Outside Counsel

One of the points of doing Outside Counsel-- now in its tenth year-- is to say things that other people haven't said.  Here's a list of some things that I'm glad I said this year:

On Geoffrey Stokes

On Why the Statler would be wrong for UB Law

On The politics of judicial appointments

On Clerical sexual abuse

On Gun nuts

On OTB

On Juan-Carlos Formell and Johnny's Dream Club

On 64 ounces of sardines

On Funerals

On The ambiguities of history

Also, although I've flogged this piece several times before, my article in Afterimage on the prosecution of my friend Lawrence Brose is something I'm proud to have written. (It is being re-published in The Squealer, coming soon.)  The Brose case has been much commented upon by the sorts of people at the Buffalo News that comment on that sort of thing, and they have, I think, mostly gotten it wrong.  What has struck me throughout is that the local arts community has been notably reticent about standing up for a man who has been a prominent advocate for artistic freedom and arts funding for over ten years.  Lawrence would have been at the front of the line protesting Chris Collins' funding cuts, and the absence of his voice has been a profound void. I'm glad that Squeaky Wheel has stepped up and allowed me to speak out on this matter, and I am sorry that essentially no other arts organization in Buffalo has had the courage to do so.

Only 27th? Somebody isn't holding up their end.

I'm coming around to the idea that the Hall of Fame should be more inclusive. As Joe Posnanski puts it, I think I'm a Big Hall of Fame guy.  I also think that if I got a ballot I'd be inclined to use all ten votes. On this year's ticket I'd go for Tim Raines, Robby Alomar, Dave Parker, Dale Murphy, Edgar Martinez, Alan Trammell, Bert Blyleven, Jeff, Bagwell, and Harold Baines.  Over on this thread I wrestle with the Mark McGwire question. I suppose his eventual election is inevitable, and given his ability to get on base I guess he is, as someone suggests, two dimensional, and therefore more than merely the Dave Kingman clone I think of him as. McGwire's numbers make him a closer call than a lot of people think, but they seem to qualify, if barely. Apples to apples? He's going in at some point. I hope he goes in with Bonds, and I hope he gives a shout-out to Jose Canseco when he does.

The last few times I've roasted a duck I've poured boiling water over the bird to tighten the skin and blanch out some of the fat.  This technique, which amounts to parboiling the duck, then roasting it, seems at first to be unnecessarily elaborate, but I expect it is not.  Here's the thing with duck-- it's three treats in one!  The fat is wonderful to have on hand, and duck stock was a major component of my turkey gravy this Christmas. I'm going to give this a try.

Outside Counsel is sorry to learn of the death of the Hon. Steven W. Fisher, a class act and a good judge. He regularly showed up on the short list for Court of Appeals consideration, and had a reputation as an upright jurist, not all that common a thing in Brooklyn and Queens.

Christopher Hitchens is on again about Henry Kissinger.  Nothing he says is wrong, and I'd welcome the war crimes trial of the guy, but I'm caught up in a thought experiment: if one were to rank the greatest American monsters would Kissinger be worse than Dick Cheney?  We can't turn to Hitch for his opinion, but I think his defense of the Iraq invasion may be in the background of his decision to dredge up the Kissinger stuff at this late date.

And as long as we are reminiscing about the Bush Administration, this review of "Decision Points" by Eliot Weinberger, from the London Review of Books, is worth reading in its entirety, and is particularly notable for being the first time in ten years that I've seen someone acknowledge that it was obvious that Bush intended to topple Saddam Hussein from the moment he took office.

New York's rules with respect to nonparty depositions continue to vex.  As Outside Counsel previously reported, the Second Department has held that notwithstanding the amendment to the statute "special circumstances" must be shown when seeking to depose a non-party. Comes now the Third Department, which holds that something more than mere relevance or materiality must be shown to obtain discovery from a non-party such as a demonstration that the information cannot be obtained from sources other than the non-party. Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau.  Show me where it says it in the statute.

What is particularly troublesome about this line of cases is that it is difficult to fix.  Amending the statute doesn't work, since the language of the statute doesn't seem to have an effect on the minds of the Appellate Division justices.  The other path would be to get the Court of Appeals to have a look, but taking a discovery dispute to the highest court in the state is an expensive burden to place on a lawsuit where the discovery issues are likely to be largely collateral to the heart of the matter.

Best Albums with Nude Covers and the Stories Behind Them. Not as comprehensive as it ought to be.

I remain vexed at the extension of the Bush tax rates, but there really is no denying that Obama has gotten a lot out of this Congress.  Health Care reform, the end of DADT, START, financial regulatory reform, the stimulus package-- these were each big lifts, and it is not like he had a lot of people lining up to help out by taking on some of the leadership. There's plenty that didn't happen too, of course: immigration reform would have been nice; and climate change legislation, but oddly enough it seems to me that where this administration is failing behind my expectations is in the areas where there are things that can be done within the executive branch. Close Gitmo.  Commit to the end of torture.  Commit to trying the Gitmo detainees in the US courts.

Oh well.  Maybe when he has to deal with a Republican House he'll turn his attentions in that direction.

Perhaps it is something in the air at this time of year.  The judge at my court appearance the other day was in an expansive mood.  He's a pleasure to appear before any time, but when he feels like talking he's even better.  This time he had a story about trying a white collar criminal case with one of the local legends of the bar, Harold Boreanaz.  Boreanaz had the target defendant, and he'd had a defendant that had been thrown in at the conclusion of the investigation.  The US Attorney had completed the direct examination of the FBI agent who had run the investigation, which had not mentioned the judge's client at all-- they'd connect that up later.  The prosecutor picked up a stack of paper about a foot and a half tall, walked over to defense counsel's table, put it down in front of them and said, "Your honor, let the record reflect that The People have tendered these materials and are in compliance with the Jencks Act."

The judge nodded, and turning to the defense attorneys said, "You may proceed."

Boreanaz whispered to his colleague, "Do you have anything?" and the young Judge __ said, "No, he didn't say anything about my guy."  Boreanaz said, "I need a half hour," so like a good soldier the young Judge __ got up and waltzed the witness around for a while.  After about 20 minutes of nothing much, ("If you are all 'Special Agents' then you really aren't special, are you?") he glanced back at counsel table and Boreanaz nodded.  He sat down, and Boreanaz took about two inches from the stack of documents that d just been tendered and proceeded to work the agent over.  "He just needed to get to a break," the judge said.  "He just needed to get to lunch, and after that he was able to keep the guy on the stand for a day and a half."

I've been doing this long enough to have a story or two like that myself, and what makes them seem so thrilling is that they inevitably seem to hearken back to a time when it seems as though the courts were lit with whale oil lamps.

Over at the Volokh Conspiracy Orin Kerr talks about Herbert Wechsler, and in the comments sometime Outside Counsel visitor C.J. Collucci mentions that Richard Posner said of Weschler that he had a kind of legal career that used to be possible, but isn’t any longer, because it is no longer possible to take the law, as such, as seriously as a discipline as we used to.Kerr responded with a link to an essay on Bernard Melzer, worth reading in its entirety:

"What has happened since the 1960s --that watershed decade in
modern American history -- is the growing apart, especially but not
only at the elite law schools, of the lawyer and the judge on the one
hand and the law professor on the other hand. Law professors used to
identify primarily with the legal profession and secondarily with the
university. The sequence has been reversed. Law professors in that
earlier era were hired after a few years of practice, on the basis of evidence
(heavily weighted by performance as a law student) of possessing
superlative skills of legal analysis. A law professor was expected to
be a superb lawyer and to see his primary role as instructing generations
of law students so that they would become good, and some of
them superb, lawyers -- instructing them by precept but also by example,
by being a role model; and the role was that of a practicing lawyer.
The scholarship that law professors did tended to be either pedagogical,
as in the editing of casebooks, or to be of service to the practicing
bar and the judiciary, as in the writing of legal treatises, articles on
points of law, and contributions to legal reform, exemplified by the
American Law Institute’s restatements of the law. "

Posner goes on to describe how this model evolved into what I think is more or less the present form of legal education, a sort of hybrid formed out of an increasing reliance upon the tools of modern social science (particularly economics) and the Critical Legal Studies movement.

What I think is interesting about these two threads is that they are both a form of nostalgia, and they are both verging ever so slightly on intellectual dishonesty.  Was legal education better in the 40s and 50s?  I doubt it.  The introduction of social science methodology isn't even all that newfangled.  The Brandeis Brief came into being in 1908. On the other hand, there is a certain sense that the practice of law as a so-called 'learned profession" may have fallen away.  I'm not sure where Harold Boreanaz would have placed along the spectrum Posner reminisces about-- I never saw him in action. Even so, it seems to me that it is still possible to have that sort of career, or a career like Weschler, or Meltzer.  I think people are having those sorts of careers, but we may be too close to see it.

Back when I worked for Birch Bayh Richard Lugar was regarded as an arch-conservative nemesis. Lugar had been mayor of Indianapolis, and had run against Bayh. He lost that time, but won two years later. Nowadays Lugar is about as close as it gets to a moderate Senate Republican, arguably more liberal than the other Indiana senator, Birch's son Evan. Not quite though: Lugar was one of two senators who voted against the repeal of Don't Ask/Don't Tell and in favor of the Dream Act.  I'm not sure I can get my mind around the mental gymnastics necessary to support one sort of civil rights bill while opposing the other. That sort of parsimony with respect to liberty is pretty despicable.

There were 12 senators that went the other way, voting against the Dream Act and in favor of DADT:

Max Baucus (D-MT)
Scott Brown (R-MA)
Richard Burr (R-NC)
Susan Collins (R-ME)
John Ensign (R-NV)
Kay Hagan (D-NC)
Mark Kirk (R-IL)
Ben Nelson (D-NE)
Mark Pryor (D-AR)
Olympia Snow (R-ME)
John Tester (D-MT)

I've been thinking about Christmas reform.  Let's face it, as merry as it is, the holiday could stand some improving.  I know people love tradition but as Justice Holmes said, the worst reason to do something is just because it was done that way in the time of William the Conqueror.  I'd like to socialize the whole thing, but that has no realistic shot.  I don't reckon anyone is likely to go for celebrating it every two years instead of annually either, although there is a lot to be said for the idea.  How about this? Let's move it into February. December is already charming, and it has New Year's Eve, and pro football, and in December terrible weather has novelty appeal going for it.  By the time February rolls around we are all sick of of cold, snow and dark-- why not celebrate Christmas then, when everyone's spirits use some brightening up?

This year's Rock'n'Roll HOF inductees: Tom Waits,  Neil Diamond, Alice Cooper, Dr. John, and Darlene Love.


Nominees that didn't make it into the Hall this year: the Beastie Boys, Donna Summer, LL Cool J, Chic, Laura Nyro, Donna Summer, Donovan, Joe Tex, Bon Jovi, J. Geils Band, and Chuck Willis.

I'd swap out Donna Summer for Alice, I think, and the fact that Laura Nyro isn't already in is shocking to me.  And although I like and respect Waits, isn't he something of a niche artist? I guess I don't understand what the criteria are supposed to be for this distinction. It isn't units moved, obviously.

I got to do a little food writing for Spree this year.  It's an interesting challenge to do well because it is easy to lapse into cliche. I found that the upside was that it made me concentrate on what I was eating.  Here's what I had to say about Oliver's.

If the Health Care Reform legislation is unconstitutional because Congress can't tell me what to do can we go back and just nationalize it the way they do everywhere else in the world?

I've always wanted to go to a party like this, even though it sounds absolutely horrible:

"The space was probably a hundred feet on either side - 'major real estate, of course', as Sontag proudly explained to me. (She loved using Vanity Fair-ish clichés.) She and Abramovic smothered one another in hugs and kisses. I meanwhile blanched in fright: I’d just caught sight of two of the other guests, who, alarmingly enough, turned out to be Lou Reed and Laurie Anderson. Reed (O great rock god of my twenties) stood morosely by himself, humming, doing little dance steps and playing air guitar. Periodically he glared at everyone -  including me - with apparent hatred. Anderson - elfin spikes of hair perfectly gelled - was chatting up an Italian man from the Guggenheim, the man’s trophy wife and the freakish-looking lead singer from the cult art-pop duo Fischerspooner. The last-mentioned had just come back from performing at the Pompidou Centre and wore booties and tights, a psychedelic shawl and a thing like a codpiece. He could have played Osric in a postmodern Hamlet. He was accompanied by a bruiser with a goatee - roadie or boyfriend, it wasn’t clear - and emitted girlish little squeals when our first course, a foul-smelling durian fruit just shipped in from Malaysia, made its way to the table."

It's from an essay by Terry Castle about Susan Sontag and the whole thing is worth reading. I'm on record as not getting Sontag.  No doubt she was a great genius, but the point of what she writes about ultimately seems to be hermetically sealed in her own mind. She's not trying to make a persuasive case about anything except, possibly, the superiority of her own aesthetics.

(Via Metafilter there is an alternate account of the party here.)

I did not know that the Saratoga Race Course is the oldest sporting venue of any kind in the United States, and I'm not sure I would have guessed it, although it makes a certain kind of sense. I suppose I might have guessed Churchill Downs.  In any event, the Spa is endangered because it depends on revenues from New York City's OTB, and OTB is over. I've never been clear on how New York's OTB is set up: apparently there are (or were) five regional corporations. I'm guessing that odds were standardized across each, and I think that it is odd that they went about it in such a piecemeal way.  The cost-inefficiencies seem pretty obvious, but at least for the time being I can continue to take a Triple Crown tingle among the local gentry.  "Excuse me, m'lord.  You appear to have become disconnected from your oxygen tank."

Walter Dellinger gets it right on why the standing argument in the Proposition 8 appeal is more than merely a technical issue: it's because "no one has a legal interest in denying someone else's happiness."  It's also because of another "technical" issue, the rule of comity.  Even though only a few states have enacted marriage equality to date, at some point the states that haven't are going to have to determine how to treat marriages that were validly entered into in other jurisdictions. There's really only one answer to that question, and once you are past the question of whether you'll recognize marriages performed elsewhere you have no basis for discriminating against your own citizens.

Joe Posnanski writes that for years Ron Santo was the Greatest Living Player Not In The Hall of Fame. I'm not sure who takes over now, but it got me thinking about the other people who are the greatest outsiders.  Can we agree that Peter O'Toole, for example, is the Greatest Living Movie Actor Without An Academy Award? (Cary Grant never won one either-- he got an honorary award after he retired, and he was only nominated twice, in 1941 for  Penny Serenade, and in 1944 for None But The Lonely Heart. What's up with that?) I'm not sure who the equivalent actress might be.

Literary awards are more fickle.  Right now I'd say that the Greatest Living Writer Without A Nobel Prize is probably Phillip Roth. Some day I'd like to be in London right before the announce the prize so I can put a couple of pounds on a writer.

After that we start getting into silliness.  Grammys and Emmys, who cares? Who is the Greatest Rock Artist Not In The R&R HOF? Again, who cares?  It's probably KISS, but I can't bring myself to get worked up about it.

Around this time last year the ignition lock in the steering column of the old Volvo broke.  It was made of some sort of metal, and it failed after having been turned-- who knows? -- thousands and thousands of times. 

It was an expensive repair.  The part had to be shipped from Sweden, and was hand-tooled by gnomes or something.  It was one of those automobile repairs that you hate paying for, but that you grit your teeth over, because you are committed to getting a lot more miles out of the vehicle.  You never stop  paying for a car, but after the loan payments end they become intermittent, in the form of repairs like this.

The new Swedish Batmobile doesn't have a key, as such, and at first I was puzzled by this.  It has a plastic fob with a transponder in it, and when you want to start the car you stick it in a slot, and then push a button.  I couldn't see what the advantage to this system was until I remembered our experience with the old ignition lock.  Fewer moving parts means less wear and tear, and presumably this means that  there is one less thing to break on the new car.  What I really like about it is that it reminds me of the "brain" that the Mother Thing steals or builds in order to highjack the Wormfaces' ship in "Have Spacesuit Will Travel".

http://nymag.com/news/features/69791/

Well, let's try crowd-sourcing the problem.  I use a Yahoo! calendar, on a free Yahoo! account, and all of a sudden it has stopped syncing with my iPhone. When I connect to my laptop I get an error message in iTunes that says "iTunes could not sync with Yahoo Address Book because the Yahoo! ID or password was incorrect."  I have tried (a) deleting and re-entering the  Yahoo! ID, the password and the ID and the password; (b) deleting the account and then restoring it; (c) in iTunes "Preferences" going to "Devices" and clicking on "Reset sync history" (I actually went to iTunes telephone help line and was told to try this and the next thing); (d) in iTunes right clicking on the iPhone icon, then clicking on "Reset warnings". None of this has worked.  I've searched on line, and haven't found a fix.

I'm also finding that Apple's telephone support is generally lacking.

I'm out of ideas. Has anyone else encountered this?

UPDATE: This appears to be the solution. From Settings go to Mail, Contacts, Calendars, then tap Add Account.  Tap Other and then tap Tap Other and then tap Add CalDAV Account. Enter "Yahoo" in the server account, then fill in the account name and password. Seems to be working for me....

It would take some planning, but I'm thinking that a rock'n'roll road trip to visit the scenes where this art form was invented would be a great thing to do.  I've been to Sun Studio in Memphis, and it was the most electrifying pilgrimage I've ever been on, but I missed American Sound Studio in Memphis-- Elvis cut "Suspicious Minds" there,and "Kentucky Rain".  The Box Tops worked there.  Wouldn't it be cool to go from there to Muscle Shoals? The NYC metro leg would include Electric Lady Studios, and Rudy Van Gelder's studio in Englewood Cliffs. I wonder if the WOR studio where all that great 30's and 40's (and 50's) jazz was recorded is still intact? Follow the Mississippi up to the scene where those Chess sides were made....

Very nice.  "It got me to thinking about how long distance isn't really long distance anymore. It seems like we're far apart, but we're living in a very different world these days, and we can feel close without having to be close every day. I wanted to show how we try to make the world a little smaller."

It's true, of course. Letters are nice, but EGA's sojourn in China was a more immediate experience for us because she kept a regular blog about it, and the same has been true about her earlier blog, her subsequent blog, and CLA's blogging as well.  Facebook accomplishes somewhat the same thing, although I suspect that it works less well for those of us who didn't grow up with it. Twitter I'm afraid I don't get at all.

In any event, the song and the video are charming, and I look  forward to learning how she learned about it.