Outside Counsel

Here in New York's Eighth Judicial District we are in the midst of an interesting judicial election. The Chief Administrative Judge has been cross-endorsed by the Republicans and the Democrats. The other seat is presently occupied by the former Comptroller of the City of Buffalo, Robert Whelan. The Democratic Judicial Nominating Convention declined to endorse Judge Whelan for re-election, and instead nominated a friend of ours, Paula Feroleto. When we were in law school, Paula was one of the two or three people in our class that everyone knew would make an outstanding judge, and everything she has done since has confirmed this impression. The Republicans nominated a lawyer who is more or less a contemporary, and whose principal credential is that she was the head of the Buffalo office for the worst New York State Attorney General of my lifetime. Before she took that job, I had every reason to believe that she was a capable attorney, but involvement with Dennis Vacco is a lie down with dogs, get up with fleas proposition as far as I am concerned. Justice Whelan is running on third party tickets.

We have made no secret of our despair over the method of judicial appointment by popular vote. It is a terrible way to get judges, with nothing to recommend it. Judicial candidates can't really campaign in any meaningful sense-- what are they going to say? "Vote for me, I'll follow the law?" What the electorate has to go on is name recognition, party affiliation, and, maybe, newspaper endorsements. This endorsement, from the Buffalo News, is a good demonstration of why non-lawyers are poorly equipped to vet the qualifications of judicial candidates. Justice Whelan's Bar Association rating was "qualified"-- which reflects complaints about his judicial temperament. Despite this, the News endorsed him, because of his experience. Think about that for a moment: "By most accounts, Whelan can be abrasive, but attorneys surveyed during this page's endorsement review process also saw him as very bright, with most crediting him as being well-prepared for cases." I'll join in the proposition that Justice Whelan is intelligent-- that is absolutely true. He works at his job, too. Both of those things should be among the absolute minimum qualifications that we expect from our judges. Temperament is the only other qualification that you can look to-- and if you know that a person's temperament is poor, why would you want to perpetuate that person's time on the bench? It's a 14 year term-- that's a long time to have someone who has established a reputation for being "abrasive" deciding things. 28 years (I just did the math) is twice as long. Citing "experience" as the reason to perpetuate the abrasiveness is absurd-- of course he is experienced-- he has just served a 14 year term! What about the experience of the lawyers who have appeared before him for 14 years, and found him abrasive? Shouldn't that count for something?

I've been before Justice Whelan. He is far from the most abrasive judge I have been before, but it is certainly fair to say that he is mercurial, at a minimum. I have a pretty thick skin, but I walk on eggs when I am in his courtroom, and I don't see that this has ever advanced the cause of justice. The News' endorsement impresses me as plainly wrong-headed, amounting as it does to saying that experience trumps temperament. Like hell it does. Anybody can get experience: if you don't die tomorrow, you are a day more experienced automatically. But, as Heraclitus tells us, "A man's character is his fate.". A judicial selection system that wasn't premised upon the whim of the majority might better accommodate this recognition.

They are changing the fit of 501s? Then why I am I killing myself trying to change my body? (And when did Outside Counsel become so clothing obsessed? What are we here, Vogue?) (Via Flutterby.)

Speaking of matters sartorial, EGA writes:

"I arrived at college with only the socks on my feet- at least, in terms of socks. I did have some other sundries, but as far as socks, nothing. For the first few days I shared this information with practically everyone I met; why, I have no idea. Perhaps I was trying to establish some sort of absent-minded personna. As far as forgetting things, I could have done worse: it was no big deal to wander around campus sockless for a week or two, but think how awkward it would have been to have forgotten, say, underpants. Of course, I eventually bought socks (once I had figured out the cheapest possible sock vendor in Northampton), but what really bugged me were the socks I'd forgotten. My family is not big on personal property, and the clearest evidence of this is the Communal Sock System. Our unofficial sock policy is, "from each according to her ability, to each according to her needs." Although my sisters and I often receive novelty socks for Christmas, we rarely remember which socks are whose. Everybody pretty much wears all the socks. This means that nobody is ever wearing socks that fit. I'm fond of the Communal Sock System, but I had a better idea. I was going to begin my adult life with seven identical pairs of white socks. That way, I'd never have to sort socks, I'd never have to worry about losing a sock: it would be great. Seven identical pairs of socks were purchased. They got as far as the front door. And they were never seen again.

"Today I am doing laundry. On my bed are at least six different colors of socks. I'm sorting them. At least one is missing its mate.

"It was such a good idea in theory."

My signature look, if you will, has always been a bow tie. There are those who do not care for this look, but it has served me well over the years, and I am fond of it. I became a bow tie guy for several reasons. I knew how to tie one, for one thing. I was, early in my career, often involved in multiple party trials, and during jury selection I could use this bit of sartorial eccentricity as a means of distinguishing myself from the other white males at counsel table. If I am being honest, I will admit that like most bow tie guys, I wanted to look professorial. I suppose there were other motivations, initially, but one advantage I soon discovered is that you don't spill stuff on your bow tie. When you blob a regular tie, it is over. If you are a pirate, I suppose, your $60 foulard can be recycled as a head scarf, but I am not a pirate, and ruining nice ties got me down.

I am told by friends, people I trust, that the professorial look, and, let's face it, my professorial demeanor, can be off-putting at times, so I have been mixing it up a bit lately. Last night we were at a Niagara County Bar Association dinner honoring the justices of the Appellate Division, Fourth Department and I broke out one of my favorite foulards for the occasion. Parties like that are intended to be sucking up to judges events, and things had gone fawningly all evening. Since I was not wearing a bow tie, no one was intimidated by my gigantic intellect, and all was conviviality and red wine. Before spooning into my desert, in an abundance of caution, I flipped my tie over my shoulder. Just then one of the judges we were there to schmooze came over and joined our table. As he was sitting down, he noted the jaunty look I was affecting and said, "What's with this?" He flipped my tie back and neatly deposited it in my ice cream. Well, there was mortification and embarasment all around, let me tell you, and before I knew what had happened I found that I was now wearing the judge's tie, because he insisted on trading. It was a big scene, and I'm wearing a bow tie next time. I'll save the judge's tie for when I am appearing in front of him.

Smoking. (Via The Morning News.)

In our dogged pursuit of diminished productivity, our office has a very strict "Guess What Song Is Stuck In My Head?" policy. If it's stuck there, the only thing to do is tell everyone, so that we can all become infected. Science has shown that "Surrey With the Fringe On Top" has consumed more man hours than the Manhattan Project, with similar devastating results. Indeed, one of the things that makes the "surrey" so effective is its mutable quality. Some people get stuck with an endless loop of the entire number, but others are ground to a halt with just fragments. Over there is someone tapping a pencil and mouthing "Chicks and ducks and geese better scurry, chicks and ducks and geese better scurry, chicks and ducks and geese better scurry...." I am particularly vulnerable to, "The wheels are yellow, the upholstery brown, the dashboard's genuine leather...."

The only defense to "Guess What Song Is Stuck In My Head" is if the intended victim is unfamiliar with the ditty in question. This came to mind this morning as I was brushing my teeth, thinking, "New enzyme active Axion, stains and dirt are gone/Stains and dirt are gone, gone/Gone with Axion." Most people are immune to that one. Another, obscure in this part of the state, but deadly in my youth, was a tune that used to come on WLIR ("Avant Garde Radio") every morning at the same time. For some reason this popped on just as our clock radios turned on. We discovered one morning in homeroom that we had all been waking up to the same song every day. It haunts me still: "What do they do at Subaru when they're not building cars?/They're building trains and planes and that explains/Why Subaru can do for you/What nobody else can do!/Can do, Subaru/Can do, Subaru/Can do, Subaru." What made this one particularly great was the little horn section bit: "When they're not building cars? (Tra! Tra!)".

And now I'm done for the day.

The convention in drafting pleadings and other such legal documents-- around here at least-- is to state amounts of money in words, with the digits in a parenthetical. Thus: One Million ($1,000,000.00) Dollars. I thought of this as I was walking back from court this morning, having prevailed on a motion which had been up on appeal and then remanded. We do more terrific lawyering on Buck Ninety-Eight ($1.98) lawsuits than anyone should have to. I mean, finely wrought, delicately filigreed, hand-embroidered stuff. The big lawsuits take care of themselves, sort of, but the sort of careful craftsmanship that goes on with some of the others makes my head spin.

And further to that, an interesting article from Outside about taking performance enhancing drugs. I may have mentioned at some point that I am local counsel in an interesting IP case that centers around sports nutritional supplements: it is an odd world, but I can understand it: the promise of 10% improvement would tempt me, and 10% from where I'm at wouldn't be much. The current scandal brewing over the nondetectable designer steroid is likewise interesting: if the rules don't say you can't use it, than that must mean you can, right? And if the rules are incoherent, or hard to find, as they are when we are talking about track and field (sorry Craig Masback, but it's true), well, that 10% starts to look pretty tempting. (Via Follow Me Here.)

Speaking with EGA last night, I asked if she was running, or working out at all. She said she mostly wasn't; that the program she was on before she left for school had been too much self-pressure, and that it made her feel like her body was her enemy. We left it, I think, that too much self-imposed pressure is not something she needs, but that when one has access to the sort of fitness facilities available at college, it is a mistake not to go have fun with it. I can certainly understand why it would be bad for a young woman to feel as though her body is an enemy: body image issues are a big deal, particularly for women, and EGA's recognition of this potential neurosis impresses me as healthy. On the other hand, my body is the enemy. It knows it, and I know it, and it has been that way for a long time. For the first time in a long time, I think I am starting to regain the upper hand. As it happens, I belong to a pretty nice gym, too, but I often make the mistake of not using it enough. Lately, however, on those occasions when I am too busy to go at lunch, I've been going after work. If I am so busy I can't go at lunch, I suppose I should use that time at the end of the day to work some more, but down that path lies chicken wings and cigarettes, two of my favorite Fall things. The enemy wants those things, and a lot of other things it can't have, too. Last night, for the first time in so long I can't remember, I lulled myself to sleep by visualizing a race. I am a ways away from performing at anything close to the level that I was once capable of, and even that wasn't all that much, but I'm on the track, and I am a half stride in front of the enemy.

Oh, and a good story about employment outside our glamor profession from (M)ake 1. I gotta quit slackin, and write something funny.

Over at Berlin Blog, a perfect photo essay on Kirk Jones and Niagara Falls.

I want this. (Via Backup Brain.)

Bag and Baggage points us to Civil Liberties Watch, and particularly to a post on Legislatures and Women's Bodies. Ms. Cassel asks "Aside from the legal and ethical implications of the Florida and federal legislation, ask yourself this question: If these were men's lives we were dealing with, would the law be ordering what should be done with their bodies?

"I think not. In fact, I am sure that it would not."

It's a fair question, and I find myself gasping when I try to think of a refutation to her conclusion. With particular reference to the Terri Schiavo case, I find that I cannot recall a situation where there has been a protracted, public legal battle over the question of whether to take a man off life support. Perhaps there are such cases, and they are less compelling, but that rather begs the question. The fact is that the Schiavo case is, in an important sense, about a woman's body as a chattel. The law is poorly equipped to deal with the moral dimension of the matter, but it can answer the question, "Who controls this chattel?" Once again, we see that the law does poorly when it is called upon to do things that are outside its competence. It is unfortunate that the only other place to look when looking for an answer in this instance is to politics-- politics is an even worse tool for making this sort of decision.

I don't really know where I weigh in on what to be done for or about a person in a persistent vegetative state. Doing what I do, I have seen such, and to me what I have seen resembles agony without awareness-- a hellish condition, and one which cries out for the moral courage to put the suffering to an end. One of the horrors of this sort of situation is that what has usually happened is that the science is sufficient to hold off death, but inadequate to the task of preserving humanity. Of course, this gets into Mary Shelley territory, but that's kind of the point. One other point, that I don't think I've heard anyone address: I really feel for Michael Schiavo, who has been painted as a monster.

One of the small pleasures that is involved with our downstate practice is renting a car and listening to WFUV as I drive to wherever it is that justice needs to be served. Yesterday the call of the cause of justice was heard in Orange County, county seat, Goshen, New York. I reckon that's about number 34 in my quest to appear in all 62 of the counties in the State, and while I wasn't expecting a parade, I didn't think that I'd find an ex parte order waiting for me, either. I managed to salvage the situation, but I am still pretty annoyed by the whole thing. Still, it was a perfect day to be on the Palisades Parkway, and the radio was full of revelations.

One of the first things I heard was a soul singer I didn't recognize. "It's not Aretha," I thought, "and it's not Ruth Brown, of course. I wish I knew more about this music-- whoever this is, it's really good. Probably some sort of regional artist, or maybe somebody who had some songs chart in the '60's-- damn, this is good." Then I thought, "Man, this is a fantastic recording. You can hear her breathing-- interesting stylistic choice there-- and the band sounds really bright for something from this vintage." Come to find out, it was Joss Stone, the 16 year old English girl who has been featured on NPR and in the Sunday Arts and Leisure section, and other places I tend to ignore when it comes to music because of their bland liberal homogeneous taste. Well my bad. Joss Stone is the real deal.

Some other revelations: a band called Snakefarm, doing a perfectly wonderful "Streets of Laredo." Of course "Laredo" is like "Happy Birthday"-- you can screw it up, but it takes some doing. I must have been in a great mood, because I found myself really digging Elvis Costello's "My Little Blue Window" even though I don't usually like Elvis when he is being lyrically complex but not rocking. The Thrills are the sort of band I'd have picked up on a while ago in my hipster days. Just because I'm late to the party doesn't mean I've missed out, though. Good band. And, although I blush to admit it, I heard a cut from the new Shelby Lynne disk which makes me think I may have to check it out. I Am Shelby Lynne is kind of a guilty pleasure for me, but I gave its follow up a miss. On the strength of "10 Rocks" I think I need to pick up a copy of her latest side.

I read Haruki Murakami's story, "Birthday Girl" when it appeared in Harper's. It is hard to say what about Murakami's writing I enjoy so much-- surely the echoes of Raymond Chandler are as much a function of the translation as they are of his prose, but of course I'll never know. And how much is it like Chandler, really? There isn't much that is like Farewell My Lovely in any of his writing in one way. Of course, in another, reading Murakami is like overhearing a long evening's half drunk conversation between Chandler and Gabriel Garcia Marquez.

And yet, it is not quite like that, either. Murakami is one of the most vividly descriptive writers I enjoy. Just as Chicago looked like The Adventures of Augie March, just like San Francisco was familiar to me from The Maltese Falcon, I knew Tokyo from the time I set foot on the ground because I'd read Murakami. I feel like I've eaten in the restaurant he describes in this story.

I don't care much for reading fiction online, but I'm glad I had a chance to re-read "Birthday Girl".

There was actually a time, in my lifetime, even, when New York Republicans were the reform party. It is tempting to say that what happened was that they started getting elected, but it wasn't as crude as that: Louis Lefkowitz was a reform AG until the day he retired; State Senator Roy Goodman was a straight shooter all along; and although you can certainly question the wisdom of Jacob Javits' decision to run one more time, he was the real deal, too, and as good a US Senator as New York has had. Actually, what I think happened was that in deciding to run one more time, Javits unleashed Al D'Amato on us. Al was old school, and Republicans since then, in New York, anyway, have been every bit as given to cronyism and sleaze as the Democrats ever were. Since I stand with the Dems on social issues, if the Republicans are going to make an appeal to me, it has to be on political reform and economics. This they fail to do, for the most part. Although I believe that judicial elections are a terrible way to pick judges, I'd give a long look at the Republican judicial slate if I lived in New York County. Since I don't, I'll be voting Democrat this go round-- that's where the most capable candidate is in the Eighth Judicial District.

Expats against Bush. Where's Alec Baldwin?

Actually, it would be interesting to see how Americans overseas shake out on the question of current US leadership. Even if you were to somehow control for American military stationed abroad, I think they would still be overwhelmingly Republican, but that's just a hunch. I really have no idea what Americans who live in the US think, either. (Via Follow Me Here.)

More on the Gregg Easterbrook flap, from Jack Shafer, at Slate. Everyone that knows Easterbrook says he's no way an anti-Semite, and it is certainly true that nothing I've read of his before the Kill Bill review hinted at bigotry. Indeed, he usually came across as utterly contemptuous of bigotry-- the Chesapeake Watershed Region Indigenous Persons was his moniker for the offensively named Redskins, for example. So what happened? Well, although anti-Semitism is a specialized sort of bigotry, I suppose we can accept the instance of the people who know Easterbrook that he is not an anti-Semite. The evidence about his attitude towards women is shakier, but in context I suppose we could say that the photographs of cheerleaders were in the same spirit of fun as beer advertisements and the like. That sort of nod and a wink doesn't go over well with a lot of serious folk, but when we are talking about sports it doesn't always pay to be too serious-- this sort of thing is intended to be entertainment, after all. So I don't know. The Tuesday Morning Quarterback stuff was intended to be lighthearted, and the essay about Kill Bill he says, was from the heart-- where that leaves us is with a writer who has transgressed at least one line, and who may have crossed another. If we accept the testimony of those who know him that his is not an anti-Semitic misogynist, then I guess we go back to the idea that something is wrong with his ideation. Some stress in his life, or malfunction in brain chemistry is causing him to behave in ways that are both inappropriate and inconsistent with his actual beliefs. That happens, it happens all the time. If that is what happened here, I hope he works out his demons, and manages to get straightened out. Until he does, I don't see that ESPN pulling his column is wrong, although taking the archives down impresses me as an absurd and sinister overreaction.

Congratulations to CLA and the City Honors Girls Soccer team: the Lady Centaurs defeated arch-rival Hutch Tech last night, and are City Champions. They move on to sectional play this Friday.

EGA mentioned that she was reviewing some new releases, and commented on The Good North: An Explanation that it is "America's answer to British art school rock". I said that, "American art rock is almost inevitably dumber than Euro art rock," but now, having said it, I want to take it back. What I was thinking about, I guess, was "Progressive Rock", and I'd stand by that, for whatever it is worth. I mean, who cares if Starcastle is dumber than Emerson Lake & Palmer, or if Kansas is dumber than Jethro Tull?

What EGA was referring to was art rock, and, I put it to you, for the most part US art rock is smarter, and more influential than English or European art rock. This may actually be the place, in fact, where US bands come out ahead of their Brit cousins, which is not always the case. I mean, start with the most obvious example: is there a British art rock band that can touch the Velvet Underground? The Ramones? I like Roxy Music just fine, but you can't say that they belong in the same room with Talking Heads. (REM maybe.) So I stand corrected.

Bruuuce can pick up his sacks somewhere else. That looked like the team we thought we were getting.

I was on a plane once when Bruce came on-- he was in the seat in front of me. I was reading, looking down, when I saw this gigantic pair of sandleled feet. As my eyes traveled up, I saw a leg with muscles like an anatomical drawing, then realized that I was looking at maybe one of the greatest athletes in NFL history. I put my eyes back in my book, but when we got off the plane, I went up to him and said, "Mr. Smith, I'm a season ticket holder, and I want you to know, I love watching you at work." He shook my hand, and said "Thanks, man," and that's my Bruce Smith story. He was great, and I have never see a human body quite like that. As for today-- the Buffalo writers are screaming for Grgg Williams' head. Let him put three or four games like today's together, and I'll put down my pitchfork.

Apparently Gregg Easterbrook is losing his mind. ESPN has fired him over his odd, vaguely anti-Semitic remarks at the conclusion of this review of Kill Bill, although that's not how he meant it to be taken, according to this apology. Easterbrook has written a great deal on spirituality and its intersection with public policy; I can't say I have read all that much of what he has written, but what I have read always suggested to me that he was a thoughtful individual. It is hard to square this opinion with the Easterbrook who wrote the piece in Slate about whether women should have to say anything more than"no" when they mean "no", or with this odd sentiment: "Disney's CEO, Michael Eisner, is Jewish; the chief of Miramax, Harvey Weinstein, is Jewish. Yes, there are plenty of Christian and other Hollywood executives who worship money above all else, promoting for profit the adulation of violence. Does that make it right for Jewish executives to worship money above all else, by promoting for profit the adulation of violence? Recent European history alone ought to cause Jewish executives to experience second thoughts about glorifying the killing of the helpless as a fun lifestyle choice." What makes it so strange is that it is so gratuitous: up to the final paragraph, this was a carefully thought review that suddenly turns into a sputtering rant about Jews. If you have ever seen a real bigot in action, you know that this is exactly the form their obsession takes: a normal conversation about traffic this morning, or the poor quality of television programming takes a turn for the weird when the person you are speaking with suddenly ascribes the problem with whatever you are talking about to the Jews or the blacks, or whatever group the person is fixated on. Easterbrook's column has exactly this quality, something I have never seen in his writing before.

Looking back, I suppose the sort of leering cheesecake stuff that was sprinkled through Tuesday Morning Quarterback might have been a warning that we were not dealing with an altogether balanced mind-- although in context it seemed like good fun. It is discouraging when someone who seemed to have a clue, and was funny on top of it, turns out to be an anti-Semitic misogynist. Who will track the New York Times quixotic attempt to correctly predict the outcome of the NFL's slate of games now that TMBQ is gone? (Via Sportsfilter.)

Sometime back, we were invited to join the Buffalo chapter of Slow Foods, just as it was getting off the ground. One thing and another meant that we had schedule conflicts, and last night was the first Slow Foods event we have been able to get to. It was Octoberfest, at the Flying Bison brewery, and it was all about the food (and the beer). No oom-pah bands, no colorful Bavarian costumes-- just some outstanding sausage (I think I liked the weisswurst best), a couple of kinds of sauerkraut, red cabbage-- you know, nice light German fare. It was good stuff, and I'm looking forward to doing more with this group.

Part of what Slow Foods is about is the preservation of traditional or heritage foods. This is accomplished, in part, by re-creating a demand for foods that have been crowded out of the market, by increasing awareness of the item. Last night included several heritage apples, a traditional upstate New York crop-- it's funny, but I don't remember the last great apple I had before last night. Mostly I've been getting apples that are okay, but lacking in the crisp yet juicy firm, not mealy quality that an apple is supposed to possess. It shouldn't be too hard to find a decent apple in Western New York, and I'll be making more of an effort. I am also hoping to get on the list for one of the heritage turkeys the group is having raised.

The Honorable Eugene F. Pigott Jr, the Presiding Justice in the Appellate Division, Fourth Department has made the short list to fill the Court of Appeals seat vacated by Judge Wesley. Judge Pigott took himself out of the running the last time there was an opening at New York's top court; I noted at the time that it was the first time in his judicial career that he had not been promoted when there was an opening. The others selected by the panel are Syracuse University law professor and former Dean Daan Braveman; Queens County Supreme Court Justice Steven Fisher; New York County Supreme Court Justice Helen Freedman a (Smith grad!); Stephen Friedman, former member of the Securities and Exchange Commission (and a Brennan clerk-- cool); Robert Smith, a Manhattan lawyer and former instructor at Columbia Law School; and Guy Miller Struve, a Manhattan attorney and former lawyer with Lawrence Walsh, the independent counsel in the Iran-contra case.

I've appeared many times before Justice Freedman-- she is a terrific judge. My exposure to Justice Fisher has been more limited, but he is also the sort of judge you are glad to draw, and he must be well thought of, since this is the third time he's made the list. I don't know the others, so I can't speak to their merits, except to note that the Commission on Judicial Nomination has always impressed me as a group that makes the sort of quality selections that I wish all judicial selection processes were capable of. All that said, the only downside to Justice Pigott's elevation to the Court of Appeals is that we will not get to appear before him as much. I cannot conceive of what a better judge would look like in terms of intellect, enthusiasm, fairness or temperament.

Tom the Dancing Bug: Humane Foie Gras Farm. When is Big Duck Day this year?

I had a cheeseburger at the Billy Goat Tavern before I left Chicago, but I must confess, it was with some misgiving. As a Mets fan, the discomfort of Cubs fans is pleasing to me; but as a Mets fan who is old enough to remember the '69 Mets, the Florida Marlins don't quite come into focus for me. So I felt a little funny giving my patronage to an institution which is said to be the source of the Cubs bad luck. As a place to get a burger ("no Coke-- beer, please") I'd have to rate the Billy Goat as all ambiance, and I'm sorry if I contributed in any way to the collapse of what had been, up to now, an exhilarating run. The prospect of facing Florida, who embarrassed the blighted Indians the last time they were in the Series, would be making me nuts if I were a Sox fan. It's probably less of a psych for the Yankees, but I don't know that it'll make that much difference: watching these Yanks, don't you get the feeling that this is the end for this bunch? This is a team that will have a completely different look when spring training rolls around. Florida Marlins-- what's that? It sounds like a high school team, or indoor lacrosse, or something.

Because I love lists like this, the 100 Greatest Novels of All Time. (Via Follow Me Here.)

I was a judge at the Desmond Moot Court competition last night, a light, pleasant task that I enjoy every year. The Desmond is UB's upperclassman competition, and determines who makes the Moot Court Board. The sign in is always convivial-- the lawyers who show up to act as judges are lawyers who enjoy the give and take associated with oral argument, and everybody feels pretty good about being involved in a law school project that allows us to feel intellectual about our glamor profession. This year's case was Locke v. Davey, the appeal from the Ninth Circuit's decision overturning the State of Washington's statute barring state scholarships to students pursuing studies in theology. It's an interesting issue, and the kind of thing that is fun to kick around, so we all felt like real Constitutional Law jocks, which doesn't happen to most of us most of the time.

A few weeks back I had occasion to make some phone calls for scouting reports about an adversary, and two of the lawyers that I'd spoken to were sitting with me on my second panel of the night. Both had been at some pains, when I spoke to them last, to make it clear that the dope they were imparting was of a strictly confidential nature, and that it was of paramount importance that it not be traced back to them. It was nothing that amounted to any sort of breach, of course-- more in the nature of critical assessments of an individual's character, but sensitive stuff. It had been helpful, and when I was able to, alone with each of them, I put a hand on an arm and murmured, "Thanks for your help on that". Hilariously, as we were walking out both of them started talking about it with me, in a way that immediately completely blew whatever pretense there might have been, but I'm keeping faith-- you have no idea what I'm talking about, do you?

The level of advocacy displayed by the students was quite high, by the way, and several of them were jaw-droppingly impressive.

Focus groups are a lot like jury selection, and there is a lot here about why focus groups are not always an accurate tool which I think can be applied to voir dire. In both instances, the participants are anxious to please, and may not want to let on that they hold views that may indicate bias. I have often marveled at the fact that everybody I meet at weddings, or other social events has a strong opinion about the role of lawyers and lawsuits in society-- try asking the next cabdriver you have, or your dry cleaner-- but prospective jurors act like it's a question that has never crossed their mind. We are at pains during jury selection to act as though we do not want the panelists to pre-judge the case (even as we are trying to "air condition" their minds about the issues we think may be important,) and this means that we are asking for snap judgments about things that the people we are questioning have very little information on. Small wonder that outcomes are sometimes surprising-- often it is because of some tidbit of information that one side or the other-- or neither side-- knew nothing about. The trend in jury selection, in New York, at least, is towards limiting the amount of time spent on questioning. The thinking there is that this better respects the prospective juror's time, and perhaps this is so. In federal court, typically, the judge does the questioning, and it is usually all over by lunch time. I don't know if it makes that much difference to the outcome, but most New York lawyers I know prefer to stretch out a little on vior dire, and that is becoming an increasingly rare luxury. If you take the opportunity for advocacy out of the process, longer voir dire is probably still not long enough to give anyone a realistic picture of what a particular panel might do, but I am still not completely comfortable with the idea of artificially constraining questioning during jury selection.

I didn't know that Gregg Easterbrook had a blog until Ginger mentioned it. For the most part, I have found Easterbrook to be an interesting, thoughtful writer, who is often funny enough for me to have to read at home, so as not to risk disturbing my co-workers with snorts of laughter. I suppose one advantage of the weblog form is that it is a place to think aloud a bit, but even by that standard the idea that "no" is ambiguous is disturbingly, troublingly stupid. It is certainly true that women often use language differently than do men, but I'd have thought that "no" as a come on was a notion that went out sometime around the time that men stopped getting their hair cut at barbershops that carried Argosy and the Police Gazette. Dahlia Lithwick, naturally, gets it right. Easterbrook's notion degrades language and meaning (and, I'd say, women). Since I love both language and women, I am disturbed that I writer I enjoy reading has articulated such an idiotic position.

Although I had set foot in Chicago before, I had not been there for anything like long enough to form a reasonable impression. I probably still haven't--- a two day conference is no way to get a feel for a place-- but I've decided that I like it enough to want to go back. Indeed, although there are logistical difficulties associated with the proposition, I might be tempted to nominate it as a candidate for KRAC's target marathon.

To be sure, I was seeing it under very favorable circumstances: I am sure that the weather was unseasonably nice, and the buzz over the Cubs had everyone in a great mood. The Chicago Marathon was today, so I don't know how it went, but the city was pretty keyed up about that, too, with multiple articles in the papers-- Sports section and various Lifestyle sections-- every day that I was there, and banners flying, and people just talking about it.

It is said to be a fast, flat course, and it would be attractive and interesting, too. There was every indication that the locals come out big time and support the runners-- 40, 000 runners.

People who have tried to describe the Hog Butcher to the World to me in the past have told me that I would like it because "it's like New York." This predisposed me towards not liking it, since most things that are described that way turn out to be pale imitations of what I like about New York. I would say that this description is really not fair at all to the City of Big Shoulders, which is not much like New York at all, that I could see. Chicago does seem to have a broad-shouldered sort of easiness to it, an expansive air that is not at all like the more old world, close quarters feeling New York has. I had always thought that Chicago had a kind of hang-dog, "We're the Second City" attitude, but I would interpret this now as an appealing sort of modesty. Among Midwest cities, I am sure it seems swaggering, but it impressed me as being unassuming about its status as Capital of the Middle Part. I thought that it's architecture was often clever, and maybe even witty in some places, although there were certainly parts that aspired to being monumental as well, and mostly succeeded at that.

I managed to get out and run along the Shore for about five miles, and wouldn't mind doing that again-- even if I never make the Chicago Marathon, it is so plainly a terrific running city that I would enjoy another visit just to hang out and be sportif. I would particularly like the opportunity to do that at the hotel I got to stay at this trip-- it was quite nice, thank you.

For the most part, when I travel I am like David Byrne, trying to find a city to live in. Nothing about Chicago made me feel that way-- the way I did when I saw San Francisco, or Tokyo, the way I do whenever I am in New York. I wouldn't mind a trip back, though, and it's a short list of places that I say that about.

I suppose I should favor Sweden, but I love the way the Germans play. Cognitive dissonance is not the way to watch sports, and what typically happens to me when my head says one thing but I react to developments in a way that is not consistant with what my head tells me is that I give in, and go with the team my heart tells me to. In this way sports are very much not like my life, which is one more reason to like sports, I suppose.

Is there any reason to presume that Schwarzenegger will do a worse job than Davis? I suppose it comes down to who he has around him, and one hears that who he has around him is a Pete Wilson shadow government, but the other thing he seems to have is a pretty motivated electorate. I wouldn't want to be the legislator that tries to keep too much fat in the budget-- Californians seem plenty mad right now, and that might mean that things will be stirred up a bit in the Golden State for a while.

Via The Buck Stops Here, a good article about the history behind Marbury v. Madison. I've said before that even though every lawyer knows what it is, not many of us know what it was about. This is probably more about penguins than anyone wants to know, but there was stuff in there that was new to me, and I've spent some time reading about it.

It is hard to know which William Steig work is the most popular in the Outside Counsel household: although it is probably Dr. DeSoto, the mouse dentist, it might be Brave Irene, and there is probably a darkhorse contender out there as well. Ninety five, and it sounds like he pretty much got to do what he liked, and enjoyed himself doing it. I hadn't realized that "I say it's spinach, and I say the hell with it," was his-- it seems to be attributed to E.B. White most of the time.

Damn. One more year goes by, and I'm not on the list.

The menu for the KRAC banquet:

Savory Morbier Cheesecake with Balsamic Reduction
Roast Parsnip Soup with Honeyed Hazelnuts and Brandy Creme Fraiche
Cozze Fredde (Chilled Mussels)
Grape Sorbet
Mushroom and Leek Stuffed Pork Tenderloin with Root Vegetable Confit
Caramel Plate

The cheesecake was matched with a dry Spanish sherry. The cozze fredde (as much fun to say as it is to eat) was paired with a dry white from the Piedmont region; and we had the tenderloin with a California Gewuerztraminer. In all, a masterful collaboration between Chief du Cuisine Dave Nuzzo and sommelier Tom Knab. (I'll post labels when I get them.) Because excess is what KRAC is all about, there were awards. Dave was named MVP (if we keep doing this he'll retire the trophy, or we'll have to name the award for him or something). Your faithful correspondent was Most Improved, and received a sheet cake with my finish line photo printed in the frosting. There was some squabbling about who would get which piece of me, but it resolved amicably. The cake was practically life size, and there was plenty to go around. The whole thing was a brilliant capstone to a brilliant season. Left unresolved was the question of where we should run a marathon: my mundane proposal (Columbus-- it's supposed to be a good race) was hooted down, and although there was support for Dublin, the influence of the meal led many to favor Paris. A word to the wise: it's in Avril, guys. (we could still make the Dublin race.)

We should be on trial right now, but last week, at the eleventh hour, the trial judge brokered a deal: rather than try the matter before a jury, the parties agreed to submit the case to an arbitrator. When you arbritrate, you essentially waive any right to appeal, and the rules of evidence are relaxed somewhat, so that you can use affidavits instead of live testimony, for example. There are advantages and disadvantages to arbitration, and I wouldn't use it in every case, but in this case it felt like a good fit. Part of the deal in this case was that the parties agreed that the upper end of the amount recoverable would be fixed at a particular figure; in exchange, the lower end was also fixed, so that the possibility of an outcome where the plaintiff recovered nothing was eliminated. We agreed to use a single arbitrator, and we agreed that counsel for the defendant would propose three names. If the names proposed were unacceptable to us, we could counter-propose; if none of those names were acceptable to our adversary, then the judge would assign someone.

I had never had any prior dealings with this attorney, but in our conversations leading up to this point he had impressed me as being somewhat unpleasant, and kinda arrogant. These are not unusual personality traits in our glamour profession, so I just took him at face value. He sent a letter proposing potential neutrals two days ago, and we found ourselves rather taken aback at the names on his list. Usually one will try to suggest arbitrators that do both plaintiff's and defense work; but sometimes the proposed individuals are more associated with one side of the fence than the other, and when that happens usually the leanings of the people proposed are along the lines of the leanings of the proposer. These names were (a) a very respected woman who I principally think of as a defense lawyer, and (b) two guys from one firm who I think of as being entirely oriented towards the plaintiff's side. I have had dealings with both of them, I have always found them to be honorable, and we couldn't for the life of us imagine why our opponent had proposed them.

To her everlasting credit, my partner was made very uneasy by this. She came in today and said that she'd tossed and turned all night over it, and wanted to find out why these two lawyers had been nominated, notwithstanding their well known bias towards our side of this sort of case. I told her she was over-thinking it, but eventually agreed to make a phone call to do a little scouting. While I was doing this, she was Googling. It took two calls, actually. The first guy I talked to basically recommended that I count my change after any dealing with our adversary. I almost didn't make the second call. "PBJ would never do anything to hurt BLT," I was told when I had explained what I was calling about. "They are very good friends." My informant was less clear about the relationship between the other lawyer and our adversary, but advised that they were certainly friendly, and that the nature of the relationship between our opponent and his partner was probably enough to shade him away from his usual inclinations. Meanwhile Kate's Googling turned up a photograph in an old Bar Journal showing the three of them together, holding drinks at some bar event. It was a honeypot-- a trap. Just like they say, if it seems too good to be true, it probably is.

Funny how these things go. I don't know if either of the two lawyers that were proposed would have taken the assignment-- they might have more going on in the scruples department than that. The man who taught me this work used to tell me "lawyers are lazy," and my lazy assumptions could have badly compromised our case. Uncovering this information wasn't hard, but I very nearly didn't bother to make the two phone calls that changed things. I think this is pretty close to sharp practice, but calling him on it is probably not worth it: he was within the rules, and it fell to us to make, or not make the appropriate inquiries. That's what the adversary system is all about, on some level. Sure, it's cheating a little, trying to gain an advantage, but is it so much worse than anything else anybody else does to get the best result they can for their client?

I'm uncomfortable with that sort of thinking. "Keep it fair" is how we try to do this sort of work, and although I am not above working hard to cast my client's case in the best possible light (and cast my opponent's case in the worst), I don't think I'd ask a friend to do what was proposed here. Sleazy, but now we have the measure of him, and that shifts the advantage back to us.

Ten Technologies That Deserve to Die. (Via Rebecca Blood.)

I've scoured the internet in the past looking for references to Zook, the Martian Manhunter's peculiar sidekick. In the past I have seen the character referred to, but could not find a picture. My kids think it is something I've made up, but Oddball comics confirms the existence of the "little orange alien with a Smurf's physique, Fred Flintstone's haircut and Dondi's speech pattern." I'm really not sure why this was important to me, but my search is now ended. Zook used to annoy the hell out of me, but I can put it all to rest now.

36 reasons to vote Republican. (Via Booknotes.) "You are a woman and want abortion made illegal, and want women imprisoned for obtaining one, to teach them a lesson. You can afford to travel to Sweden." What confuses me is how so many people don't see what this administration is doing for what it is. I have a very hard time believing that these notions are widely held in the mainstream-- this is fringe stuff, isn't it?

Ah. man, Triceratops was on your front lawn when John Lee Hooker wasn't all about the blues.

Nice reminiscence about George Plimpton. And here is a charming oral history.

The counties in the middle of New York State are not places I find myself in that often-- in my quest to appear in all 62 counties, I am solid around the edges, but I visit Central New York rarely. I found myself in Cortland earlier this week, a first for me, although I don't know if I should count it, since I was there for a pre-appeal conference on a matter actually venued in Tompkins County. Regrettably this Roadfood entry about one of New York's best fish sandwiches had not appeared, so there's an opportunity lost.

I knew that when I got to town there'd be a Main Street (there were Elm and Maple, too), and that Court Street would intersect. It did, and at the foot of Court was an absolutely majestic courthouse-- much bigger then I had any reason to think a town like this would have, with a domed cupola mounted by a statue of Justice. The building is set in a soldiers and sailors memorial park, and although security requirements mean that one is obliged to enter through the basement, once you get upstairs there is a beautiful rotunda surrounded by balconies three stories up. Along the halls on the first floor are photographs of the county's dead from WWI. A stained glass rendition of the county seal is at the top of the inside of the dome. I asked the ancient deputy, in his blue blazer and silver sheriff's badge when it had been built, since I hadn't seen a cornerstone, and he told me that the funds had been appropriated in 1922, and that it was completed in 1923. He then offered to open up the main courtroom, and gave me the run of it. It was easily the fanciest New York State courtroom I've ever seen, all wood and brass and leather, with tiered seating and a balcony.

I am not altogether unhappy with the blogspot scheme, but there are deficiencies associated with it. It is nice to be able to publish from anywhere with a live internet connection, but I miss being able to feature a courthouse on our masthead. (And I hate this font.) For the time being, here is a link to a nice photograph of the exterior, and here is a (pdf) file with some photographs of the interior.