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William C. Altreuter
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Wednesday, October 22, 2014

Charley Pierce on the perils of an elected judiciary.

I'm not sure why the 92nd Street Y chose The Man Who Shot Liberty Valance before Justice Breyer's talk the role of law and lawyers in society-- it wouldn't have been my choice. I suppose there is a core truth in Liberty Valance that goes beyond "When the legend becomes fact, print the legend." In a sense when we are litigating a matter what we are doing is working towards an agreed upon set of facts-- and when the matter is decided at nisi prius  we become locked into those facts, whether or not we "agree" with them at that point. In recent years it has become fashionable among lawyers to quote John Adams: "Facts are stubborn things,"and I suppose we are being sincere when we say it, but the reality is that we all know better. Facts are different from evidence after all. The law of evidence evolved the way it did in a charming effort to develop a sort of science of reliability in the face of a world which we know to be unreliable. Evidence is, in the end, a system of excluding certain types of proof in favor of other types. We first eliminate the irrelevant, a complex task in an interconnected world; and then we consider what other types of proposed proof are or are not testable. When this was all being worked out science was thought of as Natural Philosophy, and so principles of scientific reliability were applied: hearsay rules are really just a way of barring forms of proof that are not subject to verification or rejection by cross-examination. What that means, ultimately, is that the version of the facts that we as lawyers see is distorted through the lens off our artificial apparatus of truth-seeking, and in some ways that lens is as unreliable and as subject to wishful or heroic thinking as the question of who was responsible for bringing law and order to Shinbone.

An aside: I'm always a bit shocked when I recall that Liberty Valance was released in 1962-- it seems like an older movie to me, and its distinctive cynicism seems out of synch with the supposed optimism of the  Kennedy years. In a sense you might argue that Ford was weirdly prescient: we recall 1962 and Kennedy as legends now, don't we?


Friday, October 17, 2014

Albums That Never Were. In the mid-to-late 70's this was a popular sort of mixtape: constructing albums that hadn't been released by bands and artists from solo projects, B sides, compilations, soundtracks and the like. Back then a lot of these projects consisted of creating post-Beatles Beatles albums, but Crosby, Stills, Nash and Young sets were also easy to put together. There's a lot more out there these days, and this guy has created "lost" albums by Pink Floyd, The Who, and a bunch of others. He even remixes some of them. Pretty cool.

Wednesday, October 15, 2014

More for our Perils of an Elected Judiciary File. The Supreme Court is poised to rule on the question of whether judicial candidates can directly solicit campaign funds. How could that possibly go  wrong?

Monday, October 13, 2014

I'm helping out with BuffState's moot court program again this semester. It's kinda fun to do, and it broadens the kind of students I work with, but best of all it gives me an opportunity to think a little bit about larger socio-legal issues. This year's problem involves a hypothetical statute which requires women seeking an abortion to undergo and watch a trans-vaginal ultrasound, along with a 24 hour waiting period, and some other stuff. The performing physician performing the procedure must read from a prepared script, and cannot depart from it to offer any further medical advice, so both the undue burden issues surrounding abortion rights and First Amendment issues are implicated. It's a nifty problem, I think, and it forces one to confront an uncomfortable question: Can we assume the good faith of any legislature?

I am reminded of this because Outside Counsel hero, the Hon. Richard Posner, has reversed himself and written a strong opinion about voter identification laws.
This opinion, written on behalf of five judges on the 7th Circuit, thoroughly disabuses such notions such as: these laws are meant to deal with a phantom voter fraud concern (“Out of 146 million registered voters, this is a ratio of one case of voter fraud for every 14.6 million eligible voters”); that evidence shows them to be little more than baldly partisan attempts to keep Democratic voters from voting (“conservative states try to make it difficult for people who are outside the mainstream…to vote”); that rightwing partisan outfits like True the Vote, which support such laws, present “evidence” of impersonation fraud that is “downright goofy, if not paranoid”; and the notion that even though there is virtually zero fraud that could even possibly be deterred by Photo ID restrictions, the fact that the public thinks there is, is a lousy reason to disenfranchise voters since there is no evidence that such laws actually increase public confidence in elections and, as new studies now reveal, such laws have indeed served to suppress turnout in states where they have been enacted.
Voter ID laws are, I think, pretty plainly designed to suppress minority voter turnout, just as the laws in Texas, Missouri, Indiana, the Dakotas, Arkansas, Georgia, Idaho, Michigan, Nebraska, the Carolinas,  West Virginia, real Virginia, Mississippi, and Kansas (ugh, what a list) are forced pregnancy laws. The history of the jurisprudence surrounding women's health issues -- or rather, the history of state legislation in the years following Casey v. Planned Parenthood looks to me like the same sort of bad faith, but legislative competence and good faith must be presumed.

Friday, October 10, 2014

This just in, Professor David Siegel has died. Professor Seigel's name is associated with New York Practice the way that Lawrence Tribe's is associated with Constitutional Law, or Prosser's is with Torts. My copy of Siegel's New York Practice is the book I keep closest to my desk-- as I write this I can put my hand on it. One of the best things about belonging to the New York State Bar Association has been the subscription to his New York State Law Digest. What made him great was not just the depth and breadth of his command of the law-- it was that his writing was clear, and beautiful, and frequently funny. That's not so easy to do when one is writing about New York's Civil Practice Law and Rules, but Professor Seigel had a deft touch.

Fridays are Law Days (sometimes) here at Outside Counsel. Today, a useful piece on Social Media and Spoliation, via friend of the blog Nicole Black. The take-away? If your client has put something out there, they can't take it down-- but they can adjust their privacy settings. 


Thursday, October 09, 2014

 Patrick Modiano. Don't know him, but I'm certainly open to reading something by him. Local Public Intellectual (yes, that's a thing) Jeff Simon weighed in on Noble Literature Prize earlier in the week: he is grumpy because an American hasn't won since Toni Morrison in 90's, and was rooting for Philip Roth, or Joyce Carol Oates, or Richard Ford. There is a good case for Roth, based on his own shelf, and on his work promoting Eastern European writers, but there are always good cases to be made for a lot of people. I'm re-reading The Quiet American at the moment-- just finishing it up, actually, and Graham Greene, famously out of favor with the Swedish Academy, had a great case for the prize. The prize has gone someone born in the US 8 times; only France (11) can claim more native winners. Germany has had 8, the UK 7 (including Winston Churchill). Sweden has had 7, Italy 6, Russia and Spain 5 each. Of course, a lot depends on how you count: Joseph Brodsky was born in the Soviet Union but was an American citizen when he won; Isaac Bashevis Singer was born in the Russian Empire. (Saul Bellow was born in Canada.) Actually, Russia presents a real dilemma if you are keeping score--  some cats, like Aleksandr Solzhenitsyn and Boris Pasternak were citizens of the Soviet Union, Ivan Bunin was born in the Russian Empire, wrote in Russian, lived in France, and was "stateless" according to the Academy. And so on. It probably makes more sense to break it down by language, or maybe not to break it down at all. There is really no purpose to treating the Prize as if it is some kind of US News & World Report ranking system.

On the other hand, this year's nominees for the Rock and Roll HOF are ridiculous: Green Day, Nine Inch Nails, N.W.A, the Smiths, Lou Reed, Sting, the Paul Butterfield Blues Band, Kraftwerk, Chic, Joan Jett & the Blackhearts, the Marvelettes, the Spinners, Stevie Ray Vaughan, War and Bill Withers. Reed is already in for his work with the Velvet Underground, but his subsequent career merits recognition. I wish the Smiths were more significant to me personally, but okay. Kraftwerk absolutely, likewise Chic and the Spinners. Sorry, Bill Withers, wrong HOF.

Monday, October 06, 2014

I just got back from the funeral of a total stranger.

I was reading the paper Sunday when I saw an obit for Pamela X. There was no information about a wake, and the funeral was today. I glanced at the survivors, saw the name by which Captain X is more widely known, and made a note of the time and church where the funeral was to be. I hadn't heard from Captain X in a few weeks, and reckoned that this must be why.

When I got to the church it was packed to the walls. I slipped into a pew towards the back and started to look around, but I saw nobody that I knew or recognized.

The pallbearers and coffin entered. Oddly, I recognized none of them. They were all terribly broken up. The Mass commenced. We'd gotten past the opening prayers, and were into the  first reading, which was being given by someone I'd never seen before. I snuck a look at the Order of Service, and realized that none of the people named had names that matched known X siblings. I slipped out through a side door, and called Captain X's office. "He is out of the office at a meeting," the receptionist said. "At a meeting or at a funeral?" I asked. "He said it was a meeting..." she said. "Well, look, if he was at his mother's funeral would he have told you that?" I... think so," she said.

This was getting me nowhere, so I decided to call Mrs. X-X.  I suppose I should work on my telephone manners, which I grieve over during the long nights. "Hello?"
"Did I get you in church?"
"No, why?"
 "How's Captain X's mom?"
"Who is this!".
" Hi X, it's Bill Altreuter. How's Captain X's mom?"
"She's fine. They were just over for dinner last night. Why?
"Well, I'm glad to hear it, because the lady whose funeral I just left wasn't doin' so good."

Another morning shot to hell. I considered sticking around for the breakfast, but decided against it. It's not that often you can walk away from a funeral serene in the knowledge that whoever it is that is grieving, everyone you know is okay.


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