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April 25, 2008
Name's Holden...buy you a Heineken? Just got back from Île Saint-Louis, and...
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (0)
Why aren't pols talking about climate change?
See Evan Thomas's article in Newsweek, "The Green Phantom". The answer? It may be the money--taxes and government funding. Just what would that revolution cost, voters might want to know. But climate change and global warming also have overtures of mild class warfare: limousine liberals (WAC?'s term) and "chattering classes" (Thomas's term) v. everyone else. Thomas:
There is an enormous class divide on the subject. The chattering classes obsess about greenhouse emissions. The rest of the country, certainly the older and less well-off voters, can't be bothered.... It may be, though, that the politicians know something they are not saying-and that the green-conscious upper classes do not wish to confront. Making a serious dent in global warming would be hugely costly.
Posted by JD Hull at 12:07 AM | Comments (0)
April 24, 2008
Clueless closings, goofy charts and other screw-ups.
See "Lawyers: So Certain, So Wrong" at Anne Reed's Deliberations, a site about jury work. This piece also underscores the value of the mock trial--and of identifying lame language, arguments and themes in advance of actual trial.
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (0)
Chelsea does Duke; disses Dad.
In yesterday's The Chronicle, Duke's daily: "My mother would be a better president than my father," she said. "She is more progressive and more prepared."
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (0)
April 23, 2008
Still got clients?
See Jim Hassett's new post "What are the top marketing priorities in a down economy? Part 1" at his Legal Business Development. Jim collects and organizes advice from some of the best legal marketing thinkers.
Posted by JD Hull at 11:59 PM | Comments (0)
SCOTUS MeadWestvaco decision is victory for business taxpayers. But do the States still have alternative theories to tax?
Last week's U.S. Supreme Court decision in MeadWestvaco Corp. v. Illinois Dep't of Revenue, 553 U.S. ___, No. 06–1413 (April 15, 2008) was a victory for business taxpayers--especially for corporations operating in several U.S. states. As WAC? pointed out in a January 16 post on the day of oral arguments, the Illinois Appellate Court went well beyond the clearly established constitutional limits in allowing Illinois to tax part of a capital gain resulting from a $1.5 billion sale by Mead in 1994 of Lexis/Nexis. See background and facts here. The Court took a similar view.
In MeadWestvaco, a unanimous decision written by Justice Alito, the Court upheld its long line of cases holding that the "unitary business principle" sets limitations on a state’s ability to tax:
If the value the State wished to tax derived from a "unitary business" operated within and without the State, the State could tax an apportioned share of the value of that business instead of isolating the value attributable to the operation of the business within the State. Conversely, if the value the State wished to tax derived from a "discrete business enterprise," then the State could not tax even an apportioned share of that value.
Slip op. at 8-9 (citations omitted).
The Court rejected the Illinois Appellate Court’s analysis of the unitary business principle outright: "In our view, the state courts erred in considering whether Lexis served an 'operational purpose' in Mead’s business after determining that Lexis and Mead were not unitary." Id. at 6. The Court explained that in particular the Illinois Appellate Court misapplied the Court’s earlier cases. Illinois’ result would expand the Court’s longstanding unitary business principle:
As the foregoing history confirms, our references to "operational function" in Container Corp. and Allied-Signal were not intended to modify the unitary business principle by adding a new ground for apportionment. The concept of operational function simply recognizes that an asset can be part of a taxpayer’s unitary business even if what we may term a "unitary relationship" does not exist between the "payor and payee".
Id. at 11-12 (citations omitted).
For example, the Court explained, a taxpayer is not generally unitary with its banker, but the taxpayer’s deposits (which represent working capital and thus operational assets) can be clearly unitary with the taxpayer’s business.
The Court vacated and remanded the Illinois Appellate Court’s decision that had allowed imposition of the Illinois tax.
The Court also declined to decide an issue raised too late by Illinois and its amici that invited the Court to "recognize a new ground for the constitutional apportionment of intangibles based on the taxing State’s contacts with the capital asset rather than the taxpayer". Id. at 13.
In a somewhat cryptic concurring opinion, Justice Thomas wrote separately "to express my serious doubt that the Constitution permits us to adjudicate cases in this area."
After MeadWestvaco, the unitary business principle remains a solid limitation on the states' power and ability to tax. But the "new" grounds for taxation--based on "contacts with the capital asset" sold--will likely be raised again. This late-raised amici position, coupled with the puzzling concurring opinion of Justice Thomas, will keep alternative constitutional state tax issues alive for the foreseeable future.
Future challenges by the States can be expected.
Posted by Julie McGuire and Dan Hull at 11:59 PM | Comments (2)
April 22, 2008
Doing business in China: Cutting paths on uncertain terrain.
Dan Harris at China Law Blog discusses "China Law As Guessing Game", inspired by the Stan Abrams post at China Hearsay called "The Law and New Tech in China". Harris and Abrams are full-time China lawyers with busy practices. Note how they hit on not only handling the barrage of first-impression legal and regulatory issues confronting their clients in Greater China, but also on the importance of guiding clients in an active, non-CYA fashion on issues abroad where the "applicable law" is very often silent, muddy or missing. Incidently, over the years, WAC? has met with Beijing-based Abrams, an IP and business lawyer and old China hand, in Europe at meetings of the IBLC.
Posted by JD Hull at 11:59 PM | Comments (0)
Recusal standards for state jurists
Thirty-one states in America still hold popular elections of judges. WAC? would be happy if elected state judges--with their shadow constituencies of campaign money-contributing companies and lawyers--could just adhere to the disqualification rules already in place. But many don't. Popular election of state judges is medieval and embarrassing--and so we like Tony Mauro's Law.com piece "A New Call for Tougher Recusal Standards". It begins:
With state judicial elections getting more costly and raucous, many organizations are voicing concern about how to preserve--or restore-- the independence and integrity of state court systems. When judicial candidates accept campaign donations or make campaign pronouncements that might affect their impartiality in future cases, what can be done?
Posted by Brooke Powell at 11:59 PM | Comments (0)
Predicting Pennsylvania--and the rest of the primaries.
Pollster and consultant Mike O'Neil of O'Neil Associates is a friend of ours. We liked the following article by Mike--he prepared it especially for the Pennsylvania primary today--enough to print it entirely and word-for-word:
The Rest of the Story: Predicting the Outcome of All of the Remaining Democratic Primaries.
Michael J. O'Neil, Ph.D
"It is difficult to predict, especially the future."
--Yogi Berra
Last month, I sent out a missive "The Myth of Momentum in the Democratic Primaries" in which I argued that the pattern of Obama and Clinton victories could be explained primarily by the demographics of the various states, rather than by any of the "momentum" that has been widely discussed in the press.
The beauty of any such argument is that of ex post facto logic: if you explain after the fact, you will always be "right" in your "prediction" since you can alter the theory to fit the known facts precisely.
If the theory is right, however, it should predict the future. Of course, as the philosopher Yogi noted above, this is harder to do with accuracy.
Those of us who conduct opinion research, however, are often (incorrectly) presumed to be in the prediction business. We are not, but (with appropriate caveats), it can be fun.
So, for fun only, here it is: if the demographics relationships observed throughout the election so far hold (that is the "catch", to cover my posterior if I am "wrong"), it would mean the following:
Clinton wins Pennsylvania tomorrow.
But the following Tuesday, Obama wins North Carolina by an even bigger margin (completely erasing Clinton's delegate gains in PA).
Indiana is closer, but probably Clinton territory (like PA and Ohio, but a chunk is in the Chicago media market, and that gives Obama a boost, but probably not enough to win (this is the closest of the remaining states).
Back to tomorrow: Should Clinton win by less than 5%, the confetti will drop and she will declare a big victory. But every politico (and super-delegate) will know that her campaign is toast. The only question will be how long it will take her to get the message. A 10% win will be real, but still not enough to get her many delegates. (5% to 10% will be ambiguous; well within expectations-and spin-meisters on both sides will make arguments, all of them fallacious). A 20% blowout, on the other hand, would be a real loss for Obama.
Poll numbers: these average a 6% Clinton win, down from 20% a couple of weeks ago. Will this momentum continue? I doubt it, for two reasons. First, historical patterns: Obama has typically gained until the weekend before the election when Clinton gets back a few points. Second, most of the "undecideds" look (demographically) like Clinton people. If they vote, she wins-and maybe big. If they stay home, it gets close.
Expectations will be reversed in North Carolina, though Obama currently is winning there by more than Clinton in PA.
And the Rest of the Primaries?
Following demographic and geographical patterns we would predict Clinton wins in West Virginia (5/13), then Obama wins in Oregon while losing Kentucky (both 5/20), Obama ends primary season by winning both Montana and South Dakota (6/03).
In between, we have votes in two non-states, Guam (4 delegates) and Puerto Rico (55 delegates, more than many states!). All of the prognosticators have said that Puerto Rico should be Clinton territory, since she has won Hispanics to date. I don't buy this argument, since I see no reason to assume that native Puerto Ricans necessarily resemble Mexican Americans or Cuban Americans. They are different. But, I am NOT saying that Obama will PR. I just reject the logic behind the assumption that Clinton will win there. And there have been no reported polls in PR. Bottom line, like Sgt. ("I know NOTHING!") Shultz, we really know nothing about PR. The demography of PR does not resemble that of any state.
There you have it. A scorecard against which to measure the results of the rest of the primaries.
What does it mean?
The Obama lead is almost certainly intact on June 3. If so, he continues to trickle in super-delegates (he has been gaining about one a day for the last six weeks). Then the only question will be whether enough super-delegates declare early enough to forestall a convention fight. (Watch to see if a major Clinton insider, someone like PA Governor Ed Rendell, bolts. Nothing less may be required to get her to realize it is over). The speed of super-delegate decisions may depend on whether they enjoy being courted more than they hate being threatened/cajoled. (Is a 3am call from Bill a good thing or a bad thing?)
What could change this story?
A major Obama disaster-something much bigger than the stuff we have seen thus far. Don't hold your breath: it's not likely.
A Clinton loss in any of the states I have indicated she will win. This would signal a collapse of her campaign. Up until now, her campaign has looked viable, even if it is now a long-shot. A loss in a "must win" state would make the campaign look futile, and would likely signal the end.
Michael J. O'Neil PhD
www.oneilresearch.com
Posted by JD Hull at 12:35 AM | Comments (0)
April 21, 2008
Golden on mentoring.
Mentoring can be ugly or rewarding--and even euphoric. It depends on whether you plan it and tweak it right. See Michelle Golden's "Internal Mentoring Programs: The Wrong Approach" at her Golden Practices.
Posted by JD Hull at 11:59 PM | Comments (1)
Is GAAP on its way out?
Will the International Financial Reporting Standards (IFRS) soon replace Generally Accepted Accounting Principles? See this post by Brian Ritchey at More Partner Income, inspired in part by "Goodbye GAAP" in CFO Magazine.
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (0)
"Have you ever been punched by a client?"
We mean literally. See this one by David Giacalone, both lyrical and spiritual leader of the entire blogosphere, at f/k/a....
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (2)
The best books on "all you can be".
...Tom and Daisy—they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made. . . .
--F.Scott Fitzgerald, 1925
See the second appearance of Stephanie West Allen's "Reading Minds" column in the ABA's Law Practice Magazine for April/May. Marian Lee, Bruce MacEwen, Michael Melcher and Catherine Hance make their selections. Which one of these reading minds chose The Great Gatsby?
Posted by Holden Oliver (Kitzbühel Desk) at 01:22 AM | Comments (1)
Blawg Review #156: Are you an Avatar?
"Are virtual worlds the beginning of the end of society?" And what's virtual law, anyway? Author-blogger Benjamin Duranske hosts this week's Blawg Review #156 at Virtually Blind. Strange, wonderful, even inspiring. And a very nice review of last week's posts. BR #156 also gets a write-up by Robert Ambrogi, who like us is intrigued by virtuality, at ALM's Legal Blog Watch.
An Avatar, pre-Durankse.
Posted by Brooke Powell at 12:58 AM | Comments (0)
April 20, 2008
Real Yank lawyers read Charon QC's Weekend Review.
Posted by Holden Oliver (Kitzbühel Desk) at 01:39 AM | Comments (0)