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Friday, August 29, 2008


Enough about Section 409A elections - how about some thoughts on the real election?

So Obama picks Biden, a pretty solid choice, and McCain calls it a "wise selection." Obama then gives a rousing acceptance speech, and McCain says "job well done." Is it possible that we're finally going to have that high-road battle between two class acts that everyone says we're never going to get?

Speaking of the election, let's use this occasion to review what to me is an eerily prescient and incredibly legally tuned moment from 1993's Demolition Man. Sylvester Stallone has been awakened in the future to fight Wesley Snipes. After Sandra Bullock and Benjamin Bratt bask to Stallone's dismay in an "oldies" station's playing of the Armour Hot Dog jingle, Stallone and Bullock later get back in the car and have the following incredible exchange (dutifully transcribed by me with the help of a DVR):

Bullock - I have in fact perused some newsreels from the Schwarzenegger Library, and the time that you took that car . . . .

Stallone - Hold it. The Schwarzenegger Library?

Bullock - Yes, the Schwarzenegger Presidential Library. Wasn't he an actor when you . . . ?

Stallone - Stop. He was President?

Bullock - Yes; even though he was not born in this country his popularity at the time caused the 61st amendment which states that [unintelligible word or two] . . .

Stallone - I don't wanna know. . . . [with a sarcastic harrumph:] President.

Stallone here at the end seems almost to speak for himself as the "other" action star, rather than for his character, in a way that riotously breaks down the fourth wall. Notably, all of this happens before the California recall election was even a glint in anyone's eye - wow! (By the way, Schwarzenegger and Stallone returned homages to each other in '93, as, in the hugely underrated and unfortunately vilified Last Action Hero, Stallone's postered mock T2 visage was the subject of Schwarzenegger's line, "He's a fntastic [sic] actor.")

Who knows? We may someday have real reason to look back on those lines again. Actually having the opportunity to vote for Ah-nold for President - wouldn't that be something? And even if I don't ever get that chance, I'll always like the fact that (you knew this was coming back to ERISA, right?) I can refer to "the Schwarzenegger case" when talking about whether ERISA preempts state UBIT provisions (449 F.3d 423 (2006)). (The case is even correctly decided! Too bad Snipes didn't fare better with his own little tax case. . . .) See also Tech. Serv. Bull. M-06(6)C, N.Y. St. Dep’t of Tax’n & Fin., Off. of Tax Policy Analysis, Tech. Serv. Div. (Nov. 9, 2006).

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