Outside Counsel

Walter Dellinger nails it in Slate: "I woke up at 4 this morning to the realization that I cannot begin to understand how Chief Justice John Roberts and his colleagues could really think that the efforts of the people in Jefferson County, Ky., and Seattle to have white and black students educated together is anything remotely like the system of racial apartheid, subjugation, and servitude practiced in the American South. His concluding sentence, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," equates two such fundamentally different practices that it leaves me stunned."

Last fall I judged a moot court competition that used the Louisville case. At the time my biggest problem was trying to figure out who could be objecting to the extremely reasonable, good faith efforts of the Louisville School Board to preserve racial diversity. Well, now we know. It's the same people who are opposed to reproductive freedom, the same people who think that 150 years of antitrust jurisprudence is so much fishwrap, the same people who reckon that unchecked executive authority is the hallmark of democracy. George Bush hates my America, and just as he promised he has appointed Supreme Court justices who feel the same way.

Caught some of Charley Rose interviewing Paul Simon last night, a good forum for him, I think. Unlike Dylan, Simon is eager to explain, and Rose is an intelligent listener. Listening to Simon sing "Slip Sliding Away" I thought a little about what it is that he writes about, and what it was that he was trying to explain, and it seemed to me that for all that his writing is incredibly personal and confessional, his presentation works to distance it. Having Artie around to sing harmonies, or adding world beats, or whatever compositional gimmick he favors in any given song diverts attention from the fact that his subject is his own emotional life, and its scarring over. In a way, the discussion he had with Rose-- and every other interview I've ever seen him do-- was more of the same, an intellectual's over-intellectualizing on an emotional question. For all that his songs are about what a sensitive guy he is, what I think I like best about him is that it is pretty clear that he is probably tough to live with.

It's called "The Brooklyn Bounce", although it is not unique to Kings County. You file a motion with the clerk's office, perhaps a time-sensitive motion, and it comes winging back to you. The clerk's office has found some sort of technical deficiency, and rejected your filing.

My most recent brush with the Bounce found me talking on the phone with someone from the clerk's office. Could he point me to the provision in the Court Rules, or the CPLR, or in the local rules for Kings County where I could find the basis for my filing being rejected? Well, no, as it happens, it is not a rule that is written down anywhere, more of a guideline, actually. Well, if that is the case, would he agree that a rule that can't be found anywhere is inconsistent with the principles of transparency and fairness under which the Courts in our great country are supposed to operate? Well, it isn't actually a rule, per se.... Well, if it isn't a rule, then isn't rejecting my filing an arbitrary action? If it can't be justified by a rule that I can read somewhere, how do I tell my client that it is getting due process? Doesn't rejecting a filing based on a guideline that nobody has seen suggest that there is a denial of equal protection going on? You do accept some filings, after all-- I've seen the motion calendar.

It was at this point that he broke down. What do you want me to do, he asked. I want you to take my motion, please, I told him, politely. He instructed me to re-file, and send it to him directly, which I did.

Yesterday I got a call from someone else in the clerk's office. "Your motion papers say that you are attorney for the defendant Market Arcade Complex," he said, "But that party doesn't appear in the caption."

I thought about it for a second, and realized that he was referencing the information below the signature line on my Notice-- the part with my name, the firm name under that and our address under that. "Market Arcade Complex is part of my address," I explained. We represent the two defendants that are in the caption. Look again-- 'Defendants' is plural, not possessive, or plural possessive. There's no apostrophe. There is no comma after "'Defendants', either." Long silence, then, "Okay." A half hour latter he called me back. "Mr. Altreuter? I cleared it up-- your motion is okay."

I mention it because for the last 24 hours I've been shaking my head over the fact that there are people in the Kings County Clerk's office who are scrutinizing addresses looking for a basis to bounce motions. Words fail me.

I suppose a community-wide shared literary experience is an increasingly rare thing. Once, no doubt, it was more common for a number of people to all read the same book at the same time, but it seems more unusual these days. I'm guessing it was about 30 years ago my cousin walked into an employment office waiting room full of about a dozen young women about her age. She reported, "And every single one of those chicks was reading "Sybil" On the one hand, those chicks were sharing a literary experience, I suppose, but on the other, the event was sufficiently unusual as to provoke comic comment.

You could say that this experience has been replaced by television-- certainly the flurry of "Sopranos" references following the final episode of that program argues that way-- but it is just as true that TiVo and DVDs of entire seasons argue against tv as a shared cultural bond. I would say that there are still books that achieve this-- a little later this summer there'll be enough Harry Potter out there to make my case. There are book clubs, of course, but that's a smaller circle than what I have in mind. Something that I first became aware of when EGA started her undergraduate career is the blending of the "What if everybody read the same book" programs that you see here and there into the notion of assigned reading. EGA's entering class at Smith all read Ian McEwan's "Atonement". (At her commencement weekend, as we were visiting a used bookshop, she wryly noted that there were always plenty of copies of "Atonement" available in Northampton.) We all read "Atonement", too, and I expect we will do likewise with CLA's assignment from Geneseo, "Into the Wild", by Jon Krakauer. I finished it today, actually, and found it an interesting, provocative choice for a incoming freshman class. Krakauer starts by reconstructing an account of how a middle-class white kid dropped out from society and wandered into the Alaskan woods, where he starved to death-- an interesting story, and a heck of a good bit of reporting. That sort of clear-eyed reporting about "counter-cultural" youth has been done before-- Robert Christgau, before he turned to criticism exclusively, did a great "New Journalism" piece about a woman who starved herself to death by following a strict macrobiotic diet. Krakauer does something different with his story, though. First he ties the idea of wanting to escape into the wild to other examples of people who have wandered out of civilization, only to be found dead, or not at all-- historical examples from the early and mid-Twentieth Century. This sort of myth-making could have just be annoying, but then he takes the whole thing a step further, and does something that I think was very risky. Smack dab in the middle of the book he starts relating a story about how when he was just about the same age, he did something very similar. This could have been a disaster, but he pulls it off, and by doing this manages to take the whole thing into a completely different place.

About ten years or so ago a group of recent UB Law grads decided to walk across the ice on Lake Erie over to Canada. They didn't make it, and drowned, and the whole thing was very sad, the way it is when young people die. These particular people happened to be friends of one of our associates at the time, and when I learned this I told her, "What's awful about it is that it is exactly the sort of thing I could imagine my friends and me doing." It was a rare example of me saying the right thing, and it was probably an accident, but I meant it. My colleague later told me, "You were the only one that didn't just say that they had been stupid." Sure, it was stupid, but that wasn't the whole point Although I was never so stupid as to wander off into the wilderness without a map, there were many times when I wandered into something without a clue. The one thing we promise ourselves when we are young, when we are kids, is that we won't forget what it felt like-- but we always do. In a way, that's a good thing. If we kept thinking the way we did when we were children, we would never understand that our perceived indestructibility is an illusion created out of our lack of experience. The race would have died out long ago if we kept thinking the way we did in our twenties. Krakauer gets this, and reminds us about it.

Andrew Loog Oldham on Jack Nitzsche. Fascinating stuff. In passing Oldham mentions Ian Stewart-- a guy who is mostly mentioned only in passing, now that I think of it. There is probably an amusing article to be written comparing the membership structure of rock bands to that of law firms. Mick and Keith would be equity partners, Charley Watts and Bill Wyman, would, I suppose, occupy the next tier. (Actually, Wyman, having retired, presumably to take photographs of girls' legs, is no longer on the letterhead.) And Stewart? He's "Of Counsel" a confusing title that I have never really understood. A lot of bands-- Jethro Tull and The Kinks come to mind, seem to operate along the lines of the partner/associate structure, with contract players sitting in where once there were musicians who were "members" of the band.

It's been a mad whirl of graduations the past couple of days, with CLA wrapping up her high school career, and LCA completing 8th Grade just in time to move into her sister's place. City Honors did a nice job with both ceremonies, I thought, but back to back like that is exhausting.

I have no problem at all with Salman Rushdie's knighthood-- he is as good a writer as there is working in the UK at the moment, and if it offends Cat Stevens and his co-religionists, that's just a bonus, as far as I'm concerned. Also, Rushdie's wife is on my favorite teevee show. So I say, here's to you, Sir Salman. What I find odd is that Joe Cocker is on the honors list too. Isn't that kinda scraping the bottom of the barrel? Actually, isn't the sound of scraping the bottom of the barrel sort of what Joe Cocker sounds like? Sing it with me: "What would you do if I sang you a tune...."

Because it is America, everything is always about race, even if only a little bit. I had thought that the decision denying Scooter Libby's motion to stay his sentence pending appeal was phrased rather strongly, as was the order granting leave to file an expedited appeal: "It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it."

Come to find out that Judge Walton is African-American, and may have a somewhat better insight into sentencing practices and their disproportionate effect on the minority community than your run-of-the-mill federal court judge because of his background. Maybe I just wasn't paying attention, but it surprises me a little that I didn't know this about the judge until just now.

The major event of the weekend-- perhaps of the whole entire year if the amount of emotional energy devoted to it is any gauge, was CLA's prom. I think I speak for everyone when I say that high school can't end soon enough. On the other hand, don't they look great? More at my flickr page.

I've been a fan of Ron Rosenbaum since approximately forever, but I think the blogging format is not the genre he should be mining. Actually, he doesn't seem to be at his best working on-line in general: his Slate things have been pretty weak, too-- not at all up to the work he generally produced for the New York Observer.

Back when blogging was still new-ish, people made fun of sites that droned on about the mundane details of everyday life. "I got up, I ate an egg". Rosenbaum, however, finds the fact that he can record this sort of minutia as one of the form's great strengths. For the past few posts he has been whining about 2% milk at his neighborhood Starbucks, and I am afraid that if this keeps up he is liable to set blogging back five years.

In a way, it is not surprising. He has devoted column space that could have been usefully expended on Dylanology or Shakespeare to his cat, and in that sense one could say that he has always been inclined towards the worst tropisms of the blogging world. Still, I had hoped for something better.

Last night was LCA's closing demonstration. She shone, of course.

LCA's closing demostration was last night. She shone, of course.

Stuck on the tarmac at JFK the other night, I was scrolling around the JetBlue teevee when I came across "Eddie and the Cruisers". I'd never seen it, but it has Ellen Barkin, and the ads cracked me up, back in the day. ("Tell him Eddie and the Cruisers are here.")

I wouldn't go out of my way to watch it again, but Ellen Barkin is always a pleasure, even in something like this, which features her being earnest, rather than showing off a lot of leg; and the music was a respectable example of that sort of thing. The story, told in a series of flashbacks, is about a singer and his band who enjoyed a moment of success in 1963, then flamed out. The singer is thought to have died when his car went off a bridge on the night the band completed its second album. Titled "A Season in Hell", the new album is a visionary work, ahead of its time. Eddie wasn't satisfied with fluff like "Betty Lou's Got a New Pair of Shoes"-- he'd been reading Rimbaud, and aspired to something grand.

It could be perfectly awful, and a lot of it is, but some of it is pretty good. It helps, somewhat, that the music the Cruisers play, back in 1963, sounds quite a bit like the music Bruce Springsteen was playing around 1983, when the movie was released. That was part of the film's gimmick, actually-- the songs were done by John Cafferty and the Beaver Brown Band, journeymen that I could swear I remember from the old Oak Beach Inn. (If it wasn't them it was someone like them, let's put it that way.) It is a funny sort of thing to think about, in a way. When Jon Landau wrote "I saw rock and roll future and its name is Bruce Springsteen," back in '74 he couldn't have been more wrong, but don't tell that to "Eddie and the Cruisers". The fact is that Bruce was never the future of anything, and has always really been at his best, both lyrically and musically, when he works with nostalgia. Springsteen was an agglomeration of influences that emerged at a time when the R&B roots of rock had gone missing. The effect was a tonic to anyone who had grown exhausted trying to find rock with some lilt and some swing, but really it was nothing new, and really he was working a mine that was mostly played out. Sure, there were still nuggets to be picked up there, but consider the question of Springsteen's influence. Who followed? Thin Lizzy. Melissa Etheridge. Meatloaf. John Cafferty and the Beaver Brown Band. I picked up a copy of Southside Johnny and the Asbury Jukes' Greatest Hits a month or so ago-- you could say that Johnny fits into that category, I suppose, but he is really doing mostly Springsteen stuff, or stuff by Springsteen's guitarist, leading disciple Steve Van Zandt. In a funny way, what "Eddie and the Cruisers" really establishes is that Springsteen was, far from the future of rock'n'roll, actually rock'n'roll circa 1964. That's certainly not a bad thing to be, but it doesn't say much for the ongoing vitality of this music.

Once upon a time The Boss was a New Dylan, maybe the most successful of them all. Now, of course, he has forged his own identity, but it says something that he now shares with Dylan the fact that for years now new releases have been reviewed with critics saying that the new side is his best since.... Usually the sentence ends with either "Darkness on the Edge of Town" (released in 1978, kids) or "Nebraska" (1982). (Does anybody ever play anything off that besides "Atlantic City"?) Sometimes it's "Born in the USA" (1984). (Because we were good and backed up at JFK the other night, I watched Conan O'Brian, too, and got to see Max Weinberg in action-- has there ever been a stiffer drummer? You could make a pretty good case for Weinberg's joining E Street as the begining of the end.) I'd like to think that the latest new Springsteen side might be something worth listening to, but we are at a place now where critics' assessments of Bruce cannot generally be trusted. The great lost Eddie and the Cruisers album-- the Maguffin of the movie, turns out to sound kinda like "Tunnel of Love". I'm not in a hurry to get burned like that again.

Christopher Hitchens gets it almost exactly right, I think, on the Paris Hilton sentencing debacle, but then screws it up by trying to draw a comparison with Scooter Libby. There is a difference between the trivial butterfly the California legal system is trying to break on the wheel and Libby, one of the architects of a foreign policy so catastrophic that it'll be a generation before the US is in a position to assert any moral authority on a consistent basis. In a sense both offenders took the legal process too lightly-- Paris shouldn't have been driving with a suspended license, and Scooter shouldn't have lied to FBI agents. The distinction is that Libby's offense was to the process. He was contemptuous of the government he was serving, a government of laws, not of men. Paris was just foolish, which actually is her job.

As I said earlier on the Libby sentence, in general it seems to me that the sentences that get handed out in US courts are unduly harsh. From time to time I sit it court, waiting for my turn, and listen to a sentencing. The calculations that are involved-- particularly on the federal level-- are harder than Chinese Arithmetic. The way it goes is the lawyers make their arguments, citing the circumstances of the crime, then whatever aggravating or mitigating circumstances there might be. These are often things that didn't come out during trial, and letters to the court about what a swell person the defendant is are often referenced. When that's done, the judge lets the ball drop. Sometimes its a more in sorrow sort of thing, but lots of times it seems like it's all the judge can do to keep from smacking his lips. I've seen a lot of heavy time get handed down, and more often than not the guy on the receiving end is a young black man, who will be a middle aged black man when he is next seen. I feel worse for those guys than I do for either Paris or Scooter, both of whom are getting off pretty light in the greater scheme of things.

Syracuse Friday, Pittsburgh Sunday, and I am writing this in New York waiting for my flight home. (I am being routed through Boston, but airports don't count.) Billy Pilgrim was unstuck in time; I have mused more than once that I am unstuck in space. This in unusual in our glamor profession-- litigators tend to be very local. We were in Pittsburgh, a city where I had never been, to deliver EGA to Carnegie-Mellon University where she is taking a program in logic and epistemology. I had no real mental picture of CMU before this, but it is a pretty fancy campus, and it is a nice opportunity for EGA. As rootless as I feel, like a ghost in a haunted house I am tied to the Empire State-- I am not admitted anywhere else, and wouldn't feel comfortable in a jurisdiction where I couldn't stand up in court. EGA, on the other hand, is liable to be unstuck in a much more meaningful way-- her baggage all fits under her hat, and there is little that ties an academic down until the right spot is lighted upon. We already anticipate that she will spend a stretch in the Antipodes, and, of course, she has already traveled widely in the Orient, like someone in a Graham Green novel.

In general, I think that the sentencing practices that we follow in the US are abusive, and that terms are way, way too long. And I want to be careful in thinking about Scooter Libby and his pending 30 month stretch, because schadenfreude is such an ugly emotion. That said, however, there are a number of pretty good arguments for the severity of this sentence. One good one is that, as a lawyer, Libby owed the whole process-- from investigation through trial-- greater respect than he showed. He lied to the investigators, he lied to the Grand Jury, and then he mounted a cynical defense that amounted to a prayer for jury nullification. That's pretty despicable, as is the fact that his conduct encouraged others to withhold the truth. (It's too bad that Judith Miller isn't going with him. More jail time for her would still be less than she deserves.)

Fine list of war criminals he found to vouch for him, too: Rumsfeld, Kissinger, John Bolton, Paul Wolfowitz-- doesn't this guy know any rabbis or ministers? I also don't put much truck in the "public humiliation" argument-- if anything, I daresay he is a hero to exactly the sorts of cats that wrote him those nice letters. True enough, he is looking at disbarment (good, but not a sure thing). It is simply not true that he'll never work in Washington again-- Elliot Abrams has managed, and there is no question that Scooter will find a place in some think-tank, scribbling op-eds for the Wall Street Journal.And let's keep in mind that we aren't really talking about 30 months-- when good time is counted in, really it will come in well under two years I think. I don't thing the stretch is going to improve him in any way, and it is hard to see how the damage he has done to the country is helped any, but maybe the prospect of 30 months in stir will have a deterrent effect on other Yale/Columbia Law grads who are tempted to flip off a federal investigation. It doesn't seem to work for the inner city high school dropouts Libby and his pals are so fond of sending off for twenty year terms, but maybe it'll have an effect on more cerebral types.

Is he being made a fall guy for the war? Not if all he's getting is 30 months, he isn't.

The 25 Best Movies You've Never Seen. I've seen four, actually. Just watched Buckaroo Banzai again a couple of weeks ago. I was going to write about it-- something along the lines of, "How could a movie with this much Ellen Barkin be so not hot?"

Matt Taibbi's profile of Rudy Giuliani pretty much nails the guy: "New Yorkers had come to think of him as an ambition-sick meanie whose personal scandals were truly wearying to think about." The funny thing is that since this piece is in Rolling Stone we pretty much know that the rest of America doesn't think this way. Really, when was the last time that Rolling Stone called it right? You can't deny the insight: going back to Hunter Thompson and Tim Crouse the magazine has gotten it consistently right, while more mainstream slicks like Newsweek and its ilk have served up piffle that has suggested, inter alia, notions like "George W. Bush and Al Gore are essentially interchangeable". Count on it, if Giuliani gets the nomination you won't be seeing insights like Taibbi's reported anywhere in the New York Times. Right now I doubt that Rudy will prevail-- I am inclined to agree with Tom Negrino: "Republicans are royalists at heart, and they always nominate the guy whose turn it is. McCain's having a rough patch now, but as people and donors get a clearer view of Rudy and Mitt's flaws, they'll anoint McCain."

By the way, we caught a little of the Democratic candidates debate last night. Hillary seemed to be coming off quite well-- warm and funny, serious and smart. I liked Mike Gravel, too, because I always like the guy who is most hilariously doomed. Richardson has seemed like a good concept for a while, but I hadn't seen him in action-- turns out his style is simply awful. He has no shot. Biden is a moron, but we knew that. Obama and Edwards are both personally appealing, but need work. If I were handicapping based on what I saw I'd say it is Senator Clinton's to lose, but we aren't even at the Wood Memorial stage yet.

Bob Dylan is actually responsible for every hit song of the past 35 years. "'The Macarena'? I'm sorry about that." (Via Boing Boing.)