Outside Counsel

To the Show Me State last week, in particular Columbia and St. Louis, a city that was new to me. Some observations: Columbia is to Bloomington as Geneseo is to Northampton. I like all four, but there is more to like in some than in others. Lots of cities, including Buffalo, have phallic symbols as their central civic icon. It's nice that St. Louis went the other way with that.

St. Louis as a whole seems like a city with a surprising number of challenged neighborhoods. It looks like there was a fairly significant outward migration, and as a result there was a lot of highway construction, which chopped the city up into a number of discrete neighborhoods. Within a given neighborhood things seem lovely, but getting from one part to another is not a pretty experience.

Quite a bit of St. Louis looks to have been built at around the same time as much of Buffalo. There are a number of architectural similarities.

Went for a run in Forest Park, which I like a lot. It has a six mile loop around its perimeter that is terrific.

I've done the research, and I've done the fieldwork. The brewpub you are looking for is the Schlafly Taproom. The bistro you want is Franco.

I'd be interested to know why Missourians elide the names of their institutions of high learning. The University of Missouri is universally known as "Mizzou". St. Louis University is called "Slew". I don't know if Washington University has a diminutive, but on January 8, 2011 EGA will be getting married there, in Graham Chapel.

We had these ants as neighbors at the CEPA Gallery two years ago. In fact, that's the Buffalo skyline in the diorama-- you can see City Hall, and the Liberty Building. It was an interesting exhibit, from an interesting artist-- Elizabeth Demaray's work is about the intersection/imposition of nature and the manufactured world. (She made artificial housing for hermit crabs for a different project, for example.) This particular CEPA exhibition came at an interesting time. Critical Arts Ensemble founder Steve Kurtz was being prosecuted by the United States Attorney for the Western District of New York-- a disgraceful episode. CEPA's bio-art exhibition, worthy in its own right, was also a commentary on the Kurtz case, and typical of the courage (and sense of humor) of Lawrence Brose, CEPA's director at the time. You have to wonder if this nose tweaking was part of the dossier assembled on Brose, and why US Attorney for this area is so busy prosecuting artists.

Oh, and the ants died and kept having to be replaced.

I'm doing a little food writing for Spree this month, and it got me thinking a bit about writing generally. In an introduction to one of his Consumer Guides Robert Christgau described how his job gradually became more and more like work. In writing his reviews he felt the obligation to be as comprehensive as possible, and over time that meant that he was listening to more and more music, and never having time to go back and listen to any old favorites. I can certainly see how that could become a drag, and it would operate to the detriment of your critical senses as well. Over time it might mean that only things that would appeal would be the things that popped out at you immediately. Driving back and forth to NoHo The Arcade Fire kept appearing on the radio. Listening to them, I understand why they are well-regarded, but I'm not getting it. Chances are that there music requires more concentration than I am giving it, and if I were a music reviewer that would be a constant problem.

I think the same would be true if I wrote about food all the time. The risk of becoming jaded (and hugely fat) makes the job a lot more challenging than I think people realize. In NoHo I ate three really good things: a grass-fed beef hamburger, a plate of barbecued shrimp with grits (mine are better, and Dave's are still the best I've had, but still really good), and a cup of frozen yogurt, made from local, organic milk, with blueberries. I could give you a paragraph on each, but the pressure of having to do that all the time might take a lot of the joy out of the immediate experience. It's made eating pizza a lot more complicated over the past couple of weeks, I'll tell you that.

To NoHo, and Capen Hall, where CLA will spend her senior year.

I'm sure I posted this once before, but I can't find it so here it is again: Gary Giddins' Post-War Jazz: An Arbitrary Roadmap. "If you want to play, you have to abide by the rules, mainly one big rule: A musician may be listed only once as a leader." Naturally there is quite a bit here that is familiar, but it is nice to be reminded of those tracks. Where this is really useful is in sugesting jumping off points for those artist with whose work I am less familiar.

Earlier this year I was approached by a prospective client who wanted to make a wrongful death claim. The facts of the case presented some tricky questions. The decedent had shared custody of a minor child-- around eight years old or so. The child had called 911 and reported that the decedent would not wake up. The police responded, and found the decedent in what appeared to be an intoxicated condition. While they were in the decedent's home they found a quantity of crack. They took the decedent into custody, and brought the child to the home of the other parent. They brought the decedent to the holding center. Over the course of several hours there the decedent was observed vomiting, and lying on the floor. At some point the decedent went into a seizure and it was decided that transport to the emergency room was called for. In the ambulance the decedent went into arrest and died.

There were a number of atmospheric details that I am obviously eliding over here-- the whole thing was a sad mess, and the decedent's survivors deserve anonymity here. The core legal question from my standpoint was basically whether we would be able to prove causation; and we needed to consider whether the prospective damages were worth prolonging the grief of the family over several years. In the end they decided that they did not want to go through with it, and I think they made the right call. I was reminded of this when reading about McKenna v. Edgell, a case out of the Sixth Circuit in which police officers who responded to an emergency call were held civilly liable for the violation of the plaintiff's Fourth Amendment rights under somewhat similar circumstances. Interestingly,McKenna turned on the question of whether the police were acting in a law enforcement capacity, or in a medical-response capacity. "If the officers were acting in a medical-response capacity... they are entitled to qualified immunity. If the officers were acting in a law enforcement capacity, however, then the officers are liable because it is clearly established that (1) 'police violate the Fourth Amendment when they handcuff people whom they neither suspect of criminal wrongdoing nor believe to be a danger to themselves or others' and (2) that a person has a right 'to be free from unreasonable searches, including a warrantless search in the absence of exigent circumstances or some other warrant exception.'" Orin Kerr thinks the Sixth Circuit screwed up, basically because the rule it enunciates is muddled, and I think he may be correct. It seems to me that the situation may have been pretty fluid, and that the sort of binary, either/or test that the court found applicable would not have provided the police with any way to know if they were acting in good faith. That said, it also seems to me that there may have been atmospherics that we don't know about. I know that in my case there were-- in the background of what I was dealing with there was, for example, the disgruntled other parent, who may have prompted the child to call 911 as part of an underlying custody issue. How might that have impacted on a court's analysis? The way the facts were spread out in the official reporting by the police made it appear that they were responding to a possible medical emergency-- or a potentially dangerous situation for the child. I don't doubt, however, that this reporting was shaded a bit to address the issue of whether the child had the authority to invite the police into the premises. Some discovery might have cast a bit of light on this question.

I don't know that I'd have taken the case if the decedent had survived and come to me with a possible Constitutional tort claim. As I researched the issues in order to counsel the survivors I considered the Fourth Amendment claim as an element of damages, but I didn't think that it was much of a sweetener. At least I got that right: although the jury in McKenna awarded $6,000 for medical expenses and $275,000 for pain and suffering the district court reduced the pain and suffering award to $10,000 bucks. That's about where I figured the value might have been, if I got every break, added onto the value of the pecuniary loss sustained by the child, and something for the actual pain and suffering endured before death.

Excellent post on standing from Ilya Somin at The Volokh Conspiracy.

"The real purpose of 'standing' doctrine is not to keep out frivolous cases, but to make it more difficult to bring meritorious ones, and thereby insulate potentially unconstitutional practices from legal challenge. This is the agenda underlying claims that standing doctrine is needed to prevent plaintiffs from bringing cases based on 'generalized' grievances that affect a large number of people."

I'm not so sure that Professor Somin is correct when he says "Traditionally, conservative scholars and judges have advocated narrow views of constitutional 'standing': the level of 'interest' litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on these sorts of technicalities." I think that is a bit too broad brush, and that it is probably more accurate to say that how one feels about standing depends on what ox is being gored. Of course, my views on the question are the views of a litigator rather than a theorist-- I'm in this biz to make arguments, not pronouncements. As an abstract proposition I'm fine with the idea that federal courts are limited in what they can do, and in what cases they can accept. It's a federal system, after all, and the state courts, in my experience, are reasonably well equipped to handle most judicial business. I guess that makes me a conservative in Professor Somin's view, but I don't feel conservative.

Until I saw a picture of it in the Wall Street Journal I didn't realize where the proposed Cordoba House was. I've been buying suits there since I was on high school-- how dare they turn a discount haberdashery into something I'm less likely to use!

Although we did other things over the weekend, we also watched two of my favorite movies, M*A*S*H and The Godfather. CLA had seen neither, (actually, none of her sisters have either), and watching her watch both gave me some insight into the way the students in my class experience media. The art of cinema does not seem to exist for them as a point on a continuum for starters. They are used to the way movies are now, and watch the way they have always watched. One of the things that is great about M*A*S*H is the way it breaks down movie conventions. It is really a very experimental work, hidden in a genre film. The unconventional camerawork and the overlapping dialogue looked like nothing else anybody had seen back in 1970, but now we see these things frequently-- they have become part of the movie maker's bag of tricks, and audiences today usually don't even recognize that these techniques are comparatively new. The structure of the movie, which is more or less episodic, with no real plot arc, was likewise something unusual in its day. Altman was making a point with this, I think, but then as now it is quite easy to miss that point. The existential repetition of the characters' lives-- punctuated with sports, drinking, and sex-- is a variation on something like Waiting for Godot, and in fact the episodes of sports, drinking and sex are as repetitious and ultimately indistinguishable each from the next as the scenes set in the operating room. In order to understand this, however, it is necessary to engage in the film. Altman invites us to do this by way of the mumbled, overlapping dialogue, and the scenes filled with background activity-- he is trying to force the audience to pay attention, and when we are rewarded with the subtler humor that runs underneath the slapstick comedy that is set up in each of the little episodes that he strings together. This is not the way people typically watch movies on TV. Television is background for multitasking. I have always disliked the television adaptation of M*A*S*H for exactly this reason-- it is all foreground, as subtle as a pie in the face. Altman is all background-- both versions want us to know that War Is Hell-- but Altman may be telling us something more.

Although they may seem an unlikely paring, The Godfather has several points in common with M*A*S*H. Both are good examples of first-rate movies made from literary works that were genre pieces, and both have become so completely incorporated into the American cultural idiom that it can be difficult to see them for what they are. It's a bit like Mel Brooks' "Young Frankenstein"-- once you've seen Peter Boyle and Gene Hackman having dinner and cigars it is hard to understand the menace projected by Boris Karloff. One of the things that is notable about The Godfather in its day is that it was part of a larger trend in cinematic violence. Like Bonnie & Clyde, or the things that Sam Peckinpah was doing at the same time the violence in The Godfather was shockingly graphic. It seems to me that The Godfather retains its ability to shock because its scenes of violence are so well-composed. There is the finale, of course, which works beautifully because it is cross-cut with the baptism, but it was Sonny's assassination which drove CLA from the room. A and I remained-- neither of us can stop watching The Godfather once we start. Its brilliance, of course, is that it is only a movie about the Mafia in the most superficial sense. Coppola is really interested in exploring ideas about family, and power. What I like best about it are the scenes with Tom Hagen, the family's consigliere. It would be interesting to make a movie from that character's point of view, I think. He's pragmatic, and he has his own opinions about how things should be done, but he is also a lawyer who knows that decisions belong to the client.

It has been a long time since I've taken a look at the jurisprudence of Article III standing. If you told me that the last time was when I was taking Al Katz' Federal Courts class in law school I'd believe you. So I don't really have a strong opinion about whether the Prop. 8 proponents have standing to appeal. What I take exception to is the normally sensible Emily Bazelon saying that if the decision of the District Court stands because there is no-one with standing to take the appeal "gay marriage [will have] become legal in California because of what's essentially a technicality". Like hell it is, and besides that, what the hell is "a technicality"?

I'd also like to know how it happens that the Prop. 8 supporters had standing to defend the matter at trial, a question Bazelon raises then walks away from. As Vikram David Amar notes here, "If the Ninth Circuit concludes that the Proposition 8 sponsors lack standing, then what? Although the answer is complicated, my initial sense is that if these sponsors are not appropriate parties on appeal, they also lacked standing to defend in the trial court. Which means the trial itself should not have occurred, because there wasn't the constitutionally required concrete and adverse advocacy on both sides." Amar thinks that in that instance summary judgment would have been appropriate, and that the appellate court would owe less deference to the findings of fact made by Judge Walker. I'm not so sure about that-- I think the court still has to make inquiry, and the plaintiffs still had to make out a prima facia case.

Also, at Volokh, some thoughts on what 9th Circuit judges might get the case. Apparently in the 9th Circuit the tradition is that when a case goes up on appeal, and it has been there before to a given panel on any issue, that panel has the option of taking the full appeal when it is filed. In this instance that would be three Clinton appointees, two of whom clerked for Justice Brennan. Professor Kerr observes that this draw "would tend to make Supreme Court review of this case much more likely." I don't know about that-- it seems to me that the only way the Supreme Court declines to take this case is if the 9th Circuit reverses Judge Walker. It's nice for the likely 9th Circuit panel that they have a chance to affirm a decision from a Reagan appointee, and that must be making the people who go off on the jurisprudence of the 9th Circuit just nuts.

For some reason I drifted to sleep last night thinking about constitutional law. One of the things that impresses me as peculiar about Originalism is that its proponents seem to overlook the fact that the document has changed 16 times since its periwigged drafters first set pen to paper. Sometimes the changes have been wrong-headed exercises that had no place in the fundamental governing document of a nation and sometimes the Constitution has been amended to fine-tune the document. There have been more than a few occasions when the Constitution has been amended to correct a serious injustice, and the Civil War Amendments, along with the 19th, 23rd and 26th fall into that category.

It's the 14th that's the big one, though. After that we are really looking at a completely different government, and denying this is the equivalent of admitting that you are really living in a dream world.

What really got me thinking though was that the Constitution sometimes seems more capable of amendment than at other times. Setting aside the anomalous 27th for the moment, the 18 year-old vote, in 1971, was the last time the amendment process has been used. 39 years isn't the longest period without an amendment-- the average is 13.6 years, more or less, with the longest gap being the 61 years between the 12th(1804) and the 13th (1865). There was a 43 year gap between the 15th and the 16th and 17th, passed the same year. We are now in the third longest period without a Constitutional change. We were going nuts between 1961 and 1971, a more prolific stretch than any other.

I find myself wondering if the prospect of Constitutional change seemed as remote between 1804 and the Civil War as it does today. Hell, even passing ordinary legislation seems like a big lift today.

05:06:07 08/09/10

From time to time we are asked to appear for a client in traffic court. It's an interesting process in its way, a great leveler, and of course it is very much bulk justice. In fact, many district attorneys, their resources taxed by other priorities, delegate their authority to prosecute VTL cases to the police agencies which issue the tickets, including the Division of New York State Police. The Jodhpurs Gang has a policy against plea bargaining, and it turns out that if they object to a reduced charge the courts do not have the discretion to accept such a plea. People of State of New York v. Francis G. Christensen.

The argument in support of the State Troopers refusing to plea cases has some merit: "[W]e believe that there is an inherent outward appearance of unfairness and duress when a motorist is forced to plea bargain his or her case with the arresting officer, the very same officer who stands as his or her accuser, and also as the primary prosecution witness…The result can be the perception of favoritism, prejudice or, even worse, bribery." Fair enough, but what that means to me is that the cops should not be standing in for the prosecution in the first place.

When discretion is removed from any legal process that process suffers in my view. The whole system grinds away, and we are all strapped to it, like something out of the Perils of Pauline. I understand what the Second Department is saying in the Christensen case, but it points to a deeper problem.

I'm pleased with the District Court's decision in Perry v. Schwarzenegger--most right-thinking people would be. I'm glad that Judge Walker's decision is fact intensive. Everybody knows it's going up, and the Reagan-appointed Walker has done the Ninth Circuit and the Supreme Court a solid service by laying the record out there for them. It is worth noting that Judge Walker's job was made easier by the failure of the proponents of Prop 8 to put in any meaningful proof, or even to make a coherent argument.

Here's the part I don't understand: how come the people who are now all howling about this result view this as the creation of a "new right"? This is not about creating rights-- the question before the court was whether Prop 8 violated the plaintiffs' due process and equal protection rights. This is not about whether the States have the right to define and regulate marriage; it is about whether the way that California went about defining and regulating marriage passes constitutional muster. No new right was created here-- all that happened was that a law that discriminated against a class of people without a rational basis was overturned. Maybe the problem is "rational"-- I'm not seeing a lot of rational discussion from the people who are unhappy about this, just hand-waiving about polygamy and bestiality. If the best you've got is a states rights argument then give it up-- you're about sixty years off the pace.

We caught up with Shakespeare In Delaware Park's production of Macbeth earlier in the week, an interesting take on the Scottish Play. On the theory that Buffalo has a lot more talented woman actors than roles for them to play, the producer decided to mount the play with an all woman cast. It pretty much works, although there are moments when it gives off an odd dyke-y vibe. I've always felt that one of the interesting things about the play is its take on how the sexes behave vs. how they are perceived, and some of that is lost as well. Lady Macbeth is the tough one in the relationship, and for all her talk of dashing out the brains of a baby and her cries of "unsex me here/
And fill me from the crown to the toe top-full/Of direst cruelty!" I don't think that Shakespeare meant for us to see her as an aberrant monster. Like Macbeth she is consumed with ambition; unlike Macbeth she is prepared to do whatever it takes. I suppose we are meant to contrast her with Lady Macduff, but in an all-woman cast Lady Macduff comes off as something of a lightweight. It is interesting that in this production Lady Macduff comes across as something of an ingenue.

Still, it is an intriguing approach to the play, and a lot more interesting than the usual, "I know, let's dress them up like Star Trek characters" variation. I'd like to see them try it again with a different play-- wouldn't it be interesting to do The Merchant of Venice this way? Maybe Shylock should be played by a man, to emphasize how alien he seems to the others.

A friend alerted me to the American Bar Association's list of the 25 Greatest Fictional Lawyers. They did a similar list of great movies about the law two years ago. The Great Legal Movies list is different from my own Great Lawyer Movies list-- the ABA's ontological scheme includes Twelve Angry Men, for example, which is not a Lawyer Movie at all.

This year's list impresses me as rather shaky. It crosses media for one thing-- lawyers from novels, movies, plays and television all mingle. It is too heavy on the criminal law side as well, something that I tried to avoid in my scheme. Finally, the works the ABA cites are mostly potboilers-- fun to read or to watch, but not really very good depictions of our glamor profession. Were I teaching a course in Fictional Lawyers I'd lead off with William Faulkner's Gavin Stevens-- The Town, maybe, or perhaps Knight's Gambit. I'd also be sure to include Shakespeare's Portia, a lawyer's lawyer who knows that the science of jurisprudence must be tempered with discretion in order to achieve justice.

Elena Kagan's confirmation this afternoon means that the Supreme Court has three women. All of them are New Yorkers. Roberts is a New York native-- he was born in Buffalo, although he didn't grow up here (he is admitted in DC). Alito and Scalia are both from New Jersey. The only southerner is Thomas. Breyer and Kennedy were both born in California, but once Breyer hit Harvard Law he was a Massachusetts guy; Kennedy went back. California is the only state where he is admitted. Interestingly Scalia is admitted in both Virginia and Ohio (he practiced with Jones, Day in Cleveland from 1961 to 1967. Thomas is admitted in Missouri.

Joe Conason nails it: "No recent controversy has so plainly revealed the hollow values of the American right than the effort to prevent the construction of a community center in Lower Manhattan because it will include a mosque."

(A close second might be the Republican movement to abolish the 14th Amendment. we are officially in the Silly season I think.)

It is worth noting that the efforts to block the mosque run directly counter to the Religious Land Use and Institutionalized Persons Act—a federal statute enacted in 2000 that bans faith-based discrimination in land-use decisions. One of the sponsors of the statute on the Senate side was Holy Joe , and naturally he had something ignorant to say on the subject. It would be fun, in a Tim Russert kind of way, to run down the law's sponsors and where they came out on this. I have a hunch that Barney Frank would be one of the few who wouldn't be embarrassed.

Christopher Hitchens on the country of illness.

"The new land is quite welcoming in its way. Everybody smiles encouragingly and there appears to be absolutely no racism. A generally egalitarian spirit prevails, and those who run the place have obviously got where they are on merit and hard work. As against that, the humor is a touch feeble and repetitive, there seems to be almost no talk of sex, and the cuisine is the worst of any destination I have ever visited. The country has a language of its own --a lingua franca that manages to be both dull and difficult and that contains names like ondansetron, for anti-nausea medication -- as well as some unsettling gestures that require a bit of getting used to."

EGA is having her port removed today, the final totem from her visit to that place. And have I mentioned that she is getting married? A stay in another country, and then the journey continues.

For a variety of reasons I have held off commenting on the charges that have been brought against my friend Lawrence Brose. He has been the target of several ugly and unfair columns by the Arts editor and the Arts columnist of the Buffalo News, and I have engaged both of them in private email exchanges, calling them out on it. After the last go-round I was asked by the editor of Afterimage, the publication of Visual Studies Workshop, a non-profit media arts center located in Rochester, New York, to write something to present a more balanced view, and now it has appeared.

The bottom line for a lot of people seems to be that the nature of the claimed offense trumps all other considerations. I've been surprised and disappointed by the reaction to this thing, but I suppose I shouldn't have been.