Outside Counsel

I know I had occasion to appear before Charles L. Brieant Jr. at some point, but I never had occasion to hear him tell about this portrait. That's Martin T. Manton, who sat for two decades on the Second Circuit in Manhattan, and who was almost appointed to the United States Supreme Court. In 1939, he resigned in disgrace, accused of taking large sums in gifts and loans from parties in cases. He was tried and convicted and spent 19 months in prison. In a bit of judicial drollery Judge Brieant hung Manton's portrait in his chambers, "as a reminder of the fallibility of judges". The NY Times repots that The Hon. Dennis Jacobs, chief judge of the Second Circuit, has asked The Hon. Kimba M. Wood, the chief judge of the District Court, to request that Judge Manton's portrait be taken down and removed from view. "The portrait is not much in the way of art," Judge Jacobs wrote. "It is just an old picture of a person best left unremembered."

It seems to me that hiding something like this would be a mistake. It's great to see portraits of Learned Hand and all, but I think Judge Brieant was onto something-- we should remember the crooks and scoundrels too. Years ago the clerk's office in New York Supreme used to have a framed picture of Judge Crater hanging on a back wall-- that's the sort of spirit I like to see, something that lets you know that the system hasn't lost sight of its humanity.

Governor Paterson has been getting blistered for his appointment of Kirsten Gillibrand to the Senate seat HRC left to become Secretary of State. It seems to me that he more or less had to pick a woman after he made such a point of criticizing the Commission on Judicial Nomination for failing to include a woman on the roster of candidates to replace Chief Judge Judith Kaye. The Judiciary Committee of the New York State Senate is presently holding hearings on the state's merit appointment process, and I am more than a little concerned that they will find a way to screw up a system that has worked well since 1977. It is peculiar that Judge Carmen Beauchamp Ciparick, the senior associate judge on the Court of Appeals, did not make the list, but I don't think that a single event like that can be taken as evidence that the system as a whole is broken. It's a problem that the timeframe within which the Commission operates is so long-- barring an unexpected resignation it'll be four years before there is another vacancy. This makes it difficult to determine if the process that resulted in the nomination of chief judge-nominee Jonathan Lippman, (the presiding justice of the Appellate Division, First Department) is typical, or some sort of outlier. I'd say that a process that has resulted in the appointment of four women, three blacks and one Hispanic to the state's highest Court has been a process that is pretty good when it comes to promoting diversity, and I'd go a step further and say that the process has been friggin' great when it comes down to making quality appointments. The Court of Appeals is a deep bench, and has been for quite some time. I would not be in a hurry to tinker with a process that is pretty clearly working.

I like Neko Case, and I think it is very cool that this for every blog that reposts this song she will make a cash donation to Best Friends Animal Society.

The wheels of the law grind slow, but fine. It has taken a generation, but New York's No-Fault law has finally been sufficiently defined by the courts to be coherent-- and to have its intended effect. We are at a place where a "serious injury" and the criteria that define how to determine the issue can be articulated, and this, in turn, means that the overwhelming majority of automobile accident cases are no longer actionable.

See, e.g., Delfino v. Luzon (1st Dept. 2009):

"Although the [plaintiff's] expert listed specific numeric losses of range of motion for the left shoulder, he failed to describe what tests were used or provide any objective basis to substantiate his range of motion assessments, his opinion that the restrictions were causally linked to the accident, or his prognosis that plaintiff will never fully recover and might require further surgery. Those omissions in plaintiff's expert's affirmation are fatal to plaintiff's claim (see Rodriguez v. Abdallah, 51 AD3d 590 [2008]; Smith v. Cherubini, 44 AD3d 520 [2007]; Munoz v. Hollingsworth, 18 AD3d 278 [2005]). The absence from the record of objective findings of limited range of motion contemporaneous with the accident compounds the inadequacy of plaintiff's opposition (see Lloyd v. Green, 45 AD3d 373 [2007]).

More importantly, plaintiff's expert did not even address, let alone rebut, the objectively substantiated findings of defendant's experts that plaintiff's conditions are congenital and degenerative, and therefore did not raise a triable issue of fact as to causation (see Mullings v. Huntwork, 26 AD3d 214, 216 [2006]). In addition, plaintiff's expert did not attempt to reconcile his conclusory assertion that the shoulder surgery was necessitated by accident-related injuries with the MRI report describing the shoulder as "unremarkable" other than "fluid and/or soft tissue inflammation surrounding the acromioclavicular joint."

I think what I like best about the idea of the Presidential vinyl collection is its time capsule quality. Accumulated between 1973 and 1979, and judging from the titles we know about, it probably looks a lot like mine.

The last time I was in New City I listened to an interview with John Updike on part of the ride home. He was charmingly self-deprecating, but sincere about how seriously he tried to work at his craft. At one point he joked about the permanent secretary of the Swedish Academy saying that American literature is "too isolated, too insular", and he talked about how he had tried to break out of that mold in some of his work. He talked about his forthcoming collection of stories; now it will be his last. A game he might have enjoyed will be to count the number of times the work "lapidary" appears in his obits. 76 seems too young, but there is plenty of Updike out there that I haven't yet gotten to.

George W. Bush iconography. Errol Morris talks with three photographers -- one each from Reuters, AP, and AFP-- about their ten favorite photographs from the Bush presidency. It is interesting that an administration that was so careful about controlling its message nevertheless had so much trouble controlling its image. My friends who work in photography and media wouldn't be surprised at all, but it strikes me as odd that people responded positively to Bush for most of the past eight years even though this is its image. Could this be because the convincing quality of what we were told was greater than what we were seeing? Perhaps it was wishful thinking. It does seem to me that Bush's oblivious quality often came across as optimism-- however unjustified, no doubt because of his religious faith, he seemed sure things were going to work out fine, and I'm sure a lot of people wanted to go along with that. I do wonder if Bush still believes it. The final interview, and the wrap up speech he gave sure made it seem like that, but the image to the right, taken after his last address to the nation, when he'd come back into the room to make some personal farewells, suggests that he may understand that he will be spending the remander of his days as an object of contempt. It is odd to think that this Freudian Presidency may may have accomplished what he went into office to do-- in the right light Bush pere's tenure certainly seems to have been validated.

Ron Rosenbaum loses it over Billy Joel. More than a few rock snobs from Long Island have bemoaned the fact that New Jersey got Springsteen and the Island got Joel, but that's really not a particularly valid complaint. No doubt there are people in Passaic who are upset that the Garden State is Jon Bon Jovi's home, while Lou Reed is from Freeport. (LI gave us Blue Öyster Cult, too. And the Rascals.) And while it is true that Billy Joel has produced an abundance of material that is trite, there is no escaping that the guy has also written more than a few pop songs with great hooks and clever lyrics. What Rosenbaum is really doing here is engaging in LI self-hatred, the very thing he condemns poor old Billy Joel for. You wanna be ashamed of something Ron? Hate on The Good Rats. Objectively speaking there is no real difference between "It's Still Rock'n'Roll To Me" and, to pick a Springsteen song at random, "Glory Days"-- they are both AOR staples, intended to be amusing, and the fact that one is by a guy from Cold Spring Harbor and the other is by an erstwhile New Dylan shouldn't really enter into any discussion about the individual merits of the two songs.

Don't get me wrong-- I've never been a big enough fan of Mr. Joel to actually go out and buy one of his sides-- but like Robert Christgau I reached a point where I simply gave up trying to resist.

I've run into the situation presented in Mahoney v. Turner Construction more than a few times. In a multi-defendant action one or more co-defendants settle with the plaintiff on a confidential basis. For some reason it is always my client that is left in the case, wondering how much the plaintiff got. I should be let in on the secret, I think, because my client is entitled to some sort of offset under the General Obligations Law, but as the First Department notes, "the law on the disclosure of settlement agreements to nonsettling parties is unclear and presents a thorny issue...." The First Department thinks that settlement agreements are discoverable only to the extent that they are material and necessary to the nonsettling party's case. Citing Allen v. Crowell-Collier Publ. Co, a chestnut from 1968, the Court reminds us that term "material and necessary" is to "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity". To the First Department what this means is that if there is a secret "Mary Carter" agreement between the plaintiff and the settling defendants then the non-settling defendants should know about it, because Mary Carter agreements are pretty much a fraud on the court.

Frankly, that's bullshit reasoning. If what you want to do is sharpen the issues and reduce delay and prolixity, tell me if it makes economic sense for my client to to roll the dice and try the case. If we are not going to see a meaningful offset, that is information which should go into the decision-making process. As a general proposition the law disfavors confidential settlements, and that's a good thing from a policy perspective. I cannot fathom why the courts in New York allow this practice, which is essentially a tool to extort settlements from parties by increasing the unknowns in a case.

It seems less vital to me now that Christgau no longer writes it, and it has been a long, long time since I could be confident that I would be familiar with the majority of the sides listed, but I still enjoy the Village Voice's annual Pazz & Jop Poll

What I am excited about when I think about the election, and the inauguration and the prospect of an Obama presidency has so little to do with race that I find it a little reductive to discuss that aspect. One of Obama's principle qualifications for the job, and the tasks before him (and us) is his temperament, of course, and his character was formed in no small part out of his negritude. Race is always relevant in America, and there is no denying that it is an important part of what is happening here, but it goes well beyond that. It is generational, for one thing. Obama is post-boomer, post Vietnam. He didn't live that set of mistakes, but he has been informed by them. Most importantly, he impresses me as being the most intelligent person to occupy the Oval Office in my lifetime. Clinton is a smart guy. Carter is a smart guy. (For some reason Republican presidents do not seem as intellectual-- post Nixon, at least.) When you consider the presidents of the past fifty years though, what jumps out is that the brightest of them were all brought up short, Othello-like, by a tragic flaw that we all recognized as being the force that drove them. Nixon's desire for respect, Clinton's yearning for affection, Carter's inability to let go of detail. Hard to say what Bush pere's tragic flaw was; perhaps, like Ford, he lacked one, and this is what kept him from achieving greatness. Reagan and the last Bush were affable boobs who were maneuvered into the office. One got lucky-- the tides of history were running Reagan's way, and although it pains me to admit it, I'd say that for the most part the people who surrounded him were probably both smarter and more principled than the thugs that we've endured for the past eight years.

And here's the thing-- I don't see any of this in Obama. He impresses me as self-aware, stable and secure in who he is. He is a seems to have a balanced personality. He is happy in his family life. He is hard-working. He knows how to have fun, and seems to have a sense of humor. We are, it seems to me, extremely lucky to get this guy at this time. The fact that he's black is just extra.

I for one am excited to read the list of pardons Bush is, I am sure, signing right now. Will Cheney be on it? Rummy? Condi? Roger Clemens? Scooter? The AP reports that he has commuted the sentences of two border control agents who shot a Mexican drug dealer, and that there are no more acts of executive clemency in the pipe, but I can't believe he'd disappoint us like that. I also can't decide if I'd be happy or sad about a Scooter pardon. Libby is the particular pet of the Wall Street Journal, which has, through it all, found nice things to say about Bush. Denying a pardon to "the most notable casualty of the domestic war that ran alongside the global war on terror" would be hard for them to take I think. (And isn't it hilarious that these guys feel like this? Alberto Gonzalez, who hasn't managed to land a paying gig yet, said something along the same lines recently. If these guys are casualties, what is the word they use to describe people who have actually been shot and killed?) On the other hand, if he was to be pardoned then he could get his license to practice law back, and that'd be a pity. Daniel Henninger again: "When the vice president's chief of staff was convicted, financially ruined and professionally destroyed on the basis of a conversation, my first thought was, this is going to make it hard to attract the best people to serve in Washington." Funny how that doesn't seem to have been a problem for Obama so far.
UPDATE: One hour into the Obama Administration and it appears that Bush has decided that people can just take their lumps-- no last minute pardons. I must admit, I'm a bit disappointed. Probably not as disappointed as Conrad Black, but still....
FURTHER UPDATE: Cheney's pissed off that Bush didn't pardon Scooter, [O]ne of the most capable and honorable men I've ever known." I'd like to see the list of honorable men Cheney's known, wouldn't you? From what we know of Scooter we can safely assume that obstruction of justice is a quality that many of them share, so I'm guessing that John Mitchell would be on it, along with quite a few other Nixon-era thugs, but who else? Roy Cohn? Ken Lay? Who are the honorable men in history that Cheney looks up to? The Weekly Standard says that Cheney publicly broke with Bush only four times up to now: "Of the four times that Cheney had publicly disagreed with Bush--on a gay marriage ban; on firing Donald Rumsfeld; on Washington, D.C.'s gun ban; and on North Korea--two of them involved personal loyalty Cheney felt to someone other than the president. On one occasion it was his daughter, Mary Cheney, and on the other it was his longtime mentor, Donald Rumsfeld. Libby makes it three."

Nixon slunk away, and Ford pardoned him. At the time I think we all felt that the lesson was that the system worked. Crimes were committed, but a penalty was extracted, and there was no long-term damage. What we are looking at now, at the end of the Bush Administration, is something entirely different. There has been damage done by this President, damage that is consequential and meaningful. An Administration that came into being as a result of a legal ruling has operated outside the law, in absolute contempt for the processes that have distinguished America from tyrannies for the past 230 years.

On some level the question of whether the members of the Bush Administration who authorized its illegalities should be criminally prosecuted is the mirror image of another problem the Bush Administration has created. President-elect Obama has indicated that he is going to shut down Guantanamo Bay, and now there is hand-wringing about what to do with the people who have been imprisoned there. The answer to both questions is the same: prosecute, if you can. If you can't, let 'em loose.

The genius of a functioning legal system is that it works, if you let it. The problem with the Bush Administration-- beyond the fundamental question of its principals' overall competence-- has been that it does not trust the process. You might argue that their distrust is understandable. After all, they were in office and in power as a result of a fraud that was winked at by the highest court in the land, and I wouldn't disagree. When you think about it, a distrust of the legal system has pervaded just about everything the Bush people have done. Secret meetings, illegal wiretaps. The US Attorney scandal. The Bizarro-world assertion that the Office of Vice President was not a part of the Executive Branch. We have a problem with Guantanamo because they were afraid of the criminal justice process, and now, because they have abused it. They treated a legal problem as though it was a political problem, and now, as a result, we are stuck with a bunch of bad guys. The only thing that can be done is to turn them over to the process, because to continue holding them breaks down the federal criminal justice system. The US courts are fundamental to the country's ability to operate in the world. If other nations believe that our justice system is as flawed as the Bush Administration apparently did then we will have have lost our standing as the world's leading commercial and economic power, and we will have lost our ability to argue that we are some sort of moral beacon. If our own President is afraid of the ability of the legal system to get something right, why should anyone else anywhere believe in it?

So that's the answer to Guantanamo. Shut it down, and prosecute the people you can. If you can't, or if the courts determine that illegal detention and torture on grounds for dismissal then we have deportation processes that worked eight years ago and will work again. Dahlia Lithwick gets it right on the question of what to do about the people who got it wrong: they should be subject to the legal process as well. "Nobody is looking for a series of public floggings. The blueprints for government accountability look nothing like witch hunts. They look like legal processes that have served us for centuries." We have to demonstrate that we believe in the capacity of our legal system to get it right. If the torturers had a good-faith basis for believing that their actions were legal-- if "advice of counsel" wasn't merely something they cooked up, like those weapons of mass destruction-- then that's a legal question, not a political one. We need answers, and the legal process will provide them. Lithwick again:

"It’s not a witch hunt simply because political actors are under investigation. The process of investigating and prosecuting crimes makes up the bricks and mortar of our prosecutorial system. We don’t immunize drug dealers, pickpockets or car thieves because holding them to account is uncomfortable, difficult or divisive. We don’t protest that “it’s all behind us now” when a bank robber is brought to trial.

And America tends to survive the ugliness of public reckonings, from Nixon to Whitewater to the impeachment hearings, because for all our cheerful optimism, Americans fundamentally understand that nobody should be above the law. As the chief prosecutor for the United States at the Nuremberg trials, Robert Jackson, warned: “Law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power.” '

We make a point of telling clients that we will appear anywhere in New York, and that's been a good thing for us over the years, but some corners of the state are tougher itches to scratch than others. Rockland County (county seat: New City) is one of those. Strictly speaking it's a downstate county, and what I should do is fly down, rent a car, and drive up the Hudson. As a practical matter, however, the odds of my making a calendar call if I do that are not great, so what I do instead is rent a car, then leave Buffalo in the middle of the night. It's a 735 mile round trip, through Syracuse and the Catskills, and this time of year those are two places where I'm pretty much guaranteed some weather. Even in the more clement months it is a big schlep, up hill and down dale. Lately my rental cars have had satellite radio, which has made the trip considerably more tolerable, but yesterday I brought along an audio book on my iPod. Dreamtime had alerted me to the availability of Mark Polizzotti's "Highway 61 Revisited" -- part of the 33 1/3 series-- as a free download, and this was the perfect opportunity to listen to it.

This is exemplary Dylanology, and a perfect side for this terrific series. "Highway 61" came at a time in Dylan's career when his popularity, influence and creativity were at a peak. It's the sweet spot, right after "Bringing It All Back Home" and the events depicted in "Don't Look Back", right before "Blond on Blond" and the motorcycle accident-- right when Dylan was transforming rock'n'roll. Polizzotti covers everything. Although I find analysis of Dylan's lyrics tedious, he lays out the major theories. The discussions on who the songs might be addressed to, which are amusing, are probably irrelevant to our appreciation of the album today, but are cleverly worked out. (I hadn't realized that Joan Baez had recorded "The Death of Queen Jane" the year before-- I'd always figured "Queen Jane, Approximately" was just Dylan-code for "Joan/Jane, whatever.") Best of all, the book is full of details about who played what, and how the ultimate sound of the recording was achieved. Al Kooper's story about how the organ sound on "Like A Rolling Stone" came about is worn as smooth as a stone itself by now, but there's lots more of that kind of detail. Suze Rotolo's book (on which more anon) tells us that Kooper had a goofy sense of humor, but Polizzotti illustrates this by telling us that Kooper wore a siren whistle on a chain around his neck that he used to blow to freak out people he was partying with-- and that he gave to Dylan to play on the title track. There's over three hours of this sort of thing. The 33 1/3 books I've read have all been good, but this one is terrific.

I was pretty sure that Governor Patterson would have picked someone already on the Court of Appeals, if only to get another seat to fill. That would have made Judge Jones the likely favorite, a Democrat, and African-American. Instead we have Jonathan Lippman, who was said to be the candidate that Judge Kaye favored. The process that was involved meant that the Gov had only quality to pick from, so congratulations to Judge Lippman, if confirmed, the first chief judge not elevated from within the Court since Alton Parker in 1898.

William Zantzinger, the villan of Bob Dylan's "The Lonesome Death of Hattie Carroll", died January 3, 2009. He was 69 years old. I'd known the song for years (it's on "The Times They Are A Changin") before I learned that it was about a contemporary event-- servants being beaten to death by canes just didn't sound like a 1963 sort of event. Even though the point of the song is that he got off light, I'm not so sure you can say that. He'll be remembered as the Grade A son-of-a-bitch that he was throughout his life, and he had to go through the years after his crime knowing that. (Via Metafilter.)

Daisy Owl is my new favorite comic. It approaches "Calvin and Hobbs".

I was sorry to learn this morning that Judge John T. Elfvin died-- 91 is a good run, and he seemed like he probably enjoyed most of it. It was always an edgy pleasure to appear before him-- he didn't suffer fools particularly gladly, and expected counsel to be on their game, but that's what good judges ought to do. I think perhaps the thing I will remember best about him was that his motion calendar was held at 3:30 on Fridays. That's a hard working judge. In my experience he was a careful jurist, who worked hard to get his rulings right. His resistance to the federal sentencing guidelines was characteristic of the guy-- he drolly observed that he took them at their word, and treated them as guidelines. He took heat for it, he made a quiet little joke about it, and he was ultimately proved right.

Reading about this guy's lost vinyl collection made me sad. My own holdings are nothing like as vast, although I was diligent in amassing my collection. Even so, I never even knew there was an M. Frog Labat album. Why was this kept from me? When it was released Rolling Stone reviewed it:

M. Frog is the initial offering from a would-be French monk turned musician named Jean Yves Labat. Admittedly, France has never stood out as a major force in the rock music world, and M. Frog will do little to change this, but the album at least merits attention as a curiosity in a field rarely lacking such things. It is basically a synthesizer album, but Labat notates his musical scores not by note, but by an arrangement of multicolored squares placed side by side on a linear graph. Six full pages of this brilliant technologia are offered as inducement to sale, and they're quite neat to gawk at while listening to something else. The music itself runs the familiar gamut from synthijazz to the usual electronic mysterioso- cosmic space stuff - all of it competent but hardly innovative. If you're an electronic music freak, however, you might enjoy it, and it'll probably be in the delete sections of your record store within the year. Worth anything up to two bucks."

How did I miss this review? Rolling Stone was good in 1974! Even if the M. Frog Labat record wasn't! $48 bucks seems like a lot, especially when you can download all of the eleven tracks for .99 cents each, but the packaging seems critical. Actually, this is the kind of thing that has to be acquired on vinyl-- a jewel boxed CD wouldn't cut it.

Court of Appeals speculation. We'll know soon enough, and I expect there will be howls of upstate indignation if Judge Pigott isn't tapped. He picked the wrong year to be a Republican white guy, I'm afraid.

The New Year brings a new edition of Professor Siegel's newsletter, always a bright spot in the morning mail. The lead decision under discussion in this month's edition deals with unconscionable fees. In Lawrence v. Graubard Miller the Court of Appeals finds that the question of whether a $40 million dollar fee for five months worth of work on an estate is "unconscionable". The answer is, we don't know. The procedural grounds on which the matter reached the Court of Appeals did not permit for the development of sufficient facts on the record to make the determination, so the matter was remanded. Sigal notes that the Court dropped a hint in a footnote: [I}t is not unconscionable for an attorney to recover much more than he or she could possibly have earned at an hourly rate [and if] courts become too preocupied with the ratio of fees to hours contingency fee lawyers may run up hours just to justify their fees, or may lose interest in getting the largest possible recoveries for their clients."

Whenever I come across a case about contingency fees I am reminded that in just about every other jurisdiction in the world they are at least unethical, and usually flat illegal. I can see the reasoning for that, but given the overall economic structure of our society and our legal system I am inclined to believe that in the US at least there is a good deal of validity to the notion that the contingency fee is the poor man's key to the courthouse. That doesn't seem to be what was going on here, but sauce for the goose you know? Rich and poor alike are forbidden to adjudicate their estates under the bridges of Paris.

After a taxing holiday season our dishwasher is acting fussy. It is getting up in years, and it gets rode hard, but I want more from it. We've discovered a product that seems to goose its performance-- it is a bottle of some sort of undoubtedly extremely caustic something-or-other that you put in the flatware basket. You run the machine, empty, as hot as it will go, and then it washes dishes properly again. For a while. The secret chemical additive put me in mind of STP. Remember STP? I guess it still exists, but when I was a kid there used to be commercials for it on all the time, featuring the company's owner, Andy Granatelli. It was an additive-- you supplemented your regular oil with STP. In what was almost certainly not a tribute to Somerset Maugham STP's slogan was "The Racer's Edge". Sometimes the product's efficacy was demonstrated by having Rocky Marciano attempt to hold a screwdriver by its tip after it had been dipped in STP treated motor oil. The tool would slip right out from the champ's fingers. I hope the dishwasher stuff is as magical.

I've said it here, and I've said it in the pages of Spree: the best place to hear great music in Buffalo is in the vicinity of Bruce Eaton. Running down the Village Voice Jazz Poll I see that thanks to Bruce we saw Rudresh Mahanthappa (#2) and Vijay Iyer (#4-- same show, actually), as well as Lionel Loueke (#12). Bill Frisell's (#9)show, back when the series started is still one that I think back on, and Dave Holland (#17) was one of the most amazing things I ever saw.

Running through my archives for 2008 I was struck by two things: I did less interesting travel than is usual for me, and I seem to have heard less live music. The standouts were the Hunt Real Estate Art of Jazz shows, Willie Nile at the Tap Room, TMBG, Kathleen Edwards and David Byrne. No Thursday at the Square (it seemed like it rained every Thursday), and very little else. That's something to work on, I think. I listen to music all the time-- the only time I don't is when I am at work, and I think I agree with the point Robert Christgau is making when he says, "For me music doesn't fully become music until it approximates a social fact by existing outside of my head." The Dean is speaking to the question of whether contemporary music listeners experience it privately, on headphones or through their computers, and that raises an interesting question about generational shifts in how music is enjoyed. Not so long ago music was something that you performed yourself, or occassionaly saw performed. 78's limited the length of a given performance and came to define what the duration of a pop song appropriately consisted of. Albums allowed musicians to stretch out; CD's permitted the inclusion of more material, and now we listen to individual songs-- MP3s amount to the return of the hit single, with a twist. Time was that hit singles were heard on the radio were a part of the social soundtrack, but that day has long passed, I think. Is this evidence of social atomization, or something else?