Sunday, July 27, 2008

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.”

Sunday, July 20, 2008

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.

Tuesday, July 15, 2008

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!”

Saturday, July 12, 2008

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.

Sunday, July 6, 2008

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, 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:

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.