Monday, May 29, 2006

Klaatu barada nikto

I am living without critical technology. Just like in The Day the Earth Stood Still, minus Gort the big robot. Obviously, it is not my computer or an internet connection.

No, it is my garage door opener, which mysteriously stopped working yesterday. Now, when returning home, I need to stop, get out of my car, bend over to reach the handle, and lift the door (preferably with my legs so as not to hurt my back).

It is amazing to me how much I have taken for granted this masterpiece of engineering. For most of my life, I never gave a second thought to how the garage door would open. According to this link, the electric garage door opener was invented in 1926 by one C.G. Johnson by what is now Overhead Door Corporation. I do not know why he was overlooked for a Nobel Prize of some kind. Same goes for the guy who invented air conditioning (which is another story of technology on the fritz in my house).

This event has caused me to take stock of my tech-dependent life. Suddenly, with a manual garage door and inadequate A/C, I feel like a contestant (or is it "guinea pig") on one of those PBS series where they drop modern people into a replica of the tech-deprived past. Perhaps I am in 1900 House or the impossibly fussy Manor House. Either way, one thing has not changed: I still do not have cable television. Which is bad because, at the moment, I am not getting UHF.

I don't watch a lot of UHF except the Simpsons and the occasional episode of House. But, the fact that my garage door, A/C, and UHF are not in perfect working order is making me a bit nuts.

Oh, and my Treo keyboard never got fixed.

I do love my new MP3 player. It is a Samsung Z5, which is a very close replica of an Apple Nano but it plays nicely with a number of online music stores. It has a really nice screen and a cool feature of displaying the album art related to the track currently playing. Only . . . that doesn't seem to work.

Oy. Maybe I would be better off volunteering to be in the next version of Colonial House.

Thursday, May 25, 2006

Caution: Courts at Work

A couple interesting decisions have come out recently. Well, I read them recently.

In Gilda Indus. v. United States, the Federal Circuit had to deal with a motion to dismiss a case for failure to state a cause of action for which relief can be granted. The underlying question was whether the Court of International Trade can give any relief to a company that wants its product, imported toasted bread (really), removed from the list of products from the E.U. subject to retaliatory duties. The duties were imposed to compensate the U.S. for the E.U. policy on meat raised with the use of hormones.

There are a bunch of good issues in the case, but a few are worthy of note. First, once again, the CAFC has reminded practitioners that a protest is not the only way into Court to challenge a liquidation. In this case, Customs had no authority to decline to collect the retaliatory duties imposed by the USTR. So, the Court reminds us, there was no point in filing a protest. This is the same reasoning the CAFC used for Harbor Maintenance Tax cases.

On the substance, the plaintiff did not have much luck proving, as a matter of law, that its product should not be on the retaliation list. But, it did show that there is a fact question about whether the USTR had properly invoked an exception to the requirement that the list change periodically. Under the exception, the USTR can hold off changing the list if it believes a resolution of the dispute is imminent. So, the CAFC send the case back to determine whether a resolution is, in fact, imminent.

Along the way, the CAFC pointed out that retaliatory duties need not affect merchandise similar to that affected by the measure found to violate the WTO. Another point was that the U.S. can collect retaliatory duties in excess of the WTO recommendation because the WTO decision is not binding on the Court.

But, the thing that caught my eye was a whether the plaintiff had standing to sue at all. Standing is a constitutional requirement for getting into federal court. Basically, the requirement is that the plaintiff be the person really hurt by whatever they are suing about. So, if your neighbor's house burns down, you don't get to sue the incompetent electrician who did their wiring. Here, the CAFC asked whether the plaintiff was the kind of person Congress intend ever be allowed to get into court on this question. Were they in the "zone of interest." After all, the whole point of these retaliatory duties is to hurt importers and, indirectly, exporters, and, even more indirectly, the exporters' home country. Why let the importer get out from under the duties by going to court?

For lawyers, this brings to mind Long Island railroads, boxes of fireworks, depot scales, and one strange accident. Unfortunately, that is another story entirely.

In the end, the CAFC raised this interesting issue and then said they need not decide it because the government did not raise it. You know what that it? It is a heads up to government to look for that issue and raise it the next time it comes up.

The other interesting case is United States v. Optrex America from the Court of International Trade. This is interesting only in that it is basically a list of ways a company can get in trouble with Customs. Here, as a service to my loyal reader, is the lesson to take from Optrex:
  1. If you get legal advice on something, follow it. If you don't like it, get a second opinion.
  2. If you have a ruling on something, follow it. If you don't like it, go for a new ruling or go to court.
  3. If you get a question from Customs during an investigation, answer it truthfully. Don't spin the facts because the agent will not appreciate it.
  4. Saying you are cooperating is not the same as actually cooperating.
  5. Your internal "expert" better know what he or she is doing.
Lastly, the Court made it very clear that "reasonable care" requires more than just asking a lawyer or a broker, or having a procedure. It is a combination of expertise, policies, procedures, and communication building toward a reliable, if not necessarily correct, conclusion.

Both cases are worth reading.

Friday, May 19, 2006

Freaks on a Plane

I had to go the Washington this afternoon. I am amazed that American flies as many aging regional jets as it does. These little planes are really close quarters. The whole time I had my notebook open, I was worried that the guy in front of me would lean back and crush my display. Why is it that airplane seat backs are so perfectly designed to catch a display in the cavity where the tray table stows? It seems almost intentional.

Across the aisle was a plain enough, slightly geeky looking guy with an iPod and a notebook stuffed in the magazine pocket. I am pretty sure that is a violation of some FAA rule. Shortly into the flight, I noticed that he had a large stack of 3 x 5 cards in front of him. These cards were printed with a reproduction of the cover of the business book of the moment, Freakonomics. I have not read this book. I tend to avoid anything written by anyone who describes themselves as a rogue. I tend to think "rogue" is an adjective to be applied by others.

Soon, my aislemate pulled a blue Sharpie from an envelope and started signing the cards; one after another after another. The guy was signing "Steven Levitt," although the signature tails off at the end and is pretty illegible. His co-author, Stephen Dubner, had already signed each card.

I wanted to strike up a conversation but figured he was busy. Also, I am pretty sure he did not need to talk to a guy's whose best comment would be, "Congratulations on the book, which I have not read." In fact, my closest contact with the book was hearing a talk by a well regarded NY political consultant (whose name escapes me) who called it the "stupidest book of the year." But, I have no basis on which to judge it. So, I left him alone and did my own work.

Which brings me to Samuel L. Jackson. Why, you ask. Because all day I have been saying something very close to "We got mother-lovin' freaks on this plane." If you have to ask, visit here and then here.

Thursday, May 18, 2006

A Mac in Black: Apple Introduces Its New Laptop Line - New York Times

First, Apple switched to Intel processors. Then, it became possible to boot to Windows on a Mac or run Windows in parallel on a Mac. Now, this article says new Mac notebooks come in corporate black. What is the world coming to? It looks like Apple will soon be safe for work. Will a corporate IT guy soon be able to say "No one gets fired for buying Apple?"

Wednesday, May 17, 2006

On The Road Again


I have been anticipating the return of commuting to work via my bike. It's been a long winter and the weather has been teasing me with the possibility of a ride to and from work. Every time it has looked do-able, I have had a meeting, a trip, or something to carry that prevented a ride to work. Note to partners and would be thieves: I don't bike with my laptop.

Monday and Tuesday, I was ready to go but made the serious mistake of listening to the weather forecasts. Both days were supposed to end in rain but turned out just fine. This morning looked very nice but, again, showers were predicted for the afternoon.

I gave up listening to the forecast and headed out on my bike at 7:00 this morning. The ride was surprisingly easy for the first of the year. I averaged 15 miles per hour on busy streets. I did not switch gears much; staying manly in the middle cog and big chain ring. I'd shift to the small chain ring at intersections and to get started from a stop. Incidentally, I had the granny ring removed.

Certainly, this was much better than the first commute of last year. The highlight was when I was almost squashed by a woman in a beat up Corolla pulling away from the curb without checking her blindspot and a Lexus backing 50 yards at 25 MPH to get to the not-yet-vacant space. I would have been the only thing between them and totaling their vehicles. Luckily, the Corolla finally saw me when I was swerving toward the middle of the street and the Lexus stopped. Of course, based on what I could see riding past, it appeared that all involved blamed me for my near fatality.

The weather was perfect. It was a bit cool on leaving but by the time I was 20 minutes into the ride, I was glad I was in shorts. The bike felt great. Props again to the guys at Turin that tuned it up. At some point, they will notice my shameless plugging and throw me a free pair of shoes or something.

Fast forward through most of a day of work.

Around 3:00, it is clouding up. By 4:00, it is dark. At 4:30, there is serious rain followed by a 10 minute hail shower. Damn! The weather guy got it right.

I got to work today without a briefcase. That means no umbrella. Also, no raincoat or coat of any kind. I snagged an umbrella from the closet (the nearly last one in the office gets to do that) and headed out. Not a cab to be seen. After waiting about 10 minutes, I started to walk to the train station is a downpour. By the time I got there, about a mile later, I had missed my train. At least the rain let up. And really, it was not that bad.

On the up side, I had McDonald's in the station and get to ride home tomorrow.

Cue Willie Nelson . . . or Roger Miller . . . .

Tuesday, May 16, 2006

Suddenly, it is all Inside the Beltway

Customs law used to be about classification and valuation, penalties and marking. These days, it seems CBP is just as likely to be caught up in some political mess as it is to be worried about basic legal compliance by importers and exporters.

Now that the U.S. Customs Service has morphed into a bureau of the Department of Homeland Security and swallowed chunks of the Immigration and Naturalization Service along the way, the agency seems to be much more about Washington and politics.

Several recent happenings show that to be true:

The on-again, off-again idea of merging Immigration and Customs Enforcement with Customs and Border Protection.

This is essentially putting the agency back together. Customs used to include Special Agents who's job it was to conduct investigations involving both criminal and civil violations. One would think that those hard working folks would have plenty of reasons to share systems and resources with the folks at Fines, Penalties, and Forfeitures; Regulatory Audit; and Field Operations. One would also expect that there might be some reason for coordinated management in the form of a single agency head. Why would you expect that? Maybe because it seemed to work just fine for about 200 years.

Apparently, since they have been separated, there have been spats between the agencies over the use of resources and priorities. Throw the Border Patrol into the mix and things get very complicated. Former Commissioner of Customs Bonner has said that there was never a good reason to separate the Agents from BP.

On May 11, there was a hearing on the topic. Several top officials testified that the agencies are getting along just fine under new-ish Secretary Chertoff. Acting Customs Commissioner Spero; ICE Assistant Secretary Myers, and ICE Assistant Secretary for Policy Stewart Baker all testified for the status quo. Seth Stodder, the former Director of Policy and Planning at CBP testified in favor of a merger. The links are to their testimony.

According to information from AAEI, it now appears that the merger is losing steam. The sub-committee chair Michael Rogers implied that he is seeing positive evolution of the agencies and favors taking a wait-and-see approach.

Tipping Mexico

In a somewhat bizarre story, several members of Congress have accused CBP of tipping of the Mexican government (via their consulate) of the location of volunteer organizations patrolling the border for illegal immigrants. CBP denies that the story is accurate, but at the same time says they have an obligation to inform foreign government of the location of their citizens who are "detained" in the U.S. This relates to the Vienna Convention.

The question someone will need to ask is whether being detained by a private party making what is essentially a citizen's arrest qualifies as a detention under the Convention. Sounds like a good law school project. At this point, CBP is denying that this is happening. We'll have to see if a threatened investigation ramps up. This could turn into an interesting issue.

Calling Out the Guard

Last night's presidential speech proposed sending 6,000 National Guardsmen to the border to assist the Border Patrol. This is an interesting use of the Guard which generally reports to the Governors. It can be federalized, as has been done to send troops and other support to Iraq and Afghanistan. This is supposed to happen in times of war or national emergency. I gather the immigration issue is considered the latter. This could be a political move to make the President look tough on illegals while he works on his guest worker program.

I wonder how the Guard feels about this. They must be pretty taxed by the continuing deployment abroad. Also, their traditional military role seems somewhat ill-suited to this task. After all, for the Army, border security is usually an issue when there are Panzers lined up on the other side not unarmed men, women, and children seeking a better life.

Thursday, May 11, 2006

Where's Larry?

Otherwise occupied. Be back soon.

Tuesday, May 09, 2006

Two Blog-Worthy News Items

Sausage, Sugar Cane Found In Diaper

Man's New Fingerprints Don't Fool Customs

Neither story requires much comment and neither really has to do with the law in a jurisprudential sense. Just bizarre anecdotes from the wacky world of international crime.

Thanks to the blog fodder spotter in the office who forwarded these to me.

Saturday, May 06, 2006

Object Lessons

Last week, I was at the Federal Circuit arguing a case. While waiting for my case to be called, I watched two other arguments. As usual, one was a patent case. It had to do with whether a company trying to sell bingo-style games had infringed a patent. I started wondering if the trial had included expert witnesses on bingo. I suspect that testimony would likely come from senior citizen women and Catholic priests. The second case involved attorney's fees in an appeal by a veteran who was originally denied benefits for injuries due to exposure to Agent Orange but got the case remanded for further investigation.

This post is primarily for my students and associates in my office (who I know are reading this blog). The message is simple: Preparation Matters! The guy arguing the veteran's case did a fine job. He had a folksy country-lawyer way about him and was obviously comfortable before the court. The issue was whether a remand makes the veteran a prevailing party. The Court seemed skeptical, but the lawyer held his own. Until a fact question came up.

Toward the end of rebuttal, a judge asked the lawyer whether the first part of his client's claim had been denied. The lawyer admitted that he did not know but pointed out that the claim is unitary and that the individual elements cannot be denied separately. The judge jumped all over him. "Really," the judge asked, "you don't know?" Another judge asked whether the case was being handled pro bono. It was not. The first judge circled back, "How could you not know?" Turns out that the lawyer making the argument was filling in for a colleague with a medical issue in the family. That did not sway the Court.

The judge then asked government counsel the status of the claim. She stated that the claim had been heard and was being appealed administratively. Then agency counsel, who was with her, corrected that answer and stated that the case was still under review by the regional office of whatever organization reviews these things.

It was brutal to watch. I think the lawyer did a good job, really. He knew the law and his theory made the question irrelevant, since it is all one claim. But, not knowing something from the record is going to create a bad situation if it comes up. This was a classic example, if a bit unfair, of being caught with one's pants down.

It is a simple thing to say: Facts matter. The record matters. Don't say anything you can't support with a cite.

Wednesday, May 03, 2006

All About CAFTA-DR. What About Bolivia?

Customs has revised the instructions to the field for dealing with CAFTA-DR claims. The one issue it does not cover is whether we have to continue to call this agreement "CAFTA-DR." It seems like we should declare the Dominican Republic to be part of Central America and call it a day at "CAFTA." Also, has anyone figured out how to pronounce USAFTA, the U.S.-Australia Free Trade Agreement. Is it "us afta" or "oo safta?"

Anyway, from a substantive point of view, this memo pretty much lays out what you need to know about making a CAFTA claim, CAFTA verifications, and retroactive textile claims. If you are interested in that stuff, read it.

A more interesting drama is playing out in Bolivia where the President Evo Morales is threatening to nationalize natural gas production facilities. According to this NY Times article, he plans to start with an audit of foreign companies while negotiating new contracts. If the negotiations don't go well (for Bolivia, that is), he may seize the companies. The Energy honcho in La Paz even used "the X word." Expropriation is such a nasty concept in international law that there are hundreds of treaties designed to protect direct foreign investment. These are generally known as "bilateral investment treaties." Similarly, NAFTA and other trade agreements tend to include provisions giving investors of member countries certain protections and rights. In NAFTA, this is all in Chapter 11 and has spawned a mini industry of Chapter 11 lawyers. It is interesting and complicated work.

Apparently, the U.S. has had a bilateral investment treaty with Bolivia in effect since 2001. I don't know who owns the natural gas production facilities in Bolivia. But, I can guarantee that if they are American companies, they are dusting off copies of that treaty right now.