Outside Counsel

September-October, 2004. Potsdam, New York. Interlaken, Switzerland. Stowe, Vermont. Paullic, France. Erie, Pennsylvania. Berlin, Germany. Kahului, Hawaii. Fishkill, New York. Eindhoven, Netherlands. Schroon Lake, New York. Toronto, Ontario. Amsterdam, Netherlands.. Frankfurt, Germany. Bath, New York. Venice, Italy. Yonkers, New York. Chicago, Illinois.. Schenectady, New York. Dublin, Ireland.. Cleveland, Ohio.. Columbus, Ohio.. Toronto, Ontario (again). Washington, D.C.. Niagara Falls, Ontario. Admittedly, some destinations are more appealing than others, but each of these has a case that can be made. There are no red states on this list. The complete calendars are here and here. Just something to think about.

My recent weight loss has left me without a properly fitting jockstrap (No, no, not like that-- the waistband. Get your mind out of the gutter). Naturally, presented with a gear requirement, there was only one thing to do, and this morning I went to Fleet Feet. They were very helpful. I explained that I needed a jock, and the saleswoman said, "Well, we have Technical Underwear over here." Technical Underwear! Of course! I bought two pair.

Further perspective: The top three finishers in my age group ran 27:16, 28:35, and 29:50-- covering the course about 15 minutes faster than I was able to. My 42:19 would have been good for second place in the 75-79 category, but hey, those guys are fast.

Charting it, my Boilermaker splits worked out to 9:45. I managed 9:01 at the Subaru a week later, and 8:51 at the Yalen in September. Going back to March, I was 10:31 in the Shamrock. Putting it in perspective, KRAC averaged 8:07 over the Buffalo Marathon Relay.

If I sound tickled about this, it's only because I am.

EGA was crabby about the race this morning-- crabby, but dutiful. Me, I had a great time, and I hope it wasn't too awful for her. I think I hit the target I'd set for myself, and I enjoyed spending the time with her and with KRAC. Once again, the singlets got the reaction we were looking for-- there were some people who seemed to be wondering how Keith Richards fits into a Thanksgiving theme, but we can leave them to their confusion. Turkey, Wild Turkey-- c'est toujours la même chose. It is just a lovely thing to be walking up to the starting line and draw that sort of double take. Happy Thanksgiving!

Update: My goal was to sneak in at under nine minute mile pace. I figured that was probably about where I was: it was a crowded field, and there was a lot of lateral movement necessary to negotiate the course; and, of course, 8k is long enough that I would expect to see my splits drop of the table. Instead, it felt like I kept a pretty steady pace, maybe even picking it up a tad for the home stretch, after I hit the four mile mark. It felt good the whole way, and I managed 8:31 miles as my reward. I can build on that, I think. Pretty sweet.

A and EGA were in attendance at the concert They Might Be Giants put on for the filming of Gigantic, the documentary about the band. Naturally they hoped that they'd get interviewed for the movie, but A. was afraid she'd have nothing to say, or that she'd freeze up. "The trick is to have something ready to say," I told her. She said that the problem was that she couldn't think of anything. "Make something up," I said. Tell them that you were at J&R and you couldn't decide between Lincoln or the new thing by When People Were Shorter and Lived by the Water, but you made the right pick and haven't looked back since."

As luck would have it, EGA was passed over, but A was plucked from the line and interviewed. She tells the story better than I can, but apparently even having a prepared story didn't prevent her from veering wildly off-script, and she spent the time from the concert until the release of the movie hoping desperately that her bit had found its way to the cutting room floor. She emerged from the screening last Spring relieved that her babbling story about TMBG and a band that only readers of the agate type in the back of the Village Voice ever heard of had not made the print. She reckoned not with DVD, though. EGA says she is featured in the "Extras", and tonight we get to see it. When People Were Shorter and Lived by the Water. Ahahahahahahaha! As Nick Hornby moments go, that's right there with the Licorice Confits.

Update: A comes across as quite sane, well coiffed, and nicely lit. She was relieved; I am glad for her. This is generally how it goes: she is so sane that it actually comes across, and is the impression most people have of her. Interesting that it works in the movies as in life-- I may have to re-think the line I give out about the way I appear on television.

Oh, and finally, a shout out to my law partner-- we had a framed issue trial today, and, after overthinking the thing to death, won big. I enjoy all of those things: winning, overthinking, and practicing with her, but winning makes all of them better.

Another Thanksgiving tradition I look forward to every year is Christgau's Turkey Shoot. It does not disappoint this year.

And, in another adventure in the Buffalo Courts, a verdict has been handed down in the Critical Mass rioting case. Regular readers will recall that the Buffalo Police and a group of bicycles were involved in an altercation last May: the cops busted a bunch of the bicyclists, and some bicyclists heads over a disagreement about the right of way. The police have all the cards in these sort of dust-ups: they have clubs, and solidarity, and a legal system that depends upon them in order to function. The lawyers for the cyclists made a gutsy move, and waived a jury trial. It couldn't have hurt that they happened to have drawn one of the better judges around these parts, but even so, asking a judge to throw out all of the charges in a case like this is asking a lot, and in the end this judge couldn't do it. Of course, I wasn't there, and I didn't hear the proof, but convictions on two non-criminal violations, carrying two $95 fines looks to me like a bone thrown to the police by a judge "who said he was both 'flattered and dismayed that there was no jury' in the case and that he 'never had a more difficult' verdict to reach in almost a decade on the bench."

I'll just throw in here that if more Buffalo cops were on bikes, we'd have better policing, and better looking police. And, now that this story is over, maybe the stupid version of the Clash's "White Riot" that I've had stuck in my head all this time will finally go away: "Bike riot/I wannna riot/Bike riot/A riot of my own". Oy.

Never pick a fight with someone who buys ink by the barrel. I am acquainted with the principals in this story about a local Supreme Court Judge who is accused of throwing his weight around, and I have to say that I am surprised and not surprised. This is a judge that I get along with personally, because he is a smart guy, and I like smart guys. He is also, I have to say, the sort of judge who is not shy about pushing the envelope to get the result that he thinks should occur. On the other hand, reading between the lines, what may have been going on is that the judge was trying to avoid the possibility of a mistrial in the unrelated matter that the lawyer was trying before him. Knowing the lawyer, the unrelated matter was almost certainly a complex medical malpractice case, and a mistrial in such a matter would have been a terrible expense for the parties, if nothing else. The key sentence in the story is this one: "Cosgrove, 61, has served in State Supreme Court since his election in 1990." New York State Supreme Court Justices serve 14 year terms, and must step down at age 72. When you think about it that way, it is not unreasonable to ask, who is it that is throwing their weight around?

Although it is a widespread tradition, for some reason Thanksgiving Day races were never really a part of what I did. When I was a schoolboy runner I don't think there was a race in my neck of the woods, or if there was, it would have required someone else in my family to break out of their traditional activity to get me there. Later, after we moved to Buffalo, we were usually out of town for Thanksgiving, so I didn't run in the Oldest Continuously Run Road Race in North America for the first time until 1996. That year I started the race with bronchitis, and finished with full-blown pneumonia-- in combination with a number of other factors that was the beginning of the end of my ability to boast that I was age group competitive.

I ran it again in 2000. That was the year the big blizzard hit the week before Thanksgiving-- we had planned on being out of town, but since we couldn't dig out, we stayed, and I ran. Because my sister-in-law had kindly invited us to dinner, I thought it best to leave the post-race party early. I was gone all of about five minutes when my name was drawn for the grand prize-- a trip for two to the Caribbean. You had to be present to win, so that was that, but A. now tells me that I am required to stay to the end, so I suppose it all worked out for the best.

Last year I ran it with EGA, and that is my plan this year as well. We will be joined by fellow KRAC members Dave Nuzzo and Jim Jarvis. Two years in a row is not a long time, as traditions go, but I'm looking forward to it all the same.

EGA writes:

I spent the morning volunteering with AIDS Care of Hampshire County: I stood at a table and offered people red ribbons, fliers, and condoms for about two hours. It was, by and large, extremely dull, except as a people-watching opportunity, and it is my opinion that people watching gets old after about half an hour unless you have something else to occupy yourself with. Because today was Bag Day, downtown NoHo was bustling, and apart from AIDS Care there were also several street musicians, a Salvation Army bell-ringer, and some teenage boys collecting donations to build a skate park in Northampton. At one point one of these "sk8r bois" sidled up to our table to shoot the breeze a bit.
"Hey. Do you go to Northampton High School?"
"No, we go to Smith."
"Oh, you're Smithies. Got it. Cuz, like, you look just like my friend from Northampton High School and I just thought I'd ask. So, AIDS, huh?"
"Yup."
"Have you ever heard of prophilaximi-popindextrami- I don't remember what it's called, but it's this cure for AIDS that was developed in the 90s."
"There is no cure for AIDS," said Becca.
"That's cuz the government wouldn't, like, let that information be made public," he explained. "There's this conspiracy- some people think there's a conspiracy where the government won't let this cure be made public cuz they're trying to, like, exterminate certain ethnic groups- you know, like homosexuals or whatever."

Let's all pause for a moment to process that last sentence.

"Where'd you hear that?" I asked.
"It's like, all over the internet."
"Huh."

About 45 minutes later, he came back to chat a bit more. We exchanged some pleasantries and presently he asked whether we had any contact information.
"Sure," said Becca. "You can contact AIDS Care at any of these numbers-"
"No," he said, looking at me. "Like, for you. I thought maybe we could get together and talk some more about this cure for AIDS I was telling you about. Can I have your number?"

"I don't think I have a phone."

Bob Dylan's Space Monkey. (Via Making Light.)

If you want to think of it that way, much in life is not what you thought it would be. You would think, for example, that having teenaged daughters would mean that their teenage girl friends would be around a lot, and that this would make your house sort of like the setting of the sort of movie or tv show that has a lot of teenage girls in it. Maybe its because we don't have a pool, but even when there are a half a dozen of CLA's friends over here for the night, it doesn't seem like ""Bring It On"" or "One Tree Hill" around here. Perhaps it is because those people are all in their thirties, while these are actual teenage girls. It's just not what I had in my minds eye. Turns out I still don't understand teenage girls, which at least makes me feel like the fact that I didn't when I was 15 wasn't because I was completely clueless. Unless it means that I still am. That can't be it, can it?

KRAC Captain Tom Knab weighs in with his lists, "As of today, subject to revision on account of bad memory, and not in order":

"Like A Hurricane" - Neil Young. I read an article which said that the soloing on this song is a "guitar teacher's nightmare" because it breaks all the rules and kills anyway; "And Your Bird Can Sing" - Beatles. How about that triple-tracked guitar line?; "All Over Now" - Rolling Stones. Those big chords at the end clinch it; "Don't Dream It's Over" - Crowded House. Cool chords, gorgeous pop; "Brown-Eyed Handsome Man" - Chuck Berry. The problem was choosing just one; "Chestnut Mare" - The Byrds. It's not about a horse. "Time Of The Season" - Zombies. "What's your name? Who's your Daddy?" Say no more; "Victoria" - Kinks. A study of their stuff begs the question: Who did it
first, Kinks or Beatles? "Nostalgia" - Cracker. My favorite song from a truly under-rated band; "So It Goes" - Nick Lowe. Best pop lyrics ever.

ALBUMS:

Elvis Costello - This Year's Model. When you first heard it you said "WOW!"

Rolling Stones - Let It Bleed. So much Keith. Get the remastered version.

Bob Dylan - Bringing It All Back Home. A coin toss with Highway 61 but
"115th Dream" makes me laugh every time.

Faces - A Nod Is As Good As A Wink To A Blind Horse. Years ago I dreamed I
was playing the guitar solo on "That's All You Need" in my parents' living
room with a monkey wrench. Go figure.

Nils Lofgren - Cry Tough. Why won't they re-issue this on CD?

Wilco - Summerteeth. Their best, I think. Great melodies all over the place.

The Clash - The Clash. Kills.

Ramones - Rocket To Russia. Unbelievable guitar tones, funny as hell.

The Byrds - Untitled/Unissued. For the studio stuff alone.

Dave Edmunds - Tracks On Wax 4. Rock got fun again when I found this in
1978.

Discussing the rumors surrounding the casting of A Confederacy of Dunces the other night, KRAK Chief de Cusine Dave Nuzzo opined that this was a novel that he did not believe needed to be made into a book. To the extent that I suspect that commercial realities prevent it from being made into a good movie, I am inclined to agree. Indeed, in view of the fact that John Candy is dead, perhaps more than mere commercial realities are involved here, but I digress. There are a number of works that have no business being movies, or trying to be movies. The French Lieutenant's Woman springs to my mind for some reason, but of course there are many, many more egregious examples. One that is current is The Cat In The Hat. There have not been many poetic works that have made the transition to film, and this, perhaps the first poem that most of us ever knew, most assuredly did not deserve even the television commercials I've seen. I despise literary desecration, and I am sickened by the idea that a friend I have had since before I could read has been treated in this appalling fashion.

I just have a hard time imagining the conversation, you know? "Hi, Mom, I'm at Neverland. Can I sleep over?" As one of my colleagues notes, "It's not exactly a Megan's Law type of situation, where you have to have posters of the guy all over the neighborhood."

If we start from the premise that people's private lives are private, which is not an unreasonable place to start, then the controversy over same sex marriage begins to come into better focus. Those who are opposed are bigots-- there can really be no other explanation. The basis for their opposition is expressed in religious terms, but nobody is talking about compelling anyone's religion to perform marriages for gay couples-- if you don't think g_d sanctions same sex unions, that's fine with me, but I fail to see why that religious viewpoint should be imposed on anyone else. Indeed, so doing impresses me as being kinda unconstitutional. All this talk about marriage being a sacred institution is fine-- in the context of sacred institutions. If a couple wishes to be married in a courthouse instead, I don't see what Leviticus 18:22 has to do with it.

It impresses me as profoundly weird that there are, supposedly, so many people in this country that are that interested in other people's sex lives. Once again, I guess, we see what a much better world this would be if people learned to mind their own business.

Dylanology, via Metafilter.

The 40 Greatest US Bands Today. I don't think so. (Via Kottke.)

Sometimes I think, "What do journalists know?" Other times I think we really should listen to what the people who are there have to say. This excellent interview with NPR's Anne Garrels (from The Morning News) is an example of what I mean. She says several things that I think are important here: "I don't do predictions. That's not my job, thank you." And "Afghanistan is a not a good advertisement for American commitment and capability." And "I just talked to people. And listened."

And, via Bifurcated Rivets, 500 Songs that Influenced Rock'N'Roll. 500 is too many, but what the hell.

Since I have appropriated the Dean's "Honorable Mention' category, it seems only right to have Must to Avoid as well: (1)"Brandy", Looking Glass. The all time worst. Ever. (2) "Afternoon Delight", Starland Vocal Band. I feel dirty. (3)"The Night Chicago Died", Paper Lace. It was this, or "Kung Fu Fighting". (4) "Kung Fu Fighting", Carl Douglas Maybe this is worse. (5) "Hiroshima", Utopia. All of a sudden it dawned on me-- I'd been had. (6) "Angie", The Rolling Stones. Goat's Head Soup isn't that bad an album, actually. Except for this. This ruins it. (7) "Our House", Crosby, Stills, Nash and Young. Your house, maybe. Get those damn cats off my lawn, you hippies. (8) "Lay Down Sally", Eric Clapton. Hey, didn't you used to be God? (9) "Silly Love Songs", Wings. Say, didn't you used to-- aw, the hell with it. (10) "Southern Man" Neil Young. After the Gold Rush is a great album. Except for this. This ruins it.

Here's a Happy Birthday shout out to EGA, who has reached the age of reason.

I've been admonished, over in the "Shout Out" section on my songs post, that the list is supposed to be of favorite songs. Thus chastised, I am working on my album list. In the meanwhile, as I ran my errands Saturday, other songs kept coming to mind, in the inevitable way of these things. I suppose for our purposes here, we can describe this list as "Honorable Mention": (11) "For You", Bruce Springsteen. The best Bruce is about that time in our lives when our friends were our world, and we were all hopeless romantics. Everyone has a song by the Boss that speaks to that time better than anything else, and this is mine. (12)"Run Like A Thief", Bonnie Raitt. A song that has nothing to do with anything in my life, ever, that I just love; (13) "Willin'" Linda Rondstat. "I see my pretty Alice in every headlight..."; (14) "Promised Land", Chuck Berry. If I could play an instrument, this is a song I'd like to play. Unless my ax was bagpipes, I suppose; (15) "Brass In Pocket", The Pretenders. The thrill you get when Chrissy says, "Gonna use my fingers" makes you really what to know what happens when she uses her imagination; (16) "Breakdown", Tom Petty and the Heartbreakers. Before "Misunderstood" was my theme song, this was; (17) "Fortunate Son", Creedence Clearwater Revival. The funny thing about the '60's is that we are still paying for the lessons learned back then-- really, we are still fighting the same culture wars. This song is as true now as it ever was, and maybe more so; (18) "Cindy Tells Me", Brian Eno. A perfect lyric, and whatever that thing is that takes the solo on the way out (Fripp? Is that you?) is the best ever; (19) "Kodachrome", Paul Simon. I was what, 15 maybe 16 when this came out? And I knew it was true then, before I had any reason to. Now that I do, it still is. (20) "I Feel So Good", Richard Thompson. Is this even really my favorite Richard Thompson song? Today it is.

The New York Times is shocked, shocked to discover that New York State's system for judicial selection works as badly upstate as it does in the City; and that it raises the same questions about impartiality and fairness whether Republicans or Democrats are running the show. It is sad to see the childlike innocence of an institution like the Times abused this way.

Dick Cheney is in town today, and it isn't hard to figure out that he is staying at the Hyatt across the street. There are temporary barricades on Pearl Street, reducing it to one lane, more sheriff's deputies and cops than I have seen outside a parade, mounted police, bomb sniffing dogs and two hook and ladder fire trucks. Now, I suppose that our cyborg Vice President is, after Osama bin Laden, the greatest threat to America that there is today. (Throw in John Ashcroft as a field entry and you might have a winner.) Still, isn't that a lot more law enforcement than should be needed to bring the man to justice? What's that you say? They aren't out there to bring him to justice? Well then, what are they doing there? It can't be that they are protecting him from the angry hordes-- we are all at work, those of us with jobs. I'd love to see the bill that this fund raising visit is going to stick us with-- I'll betcha it'd pay a teacher or two.

The question of how to codify a mediation privilege is something that has been kicking around a while now. I'm almost religious in my belief in the mediation process, and why not? The results I have seen have approached miraculous. It seems to me that the court here did not need to assert that the privilage exists under federal common law-- whatever that is-- and could have simply held the parties to have been bound by the terms of the mediation agreement. Still, it seems like the right result.

It is the measure of how bad the Bills' season has become that when I got a call this morning and was offered a chance to go to the game, I gave it a pass, and went to the gym instead. 5k on the treadmill, 20 minutes swimming, with some weight work in between. I rode my bike down and back, and I still didn't beat myself up as bad as the Bills got beat. I was a half hour into my workout before I stopped feeling bad about passing up the game, but when I saw that the only Bills score in the first quarter was going to be on a safety, I stopped looking back.

If I can fit a workout like this in more or less every week, btw, I am going to be a happy boy. The bike ride today was the cherry on top-- that's not likely to happen too much longer here in the Queen City of the Lakes-- but the rest of it is what I like to do if I am staying out of town at a nice hotel. Run, machines, pool-- what's not to like about that? All that was missing were the delightful lotions, unguents and colognes that you find in the health club at a nice hotel-- so that I could have finished my day feeling like one of King Solomon's wives. During the run up to the Boilermaker we do Chestnut Ridge, and that is a workout that kicks my ass. I usually take a nap later-- it destroys me. If I can fit a workout like that in from now to March--maybe not every week, but a regular ass kicking-- well, P. Diddy, watch out is all I can say.

The ads on teevee for Viagra confuse me. Guy walks into a party and is peppered with questions that are, apparently euphemisms for a question that Mae West already euphemised. My question is, why did this guy take the pill before he went to the party? He is meeting his wife there-- that's how it ends-- so it's not like his Robert Plant act is going help him date up-- I don't get it.

John Kerry surprised me by opting out of public funding, but I suppose he really had no choice: even though he is now forced into the position of looking like he is trying to buy the nomination, if he didn't opt out, he would have had to have asked himself if he really wanted it enough to do what was necessary to get it.

In a funny way Kerry reminds me of "Idiot Wind". John Heinz had $500 million bucks, and when he died, his wife married Kerry. He can't help it, as Dylan said, if he's lucky.

In another way, this race is taking on the look of a potlatch ceremony, and although that is really nothing new, it is still unseemly.

KRAC Captain Tom Knab has directed that we submit two lists: our personal top 10 most important rock'n'roll songs; and our personal top 10 most important rock'n'roll albums. With the stipulation that such lists are subject to constant revision based on whim and the vagaries of memory, here's where my list of songs stands this morning: (10) "Keep On Rockin In the Free World", Neil Young. I'm still waiting for the great Neil Young Song that this Republican administration will drive him to write-- this one, from the first time we had a Bush as President still says what it needs to say. (9) "And So It Goes" Nick Lowe. Is there a better power pop tune? I don't think so. (8) "Miss You" The Rolling Stones. There are dozens of indisputably greater Stones songs. This one gets me out on the floor every time, though, and if I can't have a dance tune, what's the point of rock'n'roll? (7) "Mississippi" Sheryl Crow. I like Dylan's version of his own song too, but this lets me in on the joke better. (6) "Reelin' in the Years", Steely Dan. Inspirational lyric: "You've been telling me you're a genius since you were 17/In all the time I've known you I still don't know what you mean." (5) "Between You And Me", Graham Parker. Carlene Carter does a version of this that I love too.(4) "Stay Free", The Clash. A song that doesn't really matter from the only band that does. (3) "Poor Girl", X. What a great band this was. (2) "We Gotta Get You A Woman" Todd Rundgren. Love the handclaps. (1) "Misunderstood" Pete Townsend and Ronnie Lane. My theme song.

Ernie goes to a Depositions CLE; there are some good tips in his post, and more here.

I read Peter J. Boyer's New Yorker profile of Wesley Clark last night, and was taken aback by what a slam it was. Over at Slate today Fred Kaplan has a rebutal that is worth reading. I'm no fan of Clark-- I am, frankly, not a big fan of career military men in general, at least, not as civilian leaders. I liked the idea of Clark as Dean's running mate, because of the way that pairing might ballence the ticket, but now I am not so sure. Clark might or might not be a good Vice President, but I haven't seen him do anything in the debates which suggest that he'd be able to give our Brain in a Jar Vice President the sort of talking to that would be called for in a debate. I believe that the VP debate is one of the chief ways that the Gore campaign blew it, and I wouldn't want to see that happen again. Presumably Chaney will appear at the debate in his cyborg body (although a Max Headroom style television set might also be an appropriate way for him to manifest: "Live! From An Undisclosed Location!")

Where was I? Oh yeah, Clark. More than anything what he seems to be is the Stop Dean candidate of the Clinton wing of the party. I don't know why that should provoke an article like the New Yorker piece, though. Dean's edge is that he is blunt-spoken, and he is out in front of the pack with appealing ideas. Like this one. Tell me that doesn't beat a $400 tax rebate.

Of course, as we all know, politics is politics, and judicial nominations will always be political.

I almost missed this NYTimes piece on the Brooklyn judiciary. This starts to give a sense of it, but to really understand, you have to realize that the Brooklyn courts are jammed, every day, and only the lawyers who know the handshake are able to maneuver through with any sort of ease. For the rest of us-- the lawyers who are not politically wired in, our client's cases sit in the "To Do" pile. I don't know Ravi Batra, although I've seen him in the building. I do know some of the judges referenced in the story, and I am disappointed in them.

Good interview with Ira Glass. "Smallville is like a Domino's pizza. While you're eating, you're thinking, "This is good, and it reminds me of pizza, but there's not enough flavor in each bite." That's the feeling you have the entire time with Smallville—that it's just about to be good, but it never is."

I met Glass when he was in town a few years back, and he is just like you'd think he would be (except taller). He spins off observations and analogies constantly, and, unusually, for such a good talker, is also a terrific listener. I watched as he drew out my daughter and her friend, and he hung on every word.

He also has a knack for putting his finger on the problem. Pledge drives are horrible for exactly the reasons he says-- suddenly the people that you listen to all year who are scripted and edited and sound intellegent, and sound like they are having fun on the air are ad libbing, and sound despirate and miserable. It doesn't always have to be like that-- it isn't always at WBFO, the station that I was on the board of a few years back (although WBFO can be painful, believe me). WAMC does a nice job, I think because they have a lot of little set pieces that they do, so there is less ad libbing, and more of a sense of play. WFMU seems to do a lot of live, public events when it is doing pledge week, and that makes it seem like more fun-- I have no idea if it is cost-efficent, but it isn't painful to listen to.

As it happens Dick Cheney will be a block away from my house later this week, at the Park Lane. I won't be there, of course. I'll be having ribs that have been marinated in apple cider, then roast-steamed, and finally finished on the grill. Cheney, who as we all know is a brain in a jar, will no doubt be having some sort of liquid nutrient.

Seeming somewhat chastened, Tuesday Morning Quarterback returns. (Thanks to Dodd for the link-- the season may be over for "our" teams, but there is still plenty of football left.)

How fitting that Armistice Day should be Kurt Vonnegut's birthday. If I ever knew that, I had long since forgotten it. As it happened, I was driving back from Niagara Falls when the clock turned to 11-- I thought about the War to End Wars as my wipers swished, and NPR murmured about the war we are in now. One difference is that our geographic isolation is no help to us. Another difference is that we have somehow managed to become politically isolated, just when we could least afford to stand alone.

EGA found her way into Vonnegut over the summer, and since it was lying around, I found myself re-reading a bunch of his stuff. When I knew everything, I was often disparaging about his writing, but I see now that it was very much of its time, and very much from the heart. Poor old bastard, the world wore him out a long time ago-- I hope he doesn't have a television, or a radio to bring him news of each new day's horrors.

Of course, here in the US it's Veteran's Day, but I don't care for the martial tone that name lends it. Canadians call it "Rememberance Day", but that's not quite right either. It is a fine thing to honor our veterans, but we would honor them better by recalling what they have been through, and the moment of optimism that came briefly at the end of one specific war than we do by merely memorializing their service. Veteran's Day, Rememberance Day-- these names run the risk of commodifying something that was very specific. Armistice Day is not generic-- it calls upon you to recall specifically why the banks are closed, and the stores are having sales. At least, that's what I thought about as I passed through Grand Island on my way back to the office.

At the Supersuckers show Saturday KRAC Captain Tom Knab mentioned that his theory is that the twin pillars of rock'n'roll are Chuck Berry and Bob Dylan. When you think about it, it is a difficult proposition to refute: I might suggest that there are additional pillars, but those two are as good a place to start as any others. Of course, as I have said in the past, if you believe in the primacy of Chuck Berry, you are left with the question of what to do about Elvis. I am on board with Greil Marcus much of the way, but for me once the Mystery Train pulls up to Colonel Tom Parker's station, I want off. I suppose it is possible, here in the Twenty-First Century, to underestimate the Black/White synthesis that Elvis represented: if it is not possible, I suppose it is still possible to wish that this were so. At some point, perhaps, we will simply enjoy and respect the music, and leave the hierochies to the obsessive compulsives that inhabit Nick Hornby books. For now, though, as someone who spent a good part of my teens and early twenties haunting the cut-out bins, I can't quite let go. This NYReview of Books essay on Elvis is worthwhile.

And catch the Supersuckers if they come to town. Yeah, definitely do that.

It has been over for John Kerry for some time: this is just the death rattle. There is really no place he can go, and nothing he can do: he is Edmund Muskie, and the sooner he realizes it, the better for all concerned. For months the story about Kerry has been about how he is slipping, just as the story about Edwards has been about how he is not getting any traction, even though he has raised so much money. The next thing that happens to Kerry-- and Edwards--is that they will react to Dean's opting out of the matching funds system. This is a no win for them, even though Dean's argument that his decision is a form of campaign finance reform is somewhat disingenious. Both Kerry and Edwards have buckets of dough, but for both opting out merely looks like they are trying to buy the nomination. If they stay in (which is what I think they will both do) they are conceeding an important advantage.

Dean is already running against Bush. Nobody in the rest of the pack-- except Al Sharpton, maybe, gets that.

My plan was to go to the gym and really blast-- Watch the game on the treadmill, hit the iron, the works. When I got there, and opened my gym bag, I discovered that I had two singlets, but no shorts. I did have my bathing suit, and I considered pressing it into duty, but they are a size for a much larger man than I am at present, and would not have been up for the job. So I did something I very rarely do: I swam laps. It was a terrific workout, and actually pretty time-efficient. I think I may want to try and incorporate swimming into my regular routine.

I wouldn't say that drafting pleadings is my favorite thing, exactly, or even that it's fun, but there is a certain satisfaction that comes when you do it. It's an odd way of thinking-- every allegation must be broken down into its smallest unit, and then when it is read together, it tells a boring story! Even if the story is something that might be interesting, told a different way, in a pleading it is incredibly dull. For some reason the activity it reminds me of is raking leaves (something I hate, and do rarely). It is not exactly mindless, but it is certainly repetitive, and when you are done, snagging the last yellow maple leaf off the lawn as you go to put the rake away, what you have is the same feeling you get after putting together a complaint with a hundred paragraphs.

Obviously I am posting this to procrastinate. Back to the pleading now....

Bag and Baggage on the professional benefits of blogging. I concur. The "news hole" that needs to be filled here at Outside Counsel compels me to keep better abreast of developments in our glamour profession than I might otherwise, and the act of writing about these developments makes me think about these things, instead of merely noting them in passing. This blawg (Denise's coinage, of course) is less about the substance of the law than it is on what it is like to be a lawyer-- or at least that is its intention. I suppose any professional inclined to introspection might write about how it feels to do a particular job, but lawyers obsess a great deal about this. I (modestly) think of Outside Counsel as being in the tradition of Holmes' The Path of the Law, or Karl Llewellyn's The Bramble Bush. (A somewhat more contemporary work in this vein is Lawrence Joseph's Lawyerland -- which anyone who is interested in this stuff should read.)

One of the things that I think is interesting about our glamour profession is that it is a community, and I believe that lawyer blogs foster this in a new and worthwhile way. It certainly seems to me that the act of blogging is initiating law students into what we do in a way that was not available to me when I was in school, and I think that the authors of Sua Sponte, or Omer Poos (and hey, where have you been, Alice?) will be better lawyers because they have engaged in this sort of thinking aloud process. I tell my students that they should read Unbillable Hours to get a glimpse of what practice can be like.

I've tried describing what is going on here to people who don't read blogs, or blawgs, but it's like trying to tell a stranger about rock'n'roll. Once they get it, they start to do it (one of the beauties of the technology is its incredible accessibility). It is probably true that we don't really know what effect this will have, but I think it will be profound, and I'm glad that I'm in on it.

The Stones book sounds like less fun than a comperable investment in Stones sides would be, but it still sounds like it would be fun to have around for dipping into. I like the idea for a companion volume: "Keith Richards' 'What Not to Wear,' including tips for making a staid daytime outfit suitable for all-night rockin' just by adding a few key accessories, like a skull ring or a Moroccan scarf. Keith Richards is a man who knows how to live, and there's plenty we can learn from him. Chicken soup for the soul, bloody 'ell."

William Saletan goes to traffic court. "I paid for an appellate hearing so I could ask the judge how I was negligent. "You didn't look carefully enough before pulling out," he said. "I did look," I said. "The defendant must have been going too fast." The judge stared at me blankly and replied, "Well, if you had looked carefully enough, the defendant wouldn't have hit you."

I was incredulous. "Your Honor," I asked, as politely as I could, "If the standard of negligence is that I got hit, how could any plaintiff ever win?"

An awkward silenced followed. To my relief, the cabbie punctured it by leaning into his microphone and exclaiming, "Your Honor, I find the plaintiff very argumentative!" The judge laughed and told him, "Of course he's being argumentative! He's making an argument." Then, with a gentle smile, the judge concluded, "However, I reject his argument and find for the defendant." Case closed."

I've had arguments like that, and I do this for a living. Hilarious.

Nice tribute to Chuck Schumer. "He is, to his enemies, an arch-liberal and an enemy of the President. In fact, he is simply a superb, effective Senator who fights for New York. No wonder the nuts hate him."

In other election related news, Outside Counsel's mom, TCA, lost in her bid to return to the Carolina Shores Town Council. I don't think anyone acquainted with my mother was surprised by her post-retirement entry into politics: the pity is that it didn't happen sooner. She seemed just as glad to be out after her term as mayor ended, but you know how it goes: you can try to get out, but they keep dragging you back in. She says that she does not like to ask people for their vote, and perhaps that is so, although I imagine she is able to overcome her distaste for it. Asking people for money would, I think, be harder for her, which would seem to foreclose the possibility of higher office, which is also too bad. It's funny that competence at governance should be combined with a dislike for politics, but hardly surprising: the opposite combination is quite common in public life. What did surprise me was the fact that Outside Counsel's father, WJA, seems to be the one who took the loss the hardest.

Some years back, when A was still at the Attorney General's office, she asked me to have lunch with one of her clerks, to talk to him about finding a law job once he graduated. This was something that I did fairly frequently back then-- I had always had good luck finding jobs, and was happy to provide whatever advice I could. This particular student had come highly touted-- we had just opened our practice, and our associate, a recent graduate, was acquainted with him, and A was also very high on his abilities. He was, in fact, all that, a joint degree candidate who was completing his Philosophy PhD along with his JD. He showed me his resume, and I recommended that he leave the PhD off-- or at least soft pedal it. "Firms won't take you seriously if they think you are pointing towards a career in Academy," I told him. "But I am," he said. "That doesn't mean that the firms you are interviewing with need to know that," I said, "And besides, nobody wants to hire a philosopher." We finished our lunch, and I went back to work.

A few months later I was out of town at a conference or something. My partner called me. "Wait until you meet the lawyer I just hired," she enthused. "He's getting a PhD in Philosophy!"

We practiced with David for a few years, then, in the inevitable course of these things he moved on. He has moved in and out of the practice of law for a few years, doing a dot.com thing, and teaching, and doing some other stuff as well. He is teaching and doing other stuff at the moment, perhaps out of the practice for good, and I was very flattered when an IM chat we had last week moved him to invite me to speak to his "Law and Morality" class last night. The class took the form of a debate: He asserted that objective morals exist, that law has its foundation in morals, and that the law should be a search for truth and a vehicle for justice. I took the stand that although law and morals sometimes look the same, they are really very different, and that when legal systems are called upon to operate in the realm of morals, bad law will often be the result. "Law and Morality are like apples and pears," I said. You can wander in the orchard, and sometimes you'll see that they grow together, but if you bite into a pear expecting an apple, you are in for a surprise."

It was good fun, and the first time I have been in front of a class of undergrads. They are different from the law students I usually teach-- more differential, a little harder to engage. Teaching is some heavy lifting, I'd say, even at the university level, but it was pleasant to have a chance to dabble a little.

I guess it is Judicial Selection Backwards Day here at Outside Counsel. If the numbers hold, it looks like the voters of Western New York have elected Paula Feroleto, the most qualified candidate in a field of qualified candidates, to Supreme Court. Meanwhile, the Governor, confronted with a merit selection panel's list of seven names, has selected the only person on the list with no judicial experience whatsoever. While Robert S. Smith certainly sounds like an eminently qualified lawyer, the whole thing seems a little odd. What prompted him to submit his name and apply? Did he just have a good feeling about it?

Update: I can't say that Erin Peradotto won't be a fine judge, but I can say that the fact that Paula Feroleto apparently lost means that at least the system of electing judges by popular vote is holding true to form. Good thing-- I was begining to wonder if the pillars of my worldview could withstand the shock.

Talk about your dark horses! Governor Pataki has appointed Robert S. Smith to the Court of Appeals. Where'd he find this guy? Not in Martindale-Hubbell. The about to be Judge Smith looks to have had an impressive career, but this is not how I saw this one shaking down.

So there I was, reading Ernie the Attorney, when out of the corner of my eye I spot Penis Enlargement Blog in his sidebar. Ernie's description pretty much says it all: "A regular guy in NYC who wants a larger penis and wants to blog about it." I can only add two things: first, this guy demonstrates why there is spam; and second, perhaps he should try dressing his penis in stripes if he wants it to look bigger.

I've actually got about ten minutes of material on this, but I think I'll save it. My mother reads this blog. Well, one more thing: don't you wonder if this guy Earns Big $$$ From Home?

I seldom agree with Stuart Buck, but I think he makes the case in favor of estate taxes quite well here. "I'd rather tax estates than income, comparatively speaking. After all, income is earned, while inheritances are not. Why penalize productive activity (work) while rewarding the accident of birth?"

The thing that is funny about the moment in the sun that Dick Gephardt is presently enjoying is that the media, although aware it is happening, apparently doesn't know why. I know why: it is because if there is no challenge to Dean, then there is no horse race to report on. I suppose there could be coverage about the stuff the candidates are saying, but that's pretty dull. It is more interesting to report on how the polls react when the candidates say something, particularly because such reporting also affects the polls. And then it looks like a horse race, and that is much more enjoyable to cover. The media abhors a vacuum (that's why it is called the "news hole"), and although the likelihood is that Dean has all the momentum he needs to cruise to the nomination, Gephardt is popular in Iowa, and will probably do well there. That's all the hook the press needs: we're off to the races! Regrettably, all this distorts the process; fosters cynicism; and diminishes the discussion of the real questions and issues that we, the electorate, should be talking about. Oh, well.

A. says it is an over the sink collander, so now I know its name.

Since we both like to cook, both A and I enjoy kitchen gadgets. Often, however, the gadgets that A acquires are things that seem, to me, to be things that unnecessarily take up space-- something that is in short supply in any kitchen. The latest such acquisition is a sort of a sieve that occupies half of the sink. I don't know what it is for-- when I asked, she said, "It is for making me happy." It seems an odd appliance for accomplishing that end, and I assume she was being sarcastic. It sits there, effectively preventing the use of the sink for traditional sink activities, and it usually hold fruits or vegetables. From this I conclude that it has two functions in addition to the primary one A described: it makes me unhappy; and it promotes the decay of fruits and vegetables. Why the bin in the refrigerator is no longer sufficient I do not know. The bin always seemed well adapted to this chore in the past. (Perhaps the intention is to give the bin over to wilting celery and growing hair on carrots.) If the sink thing actually does all three things (I can only vouch for two) it is one of the more efficent gadgets A has bought recently. It is certainly better than a hardboiled egg slicer.

John Kerry doesn't get it. Attacking Howard Dean won't drive Dean's supporters away-- everybody knows what Dean is about, which is why the people who support him support him. His position on gun control is well known, and a lot less ambiguous than Kerry's. Attacking Dean makes Kerry look bad, because it makes it clear that Kerry is more interested in getting the nomination than seeing Bush fail of reelection. Most Dean supporters see Dean as the candidate most likely to beat Bush-- because we believe that his stand on the issues represents a clear choice. Most of us thought that Gore was a clear alternative, too, but stupid Gore didn't think that that was the way to win, and tried to blur his differences. He was abetted in this by his running mate, who turned the Vice Presidential debate into a fawning wet face contest. This won't happen if Dean gets the nomination, which is starting to look more and more probable.