Outside Counsel

We are taking EGA to Missouri tomorrow; it figures to be a two day trip. Plotting it out, we reckoned that Terre Haute would be a reasonable place to stop over, so I went to the Terre Haute TribStar website to see if I could scout out an interesting place to eat. I'm not optimistic, I have to say. Instead of restaurant reviews the paper publishes a weekly listing of restaurant inspections, ("Container used to drain cabbage observed with food debris; Mold observed on chute in ice machine behind bar..."), and this week's featured recipe was introduced as follows: "When a friend of mine had cancer, I took her to get her treatments and got to talking to other patients and nurses. Of course, it always came around to recipes. This recipe came from one of the patients. She said it was easy to make." I love the air of resignation in that last sentence-- the writer hasn't tried making the sausage bread; what would be the point? It's like Rachel Ray meets Samuel Beckett.

To the Kurt Rosenwinkel Standards Trio at the Hunt Real Estate Art of Jazz yesterday. Rosenwinkel is a fluid guitarist who has a distinct, clear sound. When he gets rolling his tone is almost like a horn, and he seemed to be improvising pretty freely. It's interesting to think about how technology has shaped jazz guitar-- Rosenwinkle had an array of effects pedals in front of him, but the stuff he was doing never seemed to be about the effects. I suppose the guitarist working in jazz right now that I enjoy the most is Bill Frisel, who really couldn't be more different from Rosenwinkle, and who was one of the first artists Bruce Eaton booked in this series ten years ago. What we got yesterday seemed less avant garde, but more fluent, a pleasant island in my weekend.

Remind me to look up Diamond and Vidmar, Jury Ruminations on Forbidden Topics, 87 Va. L. Rev. 1857 (2001). Chances are that the forbidden topics are not as interesting as the title makes it sound, but you never know.

Winning is the same in every endeavor, in all fields. You're never as good as you look when you are winning and you're never as bad as you look when you are losing. Health care reform has passed, but it was a near thing. A week ago people thought that Obama might be a one term president, now he is a world beater. A week ago people thought that the Democratic majority in Congress was doomed, now maybe not so much. A week ago it looked like the strategy to get this thing passed had been bungled, and now it appears brilliant. It does seem to me that the Republicans overplayed their hand. By making this an all or nothing proposition they went all in when they didn't have to, and now they appear irrelevant. Conservative Democrats demonstrated how negotiating leverage works-- they'll be the ones who get the credit for the compromises that their Republican peers might have forced if the Republicans had been interested in governing instead of political posturing. David Frum says that the bill passed because the Republicans "overlooked a few key facts: Obama was elected with 53% of the vote, not Clinton’s 42%. The liberal block within the Democratic congressional caucus is bigger and stronger than it was in 1993-94. And of course the Democrats also remember their history, and also remember the consequences of their 1994 failure." Maybe so. Frum also says that the bill is a "defeat for free-market economics and Republican values" even though, "the gap between this plan and traditional Republican ideas is not very big." I'm not sure what that means, but I think it means that even Frum, who is usually smarter than most most members of the conservative entertainment industry, is a little confused by the distinction between politics and governance. I'm not so sure that there are any moderate Republicans left in Congress, but if there are now would be a good time to start trying to cut some deals with the majority. The Democrats have demonstrated that when they have to they can get something done, and it looks like they are going to try and do some more before November. Immigration reform is apparently next, a good opportunity for actual bipartisan legislation. Cap and trade is also probably high on the agenda.

A week ago nobody seemed to remember that Obama had pulled the world economy back from the brink, but now he has two significant marks in the Win column. Of course, Bush accomplished what he set out to do too-- the difference being that what George wanted to do was attack Iraq. It looks to me as though Obama's plan is going to work out better for most people.

A win's a win, but you know what? It's still a lousy bill, and it's a damn shame that the best we can do. "The health care bill's greatest accomplishment is that it brought out some of the very worst of America for the rest of the world to see at the most base level possible, and truth is a virtue you can't legislate. To put it in blunt terms, America put the weight of health care of people they don't have to give a shit about on themselves. And some people in America have a problem with that because they'd rather see those people die than pay a small penance for them to live." What I'm hoping is that it's a start, and that down the road a bit we can build on it. Single payer is probably a generation away, but we should be able to get a public option at some point in the fairly near future.

Lawyers enter into the discussion only glancingly in this Metafilter post about obsolete professions, but there is absolutely a sense in which our glamor profession deserves a place at the table. In the 16 years that we've had our practice we saw entire areas of law that we concentrated on eliminated with the stroke of a pen. In Australia there's a state that wiped out auto torts, and there are Canadian provinces that have done essentially the same thing. Medical malpractice was once a growth area. When I moved to Buffalo there were a half dozen firms that did little else besides represent med mal plaintiffs. I don't think there's one now-- people still do it, but since the overwhelming majority of med mal cases that go to trial end in defense verdicts (like 98%) nobody can survive just working med mal. Products liability-- an are where I have some expertise, has turned into the defense of product lines, a much more complicated area, concentrated in a handful of firms around the country.

The fact is that tort law is a very inefficient mechanism for spreading risk. I'll probably outlive the tort system, but it might come down to the wire. Of course other kinds of lawyers will endure. It is a complex world, and any time you are dealing with the government-- or anyone with greater resources than you have, really-- you'd be a chump to go in without someone who has the expertise to even the odds a bit. The profession will endure for a while yet, but it's going to look a lot different.

With some artists its when you find your way in. Christgau had been saying for years that Alex Chilton was putting out sides that were worth picking up, but I couldn't find "Like Flies on Sherbet" or "Feudalist Tarts"-- and I didn't know about Big Star. What I ended up with was "High Priest"-- the one where Chilton covers "Volare". Hard to say if it is his quirkiest side-- Bruce Eaton makes the argument that Chilton was misunderstood, and not really quirky. Excentric maybe. Bruce would know. Chilton is an interesting figure in American pop-- the Box Tops material is almost certainly his best known stuff, but his influence-- particularly with Big Star-- is remarkably pervasive. In an odd way Chilton really was a pure artist working in a genre where pure artists are not really acknowledged-- it's called pop, after all, because the goal is to be popular. You have really made it as a pop star when they use your music in car commercials, and even though Chilton wrote a song that became the theme to a sitcom he doesn't seem to have been interested in working towards that goal. As I scanned the obits and the tributes I was struck by how some media outlets understood his significance and others didn't really get it.

Is there a better illustration of the Overton Window than Justice John Paul Stevens? Appointed by Gerald Ford, who doesn't think of him as a liberal? Probably even he does at this point.

I guess I'd always assumed that Gotham City was in the Midwest. Makes sense that Green Lantern is on the west Coast though.

Watched "The Hurt Locker" last night, a movie so well made that I was tempted to run through it again immediately just to see how the pieces were put together. Part of what made it work so well was that the first scenes had a documentary feel to them. It didn't seem like a conventional narrative for quite a while, and built suspense by building interest in what the characters were doing. In year full of impressive movies, this is a movie that seems to me to deserve the praise it received.

Sarah Harmer's Lodestar popped up on my iPod, and since I happened to be at my computer I looked her up. I'm not sure where I came across the song, but I've loved it from the first time I heard it. It's from her 2000 album, "You Were Here", and Wikipedia reports that "You Were Here" is number 40 on Bob Mersereau's list of the top 100 Canadian albums. Well, who could resist such a list?

It does seem to me that Mr. Mersereau takes some liberties with the notion of what makes a side "Canadian"-- apparently it comes down to where the artist was born. Far be it from me to dispute either Neil Young or Joni Mitchell's Canadian-ness, but wouldn't you say that both are more SoCal? (To be sure, both Shakey and Joni have retained their Canadian citizenship-- I looked it up during the closing ceremonies.) That moves us to the 4 slot, where we find The Band. Sure, they were 4 to 1 Canadian, but Levon Helm is a son of the Ozarks, their themes are principally concerned with the American South (or Greil Marcus' "old, weird America") and they wrote and recorded in Woodstock, New York. (Actually West Saugerties, but nobody ever says "The West Saugerties Generation".)

That brings us to The Tragically Hip, indisputably Canadian; Alanis Morissette (all yours, Canada), The Arcade Fire; Rush and The Guess Who. (The Guess Who are grossly under-estimated in my estimation.) No argument from me there, and I'm certainly not going to quarrel with the bona fides of Blue Rodeo, Bryan Adams, Sloan or the Rheostatics either. (I don't know the Rheostatics, but they seem to keep pretty rarefied company, logging in at #19.) Daniel Lanois, sure. Gorden Lightfoot? You bet. Sarah McLachlan and Barenaked Ladies and Broken Social Scene too. I don't know what's supposed to be so Canadian about k.d. lang, but I'll certainly stipulate to Oscar Peterson, who is Canadian the way Mordecai Richler is. As Canadian as poutine, both of them; likewise Glenn Gould and the Cowboy Junkies. Ian & Sylvia deserve to be ranked higher; I didn't know Steppenwolf were Canadian, and I'm still not sure I believe it (John Kaye was born in Tilsit, although his family moved to Canada in 1958,); and where the hell are Kate and Anna McGarrigle, Heart, or the guy who does "Life is a Highway"? Since the list crosses genres, shouldn't Rob McConnell's Boss Brass be there? How about Holly Cole? Where's Diana Krall? Or Kim Mitchell? Why no love for Spirit of the West?

It's a pretty poor list if I can do better off the top of my head. But I do like Lodestar, and I guess I should pick up more Sarah Harmer.

I'm surprised that Kissinger leaves the US, although I guess South Korea and Israel are probably safe havens for him. Bet he's damn careful to take direct flights. It would be interesting to see what the list of places he can go to without fear of arrest and extradition looks like. I wonder if he shares it with Bush and Cheney?

I'd have thought that among lawyers condemnation of Liz Cheney and Bill Kristol's equating the lawyers who represented Guantanamo detainees with their clients would have been instantaneous and universal. Dahlia Lithwick got it right: "When the "al-Qaida Seven" and their two DoJ colleagues fought to defend alleged terrorists at Guantanamo Bay, they weren't fighting to protect jihadist murderers. They were defending the U.S. Constitution—the great whomping chunks of the Bill of Rights that Cheney and her friends are so eager to write out of existence. They did it because that's what lawyers are ethically obligated to do. They did it because—as Spencer Ackerman points out—the Military Commissions Act of 2006 expressly provided that detainees get defense lawyers. And they did it, as Jay Bookman notes, for the same reason John Adams agreed to represent British soldiers charged with killing civilians during the Boston Massacre in 1770. Because long before Liz Cheney was born and long after she's gone, the Bill of Rights requires serious people to take it seriously."

To my dismay, however, there is apparently a serious effort among nominally conservative legal scholars to justify Ms. Cheney's remarks. Stewart Baker, a contributor to the Volokh Conspiracy argues that because the Guantanamo accused were already being provided with perfectly good military defense counsel, volunteering to defend them is an exception to the generally accepted notion that the beliefs of counsel should not be conflated with the actions of the defendant because "These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases."

Can you spot the false premise? Mr. Baker, a partner in the Washington office of Steptoe & Johnson LLP, and formerly first Assistant Secretary for Policy at the Department of Homeland Security is arguing that-- notwithstanding the Supreme Court's ultimate holding on the question-- the Bush Administration's legal policy with respect to the poor bastards at Gitmo was correct and that it was wrong somehow to oppose it. This is really kind of staggering, even leaving aside the fact that Mr. Brand appears to be assuming guilt on the part of the accused. When you are a lawyer belief in the system should be fundamental, and if you believe the system is broken you should work to fix it. Mr. Brand, and Mr. Kristol, and Ms. Cheney apparently believe that the US justice system is too good for some people, and want to see some sort of kangaroo process put into place for people they don't like. This is appalling, and demonstrates a fundamental misunderstanding of what has made American jurisprudence stand as a beacon to to other systems. What they are saying, in effect, is that we are not what we say we are, which impresses me as unpatriotic, unlawyerly, and terribly, terribly sad.

A few weeks back there was an on-line discussion among the UB law adjuncts about students using laptops in class. Some people were dead set against it, mostly on the grounds that laptops are a distraction and disrespectful, but I think the majority position was that they can be a useful tool, and that distractions are an inevitable part of the classroom setting. I don't recall that it came up in the exchange,for example, but probably most law students have played or at least heard of Gunner BINGO. I was in the useful tool camp, but now I'm wondering. For about a half hour yesterday there was a rumor that Chief Justice Roberts was going to announce that he was stepping down. It got rolling when a site called Radar, which I've never heard of, posted it and it got picked up by some other places, and then it was everywhere, and the then it was retracted. Apparently the story got its start as a hypothetical in a first year criminal law class at Georgetown about the reliability of informant information. Man, a lie gets around the world before the truth can get its boots on. When I think about some of the law school hypotheticals I've heard over the years I have to wonder if the capacity to instantaneously broadcast them might not be a good basis for conducting class in a lead-lined bunker.

I can't spot him here, but my brother participated in Spencer Tunick's Sydney installation over the weekend.

To the Cedar Walton Quartet at the (deep breath) Hunt Real Estate-David Kennedy Art of Jazz at the Albright-Knox yesterday. I've been hoping Bruce Eaton would book Walton since I realized that the series was an ongoing affair, and I think Bruce has had him on his list for a long time too. He was as excited as I've ever seen him before the show, and it soon became clear why: these guys (Javon Jackson tenor, David Williams on bass and drummer Billy Drummond) swung into their set with smooth power. It was like being in a Blue Note album. There are moments when I'm listening to this sort of hard bop music when I am pretty convinced that the musicians who came out of the post-war jazz scene made the greatest contribution to American culture of anyone in any other field-- literature, cinema, you name it. This was one of those moments. These four cats were consummate pros, with a deep and profound understanding of the jazz idiom, and listening to them imbued us with insight. The pre-show this time was a movie about Horace Parlan, another pianist from that time, and at one point in the film Parlan, who has lived in Denmark since 1973, talked about the pressures of living in New York and being a creative artist in the 60s and 70s. It has to have been a difficult road for these artists, and we are fortunate that they stayed the course because the work they are producing is still as exciting, engaging and important today as it has always been.