Outside Counsel

To David Byrne at UB's Center for the Arts last night. It's interesting to think about where Byrne has been, and what he has become, because in a funny way it's a journey pretty much everyone in the hall has been on too. Back in 1977 he was gawky and peculiar, and we identified with that, because we were too. Somewhere along the way geek chic came into vogue, and Byrne was in the vanguard-- a great deal of the visual presentation that made Talking Heads so exciting was that Byrne was obviously cool, even though he seemed to be somewhat uncomfortable in that role. When he sang, "Air can hurt you too," he was telling us that he was as uncomfortable in his environment as we were, and, of course, the Big Suit was always all about being awkward, and dealing with it.

That Byrne is no longer in evidence, and hasn't been for a long time. The musician we saw last night fronted an eight-piece ensemble: Bass, keyboards, drums, congas and percussion, Byrne on guitar, three singers and three dancers. There was some doubling on guitar, and the dancers (two women and a man) came in on some occasional vocals. The troupe was attired completely in white, but each was dressed differently; Byrne himself was trim in white shirt, slacks and bucks. His stage moves are choreographed and well-thought out, but performed with an obvious sense of enjoyment. He looks terrific, and is in great voice. The show is billed as "Songs of David Byrne and Brian Eno", which is more or less accurate-- they don't play anything from "Talking Heads 77", and the only post-Eno Talking Heads number was "Burning Down the House", during an encore. I was happy to hear "My Big Hands" from "The Catherine Wheel", and the newer material was so good that I'd have been pleased to have heard-- and seen, it was a very visual production-- more. Interestingly, the Talking Heads material seemed to emphasize "Fear of Music", a side that I've always felt is somewhat overlooked. Part of the reason for that may be that it's always sounded a little botched in the mix. In this context, with a a supple, swinging rhythm section churning it out these numbers sounded great, as did, of course, the songs from "Remain in Light". After all these years "Once in a Lifetime" still grabs me.

As good as Byrne looked, the audience didn't, which set up a kind of cognitive dissonance for me. Lately at concerts it seems to me that everyone who is my age looks old, and if they don't, I do. This crowd made the "Art of Jazz" audiences look great-- actually, even the audience at Blue Oyster Cult looked better, or at least more authentic. I looked around as the band performed "Life During Wartime" and was disturbed. This was a big auditorium full of people with 401(k)'s that are worth about as much as that old Talking Heads tour shirt in the attic right now, singing along with one of American Rock'n'Roll's greatest paranoid compositions. In some ways rock, which used to be music about youth, has become a form that is about nostalgia instead, but that isn't rock's fault, or Byrne's fault either. He is committed and engaged in the work he is doing, and I'm looking forward to reading about what he has to say about Buffalo in his journal.

It does not appear that a Sydney show has been booked yet, but if I lived in the Antipodes I'd keep February open.

  CLA joined the longstanding tradition EGA and I have shared and participated in her first Turkey Trot. (It's the oldest continually run road race in North America, you know-- and CLA's first road race ever.) Over 10,000 starters this year-- pretty amazing.

Here's an amusing Court of Appeals decision that says that service in a foreign country need only comply with CPLR 313 and not that country’s requirements-- unless a treaty is implicated. Why wasn't the Hague Convention implicated here? Because Brazil is not a signatory to the Hague Convention. Who knew? The case arises out of a civil forfeiture action brought by the Manhattan District Attorney's Office, and it is interesting to think about the lawyering that would have been involved. Some ADA was told to serve the Brazilian defendants. Presumably that person looked up international service and then had the wit to check to see if Brazil was a signatory. Finding that it wasn't, I suppose the next step would have been to return to the plain language of the statute. CPLR 313 says:

"A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction".

Seems pretty clear, right? Although both the United States and Brazil are signatories to the Inter-AmericanConvention on Letters Rogatory (28 USCA § 1781) that treaty does not mandate that letters rogatory be the exclusive means of service on a party in Brazil. The Court of Appeals says the Inter-AmericanConvention on Letters Rogatory doesn't say "positively", so we're going to call this a question of New York law. When it comes to New York law the Court of Appeals is pretty literal, so too bad for you, Brazilian bad guys. You are totally served.

The other highlight of the weekend just past was that we went to the Burchfield-Penny opening. The organization really deserves a great deal of credit-- from a small gallery in converted classroom space it has now become a major museum. I feel somewhat proprietary about the place because they gave us the run of it to do a fashion shoot for Buffalo Spree, but that was before they moved the art in. Now the space is filled with art, and this weekend it was filled with people too. They kept it open from Friday through Sunday evening, and had dancers, and live music, and all kinds of stuff. Best of all, this is a museum which has art by artists who are friends of mine, which is so cool I can hardly stand it. There were video installations by Meg Knowles and Dorothea Braemer, and a big display of Robert Hirsch's jars, and quite a bit more by people I know. The best part is that the Burchfield people have decided that they are out to make a splash, and are doing so-- the arts are a major part of what's right about Buffalo, in no small part because artists and arts supporters don't stand around wringing their hands. Artists are artists because they make art. While the rest of us wish for bridges or downtown law schools the artists on display at the Burchfield made videos and images, and the Burchfield people made a great big new gallery to display this work. When I think about it I want to clap my hands, it makes me so happy.

Captain X lent me Robert Greenfield's "Exile on Main Street: A Season in Hell With the Rolling Stones", a good supplement to Robert Janovitz' 33 1/3 volume on the same subject. Greenfield is more gossipy-- who slept with who, and who the Euro-trash hangers-on were; Janovitz approaches the side as a text, and breaks down the songs' meanings. Interestingly, Greenfield says that close to a third of the album was in the can before the famous summer in the south of France He says that "Sweet Virginia", "Sweet Black Angel", "Loving Cup", "Stop Breaking Down" and "Shine A Light" were all recorded during the sessions for either "Let it Bleed" or "Stickey Fingers". Janovitz says nay-- perhaps some material was written or drafted earlier, but they came into their final form at Villa Nellcote. Janovitz is also better on the technical aspects of the recording process, which is more interesting than the drug stuff at this point. Both offer a new way in to one of the most significant works in the rock'n'roll canon, and neither represents such a significant time investment that one should be read in favor of the other-- if it is a topic of interest, by all means read both.

To the Dave Liebman Quartet last night at Bruce Eaton's Hunt Real Estate Art of Jazz program at the Albright-Knox. I have posited that many jazz performances can be described to someone who wasn't there by referencing a specific period in Miles Davis' career. A corollary proposition may be that playing with Miles is something like having been on the Harvard Law Review. No matter what else you do in your career that experience will be one of the ways you will be defined. Liebman played with Miles on the "On the Corner" sessions, and although the experience obviously informed his approach, there is more to what he does than just that. Liebman played the first half of his set on tenor, then switched to his soprano. Vic Juris on gutar, Tony Marino, bass, and Marko Marcinko, an engaging drummer. They mixed it up a bit, playing Ornette Coleman's "Beauty if a Rare Thing" along with a pretty straightforward "Green Dolphin Street", and some of their own compositions. A very satisfying set.

To a lecture and wine tasting last night, put on by Alliance Française de Buffalo. A. has decided to take French language lessons, and learned about this event, which would be, she reckoned, amusing, or possibly diverting. We entered a lecture hall at Buff State and took our places. On a table in the front of the room were trays of hors d'oeuvres, and rows of wine glasses. In a bucket behind the table were bottles of wine. On a small easel on the table was an open, book-shaped box filled with glase ampules. In front of the table, a Frenchman.

We started late. The Frenchman, a charming fellow, proceed to lecture. Apparently there are over 500 classifiable scents, which have been rounded down to 54. These 54 have been broken into 4 categories by Jean Lenoir, author of "Le Nez du Vin"-- the book of ampules in front of us. My mind wandered a bit at this point. I thought about Magnus Hirschfeld. Didn't he theorize that there were a similar number of sexualities? Were they related concepts? Was there a scent for each, perhaps? What does it say about the French and the Germans that counting this sort of thing, and carefully categorizing them seems utterly characteristic? No doubt a Frenchman also wanted to to count sexes, but yielded the field to the Germans because they could not be trusted with scents.

Meanwhile our Frenchman talked about what the characteristic scents are for young wines and older wines from a dozen regions in France. The scent we think of as "grapefruit" is not necessarily what is meant by the scent of grapefruit when we discuss wine, because here we are used to California grapefruit, not the grapefruit of Malaysia. White and red. We had a brief digression into méthode champenoise. Then we heard a bit about the two sorts of Rosé.

As we rounded into the second hour all in the room were growing hopeful, but our friend in the front of the room was just warming up. Now it was time to talk about terroir, and soil composition. The audience was polite, but it was still a Buffalo audience, and I could sense that we were close to walking out en masse and going to Coles for wings. Finally, two and a half hours into it he announced that we were invited up to the front of the room to sample a Chablis. There were six ampules from "Le Nez du Vin" on the table. When we had tasted the wine we should sniff each ampule and determine which of the six wasn't present.

Then he passed some ampules around for us to try smelling. Then he told us he was going to demonstrate how to properly taste wine. I have never seen a quieter room so close to breaking out into violence.

Nice wine, though, when we got to it.

John Edwards is not useless, and I believe he is well-intentioned. He's not helping, though, and someone should tell him that. When Edwards was a trial lawyer he worked to secure justice for people who had been injured through the carelessness of others. You can believe what you like about our tort system, but it is the only mechanism we have in the US for taking care of that sort of thing, and until we develop an neo-liberal welfare alternative the work Edwards did is going to be important. He was a mostly right-thinking US Senator, too, and if he was pretty much useless as a VP candidate, well, that is regrettable. He said the right things as a Presidential candidate, but it wasn't his time. Come to find out we dodged a bullet, because his poor judgment in his personal life would have sunk his campaign-- or his Presidency, if he'd managed to keep it on the quiet a bit longer. Problem is, having now been in the spotlight he apparently can't think of any other way to advance the cause of social justice apart from endeavoring to personify it. The cause is an important one; I'll give Edwards credit for recognizing that. It deserves an advocate who appears motivated by something other than self-aggrandizement. Edwards should find an existing organization that is working on this issue-- there is no shortage of them-- and start getting busy behind the scene to support that organization. His money and his Rolodex are worth more to the cause than his persona.

Most media descriptions of New York judicial selection refer to our process as a hybred, because some of our judges are elected and some are appointed. This is true enough, as fear as it goes, but it is not a very accurate description of how the process really works. First off, we have a cockamamie nomination process for the justices that sit on our highest trial court-- the Supreme Court. We know that this process is constitutional, because the United States Supreme Court has said so. We also know that this process is "stupid"; that it does not "produce both the perception and the reality of a system committed to the highest ideals of the law";and that it "leaves judicial selection to voters uninformed about judicial qualifications and places a high premium upon the ability to raise money," because the Supreme Court has also said those things.

We also have an intermediate appellate court, the Appellate Division of the Supreme Court. This is the court where most appeals are ultimately decided. The selection process for this group actually is a hybrid. Applicants are screened by a merit selection panel, which presents a list of five candidates to the Governor, who makes his nomination. The dogs in our state senate vote to approve or disapprove the nominee. The catch is that a nominee to the Appellate Division must be an elected justice of the Supreme Court. Can't be an otherwise qualified academic or practitioner, can't be a Court of Claims judge, or a judge of a lower court sitting by designation; can't be a justice appointed to the Supreme Court by the Governor (and approved by the dogs of the Senate) to file a vacancy. Has to be an elected justice.

The only pure merit selection bench in the Empire State is our highest court, the Court of Appeals. The system works really well there-- we have a very able Court of Appeals, and this has been true for as long as I have been in practice.

The judicial system works because people believe it is fair, but three in four Americans believe campaign cash affects courtroom decisions. Sandra Day O'Connor favors merit selection-- why can't we fix this?

HRC as Secretary of State? A couple of thoughts. First, I'd be a bit surprised if it was a job she was really interested in. She has a sweet deal in the Senate now, and an office in Foggy Bottom wouldn't appreciably improve her visibility. If she is still interested in running for President she has to be thinking that it has been a long time since someone got there by serving in the Cabinet. (It was Hoover, by the way.)

I'm not so sure she's the best qualified for the job, either. I'd like to see someone with more substantial diplomatic and academic credentials. HRC is well-respected internationally, and I suppose I'd have to concede that she has the tools, but the majority of her career has been spent as a corporate lawyer in Little Rock.

And then there is this. At the end of "The Maltese Falcon" Spade and Guttman are negotiating. Guttman has the money, ("Ten Thousand Dollars is a lot of money,") and Spade has the Black Bird. Spade tells them that they need a fall guy, someone to hand over to the District Attorney. He proposes Wilmer, and then Joel Cairo. Cairo, furious, suggests that they turn over Brigid O'Shaugnessy, and then some comedy ensues about a missing thousand dollar bill. When that has resolved, in a moment when Ms. O'Shaugnessy is out of the room, Guttman speaks with Spade.

"Are you sharing with her?"
Spade said, "That's my business too."
"It certainly is," the fat man agreed once more, "but,"-- he hesitated-- "I'd like to give you a word of advice."
"Go ahead."
"If you don't-- I dare say you'll give her some money in any event, but-- if you don't give her as much as she thinks she she ought to have, my word of advice is-- be careful."

Mr. Obama, no doubt you'll take care of the Clintons. My advice? Make ol' Bill Ambassador to the United Nations. The job is perfect for him, and he already has an office in New York. But most of all, be careful.

You wanna know from chutzpah? Harold Ickes says the results of the election last week are a "partial vindication" of Howard Dean. Careful followers of the past season may recall Mr. Ikes as the guy who was working for the campaign that thought the Democratic caucuses and primaries were winner-take-all (even though he helped write the rules) and counseled Hillary Clinton accordingly. Howard Dean is kind of the Doug Flutie of the Democrats, I guess. Sure, he formulated a winning strategy, sure, he rescued the party from oblivion, but why give him the credit when Rob Johnston or Harold frickin' Ickes is available?

I'm not sure what I was reading-- The Atlantic, maybe?-- but some months back I came upon an appreciation of G.K. Chesterton, and I realized that I'd read little, if anything at all, of a writer that sounded interesting. I'm easily provoked when I encounter that kind of gap, and the author of the essay knew exactly how to get to me-- Chesterton, he wrote, was probably best known for "The Man Who Was Thursday", but there were other works that should also be read. I'd never heard of the book, and immediately wrote the title down in my little notebook so I could follow up.

Now I have done so, and damned if it isn't one of the most peculiar things I've read in a while. It starts off like a thriller in the Joseph Conrad mode, something like "The Secret Agent", and then, within about twenty pages, starts getting crazier and crazier. A table sinks into the floor, revealing a passage and a secret arsenal, and that's the last plausible thing that happens. It rocks right along, and it's exciting in post-Edwardian way, but it was odd to read on the plane-- it just kept getting weirder and weirder.

Excellent essay (from the Wall Street Journal, of all places) about how the American Conservative movement destroyed itself by becoming anti-intellectual.

"Most are well-educated and many have attended Ivy League universities; in fact, one of the masterminds of the Palin nomination was once a Harvard professor. But their function within the conservative movement is no longer to educate and ennoble a populist political tendency, it is to defend that tendency against the supposedly monolithic and uniformly hostile educated classes. They mock the advice of Nobel Prize-winning economists and praise the financial acumen of plumbers and builders. They ridicule ambassadors and diplomats while promoting jingoistic journalists who have never lived abroad and speak no foreign languages. And with the rise of shock radio and television, they have found a large, popular audience that eagerly absorbs their contempt for intellectual elites. They hoped to shape that audience, but the truth is that their audience has now shaped them."

I'm not so prepared to accept that American conservatives, taken as a group, were ever as cerebral as all that, and although I'm optimistic, I am not convinced that the movement is dead, either. Somewhere, (probably someone at Lawyers, Guns & Money) someone has set out the proposition that Republicans track their intellectuals into the judiciary, and that rings true to me-- although Scalia's jurisprudence seems reductive, the same couldn't be said of, say, Richard Posner. I think this last election may have been transformative, but there's one more in this cycle before reapportionment, and a lot can happen in two years. Here's an amusing article grading the various theories about the election (which I found thanks to LG&M).

Wild rice waffles with smoked salmon. That sounds mighty good.

I was thinking about David Crosby the other day. Is there, could there be a bigger horse's ass, out of all the notable musicians that came to prominence in the 60's? I suppose Stephen Stills might give him a run for the money, but Crosby was pretty remarkable, particularly when you consider that his overall creative output was so thin. Talented, to be sure. A very talented musician, but mostly what he was good for was backup singing. I happen to like "If I Could Only Remember My Name", but let's face it, it is a pretty slight piece of work, and it took most of Marin County to help him record it. So please excuse me if I take his opinion with a grain of salt, because I can't think of a more ridiculous remark than, ""In a hundred years, when they ask who was the greatest songwriter of the era, it's got to be her or Dylan. I think it's her. And she's a better musician than Bob." I like Joni Mitchell fine, and I particularly admire "The Hissing of Summer Lawns" and "Hejira". No question about it, if your band has Wayne Shorter, Pat Metheny and Jaco Pastorius you are going to sound pretty good. She has good ears, and she has written some standout material, but David Crosby does her no favors with that kind of talk.

We are extremely fortunate. We are getting a guy who is maybe the smartest person to run for President ever, but is not arrogant about it. Obama is serious about consensus building, but he's also serious about getting the job done. He is deft as a surgeon when it comes to the knife-fighting skills, and my hunch is that he is going to use the ground game that his community organizer background helped him build to help motivate Congress. Biden will be useful, too, and I think he will assemble a Team of Rivals style cabinet. The country is in rough shape, and somehow we've managed to elect the guy that can help us out of it.

A bit slow off the mark today, the line was out the door, 15 deep at our polling place at 7:43. At 8:04 we were 140 and 141.

Here are my Upset Specials: Obama takes the Kerry states plus Virgina, North Carolina Indiana, New Mexico, Colorado, Nevada, Ohio, Iowa, and Georgia. The last is my big longshot-- I just have a hunch.

The Buffalo News' candidate endorsements for judicial races illustrate one of the many reason that judicial elections are a poor method of selecting judges. Tracy Bannister and Jeffrey Voelklest are running for the one contested seat this year. There is no way that any voter, even the best informed voter, could have any insight into what sort of judges either would be, unless you happen to be a lawyer who has dealt with them. Ms. Bannister has been confidential law assistant to one of the best judges in the area for years. That means that she has worked closely with one of the best judges in the area for years, and seen what is effective. Judge Voelklest was appointed to the City Court bench a few months ago. As a purely practical matter, he is not an exceptionally experienced candidate, but the News in its wisdom, gives him its endorsement on the grounds that before he went on the bench he tried a lot of cases. Being a good trial lawyer and being a good judge, I am here to tell you, are completely different skill sets. This endorsement is based on a false premise, and does not inform anyone's decision. Probably Judge Voelklest will be fine, but I'm voting for Tracy, as will, I suspect, most lawyers who have had dealings with her.

Here's a happy thought: after this election we should be pretty much done with the Vietnam War. Who went, who didn't go, what they did or didn't do-- that generation will be mostly aged out of national politics. I predict that the next cycle will be all about Punk Rock vs. Disco-- or maybe East Coast Rap vs. West Coast Rap.