Outside Counsel

It would be interesting to teach a class like this, if only to see what undergrads make of Bob Dylan. Among the things I learned from teaching "Lawyers in Movies" this year was that there is a surprising extent to which my students did not connect with the material because we did not share a number of cultural references, or because a some cultural references seemed to them to be so commonplace that they did not bear mentioning. Getting past that was a challenge I hadn't anticipated. I don't think of Dylan as principally a political artist, for example, but there is no getting around the number of references to politics and political figures in his work. "Talking John Birch Society Blues" isn't on Professor Gass' required listening list, and maybe that's because a 20 year old student in 2010 couldn't possibly get his mind around what the John Birch Society was. "No, no. Not like Ronald Reagan-- the Birchers said they were anti-totalitarian, particularly anti-socialist and anti-communist, and wanted to limit government. They said they were defending the original intention of the U.S. Constitution, based on its perception of Judeo-Christian principles. Oh, forget it."

The other night I drifted off to sleep thinking about the business structures of super hero groups, an area that seems ripe for academic exposition. The Avengers is what started this reverie-- the group, founded by The Wasp, Ant-Man, Iron Man, Thor and the Hulk, operates under a charter which limits its membership, and appears to receive its principal funding from the Maria Stark Foundation. I assume that the Avengers are organized as a Not-For-Profit, but other groups may have different setups. The Fantastic Four, for example, may be a straight C corp. Reed Richards owns a number of valuable intellectual properties, and there might be significant tax advantages to Richards if the group could offset its earnings from the sale of costumes made of unstable molecules to other superheros by way of deducting losses from battles with Galactus.

Over on the DC side things seem like they might be more complicated. Consider the line-up of the original Justice League of America: Superman, Batman, Aquaman, Flash, Green Lantern, Martian Manhunter, and Wonder Woman. Notwithstanding their name, four of the seven may well be out of status immigrants. Possibly Supes is naturalized-- he may have been legally adopted by the Kents. Maybe Wonder Woman is a citizen by reason of her military service as Diana Prince, her alter-ego. J'onn J'onzz might be able to claim refugee status, but it is not clear that he has ever done so. Aquaman, of course, is king of Atlantis. Subsequent members Hawkman and Hawkwoman are from Thanagar, and are pretty clearly in the US illegally. It is likely that they are also guilty of identity theft. Under the circumstances it would make sense to counsel the JSA to avoid taking on a formal organizational structure, in order to avoid potential liability.

I've never appeared before Cattaraugus County Judge Larry M. Himelein, although I've had occasion to appear in Catt County. Judge Himelein is in the news today because he has accepted censure for trying to organize other judges into a boycott of cases involving the law firms of state legislators who have denied New York's judiciary a pay raise.

The judicial pay raise story gives me a pain. Frankly, it shouldn't be hard to live well in Cattaraugus County on a six figure judge's salary, and although judicial pay does seem to be an issue in attracting talent downstate, I haven't seen that there has been a problem finding people willing to give the bench a try.

That said, it seems to me that there is something notable about Judge Himelein's tactic. He should get credit for bringing attention to the fact that many, if not most, of New York's state legislators have outside gigs. Judicial salaries are tied to the salaries of the legislature, but legislators can have jobs as lawyers or insurance brokers, or all kinds of other things. Many of these sorts of jobs are jobs where a little pull in the state capitol might be a very sweet thing indeed. Fact is, a person who is a state senator or an assemblyman is probably a pretty valuable partner to have. It seems like a safe bet that Senator Neil Breslin, (D-Albany/Hiscock & Barclay)(Chairman of the Insurance Committee, how about that!); or Assemblyman Will Barclay, (R-Pulaski/Harris Beach)(adorably, on the Ethics Committee); or Senator Michael Nozzolio, (R-Seneca Falls/Harris Beach); or Senator Craig M. Johnson, (D-Port Washington/Jaspan Schlesinger Hoffman); or Assemblyman Marc S. Alessi, D-Wading River/Jaspan Schlesinger Hoffman) are pulling down some respectable dough from their firms, and I'd be surprised if the money they were making at their regular gigs didn't make their legislator's salaries look like part-time money.

Fix the legislature and a lot of problems might get fixed is how I reckon it.

When I was in 9th Grade my social studies course was something called Asian African History. It was taught by Mr. Butler, who was also, I think, the coach of the freshman football team. I remember thinking that I didn't want to take a class about Asia and Africa, and I remember that within a month it was my favorite subject. The focus of the class was on the history of the Middle East, and it was fascinating stuff, taught by a guy who was a terrific, engaging instructor. I did better in that class than I ever had before in anything, and the stuff I learned has proven more useful in understanding the world scene than anything else I learned in high school. I was reminded of it by this animated map, which depicts the "Imperial History" of the region.

Best-of-the-Decade lists are a problem for me, and this past ten especially. Still, the Dean and I agree on enough for me to believe that I'm still listening- not just the Dylan, but Rilo Kiley, and Drive By Truckers, and SMiLE....

At some point everyone is going to realize that football in Western New York has stopped being about the Bills, and is now about UB. We are edging closer to that moment with the announcement that Jeff Quinn, Cincinnati's interim coach will be the new Bulls coach following the departure of Turner Gill. The Bills are being publicly rebuffed, and I'd bet you a shiny new dime that they end up hiring Perry Fewell. No knock on Fewell-- coaching is only part of what the problem is.

Funny that this realization is dawning on me on the day Bill Greiner died. Over the years I had my share of disagreements with President Greiner, and although we never talked about his notion that UB should have a big-time football program, I always thought that it was a silly notion. I guess I have to chalk that up as one more time when I was wrong and he was right.

Two of the NYTimes music critics pick the Vijay Iyer Trio's "Historicity" as one of their top ten albums of the year. Thanks to Bruce Eaton I can say, Oh, Vijay Iyer? I've been listening to him for years."

Over the time that we have been practicing together my law partner and I have had a tradition of going out and buying a stack of Christmas albums every year. We split them up, and make copies, and swap them, and this keeps our holiday music rotation comparatively fresh. Our taste differs somewhat-- I favor jazz, Kate likes choral stuff-- but mixing it up is also a good way to prevent the heavy rotation of carols and songs about reindeer from getting stale, and in this, as in most things, our points of agreement are greater than our differences. A side we've agreed on over the years is The Roches, "We Three Kings", which is pretty, and silly and fun-- all good things, and all things that Christmas should be. I don't know what Kate's take will be on the most notable Christmas album released this year, but I drove around last night doing some Christmas shopping listening to "Christmas in the Heart" and I find that it possesses many of the same qualities.

Of course, Dylan doesn't sing as pretty, but he compensates for this with background singers who do, and a solid band. The album has inspired a sleigh full of puns (A Hard Reindeer's Gonna Fall; Sleigh Lady Sleigh....) and a similar number of bemused reviews, but in the final analysis it is quite a charming set. The problem with most Christmas albums is that they go past cheesy and into smarmy without stopping to enjoy the moment. Frankly, Barbra Streisand (to pick another famous Jew with a Christmas album) singing this stuff and piped into a mall ratchets up my anxiety level to the point where I can feel my blood pressure making my face a cheery holiday red. Listening to Bob sing "Adeste Fideles" made me smile, and reflect for a moment about the fact that this really is a kind of folk music. It is music that I've sung, and I've almost certainly sounded closer to Dylan singing it than I have to Andy Williams. Elvis, (to pick another rock'n'roll icon with a Christmas album) never sounded more sincere than Dylan does on this material.

Yes, Dylan's voice is challenging. When wasn't it? In this case, however, that challenging voice serves the music well. As we listen to him rheum through "O Little Town of Bethlehem" straining at every note we find ourselves actually listening to the song, wondering how he'll manage to sidle up to the next note. He forces us to pay attention, in other words, to a song that we can barely hear otherwise. These are songs that have been worn so smooth from annual repetition that we seldom actually listen to them now, but they can still reward attentive listening, and they do so here. Dylan's "I'll Be Home For Christmas" -- which in other hands can be a cloying annoyance-- sounds genuinely longing here, and Sammy Cahn's "The Christmas Blues" which is one of the few songs here that hasn't been beaten to death elsewhere, is a great choice, a reminder of how deftly Dylan has always handled the blues.

One of the pleasures of Dylan's radio show has been contemplating his record collection (actually, I guess, Eddie Gorodetsky's record collection). One of the pleasures of "Christmas in the Heart" is contemplating the young Bobby Zimmerman in his father's Hibbing hardware store with these songs playing in the background, just as they are playing in the background everywhere today. "These songs are part of my life, just like folk songs," Dylan told an interviewer, "You have to play them straight too."

A couple of years back, when Dylan was coming to town Captain X proposed that we take in the show. "It'll either be terrible or it'll be great," he said, "And either way it'll be great." It was plain great, as it happened, and I approached "Christmas in the Heart" in the same spirit, knowing that I'd like it if it was terrible or if it was great. I'm pleased to report that it is plain great.

I was in an upstate city to argue a motion Friday. Neither my adversary nor I are from this city, and in fact both of us traveled just about the same distance to get there, from different directions. It was a discovery motion. I'd set up an IME, the plaintiff's attorney had an objection, they blew off the exam, and I moved. They cross-moved for a protective order.

I was pretty clearly in the right on this one, and I argued hard that I should get sanctions. I didn't, but I got pretty much everything else I wanted, and although I was miffed about not getting sanctions the truth is that judges that sanction lawyers over discovery disputes are, for the most part, pretty terrible judges. My original thought for this post was to ask rhetorically, "What do you have to do to get sanctions?" Although you hear about sanctions, and everyone is careful to avoid the circumstances which might result in their imposition, the reality is that sanctions are pretty rare. I can't think of a time we've had them awarded, and we have seen some pretty egregious situations. If our practice focused more on federal court litigation perhaps we'd see sanctions or costs more, but probably not. Good judges control things better than that, I think, and bad judges need to remind everyone that they have this power. Good judges get the respect that makes voicing threats, or acting on them, unnecessary.

The judge we were before Friday is pretty plainly a good judge. We have had only limited contact with him during this case, but what I saw Friday confirmed my impression. He was hearing motions at 1:00 on a Friday, for example. What that tells me is that he uses his time efficiently. I expect that 9:30 to noon is time he spends on the bench trying cases, and that he probably had some sort of hearing for later in the afternoon, or possibly some sort of settlement conference or conferences. He was completely prepared. He'd read the papers in our case, and in the matters that he'd had on before ours was called. He had notes, and questions he wanted answered. He kept his cool, and as a result everyone else kept their powder dry too. Respect breeds respect. He was obviously trying to be fair, and he was at apins to explain why he was making the rulings he was making. And finally, from what I saw it looked like he was getting it right on the law.

One of the things that is entertaining about the work that is done by the NYSBA's CPLR Committee is that we get to see how difficult it is to craft rules that will work as well in Greene County as they will in Queens. The city I was in Friday is well-served by this judge, who follows the CPLR and works hard at his job. I'd imagine the way we do things in Buffalo would look strange to a practitioner who was familiar with that routine, and NYC practice would seem completely disfunctional. Some of that is a function of caseload, of course, and some of it is probably due to the fact that being a New York State Supreme Court Justice is a better gig in some places than it is in others.

Robert Christgau on Thelonious Monk. Not surprisingly, I agree with the Dean's assessments of Monks' sides. The two Blue Note Genius of Modern Music sets showcase Monk's playing beautifully; 2) Thelonious Monk Trio may be the set I play the most frequently; and although I love his work with Traine and with Rollins, the Charlie Rouse stuff is just wonderful. A good way to enjoy Monk is to focus on the different drummers he worked with: Art Blakey, Max Roach, Arthur Taylor, Buffalo's Frankie Dunlop-- all very different, each contributing something special to music that has a muscular swing that can be so subtle that you might not even realize what you've heard until you realize that it has become the rhythm you are thinking of as you walk down the street hours later.

Michael Getnick is the present shah of the New York State Bar Association. He has written an intelligent article on tort reform in, of all places, the Daily News. Some of his points:

* The "lawsuit explosion" is a myth. In fact, the opposite is true. The number of tort filings in New York State actually decreased by 30% from 1998 to 2008. The total number of tort cases filed was down from 81,952 to 57,023.
* These cases often take years to come to a conclusion. Lawyers working for contingency fees don't get paid unless they win. It would be ludicrous for someone in that position to file a frivolous lawsuit.
* There are checks and balances in the system. If someone files a frivolous lawsuit, a judge can sanction the lawyer for doing so and dismiss the case. If a jury awards too large an amount, a judge can reduce it. If the losing side disagrees with the result, they can appeal.

For all that we make our living by our advocacy, our glamor profession has done a poor job of making these arguments. Perhaps this is because, in the final analysis, the tort system has outlived its time as an effective method for spreading the cost of risk. Some years back my law partner and I gave a series of presentations here and there about how the rise of the European Union would ultimately result in the contraction of the Western European neo-welfare state, and the rise of an American-style tort compensation system. That hasn't happened, and I now tell the students in my Discovery class that I hope I outlive the tort system. I expect that I will-- the agony that has accompanied simple health care reform over the past year tells me that change comes more slowly in American culture than we commonly suppose-- but the day will come when the United States recognizes that a fault-based compensation system for individuals injured as a result of negligence places our businesses at a competitive disadvantage globally. With that realization we will see the same dividing lines as we are seeing presently. The affluent will say, "Screw the poor. We want ours." The left will wring its hands. And the media will report the controversy as though both sides of the argument have equal merit.

Universal, single-payer health care would have kept the American automobile industry from collapsing. Ours in the only manufacturing infrastructure in the world that expects private industry to underwrite the health care costs of its employees, past and present. When whatever industry it is that comes to dominate the American economy in the 21st Century the way the auto industry dominated the 20th comes to the realization that it is faced with cripling liability exposure as a result of a tort system rooted in the economics of the 19th Century we will either see change, or the collapse of that industry. It is only a question of time.

To The Fantastic Mr. Fox yesterday, a movie I'd been looking forward to. Gentle reader, it was so good that I'd have gone again tonight. Wes Anderson has only made one movie that I've disliked ("The Life Aquatic with Steve Zissou"-- what the hell was that?), and although "Bottle Rocket" is not something I feel an immediate need to see again any time soon, "Rushmore" and (especially) "The Royal Tenenbaums" are movies that have rewarded my repeated screenings. "Fox" is worthwhile on a number of levels: it is visually engaging, the way the best animation is; it contains several clever performances by its voice actors; and it is genuinely funny. I am not familiar with the Roald Dahl book-- I don't really like Roald Dahl, or the other movies that have been made of his stuff (although I liked Johnny Depp's Willy Wonka), but I suspect that Mr. Fox is more Anderson than Dahl. This is as it should be, I think. My Lawyers in Movies students startled me at the start of the semester when they pretty much all agreed that they prefer the book version of a story to the movie. I find that statement incredible, and a bit sad. Sometimes, certainly, a movie is a less satisfying experience than the book it is based on, but most of the time I'd say that it is simply a different experience.

There are those, and I've been among them, who argue that the cheesier the book, the better the movie. Examples might include "Gone With The Wind", "The Wizard of Oz", and "The Godfather". Proponents of this theory will tell you that "For Whom The Bell Tolls" is a pretty dreadful movie, but that "To Have and Have Not" is great. "Good Hemingway makes for a bad movie, but weak Hemingway makes a great movie," they'll tell you, overlooking the fact that "For Whom The Bell Tolls" is actually dreadful, and that "To Have and Have Not" has barely a shot glass worth of the novel. I am inclined to argue that what makes a good film adaptation is the extent to which the person watching the movie is prepared to accept the filmmaker's vision-- and I would submit that for the purposes of this discussion the filmmaker has to accept this as well. The successful approach is not, "How am I going to film this?" but rather, "How am I going to tell this story?" I'm no fan of hobbits, or movies about them, but Peter Jackson, it seems to me, made three pretty good movies because he understood that he needed to tell the story Tolkien told using techniques that Tolkien would never have used. People who are serious about Tolkien will tell you that the "Lord of the Rings" is "really" about Tolkien's linguistic scholarship, and his interest in incorporating his theories in that field into an imaginary world. Maybe so. Maybe that's why I find the books about as interesting as "The Wasteland"-- I'm not enough of a scholar to be in on the jokes. In any event a movie like that would be worse than the poor, maligned version of "The Great Gatsby" that Robert Redford mumbled his way through.

"Mr. Fox" is pleasingly exuberant, and seems to me to be an opening up of Wes Anderson's vision. It is the first time he has made a movie adapted from another source, but the themes-- family relationships, the ability of individuals to change, or work within their personal limitations, the importance of self-awareness and creativity-- are all things he has focused on in the past. One of the charming things about this movie is that these animals are distinctly animals. When they smile we see their teeth, when they eat, they eat ravenously. I liked every moment of this movie, and wished it was longer. I can't wait to see what Anderson does next.

UPDATE: Corrected to reflect the correct "Rings" director, per CLA's comment.

It is hard for me to say whether Jonathan Lethem's ""The Fortress of Solitude"" resonated with me for any reason apart from this: Lethem's Brooklyn and Letham's pop culture references overlap so nearly perfectly with my own that this magical-realism bildungsroman seems very nearly like a book I might have imagined. I wish I had, flaws and all. There are, I suppose, other books that do some of the the things that this does as well -- stretches reminded me of Richard Price's "The Breaks", to pick an example that nobody I know will know, and I kept being reminded of Michael Chabon, although that comparison is probably more a function of the fact that Lethem, Chabon and I probably have similar record collections than anything else.

Letham is a household favorite, but I'm coming to him a bit late. "As She Crawled Across the Table" is okay, I suppose; the sort of novel that people who really like a particular writer will cite as their favorite, the Steve Forbert of the Lethem shelf, if you know what I mean. And "Motherless Brooklyn" is a detective novel. The fact that it is a detective novel set in a time and a place that I feel a connection to complicates my relationship with the book, but I think it stands on its merits. I think "The Fortress of Solitude" does too, but I wonder to whom one recommends a novel that assumes familiarity with the work of Jack Kirby and Brian Eno. I like a novel that references Black Bolt, but there is a sense in which having that cultural vocabulary available as a shorthand makes what Lethem is doing a pretty specialized sort of book.

I suppose I need to read some more Lethem. I tracked "Fortress of Solitude" down after hearing him interviewed on Bob Edward's program. He's an interesting cat, who works in multiple media, a John Linnell collaborator, for example. I think some further study is in order, and I think I will start with "Gun, with Occasional Music" presently on my nightstand.

UPDATE: Lethem provided a playlist for his new novel here.

I don't care that much about the Tiger Woods flap: Tiger is interesting to me as an athlete, not as a cultural phenomenon, or as some sort of personal paragon. However, I think it is worth passing on this, from Charley Pierce: "Listening to Tiger explain how he'd managed to hit two stationary objects within thirty yards of his driveway — and how his plucky wife pulled him from his non-burning vehicle by smashing the back window with a golf club — was like listening to Peter Lorre telling Bogart in The Maltese Falcon, "I certainly wish you would have invented a more reasonable story. I felt distinctly like an idiot repeating it.""

Of course, I'm a sucker for a well-placed Maltese Falcon quote just about any time, and Pierce's Saturday morning commentary on "It's Only A Game" is usually one of the highlights of my week. There aren't many writers working today with Pierce's skills-- there haven't been that many ever. A.J. Liebling comes to mind.

Some Roman Catholic churchmen, meanwhile, have said that the words “hokey pokey” derive from “hocus pocus” — the Oxford English Dictionary concurs — and that the song was written by 18th-century Puritans to mock the language of the Latin Mass. Last year the Catholic Church in Scotland, concerned that some soccer fans were using the song as a taunt, raised the possibility that singing it should be prosecuted as a hate crime.

An interesting piece on the economics of the pop music business. Steve Albini's definitive article on the subject is here. When you think about the history of recorded popular music one of the first things that comes to mind is the exploitation of the artists. You read again and again how so-and-so died broke, even though his records sold millions, and maybe you think that things have changed. I'm not so sure they have. Digital distribution, as opposed to slabs of plastic sold in brick-and-mortar shops seems as though it should result in more money going to the artists, but the reality is that the labels are in the business of promotion more than anything else, and this has always been true.

I'd like to know how the hell UB is ranked below both Binghamton and Stony Brook on the US News list of top public universities. I don't really put much store in US News, or its lists, but that seems peculiar to me.

The Salvation Army has always given me a pain, so I'm not surprised that it is checking the immigration status of children before giving them Christmas toys. I suppose it is no different in its hypocrisy than any other religious organization but it is still troubling. (Via Making Light.)
UPDATE: The Salvation Army denies it. Which means they are merely homophobes.

CLA is moving from rugby to crew this spring, an interesting transition. Apparently fall crew races are three mile affairs, and the spring races are 2000 meter sprints. I wonder why that is? Wouldn't it make more sense for there to be different distances at each competition? Are all crew competitions regattas?

Looks like everyone agrees that Afghanistan is "Obama's War" now. Fair enough. What troubles me is that the same people seem anxious to see him fail at this war, as though the people who opposed Bush's adventurism in Iraq were rooting for the US to fail at that. People, this is not like watching Charlie Weis coach Notre Dame. As Joe Conason points out the negligent prosecution of the war against Al Qaeda in Afghanistan has resulted in the same kind of morass that Iraq is (and that those of us who opposed the Iraq war predicted). To the extent that there is good news here, it is probably that the Obama people recognize the extent of the problem, and have gone a long way towards restoring the US to the position it needs to be in the international community. Both Iraq and Afghanistan are diplomatic problems which we are going to need help with, and the nations that got burned the last time, like the UK, are not going to be falling all over themselves to pitch in. Who will? Well, that's an interesting question.

When I wake up to find that the first of December is covered with snow my mind naturally reminds me that I have ten miles behind me, and ten thousand more to go. There is a manic melancholy to this time of year. There is everything you usually need to do to get done, and all of the things that you have been putting off until now on top of it. The calendar imposes its deadlines, and darkness drops on the afternoon like a bowl, making the days you have to get it all done feel that much shorter. Christmas holds out its bright promise, but it can feel like you have a lake of fire to cross before you get there. I'd been thinking about the sort of music that fits this season even before the weather reminded me of "Sweet Baby James" because the Avett Brothers' "I and Love and You" has been in heavy rotation on the satellite lately, a nearly perfect version of the sort of song I'm thinking about. If summer songs are all about possibility, the songs I favor at this time of year are more about reflection, and "I and Love and You" has become my Solstice Hit Single of 2009.