few other things to foreign companies, who are already showing that when push comes to shove they will act, as they should, in their own county’s best interests. Just today, Toyota announced that it is halting construction of its plant in Alabama that was to build the Prius. So, how many Alabamans won’t see one of those “competitive” paychecks your Congressional cronies have been slamming our compatriot automakers about? How much longer do you think it will take Kia to realize that continuing to build a plant that is to produce a SUV just doesn’t make any economic sense, despite all the tax dollars and other goodies that have been thrown at them?

There’s no escaping it: you’ve betrayed your country even worse than Benedict Arnold. I just hope we’re still around when the President-elect is supposed to take office next month.

When Jesus Rhymes With Pieces

I’ve started listening to a country music station, while I drive around or to or from work, my vehicle being only coincidentally a Ford F-150. And, based on the music that’s been getting air time, I began thinking that John McCain never had much hope of being elected President of these United States. In my estimation, listeners of 'country' radio are pretty conservative, politically speaking (not entirely true, according to the polls). I think that for the most part, country music, the singers, the listeners and everyone else who is involved in this true American industry are an excellent, valid proxy for the great Silent Majority that Richard Nixon told us about.

And so, I don’t think McCain didn’t win their vote, because they became enamored of Barack Obama, who it has to be admitted has a pretty liberal platform (which got him my vote). McCain has lost their vote, because the single issue he really cares about was the war in Iraq, and the attendant restoration of America’s military glory. Let’s be clear. When the US invaded Iraq in 2003, country music was right there with lots of songs that echoed and reechoed patriotism: what a great country the USA was and how great it was to be an American. And that fervor, perhaps muted somewhat, continued through the general election in 2006.

This year was different, though. The songs are about us, everyday people and the choices we make, good and bad.  The songs are reflections, even meditations, on how we arrived or came to be where and who we are today. As with a lot of musical genres, there’s some outstanding poetry of the kind looking inward and taking stock. While I’m speculating, it strikes me that Country Music is pretty quick to take a pulse of what and how we’re thinking. And, what they’re serving up in response tells me that waving the flag and brash boasting about being American isn’t where Nashville thinks its audience is right now.

Brooks and Dunn and “The Red Dirt Road” says it all pretty well for me.

Yes, Bill Ford: We Still Matter

Bill Ford , the Executive Chairman of Ford Motor Company, where I work as a lawyer, wrote an op-ed piece this week in the Detroit Free Press entitled “Why Manufacturing Still Matters”. Bill (that may be presumptuous; I’m the type that if I were to be introduced to him in the hall or in a meeting could only address him as Mr. Ford) raises a critical topic that not only would the candidates for President do well to seriously contemplate and make a central theme of their campaigns, but something that every one of us should take to heart. While making a strong case for the importance of the automotive industry to the American economy in general and Ford’s role in particular, I think what he’s really saying is that the American way of life is in jeopardy.

Our obsession to buy the most stuff at the cheapest prices has, like most addictions, inflicted what may be permanent damage on the quality of life in America. We have put our individual selves above the well being of the community, the commonweal , at the cost of not having anyone to help us, when we get thrown out of job, because it’s been outsourced to a lower cost country. With the vast educational resources at our disposal, it flabbergasts me that so many of us have failed to make the causal link between buying stuff dirt cheap and the loss of decent paying jobs here at home. If we’re not willing to pay the price of goods and services performed by our next-door neighbors, how can we have any reasonable expectation to continue to hold our own jobs with the wages and benefits that we’ve come, if we’re honest with ourselves, to regard as entitlements.

In his opinion piece, Bill makes an allusion to how the people of other countries behave with respect to their own economies that I think deserves some explication. In many other countries, national pride and loyalty are not just topics of conversation, but something they do every day, by buying goods and relying on services that are produced locally. To be sure, the governments of some countries, such as Japan or Korea, have institutionally reinforced this preference with trade barriers and domestic advantages that violate their international commitments to liberalized trade, but I do believe that even if every one of those barriers was removed and the governments even went so far as to promote the “benefits” of buying foreign goods, we wouldn’t see much difference in their behaviors, because consciously articulated or not, I think these people “get it” that they will prosper if they take care of themselves and that their individual well-being is in the hands of the collective well-being.

As we Americans contemplate having to make serious cut-backs in our household budgets, think how nice it would be to be able to borrow a movie or book on DVD from the local public library instead of buying or even renting it. But, in many places, we can’t, because we’ve refused to pay taxes or authorize bonds that would pay for decent budgets. That’s what Bill Ford was talking about: we face the prospect of waking up some day and finding that we live in a structure surrounded by a bunch of other structures, and not a neighborhood in our town in our country in our state in our country. To me, that matters.

Here's to You, Jim Crumley

Jim Crumley died this week and those of us who place value on literature suffered a great loss. I can say that I knew Jim, but I can’t say that I knew him well enough to know whether or not he would remember me. He was my instructor in a course of Detective Fiction at the Yellow Bay Writers’ Conference on the shores of Flathead Lake in Montana in 1990. I was and remain a devoted fan and would-be writer of the hard-boiled detective genre. Jim was a master of that genre and the degree of his accomplishment place in the first ranks of great American writers. I’m not saying anything new, but “The Last Good Kiss” may be the last good American novel.

I drank with Jim and Bill Kittredge, who had known Jim forever it seemed, and Martha Elizabeth, who I think had met Jim pretty recently, and most of the rest of our class and the woman who became my wife, all of whom were meeting Jim for the first time. But, I remember, accurately or not, that it seemed as if Jim had known each of us all equally long. I suppose that quality was in large part what made him a great writer.

We talked. We talked about a lot of things: writing, of course, books, naturally, drinking, obviously, ourselves, what else. And we drank. One night, we heard a line that if it had been written would have probably been edited out as improbable nonsense: “There’s no more beer.” There wasn’t. We had drained every last drop at the conference center. And so we did the only logical, but not necessarily the most sensible, thing. We all piled into cars and drove up the road to the Sitting Duck, where the talking and drinking continued. Yes, we were living one of Jim's books.

I was falling in love with a woman who’d come to the conference. But was falling in love in the messy, emotion riddled way I (and many others, but I’m not them) did. In addition to advice on writing and sharing stories about a bar near Point Defiance Park in Tacoma, where I had grown up, and Jim had an ex-wife and kids, Jim and Martha gave me advice on the immediate affair of my heart. They knew what they were about and, maybe, I was a good student. I pursued her after we got back to the City and now we’ve been married for going on 15 years. It’s a good thing Carrie doesn’t know anything about Milo or Sughrue, because our life together too many times seems to be an episode from one of their cases. Or maybe, she does know, and just lets me fool myself into thinking she doesn’t. However that may be, much of my life came about because I went to a writers’ conference and was taught by Jim Crumley. Here’s to you, my friend.

Remembering 9/11

Ford’s General Counsel, David Leitch, who happens to be my top boss, has created a blog for the office. Only the General Counsel and his direct reports can make posts, but the rest of us are encouraged to make comments on the posts. His post for Thursday, September 11, 2008 was essentially a lament that “9/11” had become just another day, that he feared we are forgetting the horror of that day, and more important that we may be forgetting, or so I understood his post to suggest, the evil we were called to combat that day. The post even had some nostalgia for some of the things that happened after those planes crashed into the World Trade towers and the Pentagon, such as Parisians singing the “Star Spangled Banner” in front of the Arc de Triomphe. I really respect David; he’s done great things for our company and I hope he will stay on, because Ford needs him, but on this I have to say that he got it wrong.

First of all, I can’t imagine many, if any, Americans being able to forget 9/11, even as much as many of us may wish, even every day, to do. Everyone who flies gets a memory jog when we have to remember all the things we can’t take with us, such as nail clippers and a corkscrew and now even a bottle of water. And then, we have to practically disrobe just to get through the security gate. But, maybe that’s either obvious or petty or maybe both. There are more significant reminders of 9/11: we’re much more aware of the Middle East and how big a ‘thing’ Islam is in the world, although I fear that what we think we know of these is poisonously tainted by the view that Arabs and Muslims were the same as the terrorists that actually perpetrated that horrific act of cowardice on that all too memorable day. And then, there are many of us who cannot forget all of the things that happened after 9/11, but will never understand the connection between 9/11 and its supposed progeny: the war in Iraq (this is an opinion piece that appeared in the Washington Post on the true cost of the Iraq war), the Department of Homeland Security, unilateralism as US foreign policy (including lashing out at those same Parisians and most of the rest of the Continental Europeans as “Old Europe”, because they dared not join US on our own jihad) are just a few examples that come to mind.

But, in the end I was personally offended that someone could think that people he works with don’t have the same thoughts or place the same importance on historical events that he does. I, for one, looked out the window at home and thought that the weather that day, which was simply glorious, a day in which one could only think the best of thoughts, was exactly the same sort of day it was on September 11, 2001. I found myself praying that something awful wouldn’t happen, again. And, I dared to hope that we might all return to a time, when a September 11 could be appreciated and remembered for the day it was on that day, and not some terrible day in history. It made me think that “a day which will live in infamy”, December 7, 1941, the day that the Japanese attacked (and all but destroyed) Pearl Harbor, is for the most part today, just 18 more shopping days before Christmas, which to me is the truest sign of our “victory” in World War II and the goal we should all have in the war on terror that was declared on 9/11.

The Fraction

For the past week and the upcoming one, over six hundred bishops of the Anglican Communion have been meeting in the United Kingdom at the Lambeth Conference. The general purpose of this convocation is to review the past decade and set the course for the Anglican Church for the next ten years. This Lambeth Conference is particularly significant because it comes at a time of great “distraction” and “division” within the Anglican Communion. But, not all of the bishops are there and not because they’re busy or can’t afford to come (the Anglican Communion has a program to ensure that any bishop who wants to come to Lambeth will be able to do so). More significantly, several of the primates, the leaders of the various national Anglican churches, are boycotting this convocation. And, some of the attending bishops won’t take Communion with certain of their colleagues.

What is it about Communion these people don’t understand? The crux of these who have absented themselves from Lambeth and who won’t participate in the central act of Anglican worship is that a number of the rest of us (who, by the way, are at Lambeth (or in one notable case, close by in the neighborhood) and glad and grateful communicants at every Eucharist) have fallen away from the traditions of the Anglican Church and are following a “false gospel”.

I am a so-called “cradle Episcopalian”, which means that I was baptized as an infant into the Episcopal Church and have never attended on a regular basis any other Christian denomination or other faith. Generally, I think this is a silly distinction, but when it comes to bona fides on Anglican tradition, my happenstance of religion comes in quite handy. I am old enough to have spent my childhood ‘doing’ Communion with the 1928 Book of Common Prayer. It doesn’t come more traditional than that. And what I recall most from that liturgy is the invitation to Communion, what we had to do in order to come to the Lord’s Table:

If you are in love and charity with your neighbors and intend to lead a new life, draw near with faith …

Traditionally, there was a condition to taking Communion. In order to even approach the Lord’s Table, much less take the wafer and the wine, we had to be in “love and charity” with our neighbors. The word “neighbors” isn’t defined or qualified, so anyone who is or could be our neighbor is included. On second thought, maybe that’s precisely why they haven’t come to Lambeth or won’t take Communion with the others: they know they aren’t in love and charity with their neighbors and have no intention of leading a new life.

But, it is now thought by many that since it is the Lord’s Supper we celebrate in Communion, that God’s invitation to the Table has no conditions or that we mortals can’t possibly conceive and thereby can’t enforce whatever conditions they might be. In fact, the invitation should really be considered a command, no different than when we ‘invite’ our children to go to bed or brush their teeth. The invitation is something we are told to do for our own good.

And, when we decline the invitation, we actually break the Communion. To be complete, everyone must participate. That’s the worst part of all of this. Not the debate, not the differing views, all of which have defined and invigorated the Anglican Communion from its inception. It is that our Communion is not complete, because there are people missing. That is something that the “remembrance of them [should be] grievous unto us, the burden of them intolerable.”

How Do We Solve a Problem Like Obama?

Unless you’ve been vacationing on Mars (and if you have, I’d love to hear about it, ‘cause that would be the coolest vacation I can think of), I’m sure you’ve heard about the latest Obama kafuffle: the New Yorker magazine cover. For a view of the actual cover and a pretty good overview of what the furor is, go to The Swamp (Chicago Tribune's Washington website).

Apparently, the majority of us don’t understand satire anymore, including, I would submit, the staff of The New Yorker. The basic problem is that only the truth can be satirized; lies and vicious rumors can’t. It is generally agreed that the actual targets of the cover were the conservative rumormongers and poseur muckrakers. But then, the cover should have featured them doing something indisputably ridiculous like, I don’t know, John McCain sitting down with Mahmoud Ahmadinejad, the President of Iran, with the Obama smear sitting on a shelf. The satire failed because it depicted the victims of the rumormongers. I chalk this up to the deterioration of the quality and breadth of even our best educated.

And, now that I’m on the topic. Why haven’t I seen anything that counters the preposterousness of the Muslim rumor with the observation that not a month before, Obama was being vilified for being a 20-year member of a Christian congregation led by the justifiably pissed-off pastor Jeremiah Wright. In his historically important speech A More Perfect Union, Obama talked about Pastor Wright, explained the context and history of this man’s contribution to the struggle for racial equality in these United States and, how could we forget this, the point of departure by Obama from Wright: that Obama continues to have hope and faith in the American dream, whereas Wright has given up.

In the end, Obama is not the problem. We are. We’ve lost our way and all that Obama and Hillary Clinton, for that matter, have been trying to do is lead us back home.

Obama Can Be Funny – Yes, He Can

The New York Times ran a front-page article today on the troubles our late-night Court Jesters and lampoonists are having with Barack Obama. I read along dutifully until the last sentence in which one writer was quoted: “We’re hoping he picks an idiot as vice president.” I belly-laughed. That was funny. So, there is some humor in the guy after all.

Now, I’m no comedy writer, but I thought of two jokes that involve Obama within seconds of reading the article that are pretty funny and worthy contributions to the political debate and overall process for choosing the next President of these United States. The trick is to think of humor that doesn’t necessarily directly attack or pick up on something about Obama himself. If we focus on those around him: those who support him, those who oppose, and probably most fruitful, those who aren’t sure, we’ll find plenty of humor, more than enough to stock every one of the nightly monologues and running jokes until the election, and after.

Here’s one in the Jeff Foxworthy vein: You’re know you’re a redneck when you’re it ticks you off that Obama wouldn’t eat one of them Krispy Kremes while on the campaign trail.

Here’s another one. Obama is in a diner in small Pennsylvania coal town. He’s offered a lard-baked doughnut and a shot of rot-gut, which along with a mug of tar-like coffee has been the miner’s or the mill-worker’s breakfast for generations. An angel pops on his left shoulder: “Oh no, honey, you can’t take that; it’s really bad for you.” But, a devil pops on the right shoulder: “Oh, yes, you can. Yes, you can!”

And the Person behind Mr. Micawber is ….

I adopted the ‘nom de blog’ Mr. Micawber for this blog, and then told you I wouldn’t hide behind the character. It took a few days and a comment or two from my wife to realize that not revealing my name was doing just what I had promised not to do. Also, I remembered the old rule that if I was concerned or embarrassed for someone to know that I said something, I probably shouldn’t have said it in the first place. Not being accountable for what one says is just as much hiding behind a character as pretending to be someone else. So, for the record, my real name is Paul Vandevert (aka Paulsen K. Vandevert).

As my first two posts suggest, I am a lawyer specializing in international trade and Customs issues. I work for Ford Motor Company and live in Dearborn, Michigan. I am married and have one son. That’s enough for now, I think. You’ll get to know more about me through my posts.

WE the Gloves of these United States

WE the Gloves of these United States …?

On July 3, the day before Independence Day, when we’re supposed to try to remember just how we Americans came to be enjoying the sun, the beer and family and friends in peaceful and relatively prosperity, the US Court of International Trade, the federal court specialist in Customs and international trade law, issued an excellent lesson in our very own Constitution. The CIT dismissed Totes-Isotoner v United States for failure to state a claim for which relief could be granted. In this case, Totes claimed that the Customs’ duty rates assessed on men’s gloves, which are 2% higher than the duty rates for women’s gloves violate the Equal Protection clause of the Constitution. With the tolerance and gentleness of a doting parent for a child, the Court dismissed Totes’ case without prejudice, meaning that if they can come up with better facts, they can have another try.

But, I, for one, don’t think that’s going to happen. The CIT did not, as one law firm claims, dismiss this case on a mere technicality. See Sandler, Travis & Rosenberg newsletter. (I would argue that dismissal of a case for failure to state a claim is never just a technicality.) Rather, the Court went to considerable lengths to explain what to me has been obvious from the moment I heard about this lawsuit: THE CONSTITUTION PROTECTS PEOPLE, NOT THINGS. For a Customs duty or any other tax for that matter to be unconstitutionally discriminatory it must discriminate against an identifiable class of people. That we pay a higher import tax on men’s gloves does not mean necessarily that the tax discriminates against men.

Judge Pogue, who wrote the rare three-judge panel’s decision, pithily cited an excellent example of an unconstitutional discriminatory tax: “A tax on yarmulkes is a tax on Jews.” Totes at page 15, quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993). To me, that one example says it all. For a Customs duty to be unconstitutionally discriminatory, a group or class of persons against whom that particular duty discriminates must be identified and the injury they suffer as a result of that duty proven.

My colleagues’ in the Customs bar confusion is, perhaps, understandable. Customs law is almost entirely about things. Most of the legal issues revolve around those things: what are they?, what are they worth?, where did they come from?, how were they made?, what are they used for?, etc. Even when the issue involves people it usually is what the person did or didn’t do with the thing. The most dramatic action Customs can take is to seize and forfeit (take away) goods. Legally, Customs’ action is against the thing (see in rem), not the person who did something wrong with the thing.

“But”, my colleagues will say, “what about US Shoe, in which the Supreme Court found the Harbor Maintenance Tax to be unconstitutional?” “Yes”, I would respond, “what about US Shoe? That case proves my point. In US Shoe”, I would continue (a bit pedantically), “the Supreme Court found the HMT to be unconstitutional because it taxed exports. Like the yarmulke tax, the HMT was unconstitutional because it taxed exporters (albeit in violation of the Export Clause, not the Equal Protection clause), producers of goods manufactured in the United States, which the Founding Fathers wanted to promote.”

It’s most important to remember that the Declaration of Independence and the Constitution were about people and how we want to live our lives and be treated by others. Their opening words show that: “When in the course of human events …” and “We the People ….” The CIT was just being nice in dismissing the case without prejudice; there’s really no Constitutional issue here. There never was and there never will be. If I’m wrong, send me a pair of men’s Totes gloves, duty paid COD and I’ll eat them.

Crime & Punishment: The footlinks.

I found most of the information about the Russian Customs case against BoNY in the Wall Street Journal’s Law Blog. WSJ Law Blog. For an interesting blog that covers most things Customs as well as other stuff like the life of a cyclist commuter in Chicago, check out my colleague’s, Larry Friedman, blog @ Customs Law.

Crime & Punishment American Style?

The Russian Customs Service has sued the Bank of New York Mellon (BoNY) in a Russian court for its part in the illegal wire transfers of nearly $7.5 Billion out of Russia in the 1990’s. Russian Customs seeks three times the “loss of revenue”, OVER $22 BILLION AS A FINE. As a Customs lawyer for over 20 years, this case doesn’t seem that unusual or even draconian. Sure, the numbers are staggering, but the money that was siphoned out of Russia, at the very moment that their economy was collapsing, was staggering, both in quantity and potential harm to the country.

But, there’s a twist. The law BoNY (founded in 1784 by Alexander Hamilton, one of the foremost American founding fathers) allegedly violated isn’t Russian; it’s the American RICO statute, which was originally intended to catch criminal organizations like the Mob and drug cartels with civil monetary penalties. In fact the Russians seem to know so little about RICO and how its supposed to work, they’ve retained an American lawyer to represent them, who not at all coincidentally has taken the case on an almost uniquely American arrangement, contingency (meaning he doesn’t get paid unless Russian Customs collects). Naturally, BoNY’s defense team is all American too, including a former US Attorney General (and Governor of Pennsylvania) Dick Thornburgh.

The very-high stakes question the Russian judge must answer is the one I and many others of us have: what place, if any, an American law against an American defendant for a crime that took place outside the country has in Russia? What makes this case particularly troublesome is that, to be quite frank, Russia does not have much of a reputation or history as a rule of law country. So, the odds of BoNY getting a fair shake would seem mighty slim. And, what is most offensive to me is my sickening hunch that the Russians’ American lawyer is betting heavy on Russia living up to its reputation.

But, if I read the most recent article in the New York Times right http://www.nytimes.com/2008/07/04/business/worldbusiness/04bony.html?pagewanted=all), his bet may turn out just as well as the bets on Big Brown at Belmont. I think the Russian judge is struggling mightily to do the right thing. That’s why she sent Governor Thornburgh home without letting him testify in person before her and is considering the opinions of both sides’ experts on affidavits. I’ve had my own extremely personal experience with a Russian judge in a Russian court (the adoption of my son). That experience and the developments in BoNY’s case give me some hope that justice will be done.

But, will that American lawyer get the justice he deserves? If only he could be penalized in an American court for violations of foreign laws that make it illegal to be unpatriotic or disloyal to your own country. An ending I’m sure Dostoyevsky would think poetically just.
See also, the Wall Street Journal Law Blog article: http://blogs.wsj.com/law/2008/06/04/will-the-russians-go-for-rico-moscow-goes-after-bank-of-new-york/

Welcome to the Punchbowl

A punchbowl is something in which punch is served. Punch is a concoction of whatever the particular mixer of the punch decides to put in it on that day in that place. I see this blog as a punchbowl for my kind of punch. A serving up of topics and thoughts on my mind that I hope will interest and inform you.

Instead of using my real name, I have chosen as my nom de blog a famous punch mixer, Mr. Micawber, a character in Dickens’ novel, David Copperfield. (See the Google Books link to David Copperfield, but go to your local library, check out the book and read it.) I promise not to hide behind the literary character and I won’t pretend to be anyone other than who I really am in real life. Frequent visitors and readers of this blog may eventually figure out what my real name is. But, isn’t trying to figure just what’s in that punch a fun part of the experience of drinking it?

So, take a drink and enjoy. And, be sure to come back for more tastings.