Outside Counsel

A happy surprise last night, "Counselor At Law", William Wyler's adaptation of a play by Elmer Rice, featuring John Barrymore, from 1933.

I was not inclined to write about Michael Jackson. I suppose it is notable that he was some kind of template for so many things-- race, most notably, but sexual persona as well, and other things. How peculiar that a person so unlike anyone else could nevertheless be the focus of so many other people's projections. The sad fact of Jackson's existence was that his relationship with the world was through performance. An insight from a Christgau article, then: "There's not much point in criticizing him for this, though I suppose that in theory he might have set himself the goal of becoming "normal" rather than the goal of becoming the biggest star that the world has ever known."

And this, via Making Light: "This was a man (it's a mark of how profoundly damaged Michael Jackson was that it feels strange to call him "a man", just as it feels strange to recognize that when he died he was older than the President of the United States) who spent every day of his life embedded in a matrix of perverse incentives. The terrain of his personal landscape was unrecognizable. I can understand the choices that my cat makes more deeply than I could understand the ones Jackson made."

I suppose the same sorts of things could have been said of Elvis, and on that level I'd say the comparisons that have been made have a certain validity. Elvis's overall contribution to American culture is certainly greater than Michael Jackson's, but it makes a strange kind of sense to me that Jackson is one of the few men to have been upstairs at Graceland.

The sentencing memo submitted by the US Attorney in the Madoff case makes for pretty amusing reading. I'm inclined to believe that the government tends to over-reach when it comes to sentencing. The US routinely imposes terms which are grotesque by the standards of other Western nations. Even so, $13..2 billon bucks stolen. More than the GDP of thirty one African countries. And where is the money? The Feds don't know, exactly, but it seems pretty obvious that there isn't going to be any real restitution here. Apparently he hasn't been very helpful to the trustee since he was arrested. Give him 150 years. I hope he lives 149.

Top Ten Worst Rock Star Actors. With a little work I'll bet you could work out an algorithm which would predict this-- the more iconic as a rock star, the worse the performance. I'm not sure I agree with the ranking here-- I found Jagger surprisingly good in Performance. On the other hand, A and I watched "Masked and Anonymous" last week, and I'm forced to conclude that ol' Bob is at his best in documentaries. I think Madonna is charming in "Desperately Seeking Susan", and suspect that she is dreadful in anything else she has done because "Susan" was the last time she was willing to give up control. I'm no kind of Bowie fan, but "The Man Who Fell to Earth" worked for me. It is easy enough to understand why Roger Daltry would want to be a movie star, but it is harder to know why anyone would indulge his whim in that regard.

Slate has been featuring a week-long discussion among Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick about the Supreme Court term just past, and the Sotomayor nomination. I like Professor Dellinger's observation: "There is no better example of the false triumph of logic over experience than the 1896 decision in Plessey v. Ferguson, where the Supreme Court upheld Louisiana's law mandating separate railroad cars for white and black passengers in an opinion making the logically correct observation that the law treated the two races exactly alike." He is referencing Justice Holmes' remark from "The Common Law"-- ""The life of the law has not been logic; it has been experience."What both Holmes' observation and Dellinger's reference are driving at is that jurisprudence that is outcome-determinative can be dressed up to appear as though the result is the inevitable product of objective reasoning and nevertheless be unjust and wrong. Dellinger again: "Assuming that judging should be like calling balls and strikes leads to the conflation of very different experiences—and to bad law." (In a comment made in response to a post about the Robert's confirmation hearings C.J. Colucci summed up Roberts' nicely: "Is Roberts going to be the type of umpire who calls 'em as he sees 'em, the kind who calls 'em as they are, or the Bill Klem-Legal Realist style umpire who says "they ain't nothin' 'til I call 'em"?".)

The point is, I think, that the way law gets talked about in the press and in Senate confirmation hearings, and by other people who don't know anything about law, is just ridiculous. It is impossible to look at the way the Roberts Court sets about its business and believe that it has not embarked upon a radical re-writing of existing law. For example, Linda Greenhouse, one of the other participants in Slate's Supreme Court Breakfast Table notes, Gross v. FBL Financial Services completely rewrites the rules for litigating an age discrimination case. "The court took this big step without notice to the parties that it was even under consideration. Once it decided to go that route, the court should have invited supplemental briefing or—as would have happened in earlier years—scheduled a reargument so that all parties could have addressed the implications of a potential ruling that will, predictably, make it much harder for victims of age discrimination to survive summary judgment, let alone prevail on the merits. This was a nasty/lazy/shoddy way to proceed. Justice Stevens said it better: "[a]n unabashed display of judicial lawmaking."

Assuming that the Senate Republican caucus can round up enough members who have not committed a recent marital indiscretion in the coming weeks we are going to be treated to a round of speeches and sound bites about original intent, and following the law, and all the rest of it that has nothing to do with any sort of reality. I imagine George Will has a column all ready to roll, too. The real pity is that Judge Sotomayor is, from what I can tell, actually a somewhat conservative jurist, in the sense that "conservative" used to mean. What we could use is someone who is willing to engage the right wing of the Court on their own terms.

It is early days, but Wilco's "You Never Know" is a serious contender for My Personal Hit Single of the Summer.

What kind of gonif steals from Sandy Koufax? The Bernie Madoff kind. I suppose one might argue that he prayed upon the greedy, and no doubt there were people and institutions that should have known better, but at the end of the day the magnitude of the money this guy stole is just so staggering that it takes a special kind of chutzpah to argue that the court should set aside the "hysteria" generated by the largest Ponzi scheme in history and give Mr. Madoff only 12 years in prison. What are the mitigating factors here? That he knew when the jig was up and didn't split? Classy. Ira Lee Sorkin might have wanted to consider that the slammer is probably the safest place for his client, who committed a fraud of such astonishing proportions that only the global financial meltdown prevented Madoff's crimes from having an even more serious effect on the world's financial markets.

Why didn't I know that the Rolling Stones had done a Rice Krispies commercial?

I'd like it better if the ratio of Eric Clapton to Lester Bangs was reversed, but this is an interesting clip all the same. (Via rockcritics.com.)

Horrible Tattoos. This kind of thing is always hilarious. I happened upon the site in the comments to this, from Ann Althouse's site, also funnier than hell.

Heavy Rotation: Twenty Writers on the Albums That Changed Their Lives sounds like a great idea, but the examples aren't exciting me. I'd say that this sort of thing is better done in the 33 1/3 series. Just the fact that a 33 1/3 author picks the record in question tells you a lot, and then they write about it, sometimes including personal insights, sometimes not. Rock crit should be serious writing (which is not to say that it should be "serious"). The best writing about rock'n'roll has a genuine literary value, be it Lester Bangs' digressive musings, Christgau's capsule quips, the Mad Peck's multi-media blending or Greil Marcus'sociological tomes.

Timothy Noah provides a good overview of the world's health care systems by way of a review of T.R. Reid's forthcoming book. It is extremely irritating to consider that the US system essentially combines the worst features of every other plan out there. It troubles me also that the plan Obama appears to have in mind seems to assume that the present price model for the provision of medical care is somehow an absolute. In fact, treating visits, tests and procedures as different price points is a completely arbitrary construct, and certainly not something that was brought down inscribed on tablets of stone (or aspirin). We are hearing a great deal about how physicians ordering too many expensive tests drives up costs, and no doubt that is true. (We haven't been hearing so much about the cost of medical malpractice this go-round, and I wonder if that's because the medical community realizes that the myth of a malpractice crisis has been exposed, or if it is just that they know that nobody's in the mood for their whining this time.)

I'm not so sure that making the present system more efficient is necessarily the answer, but that appears to be where we are driving.

It's not going to happen, but what I'd like to hear is a description of the ideal healthcare system. I'd like to hear doctors describe it, and I'd like to hear economists describe it, and I would like to hear healthcare administers describe it, and then I'd like to work backwards from the systems they describe, and construct something as close to that as possible. TCA is fond of saying that she'd be happy if everyone got what members of Congress get, and I'd be surprised if following my proposed methodology didn't bring us to a system like that.

Ann Althouse is a law professor at the University of Wisconsin. (According to her Wikipedia entry she worked for a while at Sullivan & Cromwell, and I can't help wondering if her time there overlapped with my time in the mailroom of that firm. Might have.) I only tend to read her when Lawyers, Guns and Money bring something to my attention-- she seems to strive for being provocative, in the manner of Camile Paglia, and that gets tiresome fast. On her Constitutional Law final this year she picked up on President Obama's remarks about the value of empathy in the make-up of a Supreme Court Justice, and asked:

"Where, in the cases that we studied, has it mattered whether a Justice followed abstract theories and dry text from case books instead of the things the President wants from a Supreme Court Justice? Choose specific opinions (majority, concurring, or dissenting) ... that illustrate the two types of judicial reasoning that the President contrasted....

"[L]ooking at the opinions you have written about, take a position on the importance of the quality of empathy in a Supreme Court Justice."
(The link is to the whole question.)

It seems to me that a good essay on this question would be an interesting thing to read; and I think that a really good essay would allow a professor to pretty accurately evaluate a student's grasp of constitutional law. I also think that a question like this would be tough to grade, and for that reason I'd hesitate to throw something like that on an exam I was giving. The Volokh Conspiracy (which I find more intellectually vigorous than Professor Althouse's site, notwithstanding its politics) has an interesting discussion on the question of whether it is a good question.

For what it is worth, it seems to me that conservatives are making far too much stew out of the empathy oyster. Of course empathy is an important quality in a judge. I use the word "temperament", but it is the same quality-- a good judge respects the importance of the matter before the court to the parties, and to society at large. That respect doesn't drive the outcome, but it will certainly inform the deliberative process. Only someone who has never been before a judge-- as a party or as an advocate-- could possibly think otherwise.

Words the NYTimes uses that nobody else does. Just for fun I decided to see whether I use any of these.

I used "sui generis" in reference to a blog that bears that name. (It's a good blog-- I used to have it on my sidebar, and I'll put it back next time I'm revising it.) Anyway, I know what sui generis means.

Oddly, "solipsistic" doesn't show up. I must use "begs the question" instead. "Louche" is another one I don't use. I'm not sure I know what it actually means, and I'll bet Maureen Dowd probably doesn't either. I use "laconic" less than I'd have thought. I doubt that comes as a surprise to anyone who knows me. Hard to believe that I never described Dick Cheney as "saturnine"-- I guess that will have to go on my To Do list. I know what "antediluvian" means, and I can even pronounce it, but I don't use it. "Epistemological" shows up, although "shibboleths" does not. I had to look "penury" up. I was pretty sure about "sumptuary", but I looked it up too. "Schadenfreude" I use all the time. I know I've used "peripatetic", because a secretary once asked me what it meant. I haven't used it here, and I'm not sure why. You'd think I'd use "abstruse", too, but I don't. "Parlous" is just showing off. Is it a long "a" or a short one? If I can't pronounce it, I'm not going to use it, and I've never heard anyone say "parlous" aloud. "Enervating" and "adenoidal" are absent, but not "feckless". "Solipsism" is cheating. Put the adjective on the list, or put the noun on the list. No wonder nobody uses "begs the question" correctly.

I'm not surprised that "ersatz" is absent, but it's a word I like. I used "fealty" in this post about the Steve Forbert Game. I use "sanguine" in conversation all the time. I don't know why it doesn't get used on Outside Counsel. I'm going up to 22 just to mention that "sartorial" is no stranger.

Took a bike ride out to the West Seneca campus of Houghton College today. It's on the block, and I was curious about what it might look like. Not a very pretty ride, through the poorest neighborhoods in the city. ("and what did you see, my blue-eyed son? And what did you see, my darling young one?" "I saw an 84 Firebird with handicap plates on it. I saw a man with no shirt, his boxers were showing...." One of the other things I saw was West Seneca Central West Middle School, more a set of directions than an educational institution. The nickname of the football team is the Fighting Latitude: 42.84 N, Longitude: 78.76 W.

It is not comforting to me that we seem to be leaving the makeup of the Supreme Court to the admissions committees at the Yale and Harvard Law Schools.".

As good an explanation for what's happening in the New York State Senate as I've seen. (Via Making Light.)

I should have posted this last week, when I first saw it, but the fact that it has stayed with me this long means that I really have to mention it now, before it is lost to the shifting sands. I love the NYTimes, for all its stuffiness, but since Russell Baker retired you'd have to say that it is a publication that is sense of humor-deprived. This piece, about Statuary Hall in the United States Capitol, made me laugh aloud.

"Statuary Hall is an exclusive club, but its members are not all well remembered. Most people in Hawaii would recognize King Kamehameha I and Father Damien of Molokai. But it would be hard to fill a schoolbus with New Yorkers who know Robert Livingston, one of the lesser founding fathers, and George Clinton, not the guy with Parliament Funkadelic, but the other one who was Thomas Jefferson’s vice president."

Naturally enough, I think of Bruce Eaton as a jazz guy, but he has written a book about Big Star, and apparently Bruce was a punk rocker.There were some great clubs in Buffalo back then-- The Continental was the one I knew best, but Bruce played with Alex Chilton at McVan's, which was also a magnificently seedy venue. There's a Wilson Farms store on the corner of Niagara and Hertel where McVan's used to be, and I think someone is trying to turn the Continental into condos. Although there's something of a tour market for old Buffalo bars, it seems to center mostly on the blue color joints where people who had jobs drank after shoveling grain for ten hours. It would be interesting to go on a tour of some of the sites where Buffalo's punk rock scene flourished before flaming out-- dog-collar bars, I guess you'd call them. One of the other great rock institutions of those days was Gary Storm's Oil of Dog program. I think I'd want a recording of an Oil of Dog program, with the wolf howling at the intro, playing on the tour bus, to replicate the experience of driving to Hotel California, or the Central Park Grill at 2 AM on a Saturday.

One of the things that I haven't mentioned here about EGA's cancer diagnosis is that she found a lump some five months before she was sent for further testing. Being EGA, when she found the lump she went immediately to the University clinic, and was told that it was probably nothing. The lump didn't go away, so she went back, and that was when they sent her for an ultrasound.

Now, the fact is that breast malignancies are extremely rare in women her age. If what you are interested in doing is containing costs by playing the percentages what happened here is not altogether unreasonable, I suppose. That said, it seems to me that containing costs by playing the percentages isn't really the goal I have in mind for a sound health care system. I want doctors who will find the cancer, and I don't think that's a lot to ask for. It also seems to me that an ultrasound is an inexpensive, non-invasive way to follow up on something like this. I remain aghast that this was not something was done. If the medical profession won't step up than perhaps self-help is in order. The Breastlight is device which is supposed to help women spot suspicious breast lumps. $77 quid is expensive, I think, but I'd like to see one in every woman's locker room, and in women's dorms, and a lot of other places like that. (Via BoingBoing.)

I made this Rhubarb Ice Cream over the weekend, and was quite pleased with the results. (I've had good results with Kevin Weeks' recipes pretty generally.) Rhubarb is a funny ingredient-- apart from using it in as a pie filling I haven't worked with it much, but I'll bet there are a lot o cool things it could be used in. It cooks down quickly and easily; I almost didn't bother pureeing it. It seems to be used mostly the way one would use a tart fruit, which suggests to me that it might be interesting with pork, perhaps the way apples work with pork chops. It's a short season or rhubarb, and it's one of those vegetables, like burdock, that are sort of like weeds unless there are yuppies who will buy them. You can find rhubarb growing wild in abandoned fields, or you can pay four bucks a bunch at the Bidwell Parkway farmer's market.

Six hundred miles apart Captain X and I were standing in front of televisions yelling, "Stop the race!". Like Newton and Leibniz we'd independently arrived at a trifecta play that had just pulled around the far turn and was barreling down the home stretch, with just about a furlong to go.

The way I had it figgered, Mine That Bird had demonstrated that he was the class of the field. Charitable Man had run twice at Belmont, and won twice at Belmont. The money was going to be short for the Derby winner, and the New York railbirds were going to drive down the price on the local favorite, so the best play would be to box a trifecta. Dunkirk had a poor ride at Churchill Downs, and seemed likely to improve.

There's nothing quite as thrilling as watching as a group of horses head for the finish (if you have a bet on it). At that moment you can tell that the animals are giving it everything, and if there is a horse who is gaining you know that you are seeing a complete effort, with nothing held back. A had elected to play the Bird exacta, and as they horses closed to within a hundred yards, then fifty, it looked like she'd made the right play, as Summer Bird pulled away. Captain X, looking to hedge his trifecta, had played the Derby winner's half brother across the board as well, and cashed a ticket-- his second winner in this year's Triple Crown, equaling Calvin Borel's record, if not his winnings.

I have a pretty complete Neil Young set for the period covered in the gargantuan "Archives Volume 1", on vinyl. And I have "Decade" on CD. I've always kind of wanted to see "Journey Through the Past", but I'm thinking that a 10 disk Blu-ray set is kinda like a swimming pool-- it's better if someone you know owns it.

Because they are similar artists, and very nearly similarly important, it is interesting to think about how Young and Dylan are approaching the release of this kind of documentary material. Both are being very hands-on about it, but Young is apparently more of a completist, and seems to think we should be too. One of the reasons that Young's back pages are being released now-- 19 years after Dylan started his "Bootleg Series" is that Young, who is somewhat technology-obsessed (it's one of his chief themes, when you consider it) held off until there was a format that would accommodate high quality audio and video.

Certainly Young merits this sort of release, but it's harder to know who needs it, and disgorging a 10 disk, $280 buck set is not a particularly consumer-friendly move, no matter how nice the packaging. I'd contrast this with the gradual rollout of James Brown's singles collections. Just because an artist is prolific doesn't mean that we need all of it all at once. I also question how essential it is to have a release like this emphasize the visual. Everybody seems to want to include video, but let's face it, odds are that if you are into the music you play the music a lot more than you ever watch concert footage or whatever. I mean, I ran right out and bought "No Direction Home" after it aired on PBS, but I'd have to duct-tape my family to the couch to get them to watch it, so it sits on the shelf. You'd really have to be in a Neil Young mood to want to sit down and watch the 71 Massey Hall concert more than once, and I don't care how much you love "Sugar Mountain".

Presumably as Young moves forward with this project the concert footage will get more interesting-- the "Rust Never Sleeps" tour, which is my favorite period, featured shows with a lot of quirky flair, and now that I think of it, I'd like to see Neil tearing into "Like A Hurricane" and "Cortez the Killer" and a few others too.

Good article in the New York Law Journal by Edward M. Spiro and Judith L. Mogul on motions to transfer pursuant to 28 U.S.C. §1404(a). Forum non conviens motions have been a staple item in our practice for years, and the law has evolved substantially. The criteria to be considered-- the eight-pronged test, are (1) the convenience of witnesses; (2) the convenience of parties; (3) the location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiff's choice of forum; and (9) judicial economy and the interests of justice. Although the law has been pretty well set for a long time, it's been our observation that the courts, particularly the Southern District, have become less inclined to grant this relief absent a pretty compelling evidentary showing. You really have to come in armed with affidavits from likely witnesses demonstrating that their testimony will be essential, and establishing that travel will work a substantial hardship. Judge Baer's opinion in Capitol Records, LLC v. VideoEgg Inc. drives this home: the court "should... assess the materiality, nature and quality of the testimony that the witnesses are likely to provide."

That means that counsel has to really front-load the necessary investigation and essentially lay bare the plan of proof. Over the years we've been able to do that, and the results have pretty consistently demonstrated that it's been worth it-- venue can make a big difference in the ultimate outcome.

It's interesting that where a party must travel anyway the burden of traveling a longer amount of time is not legally significant because that's the way federal judges think. Regular people would tell you that Buffalo to New York is different from Buffalo to LA, but to a federal judge that's crazy talk.

Cory Doctorow makes a good point when he notes that search algorithms are editorial decisions, and I think that this is something that many of us know on at least a subconscious level. When I hear about a new search engine I make a point of trying for a few days, and I'm in the habit of checking back with some I've tried in the past to see what kind of different results I might get. (I can't say that I do this much more than a couple times of year, though. I missed it when Teoma was rebranded.) So I'm not surprised to see that I'm getting traffic from bing. I tried Slate's three-pronged test, and Bing rakes up some different stuff, but I do wonder who is using it to look up "altreuter outside counsel".

A couple of weeks ago I was talking to a colleague who practices full-time in New York about the quality of the judiciary. The conversation arose in the context of a discussion about the note of issue-- the device in New York practice which signals that a case is trial-ready. Actually, let me amend that-- the note of issue is supposed to indicate that a case is ready to be tried. In fact, in current practice what the note of issue actually does is to start the clock running on when motions for summary judgment must be made. It does some other things that matter to the office of Court Administration too, but lawyers mostly don't know, or care about that. Judges care, though, and that means that when a lawyer files a note of issue, judges are not inclined to strike it, even though the case might not be remotely ready for trial. When that happens-- and it happens all the time-- the judge directs that the parties get moving on discovery. This situation gives rise to the question, to paraphrase Col. Pickering, "Why can't New York State Supreme Court be more like federal district court?" In federal court when you haven't finished your discovery, too bad. You go to trial without it, and if that means your case is dismissed, tough. (Most of the time.)

The answer to this question is that state Supreme Court Justices are running 400 or more (civil) cases at a time, and do not have the luxury of being as hands-on as federal judges and federal magistrates. I would be the last to suggest that any of either are killing themselves with work, but it is fair to say that state court judges, for the most part, are working quite a bit harder than federal court judges. What was interesting about what my colleague had to say about it, to me, was that in his view there has been a real drop-off in the quality of the judges on the bench in recent years, attributable to the fact that judges in the state court are under-paid. While at one time a judgeship was a nice reward for being a good Democrat (in the City) or Republican (most other parts of the state), now it is a gig that gets handed off to hacks, who hang around leaning on their shovels.

I suppose there may be something to this. $125k per annum is pretty short dough in the Apple, and I can't say I've encountered the reincarnation of Learned Hand on the NYC bench lately. So I guess I'm thinking that a raise is in order, and I suppose the Appellate Division's decision in the judicial salary lawsuit makes sense. Judicial salaries should not be tied to unrelated issues like campaign reform or legislative pay. I can see the constitutional issue there. So here's my question: what happens if the legislature votes on a judicial salary increase tomorrow. Straight up-or-down vote, no linkage, and votes it down? What then?