Outside Counsel

I'm late in getting to it, but back in June The New York Court of Appeals held, in Reynolds v. Amchem Products(pdf file) that when a High-Low agreement is made between the plaintiff and a party who remains in the action, the defendants who are not a party to the agreement must be advised of both the agreement and its terms. I've been on the wrong end of this sort of thing, and I don't think the decision goes far enough, frankly. The opinion, by Judge Pigott, applies only in circumstances when the agreeing defendant remains a party, not to circumstances where the agreeing party is carved out of the action by way of an agreement to arbitrate, or some similar arrangement.

I am coming to think that, on the civil side at least, there are a lot of exclusionary rules that should be rethought. Insurance, for example. Time was, if you were picking a jury and the word was even mentioned-- outside of the Judiciary Law permitted question about a prospective juror or family member being employed by or a shareholder in any company that issues casualty insurance-- was grounds for a mistrial. People got mistrials if insurance was inadvertently mentioned during the proof. Things have loosened up somewhat, but not to the extent that they should-- juries believe that there is insurance out there, and, I would submit, act accordingly. Why not inform them instead? If nothing else, it would allow a jury to act according to what exists or doesn't exist, rather than on assumptions that remain unexpressed. It probably makes a lot of sense to relax the hearsay rules, too. People are sophisticated enough to parse this sort of thing out, I think. Arbitrators are, so why wouldn't lay people be?

Philip Roth was being interviewed on All Things Considered last night, and then I came across this list, by Robert Christgau, of 40 "essential" albums from 1967. (The Consumer Guide didn't get under way until 1969, so the list is revisionist history.) Listening to Roth, it occured to me that he is to Saul Bellow as the Kinks are to the Beatles. (This makes Norman Mailer the Stones, I think, and Thomas Pynchon is either Hendrix or Cream.)

More on businesses that operate outside of copyright: couture and databases. The latter is particularly interesting because we have a basis for comparing the effect of copyright across legal systems.

In a lot of ways the Phil Spector trial has been a disappointment. It was shaping up brilliantly, especially when Bruce Cutler came on board, the real-life Tom Hagen. But Cutler never really got into gear, and the proof never really reached OJ levels of bizarre. Maybe a Kato Kaelin figure would have helped-- Phil's chauffeur didn't really add the necessary frisson. Of course, you might argue that the mere fact that Spector may very well Do Do Ron Walk makes it weird enough, but I'm not buying it-- L.A. juries apparently don't convict much. It's a twisted enough story, no matter how it resolves-- he's been batshit crazy for a long, long time, but he is also indisputably one of the principle auteur's of one of America's principle art forms, a formal and technical innovator who influenced everyone who followed him. It is hard to know why, exactly, the Spector trial hasn't resonated in the public mind the way the OJ trial did, and continues to. You can't really say that it is because Spector had largely disappeared from our cultural consciousness the way he had disappeared from the public view. Even if he was not particularly visible in resent years, holed up in his Alhambra castle (Chuck Taggert reported that a friend told him, "in the music business it seems more people were surprised to learn that Phil Spector lived in Alhambra than that he might have shot someone...") you'd have to say that Spector had a higher profile in the national consciousness than the Juice, I think. Simpson was pretty big, once, but his show biz career had been circling the drain for quite a while before the Bronco ride. It isn't even a question of race, it seems to me-- although we are talking about white-on-white violence when we consider the death of Lana Clarkson, Spector has a history that evokes American racial issues, both because of the fact that he was married to Ronnie Spector, and worked with so many prominent African-American performers; and because he came to prominence working in a black-defined genre.

This is not a story about Chandler's LA, or James Ellroy's either, and one of the reasons is that neither Chandler nor Ellroy knew or know enough about the Bronx that Spector came from to really get inside the madness that he has aged into. If Tom Wolfe still wrote non-fiction he could do it, maybe-- Wolfe's early profile of Spector is still mighty fine journalism, even though at least one critic has knocked it for "failing to take critical aspects of Spector's boyhood into account and presenting, simply, a wild and crazy guy." I would dispute that, and in any event argue that Wolfe is the only writer I've ever read that understood the Bronx. The Spector story blends all of America-- Jewish kid from the Bronx; the odd sense displacement that defines LA; our national music; race, of course, but also our youth-obsession; and the mingled sense of yearning and entitlement that seems to define the American character in the last part or the 20th Century. It ends in murder because it needed a tabloid ending, I guess. It's too bad that the trial hasn't provided a better narrative arc, because the Spector story is about "as American as cherry pie." Maybe the trial didn't have to get weird because Phil Spector's whole life has always been weird enough.

It'd be fun to visit the Court of Arbitration for Sport, to see all the kangaroos. I have no idea if Landis was doping or not, but the outcome here, for all that the proceeding was a circus, impresses me as plain wrong. When the panel finds that there are chain of custody problems and testing irregularities that should mean that the athlete wins. And there is something fishy about the fact that the USADA is 35-0 in cases it has brought before arbitration panels since it was founded in 2000.

Probably everyone who is interested already knows that EGA has started a new blog about her grad school adventures, but if you are reading this and don't know it, then the chances are that you would enjoy her site too. It is called "Foolish Consistency", and when she told me about it she said, "It will probably be a lot about food." So far it has been, and also about the Cartesian requirement, Kant's "Critique of Pure Reason", and the perfect square of a perfect square.

The last time I tried this toy was in February of 04. I've added eight states since then, mostly by violating my rule about Red States.

Create your own personalized map of the USA
On the other hand, I haven't made much progress towards appearing in each ot the 62 counties in New York State, so I need to get on that. I'd like to try focusing on the Sixth Judicial District-- I've got Broome and Tioga, but I need Tompkins, Chenango Otsego, Delaware, Madison, Cortland, Schuyler and Chemung. Not an unreasonable goal for the next year.

The Geneseo Lady Warthogs schedule can be found here.

There are many reasons to think that the Scotts have got it mostly right when it comes to lawyering. Every defense lawyer has mentioned the old Scottish verdict of "Not Proved" in a summation at some point. Their judicial selection process is superior: according to Benjamin Franklin, "the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible." Then there is the airy, breezy freedom that you can only get by going to court in a kilt. And, of course, there is the feeling of pride that comes from winning the Lawyers' Rugby World Cup. (Thanks to Jim for the link.)

I was number 37 to vote at about 8:10 this morning-- there was a person in the booth in front of me, and two behind me when I left. Of course, the Delaware District is a poor bellwether for these things, but I anticipate a light turnout, despite the fair weather. It was slow moving, even though there weren't a lot of people, because the ballot includes delegates to the Democratic Judicial Nominating Committee for the Eighth Judicial District. Notwithstanding the fact that New York's present judicial selection system has been held unconstitutional, we don't have an alternative system in place, so we need to go through this charade one more time. On a list of twenty or so, you vote for nine. I counted one person who I believe is qualified to pick judges,(Hi Cathy!) and two who I think will be capable. The remainder are a motley mix. I like our incumbent Assemblyman-- for a New York State legislator he is pretty independent, and I believe he is hard-working. I do not see that he is particularly qualified to pick judges, and I resent the fact that he is going to be part of the process on the basis of the fact that he is an elected Democrat with high name recognition. Our incumbent City Councilman has never cast a vote that I have disagreed with. He is right-thinking and has done well by the district. I do not see that he is particularly qualified to pick judges, and I resent the fact that he is going to be part of the process on the basis of the fact that he is an elected Democrat with good name recognition. Accepting that any merit based selection system would likely include cats like Hoyt and LoCurto, it still astonishes me that I can look at the list of these people and barely recognize the majority. I am a well-informed, active voter who uses the court system every day, and yet the judicial selection system we have in place is utterly opaque to me. That is a broken system.

Netflix brought forth "Wattstax" on Friday, a documentary about the 1972 Watts Summer Festival-- and about the state of Black America that year, at the tail end of the 60's. Interesting stuff. Among other thoughts I had as I watched: if you had to pick the best of American culture to save, a lot of people would be surprised by how much that is really worthwhile is black culture. (What White America would I save? An interesting question for another day, but I suppose it'd would come down to American literature-- from Washington Irving to Don DeLillo that deserves to be pulled from the steam wreckage.) Once you control for race, it is surprising how conservative a lot of the values of Black America are. Of course, you can't control for race. No matter what they are doing, Black America looks like they are having more fun at it than White America. I'd have rather been at the Watts Summer Festival than Woodstock. I wish I could get away with the style that Black America carries off so gracefully-- Rufus Thomas, in his pink Bermuda shorts suit-- which had a cape!-- asks the crowd, "Am I clean?" Yeah, he was clean. The quality of the musicianship at this show establishes for me, once and for all, that it is much hard for white guys to rock, let alone swing, or groove. These cats make the Jefferson Airplane, to pick an arbitrary unfair example, look like somebody's sixth grade band recital. Richard Prior was always brilliant, (this was his first movie appearance)and he was always at his most brilliant when he was at his most cutting. Sometimes you don't know if you are laughing or gasping. I've cast a lot of votes that I proud of, but seeing Jessie Jackson in full dashiki and Oscar Gamble afro reminded me of how good I felt about supporting him. Until our current president you could fairly say that the biggest challenges the United States faced would be a long way towards resolved once the race issue was honestly addressed and resolved, and Jessie Jackson has been the only presidential candidate in my lifetime who has said that. There is no way that any of the current candidates have ever enjoyed themselves as much as Jessie is enjoying himself introducing Isaac Hayes, and there is no way that any of them could have delivered the invocation that he did to open the show. Speaking of Isaac Hayes, I think I've decided that I want the intro to the "Theme from Shaft" played from now on whenever I am introduced at a conference. That'd be baaaad.

Funny to think how the scales even out for Joe Zawinul. On the one hand, "Mercy, Mercy, Mercy", and "In A Silent Way" and "Bitches Brew". I'll even give you "Birdland". On the other hand,Weather Report. Is it possible to measure what a loss it was that Wayne Shorter spent so much of his career in a band that sounded so rinky-dink? Zawinul has to take the rap for a lot of fusion, and a lot of electric piano. "Asked last year how he found his young sidemen, he answered: 'They find me, man. All these kids in my band, they knew me from since they were young. Like I grew up with Ellington and Count Basie, they grew up with Weather Report.'" Exactly.

Interesting piece at BoingBoing about how stage magicians innovate without IP law protection. I like the idea of "IP negative spaces", and I think there are probably more of them than we think about. In the comments to the post at BoingBoing someone mentioned cooking, which is more or less true (Coke's secret formula is an example cited in just about every IP class). Comedy may be another-- comics steal jokes, and collect jokes, and pay other people to write jokes, but it is the actual performance of the joke that is where the money is. I think that may be close to what goes on with magic, too.

Curiously, law is another area that is nearly copyright free-- perhaps a real world manifestation of Gödel's incompleteness theorem. In order for a system of law to function properly, it must operate transparently. Companies like Thompson-West Publishing take work that is in the public domain-- statutes and judicial decisions-- and provide indexes, annotations, and other copyright protected features in order to make the public domain material more accessible. Where it gets more interesting is in the processes of law. Lawyers and publishers have tried to copyright forms for any number of things, but with only mixed success-- in order to be commercial, such forms need to be pretty generic.

A somewhat different situation is presented in a matter a friend has been handling. A local community has imposed restrictions on outside advertising, and an outdoor advertising company has been litigating the matter-- and losing. Obviously there are significant First Amendment restrictions on this sort of regulation, but the way this local ordinance was written and enacted has made it pretty bullet-proof, at least so far. A lot of people have approached my friend and asked for his "recipe", but there is a considerable amount of work product invested in developing the approach and he is not inclined to simply hand over his file to anyone who asks. Quite sensibly, he would like to be paid for doing this sort of work for communities that want it, and sensible communities seem to think this is fair. There is a component of skill and expertise involved here, as in the example of the magicians and comedians, but there is also a sense in which anyone prepared to do the work could develop the background and expertise. It's all a matter of public record, after all, so the question becomes whether it makes economic sense to re-invent the wheel, or whether it is smarter to go to someone who knows how to do it. (There was a terrible mixed metaphor coming up fast there, but I swerved and avoided it.) In that sense the analogy to cuisine-- and to recipes-- is pretty close. I can go to a restaurant, enjoy my meal, then try to reverse-engineer it at home, but the investment in time and ingredients may still not result in the same dish if I lack the skills and experience necessary to properly sauté a trout.

To the City of Homes and Churches over the weekend, for A's Brooklyn DA's office 25th reunion. I'd say the highlight was Friday's visit to Keyspan Park to see the Brooklyn Cyclones take on the Spinners. These were not the same Spinners that did "Rubberband Man"; these were the Lowell, Massachusetts Spinners, a Red Sox affiliate. A ten buck ticket gets you an ocean breeze and a ballgame. Five bucks for a Brooklyn Lager, and life has never been sweeter.

We saw a snappy 5-4 win by the 'Clones, in a ballpark that sits on the shore at the foot of Brooklyn's Eiffel Tower. 10,000 other souls showed up for the game, a nice mix of Real Brooklyn and Hipster Brooklyn. It isn't always easy to tell the two species apart. Both often wear goatees, and both are often tattooed. A clue can be the shoes: Real Brooklyn will be wearing Air Jordan, Hipster Brooklyn rocks the Converse All-Star look. A less dependable method is to check the mates: Real Brooklyn girlfriends will be chewing gum.

The roller coaster is visible over the left-field fence, although apparently there is a real question as to whether Astroland will be there next year. It would be a shame if it finally disappeared-- Coney Island has been hanging by a thread for generations, mostly surviving because no one could be bothered with it. Down at heels, scruffy and disreputable, now that being tattooed and pierced has become mainstream, it looks like Brooklyn's Playground may turn into condos.

There is a scene in "Annie Hall" (oddly, it is not among the memorable quotes on IMDB) where the Tony Roberts character talks about "The Academy of the Over-Rated". It's a funny notion, and the idea is that he and Annie talk about the over-rated as a way of exalting themselves over the likes of cats like Gustav Mahler (the only member I can recall at the moment). The over-rated will always be with us, as will the Top Ten list, but today, riding back from court, I got to thinking about the under-rated. "Deep Tracks" is what inspired me-- XM Satellite Radio's AOR station does a pretty good job of playing less familiar cuts by familiar bands, and stuff by acts that I was never all that familiar with in the first place. In the latter category there are quite a few things that are of only minor interest to me-- I never need to hear more by Cactus, for example; but sometimes I catch something by someone who has been left behind and forgotten. When that happens I wonder why they never quite got their due, and I think an Academy of the Under-Rated is beginning to form somewhere on a side street in my mind.

Three candidates, for now. The first, I'm afraid, is almost certain to open me to ridicule and abuse, but that's part of what Outside Counsel's mission is. I give you Blue Öyster Cult.

I'll wait. No, laugh away, I've got time. I can't say that I was a BOC fan when they were big-- actually, I thought they were kind of a joke, like KISS. The fact is, though, that this was a band that had all of the requisites of greatness. They were proficient on their axes, they wrote good songs-- as I see it, the knock of the Cult is two-pronged. They are about as Long Island as it is possible to be, and most of their best songs sound like they are about the sort of thing people talk about when they are totally baked. (Scroll down here for a funny "Don't Fear the Reaper" anecdote that doesn't really help me make my point, but that I like anyway.)

I got another one for you: The Guess Who. Reading Neil Young's biography a couple of years ago one of the things that struck me was the tremendous influence Young said that Randy Bachman had on him. Well, why not? Randy Bachman is a terrific guitarist. The Guess Who had a ton of great material. What's the knock on them? Too Canadian? I could happily go the rest of my life without hearing "American Woman" again, but is that enough reason to send the Guess Who down the memory hole?

One more: the Miles Davis band that recorded "Seven Steps to Heaven". Dig this line-up: * Miles Davis - Trumpet
* George Coleman - Tenor Saxophone
* Victor Feldman - Piano (April session)
* Herbie Hancock - Piano (May session)
* Ron Carter - Double bass
* Frank Butler - Drums (April session)
* Tony Williams - Drums (May session)

You see the problem right away. Williams came in for Butler, and Hancock came in for Feldman, then Coleman is left hanging out there, until Wayne Shorter takes over on sax and completes what is generally known as the "Second Great Miles Davis Quintet." Well, the "First Great Miles Davis Quintet" was a tough act to follow, but the Seven Steps to Heaven band was mighty fine, and has been overlooked because it has been over-shadowed.

Nominations are open.

A objects to calling it Big Pink, but really, what else could you call it? It practically makes a humming sound, it's so vibrantly, enthusiastically pink. Hilariously, it makes everything around it pink, too, like something out of "The Cat in the Hat Comes Back". The white house next door gets the full effect, and in fact reflects pink back into our dining room. I can't wait to see it in the snow.