Super Lawyers
William C. Altreuter

Thursday, August 31, 2006

The Second Circuit has upheld Judge Gleason's decisions striking down New York's convention system for selecting Supreme Court candidates. While this is a fine thing, it doesn't really get to the heart of the problem: how should we select judges? Right now, after this election, we will have primaries-- unless the Legislature devises a system that will fit the criteria outlined in the Court's decision.

The present process involves a primary in which delegates to the judicial nominating convention are elected. Delegates who "collect" sufficient petition signatures are "deemed" elected, and don't appear on the ballot. The nominating conventions pick the judicial candidates for their respective parties. You see where this is going, right? Basically the only way a candidate can get on the ballot is if the candidate has the support of the head of the party, because only the party has the apparatus to navigate the delegates primary process. The Court essentially held that the process unfairly burdens the First Amendment right of association, which is certainly true enough, but which begs the question.

There is nothing about the role of judge that suggests that a democratic selection process is well-suited to the task of locating individuals who will be capable and fair. In many ways judges serve a function that is anti-democratic. Their role is to be impartial, and to rule on the law, not to decide matters based on the popularity of a particular party or position.

The people who use the courts are, I think, best equipped to say what qualities make the best judges. I would propose to you, Outside Counsel readers, that if you asked a room full of New York State lawyers what buildings you should go to to find the best judges that they would all agree that the Court of Appeals building in Albany would be one, and the local federal district court would be another. We'd all agree that the building from whence the Torres decision emanated-- the Second Circuit Court of Appeals in Foley Square has so many excellent judges that it is sort of like the 1927 Yankees of the judiciary. It is notable, I think, that none of the judges in those buildings are elected. The process by which federal judges and Court of Appeals judges are annointed is a merit selection system, and I fail to see why New York State Supreme Court justices shouldn't be selected by a similar method. Merit selection is, of course, political-- but look at the results we get when the political process is taken out of the hands of political party chairmen, and given instead to elected officials who are accountable to the electorate.

The only flaw I see in my proposal to have state Supreme Court judges appointed by a process like that used for Court of Appeals appointments is the utter corruption and lack of transparency in the New York State Legislature, and I will concede that this may be a fatal deficiency. Nevertheless, merely shrugging at the situation fixes nothing. We are entitled to the best judges, and that means that we should use a system geared to appointing the best judges. The process we use now-- or the primary system that the Court of Appeals will have us using next time-- is not the way to go about this.

Wednesday, August 30, 2006

The Official Seal Generator. Enter some text, choose a border and an emblem, pick your colors, and click the 'Go' button. An Official Seal will be generated for you. (Via 43 Folders. Supposedly a site about productivity.)

Tuesday, August 29, 2006

Nat Hentoff on Dylan, in The New Yorker, 1964.

Thursday, August 24, 2006

Jonathan Lethem interviews Dylan: "You do the best you can, you fight that technology in all kinds of ways, but I don't know anybody who's made a record that sounds decent in the past twenty years, really. You listen to these modern records, they're atrocious, they have sound all over them. There's no definition of nothing, no vocal, no nothing, just like -- static."

I've pre-ordered my copy of "Modern Times". And I'm thinking that perhaps I should start investigating some of the stuff from between 1983 and 1993 more carefully. There's got to be some worthwhile work there that I've overlooked.

Wednesday, August 23, 2006

I love David Siegel's New York State Law Digest, a chatty little leaflet that summarizes the more significant recent decisions handed down by the courts of the Empire State, but sometimes it glides over the important details. In the most recent issue, for example, Siegel reports on King v. Fox, 7 NY3rd 181, which holds that under "rare" circumstances an "unconscionable" fee agreement can be ratified by the client. Siegel likes the case because it employs certification of a question by the Second Circuit to the Court of Appeals, one of his favorite toys, and, I suppose, for the esoterica of it-- how often is something like that ever going to come up? My interest was piqued, however, by the bland description of the facts he related: "The background of the case was royalty arrangements P had made with MCA after P joined a band as both songwriter and artist (performer)." First of all, I love the snide parenthetical. This is a guy who probably doesn't have a lot of rock'n'roll in his collection of 78s, dig? I wanted to shake him: "Who? What band? Tell me!". Instead, I had to go online. For the record, it's Edward C. King, and the band was Lynyrd Skynyrd. "King contributed to writing, arranging and performing some of its most popular songs, including, "Sweet Home Alabama," says the Court. These were some heavy royalties, and the lawyer cut himself in for a nice slice in perpetuity. The Second Circuit has remanded the matter to the district court for a further hearing on the issue of ratification.

Siegel doesn't even mention that, "During the period from 1974 to 1975, artist's royalties exceeded $1,000,000 per annum. At that time, King received only writer's royalties since artist's royalties were being used to buy out Al Kooper, the band's manager." Isn't that interesting? The guy who wrote "This Diamond Ring", the guy who played the signature organ riff on "Like A Rolling Stone"-- Al Kooper got a million bucks as a buyout from the folks who brought us "Freebird".

This is the sort of rock'n'roll analysis you can get only here at Outside Counsel, people. That's our job. That's what we do.

I am delighted that Governor Pataki has appointed Gene Pigott to the Court of Appeals. It is unfortunate that the selection of this highly capable jurist is tainted with the fact that Judge George Bundy Smith was not reappointed, and by the fact that the court is now all white, but I'll take a court with Judge Pigott on it any time-- I really can't think of what a better judge would be like. It says a lot that Elliot Spitzer pays lip service to diversity but concludes, "Gene Pigott is an eminently qualified justice with a distinguished record".

A couple of side notes. First, it is not accurate to say, as some accounts have, that there has not been a Western New Yorker on the Court of Appeals since Matthew Jason retired in 1985. The Honorable Richard Wesley, from Geneseo, was on the Court from 1997 until June 2003. Second, how hilarious is it that Pataki says, "Reflecting back on it, I think I did know that Judge Pigott was a Republican, but it’s not something that even entered my mind"? I mean, please, dude, you have never picked a Republican for any court, ever. Who are you kidding?

Thursday, August 17, 2006

I've been trying to settle on my personal hit single for the summer, but nothing has really grabbed me the way a song ought to if it is going to define a season. I have, however, been enjoying Jenny Lewis and the Watson Twins' "Rabbit Fur Coat", and have been giving consideration to their cover of "Handle With Care" and “The Charging Sky”. I'm not sure when I last thought about The Traveling Wilburys-- 1988 was a long time ago. It is interesting to look at what else Dylan was up to in this period. He released "Dylan and the Dead" and "Down in the Groove" that year, and "Oh, Mercy" in '89. Collaborating with the Greatful Dead is one of thise ideas that probably made sense at the time, but the end result is just a Dead album, with worse singing than usual. "Down in the Groove" is not something I've ever felt the urge to listen to a second time, and although "Oh, Mercy" is an improvement, it is likewise not a side that anything particularly positive can be said about. The Wilburys, though, somehow work. Christgau said at the time that, "this is the fun get-together it's billed as--somebody was letting his hair down, that's for sure. My nominee is Dylan, who dominates half the tracks and is the only man here capable of writing a clever lyric on call. Maybe he's a genius after all," and gave it an A-. Listening to Jenny Lewis warble "Handle With Care" it occured to me that one of the reasons the song works may be that everyone who contributed to it (Lynne, Harrison, Petty and Orbison all get co-credit) was trying to write up to Dylan's contribution. I'd be willing to bet that Petty wrote most of it-- the bridge is pretty clearly Orbison, probably with Lynne helping him over the rough spots.

It's funny-- although we tend not to think of Dylan as collaborating, in fact he has frequently written with other people: most of "Desire" was co-written with Jacques Levy; his work with The Band was as a full partnership, and produced a great deal of signature material, and, of course, he often wrote with George Harrison. (I'd say that "If Not For You" is one of the tenderest, sweetest love songs he ever wrote. Interestingly, on his website he is listed as sole author.)

Thursday, August 10, 2006

Here's my terrorist shaving kit. No English Gatorade, but I do have GU.

I'm never more than a few days away from getting on a plane, so naturally that's what I'll be doing Saturday. JetBlue tells me that I've got to pack all liquid-, lotion- and gel-based products, such as shampoo, toothpaste, suntan lotion and contact lens solution in my checked bags. These items will not be allowed on board the aircraft. BoingBoing (where I also got this swell Samuel L. Jackson graphic) reports that right now in the UK they are "prohibiting all hand-luggage on planes, except for a transparent shopping bag carrying a few permitted items: a couple tampons, baby food (if another passenger is forced to taste it first), glasses without cases (deadly, deadly cases!), contact holders (but no cleaning fluid!), keys (but no electric fobs), and your wallet. You're not allowed to bring on magazines (deadly, deadly magazines!) or books, no laptops, no iPods, no oversized watches (!)...."

CNN says, "it's believed the plotters planned to mix a "British version of Gatorade" with a gel-like substance to make an explosive that they would possibly trigger with an MP3 player or cell phone." Or a key fob, apparently.

This is nuts. I can't get on a plane with my gym bag?

To Twelfth Night at Shakespeare in the Park last night. Grant Golden, WBFO's weekend theater critic slammed this production, and singled out Paul Todaro's Malvolio, calling him mis-cast. I don't know that I ever heard Golden so hard on a play, actually, and I am going on record now to say that he was way off base. Twelfth Night is tough to screw up, and this production is actually pretty good-- certainly worth seeing, and absolutely a fine summer evening on the lawn. Todaro, far from wrong for the part, is actually really good in exactly this sort of role, and did well by each of Malvolio's big bits. Malvolio takes some range, I think-- he's really the linchpin of the play, since it is misplaced social aspirations that demonstrate how out of balance the world of the play has become. Even so, he's a likeable character, and although Sir Andrew and Sir Toby's practical joke is the big comic set piece of the show, it wouldn't work if we thought Malvolio was a complete jerk. As full of himself as he is, he is also loyal, and obedient, and even given to an occasional flash of insight. His inflated ego is a flaw, but it is a comic flaw, not a tragic one. Todaro managed to get all of this, and deserves credit for doing so. I also liked Lona Geiser's Viola-- it's important to make Viola sweet, and Geiser plays her sweetly. I'd put her performance, and Leah Russo's Moth, from last month's Love's Labour's Lost, as my top two Shakespeare in the Park performances this season.

Wednesday, August 09, 2006

Gosh, there sure seems like a lot of hyperventilating over Lieberman's going down in flames. Most of it seems like silly-season stuff: "The Democrats are going to regret this"-- that sort of thing. I don't see it. Lieberman, it's true, does not have a lot of lefty credibility, but that's really not the same thing as being a moderate. By Connecticut standards-- really by any Blue State standards-- Lieberman is a conservative. Maybe he's not Zell Miller, but I really can't think of any public stand he's taken that I am down with. I suspect that a lot of what this primary turned on was the war, but Lieberman voted for cloture to forward Samuel Alito's confirmation to the floor (he voted against Alito on the floor-- big deal). He voted for Roberts. He favors capital punishment, even for minors. He favors a lot of the bogus tort reform stuff that would punish people injured by negligence. He supported the "No Child Left Behind" act-- an appalling piece of legislation. The list goes on. The fact that he favors stem cell research (so does Orin Hatch, and Hatch is the Devil), and opposes flag desecration amendments to the Constitution really doesn't make up for much, in my book.

And what's the damage? If he runs as an Independent, he might win, although I'm thinking he probably won't. Will he split the Lamont vote? It seems more likely that he'll split the Republican vote, doesn't it? And even if he did win, don't you think he'd caucus with the Democrats? If the issue is control of the Senate, Connecticut Democrats have behaved quite rationally, I'd say. If Lamont wins the seat, they will have a Democratic senator. If Lieberman pulls it off, they will have an Independent senator who will caucus with the Democrats, and sleep with the Republicans-- just like they've had since 1989.

Tuesday, August 08, 2006

I'm not sure I know how to think about the most recent development concerning the Seneca Nation's downtown Buffalo casino project. The Seneca wanted the city to sell it a two block stretch of Fulton Street. The city wanted an enforceable contract promising 1,000 new jobs, a pledge to not expand the casino beyond the current 9 acres, and provisions pertaining to the hiring of women and minorities. The Seneca said it wouldn't sign, and is now saying that it will build a smaller facility. Details are hazy about how much smaller we're talking about-- I've heard it described as something like a doublewide with some cigarette machines and some slots, but I'm sure they have something bigger than that in mind. Even so, this looks like something approaching a win, and I can't figure out if it was designed that way, or if the city just wandered into it and got lucky. On the one hand, Richard Tobe is certainly smart enough to have engineered this. On the other hand, the Mayor is all over the record as favoring the casino. Why would he scuttle it in this sort of backdoor fashion? Although I yield to few in my admiration for Tobe's intelligence, this seems like a pretty high-risk way to go about busting a deal. The city's demands hardly look like dealbreakers-- what exactly is in there that made the Seneca push away from the table, and how could Tobe have known what the pressure points would be?

And then, of course, there is the burning, bottom-line question: will the city, with the wind at its back now, find a way to screw this up?

Monday, August 07, 2006

Life isn't always the trip to the circus that this weekend was, but it should be. I made it into the office for a bit Saturday, and got the lawn mowed but then it was off to Coles for the IPA Festival. I'd have been fine finishing the day there, but the friend I was with proposed a Bison's game. It was an 11-1 laugher over the Mets' Norfolk Tides, but there are no bad evenings at the ballyard.

Sunday we did a little more work, but were able to make the scene at the Pine Grill Jazz Reunion. I'd checked this event out once before, a couple of years ago, riding my bike over to see a couple of acts, but this time we did it right and did the lawn chair thing. The way to really do it seems to be to set up a base-- a lot of people have pavilion-style tents-- then either get grilling, or start circulating. It really does have the feel of a reunion, with people ambling about, making a circuit of the park, spotting friends, shaking hands, catching up a bit, and moving on. The crowd is nicely dressed, polite and friendly. Up front, by the stage, people were dancing all afternoon, and into the evening.

Musically I'd describe the event as pretty old school for the most part. We came in close to the start of Ghanniyya "“G-G" Green's set, in the Alberta Hunter vein, I suppose. There are probably thousands of singers out there that can do this sort of thing, and watching any of them would be a pleasure. There's always a Hammond B3 act, and this year it was Nathan Lucas. I can't say that this sort of thing is my favorite, but this was good in a almost trance-music sort of way. Ernie Andrews followed, sort of in the mold of Joe Williams, I guess. We were sort of dozing in the heat by this time. There are food stands all around, churches, mostly I think, and we'd had a big old supper. Ribs for me, chicken for A, with four sides. Cole slaw, potato salad, green beans (full of side meat, the green beans were) and mac'n'cheese. We'd brought a bottle of Chianti, and were working on that when Wynard Harper took the stage with his sextet, who started wailing. (Actually, they even played, "Wailin'"). This was knowledgeable crowd, and they were seriously into it. This is the second time I've seen him, the first as a leader, and the music was more in the Art Blakey, hard bop style that I favor than what had gone before. The show finished with everyone on stage jamming to "Kansas City"-- a fine thing to see.

It is always interesting to find myself in a setting where I am an ethnic minority. As we drove home A and I toted up the other white people we'd seen there. The three people sitting next to us. The guy who looks like the comic book store owner from the Simpsons who is at all the Art of Jazz shows. Mary Kunz Goodman and her posse. We got up to about 14, but there may have been more-- the white folks didn't circulate the way everyone else did. There could have been as many as 20, but I don't think many more than that. In the Men's restroom the urinals had signs that said "Out of Order". Three times I went in, and three times a different person said to me, almost verbatium: "Man, what's up with this, when they're having an event like this? If we were in the suburbs these'd be working." I didn't get the sense that they were suggesting that I was from the suburbs-- one's presence at an event like this, seems to be validating. I agreed with the speaker, each time, and I agree now-- this was a big event, and there is no excuse for the park to have been in anything but tip-top shape.

When I am at something like that, I walk away thinking I should get a dashiki and one of those pillbox hats, but I don't imagine I'd be able to carry it off.

Wednesday, August 02, 2006

Lore Sjöberg on this summer's breakfast cereal/movie cross promotions:

Cars It's a pretty boring cereal, but I find it troubling that it's cereal hawked by cartoon beings that don't even eat cereal. That would be like Snap, Crackle and Pop selling motor oil. Which I guess would make them the Pep Boys. I had a point in here somewhere, but it seems to have failed to stay crunchy in milk. (Via BoingBoing.)

Tuesday, August 01, 2006

I had moved the next couple of disks of the "Dick Cavett Show: Rock Icons" up the queue, intending to watch them while A was out of town, but it didn't work out that way. Last night's edition was amusing enough to draw A in for all three shows, plus the Rolling Stones segment at the end. These are, actually, pretty terrific because they allow the adult me to see the 60's that I only vaguely recall. The first show, for example was filmed the day after Woodstock, and started off with the Jefferson Airplane and Joni Mitchell. I kinda like the Airplane/Starship, but I think what I like about the band and what the band liked about itself are pretty much at odds. Soaring vocal harmonies, anthematic songs with strong hooks-- that's what I like. Endless, pointless jams, and dubious politics-- that's what they like. Joni was Joni-- I find it easy to forget how good she was, but she really was. After the Airplane ran through "Volunteers" and Joni had her turn-- including a stirring "Chelsea Morning", everybody sat down on the psychdelically decorated set to rap. It looked like just about every smug, obnoxious show biz hippie anybody ever heard of was there, but wait! Who's this? Why, Stephen Stills and David Crosby, how good of you to drop by! Now we have everyone. Even so-- even with Stills pointing out the mud from Yasgur's farm still on his jeans, there was some moving music here, including a very nice "Four and Twenty".

A better window into the times, I think, was the next show, which started out with Debbie Reynolds, perky and intelligent, although not particularly interesting. Sly and the Family Stone were due up, but there were "technical difficulties" so Cavett brought out Pancho Gonzales-- who seemed to wonder what he was doing there. When Sly and company finally came on the nature of the technical problems they'd been having was immediately apparent: they'd had to wait until Sly had Hoovered up all the blow. Where it really got fun for me was in the final segment, when Oklahoma Senator Fred Harris and his wife, LaDonna, an Indian rights activist came on. Harris was the man I cast my first ever presidential primary vote for, about five years after this interview, and he was everything I could have hoped for in an early political hero-- articulate, thoughtful, and liberal even by the standards of the day. Bad haircut, though.

The David Bowie program features "Young Americans" Bowie, orange haired and looking like-- actually, I'm not going to make that joke, but if you practice law here in the Eighth Judicial District and care, ask me some time. I found the resemblance hilariously distracting.

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