Outside Counsel

This is more of a note to myself than anything else. The course feedback forms for my Discovery class (the first I've ever gotten) suggest that there are several things that the students would like to see. Some are beyond my control-- I can't make it a semester-long offering, and making it a two credit class would be a bigger lift than I feel like I could handle. They'd like the materials posted earlier, and that I can do. Next time I'll put it all up at the beginning. This was the first year I'd used UBLearns; in years past I used the law school's web site. It would be nice if I could keep the UBLearns site up all the time, and just keep posting to it, but that is probably not happening either.

I did a little more lecture this term than I have in the past, but I did not give a lecture on the basic structure of a deposition. I'll do that next time. One or two wanted more material on discovery issues apart from depositions. I thought I had that covered, (we talked about other discovery devices, we talked about e-discovery and some other stuff) but I can add more.

This year's group was unusually strong I thought, and it was a lot of fun to work with students who were so enthusiastic. Someone suggested that I "allowed one student to dominate". I try hard to avoid this, and I'm a little surprised by the criticism, but I'll make a note of it. My usual practice is to be Socratic, and to spread things around, but sometimes after batting things around it is tempting to go to the student who you know will have the answer, if only so that the necessary point can be made and the class can move on. A couple of students suggested that the organization of the course could use more structure. I'm not sure how I'll approach this- I followed my syllabus, and we covered a lot of ground. Maybe the solution is to tie the theme of the case materials we are using to the case we are going to cover in the next class, instead of commenting on the case materials in the lecture that follows. Instead of "Last time we saw an example of how to use documentary materials..." tell them about the issues in the next problem and talk about approaches to those issues. I'm not crazy about that-- I like giving them problems and making them wrestle with the problem themselves before I suggest possible solutions.

As I understand it at yesterday's health care summit Lamar! Alexander laid out the Republican's position as follows: start from scratch, and do not propose a bill that does not have substantial Republican support. In essence what he is saying is that the Republicans in Congress demand to be the ones who control the ultimate outcome. In view of the fact that they are the minority in both houses you'd think that they'd realize that they are not exactly negotiating from strength, but that's the point: as long as they act like they have all the leverage they actually do have all the leverage. This is how they play. When George W. Bush was appointed president he acted like he had been given an electoral mandate, and Congressional Democrats went along with it. Now Obama-- and Harry Reid, and Nancy Pelosi-- are acting like Obama didn't just win the Presidency with the largest popular vote in history. This notion that the two present versions of the Health Care bill which are sitting out there is unpopular with the general public impresses me as creative lie, built like a Frankenstein monster out of bits and pieces of the truth. Some people don't like the legislation because they don't think it does enough; some people don't like the way it goes about doing what it does; and certainly there are people who don't like the bill because they are opposed to government involvement in this field. That said, from what I've read, it appears that most people agree that something has to be done, and that the core things that the legislation does are things that they want to see done. Yielding to the Lamar! Alexander and his ilk on this point would to caving in and admitting that Obama can't govern. Since Democratic Congressional leadership just spent the eight years of the Bush Administration demonstrating that it can't accomplish anything it falls to Obama. I believe he has the tools to accomplish this, but I have yet to see any willingness on his part to do use those tools. Maybe Rahm Emanuel needs to have a talk with him.

I'm sorry to hear that Ted Pietrzak is leaving the Burchfield Penney Art Center-- his leadership brought about a significant local improvement that has been insufficiently heralded. People complain that it is impossible to get anything done in this town, but Ted very quietly managed to raise a big pile of dough and turn a gallery that was amounted to a nice collection of stuff in Buff State's attic into a major cultural attraction. I'll always love the Burchfield Penney because he let us do a fashion shoot there for Spree right before it opened, and the experience of playing in the nearly finished space was an absolute blast.

I've seen studies that nibble around the edges, but I've never read a comprehensive narrative about the economics of recorded popular music-- from the early days, when labels were created to make records so that the furniture stores that sold Victrolas would have software to today, when the ubiquity of downloadable files has made touring essential in a way it hadn't been for probably the last 75 years. There was a lot on the topic in the Coleman Hawkins biography Captain X lent me a while back, and that was excellent, but there is a lot more material to be mined in that vein. Chances are that the reason a lot of bands don't play together is because their business structure screwed some people over-- count on it, that's why a Kinks reunion isn't in the cards. This study sounds like it would be an interesting resource for someone who wanted to make a start at writing something that would be accessible for the sort of fan who wants to know just how you go about firing Brian Jones from his own band.

Some of it has to be expectation, after all. When you figure on liking something, your choices are to really like it or to be disappointed, and who wants the let down? Still, as I continue my march through A New Literary History of America what I'm finding is that I'm having more and more fun. The early history stuff has been interesting, and the 19th century stuff put a gloss on some things that I hadn't known, but now I'm rounding into the stuff that I know about, and it is like a day at the fair. Walter Mosley on hard boiled fiction, Werner Sollors on "The Sound and the Fury" ("Had he stopped writting on Easter Sunday 1928, William Faulkner wold be remembered as a regional Lost Generation author....") and Phobe Kosman on John Dos Passos have me jumping out of my skin. Ms. Kosman on Dos Passos in particular really gets it: "For all of its magic, for all of its empathy and scope and imagination, the trilogy remains not-quite-canonical; there are plenty of well-read Americans who would be unashamed to admit they haven't read it. The question that occurs to any entranced reader of "USA" is, How is this not huge? What happened?"

That nails how I feel about the trilogy-- arguably the most overlooked work in our literature. Why? Well, maybe because the only other thing Dos Passos did that was worth a damn was "Manhattan Transfer", and that's not an easy way in. (It is also more or less a study for what was to follow, the way that "In Dubious Battle" was Steinbeck learning how to write "Grapes of Wrath".) Maybe because the "USA" novels are experimental fiction, and the things that Dos Passos was doing were so quickly absorbed as mainstream technique that his inventions quickly seemed old fashioned. I feel bad about my passion for poor old Dos-- the only person I've ever met that pressed his books on someone else was my dad, who gave them to me. I have never suggested that my daughters, or A, for that matter, read "The 42nd Parallel" or the rest of the trilogy, or pressed it on anyone else, but I remain steadfast in my belief that Dos Passos stands in the first tier of American writers. Oddly, he was a writer who was concerned with the macro aspects of American life, but he is, it seems, a personal obsession-- someone who his fans keep to themselves.

It is incredible to me that Abbey Road Studios is endangered. Just about the most moving experience I have ever had as a tourist came when I visited Sun Studio in Memphis-- Abbey Road is one of the very few places that would inspire similar awe. (I'd like to see Electric Lady Studios too. And Rudy Van Gelder's studio in Englewood Cliffs.) The funny thing about Sun was that it was kind of preserved by neglect. Sam Phillips built it (from plans he found in an issue of Popular Mechanics) in a corner of town where there wasn't a great deal of development activity, and it survived more or less intact because nobody could be bothered with it. That isn't going to happen with Abbey Road, but someone should step in before it is lost. I'd be hard pressed to think of a post WWII site in England with greater cultural importance.

Once again I find I'm working the comp side of the street. Doing what I do of course the comp universe is always on the periphery. It's like walking along the beach. The ocean laps along the shore and on one side there's the forest, full of trees and deer and moss and bears. On the other side there's the ocean, full of kelp and coral and sharks and whales. Even knowing the names of these different things won't help you if the tide grabs your ankles and sucks you in-- or if an errant wave throws you ashore, like a doomed horseshoe crab. It's two different universes, and a passing familiarity with the vocabulary of the universe where you don't belong won't help you breathe there.

The comp people try, sometimes, to explain how it is in their universe, but it is beyond them really. Although I've searched there doesn't seem to be a Baedeker for the comp world. Unless you swim in it regularly you will never move in it gracefully, and you will never recognize the difference between an interesting rock and a giant clam that will grab your leg and drown you. The best the comp people can do is to describe why their world is the way it is. They'll tell you about the Triangle Shirtwaist fire, as though that means something when what you need to know is what you have to file to get a Section 32 hearing-- or what a Section 32 hearing even is. Right now I am working on a case in which the Second Injury Fund may be implicated. (Real comp people call it 15-8, because comp is all code talk, like the joke about the prisoners who have told the same jokes so often that all the jokes are reduced to a numerical shorthand.) Trying to explain what the Second Injury Fund is was too much for the comp person we were talking to, so she did what comp people always do. "At the end of World War II," she started, "Employers were reluctant to hire veterans who had been wounded because they didn't want the additional comp risk...." Of course that's all very interesting, but it's like trying to explain how a traffic light works by relating the history of the Napoleonic Wars. It's not much help when what we are trying to do, right now, is figure out how to move our case, and what the economic implications of doing X or Y might be. "That looks like a worm, but it is really a part of a fish's face that dangles in front of its mouth. You have to watch out for those." Thus do I dogpaddle on the surface of comp, thinking the coral reef looks like a forest full of trees, and surprised when I learn that it is an animal colony.

The Scottie was fine, but I thought the Doberman showed the best, and I loved the Whippet. Actually, what I'd like to see next year would be for Ch Bohem C'est La Vie to come in from the cold and take the Westminster crown. Why not? The goofiest event in American sport deserves that kind of storybook ending. Every time I fly into JFK I think about Vivi. Is she hanging out by the cargo hangers, wearing a coat made from a modified Carhart jumpsuit that a baggage handler tailored for her? Is she living on pizza crusts and rabbits?

Here's the thing that annoys me about Evan Bayh: he is consistently described as being 'moderate'. This is simply not true: Evan Bayh is conservative, and the fact that he caucused with the Democrats doesn't change that. Indeed, I'd say he is a reactionary, but maybe that's just pique. I don't understand why he's like that-- his father was a liberal icon, and a tower of integrity-- but Bayh has been busy thwarting progress from the day he was sworn in.

We are flattered to find Outside Counsel listed on the EDDix 50, and pleased with the blurb: "This is not one of the blogs we depend upon; but it is one of the ones we treat ourselves to." It's hard to be an essential blog (or blawg)but being a treat is a reasonable goal, and I'm glad we manage that.

I've been a fan of Nellie McKay since I heard "David" on WFMU right after it was released. I went out that weekend and bought "Get Away From Me", and we caught her set at UB when she came through town. For Christmas LCA got "Normal As Blueberry Pie", McKay's tribute to Doris Day, and last night I finally got around to playing it. Folks, this is an impressive record. There have been times when I've found McKay to be too cute by half, and it certainly would be easy to record a Doris Day tribute that would be unbearably arch. Indeed, it seems to me that the challenge must have been to avoid irony. Like Borges' Pierre Menard when we hear the originals we bring to them our own set of expectations. McKay does not, and as a result what we have on this set are interpretations that are remarkably fresh. It is also one of the best quality recordings I've heard in some time-- the thing doesn't just sound like it was recorded in Rudy Van Gelder's living room, it sounds like you are in Rudy Van Gelder's living room as it is being recorded.

As it happens we just finished watching the BBC adaptation of "The Nine Tailors" the other night. EGA, who is more than slightly an anglophile, had suggested that something in the Dorothy Sayers line would be just the thing, and it was exactly that. I am therefore sorry to report that Ian Carmichael, who inhabited the role of Lord Peter Wimsey with elan has gone to his reward. We have another Lord Peter on the queue, but I suppose we should add something else featuring Charmichael as well.

Patti Smith used to work at Scribner's bookstore. What a great place that was. It became a Benetton, and now it's a Sephora, but when it was Scribner's it was a palace. Of course, back then there were a lot of bookstores in New York-- just about every district had its own cluster. When I worked downtown there was Mendoza's and Putnam and probably a half-dozen more where I'd run into my dad from time to time, both of us whiling away our lunch hours working the circuit. The Village was its own thing-- the Strand is still there, but the Village was rich with other places, places you'd go to on the weekend. When I got a job in Midtown Scribner's became a more regular stop for me. It was right up the block, and walking into it used to make me feel connected to the older, more romantic New York. You didn't necessarily go to Scribner's to browse Edith Warton books, though. That's where I first discovered Madison Smartt Bell and T. Coraghessan Boyle. It's where I bought the copy of "Moby Dick" that I used to read to EGA until she was old enough to say, "No more 'Moby Dick'!" It's nice to think about Patti Smith working there, even though our paths only crossed in the same way that we both were crossing paths with Scott Fitzgerald and Max Perkins. By the time Scribner's became a regular haunt of mine I'd probably already worn out my first copy of "Horses". Funny to think that in a hundred years or so we will all be haunting the place, whatever it becomes next: Scott, Max, Patti, my dad and I.

An exciting, well-played Super Bowl. It looks like some commentators are trying to tag Peyton as having choked; I disagree. It looked to me as though the Saints figured out that the way to beat him was to keep him off the field. It also looked to me like everyone on the field for the Saints was laying it all out there-- I can't remember seeing more strong second efforts, usually good for an extra two yards or so, and sometimes a lot more. The officials called a good game but let them play-- were there a half dozen flags? Only one turnover, and some nervy play-calling. It really looked like the way football ought to be played.

Last notes on The Who: It's not that they are old-- it's that their catalog has been worn thin. Let's put together a better set list, shall we? Open with "I Can't Explain", follow with "Substitute", work "I Can See for Miles" into it, segue into "Join Together", then close with "Long Live Rock". It's not that they don't have great songs, it's that the songs from "Who's Next" are tired. I feel bad for Roger Daltrey: time was when he was the quintessential rock'n'roll front man, but I think we can all agree that Robert Plant now holds that distinction. Also, Pete Townsend's wardrobe malfunction was far worse than Janet Jackson's. Seriously, he looked like he'd fallen asleep on the subway.

It wouldn't be hard to put together a great setlist for the Who's Super Bowl halftime show, but everybody knows that isn't what we are going to get. It'll be "Baba O'Reilly" and "Pinball Wizard" and "Won't Get Fooled Again" and "See Me, Feel Me", and probably "Squeeze Box". It'll sound like a car commercial, but I can't fault the NFL for inviting Townsend, Daltry & Co-- sure it's dinosaur rock, but there just aren't that many acts that appeal to the NFL demographic which can put on a stadium show. It is a dwindling list, too, which means that we can certainly look forward to Elton John, Rod Stewart and-- bet the house on it, KISS. I hope we get the real KISS, with the kitty behind the drum kit, and as I'm writing this I'm thinking, "You know, KISS wouldn't be so bad...."

Back in the begining of January EGA returned to Bloomington. Although she was transferring to another program her department at IU had told her that they would confer a Masters degree if she could satisfy the language requirement by passing a German language examination, but when she returned she was not upbeat. It was, apparently an extremely difficult German exam, but as it turns out it was no match for her mad language skilz. So, Meine herzlichsten Glückwünsche Emily!

I get the sense that the Saints are sentimental favorites in the Super Bowl, but that people expect Indy to win. I'm not so sure: the Colts are really good, but it is going to be a New Orleans crowd, and the Saints defense may be good enough to keep them in the game. I'll be pulling for the Colts, because they are the team the Bills could have been; because a Colts win will make up a little for all those Patriots wins; and because I think this is probably the end of the line for Peyton, his last best chance at a second ring. If the Saints win I'll be fine with it, knowing that I called it. Saints +7.

They can nominate ten movies for Best Motion Picture, but that doesn't mean that I'll have seen more than one. I do better with Animated Feature Films (3/5) and Actress in a Leading Role (2/5), but on the evidence I think it is safe to conclude that this was another year where I didn't get to the movies much. It isn't a habit of mine, I guess. When there is something I'd like to see other things get in the way, or the people who I go to movies with don't want to see it.

Just for the hell of it, here's how I see it breaking down: Best Picture: The Hurt Locker. James Camron backlash, plus Hollywood self-seriousness = Victory! Best Actor: Jeff Bridges. Everybody loved Clooney, but he's in something good every year. Supporting Actor: Stanley Tucci. Just a hunch. Best Actress: Sandra Bullock. Did you realize she's 45 years old? Not exactly the best argument against the proposition that there are no roles for women over 24, since she plays at least ten years younger, but still. Plus the Streep movie wasn't that good (even though she was). Supporting Actress: Mo'Nique. That way Gabourey Sidibe can get a shout-out from the podium. Animated Feature Film: Up. This is the one category where I've seen the majority of the nominees, and it impresses me as the strongest field of any this year. Coraline is too dark; Mr. Fox is too arch,; The Princess and the Frog won't win because Mo'Nique is going to win Supporting Actress and that will take care of the African-American slot for the night. I don't know what The Secret of Kells is. Sounds Irish. Up was actually really good, and it was cheerful. People like cheerful. Art Direction, who knows? Let's call it for Avatar, since the number one box office hit of all time is going to win some stuff, and the two Victorian-era nominees are going to cancel each other out. Avatar will win Cinematography too. The Directing award will go to Up in the Air, because it is not Avatar, and it is the sort of socially aware movie that Hollywood likes to congratulate itself for making. Adapted Screenplay will go to Precious, because Up in the Air is going to win Directing. Original Screenplay is a tough call. Maybe A Serious Man, because they won't want to give it to Tarantino, and Up is a cartoon.

I'm starting to see people carrying Kindles. I'm not sure why, but when I do I want to beat them up.

I suppose I see the sense of an e-reader, or an iPad, for something like textbooks. Interactivity might be useful for that sort of thing. I stopped putting out paper versions of the materials I use in my Discovery class years ago-- it seemed wasteful to print stuff that was olny going to be used once, and it was expensive for the students to have to buy it. I doubt that Kindle textbooks are going to be much cheaper, though, and since the user purchases a license rather than an object there is no used market. I'm not sure why, but it also seems to me that the Kindle is going to make it harder for the people who produce content to get paid a fair price for it.

To Mostly Other People Do The Killing yesterday, at Bruce Eaton's Hunt Real Estate Art of Jazz series at the Albright-Knox. Bruce had promised that we were in for something special and they were all that, a terrific blend of Ornette Coleman, traditional New Orleans jazz, hard bop, "In A Silent Way" era Miles and probably six or seven or a dozen other things that I could hear but not identify. A lot of what happens in their music seemed to be going on in between the individual sounds that each member of the quintet (drums, bass, tenor and trumpet) were making. It was fun, and charming, but also challenging, often characterized by cacophony collapsing into lyricism. I'd rank it among the top shows I've seen over the course of the 11 years Bruce has been producing this program. I love it when jazz musicians show that the form is still growing.