Outside Counsel

I've never heard of Dr. Richard Beeman before, but "A Republic, If You Can Keep It" is a mighty fine piece of writing.

"Such has been our success in building a powerful and cohesive democratic nation-state in post-Civil War America that most Americans today assume that principles of democracy and national harmony somehow naturally go hand-in-hand. But as we look around the rest of the world in the post-Soviet era, we find ample evidence that democratic revolutions do not inevitably lead to national harmony or universal justice. We see that the expression of the "popular will" can create a cacophony of discordant voices, leaving many baffled about the true meaning of majority rule. In far too many places around the world today, the expression of the "popular will" is nothing more than the unleashing of primordial forces of tribal and religious identity which further confound the goal of building stable and consensual governments.

As we look at the state of our federal union 211 years after the Founders completed their work, there is cause for satisfaction that we have avoided many of the plagues afflicting so many other societies, but this is hardly cause for complacency. To be sure, the US Constitution itself has not only survived the crises confronting it in the past, but in so doing, it has in itself become our nation's most powerful symbol of unity--a far preferable alternative to a monarch or a national religion, the institutions on which most nations around the world have relied. Moreover, our Constitution is a stronger, better document than it was when it initially emerged from the Philadelphia Convention. Through the amendment process (in particular, through the 13th, 14th, 15th and 19th Amendments), it has become the protector of the rights of all the people, not just some of the people."
(Via Firedoglake.)

My parents got me Cormac McCarthy's The Road for Christmas, and I'm about two-thirds through it. It's short, and I read the first half in one sitting, but it is also the kind of book where the characters find a rusty can of pears and you just know that something that good can only mean that something really horrible is about to happen. It's like Stephen King meets Samuel Beckett, only without the laughs. And now Oprah says everyone has to read it.

A few years back Just Buffalo and WBFO co-sponsored "What if Everybody in Buffalo Read the Same Book?" and had us all read "A Lesson Before Dying". It was quite a scene. You'd be at Delaware Park watching your kid play soccer, and next to you there'd be someone sobbing, reading the damn thing. I can see something similar happening with this.

55 Good Things About European Union.

Over the weekend someone said to me, "Hillary is the only Democrat out there that could lose this thing." I think that might be overstating it just a tad-- but it is probably true that she is the only one among the top three or four that could lose it-- and that raises an interesting question. How did the Republicans maneuver themselves into this place? You have to go all the way back to Eisenhower/Stevenson to get to an election without an incumbent-- and the present Republican slate offers nothing like the array of prominent choices available to the GOP in 1952. It has seemed that each piece of the Bush White House was designed to further a particular agenda-- Cheney is there to increase the power of the Executive Branch, to compensate for the erosion of the Imperial Presidency he perceived Nixon's downfall as having caused (a canard, I think); Rumsfeld was going to transform the military; and Rove was going to bring about a permanent majority for the party. (I would argue that one of the ways Rove set about this was to turn DOJ into a vehicle for appeasing and expanding the base, first with the Mad Parson, and then with Gonzales.) It seems odd that they did not plan for succession. Cheney knew he was the right guy for the job six years ago, after conducting a search in a telephone booth. Did he plan to step aside after the first term? Confronted with a change of circumstances they couldn't have anticipated, they must have thought that tinkering with the ticket might be fatal-- and it is possible that this was a correct assessment. (It is also possible that they figured Bush wasn't capable of running the show himself.) It leaves the Republicans in a bad spot, though. The minority status in Congress is not as dire for them as it might be-- the Democrats majority is a precarious thing-- but looking over the prospective candidates for both parties what I see is that the Democrats have a number of attractive choices and the Republicans have a slate full of compromises. I don't understand how they could have let this happen, and it makes me nervous. Could there be a dark horse they are holding in reserve? Did they reckon that Hillary was such an inevitability that the hand-off would occur without the need for sophisticated planing? I think it unlikely that Cheney and Rove would pick McCain as successor. Who did they have in mind?

Although dessert Saturday was probably the best thing I ate all weekend, I'm pretty happy about the pulled pork I barbecued Sunday. The smoker is an interesting toy: basically it is a tray for the fuel, a chimney and a lid, and I can see that there is a great deal of variation that one can achieve with the simple materials involved in the process. For example, it seems to me that real charcoal, rather than briquettes, may be the way to go. Briquettes are easy to work with, but they burn quicker (and probably hotter) than real charcoal. I soaked the hickory chunks I used yesterday-- not long, maybe an hour-- and as a result I got a very thick, heavy smoke. That's a fine thing, but I may want to try for a subtler taste on some things. I smoked a pork tenderloin and some Italian sausage I had on hand. The tenderloin, which we pulled, came out well, but I will want to be using less lean cuts in the future. The sausage worked out really well, though-- the combination of smoky and spicy was markedly different than the way they taste grilled, and would be great with baked beans.

I think I'll try salmon next weekend.

I can't recall if I've written about it here, or if I just talked about it in class, but there's an interesting issue that's been brewing across the state recently, and now the Fourth Department has weighed in. It seems that it has been the practice in medical malpractice cases to request an authorization permitting defense counsel to interview the plaintiff's treating physicians. In instances where plaintiff's counsel won't furnish the authorization, courts have ordered it.

This is different from seeking to depose a doctor as a non-party witness: the sought-after interviews were conducted ex parte. (For you lawyers outside of New York, this is also different from the usual expert deposition, too. We don't do those here in the Empire State.)

Kish v. Graham (2007 NY Slip Op 02376) says "there are compelling reasons for prohibiting such interviews," including the fact that there are no provisions in the law permitting such informal disclosure; the existence of formal discovery procedures to accomplish this sort of disclosure; and privilege concerns.

I am particularly intrigued by the Court's observation that, "[W]e can conceive of no reason for allowing a practice that concededly is not permitted prior to the filing of a note of issue to be permitted after the note of issue is filed". Could this signal the dawn of a new era in which notes of issue have some meaning?

I also think it is interesting that Kish is a 3-2 decision. (Thanks to New York Civil Law for the cite.)

Bill Parcells is credited with saying, "Once you have the reputation as being an early riser, you can sleep until noon," (although I have seen it attributed to others). I felt a little like that at oral argument (I'll say recently-- I don't want to get pinned down on a date, in case anyone is looking in. Except you, Internet). I walked away with pretty much as much as I could have reasonably expected, and I mostly accomplished it by not talking too much. My position was pretty weak, but it received surprising deference, at least in part due to the understated way I had set it out in my papers. I'd really had no choice-- the law was pretty wobbly on my side of the argument, and the facts were even worse. Given my history in the Part, shutting up seemed the smartest thing to do, particularly coming at the end of the calendar as we did. It was already clear that the judge was more than prepared to help anyone who wanted to provoke him with the hole they were digging, and, my adversary had thoughtfully brought a shovel. Staying tight-lipped under those circumstances is harder --for me, at least-- than you might think, and may be one of the most useful skills I have acquired in recent years.

I love the idea of Patti Smith doing a covers album, and I love the first thing I've heard from it: download "Gimme Shelter". Some interesting choices here.

Nine countries hold 60 percent of the world’s freshwater resources. They are Brazil, Russia, Canada, Indonesia, China, Colombia, the United States, Peru, and India.

Buffalo Spree's Best of Buffalo ballot. What I like about the way Spree approaches this is that the categories are more diverse than in other, similar surveys. Also, as a Spree contributor, I like that I have input.

A quick visit from EGA, who is using the remainder of her Spring break to visit a couple of grad schools. It was interesting to watch as she and CLA vibrated at different frequencies. The anxiety level for both is pretty high, although the reality is that what they are each dealing with are attractive choices. They are stressing out over the desert menu.

You'd think we'd be somewhat used to this, but the last time, when EGA was applying to undergrad institutions there was none of it. She applied early decision to one school only, got in, and that was that. Although there was some minor stress about whether she'd made the correct choice (she had) there was none of this. It has almost been like living in an apiary, a constant, low level hum of unease emanating from them both.

The Ordering Game. "The goal of the game was to order in one go, and so comprehensively that the server would not be forced to ask for even a single clarification. As such, every variable had to be examined, every corner of the menu explored, lest something—a complimentary glass of juice on a pre-set breakfast menu, for instance—go unnoticed."

My personal rule is that nobody at a table should order the same thing-- although in some settings I'll refine this so that only A and I are so limited. It depends on how receptive to my neurosis the other people we are with should be expected to be. I like the Ordering Game, though, and will be integrating (grating being the key word) it into my set of quirks. Something like the Ordering game is already a part of my set of rules for fast food-- it's McDonald's, for crissake. Why do you need to ponder the menu? Presumably the only reason we are here is because of a specific craving! In a fast food setting everyone can order the same thing-- because I am flexible.

Clearing off my desk, I found some notes from a conference I went to last year. I'm sure there was a lot of substance beyond what I wrote, but what I wrote were some turns of phrase that impressed me at the time as being particularly euphonious. These included, "He called because he needed some help getting out of the grease"; "We've had some drivers cuffed and stuffed"; and, less colloquially, "A plan is a common point for deviation."

All useful. Maybe I'll remember to use them sometime.

Polite Dissent features medical reviews of comic books. I'm a Silver Age fan, so I don't get a lot of the references to the newer stuff, but I love the analysis of Superman’s Girlfriend Lois Lane that is a regular feature. Brilliant stuff.

Gosh, it's Pi Day and I almost missed it!

There is a discussion in the office. One lawyer here puts "Personal and Confidential" on the envelopes of correspondence to clients. Another lawyer objects to this practice. "I've never seen a letter that came marked like that that had good news," the latter says. "Just seeing the letter in the mail bin sends a chill down my back." The lawyer who likes 'Personal and Confidential' rebuts: "I think it signals that the letter is important, and that it should only be opened by the person it is addressed to." "The mere fact that it is a lawyer letter accomplishes that," retorts Lawyer B. "Our letterhead doesn't say,'Attorneys at Law', Lawyer A responds, "It just says 'Altreuter Berlin'. "It is an inducement-- someone seeing 'Personal and Confidential' who might be inclined to open someone else's mail would be more inclined to open that letter."

And on. Finally I was asked to put the question to the readers of Outside Counsel. Kindly share your thoughts in the comments section so that we can move on and get some work done.

Worldmapper. I love this sort of thing.

"Dylan Hears A Who". Dr. Seuss Zimmerman-style. Does it work? Damn right it works. (Via Boing Boing.)

I'd go back to LA just to go back to Father's Office. One of the best burgers I have ever had,(dry-aged sirloin topped with applewood-smoked bacon compote, Maytag blue and gruyere cheeses, caramelized onions, and arugula on a French roll) and a fantastic selection of IPAs (Pliny the Elder!).

I'd be sure to go back to El Cholo, too. I liked my crabmeat enchiladas, but green corn tamales are coming into season, and that might make the trip worthwhile all by itself.

In Los Angeles for the marathon (marathon posts will be at the KRAC blog). I find myself falling for this seductive Eden-- could there be a more perfect embodiment of the American Dream fulfilled? What kind of cynical Puritan could resist this place? Sure it is as plastic as a Jarvik heart. Of course its idea of history extends no further back than Mary Pickford. Naturally the only way it would be possible to live comfortably here would be to have more money than the Pope and Bob Dylan combined-- (actually, we drove by Dylan's house last night, so I suppose you just need Bob Dylan money) but it also holds out the allure of attaining all that, and eternal youth as well. What a nutty town.

Our host is a old friend of Jim's wife, an itinerant playwrite who teaches religion at an exclusive Catholic high school for girls. He lives in the guest cottage behind a house in Brentwood around the corner from where O.J. Simpson and Kato Kaylan shared a simliar arrangement. We've seen the footprints at Grauman's Chinese Theater and loosed up this morning with a 30 minute run. I think I will subsist on fruit while I'm here-- it just seems like the right thing to eat when in Eden.