February 29, 2004
Bankruptcy Court competition for big business reorganization cases
This Atlanta Jounal Constitution article discusses an issue that UCLA law professor Lynn LoPucki characterizes as a "race to the bottom" -- i.e., bankruptcy courts in certain jurisdictions bending federal bankruptcy law to market themselves to debtors' lawyers who often are instrumental in choosing the venue of big business reorganization cases. The cost attributable to this "race to the bottom" is considerable because the two main bankruptcy venues -- Delaware and the New York City -- commonly approve professional fees in big reorganization cases that are at the highest level of the profession. In comparison, the high hourly rates being charged and routinely approved in the Enron reorganization case in New York would likely not have been approved if the case had been filed in Houston where Enron is based and which is a far more convenient venue for the vast majority of Enron creditors.
Posted by Tom at 3:31 PM | Comments (0) | TrackBack (0)
The similiarities between Enron and U.S. Govt. financing
A substantial part of the Justice Department's criminal cases against former Enron executives Jeff Skilling and Richard Causey involves their complicity in Enron's liberal use of "off-balance sheet" partnerships that Enron used to shift risk on debt that otherwise would have diluted Enron's net worth. In an ironic twist, history professor Niall Ferguson and economist Laurence Kotlikoff explain in this insightful paper how the United States Government uses the same off balance sheet liabilities in accounting for its Medicare and Social Security liabilities to mask the true financial condition of the Government. The entire paper is well worth reading, and here are a couple of tidbits:
During the Clinton Administration, the CBO routinely projected that, regardless of inflation or economic growth, the federal government would spend precisely the same number of dollars, year in and year out, on everything apart from . . . entitlements. At the same time, the CBO confidently assumed federal taxes would grow at roughly 6 percent each year. As a result, it was able to make dizzying forecasts of budget surpluses . . . These phantom surpluses were the money Al Gore promised to spend on voters and George W. Bush promised to return to them during the 2000 election.[T]he crisis of the American welfare state remains a latent one. Few people, least of all in the government, wish to believe it is real. But the crisis could manifest itself with dramatic suddenness if there is a significant shift in the expectations of financial markets at home or abroad. And when the finances of the United States "go critical," there will inevitably be moves to cut back any federal program that lacks strong popular support. Though relatively inexpensive, and not in themselves a cause of American overstretch, "nation-building" projects in far-away countries will surely be among the first things to be axed.
Messrs. Ferguson and Laurence Kotlikoff also argue that our politicial leaders, the public, and bond market investors are all in denial about the large future liabilities that the government faces. This is provocative economic analysis and essential reading for anyone interested in understanding the financing of our government's future liabilities.
Posted by Tom at 12:40 PM | Comments (0) | TrackBack (1)
February 28, 2004
The Lou Dobbs Rouge Fund
In this insightful piece, James K. Glassman of Tech Central Station ran an interesting analysis of U.S. companies that CNN financial commentator Lou Dobbs has criticized on his website and television show as "either sending jobs overseas or choosing to employ cheap foreign labor, instead of American workers." Mr. Glassman calculated that the annual return for a hypothetical stock fund of these companies over the past year (12 months ending Feb. 23, 2004), was a remarkable 72.44 percent, which compares with a return of 39.11 percent for the benchmark Standard & Poor's 500-Stock Index over the same period.
Outsourcing tech and other white-collar jobs is a common political canard that misguided or disingenuous demagogues promote to frighten voters. Accordingly, we will have to endure a great deal of this drivel over the next several months of this election year.
Posted by Tom at 2:58 PM | Comments (0) | TrackBack (0)
It never got this complicated with Seabiscuit
This NY Times article describes a fascinating situation that has developed regarding a fight for control of the Manchestor United soccer club -- the New York Yankees of England professional sports -- that also involves a racehorse named Rock of Gibralter and Malcolm Glazer, the owner of the NFL's Tampa Bay Buccaneers.
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Guys, we tried, but we failed
Pfizer announced that it has given up on developing a drug that many males were following closely.
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Getting paid for making dire business forecasts
This NY Times article is about Amory B. Lovins, who makes a very good living by telling the oil and gas industry that the demand for oil is likely to tumble more rapidly than the industry has projected. Mr. Lovins then helps the oil and gas companies figure out how they can profit from leading the transition away from today's main uses of their core product. Interesting reading.
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February 27, 2004
VDH's latest
Victor Davis Hanson's latest column at National Review Online addresses America's supposedly new preemption policy in its overall foreign policy. Mr. Hanson observes in a part of his piece:
Despite the current vogue of questionable and therapeutic ideas like "zero tolerance" and "moral equivalence" that punish all who use force — whether in kindergarten or in the Middle East — striking first is a morally neutral concept. It takes on its ethical character from the landscape in which it takes place — the Israelis bombing the Iraqi reactor to avoid being blackmailed by a soon-to-be nuclear Saddam Hussein, or the French going into the Ivory Coast last year, despite the fact that that chaotic country posed no immediate danger to Paris. The thing to keep in mind is that the real aggressor, by his past acts, has already invited war and will do so again — should he be allowed to choose his own time and place of assault.Hitler was ruthless in starting a war against Poland. Yet he could have been stopped far earlier in 1936 or so — had the democracies preempted him. Indeed, a failure to preempt is often far worse than the act itself. Serbia posed no "imminent" threat to the United States in 1998; but President Clinton — with no U.N. sanction, no U.S. Congress resolution — finally decided to act and end that cancer before it spread beyond the Balkans.
Posted by Tom at 10:15 AM | Comments (0) | TrackBack (0)
Interesting decision on cross-examination of experts
As a way of suggesting bias or financial benefit from such testimony, trial attorneys often ask the opposition's experts whether they have frequently testified on one particular side of an issue. Although such cross-examination is widely assumed to be fair, the Iowa Supreme Court just handed down this interesting decision in ordering a new trial for a babysitter convicted of murdering a child under her care based in part on prosecutorial cross-examination along these very lines. The prosecution's theory was that the babysitter had caused blunt head trauma to the child, but the babysitter's expert testified that that the child's head trauma had occurred much earlier than when the prosecution asserted that it had happened. On cross, the prosecution questioning attempted to connect the defense expert's opinion to a presentation the expert had given "in front of all the defense lawyers here in the State of Iowa," and also asked the following question: "You are routinely hired by the defense in cases where children are allegedly victims of child abuse and you testify on behalf of the perpetrator; isn’t that true?" The prosecutor also implied in other questions that the defense expert had testified on 46 occasions on behalf of persons charged with killing children.
The Iowa Supreme Court's opinion condemns such prosecutorial questioning as an "improper effort to demean the witness," citing the ABA Standards for Criminal Justice, which provide: "The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily." Although this decision involves a criminal case, it should nevertheless provide pause for attorneys in civil cases who attempt to impeach an opponent's expert through derisive and suggestive questioning.
Posted by Tom at 9:21 AM | Comments (0) | TrackBack (0)
Rise and fall of a 'Haitian Mandela'
This Christian Science Monitor article details the signs that Jean-Bertrand Aristide was doomed to failure as President of Haiti. The CSM notes:
How a man hailed as a potential Nelson Mandela for his impoverished and oppressed nation of 8 million could fall so far appears to be as much a tale of wishful thinking by desperate Haitians and the international community that backed him, say experts, as it was a tale of the old cliché that "absolute power corrupts absolutely."Aristide was given that rarest of political gifts - a second chance. But, reinstalled in the presidency in October 1994 by a multinational military force, he used his resurrection to perfect an autocratic style, say even those close to him who were interviewed for this story.
Today, having infuriated, humiliated, and - some allege, killed - any once-devoted followers who crossed him, Aristide has few political allies left. Even his strongest credential - his election to a second term in 2000 - counts little as rebels gobble up territory and threaten to take the capital.
Languishing in that familiar pre-coup limbo that is a trademark of modern Haitian presidencies, Aristide is a symbol of a political culture that has been bankrupt nearly since it began as a slave revolt 200-plus years ago. . .
Posted by Tom at 7:43 AM | Comments (0) | TrackBack (0)
UT honors Dr. Denton Cooley
Dr. Denton Cooley is one of Houston's many legendary doctors who have helped build the Texas Medical Center into one of the world's great medical centers. Dr. Cooley founded The Texas Heart Institute at St. Luke's Episcopal Hospital, and he performed the first successful heart transplant in the United States in 1968 and the first involving an artificial heart in 1969.
As Houston sportswriter Mickey Herskowitz writes in this column today, Dr. Cooley was a starting basketball player at the University of Texas at Austin in the late 1930's, and UT is honoring Dr. Cooley by naming its new basketball practice facility after him. The entire column is worth reading, but this part is essential for all fans of legendary former UT football coach Darrell Royal:
Among the speakers in Austin the other night were Mack Brown and Rick Barnes, who coach the marquee men's sports at UT. But the one who stole the show was Jody Conradt, the Hall of Famer who gave the Longhorns a national championship in women's basketball."They built the Erwin Center 21 years ago," she said, "and obviously it never occurred to anyone that the women would need a separate locker room. So every room in this place had urinals in it.
"Now we have one of our own. Before one of our games, coach Darrell Royal was kind enough to speak to my team. Before he left, someone asked what the biggest difference was between our locker room and all the ones he knew from all his years of coaching. Coach Royal said, `Offhand, I can't remember anyone ironing anything before a game in one of our locker rooms.' "
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Go Texan!
As noted in this earlier post on the Houston Livestock Show and Rodeo, today is Go Texan Day in Houston in which many Houstonians don their best Western wear clothing for the day. As the trailriders descend upon Memorial Park later today, the Chronicle reports that one of the trailrider groups will be led by the first woman trailride boss in history. The Rodeo kicks off tomorrow with the annual Rodeo Parade in downtown Houston beginning at 10 a.m.
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February 26, 2004
Justice Department says nix to Oracle-PeopleSoft merger
As expected, the Justice Department this afternoon announced that it was filing an antitrust lawsuit to block the Oracle Corporation's $9.4 billion bid to acquire PeopleSoft Inc., its competitor in the business software market. Here is the Justice Department's Complaint.
Update: Here is the Wall Street Journal's ($) better article on Justice's complaint against the merger.
Posted by Tom at 8:05 PM | Comments (0) | TrackBack (0)
Gore's Revenge
Comedian Argus Hamilton is offering a strategy that would give Al Gore sweet revenge for Ralph Nader's costing him the 2000 Presidential election while guaranteeing that Mr. Nader wouldn't collect enough Democratic votes to alter this year's election outcome. "There's only one way Al Gore can get even with Ralph Nader," Mr. Hamilton advises. "He's got to wait for the crucial moment in the campaign and then endorse him."
Posted by Tom at 5:43 PM | Comments (0) | TrackBack (0)
Bankruptcy filings up slightly
Bankruptcy filings in the federal courts remained high in calendar year 2003, according to data released today by the Administrative Office of the U.S. Courts. Total bankruptcies filed in the twelve-month period ending December 31, 2003, totaled 1,660,245, up 5.2 percent from the 1,577,651 bankruptcies filed in the prior year. The majority of bankruptcy filings are non-business filings, 1,625,208 in 2003 as compare to 1,539,111 in 2002. The number of business bankruptcy filings continued to decline, totaling 35,037 in 2003 as compared to 38,540 in 2002. Chapter 11 reorganization filings -- the most important bankruptcy statistic in terms of job preservation -- fell 16.6 percent to 9,404 in 2003 from the 11,270 filings in calendar year 2002. Thanks to my friend Joe Epstein for advising me of the publication of this annual report.
Posted by Tom at 5:32 PM | Comments (0) | TrackBack (0)
Daubert in the State Courts
The Daubert trilogy of Untied States Supreme Court decisions -– Daubert, Joiner, and Kumho Tire, codified in Federal Rule of Evidence 702 -- has established new rules for the admissibility of expert witness evidence in federal court. However, the standards for admissibility of expert witness evidence in state courts is far more unsettled. George Mason University Law Professor David Bernstein and Jeffrey D. Jackson have published this handy law review article that analyzes the degree to which the holdings of the Daubert trilogy have been adopted by state courts. Surprisingly, there remains a wide diversity of tests within the states that, contrary to most lawyers' popular belief, the Daubert trilogy is not yet the majority standard. A good article to review for lawyers who commonly deal with expert witness issues.
Posted by Tom at 3:19 PM | Comments (0) | TrackBack (0)
Baylor self-reports major NCAA infractions in basketball program
Baylor University announced today that Dave Bliss, its former basketball coach, made improper payments to students, allowed major NCAA infractions to occur in his program and then tried to cover up the improprieties. A school-appointed committee made the findings in a report that was made public today. The committee was appointed last fall to study the university's basketball program after player Patrick Dennehy was killed last summer and another player was charged with his murder. The major infractions will result in either self or NCAA imposed penalties on the Baylor basketball program, which is another severe blow to an athletic department that has struggled to compete in the major sports of football and basketball ever since the creation of the Big 12 Conference in the mid-1990's.
Posted by Tom at 12:14 PM | Comments (0) | TrackBack (0)
A thought for the day
We all recall the attack on the World Trade Center of September 11, 2001, but few of us remember that today is the anniversary of this earlier attack on the WTC.
Posted by Tom at 11:49 AM | Comments (0) | TrackBack (0)
Kazahkstan oil and gas development deal completed
This NY Times article reports on the consortium of international oil and gas companies that have formally agreed to proceed with a $29 billion development of the Kashagan oil field in Kazakhstan, the largest oil discovery since Prudhoe Bay in Alaska more than 30 years ago.
ENI of Italy leads the consortium, which includes Royal Dutch/Shell, Exxon Mobil, Total of France, ConocoPhillips and Inpex of Japan.
Total oil reserves in the Kashagan field are now estimated to be 13 billion barrels, several billion barrels higher than original estimates. One major production hurdle is the field's location under the Caspian Sea, which freezes over in winter. Initial production is expected to be 75,000 barrels a day, Shell said in a statement. Mr. Idrissov said production was expected to rise to more than 400,000 barrels a day by 2013.By 2015, the field is expected to yield more than a million barrels a day, about a third of Kazakhstan's target for oil production.
The announcement is a major step forward for oil and gas production in Kazakhstan, which is considered one of the United States' most promising alternatives to the Middle East for energy supplies. However, development has slowed in recent years because of the risk of investment in the region and the Kazakh government's desire to renegotiate contracts with foreign oil companies that had been entered into during the early 1990's.
Posted by Tom at 8:28 AM | Comments (0) | TrackBack (0)
Virginia Postrel on free trade
Virginia Postrel writes about free trade in this NY Times piece. Inasmuch as you will be hearing much from the demagogues about this issue in the upcoming political campaigns, Ms. Postrel's article is timely reading.
Posted by Tom at 6:52 AM | Comments (0) | TrackBack (0)
St. Luke's expanding
On the heels of this announcement regarding Methodist Hospital's expansion, St. Luke's Episcopal Hospital in Houston's Texas Medical Center announced a $200 million expansion project that will involve razing the original St. Luke's Hospital building and the construction of a 10 story patient care center. St. Luke's is the home of the famous Texas Heart Institute.
Posted by Tom at 6:44 AM | Comments (0) | TrackBack (0)
DeLay records subpoenaed
As noted in earlier posts here and here, a political action committee — Texans for a Republican Majority — that House majority leader Tom DeLay of Houston created is the subject of a grand jury investigation in Austin. Yesterday, the Travis County District Attorney's office released information on over 50 subpoenas that it has issued in the investigation over possible criminal misuse of corporate funds in the 2002 legislative campaign. Here is the Chronicle article on this development.
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February 25, 2004
Victor Davis Hanson
Victor Davis Hanson is one of the most insightful current commentators on America's war against Islamic extremists, and his articles are often referred to in this blog. This LA Times piece is about this interesting man. Thanks to Occam's Toothbrush for the link.
Posted by Tom at 4:57 PM | Comments (0) | TrackBack (0)
"Critical vendor" decision
Often at the outset of business reorganization cases, the debtor-in-possession will request as one of its "first day" motions that the Bankruptcy Court allow it to pay "critical vendors." Although these claims are unsecured claims that normally cannot be paid under bankruptcy law except pursuant to a chapter 11 reorganization plan, the theory behind allowing certain business debtors to pay "critical" vendors pre-petition claims is that the critical vendors would likely not do business with the debtor during the reorganization case unless their pre-petition claims are promptly paid. Stating the debtor's position simply, unless such payments are made, the risk increases dramatically that the debtor's reorganization would fail in its early stages.
At the outset of Kmart Corp's chapter 11 case, Kmart's Bankruptcy Court approved an order that authorized Kmart to pay the pre-petition claims of 2,330 "critical" suppliers, which collectively received about $300 million. Another 2,000 or so vendors were not deemed “critical” and were not paid. They and 43,000 additional unsecured creditors eventually received about 10¢ on the dollar under Kmart's reorganization plan, mostly in stock of the reorganized Kmart. Fourteen months later, the District Court overruled the Bankruptcy Court's critical vendor order, and Kmart appealed that decision to the 7th Circuit Court of Appeals.
Today, the 7th Circuit issued this decision that affirms the District Court's order setting aside the Bankruptcy Court's approval of Kmart's payment of its critical vendor's pre-petition claims. The decision is written a bit untidily -- for example, the 7th Circuit describes the critical vendor payments as "preferential" (i.e, paid in preference to those of non-critical creditors). In reality, the critical vendor payments are post-petition payments and, by referring to them as preferential, the 7th Circuit risks confusion of those payments with voidable preferences, which can only be made prior to the commencement of a bankruptcy case. Nevertheless, the decision has a good overview on the law in this key area for business debtors, and is a good one for debtor's counsel to review before making a record on the necessity for critical payments at the outset of a chapter 11 case.
Thanks to my old friend and former law partner, Joe Epstein of Winstead Sechrest & Minick P.C., for the pointer to this decision.
Posted by Tom at 1:05 PM | Comments (0) | TrackBack (0)
On Economic Illiteracy
Thomas Sowell has a good WSJ ($) op-ed today in which, as former House Majority Leader Dick Armey -- an economist by trade -- put it: "Demagoguery beats data in making public policy." The entire article is well worth reading, but here is a tidbit:
At the state and local levels, this confusion of tax rates and tax revenues has led some local politicians to see higher tax rates as the answer to budget problems, even though higher tax rates can drive businesses out of the city or state, with adverse effects on the total amount of tax revenues collected.Price controls are another area where very elementary economics is all that is needed to show what the consequences are: shortages, quality deterioration and black markets. It has happened repeatedly in countries around the world, over a period of centuries. Yet politicians keep selling the idea of price controls and voters keeping buying it.
Many economic issues are complex, but sometimes a single fact will tell you all you need to know. When you know that central planners in the Soviet Union had to set 24 million prices -- and keep adjusting them, relative to one another, as conditions changed -- you realize that central planning did not just happen to fail. It had no chance of succeeding from the outset. It is a wholly different ball game when hundreds of millions of people individually keep track of the relatively few prices they need to know for their own decision-making in a market economy.
Posted by Tom at 10:44 AM | Comments (0) | TrackBack (0)
Clay-Liston Anniversary
Today is the 40th anniversary of Cassius Clay's (subsequently Muhammad Ali) spectacular upset of the notorious Sonny Liston in their 1964 world heavyweight championship fight. Here is a Times Online piece on the historical impact of that memorable fight, and another article on whether that match and the subsequent Clay-Liston rematch were fixed. Very interesting reading.
Posted by Tom at 10:32 AM | Comments (0) | TrackBack (0)
What a surprise! (just joking)
A recent study shows that United States Senators stock portfolios regularly outperformed the market by an average of 12% a year.
Posted by Tom at 10:22 AM | Comments (0) | TrackBack (0)
New 5th Circuit decision on expert witness damages testimony
The Fifth Circuit Court of Appeals issued a decision yesterday on the important issue of expert witness testimony on damages. In this trade secrets case, the Fifth Circuit upheld the district court's decision admitting lost-profits testimony from two of the plaintiff's experts because the testimony had no impact on the jury verdict. Accordingly, the Fifth Circuit did not reach the issue of the testimony's reliability. The Court noted that that the relatively small size of the jury's $2.2 million award, in comparison with the $25 million in lost profits that the plaintiff claimed, indicated that the jury considered and rejected the entire lost-profits analysis of the plaintiff's experts. See Dresser-Rand Co. v. Virtual Automation, Inc., No. 02-20834 (5th Cir. Feb. 23, 2004) (DeMoss, Dennis, & Prado, JJ.).
Posted by Tom at 8:05 AM | Comments (0) | TrackBack (0)
Inside work with no heavy lifting
College students or those of you with college age children, you will want to read this this piece about a job that will interest more than a few college students.
Posted by Tom at 7:54 AM | Comments (0) | TrackBack (0)
Harvard Prof on Gay Marriage
Harvard University Law Professor Mary Ann Glendon has a Wall Street Journal op-ed ($) today that addresses several important issues that are often overshadowed by the supporters' casting of the debate as one over civil rights issues:
Those judges are here in Massachusetts, of course, where the state is cutting back on programs to aid the elderly, the disabled, and children in poor families. Yet a four-judge majority has ruled in favor of special benefits for a group of relatively affluent households, most of which have two earners and are not raising children. What same-sex marriage advocates have tried to present as a civil rights issue is really a bid for special preferences of the type our society gives to married couples for the very good reason that most of them are raising or have raised children. Now, in the wake of the Massachusetts case, local officials in other parts of the nation have begun to issue marriage licenses to homosexual couples in defiance of state law.A common initial reaction to these local measures has been: "Why should I care whether same-sex couples can get married?" "How will that affect me or my family?" "Why not just live and let live?" But as people began to take stock of the implications of granting special treatment to one group of citizens, the need for a federal marriage amendment has become increasingly clear. As President Bush said yesterday, "The voice of the people must be heard."
Indeed, the American people should have the opportunity to deliberate the economic and social costs of this radical social experiment. Astonishingly, in the media coverage of this issue, next to nothing has been said about what this new special preference would cost the rest of society in terms of taxes and insurance premiums.
The Canadian government, which is considering same-sex marriage legislation, has just realized that retroactive social-security survivor benefits alone would cost its taxpayers hundreds of millions of dollars. There is a real problem of distributive justice here. How can one justify treating same-sex households like married couples when such benefits are denied to all the people in our society who are caring for elderly or disabled relatives whom they cannot claim as family members for tax or insurance purposes? Shouldn't citizens have a chance to vote on whether they want to give homosexual unions, most of which are childless, the same benefits that society gives to married couples, most of whom have raised or are raising children?
Posted by Tom at 7:43 AM | Comments (0) | TrackBack (0)
WSJ on KPMG's tax avoidance problems
As noted in this earlier post, Big Four accounting firm KPMG is the subject of a Manhattan federal grand jury investigation into the sale of tax shelters to corporations and wealthy individuals who used them to escape at least $1.4 billion in federal taxes. This investigation comes on the heels of an earlier IRS petition to enforce summons against KPMG. Today, the Wall Street Journal ($) has a front page story on KPMG's management decisions that led the firm into the tax avoidance promotion business. The entire article is well worth reading, and here is an example of the deals that KPMG was promoting:
KPMG marketed a range of shelters known by cryptic acronyms. In 1997, it sold Joseph J. Jacoboni a strategy called FLIP. That year, Mr. Jacoboni faced a capital gain of more than $28 million from the sale of his software-support business in Orlando. With KPMG's guidance, he initially invested $4.7 million in a series of transactions in late 1997, according to filings in federal court in Orlando. He bought stock in a Swiss bank and an expensive warrant from a private Cayman Island company, which in turn bought shares in the Swiss bank. He also bought "put" options and sold "call" options.As a result of this activity, Mr. Jacoboni's 1997 tax return showed more than $30 million in capital losses, erasing roughly $7.5 million in tax liability on the sale of his company. His actual cost, after factoring in the return on his investment, was only $2.4 million. The cost included a fee of $437,500 for KPMG. In 2001, the IRS started an audit of Mr. Jacoboni's 1997 return. He then sued KPMG for fraud and negligent misrepresentation -- allegations the firm denies. A trial is scheduled for next month.
FLIP, OPIS and another shelter called BLIPS are under scrutiny by federal prosecutors in the criminal-fraud investigation. The three strategies combined earned KPMG fees of almost $100 million from 1996 through 2000, according to the Senate subcommittee report.
Posted by Tom at 7:29 AM | Comments (0) | TrackBack (0)
Parmalat's U.S. Subsidiaries Declare Bankruptcy
In an expected move, Parmalat's dairy subsidiaries in the United States filed for bankruptcy protection yesterday in New York City. Included in the filing yesterday were the Parmalat USA Corporation and its Farmland Dairies and Milk Products of Alabama units. The move was expected after Parmalat, the food and beverage giant, sought bankruptcy protection in Italy in December amid an accounting scandal.
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More on "The Passion"
Following on yesterday's post about Mel Gibson's new movie, "The Passion," neither the Chronicle nor the NY Times reviewers were particularly impressed from a filmmaking standpoint. From the Chronicle review:
It's a stylish and visually polished re-creation of the last 12 hours in the life of Jesus -- unrelieved suffering and martyrdom, in other words. Controversy over whether it will inflame anti-Semitism guarantees huge audiences, and many people may be profoundly moved. But as a film it is quite bad.It isn't awful merely because of Gibson's obsessive need to zoom in and linger on bloodletting, although this makes it difficult to watch. It's awful because everything he knows about storytelling has been swept aside by proselytizing zeal. Without doubt, this is a heartfelt expression of religious faith, but it is so naked an expression -- untempered by detached, mediating intelligence -- that it speaks solely to the converted.
And the NY Times review adds:
"The Passion of the Christ" is so relentlessly focused on the savagery of Jesus' final hours that this film seems to arise less from love than from wrath, and to succeed more in assaulting the spirit than in uplifting it. Mr. Gibson has constructed an unnerving and painful spectacle that is also, in the end, a depressing one. It is disheartening to see a film made with evident and abundant religious conviction that is at the same time so utterly lacking in grace.
But Kenneth L. Woodward observes in this NY Times op-ed that the public's interest in the movie is due largely to the sanitized versions of Christianity that are so prevalant in America today:
Mr. Gibson's raw images invade our religious comfort zone, which has long since been cleansed of the Gospels' harsher edges. Most Americans worship in churches where the bloodied body of Jesus is absent from sanctuary crosses or else styled in ways so abstract that there is no hint of suffering. In sermons, too, the emphasis all too often is on the smoothly therapeutic: what Jesus can do for me.More than 60 years ago, H. Richard Neibuhr summarized the creed of an easygoing American Christianity that has in our time triumphantly come to pass: "A God without wrath brought men without sin into a kingdom without judgment though the ministrations of a Christ without a cross." Despite its muscular excess, Mr. Gibson's symbol-laden film is a welcome repudiation of all that.
Indeed, Mr. Gibson's film leaves out most of the elements of the Jesus story that contemporary Christianity now emphasizes. His Jesus does not demand a "born again" experience, as most evangelists do, in order to gain salvation. He does not heal the sick or exorcise demons, as Pentecostals emphasize. He doesn't promote social causes, as liberal denominations do. He certainly doesn't crusade against gender discrimination, as some feminists believe he did, nor does he teach that we all possess an inner divinity, as today's nouveau Gnostics believe. One cannot imagine this Jesus joining a New Age sunrise Easter service overlooking the Pacific.
Like Jeremiah, Jesus is a Jewish prophet rejected by the leaders of his own people, and abandoned by his handpicked disciples. Besides taking an awful beating, he is cruelly tempted to despair by a Satan whom millions of church-going Christians no longer believe in, and dies in obedience to a heavenly Father who, by today's standards, would stand convicted of child abuse. In short, this Jesus carries a cross that not many Christians are ready to share.
The religious website beliefnet has been sponsoring an online debate over The Passion and the theological issues it raises. The participants are two scholars representing diverse theological and academic perspectives. John Dominic Crossan is a well-known liberal New Testament scholar whose approach to Jesus is creative, but rather bizarre and skeptical. Ben Witherington III is an outstanding academic from Asbury Theological Seminary who advocates orthodox Christian theology. These two scholars are publishing a measured dialogue that is must reading for people who want to wrestle with the serious issues raised by The Passion of the Christ.
Posted by Tom at 6:43 AM | Comments (0) | TrackBack (0)
February 24, 2004
Martha's team is confident
That is the only explanation for this normally risky move in a white collar criminal case.
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An Orthodox Jew's perspective on "The Passion"
Moe Freedman, an Orthodox Jew who hosts the insightful Occam's Toothbrush blog, has the following interesting perspective on Mel Gibson's new movie, "The Passion":
The Bleeding of the ChristI went to see "The Passion" tonight, and I would like point out a few things to those of you considering seeing it.
First, on an entertainment level, it isn't much of a movie in the traditional sense, so if you're looking for entertainment skip it, this movie is downright painful for anyone not looking for an affirmation of their faith.
Second, on all the Anti-Semitism charges, the really shouldn't be that much controversy - the movie is anti-Semitic only inasmuch as the gospels are. Don't get me wrong, Jews come off quite badly, and are the primary causes of Jesus' death in the film, but that's pretty much the way the gospels went the last time I read them, so you can't exactly blame Gibson for that. I do think the Movie will cause some Anti-Semitism (especially in parts of the world prone to it) but again, you can't blame Gibson for that either.
When it comes to depicting the Jews, the movie mixes up the Sanhedrin, the Kohanim, and the Pharisees in general, into an all purpose villainous group. but it wasn't all that horrible on that front.
Cinematically it was quite good, and the actors were terrific, though some of them seemed to have problems with the cadence of their Aramaic and Hebrew (I'm nitpicking here). James Caviezel was great as the suffering Jesus, but I thought he was a little stiff during the flashback scenes.
The problem for me though, is that I'm not a Christian (I'm an Orthodox Jew BTW), and so I didn't really have any emotional involvement other than simple curiosity, and that makes the film just about worthless. The violence didn't "move" me, it just seemed like a ridiculous amount of overkill. They should have called this "The Bleeding of the Christ," most of the movie is just that, Jesus bleeding. Charge me with deicide if you will, but after about 2/3's of the movie I was begging for the guy to die already so we could all go home.
To sum up, if you're a Christian and want your faith bolstered, tweaked or whatever this is supposed to do, go see it. It certainly seems to work (the two girls sitting next to me were sobbing), But if you aren't, stay home and I'll sum it up for you…Bleeding, lots of it.
Although I am a Christian, I share the concerns of many Jewish leaders regarding the potential anti-Semitic impact of the film. James Carroll's book "Constantine's Sword" is flawed in several respects, but its thorough analysis of the troubling history of Christian persecution of the Jews is daunting and thought provoking. Viewed in that broad context, Jewish concerns regarding potential anti-Semitic reaction to Mr. Gibson's movie are entirely reasonable. Christians accept that all of mankind is responsible for Christ's death, and Jews certainly should bear no greater responsibility for his death than anyone else. What is more important to me is God's forgiveness of my complicity in that sin, for which I am eternally grateful.
Posted by Tom at 10:47 AM | Comments (0) | TrackBack (0)
Business is tough
My law practice mostly involves lawsuits over business transactions, and I am constantly reminded in my practice that most non-business people dramatically underestimate the difficulty involved in running a business successfully. This NY Times article reports that 34 percent of businesses with 500 or fewer employees close within two years of opening, and 50 percent fold after four years. These business difficulties highlight the importance of sound business reorganization and bankruptcy law, and the United States is blessed to have the best business reorganization and bankruptcy system in the world. More on this point later, but it is not a feather in the hats of either the Bush Administration or the Republican Party that they are currently urging Congress to amend the United States Bankruptcy Code.
Posted by Tom at 9:49 AM | Comments (0) | TrackBack (0)
Incompetence defined
As noted earlier in this post, the street rebuilding project that has been going on in downtown Houston during almost the entire administration of former Mayor Lee Brown has been one of the mostly poorly managed public works projects in recent Houston history. This Chronicle article gives a good example of the legacy of this mess that new Mayor Bill White has inherited.
Posted by Tom at 9:31 AM | Comments (1) | TrackBack (0)
Houston attorney sentenced
Brian Coyne, 58, a Houston defense lawyer who caused a downtown car wreck in January, 2003 that killed Michael Bruns, a Chase Bank officer from The Woodlands, was sentenced Monday to five days in jail, eight years' probation, fined $10,000, and ordered to perform 350 hours of community service after pleading guilty to criminally negligent homicide in December. Mr. Coyne could have faced up to 10 years in prison.
This marks the end of legal proceedings over this incident, which is one of those unspeakable trajedies that reminds us of the shortness of life and the unforseen irreversible consequences that sometimes result from serious errors in judgment. Mr. Bruns was a pillar in The Woodlands community, and his death left a loving wife without a husband and three young children without a father. I do not know Mr. Coyne, but it my understanding from those who do is that he is a caring man and good attorney, and his statement to the court during his sentencing reflects the pain that he will experience for the rest of his life. May the Lord be with the Bruns Family and Mr. Coyne as they piece their lives back together after his tragic incident.
Posted by Tom at 9:14 AM | Comments (1) | TrackBack (0)
Go Texan Day is this Friday
Houston has grown into a remarkably diverse city, but its heritage as a quintessential Texas city is reflected best by the annual Houston Livestock Show and Rodeo. Unless you are a Houstonian, it's a bit difficult to explain "the Rodeo," as Houstonians call it. But it's an event that lasts almost three weeks each March, involves volunteer efforts of thousands of Houstonians, brings hundreds of thousands of people into Houston, raises millions of dollars for academic scholarships, and provides some of the most interesting and unique entertainment that one could ever imagine.
Started in the early 1930's in downtown Houston, the Rodeo has grown into a huge event that literally envelopes the entire Reliant Park complex, including Reliant Stadium and the adjacent convention facility. The Rodeo kicks off with 5,000 trailriders descending on Houston's Memorial Park this Friday, which is "Go Texan Day" in Houston in which most folks go to work in some type of cowboy attire. After a wild night of campfire parties at Memorial Park, the Trailriders ride the five miles down Memorial Drive to downtown Houston early Saturday morning for the annual Rodeo Parade, which is great fun. Then, it's off to the Rodeo at Reliant Park.
The Rodeo always has a first rate lineup of entertainers who perform after each night of the rodeo event, and this year is no exception. However, this year is particularly special for me in that rising country music star Dierks Bentley is one of the headline performers. Dierks is the younger brother of an old friend of mine, Houston real estate attorney Bart Bentley, who happens to be a pretty fair guitarist himself in the popular Houston rock band, Mid-Life Crisis and the Hot Flashes.
Although my teenage daughters undoubtedly will want to see Dierks' show at the Rodeo, I most enjoy the Livestock Show in the Reliant Convention facility while visiting the Rodeo. Over the years, I have seen more incredible animals in the Livestock Show than in any zoo that I have ever visited.
Accordingly, if you are visiting Houston during March, do not miss the opportunity to visit the Houston Livestock Show and Rodeo. Not only will you be highly entertained, but you will learn more about Texas in general and Houston in particular than you could anywhere else.
Posted by Tom at 8:47 AM | Comments (0) | TrackBack (0)
February 23, 2004
NFL revenue sharing to be reviewed
This Washington Times article describes a movement among certain National Football League owners to revise the NFL's Trust, the master business agreement that maintains that shared national revenue structure that has propelled the NFL into a multi-billion dollar industry and makes the NFL the envy of virtually every other professional sports league.
Posted by Tom at 7:43 PM | Comments (0) | TrackBack (0)
Bid to revive Roe v Wade update
In this post from last week, it was noted the plaintiff in the landmark Roe v. Wade abortion case had sought Fifth Circuit review of a District Court order denying her Fed. R. Civ. P. 60(b) motion that attempted to reopen that controversial case. Today, the Fifth Circuit cancelled oral argument, which is not surprising because the Court often does not grant oral argument on appeals that are subject to summary disposition. Inasmuch as the appellant's appeal in this case is a long shot, my sense is that the Fifth Circuit is preparing to affirm the District Court's denial of the appellant's motion and dismiss the appeal. Thanks to Howard Bashman for the tip on this development.
Posted by Tom at 6:17 PM | Comments (0) | TrackBack (0)
Haiti Blog
As the civil war worsens in Haiti, Daniel Drezner and Tyler Cowan point to Haiti Pundit, a blog about news and views on Haitian politics and culture. With American armed forces entering Haiti today, this is a good source of current information on the Haitian situation.
Posted by Tom at 5:48 PM | Comments (1) | TrackBack (0)
Rumsfeld's War
"Rumsfeld's War" is a new book by Rowan Scarborough, defense reporter for The Washington Times. Today's Times contains the first excerpt of a series from the book.
Mr. Rumsfeld's efforts to transform the Pentagon have an interesting background that stretches back several decades. Author Robert Coram compellingly presents this interesting story in his book, "Boyd: The Fighter Pilot Who Changed the Art of War." Suffice it to say that appearances are deceiving with regard to the Pentagon, the special interests that attempt to control it, and the elected officials that attempt to lead it. This is not a story that the mainstream media has covered well, so Mr. Coram's book and a few others that deal with this interesting story are essential to a sound understanding of the key issues confronting the United States Armed Forces in the context of modern warfare.
Posted by Tom at 6:51 AM | Comments (0) | TrackBack (0)
Martha, this is risky
The Wall Street Journal ($) reports that Martha Stewart's legal team is seriously considering not putting Martha on the stand during her defense of the criminal case against her. The Stewart defense team apparently thinks that the prosecution's laborious month long presentation of its case against Martha chloroformed the jury. Accordingly, the defense team is considering a minimalist defense that could be done by the end of the week.
Although understandable given the prosecution's apparent mishandling of this case, not putting Martha on the stand is a risky strategy. Particularly in white collar prosecutions, jurors want to hear from the defendant. If the case is a closer call than what it appears, then Martha's failure to defend herself on the stand could tilt jurors against her.
Posted by Tom at 6:23 AM | Comments (0) | TrackBack (0)
February 22, 2004
Hey O.J., let's play grab law
According to this refreshing piece, it appears that O.J. Simpson may have a bit of trouble collecting his fee for appearing at an autograph show in St. Louis.
Posted by Tom at 1:47 PM | Comments (0) | TrackBack (0)
Civil liberties and the War on Terror
Ethan Bronner, deputy foreign editor of the NY Times, has a review in today's New York Times Book Review on several recent books that share a central theme -- i.e., that the War on Terror combined with Attorney General John Ashcroft, as one book put it, ''are responsible for some of the most egregious civil liberties violations in the history of our nation.'' Mr. Bronner is much more measured than that statement, and the entire article is well worth reading. Here are a couple of tidbits:
If you believe these changes are eroding the liberties that make this nation great, these books are for you. They will give texture and sharpness to your rage. You can pick from among them based on your level of concern. If you are incensed, go for the Brown essay collection, ''Lost Liberties.'' In it, Aryeh Neier says, ''We are at risk of entering another of those dark periods of American history when the country abandons its proud tradition of respect for civil liberties.'' And Nancy Chang of the Center for Constitutional Rights says that executive measures taken in the wake of the Patriot Act ''are responsible for some of the most egregious civil liberties violations in the history of our nation.'' Given the suspension of the writ of habeas corpus during the Civil War, the Palmer raids in World War I and the internment of Japanese-Americans in World War II, both of these statements seem to me hard to defend.Of course, one legitimate complaint that Ashcroft and many others could lodge against nearly all these books is that they fail to spend any time on the threat to liberty not from Ashcroft but from Al Qaeda. Liberty is meaningless without security, as Viet Dinh, the former assistant attorney general who wrote much of the Patriot Act, has often said. Stuart Taylor Jr., a legal journalist, put it this way in The National Journal in December 2002: ''Should we eschew fishing expeditions through Ryder truck rental records and fertilizer purchases? Not if we want to prevent terrorist mass murders. And I, for one, am a lot less worried about the government snooping through my credit card bills and psychiatric records than about being anthraxed in the subway or killed by a nuclear explosion in my downtown Washington office.'' While this strikes me as too far in the other direction, such words are useful to keep in mind while reading of Ashcroft's sins.
Posted by Tom at 12:57 PM | Comments (0) | TrackBack (0)
President Bush names fellow Texan to run Medicare and Medicaid
President Bush announced that Dr. Mark B. McClellan, the food and drug commissioner, will be named to run Medicare and Medicaid, the health insurance programs for more than 70 million Americans. Dr. McClellan, 40, is a graduate of The University of Texas at Austin, the brother of the White House press secretary, Scott McClellan, and a son of the Texas comptroller, Carole Keeton Strayhorn, who has been carrying on a public spat with Governor Perry and has hinted that she might run against Governor Perry in the 2006 Republican Primary.
Posted by Tom at 12:25 PM | Comments (0) | TrackBack (0)
Reading stock market tea leaves
The NY Times has a couple of interesting articles in its Sunday business section. In this one, Times business reporter Ken Gilpin notes that the stock market has moved steadily higher since last summer, even though insider stock sales have far outnumbered purchases. Mr. Gilpin interviews Jonathan Moreland, a money manager and the director of research at InsiderInsights.com, as to the reason for this apparent contradiction.
Another Times article reports on a recent academic study that challenges the popular reason for not worrying about the high price-to-earnings ratio in the stock market today -- i.e., the idea that the ratios should be high when interest rates are low. According to the traditional Fed Model, stock earnings growth should be slower when Treasury note rates are high and faster when those rates are low. However, that has not been the case historically, according to the new study, "Inflation Illusion and Stock Prices," by Harvard finance professors John Y. Campbell and Tuomo Vuolteenaho. According to the study, the stock market has tended to become significantly undervalued in times of high inflation and overvalued in times of low inflation. As a result, the situation in the market today may be the mirror opposite of what prevailed in the late 1970's -- that is, stocks may be as overvalued today as they were undervalued then.
Posted by Tom at 12:10 PM | Comments (0) | TrackBack (0)
Confessions of a Tax Collector
This new book -- Confessions of a Tax Collector: One Man's Tour of Duty Inside the IRS by former 12 year IRS agent, Richard Yancey -- looks potentially interesting. Mr. Yancey describes his 12 years with the IRS in which he relates everything from his General Patton-type trainer who wished he could carry a gun to his own development into someone who could close down a four-person woodworking shop for failure to pay payroll taxes and seize homes of the tax delinquent without losing sleep.
Posted by Tom at 7:41 AM | Comments (0) | TrackBack (0)
Enron's reorganization plan
Eric Berger of the Houston Chronicle does a good job in this article summarizing the structure of Enron's plan of reorganization that is scheduled for a confirmation hearing in the New York Bankruptcy Court in April.
I'm been quite involved in the Enron case, initially representing a suitor of Enron's online trading business, and then representing a former high-level Enron executive in several civil litigation matters and advising another former Enron executive and a former Arthur Andersen partner in regard to matters relating to the case. So, I've got a pretty good sense of what's going on in the case. Inasmuc