While I've been Downunder, I've been following with interest news accounts of the Steve Vizard case. The television entertainer turned businessman just got slapped with a A$390,000 fine and a 10 year ban from serving on corporate boards of directors. As nearly as I can tell based on news accounts, and assuming they're accurate, Vizard's conduct would raise issues under corporate opportunity doctrine (or would have if he were under US corporate law) in that he apparently set up a firm to broadcast AFL games online even though Telstra - on whose board of directors he sat - was negotiating with the AFL. His conduct also would raise questions under the interested director doctrine (ditto re US law) because he apparently was on the boards of both Telstra and the Melbourne cricket club while they were negotiating a contract. Finally, under Aussie law, he allegedly commited insider trading by virtue of trading in the stock of a number of companies dealing with Telstra on the basis of material nonopublic information he learned by virtue of his position on the Telstra board. The same would have been true under US law, of course. (Here's a good summary of the case.)
All I can say is Vizard's damn lucky he's not in the US, where the criminalization of agency costs has led to multimillion dollar fines and long prison sentences. Granted, the corporate opportunity and interested director aspects of the case normally would not be handled under criminal law in the US anymore than they were in Australia, although the Adelphia and Tyco cases suggest that US prosecutors could well have brought an indictment if he were over here.
One of the interesting lessons I've learned from this case is that clarity can be a serious disadvantage for prosecutors. As one commentary put it:
Running to nearly 10 pages in the Corporations Act - compared with one paragraph in the US Securities Exchange Act - Australia's insider trading laws cast the broadest net anywhere. But there's a problem: our laws might be tough on crime but they're also tough to enforce. This is why the Australian Securities and Investments Commission has an appallingly low success rate: less than one in three.
In contrast, the SEC has vigorously resisted proposals to define insider trading in US law with anything like the precision of Australian law. As a result, as I pointed out in my article Insider Trading Regulation: The Path Dependent Choice between Property Rights and Securities Fraud, the definition of insider trading has been left to the courts to develop on a case-by-case basis, which in turn has left the law fairly vague on the margins, which gives significant advantages to prosecutors, especially in plea negotiations.
As a proud card carrying member of the Federalist Society (well, actually I lost my card but you know what I mean), I'm outraged by the way the Bush administration is trying to pretend SCOTUS nominee John Roberts never belonged to it. From the Boston Globe:
In conference calls plotting strategy for his nomination, conservatives spoke angrily yesterday about the White House's decision to disassociate Roberts from the group. Many conservatives said the society should not be treated like a pariah, and questioned what would happen if the next Supreme Court nominee is a member.
Shannen Coffin, a Federalist Society member and former Justice Department official who has assumed a prominent role in defending Roberts, said that the White House's attempt to distance Roberts from the group ''was not well thought out" and that his involvement should be irrelevant.
''It's important that this doesn't become a litmus test, either for our political enemies or for the supporters of the president," Coffin said. ''If we start to tar nominees by association with a very academic and prestigious organization, we're making a mistake because we're stifling debate."
The legal left would love to make Federalist Society membership disqualifying for public service. (See, e.g., Francis Boyle; cf. Eugene Volokh's defense.) Why the hell is the Bush administration helping them?
Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).
Durbin's office is denying the story. As a legal matter, I'm not sure how I come out on this. I guess it is a fair question; one can imagine much the same question being posed with respect to the death penalty, which admittedly poses exceedingly tough issues for Catholic judges. Stephen Smith in fact concludes with respect to the latter issue that:
If capital punishment is sought in a case where the Church would regard it as immoral, Catholic judges may not, as I understand it, participate in proceedings intended to determine whether the defendant should be put to death—such participation, after all, would entail formal cooperation [with evil].
Justice Scalia famously rejected this position, as Althouse reminds us, but in doing so he took the position seriously and thereby lent it credence.
Patterico thus errs in commenting on this issue, IMHO, by conflating the standards by which senators make their assessments in the exercise of their Constitutional role to give advice and consent to judicial nominees and those by which judges must recuse themselves in the context of specific cases. Hence, Judge Noonan's eloquent refusal to recuse himself from abortion cases, which Patterico quotes, strikes me as inapposite. (Beldar has a good analysis of the relevant rules of judicial ethics, but it's worth remembering that Catholic judges are bound by both those rules and the dictates of their faith. The latter bars formal cooperation with evil, which some serious and thoughtful scholars believe that at least Catholic trial judges commit when they impose the death penalty.)
If it is legitmate for senators to consider a nominee's ideology, admittedly a somewhat contested point, it surely is legitimate to consider the potential that their religious views would impact their decisions. I lean towards the view that a senator properly may consider these questions in making the political decision to vote for or against a SCOTUS nominee.
As a political matter, however, I think it reflects the tin ear most top Democrats have these days when it comes to religion. It is no wonder people of faith increasingly lean towards the GOP, when the Democrats so casually demonstrate their fear of religion and their devotion to abortion.
I am deeply suspicious of politicians whose views on abortion, stem
cells, and the rest of the culture of life issues "evolve" just in time for them to run for higher
office. Even when they claim to have come around to my side.
Lots of good posts over at Mirror of Justice on the
question of whether John Roberts' apparently devout Catholicism would
require him to recuse himself from cases involving, say, abortion or
the death penalty. Too many to link separately. Start here and click your way forward. My post
Stare Decisis and Roe v. Wade is also relevant, as is my post A Religious Test?.
Pinot Noir Chardonnay Pinot
Meunier Brandy Dosage 2001: Very deep gold with a tinge of
salmon. Great rich nose. Creamy texture. Green apple and warm bread.
Pink Blush NV: A rose
sparkler. Sweet berry flavors. Clean and crisp. Grade: B
Rouge Ambrosia NV: A sparkling blend of Cabernet
Sauvignon and Shiraz. Cherry color. Blackberry and toast. Grade: B+
Sparkling Merlot 2002: Crimson red. Soft with a
suggestion of sweetness. Blueberry and strawberry. It's interesting,
but not my thing. Grade: B
Sparkling Chambourcin 2003: Chambourcin is a so-
called French Hybrid with deep purple flesh. I'd never tried it before.
Oddly, however, I liked this one best of all the red sparkling wines.
Deep purple color. Beautiful inky foam. Smoky berry flavors. Long and
tasty finish. Grade: A-
Sparkling Shiraz NV: Pepper and typical Hunter
Valley barnyard flavors in a spearkling wine. Blackberry, cherry, and
game. Odd, but it works. Grade: B+
Sparkling Cabernet Sauvignon NV: Fascinating.
Classic Cabrnet flavors of blackcurrant, cherries, and cedar. A touch
of herbs and olives. Grade: A--
AG Alberto Gonzales today opined that the SCOTUS is not bound to
follow the Roe v. Wade precedent. To which you might respond,
"weel, duh," but it brought forward predictable protests from
the usual suspects. Armando at Kos,
for example, invokes the principle of stare decisis. Armando's argument
omits one key fact, however; namely, that stare decisis is given far
less weight with respect to Constitutional issues than with respect to
statutory or common law decisions.
decisis is usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than that it be
settled right. . . . This is commonly true even where the error is a
matter of serious concern, provided correction can be had by
legislation. But in cases involving the Federal Constitution,
where correction through legislative action is practically impossible,
this Court has often overruled its earlier decisions. The
Court bows to the lessons of experience and the force of better
reasoning, recognizing that the process of trial and error so fruitful
in the physical sciences, is appropriate also in the judicial
Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 406-408 (1932)
(Justice Brandeis dissenting).
Tetsuya's is generally reputed to be both Sydney's and Australia's top ranked restaurant. Indeed, at least by some accounts, it is one of the top 5 restaurants in the world. When we visited Tetsuya's this week, it more than lived up to its reputation.
The service is friendly, attentive, and yet totally professional. The staff goes out of its way to ensure that your dining experience is outstanding. When table captain Michael Dore realized we had not especially liked what was intended to be the final course, he quickly added two additional dessert courses that were not on the evening's menu. At the end of the meal, Michael kindly printed out a personalized menu of our courses and wines.
The setting is beautiful and romantic. Small rooms provide an intimate experience, while elegant gardens and artwork enhance the restaurant's considerable visual appeal.
The food is amazing. Tetsuya uses impeccable regional and local ingredients, which he prepares in a sort of Franco-Japanese fusion idiom. The set degustation menu typically offers nine or ten courses, although as already noted, we ended up with an astonishing 13 courses.
Other than the floating island dessert, there wasn't a single course I didn't enjoy, but several stood out: The scampi with foie gras was a stunning combination. The flavors and textures were complex and even profound. The tuna tartare was what sushi wants to be when it grows up. The crab ravioli was deliciously accented by a warm tomato-basil vinaigrette. The blue cheese ice cream with pear and sauterene jelly was nothing short of astonishing, blending savory and sweet and crying out for a good port. The white bean creme brulee, which was accented by ginger and white pepper, was as delicious as it was novel.
In sum, this meal leaps high into the pantheon of great meals I've experienced. The totality of the experience made it a treat for all of our senses. Very highly recommended.
There are few US policies I find less persuasive than the Cuban embargo. Granted, as a cigar smoker deprived of what are reputed to be the world's best smokes, I have something of a conflict of interest in this regard, but how has the embargo done anybody any real good? You can't justify it on the basis of lingering cold war animosity towards Communist regimes. After all, if that were what was going on, would we have a $100 billion+ trade deficit with China? Instead, as far as I can tell, the embargo persists solely because no US presidential candidate is willing to risk losing Florida by annoying the Cuban exile community. But why should a few hundred thousand expatriates dictate US policy?
Anyway, during my stint in Australia I have been enjoying the benefits of an embargo free economy. Specifically, the Club Bar in Sydney's Park Hyatt has proven to be an ideal spot for Americans deprived by the embargo to test the proposition that there is something unique about Cuban cigars. If you want to get the sense of what it probably was like to have been a clubman in Edwardian London - good jazz, dark paneling, a fire, comfortable easy chairs, a Cohiba Siglo II or a Hoya de Monterrey Epicure No. 2, and a couple of glasses of Penfolds' Great Grandfather "port" - it's a must stop.
In the meanwhile, I can't help but wonder if the customs agents back in the States will buy my explanation that I bought a bunch of "Australian" cigars?