Outside Counsel

'"I've served with five presidents and he is by far the worst. I'm nostalgic for Ronald Reagan, " Gephardt said, drawing laughter from the crowd.' I'm not laughing. I actually think it might be true, which is appalling, and I have to ask myself, if this is what he believes, then why did he vote the way he has for the last three years? Ask any of the senators who are running the same question, and throw in the question, "Why did you vote for Bush's cabinet appointments?" (I'm looking at you, Joe Lieberman.)

I've been a fan of the Best American Essays series for a long time-- it used to be the book I'd pick up to sustain me on my Thanksgiving holiday travels, but now I'm too pressed for time, and I find that I am obliged to read it by dipping into it from time to time when I have time. It'll probably sustain me thus through February this year, which is probably also the better way to read it. For a long time I would do the Best American Short Stories as well, and I think our protocol was that my brother would buy one, and I'd buy the other, and we'd trade. This would account for why I do not have a complete run of either-- the ones I am missing are, presumably, lost to the Antipodes. In any event, the advantage to reading either collection in that giant killing stride way is that the individual essays are still fresh enough to discuss with the reader who gets the book next. This year's Essays, guest edited by Anne Fadiman is as good as any I can recall, and I would love to be able to share them-- different essays with different people, not everyone I know would like all of the ones I've read so far, but everyone I care about would like some aspect of some of them. Is it true, I wonder, that the closest Gaelic comes to the word "yes" is "it is"?

Students in my Depositions and Discovery class this January can access the course materials here. (You have to be signed in to get to it-- go to the "Discussions" board.)

The Village Glenn Resolution Run goes off at noon on New Year's Day. I have run in it every year that they have had it, until last year, when I was sick. I guess they missed me. The convention in assigning race numbers is to give the low numbers to the seeded runners. Traditionally Billy Martin's number goes to the winner of last year's race. At some point they start giving them out in order of registration, or maybe alphabetically. I've gotten some low numbers that way, but I've never gotten this one. I feel like I'll be running with a target on my back (except that there won't be anyone back there to see it). Sorry, John Huber of North Tonawanda, NY-- I've got your number this year

Props to my sister-in-law, Carol Bronnenkant, who is spotlighted in Don Esmonde's column today for her preservation efforts. Graycliff was one of those "someone should do something" undertakings, but she was the one who did it. Now, having shown that something can be done, a lot of these sort of projects are being accomplished around here, and people are a lot more likely to believe that their efforts can acomplish something.

Nat Hentoff, speaking about John Coltrane, comments on why some find 'Trane's music difficult: "It was hard for me to make the bridge even to Bird, because I grew up with Johnny Hodges and Benny Carter and that kind of playing. But, if you don't transcend, and not everybody can, what you grow up with is what stays with you. If I just want to listen to music for pleasure, I will listen to Lester Young and Billie Holiday and all those sorts of people…"

This is an observation that impresses me as applying across disciplines in the American Trinity: perhaps somewhat less to the Blues, but certainly to Rock'n'Roll. The stuff you listened to in high school and college is the stuff you still listen to, to the extent you listen, if you don't transcend...

I walk around NYC, and I see stuff that gets my mind going, but I tend not to do much with it. Satan's Laundromat does something.

LCA asked me the other day why I don't smoke any more. I said, "Well, actually, I don't smoke because of KRAC."

Watched Seabiscuit last night. As glad as I am that it's a horsie movie where the horsie doesn't die at the end, and as good as the actors were in their parts, the only thing that really distinguished the movie was the race scenes camera work. And even at that, the writing in the book was more exciting.

Outside Counsel's rule of thumb: the more voice-over narration, the less likely the thing is to come close to being interesting. (Just as Seabiscuit breaks the horse movie paradigm by not dying at the end, so too does Apocalypse Now overcome our voice-over rule. There are always exceptions, which is why there is judicial discretion.)

We found ourselves in front of Judge John T. Elfvin at the end of last week-- it is probably a manifestation of his sense of humor that he calls his motion calendar on Fridays at 3:30. It came as no surprise to learn that this independent minded jurist is being criticized for his failure to slavishly follow the Federal Sentencing Guidelines. "Elfvin has weathered controversies before in his 28 years as a federal judge. Supporters in the Buffalo legal community call him brilliant and independent. Critics call him erratic and bullheaded." Put me in the "brilliant and independent" column.

Sentencing issues seem to me to be one of those things that legislatures are poorly equipped to deal with properly. The fact is that the sentence that is attached to a penal law provision does little or nothing to deter the proscribed conduct: all it does is reflect the extent to which the community, as embodied by the legislature, condemns the conduct in question. At some point, however, these things have a way of collapsing under the weight of their own hyperbole, and we are, I submit, well past that point. There is no rhyme or reason for a 240 year sentence, but there is also next to no turning back from the legislative enactments which set up that sort of sentencing-- legislators are not likely to roll back the sentences prescribed by statute, since to do so would be to appear soft on criminal behavior. The obvious answer is to defer to judicial discretion, since judges are insulated, somewhat, from the public pressure to over-react, but legislatures are loath to do this. The opportunity to grandstand is too great a temptation, for one thing, and there is a systemic distrust of the judiciary that arises from the fact that it is not responsive to public pressure.

Of course, in this particular instance Judge Elfvin might have worked a different result by enunciating findings of fact justifying his departure from the guidelines-- merely rejecting a conclusion because it is stupid (or, as in this case, "crazy") doesn't give the Court of Appeals much of a legal basis to go on.

I winced when I heard that Judge Wesley dissented in the Padilla case-- I thought, "Maybe he's a crypto-fascist Bush appointee after all, notwithstanding the fact that he's from New York." It appears that his decision was a bit more nuanced than that, however, and more in line with the sort of moderate Rockefeller Republicanism that was characteristic of his time on the Empire State's highest court.

"Wesley said President Bush's authority to detain Padilla clearly fell with the Joint Resolution passed by Congress after Sept. 11, 2001, and citing Quirin, he said the president's authority to "detain an enemy combatant in wartime is undiminished by the individual's U.S. citizenship."

But Wesley was also troubled by what he said was the "real weakness" in the government's appeal: the contention that "Mr. Padilla can be held incommunicado for 18 months with no serious opportunity to put the government to its proof by an appropriate standard."

And he addressed the government's concerns about the interrogation of Padilla and his ability to communicate with al-Qaida, saying he agreed with Judge Mukasey that access to counsel was critical.

"While those concerns may be valid, they cannot withstand the force of another clause of the Constitution on which all of us could surely agree," Judge Wesley said. "No one has suspended the Great Writ."

December 20, 1968. The Greatest Week In Rock'N'Roll History? '[J]ust imagine the mix tape possibilities from that single '69 week. "Come Together," "Whole Lotta Love," "The Weight," "It's Not Unusual," "Green River," "You Can't Always Get What You Want," "Wooden Ships," "Gimme Shelter," "I Can't Get Next to You," "It's Alright Ma (I'm Only Bleeding)," "Here Comes the Sun," "Evil Ways," "And When I Die," "Bad Moon Rising," "Suite: Judy Blue Eyes," and "Born to Be Wild."

There has been a lot of flack about Rolling Stone's 500 Greatest Albums list being too '60's-centric, and I suppose there is some merit to that claim. (Still a mighty fine list, though.) I am more of a late '70's, Dawn of Punk man myself. I think you can make the case that late '60's rock was already too white, and getting whiter. Even so, I doubt that there is anyone who cares about this music who doesn't have (or didn't have) at least three of the 12/20/69 sides in their collection.

EGA is fond of observing that the stupidest reason to do something is because you have always done it, and there is some truth to that, but it is also true that there is comfort to be had in tradition, and that comfort -- rather than mere force of habit, is a valid reason to continue a practice. Sometimes it seems to me that tradition is a tropism, and sometimes I'm surprised by what has become tradition in our family. When I was a new lawyer, the firm I was working for used to order its holiday party food from Katz's Deli, which is how I found out about the place. When the snow flies now, I have a powerful craving for pastrami, and a visit to Katz's has become something of a private little holiday tradition for me. I was there yesterday, and it was wonderful, just as it always is. Another tradition is one I share with my law partner-- every year we buy some Christmas CDs, to play in the office, and to take home. It is a little outing we make, and we have built up a fairly large collection over the years. The run-up to Christmas always feels stressful, and this is a way of stepping back a little and putting it in perspective. Somewhere along the line I acquired an Alligator CD full of Cajun Christmas music-- or, at least, Christmas songs in zydeco style. It's a goofy thing, but I really like it-- it's a nice change of pace, and I was gladdened to discover that the sound of this side is one that my daughters associate with Christmas-- it is part of the comfortable tradition that they enjoy, even though I hadn't realized until one of them mentioned it that it had become a tradition at all.

We can stipulate that Strom Thurmond was an evil old bastard, and a hypocrite, but so what? He's dead, and except for a few cavemen like Trent Lott nobody who thinks about this stuff has thought otherwise for quite some time. The interesting thing, the sad thing, is to think about what it must have been like to be the black daughter of the leading segregationist of the Twentieth Century. That check at Christmas would have been a pretty hard thing to take from someone who made a career of denying you your humanity. She's 78 years old, which means she was growing up during the worst of it all-- She was 26 when her father filibustered against civil rights in 1957--how horrible to go through life like that.

Fred Kaplan has a nice little round-up of jazz sides released this year over at Slate. He's right-- his sort of thing means less in jazz than it does in pop, because jazz is no longer modern popular music, and because there is so much depth in the catalogue at this point that there will always be loads you haven't heard that isn't new. Still, it's nice that someone is doing this, now that Gary Giddins is hanging up his spikes. I can vouch for the Bad Plus, and Dave Holland; I've been wanting to check out the Jackie Byard and Ahmad Jamal, and all of the Stan Getz that I've heard from his last years has been terrific. I see no reason to go out and buy the Complete Jack Johnson Sessions-- and I love Jack Johnson. At about this point, Miles' music becomes as much about Teo Macero's editing as it is about anything else, and it impresses me as a waste of time to listen to five CDs worth of work tapes when Macero has already done the work.

When I was a schoolboy the revolution in running shoes was just getting under way: coaches talked about the new modern materials, and they meant nylon. My first pair of real running shoes was a pair of Tiger Marathons, with the new nylon uppers and soles that were about as thick as a first class letter. These babies were as light as a feather, and that was all they were: there was no arch support, or lateral support, or cushioning-- they were intended to make you faster by not weighing you down. Back then, actually, there was a lot of talk about the cushioning properties that different tread designs offered.

It was rudimentary gear, but it was gear all the same, and we were into it. My brother, my friends and I engaged in careful study, and over the course of our careers we experimented with the technology as it developed. My favorites were probably the Lydiard Trainers I had one cross-country season. They were made from kangaroo leather as I recall (kangaroo was a trendy material for a while, touted for its lightness and flexibility), with a seamless interior that was curved to conform to the shape of your foot, particularly the heel. I had one of the first pairs of Nike Waffles, bright yellow uppers, with a green Swoosh to match the waffle soles.

This was big stuff. We seriously believed that finding the right shoe would give you the edge. When I returned to the sport years later, like Rip Van Winkle I discovered that there had been some changes. Shoes were all about fit, and compensating for the attributes of your gait which might lead to injury. And cushioning-- sweet, sweet cushioning. Shoes are more technical and complex than ever, but it has reached the point where the technology is so advanced that there is no point in researching the fine points for most of us. The right shoe is the shoe that is right, and reading the lists of features and attributes in Runner's World's buyer's guides isn't any help at all. Except-- as I sit here, looking out the window at the first meaningful snowfall of the year, there is a review of something called the Ice Bug in front of me. It's a Swedish shoe, designed for running over snow and ice. It has a lugged sole, with metal studs in it, and I'm thinking that a hundred bucks isn't so very much if it saves me a minute or two at Mr. Ed's....

A tool for generating timelines impresses me as something I may find very useful. I want to come back and play with this. (Via Kottke.)

On CLA's recommendation I am reading Gregory Maguire's Wicked: The Life and Times of the Wicked Witch of the West. It is excellent, The Wizard of Oz from the Witch's point of view, told as a tale of political struggle, in a style that reminds me of nothing so much as Margaret Atwood. I have read more of Baum's Oz books than I should admit, I think-- they are mostly pretty bad, and often weirdly so. I can't imagine what children are supposed to make, for example, out of Tip, the protagonist of The Marvelous Land of Oz, a plucky lad who, it turns out is actually Ozma, the most beautiful fairy princess in the world. It is the most twisted ending to a children's book I have ever encountered-- the hero is a boy right up until the very end, a sort of reverse Crying Game for the kiddies. I don't know very many people who have actually read The Wonderful Wizard of Oz-- I think most of us know the book through the movie. There is precious little Judy Garland in the original, let me tell you; it is a dark book, full of grotesque, malformed characters. Tod Browning had nothing on L. Frank Baum. In one of the Baum books it is revealed that people never die in Oz, and that even if they are chopped up into tiny bits they remain alive and conscious, like sentient gravel, I suppose. In the end, Baum's invention was, I think, overrun by his desire to please his juvenile audience, and he ended up creating a far more horrible world than he intended. Magure picks and chooses what he likes from Baum, working in a more or less magical realism sort of way, so that what fantastic bits remain are more or less as realistic as the flying carpet in Macando. If it were just a well done stunt, I wouldn't recommend it, but I think he is out to accomplish more, and from what I can see so far-- about 2/3rds through-- he mostly gets what he is out for.

Related: The Steve Forbert Game. "I think the simplest way to put it is that the Steve Forbert of a genre is that genre's acid test - i.e., the signal that you value and enjoy the tropes and conventions of that particular genre. The trickier part is explaining why the Steve Forbert can't just be completely generic him or herself, and actually has to have some sort of distinctive personality, albeit a distinctive personality entirely circumscribed by the genre that they work in. To me, it's much easier to explain by simply stating that Boz Scaggs is the Steve Forbert of white soul. *** The Steve Forbert of a genre usually meets with moderate mainstream success if the genre itself has some mainstream credence. Often the way to determine the Steve Forbert of a genre is to find someone who is completely immersed in a particular genre and see who they most overrate. I like Superchunk fine, but a friend from college, whom we shall call Mr. Inn D. Roque, had a truly fanatical obsession with them, far beyond his fealty to such obvious genre titans as Pavement and Sonic Youth."

Here's a pretty good little rundown on Christmas music. A tad profane, but, after all, isn't most Christmas music?

"JESUS : Yule log after yule log, and I don't even merit a mention in any of these songs. The holiday is named after me! It's supposed to be my ******* birthday! What is "yule," anyway?

JOE POTTERY : Ummm... didn't he replace John Cale on Loaded?

JESUS : That's Doug Yule, wiseass. "Yule" is the name the pre-Christian Nordics gave to the winter solstice. If you're celebrating Yuletide, you're not celebrating Christmas. It's one or the other.

JOE POTTERY : I don't think you're being very tolerant here.

JESUS : I'm trying to redeem your sins, but you're not making it very easy on me. You should just be happy that Luther was right about how there's no such thing as Purgatory, otherwise you'd be spending the next two hundred years listening to "Everybody Wang Chung Tonight" on infinite repeat. Listen, I'm not a megalomaniac. I don't have to be. This isn't about me wanting publicity. It's about giving good, thought-provoking and sophisticated music run ahead of innocuous and empty-headed music." (Via Looka!)

Dan Reeves is available. I think I could be quite content with Dan on the Bills sideline next season.

I have been less worried about Howard Dean being this year's George McGovern (or Gene McCarthy) than about seeing this race repeat 1988. Poor Michael Dukakis-- he is almost forgotten today, but not only was he the nominee (beating Al Gore, among others, to get there), but for a while it looked like he was going to win. The reason he didn't can be put down to the Bush campaign's ruthlessness-- although George appeared to be a bumbling fool, Lee Atwater assembled a machine that turned an important race, with a lot of real issues, into endless pointless debates about the Pledge of allegiance. And although Bush's patrician disconnect from most Americans appeared goofy, there was never anything goofier than Dukakis in the tank. It was a slick piece of work-- Dukakis came in wounded, from a bruising primary season, and Atwater finished him off with ads about Willie Horton and Boston Harbor. Up to now, I have been concerned that something similar might happen with Dean, but now I don't think so. Dukakis' problem was that he was never all that popular with his base-- he managed to win the nomination by being everyone's second choice. That doesn't seem to be how it will shake out this time-- if Dean nails it, it will be because he has mobilized and motivated a broad base of support. I was thinking about this yesterday, stuck in traffic on the Belt, when I heard that Senator Paul Simon had died. Simon was my second choice in '88 (I liked Jessie Jackson, as if anyone who knows me would be surprised by that). Simon was a classic Midwestern populist, as ugly as a mud fence, with a nice sense of humor. Much was made of Al Sharpton's appearance on SNL last week-- Senator Simon was a guest, back in the day, and was actually funny. (Thanks to Backup Brain for the tip about the New York Times Link Generator.)

John Elway used to complain that, "when you lose the Super Bowl people don't think you're the second best team in football-- they think you are the worst team in football." Elway fixed that perception problem when the Broncos finally got a running game, but I wonder if a similar one might be clinging to the candidate who won the popular vote in the 2000 Presidential election.

It will be interesting to see how this one gets played.

The New York State Commission on Judicial Conduct is apparently investigating Supreme Court Justice Nelson H. Cosgrove in connection with the story we reported on last month about the claim that the judge was said to have been --ah-- improperly using the power of his office. We didn't mention last time that Justice Cosgrove is a former district attorney. The chief significance of that, to us, is that you would think that a guy who had that kind of political experience would be somewhat more circumspect in his dealing with the press. I'll bet a dollar I know who the judge has acting as his lawyer....

Dodd points us to this list of the Twenty Most Anoying Liberals in America. Jayson Blair? How do you figure? I'd have lunch with most of the rest any time.

10K Race Strategy. Nothing so very revolutionary, but worth reading. I wanted to run more 10ks this year, but there aren't a lot of them around here. Oddly, both the Turkey Trot and the Shamrock are 8k, which seems like an odd distance to me-- I don't think any of the other local races are over that distance, and I wonder why these two, which are sort of signature runs for a lot of people, the alpha and omega of the season, are.

I've been saying it for months now, but I'm glad Molly Ivins agrees. "I'm for Howard Dean -- because he's going to win." And not just the nomination.

It is a common practice in the blogging community to post policies pertaining to the use of email sent to the site. Our policy has always been to ask the sender, but others take the view that it is all publishable unless expressly stated otherwise. It hadn't occurred to me that there might be liability issues associated with this question, perhaps because I have never seen a potentially defamatory email. Comes now the Ninth Circuit, in Batzel v Cremers, (pdf file) which holds that the Communications Decency Act may immunize bulletin board hosts (and by extention, bloggers) from liability for publishing defamatory material received from a third party. Interesting stuff, and a well written opinion. Nice to see such a tech-savvy bit of jurisprudence, too-- lots of judges are still at the "They have the internet on computers now?" stage.

The other thing that I think is worth noting about Batzel is that it is a good example of what a peculiar lens the law provides for viewing our culture. Nazis, p0rn and Scientology are what cyberlaw suggests the internet is all about. This is true generally-- if all you had to go by was a set of F. Supps or New York reports you'd think that American culture is very different from what it actually is-- I think. Thanks to The Blogbook for the cite.

Barber Conable is dead. I've met a lot people that had their fingerprints on the 20th Century-- hang around enough and you will met some, I guess. Conable was what you wish the people you vote for will be. It is funny to think about, but I can see him in Philly, in 1776. Ol' Barber, yeah, he'd have been right there. Technicality, he was my congressman for a time. A class act.

Soylent Dean. (pdf) (Via BoingBoing.) Release the records, Governor. Let's not get distracted.

Berlin Blog points us to Mr. Poon's question, if you could remove one Supreme Court case from the books, which would it be? I'm thinking. My first impulse was Korematsu, but although I hate it, its implications aren't as devastating as all that. Bush v. Gore, of course, bad law, badly decided, with consequences for the nation that we will not be able to calculate for a generation. I wish that some cases had been decided better, or on different grounds-- how much better would Roe be if Blackmun had just said, "This is the sort of thing that Griswold covers. Privacy trumps. Next case." But that's not the way we are playing the game-- it has to be take it off the books, not re-write it. I'll check back in on this one, I think....

There is a case to be made that the Talking Heads are among the first rank of American rock'n'roll bands. I wonder if now is the time to make it? Three indisputably great albums-- '77, More Songs About Buildings and Food and Remain in Light. A great, great live act. Enduring influence on the music, twenty years on. For some reason-- perhaps because their output as a band started to become more and more trivial before the end, perhaps because their post break up work has been mostly pretentious-- I haven't gone back to them in a while. I guess I should.

Back in October I got to be a judge at UB's Moot Court competition, which used the Davey case this year. From Dahlia Lithwick's description of today's argument, I'd say that the students and the judges that I was in the room with had more or less the same handle on the issues presented as the Supremes, Jay Sekulow, and Washington State Solicitor General Narda Pierce. Which is not to say that any of us in O'Brien Hall were so brilliant-- perhaps some were, but the real bottom line is that this is the sort of tough question that all good lawyers enjoy kicking around, but only the Supreme Court has to actually wrestle to the ground. I don't envy them the task-- for whatever it is worth, my inclination is to say that The Reverend Davey should get the scholarship, but I hate the idea, I hate him, and I hate myself for not being able to see a way out of giving it to him. I reckon that's how it will come down, but I see nothing but problems coming out of the decision that sustains the Ninth Circuit. Perhaps that's my consolation-- between this, and the Pledge case, the Ninth Circuit may get to be like Lincoln's clock, and be right twice.

Howard Bashman's 20 Questions for Judge Posner. We are lucky at Outside Counsel: our judicial heroes can include both Justice Holmes and Judge Posner. (And a few others-- Justice Brennan, who Posner clerked for, is another.)

"My advice for lawyers practicing before me and my colleagues is threefold: always explain the purpose of a rule that you want us to apply in your favor, because the purpose of a rule delimits its scope and guides its application; always give us practical reasons for the result you are seeking; and don't overestimate the knowledge that an appellate judge brings to your case, because we have very little time to prepare for argument in depth, and the breadth of jurisdiction of the federal courts is such that we cannot possibly be experts in all or most of the fields out of which appeals arise."

But: "I think [judicial salaries are] too low, not because I consider myself underpaid, but because the current salary makes it difficult to hire successful lawyers from elite law firms, especially in cities in which the cost of living is very high, such as New York; and as a result the diversity of the federal judiciary is reduced along with the judiciary's sophistication in commercial cases." I fail to see how hiring successful lawyers from elite firms would increase the diversity of the federal bench-- walk around the halls in Cravath some time and tell me how diverse you think it is.

Pats play the Fish, and the Jets, who I guess are better than they have been playing, come to Buffalo. With games against Miami (at Buffalo) and New England (on the road) remaining, am I pathetic if I hold out the dim hope that something might be salvaged from this season? (I think the answer is a big "yes".)

It is far enough off the beaten path so that I think I'd drive there, but I think I want to try 360. I am as big a bistro fan as anybody, and I love the odd corners of Brooklyn.