Outside Counsel

The Second Department declines to apply the doctrine of primary assumption of risk in a case where the plaintiff was injured while riding a bicycle on a paved public roadway. The plaintiff was the last bicyclist in one of several groups of eight riders cycling on a 72-mile ride. The road "was not perfectly smooth," and contained potholes. The plaintiff was injured when the rider in front of her fell into her path. She swerved and slid into the road where she collided with an oncoming car.

Assumption of risk, a complete defense, is a concept that is simply a mess in New York. As a general proposition New York is a comparative negligence jurisdiction-- fault is assessed on a proportional basis. For some activities, notably sports, but some others as well, the court can find that that the risks inherent in the activity are "known, apparent, natural, or reasonably foreseeable consequences of... participation", and therefore there is no duty of care owed to the participant by any third party. Well known examples of people who have been screwed by this theory include Elliot Maddox, who wrecked his knee when he tripped on a drain in Shea Stadium's outfield; and Ron Turcotte, who was rendered paraplegic when he was thrown from his mount after being fouled by another rider.

The decisional law in this area has always had an ad hoc quality in my view. Sometimes the courts will find that there was some sort of defect in the premises that takes the occurrence out of assumption of risk, but drains in the outfield or improperly watered, "cuppy" tracks don't qualify. Apparently riding a bicycle doesn't qualify, at least in this context, which is good news, but hardly something that anyone could have felt comfortable predicting. It is not clear to me if the doctrine would apply had the riders been participating in a race, rather than an organized tour. Should it make a difference if a pedestrian trips and falls on a roadway defect if that pedestrian is walking to work or running in a 5k? What if the 5k participant is a Kenyan, competing for prize money? It all seems arbitrary to me, and that is not something that a complete defense to liability should be.

Captain X lent me Steve Matteo "Let It Be" from the 33 1/3 series (the Beatle's side, not the Replacements-- there are 33 1/3 books on both). For a long time "Let It Be" was the only Beatles' album I owned, so it's fair to say that I'm pretty deep into it. It's a paradoxical recording. The band's last album, except it wasn't, it has always seemed to me to have an unfinished quality, even though the Phil Spector production was likely intended to make it seem final. They couldn't leave it alone, though. "Let It Be...Naked" is the only reworked album by the band, and I expect that we'll hear another version or two before it's over. You would never expect to hear an alternate version of "Revolver", or "Help", but "Let It Be" has always sounded like a work in progress. It's always seemed to me that the defining song from the record is "One After 909" rather than the big Spector-ized string filled numbers that were intended to give the album its valedictory quality-- "909" was one of the first songs John and Paul wrote together, and they were still working on it when the band was breaking up.

Books about the Beatles are a funny proposition- I can't think of any other pop culture topic that has been as thoroughly and compulsively reviewed and obsessed over. Matteo's book clocks in at a little over 200 pages, and is just about the right size-- it has the stuff about what guitars the boys had, and the microphones in the studio, and it has some gossipy bits, but for the most part it is about the experience of the recording process. Matteo's accomplishment here is to give us a window into what it might have been like to have been present as this record was being made as an onlooker rather than as a participant. He does a good job with a complex subject, and is never overwhelmed or overwhelming.

The New York Law Journal reports that the confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court may be administrative complication at the Second Circuit. There is currently one vacancy created by Judge Chester J. Straub to takingsenior status, although Southern District Judge Gerard E. Lynch has already been nominated to take that position and has appeared before the Senate Judiciary Committee. There are three more slots will open up in the next five months as three more judges take senior status: Judge Guido Calabresi, effective July 21; Judge Robert D. Sack, Aug. 6; and Judge Barrington D. Parker, Oct. 10. The confirmation of Judge Sotomayor could leave as many as four openings on the 13-member court.

Judge Sonia Sotomayor works for me. A. has appeared before her, and was impressed, and everything I've ever read by or about her her has likewise been impressive. If I were advising the President I'd keep the short list they used here in my top drawer-- he could go on picking women, and the Court would be the better for it. This October the Supreme Court will look a little more like the United States. I love that, and I love that the Senate Republicans are going to look like nitwits trying to oppose this nomination. Obama keeps letting out a little bit more rope for them, and they keep wrapping themselves up in it.

In a group of at least 23 randomly chosen people, there is more than 50% probability that some pair of them will both have been born on the same day. For 57 or more people, the probability is more than 99%, and it reaches 100% when the number of people reaches 366.

There's always a lot of talk in Buffalo about cultural tourism, and most of the conversation is about buildings and art. That's fine-- I like both. Buffalo has plenty of attractive, significant buildings; the unique Olmsted system of parks and parkways is well worthwhile, and our arts scene is deep and varied. All that said, it is possible that we've been overlooking a significant cultural asset in promoting the region, and it seems like that may be about to be remedied.

The last time I was in New Orleans we were told that nearly 40% of the city's economy is based on tourism. Americans list the food as the first thing they think of when they think of New Orleans, and Europeans say they they think of the music first. Now I see that Jane and Michael Stern are bringing their Roadfood Eating Tour to Buffalo and Rochester on September 19th and 20th, and it's like a dime has dropped-- why haven't we been promoting this all along? Wings, and particularly the Chicken Wing Festival have been out there for a while, but the plain fact is that as an eating destination I think you'd have to say that Buffalo belongs on the map the way few other cities do. It's not just about regional specialties, although certainly a trip to Ted's, and a visit to Anderson's would have to be a part of anyone's culinary itinerary. Speaking just for Buffalo I can think of a dozen joints within a 20 minute walk from my house that would be worth the trip. I've always thought that NOLA and Buffalo have a great deal in common-- they are about the same size, the Catholic Church has had a deep influence on both, the weather shapes life in both in funny ways, the people talk funny, they are both big drinking cultures....

We should be playing up this aspect of what we are all about. Come for the Albright, and don't miss Coles'. Visit Hallwalls, and check out the Anchor. (Actually, the Anchor has been a disappointment the last few times I've gone. They need to pick up their game.) Without getting upscale I'm willing to bet that just about everybody in Buffalo has got a mental list of favorite joints that would be the envy of people from all over the country. We don't think of Santasiero's as much of a marvel, but think of what it would be like to someone who thinks the Olive Garden is an Italian restaurant. And we can go upscale just as easily-- we have a plethora of serious dining destinations, more good steakhouses than most cities three times as big-- you name it. How did we miss this?

I have a tendency to dwell on what we haven't got-- Jeff Simon is right, we need a deli, for example. But nobody has delis, really. There are only about a half dozen in New York at this point. If I were in New Orleans I wouldn't be scouring around looking for a pastrami sandwich.

Privacy cases in the US are different from the way they do it in the rest of the world-- here they mostly arise in the context of Fourth Amendment jurispudence, a clumsy tool for the job. In People v. Weaver, a case just handed down by the Court of Appeals, we have an example of how easy it is for an apellate court to get it wrong (although the Court of Appeals ultimately got it right). The defendant contended that the placement of a battery operated GPS device on the undercarriage of his van for 65 days by the State Police as part of a criminal investigation violated his Fourth Amendment rights and the New York State Constitution. The Appellate Division affirmed the conviction (4-1), finding that a person has no reasonable expectation of privacy in the publicly accessible areas of his vehicle, which includes the undercarriage or the location of his vehicle on public streets, and that therefore the use of the GPS device his constitutional rights of privacy. The Court of Appeals reversed (4-3) under the right of privacy guaranteed by the New York State Constitution [article I, §12], granted defendant’s motion to suppress, and remanded for a new trial.

It is apparently an open question as to whether this is a Fourth Amendment violation, which blows my mind.

I reckon I'm as knowledgeable as most knowledgeable Beatles fans, but Beatles Anecdotes has got tidbits I never knew.

"On the Fab Four’s 1965 tour of the U.S., Byrd David Crosby introduced George Harrison to both the sitar and the music of sitar legend Ravi Shankar. The rest is history as Harrison became fascinated with both the sitar and Indian music. This introduction culminated in Harrison using the sitar in “Norwegian Wood (This Bird Has Flown) on Rubber Soul, the first ever time a sitar appeared on a pop record."

"For the groudbreaking 1968 double album that is universally known as “The White Album”, Eric Clapton seems to get all the attention when it comes to the subject of collaborators on the album. However famous Clapton’s lead guitar on “While My Guitar Gently Weeps” may be, we must not forgot that the song “Birthday” represents the only time that the wives of the Fab Four helped out in the studio. Yoko Ono, Pattie Boyd and Maureen Starkey all provided both backing vocals and handclaps on “Birthday”. Please note that during the recording of the album that Paul was still a bachelor."

There's loads of this kind of stuff.

My preview of the Thursday in the Square/Rocks the Harbor shows, including useful links to the homepages of the artists Buffalo Place has booked this year is up at the Spree blog. Bottom line: best lineup in years. Pick hits: Los Lobos, George Clinton and Neko Case at the Square; The Robert Cray Band with the John Hammond Trio and Indigenous, and Great Big Sea with Kathleen Edwards and Jeremy Fisher at the Harbor.

It's true enough that "[t]he one genuinely unprecedented element of the band's sound is [Dylan's] singing voice, which at this point is a wonder on the order of a wrecked 67 Saab that still manages to start even though the rust has penetrated clear through to the steering wheel." What's interesting is that, on the evidence of "Tell Tale Signs" he doesn't have to sound quite as rheumy and ravaged as all that. It's a stylistic choice.

It is popular to speak of the three sides of new material that preceded "Together Through Life" as a kind of a trilogy, Dylan Redeemed, if you will. What the new release, and "Tell Tale Signs" actually establish is that his creative renaissance started quite a bit earlier, and is ongoing. The two sets also demonstrate that although Dylan doesn't necessarily regard his songs as complete when they are released, he is mindful that an album is an artifact. "Together Through Life" is an appealing set of songs-- the first time he's worked with a collaborator on lyrics since "Desire"-- but it's also an appealing package that comes with some nice goodies. There's a sticker, and a poster, like they used to do in the 70's, and a dvd interview, and a cd with the "Friends & Neighbors" show from the Theme Time Radio Hour. You wanna sell CDs in the mp3 era? Give some value.

Overall I'd say that The Bootleg Series has been a genuine artistic success to date. These are not merely collections of outtakes and live versions of familiar material-- although there have been sets that have mostly historical value, for the most part what these sets are doing is recontextualizing Dylan's body of work. This isn't really something new-- "Biograph" was intended to work that way, and so too were at least some of the live releases over the years. "Live '66" is a document, for example, the way that "Before the Flood" is, but what both are documenting is his collaboration with The Band, a creative period that is otherwise comparatively under-documented. "Live '75"-- the Rolling Thunder Review set is a companion to "Hard Rain"-- same tour, same band, but radically different music. The point of "Live '64" has always seemed to me to be in the audience reaction to material which was unknown to them. If the "Judas" exchange is at the center of "Live 66", than the complete lack of audience reaction to "Even the President of the United States must stand naked" is what makes "Live '64" interesting-- that was probably the last time the line failed to evoke a response.

With all that behind us we are now able to listen to "Tell Tale Signs" and understand it. In an odd way this is the Dylan album that I've been wanting and waiting for for the past 15 years or so. The side tells us what he's really been up to lately. It can't be denied that his work over that period was spotty, but it is now also clear that there was quite a bit that was solid, and some that was as great as his best. We can listen to this material and notice that the musicianship is excellent, and recall that he's always played with great musicians, and always had a pretty specific sound in mind. Then we can turn to "Together Though Life" and realize that, like his radio show, it is a surprisingly warm gesture from a figure who has always been at considerable pains to keep himself at arm's length.

"So, who do you like in the Preakness?" A asked as we were taking LCA to dance. "I don't know if I'm going to play it," I said. "Why not?" asked LCA.

"The filly is 8-5. That's no kind of play. She probably is the best horse. Mine That Bird is going to be under a different jock-- Calvin Borel is on the filly-- and people are saying that he got a great ride and a break from the track that he probably won't get today. I don't think the Preakness is a race that's going to be won by stalking, and there is no evidence that Mine That Bird can go wire-to-wire. I like the horse, but the money is short there, too. I don't think Pioneerof the Nile is a closer...."

"You must have studied," Lillian said, "And in studying you must have learned that man is mortal, so you would have put the poison as far from yourself as possible, so I can clearly not choose the wine in front of me...."

"And know you know why handicapping is so difficult," I said.

I'm leaning towards Big Drama.

Actual Robin Trower lyric heard today on the way to work: "We're living in the day of the eagle/The Eagle of Love". So that clears things up. What day is it? The day of the eagle. Which eagle? The Eagle of Love, of course.

The song itself is vintage Robin Trower, since it is the opening cut from "Bridge of Sighs". It's a Hendrix-derived riff, played over a prominent bass line. It's an up-tempo number, which is how I prefer him, and I suppose picking on Robin Trower because the lyrics are silly is a pretty pointless exercise, but c'mon. The Eagle of Love? Pete Brown would be embarrassed by that.

The Hon. David B. Saxe describes the internal workings of the Appellate Division, First Department. I love this sort of inside baseball, and not just about law-- descriptions of how people go about their jobs in general are fascinating to me. I was before Judge Saxe pretty regularly back when he was on the trial bench-- he had a deserved reputation of being a law guy, and he was pretty hands-on as well. It is helpful to know how he feels about some of the things that are a routine part of most people's advocacy. For example, "Often, briefs are laden with excessive discussion, addressing such generalities as the applicable standard of review or the requirements for summary judgment, including string cites. A new justice quickly learns to bypass this sort of boilerplate material. Normally an appellant's brief contains multiple points, but usually one or two are truly dispositive, and the justice will usually focus most attention on the salient issues. Those parts of the record that are referred to in those points must be examined." In other words, cut to the chase.

Little bits of protocol are also cool: "The J.P. controls the clock, and has the last word with regard to argument time. When an illuminated red light at the counsel table indicates that a lawyer has used up the allotted time, the J.P. has the authority to direct that argument cease. Even if another justice just finished asking counsel a question, once the allotted time has expired, protocol requires that counsel seek the permission of the J.P. (not the questioning justice) to respond to such a question, by asking: "Judge, I see my red light is on, may I proceed to answer the question?" Indeed, not only counsel, but also the justice asking the question should defer to the J.P.'s response. Similarly, if a justice wants to ask counsel another question after the red light has been illuminated, that justice should try to get the attention of the J.P., who may otherwise declare counsel's time up." Remember that, kids. When you want time to finish, ask the presiding justice.

Suzanne Vega is the “Mother of the MP3″, and Lena Soderberg is why we have digital imaging, sort of. I wonder if there are more examples of this sort of thing? It seems to be a reflection on the essentially romantic nature of scientists, doesn't it? Or, more accurately, male scientists. There's the story about the little girl who named Pluto....

Neddie Jingo expresses exactly how I feel about Yes. A great deal of my music listening occurs in the car, and quite a bit of that time is spent listening to XM Radio's "Deep Tracks". Mostly this works out okay-- it is not as good as my iPod on Shuffle, for reasons I will get into, but they play album cuts from roughly the LBJ Administration through Bush pere, more or less, and that's pretty much where my rock listening is centered. I'd like some punk and new wave mixed in, but there is a separate station for that. I would like more music by actual black people, but that's not really how rock music from the time period in question works. Satellite radio music programing mostly operates along two axis: one is time, and the other is volume. There are stations devoted to the music of a particular decade, 40s through 90s; and there are stations that just play music by one artist. Some of these are jaw dropping. In theory I can understand a station that plays all Grateful Dead all the time, although personally I want no part of such a thing. But all AC/DC? Really? The genre stations work best-- like Deep Tracks, or the Soul, Jazz, and New Wave stations. What is actually the best program, with the possible exception of Mr. Zimmerman's show, is Tom Petty's Buried Treasure. Like Dylan, Petty is having a great time, and you can hear it. "Awriiight," he'll drawl in that stoned Florida accent. "That was the Yardbirds, with Mr. Jeff Beck, recorded about a month after he came on board with the band." Petty plays music by black people, and crosses decades, and tells you when something was recorded, and who produced it, and what label it was on. Last week he mentioned that Eddy Offord had been the engineer on the Yardbirds track he'd just played, and that Offord had gone on to work with Yes, for example, which started me thinking about why Yes is such a hit or miss proposition. I think Neddy gets it mostly right-- Rick Wakeman is a big part of the problem-- but so is Jon Anderson. And what the hell are those songs supposed to be about? Even so, I still like Chris Squire's work, and Steve Howe's, at least up through "Close to the Edge". I suppose I should own "The Yes Album", but the only side by the band that I have ever had on my shelves was "Time and a Word".

Jack Kemp was never iconic for me, but I understand why he would be a figure comparable to Mickey Mantle for anyone who grew up in Western New York, the guy who brought the city the only national championship it has known. By the time I caught up with his career he was a conservative congressman who was working what seemed to me then to be the fringes of the lunatic Right. I was wrong about a lot of things when I made that assessment-- Kemp was nothing like as right-wing as the Republican Party could get, and although I'd still take issue with just about every policy position he ever advocated, he was certainly a decent guy, with a better sense than most conservatives for the realities of race and poverty in the US. When Dole tapped him for the VP nomination someone quipped that Kemp had showered with more black guys than most Republicans had ever met. I thought his presence in that race would have had more of an impact than it did, but Kemp's appeal in New York State probably didn't extend past Syracuse.

Think about the 1988 Republican Presidential primaries for a second:

George H. W. Bush
Bob Dole
Pat Robertson
Kemp
Pierre S. du Pont
Alexander Haig
Ben Fernandez (RNHA chairman of California)
Paul Laxalt
Donald Rumsfeld, and
Harold E. Stassen.

Who'd have guessed that 20 years later it would be Robertson that would be the most representative of what the Republicans would become? For that matter, consider the scene in 1980: Reagan, Bush pere, John B. Anderson, Howard Baker, John Connally, Phil Crane, Dole and Stassen. How many of those guys would even be Republicans today?

Reagan is said to have wanted Kemp on the ticket, which might have, inter alia, spared us the Bush dynasty.

To the Hunt Real Estate Art of Jazz last night, a double bill with Frank Kimbrough opening on solo piano, then returning as part of the Kendra Shank Quartet.

I liked Kimbrough, who we already knew to be a versatile instrumentalist, having seen him in past seasons with the Maria Schneider Orchestra and with Dewey Redman. This evening we got a more cerebral performance, in both of his iterations: as a solo he was channeling his inner Keith Jarret, sort of, with a strong left hand setting up some interesting atmospherics. The Quartet was more about experimentation in rhythm, I think. Anchored by drummer Tony Moreno, and bass player Dean Johnson, Shank worked the post-bop style, frequently scatting and incorporating whoops, pops, and other unusual vocal techniques so that the overall effect was more or less instrumental. I liked the things she did with the numbers from her Abby Lincoln tribute-- particularly the opener, "Throw It Away", and I liked the two sort of standards. She slowed down "Blue Skies" and took it in a minor key, which is completely counter-intuitive. It personalized the song, I thought, although Jeff Simon singled it out for a slam in his review of her new side. Her set closer, "Black is the Color" was more up-tempo, and nicely incorporated all of the strengths of the quartet-- Johnson's limber bass, Moreno's expressive drumming, and, especially, Kimbrough's versatility. It was challenging music for most of the set, not really a singer with a trio behind her, more of a band performance, but although it took some concentration to stay with it, the overall sound was warm and pleasing.

It occurred to me as I sat there, and not for the first time, that what Bruce Eaton has done over the past ten years with this series is quite remarkable. There is a core of regulars in the room, in the audience and on the stage and over the years this has given the series a distinct personality. We are all smarter listeners because we have taken Bruce's programing on faith, and as a result we are a better audience. The auditorium at the Albright-Knox has become a room that the best jazz musicians working know about, and want to play. Bruce booked the Bad Plus a year before they broke because bassist Reid Anderson's had been through with Claudia Acuna and gave Bruce a demo of his other project. We have acquired a reputation as a good audience, and we work hard to live up to it. The other night PBS had a Bill Frisell concert-- a tape from a Rochester Jazz Festival show from a few years back-- and A. and I were reminded of the time Bruce brought him to Buffalo. In fact, Frisell was part of the first season, which also had Jack DeJohnette with David Sancious, and the Phil Woods Quartet. The audience was not as well prepared for Frissel as it would be today, and people were streaming out during the first half, prompting the guitarist to quip, "Now that the squares are all gone we can get down to business." That wouldn't happen today. Bruce Eaton has managed to turn Buffalo into a jazz destination by doing two things-- booking the best, and getting us to trust him.

I Want Revenge's scratch is going to move a lot of money around. My plan B was to box Friesan Fire (who I guess I really like) with Chocolate Candy.

UPDATE: We had a pretty thrilling two minutes. LCA had a $2 ticket for Join in the Dance, who led until the clubhouse turn; and A had Mine That Bird. She cashes a sweet ticket, and the wisdom of Captain X is once again confirmed-- when you don't have a bet down, horses are pretty, but a two buck ticket makes a horse race the most exiting thing in sports.

April was a lost cause, and now here it is, Derby Weekend already. I'm boxing I Want Revenge and Friesan Fire.